DT^^ED
R 1 9 ^06
CSE
UNITED STATES REPORTS
VOLUME 370
CASES ADJUDGED
IN
THE SUPREME COURT
AT
OCTOBER TERM, 1961
MAY 28 THROUGH JUNE 25, 1962
(END OF TERM)
WALTER WYATT
REPORTER OF DECISIONS
UNITED STATES
GOVERNMENT PRINTING OFFICE
WASHINGTON : 1962
For sale by the Superintendent of Documents, U.S. Government Printing Office
Washingtor. 2,, D.C. - Price $~.50 (Buckram)
Un r
Un r
4 7; 7 0
JUSTICES
OF THE
SUPREME COURT
DURING THE TIME OF THESE REPORTS.
EARL w ARREN, CHIEF JUSTICE.
HUGO L. BLACK, ASSOCIATE JUSTICE.
FELIX FRANKFURTER, ASSOCIATE JUSTICE.*
\VILLIAM 0. DOUGLAS, ASSOCIATE JUSTICE.
TOM C. CLARK, ASSOCIATE JUSTICE.
JOHN M. HARLAN, ASSOCIATE JUSTICE.
WILLIAM J. BRENNAN, JR., ASSOCIATE JUSTICE.
POTTER STEW ART, ASSOCIATE JUSTICE.
BYROX R. WHITE, ASSOCIATE Jt:STICE.
RETIRED
STANLEY REED, ASSOCIATE JUSTICE.
HAROLD H. BURTON, ASSOCIATE JUSTICE.
SHER.MAN MINTON, ASSOCIATE JUSTICE.
CHARLES E. WHITTAKER, ASSOCIATE JUSTICE.
ROBERT F. KENNEDY, ATTORNEY GENERAL.
ARCHIBALD cox, SOLICITOR GENERAL.
JOHN F. DA VIS, CLERK.
w ALTER WYATT, REPORTER OF DECISIONS.
T. PERRY LIPPITT, MARSHAL.
HELEN NEWMAN, LIBRARIAN.
*~IR. J USTICE FR.\NKFURTER was absent from the bench becau se
of illness, and he took no part in the decision of any case reported in
this volume .
III
SUPREME COURT OF THE UNITED STATES.
ALLOTMENT OF JUSTICES.
It i.s ordered that the following allotment be made of
the Chief Justice and Associate Justices of this Court
among the circuits, pursuant to Title 28, United States
Code, Section 42, and that such allotment be entered of
record, viz:
For the District of Columbia Circuit, EARL WARREN,
Chief Justice.
For the First Circuit, FELIX FRANKFURTER, Associate
Justice.
For the Second Circuit, JOHN M. HARLAN, Associate
Justice.
For the Third Circuit, WILLIAM J. BRENNAN, JR.,
Associate Justice.
For the Fourth Circuit, EARL WARREN, Chief Justice.
For the Fifth Circuit, HuGO L. BLACK, Associate
Justice.
For the Sixth Circuit, POTTER STEWART, Associate
Justice.
For the Seventh Circuit, ToM C. CLARK, Associate
Justice.
For the Eighth Circuit, BYRON R. WHITE, Associate
Justice.
For the Ninth Circuit, WILLIAM 0. DouGLAS, Associate
Justice.
For the Tenth Circuit. BYRON R. WHITE, Associate
Justice.
April 16, 1962.
(For next previous allotment, see 369 U.S., p. v.)
IV
TRIBUTE TO MR. JUSTICE BLACK.
SUPREME COURT OF THE UNITED STATES.
MONDAY, JUNE 25, 1962.
Present: MR. CHIEF JUSTICE WARREN, MR. JUSTICE
BLACK, MR. JusTICE DouGLAs, MR. JusTICE CLARK, MR.
JUSTICE HARLAN, MR. JUSTICE BRENNAN, MR. JUSTICE
STEWART and MR. JusTICE WHITE.
Mr. Solicitor General Cox addressed the Court as
follows:
Mr. Chief Justice and may it please the Court: As the
current Term closes, Mr. Justice Black will have completed
25 full Terms as an Associate Justice of this Court.
This is a rare event in the Court's history. Although h
would be inappropriate to speak at length, the members
of the Bar would wish me to call attention to the event
and to mention Mr. Justice Black's extraordinarily great
contributions during those 25 Terms to the country, to
the law, and to the Court. May I add two other things
on behalf of the entire Bar: first, that we have always
enjoyed, and will always value, the opportunity to appear
before him and thus join in the common enterprise of
administering justice for all; second, that we wish him
health and good fortune to serve for many Terms to come.
THE CHIEF JUSTICE said:
Mr. Solicitor General: This is, indeed, a significant
event in the life of the Court, and it is highly appropriate
that you, Mr. Solicitor General, as a leader of the Bar,
should initiate its recordation in today's proceedings.
V
v1 TRIBUTE TO MR. JUSTICE BLACK.
We share to the fullest extent your appreciation of the
great service Mr. Justice Black has rendered to our
Nation, and we join your felicitous words concerning his
continued service and his future happiness.
Of the 97 Justices who have been appointed to this
Court, only 16 have served as long as Mr. Justice Black
and none with greater fidelity or singleness of purpose.
His unflagging devotion has been to the Constitution of
the United States.
The importance of any period of time depends always
upon its relation to other things. Abstractly, a quarter
of a century in history is little more than a grain of sand
in the hourglass of time, but, measured in terms of the
service of one man to the well-being of a young and
dynamic country such as our own, it is a long and
important period of time.
It is with such a measuring stick and with affectionate
regard that we measure and record in our proceedings the
25 years of service of Mr. Justice Black to this Court and
our Nation.
TABLE OF CASES REPORTED
NOTE: Cases reported before page 901 are those decided with
opinions of the Court or decisions per curiam. Cases reported on
pages 901 et seq. are those in which orders were entered.
PngP
Abbrescia v. United States................................ 925
Adams v. Myers......................................... 959
Adkins v. United States.................................. 954
Aetna Casualty & Surety Co., Porter v.................... 159
Alabama, Cofield v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 952
Alabama, Patterson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 951
Alamance Industries v. Triumph Hosiery Mills. . . . . . . . . . . . . . 924
Alaska, Oyler v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 960
Alaska Market v. Moe. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 916
Ali v. United States...................................... 723
Allegheny County Court of Common Pleas, Koaches v. . . . . . . 933
Allen v. Bannan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 725
Alvarez v. Puerto Rico................................... 904
Anchor Line, Ltd., v. Federal Maritime Comm'n............. 922
Anderson v. Knox....................................... 915
Anderson, Lawrenson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
Anderson v. Wiman..................................... 963
Andrews v. Langlois..................................... 960
Appleby v. Commissioner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 910
Arizona v. California ................................... 906,930
Arkansas, Mode v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 909
Armour & Co., Freeman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920
Arrington v. United States................................ 955
Art National Mfrs. Distrib. Co. v. Federal Trade Comm'n.... 939
Asaro v. Parisi.......................................... 904
Asia Development Corp. v. United States................... 938
Association. For labor union, see name of trade.
Association of Western Railways, Riss & Co. v.............. 916
Atkinson v. Dallas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 939
Atkinson v. Sinclair Refining Co........................... 238
Atkinson, Sinclair Refining Co. v.......................... 195
Atkinson, Vaughan t'. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 965
Attorney General, N. V. Handelsbureau La Mola v. . . . . . . . . . 940
VH
vm TABLE OF CASES REPORTED.
I'nge
Attorney General, Von Der Heydt v....................... 916
August v. Board of Education of Philadelphia..... . . . . . . . . . 904
Automobile Workers, Kohler Co. v........................ 911
Avent v. North Carolina................................. 934
Avondale Shipyards, Donovan v.......................... 114
Bagley v. Wilson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 950
Bailey v. Sacks......................................... 925
Bakery Workers, Drake Bakeries Inc. v.................... 254
Balkcom, Whitus v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 728
Ballenger Paving Co. v. Goldberg.......................... 922
Baltimore & Ohio R. Co. v. Boston & ;\foine R. Co.......... 914
Banks v. :Madigan ..................................... 905, 965
Banks v. Warden........................................ 962
Bannan, Allen v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 725
Bannan, Crawford v.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 913
Bannan, Thompson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 957
Bantam Books, Inc., v. Sullivan. . . . . . . . . . . . . . . . . . . . . . . . . . . 933
Bantz v. Klinger... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
Barber v. United States.................................. 962
Barker v. Supreme Court of Ohio. . . . . . . . . . . . . . . . . . . . . . . . . . 933
Barnett v. California. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 961
Baugh, Inc., v. Little Lake Lumber Co..................... 909
Baumgarten v. United States............................. 917
Beard v. Stahr... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Beck v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919
Beck v. Washington..................................... 965
Beebe v. Rhay.......................................... 954
Bennett, Cummings v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 929
Berry v. State Board of Parole of Colo..................... 927
Bicks, Idlewild Ron Voyage Liquor Corp. v.......... . . . . . . 713
Birmingham, Gober v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
Birmingham, Shuttlesworth v............................. 934
Risno v. United States................... . . . . . . . ......... 952
Black v. United States................................... 932
Blocker v. California..................................... 962
Board of Education of Memphis v. Northcross............. 944
Board of Education of Phila., August v. . . . . . . . . . . . . . . . . . . . 904
Board of Education of Phila., Soler v. . . . . . . . . . . . . . . . . . . . . . . 919
Board of School Directors of Milwaukee, Wasilewski v....... 720
Board of Trustees, Chenu v............................... 910
Bobcik, Homestead Hospital v............................ 901
Bob Seidel's Restaurant, Gager v. . . . . . . . . . . . . . . . . . . . . . . . . 959
Boland Construction Co. v. United States.................. 911
TABLE OF CASES REPORTED. ix
Page
Boldt v. United States................................... 948
Boles, Booth v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 951
Boles, Foster v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 926
Boles v. Heard.......................................... 926
Boles, l\tliller v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 954
Bomar, Dawson v....................................... 962
Bomar, Wooten v........................................ 932
Booth v. Boles.......................................... 951
Borden Co., United States v.............................. 460
Bosco v. New York...................................... 945
Bostic v. Ohio. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90~
Boston & Maine R. Co., Baltimore & Ohio R. Co. v.......... 914
Boston & Maine R. Co., Interstate Commerce Comm'n v..... 914
Boston & Maine R. Co., Maryland Port Authority v......... 914
Bouchard, Milutin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292
Boyes v. United States.................................. 948
Boyle v. l\Iissouri. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95:1
Bradey v. Ribicoff. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 951
Brinson, In re........................................... 956
Bronson v. United States....... . . . . . . . . . . . . . . . . . . . . . . . . . . 951
Brooks v. Rhay......................................... 951
BrothPrhood. For labor union, see name of trade.
Broughton v. New York.................................. 92i
Brown v. La Vallee...................................... 956
Brown v. New York..................................... 961
Brown v. Purcell........................................ 95i
Brown v. United States.................................. 95i
Brown Shoe Co. v. United States.......................... 294
Brunson v. New York.................................... 953
Buchkoe, Patskan v..................................... 290
l3uchkoe, Ryan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
Buffalo Savings Bank, United States v.................... 915
Burell v. North Carolina................................. 961
Burton v. Florida ...................................... 905,965
Busby v. Harris........................................ 48
Busch v. California...................................... 913
Cain v. United States.................................... 902
Calbeck v. Travelers Insurance Co......................... 114
Caldwell v. Wilkins...................................... 945
California, Arizona v . .................................. 906, 930
California, Barnett v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 961
California, Blocker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 962
California, Busch v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 913
X TABLE OF CASES REPORTED.
California, Douglas v . .................................. .
California, Garner v . ................................... .
California, Harden v .................................... .
California, Hassett v .................................... .
California, Jackson v . .................................. .
California, LaCrue v .................................... .
California, Marion v .................................... .
California, McLean v . .................................. .
California, Morgan v . .................................. .
California, Neal v ...................................... .
California, Pierre v . .................................... .
California, Robinson v . ................................. .
California, Ruiz v . ..................................... .
California, Tucker v ......... ........................... .
California, Tyler v . ..................................... .
California, Van Pelt v . ................................. .
California, Wilborn v . .................................. .
California State Legislature, Gensburg v ................... .
Cameron Iron Works v. Machinists ....................... .
Canadian National R. Co. v. Taylor ...................... .
Carter, Duncan v . ..................................... .
Carter Estate v. Commissioner ........................... .
Case v. North Carolina ................................. .
Castle, Watts v ........................................ .
Cavell, Fletcher v ...................................... .
Cedillo v. Texas ........................................ .
Central R. Co. v. Pennsylvania ........................... .
Cepero v. Puerto Rico .................................. .
Chapin v. Rhay ........................................ .
Chappelle v. Sharp ..................................... .
Chauffeurs v. Yellow Transit Freight Lines ................ .
Chenu v. Board of Trustees .............................. .
Chicago, R. I. & P.R. Co. v. Switchmen's Union ............ .
Chief Justice of N. Mex. Supreme Court, Webb v .......... .
Circuit Judge, Watts v .................................. .
City. See also name of city.
Page
930
929
956
956
964
960
961
958
965
921
932
660
954
951
905
932
932
920
920
938
952
910
961
933
960
958
607
289
955
903
711
910
936
933
933
City Center Motel, Inc., v. Florida Hotel Comm'n........... 720
Civil Service Comm'n Chairman, O'Leary v................ 953
Clawans, In re.......................................... 905
Cleveland Bar Assn., Fleck v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 914
Cochran, Gideon v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 908, 932
Cochran, Jackson v.......................... . ........... 944
Cochran, Willis v........................................ 955
Cofield v. Alabama.. . . .. . . . . . . . . . . . . . . . . . .. . . .. .. . . . . .. . 952
TABLE OF CASES REPORTED. x1
Pnge
Colorado, Gallegos v . ................................... 49, 965
Colorado Board of Parole, Berry v. . . . . . . . . . . . . . . . . . . . . . . . . 927
Commissioner, Appleby v................................. 910
Commissioner, Carter Estate v............................ 910
Commissioner, H. B. Ives Co. v........................... 904
Commissioner, Miller v................................... 923
Commissioner, Schlude v................................. 902
Commissioner of Internal Revenue. See Commissioner.
Commissioner of Motor Vehicles, Finocchairo v............. 912
Commissioner of Patents, Larsen v........................ 936
Committee on Character and Fitness, Willner v. . . . . . . . . . . . . 934
Communications Commission. See Fed. Com. Comm'n.
Compton, Webb v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 933
Connecticut Com. Against Pay TV v. Fed. Com. Comm'n.. . 931
Continental Ore Co. v. Union Carbide & Carbon Corp...... 690
Coronado v. United States................................ 955
Court of Common Pleas of Allegheny County, Roaches v. . . . 933
Cowen, Gaudet v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 950
Cox, French v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921
Crawford v. Bannan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 913
Creek Nation v. United States............................ 157
Criswell v. Heinze....................................... 951
Crown Zellerbach Corp. v. Federal Trade Comm'n.......... 937
Cruz v. Texas........................................... 953
Cummings v. Bennett.................................... 929
Cunningham, Hall v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 958
Dallas, Atkinson v....................................... 939
Daniel Distillery v. Hoffman Distilling Co.................. 939
Daugherty v. Tinsley .... •. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921
Davis v. Government Employees Insurance Co............. 956
Davis v. United States................................... 65
Davis, United States v................................... 65
Davison v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 912
Dawson v. Bomar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 962
Day, Manual Enterprises, Inc., v.......................... 478
Dearhart v. Virginia..................................... 953
DeBarr v. Michigan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 945
DeClara v. New York.................................... 959
Delano-Earlimart Irrigation Dist. v. Rank. . . . . . . . . . . . . . . . 936
Della Universita v. United States......................... 950
Democratic Executive Committee Chairman of Ga. v. Sanders. 921
Department of Highways, Ouachita Parish School Board v. . . 916
Deputy Comm'r of Employees Comp. v. Avondale Shipyards.. 114
Deputy Comm'r of Employees Comp. v. Travelers Ins. Co... 114
xn TABLE OF CASES REPORTED.
Pni:P
DeVine v. Nrw York.................................... 952
Di Donato v . United States.......... . . . . . . . . . . . . . . . . . . . . . 9li
Dirrrtor of Immigration. See Immigration Dirertor.
Director of Internal Il<'venue. See Commissiorn.•r; District
Director of Intrrnal Rrvenu<'.
Di~trict Court of Iowa, :\filler v . ................. . ....... .
Distrirt Dirertor of Immigration. See Immigration Director.
Di.otrirt Dirrrtor of Int. Rev., Thomas v ................... .
District Dirertor of Int Rev. v. Williams Packing Co ....... .
District Judgr Seer S. Di,trirt Judg<'
Donovan v. Avondale Shipyards ......................... .
Doran v. l 1nited State.o .................................. .
Douglas v. California ................................... .
DrakC' Bakeries Inc. v. Bakery Workers ................... .
Dra))<'r V. wa~hington .................................. .
Dukes v. Sain .......................................... .
Duncan v. Carter ....................................... .
Eid~on v. United States ................................. .
Ekhuk v. Crnte<l States ................................. .
Ellis Research Laboratories v. United StatPs ............... .
Empresa Hondurena de Vapores, lVIcLeod v .............. .
Empres a Hondurena d<' Vapores, National l\Iaritime rnion v ..
Eng<'l v . Vitale ......................................... .
Enochs v. Williams Packing & ~avigation Co ....... . ...... .
EpstE'in, ldlewild Bon Voyage Liquor Corp. v .............. .
Ernst tt. Yeager ........................................ .
Estate. See name of estate.
Evans, United States v ................................ .
Everett v. New York .................................... .
Ex parte. Ser name of party.
Exposition Press, Inc., v. Federal Trade Comm'n .......... .
Eyman, l\lontgomery v . ................................. .
Eyman, Valenzuela v . ................................... .
Farro v. Kenton ........................................ .
Fass v. Xew Jersey .................................... .
Fay t•. Noia ........................................... .
Fay, Soto v ............................................ .
Fedl'ral Communications Comm'n, Conn. Committee v ...... .
Federal r-.Iar1timc Comm'n, Anchor Line, Ltd., v ........... .
Fedrral Trade C'omm'n, Art Nat. l\Ifrs. Distrib. Co. v ....... .
Fed<'rnl Trade Comm'n, Crown Zrllerbach Corp. v ......... .
Federal TradP Comm'n, Exposition Press, Inc., v . ......... .
Feldman V. rnited States ............................... .
Finocrhairo v. Kelly .................................... .
966
I, 965
114
925
930
254
935
920
952
912
722
918
915
915
421
1,965
713
959
909
96.1
917
9-Hl
290
932
47
907
958
931
922
939
937
9li
910
912
TABLE OF CASES REPORTED. xm
Png,:>
Fireman's Fund Insurance Co., Wilburn Boat Co. v. . . . . . . . . . 925
Firemen v. Pacific Maritime Assn......................... 924
Fleck v. Cleveland Bar Assn............................... 914
Fletcher v. Cavell....................................... 960
Fletcher v. Raines....................................... 949
Flores v. Texas......................................... 918
Florida, Burton v . .................................... 905, 965
Florida Hotel & Restaurant Comm'n, City Center Motel v... 720
Fong v. United States.................................... 938
Foster v. Boles.......................................... 926
F. P. Baugh, Inc., v. Little Lake Lumber Co............... 909
Frascone v. United States..... . . . . . . . . . . . . . . . . . . . . . . . . . . . 910
Freeman v. Armour & Co................................ 920
French v. Cox........................................... 921
Frost v. United States................................... 946
Fuller Brush Co. v. Fuller Products Co.................... 923
Fuller Products Co., Fuller Brush Co. v. . . . . . . . . . . . . . . . . . . . 923
Funkhouser v. United States.............................. 939
Gagrr v. Seidel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 959
Gallegos v. Colorado .................................... 49,965
Galveston, 1\-Iorales v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . l 65
Gamble v. Sacks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 926
Garcia v. Turner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 950
Garner v. California..................................... 929
Gaudet v. Cowen. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 950
Gavin, Geagan v ...................................... 903,065
Geagan v. Gavin ...................................... 903,965
Gekas, Sarelas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 904
Gekas, Skontos v........................................ 912
Geller v. Holland-America Line............................ 909
General Motors Corp., Woodard v......................... 965
Gens burg v. California State Legislature. . . . . . . . . . . . . . . . . . . 920
George v. Randolph...................................... 949
Georgia, Wood v........................................ 375
Georgia, Wright v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Georgia Democratic Committee Chairman v. Sanders........ 921
Georgia Ports Authority, Longshoremen's Assn. v..... . . . . . . . 922
Gerald v. United States.................................. 958
Gideon v. Cochran ..................................... 908,932
Gilbrrt v. United States.................................. 650
Gilliam v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 727
Gladden, Nelson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
Glidden Co. v. Zdanok.................................... 530
Gober v. Birmingham.................................... 934
xiv TABLE OF CASES REPORTED.
Page
Goldberg, Ballenger Paving Co. v. . . . . . . . . . . . . . . . . . . . . . . . . 922
Goldberg, Teamsters v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 938
Gondeck v. Pan American World Airways.................. 918
Goodson v. Virginia...................................... 961
Go,·ernrnent Employees Insurance Co., Davis v. . . . . . . . . . . . 956
Governor. See name of State.
Graves v. Maryland..................................... 956
Gray v. Sanders......................................... 921
Greenville, Peterson v................................... 935
Grieco v. United States...... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 925
Griffin v. Maryland...................................... 935
Griffin v. United States................................... 949
Grubbs v. New York.................................... 956
Grumman v. United States............................... 288
Gulf Power Co. v. Shahid................................. 923
Hall v. Cunningham..................................... 958
Hall v. Heard........................................... 291
Hall v. Illinois......................... . . . . . . . . . . . . . . . . . . 951
Halun v. Jones.......................................... 904
Hamilton v. New York................................... 958
Hammond v. Langlois. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
Handelsbureau La Mola v. Kennedy. . . . . . . . . . . . . . . . . . . . . . . 940
Harden v. California..................................... 956
Hardy v. United States.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 912
Hare, Scholle v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 906
Harris, Busby v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Hartford v. Wick....................................... 932
Hartman v. United States................................ 724
Hassett v. California.................................... 956
Hayes v. Maryland...................................... 931
Haynes v. Washington...... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902
H. B. Ives Co. v. Commissioner........... . . . . . . . . . . . . . . . . 904
Headley v. New York.................................... 962
Heard, Boles v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 926
Heard, Hall v........................................... 291
Hecla Mining Co. v. United States......................... 918
Heinze, Criswell v....................................... 951
Heinze, lVIorgan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 959
Heinze, Sullivan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 945
Heritage, Thomas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
Herman Schwabe, Inc., v. United Shoe Machinery Corp...... 920
Hicks v. Michigan....................................... 921
Highways Dept. of La., Ouachita Parish School Board v...... 916
Hill v. Moe............................................. 916
TABLE OF CASES REPORTED. xv
Pni:e
Hoffman Distilling Co., Jack Daniel Distillery v. . . . . . . . . . . . . 939
Hoffman Disti1ling Co., Motlow v. . . . . . . . . . . . . . . . . . . . . . . . . 939
Hohensee v. News Syndicate, Inc......................... 920
Holden v. Pioneer Broadcasting Co....................... 157
Holland-America Line, Geller v............................ 909
Hollis v. Texas.......................................... 906
Holman & Co. v. Securities & Exchange Comm'n............ 911
Holscher v. Minnesota................................... 955
Homchak v. New York.................................. 957
Homestead Hospital v. Bobcik............................. 901
Honeywood v. Rockefeller................................ 931
Hooper, Watson v....................................... 933
Hot Shoppes, Inc., Williams v............................ 925
Huffman v. United States................................ 955
Hughes v. L. B. Smith, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 953
Hughes Trailers v. L.B. Smith, Inc........................ 953
Hunt v. United States................................... 957
Hunter v. Myers........................................ 927
Hutcheson v. United States........................ . . . . . . . 965
Idewild Bon Voyage Liquor Corp. v. Bicks................. 713
Idlewild Bon Voyage Liquor Corp. v. Epstein.............. 713
Illinois, Hall v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 951
Illinois, Jackson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
Illinois, Kelley v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Illinois, Lynum v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 933
Illinois, 1IcTier v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 955
Illinois, 11orrison v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 946
Illinois, Owens v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 947
Illinois, Parmer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921
Illinois, Paulson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 954
Illinois, Slaughter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
Illinois, Woods v........................................ 910
Illinois Central R. Co., Long v. . . . . . . . . . . . . . . . . . . . . . . . . . . 906
Immigration and Naturalization Service. See Immigration
Director.
Immigration Director, Milutin v. . . . . . . . . . . . . . . . . . . . . . . . . . 292
Immigration Director, Morgano v......................... 924
Indemnity Insurance Co., Litteral v. . . . . . . . . . . . . . . . . . . . . . . . 919
In re. See name of party.
Interlake S. S. Co., Marine Engineers Beneficial Assn. v. . . . . . 173
Internal Revenue Service. See Commissioner; District Director
of Internal Revenue.
International. For labor union, see name of trade.
Interstate Commerce Comm'n v. Boston & Maine R. Co..... 914
xv1 TABLE OF CASES REPORTED.
Page
Iowa District Court, Miller v............................. 963
Isbrandtsen Co., Universal Terminal & Stevedoring Corp. v. . . 912
Ives Co. v. Commissioner............................... 904
Jacek v. United States................................... 952
Jack Daniel Distillery v. Hoffman Distilling Co.. . . . . . . . . . . . . 939
Jackson v. California. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 964
Jackson v. Cochran...................................... 944
Jackson v. Illinois....................................... 956
Jackson, Shenandoah Corp. v............................ 909
Jamieson, Owings v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Jefferson Lake Sulphur Co. v. New Jersey.................. 158
Jenkins v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Johnson v. New Jersey.......................... . ........ 928
Johnson v. United States ........................... 905,950,957
Johnson v. Zimmer....................................... 951
John V. Boland Construction Co. v. United States......... 911
Jones, Halun v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 904
Jones v. Missouri.................. . . . . . . . . . . . . . . . . . . . . . . 958
Jones v. United States....... . . . . . . . . . . . . . . . . . . . . . . . . . . . . 913
Kane v. La Vallee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
Kansas City Southern R. Co. v. Reily...................... 289
Kansas City Southern R. Co., Simmons v. . . . . . . . . . . . . . . . . . 917
Kansas Corp. Comm'n, Northern Nat. Gas Co. v. . . . . . . . . . . . 901
Kansas-Nebraska Nat. Gas Co., Pan American Corp. v ..... 901,937
Kelley v. Illinois......................................... 928
Kelly, Finocchairo v..................................... 912
Kennedy, N. V. Handelsbureau La Mola v..... .. ........... 940
Kennedy, Von der Heydt v............................... 916
Kenton, Farro v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
Kentucky, Lanham v.................................... 948
King v. McNeill......................................... 932
Klinger, Bantz v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
Knight v. United States.................................. 923
Kniss, United States v................................... 719
Knox, Anderson v....................................... 915
Koaches v. Court of Common Pleas of Allegheny County...... 933
Kohler Co. v. Automobile Workers........................ 911
Koptik v. United States... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 957
Kostal v. Stoner................ . . . . . . . . . . . . . . . . . . . . . . . . 920
Krawitz v. McShane..................................... 959
Labor Board v. Empresa Hondurena de Vapores............ 915
Labor Board, Philamon Laboratories v. . . . . . . . . . . . . . . . . . . . . 919
Labor Board v. Sociedad Nacional de Marineros de Honduras. 915
Labor Board, United States Pipe & Foundry Co. v........... 919
TABLE OF CASES REPORTED. xvn
Pagf'
Labor Board v. Washington Aluminum Co.................. 9
Labor Union. See name of trade.
LaCrue v. California.................. . . . . . . . . . . . . . . . . . . . 960
Ladd, Larsen v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 936
Langlois, Andrews v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 960
Langlois, Hammond v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
Lanham v. Kentucky.................................... 948
Lanza v. New York..................................... 139
Larsen v. Ladd. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 936
Larson, Warren v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920
La Vallee, Brown v...................................... 956
La Vallee, Kane v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
Lawrenson v. Anderson.................................. 932
Lawrenson v. Reid...................................... 962
Lawrenson v. United States............................... 947
Lawrenson v. United States Fidelity & Guaranty Co.. . . . . . . 913
L. B. Smith, Inc., Hughes v.............................. 953
Lee County District Court, Miller v. . . . . . . . . . . . . . . . . . . . . . . . 963
Lehigh Valley Cooperative Farmers, Inc., v. United States... 76
Lewis v. Michigan....................................... 960
Lieberman, Poss v....................................... 944
Link v. Wabash R. Co ................................. ,. 626
Linkletter v. Walker. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Litteral v. Indemnity Insurance Co....................... 919
Little Lake Lumber Co., F. P. Baugh, Inc., v............... 909
Local. For labor union, see name of trade.
Locomotive Engineers v. Louisville & N. R. Co............ 908
Lodge. For labor union, see name of trade.
Lombard v. Louisiana................ . . . . . . . . . . . . . . . . . . . . 935
Long v. Illinois Central R. Co........................... 906
Longshoremen's Assn. v. Georgia Ports Authority........... 922
Lopez v. Texas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 954
Louisiana, Lombard v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Louisiana, Ouachita Parish School Board v. . . . . . . . . . . . . . . . . 916
Louisiana, Rogers v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 963
Louisiana, Taylor v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154, 965
Louisiana ex rel. Washington v. Walker. . . . . . . . . . . . . . . . . . . . 726
Louisiana Revenue Collector, Kansas City Southern R. Co. v. . 289
Louisville & N. R. Co., Locomotive Engineers v. . . . . . . . . . . . . 908
Lurk v. United States.................................... 530
Lusterino v. New York.................................. 962
Lynum v. Illinois........................................ 933
Lyons v. Ohio........................................... 926
Mac. See Mc.
663026 0-62-2
XVIII TABLE OF CASES REPORTED.
Page
Machinists, Cameron Iron Works v........................ 920
.i\'1acy, O'Leary v........................................ 953
Madigan, Banks v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 905, 965
Madigan, Simcox v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 964
Magnus, ln re. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 918
Main Line Theatres v. Paramount Film Corp............... 939
Mangum v. Randall..................................... 959
Manual Enterprises, Inc., v. Day........................... 478
Marakar v. United States................................. 723
Marine Engineers Beneficial Assn. v. Interlake S.S. Co....... 173
Marine Firemen v. Pacific Maritime Assn................... 924
Marion v. California....... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 961
Maroney, Tillery v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 945
Marques-Arbona v. Secretary of Treasury of Puerto Rico.... 938
Marshall v. United States.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 958
Martin v. West Virginia.................................. 959
lvlaryland, Graves v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
l\'1aryland, Griffin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Maryland, Hayes v.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 931
Maryland Port Authority v. Boston & Maine R. Co........ 914
Mathis v. United States.................................. 947
McConnell, In re. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
McCue v. United States.................................. 939
McCulloch v. Sociedad Nacional de Marineros de Honduras... 915
McDonald v. Oregon..................................... 903
McGann v. United States................................ 948
McLean v. California.................................... 958
McLeod v. Empresa Hondurena de Vapores................ 915
McNeill, King v........................................ 932
McShane, Krawitz v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 959
McTier v. Illinois........................................ 955
Meikle v. New York................. . ................... 948
Memphis Board of Education v. Northcross................. 944
Michigan, DeBarr v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 945
Michigan, Hicks v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921
Michigan, Lewis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 960
Michigan Secretary of State, Scholle v. . . . . . . . . . . . . . . . . . . . . 906
Middleton v. New York.................................. 946
Mid-Seven Transportation Co. v. United States............. 914
Miller v. Boles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 954
Miller v. Commissioner................................... 923
Miller v. District Court of Iowa............. . . . . . . . . . . . . . . 963
Miller v. Miller. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 963
Miller v. Pleasure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 964
TABLE OF CASES REPORTED. xix
PRge
Milutin v. Bouchard. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292
Milwaukee Board of School Directors, Wasilewski v......... 720
Minnesota, Holscher v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • 955
Missouri, Boyle v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • 953
Missouri, Jones v..................... . .................. 958
Mitchell v. United States................................. 952
Mode v. Arkansas....................................... 909
Moe, Hill v............................................. 916
Montgomery v. Eyman.. . ................................ 949
Moore v. New York..................................... 913
Moore-McCormack Lines v. Richardson.................... 937
Moore-McCormack Lines, Richardson v.................... 965
Morales v. Galveston.................................... 165
Morgan v. California.................................... 965
Morgan v. Heinze. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • • 959
Morgano v. Pilliod....................................... 924
Morrell v. United States.................................. 960
Morris v. Rousos........................................ 959
Morrison v. Illinois................. . . . . . . . . . . . . . . . . . . . • • 946
Morrison v. United States.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . 948
Motion Picture Assn. of America, Young v................. 922
Motlow v. Hoffman Distilling Co.................. . ....... 939
Murphy, Phinney v...................................... 905
Murphy, Valentin v..................................... 928
Myers, Adams v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 959
Myers, Hunter v........................................ 927
Myers, Watters v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 949
·Myers, Woodson v...................................... 960
Nadile v. New York..................................... 960
Nash, Smith v............................... . ...... . ... 954
Nasser v. United States.................................. 923
National Biscuit Co. v. New York......................... 924
National Labor Relations Board. See Labor Board.
National Maritime Union v. Empresa Hondurena de Vapores.. 915
Neal v. California........................... . ........... 921
Nelson v. Gladden....................................... 956
New Jersey, Fass v...................................... 47
New Jersey, Jefferson Lake Sulphur Co. v.................. 158
New Jersey, Johnson v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
New Jersey v. New York, S. & W.R. Co.................... 933
New Jersey, Texas v..................................... 929
News Syndicate, Inc., Hohensee v......................... 920
New York, Bosco v............. . ........................ 945
New York, Broughton v.................. . .............. . 927
xx TABLE OF CASES REPORTED.
Page
New York, Brown v..................................... 961
New York, Brunson v.................................... 953
::-{ew York, DeClara v.................................... 959
New York, De Vine v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 952
New York, Everett v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 963
New York, Grubbs v..................................... 956
~ew York, Hamilton v................................... 958
:\'ew York, Headley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 962
New York, Homchak v.......................... . . . . . . . . . 957
New York, Lanza v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
~ew York, Lusterino v................................... 962
New York, Meikle v..................................... 948
New York, Middleton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 946
New York, Moore v..................................... 913
New York, Nadile v..................................... 960
New York, National Biscuit Co. v......................... 924
New York, Overby v.................................... 906
New York, Pelio v....................................... 926
New York, Pereira v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 962
New York, Sardo v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 955
New York, Smith v...................................... 953
New York, Weires v..................................... 954
X ew York, Williams v. . .. . . . .. . .. . . . . . . . . . . .. . . . . . . . .. . . 960
New York Central R. Co. v. United States.................. 902
New York Governor, Honeywood v....................... 931
New York Secretary of State, W. M. C. A., Inc., v........... 190
New York, S. & W.R. Co., New Jersey v................... 933
Noia, Fay v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 907
North Carolina, A vent v. .. . . . . . .. . . . . . . . . . . . . . . . .. . . . . . . 934
North Carolina, Burell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 961
North Carolina, Case v................................... 961
::-forth Carolina, Puckett v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 961
North Carolina, Rowland v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 953
Northcross, Board of Education of Memphis v.............. 944
Northern Natural Gas Co. v. Corp. Comm'n of Kansas...... 901
Nunes v. Pate.......................................... 961
N. V. Handelsbureau La Mola v. Kennedy................. 940
Ohio, Bostic v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 903
Ohio, Lyons v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 926
Ohio, Winters v......................................... 721
Ohio Supreme Court, Barker v............................ 933
O'Leary v. Macy. .. . .. . .. . . . .. . . . . . . . . . . . . .. . . . . . . . .. . .. 953
Olen v. Olen................ . . . . . . . . . . . . . . . . . . . . . . . . . . . . 721
Oliver v. United States............. . . . . . . . . . . . . . . . . . . . . . . 960
TABLE OF CASES REPORTED. XXI
Page
Oregon, McDonald v..................................... 903
Oregon, Sullivan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 957
Ouachita Parish School Board v. Louisiana................. 916
Overby v. New York..................................... 906
Overholser, Whittington v................... . ........... . 932
Owens v. Illinois........................................ 947
Owings v . .Jamieson...................................... 928
Oyler v. Alaska.......................................... 960
Pacific Coast Marine Firemen v. Pacific Maritime Assn...... 924
Pacific Maritime Assn., Pacific Coast Marine Firemen v. . . . . 924
Pacific Maritime Assn. v. Seafarers Int'l Union.............. 924
Pan American Petroleum Corp. v. Kansas-Nebraska Co .... 901,937
Pan American World Airways, Gondeck v.................. 918
Panarello v. Rhode Island................................ 947
Paramount Film Distributing Corp., Main Line Theatres v.. 939
Parisi, Asaro v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 904
Parmer v. Illinois........................................ 921
Parole Board of Colo., Berry v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
Pate, Nunes v.............................. . ............ 961
Pate, nacinowski v...................................... 947
Pate, Snow v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
Pate v. United States....... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Patskan v. Buchkoe...................................... 290
Patterson v. Alabama.................................... 951
Patterson, Thomas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 966
Paulson v. Illinois....................................... 954
Pawnee Indian Tribe of Okla. v. United States.............. 918
Pearlman v. Reliance Insurance Co........................ 930
Pelio v. New York...................................... 926
Pennsylvania, Central R. Co. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 607
Pereira v. New York.................................... 962
Peterson v. Greenville.................................... 935
Philadelphia Board of Education, August v... . . . . . . . . . . . . . 904
Philadelphia Board of Education, Soler v.................. 919
Philadelphia National Bank, United States v.. . ............ 931
Philamon Laboratories v. Labor Board..................... 919
Phinney v. Murphy..................................... 905
Pierre v. California. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
Pilliod, Morgano v. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 924
Pioneer Broadcasting Co., Holden v.......... . ............ 157
Pleasure, Miller v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 964
Police Pension Fund, Chenu v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 910
Porter v. Aetna Casualty & Surety Co..................... 159
Poss v. Lieberman....................................... 944
XXII TABLE OF CASES REPORTED.
Page
Postmaster General, Manual Enterprises, Inc., v........... 478
Puckett v. North Carolina............................... 961
Puerto Rico, Alvarez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 904
Puerto Rico, Cepero v................................... 289
Puerto Rico Treasury Secretary, Marques-Arbona v. . . . . . . . . 938
Pugh v. Virginia... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
Purcell, Brown v........................................ 957
Racinowski v. Pate...................................... 947
R. A. Holman & Co. v. Securities & Exchange Comm'n....... 911
Raines, Fletcher v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 949
Randall, Mangum v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 959
Randolph, George v..................................... 949
Rank, Delano-Earlimart Irrigation Dist. v................. 936
Reed v. Rhay..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 948
Reed v. Sigler..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 951
Heid, Lawrenson v...................................... 962
Reily, Kansas City Southern R. Co. v...................... 289
Reliance Insurance Co., Pearlman v....................... 930
Revenue Collector of La., Kansas City Southern R. Co. v..... 289
Rhay, Beebe v.......................................... 954
Rhay, Brooks v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 951
Hhay, Chapin v......................................... 955
Rhay, Reed v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 948
Rhay, Spady v.......................................... 950
Rhay, Wright v ....................................... 947,948
Rhode Island, Panarello v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 947
Ribicoff, Bradey v.............................. . . . . . .. . . 951
Richardson v. Moore-McCormack Lines.................... 965
Richardson, Moore-McCormack Lines v................... 937
Richter v. Riedman....... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 957
Riedman, Richter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 957
Riss & Co. v. Assn. of Western Railways.................... 916
Hoadhs v. Tinsley.......... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 947
Robinson v. California................................... 660
Rockefeller, Honeywood v................................ 931
Rogers v. Louisiana ..................... ,...... . . . . . . . . . . 963
Rousos, Morris v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 959
Rowland v. North Carolina........... . .. . ................ 953
Rudolph v. United States................................ 269
Ruiz v. California........... . ......................... . . 954
Hyan v. Buchkoe........................................ 932
Sacks, Bailey v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 925
Sacks, Gamble v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 926
Sain, Dukes v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920
TABLE OF CASES REPORTED. XXIII
Page
St. Mary Parish School Bd. v. Terrebonne Parish School Bd.. 916
Salem v. United States Lines Co ......................... 31,965
Sanchez v. United States................................. 913
Sanders, Gray v......................................... 921
Sanders v. United States................................. 936
Sardo v. New York...................................... 955
Sarelas v. Gekas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 904
Sawyer v. United States.................................. 946
Schaefer v. United States................................. 917
Schlette, Ex parte....................................... 932
Schlude v. Commissioner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902
Scholle v. Hare. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 906
Schumacher, Washington-Oregon Shippers Coop. Assn. v. . . . 937
Schwabe, Inc., v. United Shoe Machinery Corp............. 920
Scott v. Throsby.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 954
Scott v. United States.................................... 956
Seafarers Int'! Union, Pacific Maritime Assn. v.............. 924
Secretary of Agriculture v. Armour & Co. . . . . . . . . . . . . . . . . . . 920
Secretary of Army, Beard v............................... 41
Secretary of Health, Education & Welfare, Bradey v......... 951
Secretary of Labor, Teamsters v. . . . . . . . . . . . . . . . . . . . . . . . . . . 938
Secretary of State of Michigan, Scholle v................... 906
Secretary of State of N. Y., W. M. C. A., Inc., v. . . . . . . . . . . . 190
Secretary of Treasury of Puerto Rico, Marques-Arbona v.... 938
Securities & Exchange Comm'n, R. A. Holman & Co. v...... 911
Seelig v. United States................................... 293
Seidel, Gager v.......................................... 959
Self v. Washington....................................... 929
Settle, Smith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 926, 927
Shahid, Gulf Power Co. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 923
Sharp, Chappelle v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . gm
Shenandoah Corp. v. Jackson............................. 909
Shields, In re............................................ 906
Shuttlesworth v. Birmingham............................. 934
Sigler, Reed v........................................... 951
Silber v. United States................................. . . 717
Silver Bow County Treasurer, Sullivan v................... 954
Simcox v. Madigan...................................... 964
Simmons v. Kansas City Southern R. Co................... 917
Simon, W. M. C. A., Inc., v............................... 190
Simpson v. United States ............................... 914,946
Sinclair Refining Co. v. Atkinson.......................... 195
Sinclair Refining Co., Atkinson v.......................... 238
Skontos v. Gekas........................................ 912
XXIV TABLE OF CASES REPORTED.
ruge
Skoundrianos v. Gekas................................... 912
Slaughter v. Illinois...................................... 927
Slavitt v. United States................................... 938
Smith, In re. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 926
Smith v. Nash........................................... 954
Smith v. New York...................................... 953
Smith v. Settle ........................................ 926,927
Smith v. United States ............................. 925,950,955
Smith, Inc., Hughes 11.................................... 953
Snebold, In re........................................... 963
Snow v. Pate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
Soblen v. United States............. . . . . . . . . . . . . . . . . . . . . . . 944
Sociedad Nacional de Marineros de Honduras, McCulloch v.. 915
Soler v. Board of Education of Philadelphia................. 919
Soto v. Fay. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 958
Spady v. Rhay. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 950
Spanner v. Washington. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 949
Specht v. Tinsley. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 961
Stahr, Beard v.......................................... 41
Staley, United States v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 719
State. See also name of State.
State Board of Insurance v. Todd Shipyards Corp........... 451
State Board of Parole of Colo., Berry v.......... . . . . . . . . . . 927
State Corp. Comm'n of Kans., Northern Nat. Gas Co. v..... 901
State Treasurer, Warren v................................ 920
Stone v. United States................................... 927
Stoner, Kost.al v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920
Strickland v. United States............................... 949
Sullivan, Bantam Books, Inc., v........................... 933
Sullivan v. Heinze....................................... 945
Sullivan v. Oregon....................................... 957
Sullivan v. Treasurer of Silver Bow County. . . . . . . . . . . . . . . . . 954
Sun v. United States..................................... 908
Sunkist Growers v. Winckler & Smith Citrus Prod. Co ...... 19,965
Sunkist Growers, Winckler & Smith Citrus Prod. Co. v. . . . . . 917
Supreme Court of Ohio, Barker v......................... 933
Switchmen's Union, Chicago, R. I. & P.R. Co. v............. 936
Tax Commissioners, Wash.-Ore. Assn. v............ . . . . . . . . 937
Taylor, Canadian National R. Co. v....................... 938
Taylor v. Louisiana. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154, 965
Teamsters v. Goldberg................................... 938
Teamsters v. Yellow Transit Freight Lines................. 711
Tennessee Products Corp. v. United States................. 911
Terrebonne Parish School Bd., St. Mary Parish School Bd. v.. 916
TABLE OF CASES REPORTED. xxv
T'nge
Texas, Cedillo v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 958
Texas, Cruz v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 953
Texas, Flores v.......................................... 918
Texas, Hollis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 906
Texas, Lopez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 954
Texas v. New Jersey. . .. . . . . . . . .. . .. .. . .. . . . . . . . . . . . . . . . . . 929
Texas, \Vooten v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 965
Texas Board of Insurance v. Todd Shipyards Corp........... 451
Thomas v. Heritage...................................... 932
Thomas v. Patterson..................................... 966
Thomas v. Wiman....................................... 947
Thompson v. Bannan.................................... 957
Thompson v. Washington................................. 945
Thornton v. United States................................ 946
Throsby, Scott v......................................... 954
Tillery v. Maroney. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 945
Tinsley, Daugherty v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921
Tinsley, Roadhs v.................... . . . . . . . . . . . . . . . . . . . . 947
Tinsley, Specht v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 961
Tinsley, Titmus v....................................... 964
Tinsley, Trueblood v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 929
Titmus v. Tinsley....................................... 964
Todd Shipyards Corp., State Board of Insurance v. . . . . . . . . . 451
Trade Commission. See Federal Trade Comm'n.
Travelers Insurance Co., Calbeck v........................ 114
Treasurer of Silver Bow County, Sullivan v............... 954
Triumph Hosiery Mills, Alamance Industries v. . . . . . . . . . . . . . 924
Trueblood v. Tinsley..................................... 929
Tucker v. California..................................... 951
Turberville v. United States.............................. 916
Turner, Garcia v........................................ 950
Tyler v. California....................................... 905
Union. For labor union, see name of trade.
Union Carbide & Carbon Corp., Continental Ore Co. v..... 690
United. For labor union, see name of trade.
United Shoe Machinery Corp., Herman Schwabe, Inc., v.... 920
U nitcd States, Abbrescia v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 925
United States, Adkins v.................................. 954
United States, Ali v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 723
United States, Arrington v............................... 955
United States, Asia Development Corp. v................. 938
United States, Barber v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 962
United States, Baumgarten v............................. 917
United States, Beck v.................................... 919
XXVI TABLE OF CASES REPORTED.
Page
United States, Bisno v................................... 952
United States, Black v................................... 932
United States, Boland Construction Co. v.. . . . . . . . . . . . . . . . . 911
United States, Boldt v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 948
United States v. Borden Co............................... 460
United States, Boyes v................................... 948
United States, Bronson v............ . . . . . . . . . . . . . . . . . . . . . 951
United States, Brown v.................................. 957
United States, Brown Shoe Co. v.......................... 294
United States v. Buffalo Savings Bank. . . . . . . . . . . . . . . . . . . . . 915
United States, Cain v.................................... 902
United States, Coronado v................................ 955
United States, Creek Nation v............................ 157
United States v. Davis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
United States, Davis v................................... 65
United States, Davison v................................. 912
United States, Della Universita v. . . . . . . . . . . . . . . . . . . . . . . . . 950
United States, DiDonato v............................... 917
United States, Doran v................................... 925
United States, Eidson v.................................. 912
United States, Elchuk v.................................. 722
United States, Ellis Research Laboratories v................ 918
United States v. Evans.................................. 909
United States, Feldman v................................ 910
United States, Fong v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 938
United States, Frascone v................................ 910
United States, Frost v................................... 946
United States, Funkhouser v.................... . . . . . . . . . . 939
United States, Gerald v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 958
United States, Gilbert v.............. . . . . . . . . . . . . . . . . . . . . 650
United States, Gilliam v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 727
United States, Grieco v.................................. 925
United States, Griffin v.................................. 949
United States, Grumman v............................... 288
United States, Hardy v.................................. 912
United States, Hartman v................................ 724
United States, Hecla Mining Co. v......................... 918
United States, Huffman v................................. 955
United States, Hunt v................................... 957
United States, Hutcheson v............ . . . . . . . . . . . . . . . . . . . 965
United States, Jacek v................................... 952
United States, Jenkins v................................. 928
United States, Johnson v ........................... 905,950,957
United States, John V. Boland Construction Co. v.......... 911
TABLE OF CASES REPORTED. XXVII
Pogp
United States, Jones v................................... 913
United States, Knight v.................................. 923
United States v. Kniss................................... 711)
United States, Koptik v.................................. 957
United States, Lawrenson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 947
United States, Lehigh Valley Cooperative Farmers, Inc., v... 76
United States, Lurk v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 530
United States, :vlarakar v. . . .. . . . . . . . . . . . . . . . . . . . . .. . . . . . 723
United States, Marshall v................................ 958
United States, Mathis v.................................. 947
United States, McCue v.................................. 939
United States, McGann v................................. 948
United States, Mid-Seven Transportation Co. v. . . . . . . . . . . . 914
United States, Mitchell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 952
United States, Morrell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 960
United States, Morrison v................................ 948
United States, Nasser v.................................. 923
United States, New York Central R. Co. v.................. 902
United States, Oliver v... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 960
United States, Pate v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
United States, Pawnee Indian Tribe of Okla. v.............. 918
United States v. Philadelphia National Bank................ 931
United States, Rudolph v................................. 269
United States, Sanchez v............... . . . . . . . . . . . . . . . . . 913
United States, Sanders v................................. 936
United States, Sawyer v.................................. 946
United States, Schaefer v. . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . 917
United States, Scott v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
United States, Seelig v................................... 293
United States, Silber v. . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 717
United States, Simpson v ............................... 914,946
United States, Slavitt v.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 938
United States, Smith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 925, 950, 955
United States, Soblen v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 944
United States v. Staley................................... 719
United States, Stone v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
United States, Strickland v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 949
United States, Sun v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 908
United States, Tennessee Products Corp. v............ . . . . . . 911
United States, Thornton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 946
United States, Turberville v.............................. 946
United States, Verdon v.................................. 945
United States, Wallace v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 923
United States, Washington v............................. 949
XXVIII TABLE OF CASES REPORTED.
l'age
United States, Whittington v.............................. 928
United States, Wilbur v.................................. 291
United States, Willems Industries v....................... 903
U nitetl States, Williams v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 946
United States v. Wise.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 405
United States, Wong Sun v.............................. 908
United States, Wright v.................................. 958
United States, Yellin v................................... 931
United States, Young v................................... 953
U.S. Civil Service Comm'n Chairman, O'Leary v........... 953
U.S. District Judge, Busby v............................ 48
U.S. District Judge, Watson v............................ 933
U. S. District Judges, Idlewild Liquor Corp. v.......... . . . . 713
United States Fidelity & Guaranty Co., Lawrenson v........ 913
United States Lines Co., Salem v . ...... . ................. 31, 965
United States Lines Co. v. Van Carpals..................... 914
U.S. Marshal, Krawitz v..... . ........................... 959
United States Pipe & Foundry Co. v. Laber Board....... . . 9Hl
Universal Terminal & Stevedoring Corp. v. lsbrantltsen Co... 912
Valentin v. Murphy..................................... 928
Valenzuela v. Eyman.................................... 290
Van Carpals, United States Lines Co. v... . . . . . . . . . . . . . . . . . 914
Van Pelt v. California................................... 932
Vaughan v. Atkinson..................................... 965
Verdon v. United States.................................. 945
Virginia, Dearhart v..................................... 953
Virginia, Goodson v...... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 961
Virginia, Pugh v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
Vitale, Engel v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 421
Von der Heydt v. Kennedy ........................ ,.. . . . . 916
Wabash R. Co., Link v.................................. 626
Walker, Linkletter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
W a1ker, Louisiana v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 726
Wallace v. United States............... . . . . . . . . . . . . . . . . . . 923
Warden, Banks v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 962
Warren v. Larson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920
Washington, Beck v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 965
Washington, Draper v................................... 935
Washington, Haynes v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902
Washington, Self v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 929
Washington, Spanner v................................... 949
Washington, Thompson v................................. 945
Washington v. United States......................... . . . . 949
Washington v. Walker.................................... 726
TABLE OF CASES REPORTED. xx1x
Page
Washington Aluminum Co., Labor Board v................. 9
Washington-Oregon Shippers Coop. Assn. v. Schumacher. .... 937
Washington Tax Comm'rs, Wash.-Ore. Assn. v........ . ..... 937
Wasilewski v. Board of School Directors of Milwaukee . ....... 720
Watkins v. Wilson....................................... 46
Watson v. Hooper....................................... 933
Watters v. Myers.............................. . ......... 949
Watts v. Castle........................................ . . 933
Webb v. Compton. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 933
Weires v. New York..................................... 954
West Virginia, Martin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 959
Whittington v. Overholser. . . . . . . . . . . . .. . . . . . . . . . .. . . . . . . . 932
Whittington v. United States............ . . . . . .. . .. . . .. . . . . 928
Whit us v. Balkcom. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 728
Wick, Hartford v................................. . ...... 932
Wilborn v. California.................................... 932
Wilbur v. United States................................ . . 291
Wilburn Boat Co. v. Fireman's Fund Insurance Co.......... 925
Wilkins, Caldwell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 945
Willems Industries v. United States....................... 903
Williams v. Hot Shoppes, Inc............................. 925
Williams v. New York................................... 960
Williams v. United States................................ 946
Williams Packing & Navigation Co., Enochs v .............. 1,965
Willis v. Cochran. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 955
Willner v. Committee on Character and Fitness............. 934
Wilson, Bagley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 950
Wilson, Watkins v....................................... 46
Wiman, Anderson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 963
Wiman, Thomas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 947
Winckler & Smith Citrus Prod. Co. v. Sunkist Growers....... 917
Winckler & Smith Citrus Prod. Co., Sunkist Growers v ...... 19,965
Winters v. Ohio....... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 721
Wise, United States v.................................... 405
W. M. C. A., Inc., v. Simon......... . . . . . . . . . . . . . . . . . . . . . 190
Wong Sun v. United States.................... . ......... 908
Wood v. Georgia.............................. . ......... 375
Woodard v. General Motors Corp . . . . . . . . . . . . . . . . . . . . . . . . . 965
Woodard Motor Co. v. General Motors Corp............... 965
Woods v. Illinois......................................... 910
Woodson v. Myers....................................... 960
Wooten v. Bomar........................................ 932
Wooten v. Texas........................................ 965
Wright v. Georgia..................... . ................. 935
xxx TABLE OF CASES REPORTED.
Page
Wright v. Rhay ........................................ 947,948
Wright v. United States.................................. 958
Yeager, Ernst v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 959
Yellin v. United States................................... 931
Yellow Transit Freight Lines, Teamsters v. . . . . . . . . . . . . . . . . . 711
Young v. Motion Picture Assn. of America................. 922
Young v. United States.................................. 953
Zdanok, Glidden Co. v................................... 530
Zimmer, Johnson v...................................... 951
TABLE OF CASES CITED
l'nge
Abbate v. United States, 359 u. s. 187 723
Adams Mfg. Co. v. Storen,
304 U. S. 307 618
Aetna Life Ins. Co. v.
Haworth, 300 U. S. 227 574
A. G. Spalding & Bros. v.
Federal Trade Comm'n,
301 F. 2d 585 325,343
A.H. Bull S. S. Co. v. Marine
Engineers, 250 F. 2d
332 184,188
A. H. Bull S. S. Co. v. Seafarers'
Union, 250 F. 2d
326 199,205
Aircraft & Diesel Corp. v.
Hirsch, 331 U.S. 752 42
Alabama State Federation v.
l\foAdory, 325 U.S. 450 685
Alaska S. S. Co. v. Petterson,
347 U. S. 396 170
Alcoa S.S. Co. v. McMahon,
173 F. 2d 567 199
Allen v. Michigan, 364 U.S.
934 725
Allen v. Regents, 304 U. S.
439 3
Allgeyer v. Louisiana, 165
U.S. 578 453-457
Allied Stores of Ohio v.
Bowers, 358 U. S. 522 618
American Banana Co. v.
United Fruit Co., 213
U. S. 347 704,705
American Construction Co.
v. Jacksonville, T. & K.
W.R. Co., 148 U.S. 372 536
American Crystal Sugar Co.
v. Cuban-American Sugar
Co., 152 F. Supp. 387, 259
F. 2d 524 325,336
American Fire & Casualty
Co. v. Finn, 341 U.S. 6 305
American Ins. Co. v. Canter,
1 Pet. 511
544, 547, 548, 598, 599
l'ugt>
American Nat. Bank &
Trust Co. v. United States,
142 F. 2d 571 631
American Refrigerator Transit
Co. v. Hall, 174 U. S.
70 615
American School of Magnetic
Healing v. McAnnulty,
187 U. S. 94 512
American Tobacco Co. v.
United States, 328 U. S.
781 707
American Tobacco Co. v.
United States, 147 F. 2d
93 415,699
Amos v. United States, 255
U. S. 313 143
Anderson Nat. Bank v.
Luckett, 321 U. S. 233 632
Anonymous, 1 Fed. Cas.
1024 501
Apollon, The, 9 Wheat. 362 620
Arant v. Lane, 245 U. S.
166 307,363
Arrow-Hart & Hegeman
Electric Co. v. Federal
Trade Comm'n, 291 U. S.
587 313
Ashcraft v. Tennessee, 322
U. S. 143 51, 52, 63
Associated Press v. United
States, 326 U. S. 1 307
Atchley v. California, 366
U.S. 207 148
Atkins v. Moore, 212 U. S.
285 576
Atkinson v. Sinclair Refining
Co., 370 U. S. 238
198, 228, 255-257, 264
Atlanta Newspapers v. Stat~,
216 Ga. 399 385
Atlantic & Gulf Stevedores
v. Ellerman Lines, 369
U.S. 355 170
XXXI
XXXII TABLE OF CASES CITED.
Palate
Atlas Building Prod. Co. v.
Diamond Block & Gravel
Co., 269 F. 2d 950 697
Automatic Canteen Co. v.
Federal Trade Comm'n,
346 u. s. 61 468
Automobile Club of Michigan
v. Commissioner, 353 u. s. 180 127
Auto Workers v. Benton
Harbor Indus., 242 F. 2d
536 242,264
Avondale Marine Wavs v.
Henderson, 346 U. s: 366 129
Avondale Shipyards v. Donovan,
293 F. 2d 51 116
Ayrshire Collieries Corp. v.
United States, 331 U. S.
132 535
Bachtel v. Wilson, 204 U. S.
36 152
Bailey v. Patterson, 369 u. s. 31 716
Bailey Farm Dairy Co. v.
Anderson, 157 F. 2d 87 105
Baizlcy Iron Works v. Span,
281 U. S. 222 116
Bakelite Corp., Ex parte,
279 U.S. 438
531,534,540-543,548-
550, 556-561, 579,583-
588, 591-593, 596, 600
Baker v. Carr, 369 U. S.
186 191,193,194
Baldwin v. Missouri, 281
U.S. 586 621
Baldwin Co. v. Howard Co.,
256 U. S. 35 576
Ball v. United States, 140
U.S. 118 535
Balzac v. Porto Rico, 258
U.S.298 545,547
Barber v. Barber, 21 How.
582 545
Barr v. United States, 324
U.S. 83 575
Bates :\Ifg. Co. v. United
States, 303 U. S. 567 565
Batter Bldg. :\lats. Co. v.
Kirschner, 142 Conn. 1 262
Battery Patents Corp. v.
Chicago Cycle Supply Co.,
111 F. 2d 861 577
Pugc,
Beacon Theatres v. Westover,
359 U. S. 500 306
Beaston v. Farmers' Bank of
Del., 12 Pet. 102 408
Beck v. Washington, 369
U.S. 541 398
Beilan v. Board of Education,
357 U. S. 399 43
Bell v. Hood, 327 U. S. 678 247
Benner v. Porter, 9 How.
235 545,546
Benz v. New York Thruway
Authority, 369 U. S.
147 148,153
Beres v. Beres, 52 Del. 133 70
Bernhardt v. Polygraphic
Co., 350 U.S. 198 244,266
Bethlehem Steel Co. v. State
Board, 330 U. S. 767 456
Betts v. Brady, 316 U. S.
455 908
Bigelow v. RKO Radio Pictures,
327 U. S. 251 697
Bi-Metallic Co. , •. Colorado,
239 u. s. 441 599
Blackstone v. Miller, 188
U. S. 189 621
Blake v. United States, 103
U.S. 227 43
Bland v. Connally, 110 U.S.
App. D. C. 375 44
Boone v. Eyre, 1 Bl. H. 273 264
Booth v. United States, 291 u. s. 339 584,589
Booth Fisheries v. Industrial
Comm'n v. 271 U.S. 208 99
Bordonaro Bros. Theatres v.
Paramount Pictures, 176
F. 2d 594 697
Bottomley v. Bottomley, 104
U. S. App. D. C. 311 581
Boudoin v. Lykes Bros. S.S.
Co., 348 U.S. 336 170
Boynton v. Virginia, 364
U.S. 454 156
Bradley v. State, 111 Ga.
168 385
Bram v. United States, 168 u. s. 532 52
Branch v. Federal Trade
Comm'n, 141 F. 2d 31 704
TABLE OF CASES CITED. XXXIII
Pag~
Braniff Airways v. Nebraska
Board of Equalization, 347 u. s. 590
611, 614, 617, 620, 624
Brasfield v. United States,
272 U.S. 448 718
Bridges v. California, 314
U. S. 252 383-389, 393-402
Brinegar v. United States,
338 u. s. 160 143
Brotherhood. • F o r 1 a b o r
union, see name of trade.
Brown v. Allen, 344 U. S.
443 568
Brown v. :Mississippi, 297
U.S. 278 51, 63
Brown Shoe Co. v. United
States, 370 U. S. 294 477
Buchanan v. Warley, 245
U.S.60 156
Bull S. S. Co. v. Marine Engineers,
250 F. 2d 332 184, 188
Bull S. 8. Co. v. Seafarers'
Union, 250 F. 2d 326 199,205
Burnet v. Coronado Oil &
Gas Co., 285 U. S. 393 543
Butler v. Michigan, 352 U.S.
380 488
Butler Y. Pennsylvania, 10
H ow. 402 534
Byers v. t lcAnley, 149 U.S.
608 581
Cafeteria Workers v. }.lc-
Elroy, 367 U. S. 886 43
Cage v. Cage, 74 F. 2d 377 631
Calmar S. S. Corp. v. Taylor,
303 U. S. 525 38
Canada Southern R . Co. v.
Gebhard, 109 U. S. 527 408
Cantwell v. Connrcticut, 310
U.S. 296 491
Capron v. Van Xoorden, 2
Cranch 126 305
Carnegie National Bank v.
Wolf Point, 110 F. 2d
569 631
Carolene Products Co. v.
United Statrs, 323 U. S.
18 409
Carondelet Canal Co. v.
Louisiana, 233 U. S.
362 308,361
Carpenters v. United States,
330 U. S. 395 718
663026 0-62-3
l'uge
Carrier v. Bryant, 306 U. S.
545 161,163
Carroll v. United States, 267
U.S. 132
Cary v. Curtis, 3 How.
143
236 549,552
Cates v. Haderlein, 342 U.S.
804 516
Catlin v. United States, 324
U. S. 229 309, 361
Causby v. United States, 104
Ct. Cl. 342 557
Chambers v. Florida, 309 u. s. 227
50,51,62,386,389,675
Chaunt v. United States, 364
U.S. 350 578
Cherokee Nation v. Georgia,
5 Pet. I
Cherokee Nation v. United
55
States, 270 U. S. 476 566
Chicago, Duluth & G. B.
Transit Co. v. Nims, 252
F. 2d 317 715
Chicago & Southern Air
Lines v. Waterman S. S.
Corp., 333 U. S. 103 582
Chrysler Corp. v. United
States, 316 U. S. 556 310
City. See name of city.
Clearfield Trust Co. v.
United States, 318 U. S.
363 556
Clinton v. Englebrecht, 13
Wall. 434 545, 546
Cobbledick v. United States,
309 u. s. 323 306,309
Coe v. Errol, 116 U.S. 517 620
Coffey v. Commissioner, 21
B. T. A. 1242 277
Cohen v. Beneficial Industrial
Loan Corp., 337 U.S.
541 306,308,360
Cohens Y. Virginia, 6 Wheat.
264 564
Colgate v. U nited States,
280 U. S. 43 566
Collins v. :\filler, 252 U. S.
364 306
Commissioner v. Duberstein,
363 u. s. 278 270,273
Commissioner v. Glensha.w
Glass Co., 348 U. S.
426 273,274
XXXIV TABLE OF CASES CITED.
Page
Commissioner v. Halliwell,
13i F. 2d 642 66--68
Commissioner v. Hansen, 360 u. s. 446 73
Commissioner v. Jackson,
265 N. Y. 440 153
Commissioner v. LoBue, 351
U.S. 243 273
Commissioner v. Marshman,
279 F. 2d 27 66, 68
Commissioner v. Mesta, 123
F. 2d 986 66--68
Commissioner v. Smith, 324 u. s. 177 273
Commissioner v. Wemyss,
324 U. S. 303 69
Commissioner of Internal
Revenue. S e e Commissioner.
Commonwealth v. American
Dredging Co., 122 Pa.
386 608
Commonwealth v. Delaware,
L. & W. R. Co., 145 Pa.
96 609
Commonwealth v. Demuth,
12 S. & R. 389 418
Commonwealth v. Ohio P.R.
Co., 1 Grant 329 418
Commonwealth v. Standard
Oil Co., 101 Pa. 119 608
Commonwealth v. Union
Shipbuilding Co., 271 Pa.
403 608
Comstock v. Institutional
Investors, 335 U. S. 211 271
Congress Bldg. Corp. v.
Loew's, Inc., 246 F. 2d
587 699
Connecticut General Life
Ins. Co. v. Johnson, 303
U. S. 77 453-456
Continental Insurance Co. v.
United States, 259 U. S.
156 310
Coplon v. United States, 89
U. S. App. D. C. 103 144
Coppedge v. United States,
369 U. s. 438 293, 727
Corn Products Refining Co.
v. Federal Trade Comm'n,
324 u. s. 726 312,414
Costello v. United States,
365 U. S. 265 146
Page
Coughlin v. Commissioner,
203 F. 2d 307 277
Covington v. Covington
First Nat. Bank, 185 U.S.
270 361
Cowley v. People, 83 N. Y.
464 418
Craig, Ex parte, 150 Tex.
Cr. 598 387
Craig v. Harney, 331 U. S.
367 385-
389, 393, 397, 401, 402
Crenshaw v. United States,
134 U. S. 99 534
Cross v. Burke, 146 U. S.
82 363
Crumady v. The J. H. Fisser,
358 U. S. 423 170
Culombe v. Connecticut, 367
U.S. 568 60
Cuneo Press v. Kokomo
Union, 235 F. 2d 108 264
Davis v. Dept. of Labor,
317 U.S. 249
128, 136-138, 457
Davis v. United States, 328
U.S. 582 143
De Bardeleben Coal Corp. v.
Henderson, 142 F. 2d 481 129
De Groot v. United States,
5 Wall. 419 554
De Jonge v. Oregon, 299
U.S. 353 383
De la Rama v. De la Rama,
201 U.S. 303 545
Delaware, L. & W. R. Co.
v. Pennsylvania, 198 U.S.
341 609,620
De Lima v. Bidwell, 182
U.S. 1 575
Dermott v. Jones, 23 How.
220 264
Des Moines Union R. Co. v.
District Court, 170 Iowa
568 631
Dexter Horton Xat. Bank v.
United States Fidelity &
Guaranty Co., 149 Wash.
343 657
DiBella v. United States,
369 U. S. 121 306
District 0f Columbia v.
Eslin, 183 U. S. 62 567
TABLE OF CASES CITED. XXXV
Page
Dixie Ohio Express Co. v.
State Revenue Comm'n,
306 U. S. 72 613
Donegan v. Dyson, 269 U.S.
49 538,561
Door v. Donaldson, 90 U.S.
App. D. C. 188 516
Dorr v. United States, 195
U. S. 138 547
Douds v. Seafarers' Union,
148 F. Supp. 953 183
Doughty v. Terminal R.
Assn., 291 S. W. 2d 119 631
Dowd Box Co. v. Courtney,
368 u. s. 502 226,265
Downes v. Bidwell, 182 U.S.
244 547
Dows v. Chicago, 11 Wall.
1~ 6
Drake Bakeries v. Bakery
Workers, 370 U. S. 254
242,245
Dreyer v. Illinois, 187 U. S.
71 M6
Duncan v. Commissioner,
30 T. C. 386 277
Eastern R. Presidents Conf.
v. Noerr Motor Freight,
365 u. s. 127 707,708
Eastman Kodak Co. v.
Southern Photo Materials,
273 U. S. 359 697
Edwards v. California, 314
U.S. 160 664
Egan v. Teets, 251 F. 2d
571 634, 644, 645
Electrical Workers v. Labor
Board, 366 U.S. 667 177
Electrical Workers v. Miller
Metal Prods., 215 F. 2d
221 264
Elkins v. United States, 364
U.S. 206 142
Ellis v. Burnet, 60 App.
D. C. 193 277
Ellis v. United States, 356 u. s. 674 293
Elsberry v. State, 52 Ala. 8 418
Enterprise Irrigation District
v. Farmers Canal
Co., 243 U.S. 157 148
Erie R. Co. v. Tompkins, 304
U.S. 64 538
Page
Erie Sand & Gravel Co. v.
Federal Trade Comm'n,
291 F. 2d 279 336
Estate. See name of estate.
Evans v. Gore, 253 U. S.
245 555,556
Everson v. Board of Education,
330 U.S. 1 428,443
Ex parte. See name of
party.
Farid-Es-Sultaneh v. Commissioner,
160 F. 2d 812 69
Farmers Loan & Trust Co.
v. Minnesota, 280 U. S.
2M ~1
Fatovic v. Nederlandsch-
Ameridaansche S t o o m -
vaart, 275 F. 2d 188 34
Federal Crop Ins. Corp. v.
Merrill, 332 U. S. 380 556
Federal Housing Adm'n v.
Darlington, Inc., 358 U. S.
84 414,541
Federal Radio Comm'n v.
General Electric Co., 281
U.S. 464 539,580,590
Federal Radio Comm'n v.
Nelson Bros. Co., 289 U.S.
266 580,590
Federal Trade Comm'n v.
l\finnea polis - Honeywell
Hegulntor Co., 344 U. S.
206 306
Federal Trade Comm'n v.
Morton Salt Co., 334 U.S.
37 312,414,467
Federal Trade Comm'n v.
Sinclair Refining Co., 261
U.S. 463 330
Federal Trade Comm'n v.
Travelers Health Assn.,
362 U. S. 293 457
Federal Trade Comm'n v.
Western Meat Co., 272 u. s. 554 313
Feiner v. New York, 340
U. S. 315 400
First National Bank v.
l\faine, 284 U. S. 312 621
Fisher v. Pace, 336 U.S. 155 237
Fiske v. Kansas, 274 U. S.
380 386
Five Per Cent. Discount
Cases, 243 U. S. 97 575,587
XXXVI TABLE OF CASES CITED.
Page
Flying Eagle Publications v.
United States, 273 F. 2d
799 484
Fogarty v. United States,
340 u. s. 8 411
Ford Motor Co. v. United
States, 335 U. S. 303 310
Forgay v. Conrad, 6 How.
201 308,360,361
Fox Film Corp. v. l'viuller,
296 u. 8. 207 153
Frad v. Kelly, 302 U. 8. 312 535
Francis v. Resweber, 329
U. S. 459 666,675, 676
Frasch v. Moore, 211 U. S.
1 576
French v. Shoemaker, 12
Wall. 86 359
Frischer & Co., In re, 16 Ct..
Cust. App. 191 588
Frothingham v. Mellon, 262
U.S. 447 441
Frytez v. Gruchacz, 125
N. ,T. L. 630 631
Furniture Workers v. Colonial
Hardwood Co., 168 F.
2d 33 264
Gainesville v. Brown-Crummer
Investment Co., 277 u. 8. 54 537
Gambino v. United States,
275 U. S. 310 143
Garner v. Louisiana, 368
U. S. 157 156
Gates v. State, 73 Ga. App.
824 397
Gayle v. Browder, 352 U. S.
903 156
Gemsco, Inc., v. Walling, 324
U.S. 244 411
Georgia v. Pennsylvania R.
Co., 324 U. S. 439 707
Gitlow v. New York, 268
U. S. 652 383,391
Gloucester Ferry Co. v.
Pennsylvania, 114 U. S.
196 620
Gonsalves v. Morse Dry
Dock Co., 266 U. S. 171
116, 119, 134
Gordon v. United States, 2
Wall. 561 554
Gordon v. United States, 117
U.S. 697 568,569
Pnge
Gouled v. United States, 255 u. s. 298 143
Graham v. Locomotive Firemen,
338 U. S. 232 21 i
Grand Trunk R. Co. v.
Richardson, 91 U. S. 454 37
Grant v. Phoenix Ins. Co.,
106 u. s. 429 360
Grant Smith-Porter Ship Co.
v. Rohde, 257 U. S. 469
11~ 119,12~134, 138
Grays Harbor Logging Co. v.
Coats-Fordney Co., 243
U. S. 251 308
Greathouse v. United States,
170 F. 2d 512 657, 658
Great Lakes Dredge Co. v.
Huffman, 319 U. S. 293 8
Great Lakes Dredge Co. v.
Kierejewski, 261 U. S. 479
116, 119, 134
Greely's Administrator v.
Burgess, 18 How. 413 575
Greene v. McElroy, 360 u. s. 474 43
Griffin v. Illinois, 351 U. S.
12 721
Grove Press v. Christenberry,
276 F. 2d 433 488,498
Grove Press v. Christenberry,
175 F. Supp. 488 498
Gulf Coast 8hrimpers v.
United States, 236 F. 2d
658 4
Gunning v. Cooley, 281 U.S.
90 696
Gwin, White & Prince, Inc.,
v. Henneford, 305 U. 8.
434 618
Hahn v. Ross Island Sand
Co., 358 U. S. 272 137
Hale v. Henkel, 201 U. S.
43 390
Haley v. Ohio, 332 U.S. 596
52,53,56,63,64
Hall, In re, 167 U. S. 38 567
Hall v. Commissioner, 9
T. C. 53 67
Halliwell v. Commissioner,
44 B. T. A. 740 67
Hannegan v. Esquire, Inc.,
327 u. s. 146
480,499,504,519
TABLE OF CASES CITED. XXXVII
Pnge
Hansen v. United States, 1
Ct. Cust. App. 1 559
Harmon v. Brucker, 355
U.S.579 44
Harris v. Commissioner, 340
U.S. 106 69
Hartford Accident & Indemnity
Co. v. Sorrells, 50
Ariz. 90 631
Hawkins v. Illcakly, 243
U.S. 210 117
Hayburn's Case, 2 Dall. 409 582
Hays v. Pacific Mail S. S.
Co., 17 How. 596 620
Helvering v. Hallock, 309
U.S. 106 70
Helvering v. Safe Deposit &
Trust Co., 316 U. S. 56 73
Henry v. United States, 361
U.S. 98 143
Herb v. Pitcairn, 324 U. S.
117 148
Heyman v. Darwins, Ltd.,
[1942] A. C. 356 262
Hibbs, Ex parte, 26 F. 421 658
Hicks v. Bekins Moving &
Storage Co., 115 F. 2d 406 631
Higginbotham's Executrix v.
Commonwealth, 25 Gratt.
627 563
Hill v. Wallace, 259 U. S.
44 3
Hirabayashi v. U nit e d
States, 320 U. S. 81 151
Hobart Mfg. Co. v. Landers,
Frary & Clark, 26 F.
Supp. 198 577
Hoeninghaus v. U n i t e d
States, 172 U. S. 622 575
Holmes v. Atlanta, 350 U.S.
879 156
Honeyman v. Hanan, 300 u. s. 14 153
Honeyman v. Hanan, 302
U. S. 375
Hood & Sons, Inc., v. Du
153
Mand, 336 U. S. 525 621
Hoopi>ston Canning Co. v.
Cullen, 318 U. S. 313 452, 453
Hooven & Allison Co. v.
Evatt, 324 U. S. 652 386
Hoover v. Co(', 325 U. S.
79 576
Page
Hoover Express Co. v.
Teamsters, 217 F. 2d 49 242
Hope v. People, 83 N. Y.
418 151
Hornbuckle v. Toombs, 18
Wall. 648 546
H. P. Hood & Sons v. Du
l\Iond, 336 U.S. 525 621
Hudgings, Ex parte, 249
U. S. 378 234,237
Iasigi v. The Collector, 1
Wall. 375 575
Indians of California v.
United States, 98 Ct. Cl.
583 566
Inland Steel Co. v. United
States, 306 U. S. 153 111
In re. See name of party.
Internal Revenue Servict'.
See Commissioner.
International. For I ab o r
union, see name of trade.
International Boxing Club v.
United States, 358 U. S.
242 359
International Fr e ighti ng
Corp. v. Commissioner,
135 F . 2d 310 72
International Harvester Co.
v. United States, 248 U.S.
587, 274 U. S. 693 310
International Salt Co. v.
United States, 332 U. S.
392 330
International Shoe Co. v.
Federal Trade Comm'n,
280 u. s. 291 331
I n t e r s t a t e Commerce
Comm'n v. Brimson, 154
U. S. 447 588
Irvin v. Dowd, 366 U. S.
717 396, 400
Irvine V. c~lifo rnia, 347
U. S. 128 142
Jacobson v. Massachusetts,
197 U. S. 11 665
James v. United States, 366
u. s. 213 273
J . D. Adams llifg. Co. v.
Storen, 304 U. S. 307 618
Jerrold Electronics Corp. v.
United States, 365 U. S.
567 310,311
XXXVIII TABLE OF CASES CITED.
Page
Johnson Oil Refining Co. v.
Oklahoma, 290 U. S. 158
611-613
Joins, Ex parte, 191 U.S. 93 547
Joint Anti-Fascist Refugee
Committee v. McGrath,
341 U. S. 123 43
Jones v. United States, 362 u. s. 257 143, 144
June T., Inc., v. King, 290
F. 2d 404 37
Jureidini v. Nat. Br. & Ir.
Ins. Co., [1915] A. C.
499 262
Kansas City Star Co. v.
United States, 240 F. 2d
643 710
Kass v. Brannan, 196 F. 2d
791
78, 83, 88, 97, 98, 105
Kaufman v. Societe Internationale,
343 U. S. 156 943
Keller v. Potomac Electric
Power Co., 261 U. S. 428
580,590
Kemmler, In re, 136 U. S.
436 675
Kendall v. United States, 12
Pet.524 581
Kennair v. :\Iississippi Shipping
Co., 197 F. 2d 605 37
Kent v. Dulles, 357 U. S.
116 499
Kesler v. Dept. of Public
Safety, 369 U.S. 153 306
Kessler v. Strecker, 307 U.S.
22 718
I{idd v. Alabama, 188 U. S.
730 618
King v. Commis..~ioner, 31
T. C. 108 68
Kingsley Books v. Brown,
354 U. S. 436 497
Kline v. Burke Construction
Co., 260 U.S. 226 552
Klor's, Inc., v. Broadway-
Hale Stores, 359 U. S. 207
231,700,708
Knauer v. United States, 328
U.S. 654 578
Knickerbocker Ice Co. v.
Stewart, 253 U. S. 149
118, 12~128, 133
Koon v. Barmettler,
Colo. 221
134
Koshkonong v. Burton, 104
Page
631
u. s. 668 414
Kulukundis Shipping Co. v.
Amtorg Trading Corp.,
126 F. 2d 978 262
Kwong Hai Chew v. Rogers,
103 U.S. App. D. C. 228 43
La Abra Silver Mining Co.
v. United States, 175 U.S.
423 571
Labor Board v. Brown &
Sharpe Co., 169 F. 2d 331 179
Labor Board v. Draper
Corp., 145 F. 2d 199 246
Labor Board v. Edward G.
Budd Co., 169 F. 2d 571
179,180
Labor Board v. Electrical
Workers, 346 U. S. 464 17
Labor Board v. Fansteel
Metallurgical Corp., 306
U. S. 240
Labor Board v. Jones &
Laughlin Corp., 301 U. S.
1
Labor Board v. Mackay
17
17
Radio Co., 304 U. S. 333 16
Labor Board v. Quincy Steel
Co., 200 F. 2d 293
Labor Board v. Rockaway
179
News Co., 345 U. S. 71 246
Labor Board v. Sands Mfg.
Co., 306 U.S. 332 17,246
Labor Board v. Swift & Co.,
292 F. 2d 561
Labor Board v. Walton Mfg.
179
Co., 369 U. S. 404 526
Labor Union. See name of
trade.
Lamar v. United States, 241
U.S. 103 536
Lane, Ltd., v. Larus & Bro.
Co., 243 F. 2d 364 267
Langford v. United States,
101 U. S. 341 569
Langnes v. Green, 282 U. S.
531 635
Lanza v. N. Y. S. Joint Legis.
Comm., 3 N. Y. 2d 92
144, 149
TABLE OF CASES CITED. XXXIX
Page
Lanza v. N. Y. S. Joint Legis.
Comm., 3 App. Div. 2d
531 149
Larson v. Domestic & Foreign
Commerce Corp., 337
U. S. 682 557
Lauf v. E.G. Shinner & Co.,
303 U. S. 323 202,557
Lawlor v. Loewe, 235 U. S.
522 248
Lawrence v. Shaw, 300 U.S.
245 161-164
Lawson .'.\.lilk Co. v. Benson,
187 F. Supp. 66 113
Leedom v. Kyne, 358 U. S.
184 181
Levindale Lead & Zinc .'.\.lining
Co. v. Coleman, 241 u. s. 432 414
Levine v. United States, 362
U. S. 610 397
Lewis v. Benedict Coal
Corp., 361 U.S. 459 249
Lewis Publishing Co. v. Morgan,
229 U. S. 288 504
Leyra v. Denno, 347 U. S.
556 51, 62, 145
Linder v. United States, 268
U.S. 5 667
Local. For labor union, see
name of trade.
Lockerty v. Phillips, 319
U.S. 182 561
Loewe v. Lawlor, 208 U. S.
274 248
Loewe v. Savings Bank of
Danbury, 236 F. 444 248
Loew's, Inc., v. United
States, 339 U. S. 974 307,310
Long:,horemen's Union v.
Juneau Spruce Corp., 342
U.S. 237 545
Lorain Journal v. United
States, 342 U.S. 143 307, 709
Lottawanna, The, 21 Wall.
558 604
Louisa v. Levi, 140 F. 2d
512 360
Louisville & Jeffersonville
Ferry Co. v. Kentucky,
188 U. S. 385 620
Louisville Trust Co. v.
Knott, 191 U. S. 225 363
Page
Lovell v. Griffin, 303 U. S.
444 388
Lovett v. United States, 104
Ct. Cl. 557 557
Lustig v. United States, 338
U. S. 74 143
Lynch v. Overholser, 369
U. S. 705 676
Machinists v. Cameron Iron
Works, 257 F. 2d 467 265
l\fachinists v. Street, 367 u. s. 740 219
Mahler v. Eby, 264 U. S.
32 718
Mahnich v. Southern S. S.
Co., 321 U. S. 96 170
'.vialinski v. New York, 324
U. S. 401 52, 63
Malone v. Bowdoin, 369
U.S. 643 557
~landel v. Pennsylvania R.
Co., 291 F. 2d 433 39
Mansfield, C. & L. M. R. Co.
v. Swan, 111 U.S. 379 537
Mapp v. Ohio, 367 U.S. 643
142,145
Marbury v. :Madison, 1
Cranch 137 554, 602
.\Iarcus v. Search Warrant,
367U.S.717 497,518
.'.\.Iarkel Electric Products v.
Electrical Workers, 202 F.
2d 435 264
l\Iarket Street R. Co. v.
Railroad Comm'n, 324
U.S. 548 306
Marshall v. United States,
360 U.S. 310 400
Marshman v. Commissioner,
31 T. C. 269 68
Marteney v. United States,
216 F. 2d 760 657,658
Martin v. Herzog, 228 N. Y.
164 697
Martin v. Hunter's Lessee, 1
Wheat. 304 545
'.Hartin v. United Fruit Co
272 F. 2d 347 ., 34
Marye v. Baltimore & 0. R.
Co., 127 U. S. 117 613
Maryland v. Baldwin, 112
U.S. 490 30
XL TABLE OF CASES CITED.
Pnge
::Vlaryland v. B a 1 t i m o r e
Radio Show, 338 U. S.
912 402
'.\Iaryland & Virginia Milk
Producers v. United
States, 362 U. S. 458
30,310,311, 70!)
'.\Iassachusetts Bonding Co.
v. Lawson, 149 F. 2d 853 131
).!asters, Mates & Pilots v.
Labor Board, 48 L. R.
R. ).11. 2624 180, 184
'.\lastro Plastics Corp. v. Labor
Board, 350 U. S. 270
246,265
'.\Iatthews v. Rodgers, 284
U. S. 521 6
l\lattox v. Sacks, 3G9 U. S.
656 725
:.\Iayor & City Council of
Baltimore v. Dawson, 350 u. s. 877 156
l\IcAllister v. United States,
141 U.S. 174 534,548
'.\IcAllister v. United States,
348 U. S. 19 168
'.\IcCardle, Ex parte, 7 Wall.
506 567,568,605
'.\IcCarroll v. Los Angeles
County Council, 49 Cal.
2d 45 226
l\IcCollum v. Board of Education,
333 U. S. 203 439
l\IcCulloch v. Maryland, 4
\Vheat. 316 562
:!\IcDowell v. United States,
159 U. S. 596 535, 536
'.\foElrath v. United States,
102 u. s. 426 572,600
'.\IcGill v. State, 209 Ga.
500 385
McGinnis v. United States,
227 F. 2d 598 142
l\lcGowan v. l\laryland, 366
U.S. 420 443
l\foad, Inc., v. Teamsters,
217 F. 2d 6 Hl9, 205
Medley, 134 U. S. 160 675
Meeker v. Lehigh Valley n.
Co., 236 U. S. 434 5g7
Merrill v. Fahs, 324 U. S.
308 69
l\Iesta v. Commissioner, 42
B. T. A. 933 67
Pa~~
Metlakatla Indian Community
v. Egan, 363 U. S.
M5 5~
:VIichael, In re, 326 U.S. 224
234,237
::Vliles v. Graham, 268 U. S.
501 555,556
).'lilk Wagon Drivers v. Lake
\'alley Farm Prods., 311
U.S. 91 203
Miller v. Standard Margarine
Co., 284 U. S. 498 2, 5-7
).Iillers' Indemnity Underwriters
v. Braud, 270 U. S.
59 119
:\Iilwaukee Publishing Co. v.
Burleson, 255 U. S. 407
480,499,504,518,524
Milwaukee & St. P. R. Co.
v. Kellogg, 94 U.S. 469 37
.Milwaukee Towne Corp. v.
Loew's, Inc., 190 F. 2d 561 699
Mine Workers v. Labor
Board, 103 U. S. App.
D. C. 207 265
1\-finneapolis & St. L. n. Co.
v. Bombolis, 241 U.S. 211 572
MinnC'sota v. Hitchcock, 185 u. s. 373 564
Minnesota v. National Tea
Co., 309 U. S. 551 152
Missouri, K. & T. R. Co. v.
Williams, 103 TC'x. 228 37
Mitchell v. Trawler Racer,
Inc., 362 U. S. 539
166, 168, 169, 172
Monaco v. Mississippi, 292
U.S. 313 564
l\fonongahela Nav. Co. v.
United States, 148 F. S.
312 549
Monroe v. Pape, 365 U. S.
167 457
:.\fontague & Co. v. Lowry,
193 U. S. 38 699
Mookini v. United States,
303 U. S. 201 548
Moore v. Dempsey, 261 U.S.
86 389
:'.\Ioore v. MC'ad's Fine Bread
Co., 348 U. S. 115 475
Moore v. State, 48 ::Vliss. 147 418
Morgan v. Parham, 16 Wa:l.
471 620
TABLE OF CASES CITED. XLI
l'ai:<>
'.\Iorgan v. UnitC'd States,
;304 U.S. I 99,112
:.\lorgan v. Virginia, 328 U.S.
373 619
:.\lorgan Drive Away v.
Teamsters, 166 F. Supp.
885 247
:\losh:rnnon Nat. Bank v.
Iron Mountain Ranch Co.,
45 Wyo. 265 631
'.\lounce v. Unitf•d States,
355 U. s. 180 490
:\fountain Timber Co. v.
Washington, 243 U.S. 219 117
Murdock v. :Vlemphis, 20
Wall. 590 148
:VIurray's Lessee v. Hoboken
Land & Improvement Co.,
18 How. 272 538,550,551,554
'.\foskrat v. United States,
219 U.S. 346 587,602
Nardone v. United States,
308 U. S. 338 145
Nashville, C. & St. L. R. Co.
v. Wallace, 288 U. S. 249 571
National Cored Forgings Co.
v. United States, 132 Ct.
Cl. 11 566
~ational Ins. Co. v. Tidewater
Co., 337 U. S. 582 600
National Labor Relations
Board. See Labor Board.
National Leather Co. v.
l\lassachusetts, 277 U. S.
413 289
Xational Illarine Engineers
v. Labor Board, 274 F. 2d
167 180,
181, 183, 184, 188, 189
Near v . '.\Iinnesota, 283 U.S.
697 3S:3, 504
Nebbia v. New York, 291
U. S. 502 102
Xew v. Oklahoma, 195 U.S.
252 36.3
Xew Orleans Park Assn. v.
Detiegc, 358 U.S. 54 156
Xewport Xews Shipbuilding
Co. , •. O'Hearne, 192 F. 2d
968 132
Xew York Central & H. R.
R. Co. v. United State:;,
212 U. S. 481 408
Pllg<'
New York Central R. Co. v.
'.\Iiller, 202 U. S. 584
611, 612,622-6:.?4
New York Central R. Co. v.
White, 243 U. S. 188 117
New York, P. & ~. R. Co.
v. Peninsula Exchange, 240
U. S. 34 541
Xorris v. Alabama, 294 U.S.
587 386
Northwest Airlines v. l\Iinnesota,
322 U. S. 292
611,612,618
Nueslein v. District. of Columbia,
73 App. D. C. 85 142
Nye v. United States, 313
U.S. 33 233
O'Donoghue v. United
States, 289 U. S. 516
536,539,542,543,548,
558, 580, 590, 599, 605
Offutt v. United States, 348
U.S. 11 233,237
Ogden v. Blackledge, 2
Cranch 272 414
Ohio ex rel. Popovici v.
Agler, 280 U.S. 379 581
Ohio Power Co. v. Labor
Board, 176 F. 2d 385 179
Oil Workers Unions v. Missouri,
361 U. S. 363 685
Olesen v. Stanard, 227 F. 2d
785 498
Olsen v. Smith, 195 U. S.
332 706
O'}1alley v. Woodrough, 307
U. S. 277 555 593
O'Neil v. Vermont, 144 U. s.'
323 676
One, Inc., v. Olesen, 355 U.S.
371 496
Osborn v. Bank of United
States, 9 Wheat. 738 556,588
Osborn v. Ozlin, 310 U. S.
53 452,453
Osceola, The, 189 U. S. 158 604
Ott v. :\Iississippi Valley
Barge Line Co., 336 U. S.
169 611-613,617,622-624
Packard Motor Co. v. Labor
Board, 330 U.S. 485 179 187
Pahlberg Petition, In re, 131'
F. 2d 968 262
XLII TABLE OF CASES CITED.
Pnge
Parker v. Brown, 317 U. S.
341 706
Parker v. Motor Boat Sales,
314 U. S. 244 127, 138
Parmelee v. United States,
72 App. D. C. 203 490
Pasadena Investment Co. v.
Peerless Casualty Co., 132
Cal. App. 2d 328 657
Patino v. Commissioner, 13
T. C. 816 68
Patterson v. Colorado, 205
U.S. 454 396
Patterson v. Thomas, 289 F.
2d 108 272,273,276,277
Pawling v. United States,
4 Cranch 219 696
Payne v. Arkansas, 356 U.S.
560 55
Penello v. Seafare1!l' Union,
40 L. R. R. M. 2180 183
Penhallow v. Doane's Adm'r,
3 Dall. 54 55
Pennekamp v. Florida, 328
U.S. 331
384-393, 397, 401, 402
Penn Mutual Life Ins. Co.
v. Lederer, 252 U. S. 523 414
Pennsylvania Greyhound
Lines v. Amalgamated
Assn., 98 F. Supp. 789 262
People v. Ackles, 147 Cal.
App. 2d 40 687
People \'. Bastio, 55 Cal.
App. 2d 615 687
People v. Bendit, 111 Cal.
274 657
People v. Cummins, 209
N.Y.283 151
People v. Davis, 56 N. Y.
95 151
People v. Faden, 271 N. Y.
435 151
People v. Garcia, 122 Cal.
App. 2d 962 687
People v. Jaurequi, 142 Cal.
App. 2d 555 684
People v. Lanza, IO App.
Div. 2d 315 149
People v. Megladdery, 40
Cal. App. 2d 748 687
People v. Richmond County
News, 9 N. Y. 2d 578 489
PngP
People v. Thompson, 144
Cal. App. 2d 854 687
People v. Williams, 164 Cal.
App. 2d 858 687
People's Bank v. Calhoun,
102 u. s. 256 305
Petite v. United States, 361
U. S. 529 723
Philadelphia Fire Assn. v.
New York, 119 U.S. 110 409
Philadelphia Park Co. v.
United States, 130 Ct. Cl.
100 n
Pierre v. Louisiana, 306 U.S.
354 389
Pitts v. Peak, 60 App. D. C.
195 580
Plimpton v. Spiller, 6 Ch. D.
412 37
Po c on o Pines Assembly
Hotels Co. v. United
States, 73 Ct. Cl. 447 568
Poe v. Seaborn, 282 U. S.
101 71
Poignant v. United States,
225 F. 2d 595 37
Poller v. Columbia Broadcasting
System, 368 U. S.
464 697
Pope v. United States, 323
U. S. 1 543, 545,567,584,598
Pope v. United States, 100
Ct. Cl. 375 584
Pope & Talbot v. Hawn, 346 u. s. 406 168, 170
Popovici v. Agler, 280 U. S.
379 581
Poss v. Christenberry, 179
F. Supp. 411 491
Post.um Cereal Co. v. California
Fig Nut Co., 272
U. S. 693 576-580, 590,605
Prentis v. Atlantic Coast
Line, 211 U.S. 210 590
Prudential Ins. Co. v. Benjamin,
328 U.S.408 452,456
Public Utilities Comm'n v.
Pollak, 343 U. S. 451 580
Public Workers v. Mitchell,
330 u. s. 75 395
Publishers Assn., In re, 8
N. Y. 2d 414 265
TABLE OF CASES CITED. XLIII
Pagf>
Pullman's Car Co. v. Pennsylvania,
141 U. S. 18
613,620,623
Pure Oil Co. v. Snipes, 293
F. 2d 60 37
Quick Service Box Co. v. St.
Paul Mercury Indemnity
Co., 95 F. 2d 15 658
Radiant Burners v. Peoples
Gas Light Co., 364 U. S.
656 231
Hadio Station WOW v.
Johnson, 326 U. S. 120
308,309,361
Radovich v. National Football
League, 352 U. S.
445 231
Rahrer, In re, 140 U. S.
545 456
Railroad Co. v. Jackso11, 7
Wall. 262 620
Railroad Telegraphers v.
Chicago & N. W. R. Co.,
362 U. S. 330 211,212
Railroad Trainmen v. Chicago
River & I. R. Co.,
353 U.S. 30
210, 211, 215, 217-219
Rainwater v. United States,
356 u. s. 590 414
Ray v. Law, 3 Cranch 179 359
Redfield v. Ystalyfera Iron
Co., 110 U.S. 174 631
Reed v. Commissioner, 35
T. C. 199 277
Reed v. First Nat. Bank, 194
Ore. 45 631
Reeside v. Walker, 11 How.
272 570
Rt:'gina v. Close, [1948]
Viet. L. R. 445 485
Regina v. Great North of
England R. Co., [1845]
9 Q. B. 315 417
Regina v. Hicklin, [1868]
L. R. 3 Q. B. 360 484, 485, 487
Regina v. White, 2 Car. & K.
404 655-657
Reid v. Richmond, 295 F.
2d 83 634, 644
Republic Natural Gas Co. v.
Oklahoma, 334 U. S. 62
306,308
PUKP
Reuter, In re, 4 App. Div.
2d 252 144, 149
Rex v. Medley, 6 Car. & P.
292 417
Reynolds v. United States,
98 U. S. 145 545
Rhode Island v. )lfossachusetts,
12 Pet. 657 563
Rice v. Ames, 180 U.S. 371 539
Rice v. Santa Fe Elevator
Corp., 331 U. S. 218 456
Rice v. Sioux City Cemetery,
349 U. S. 70 270
Rios v. United States, 364
U. S. 253 143
Riss & Co. v. United States,
341 u. s. 907 516
Rittenour v. District of
Columbia, 163 A. 2d 558 43
Robins Dry Dock Co. v.
Dahl, 266 U. S. 449
116, 119, 134
Rochin v. California, 342 u. s. 165 145
Rogers v. United States
Lines, 347 U.S. 984 170
Rosenzweig v. Boutin, 369
U.S. 818 561
Ross, In re, 140 U. S. 453 547
Roth v. Goldman, 172 F. 2d
788 498
Roth v. United States, 354 u. s. 476 480-491, 504,518
Royster Drive-In Thratres
v. American Broadcasting-
Paramount Theatres, 268
F. 2d 246 699
Ruppert v. Egelhofer, 3
N. Y. 2d 576 260
Russell v. United States, 369
U.S. 749 288,717,718,724
Russian Volunteer Fleet v.
United States, 282 U. S.
481 943
Safe Deposit & Trust Co. v.
\'irginia, 280 U. S. 83 621
St ..J oseph & G. I. R. Co. v.
:'.\-Ioore, 243 U. S. 311 36
St. Louis v. Ferry Co., 11
Wall. 423 620
St. Louis Cotton Compre8S
Co. v. Arkansas, 260 U. S.
346 453-456
XLIV TABLE OF CASES CITED.
Page
Sanborn, In re, 148 U. S.
222 579
San Diego Bldg. Trades
Council v. Garmon, 359
U.S. 236 174-
177,182,184,185,245
Sawyer, In re, 360 U. S. 622
386,395
Schad v. Twentieth Centurv-
Fox Film Corp., 136 F. 2d
991 696
Schauffier v. Marine Engineers,
180 F. Supp. 932
183,185,188
Schechter v. United States,
295 U. S. 495 91
Sehine Chain Theatres v.
United States, 329 U. S.
686, 334 U. S. 110 307
Schmidt, Ex parte, 2 Tex.
App. Hl6 418
Schneider v. State, 308 U.S.
147 383
Schneiderman v. United
States, 320 U. S. 118 578
Scholle v. Hare, 369 U. S.
429 191,192
Schwegmann Bros. v. Calvert
Distillers Corp., 341
lT. S. 384 312,414
Seas Shipping Co. v. Sieracki,
328 U. S. 85 168, 170
Securities & Ex c h a n g e
Comm'n v. Chenery Corp.,
318 U. S. 80 635
Selvidge v. United States,
290 F. 2d 894 652, 657
Shanferoke Coal Corp. v.
Westchester Corp., 70 F.
2d 297 262,267
Shapiro v. United States, 107
Ct. Cl. 650 557
Sheldon v. Sill, 8 How. 441 552
Shotkin v. Westinghouse
Elec. & Mfg. Co., 169 F.
2d 825 631
Shutter v. Commissioner, 2
B. T. A. 23 277
Siebold, Ex parte, 100 U. S.
371 539,581
Signal-Stat Corp. v. Electric-
al Workers, 235 F. 2d
298 265
Page
Silber v. United States, 370 u. s. 717 724
Silverman v. United States,
365 U. S. 505 143
Silverthorne Lumbf'r Co. v.
United States, 251 U. S.
385 142,143
Simms v. Simms, 175 U. S.
162 545
Sinclair Refining Co. v. Atkinson,
370 "C. S. 195
240, 711, 712
Sinking-Fund Cases, 99 U.S.
700 408
Sioux Tribe v. United
States, 316 U.S. 317 414
Slavitt v. Meader, 278 F. 2d
276 631
Slick Airways v. American
Airlines, 107 F. Supp. 199 i07
Smith v. Allwright, 321 U.S.
649 457
Smith v. Ayer, 101 U.S. 320 634
Smith v. California, 361
U. S. 147 480,
492,493,497,525,664
Smith v. Ellerman Lines, 247
F. 2d 761 39
Smith v. Reimmer Oil Transport,
256 F. 2d 646 696
Smith v. Texas, 311 U. S.
128 389
Snow v. United States, 118 u. s. 346 363
Snyder v. }larks, 109 U. S.
189 8
Societe Internationale v.
Rogers, 357 U.S. 197 636
Soderman v. Stone Bar Associates,
208 :Misc. 864 15;{
South Dakota v. North Carolina,
192 U.S. 286 571
Southern Pacific Co. v. Jensen,
244 U. S. 205
117, 118, 120, 124. 126-
128, 133-135, 457
Southern Pacific Co. v. Kentucky,
222 U. S. 63 611,612
Southern S. S. Co. v. Labor
Board, 316 U. S. 31 17
Spalding & Bros. v. Federal
Trade Comm'n, 301 F. 2d
585 325,343
TABLE OF CASES CITED. XLV
Page
Spano v. Kew York, 360 u. s. 315 52, 63,145,400
Speiser v. Randall, 357 U. S.
513 504
Spokane & Inland E. R. Co.
Y. United States, 241 U.S.
344 35 36
Spring Co. v. Edgar, 99 U.S. '
645 35
Square D Co. v. Electrical
Workers, 123 F. Supp. 776 247
Stainback v. :\Io Hock Kl'
Lok Po, 336 U. S. 368
307,363
Stanard v. Olesen, 74 S. Ct.
768 498,512
Standard Oil Co. v. Moore,
251 F. 2d 188 699
Standard Oil Co. v. Peck,
342 U. S. 382
609-617,623,624
Standard Oil Co. v. United
States, 221 U. S. 1 710
Standard Oil Co. v. United
States, 337 U.S. 293 320,321,
324,330,338,341,372
Stark v. Wickard, 321 U. S.
288 88
State v. Great \Yorks '.\lilling
& l\,J fg. Co., 20 .Me. 41 417
State v. Lamb, 198 N. C.
423 657
State v. '.\Iorris & E. R. Co.,
23 N. J. L. 360 417
State v. Parsons, 12 Mo.
App. 205 418
State v. Patton, 26 N. C. 16 417
State Comm'n v. Nordenholt
Corp., 259 U. S. 263
119, 12:3, 129
State Tax Comm'n v. Aldrich,
316 U. S. 174 621
State Tax on Foreign-Hl'l<l
Bonds, 15 Wall. 300 620
Stebbins v. Riley, 268 U.S.
137 618
Steele v. Bulova Watch Co.,
344 U. S. 280 704, 707
Steelworkers v. American
l\ffg. Co., 363 U. S. 564 213,
216,226,241,261,263
Stef'lworkers v. Enterprise
Wheel Corp., 363 U.S. 593
213,216,226,244,267
Pnge
Steelworkers v. U n i t e d
States, 361 U.S. 39 563,574
Steelworkers v. Warrior &
Gulf Co., 363 U. S. 574
213, 216, 226, 241, 256,
261, 267
Stephens v. Cherokee Nation,
174 U. S. 445 547
Stockdale v. Insurance Co.,
20 Wall. 323 414
Story Parchment Co. v. Paterson
Parchment Paper
Co., 282 U. S. 555 697
Stouffer Estate v. Commissioner,
30 T. C. 1244 68
Stratton v. St. Louis S. W.
R. Co., 282 U.S. 10 715,716
Stromberg v. California, 283
U.S. 359 388
Sugar Institute v. United
States, 297 U. S. 553 335
Summerfield v. Sunshine
Book Co., 95 U. S. App.
D. ~- 169 498,504
Sunshme Book Co. v. Summerfield,
355 U. S. 372
490,496
Sunshine Book Co. v. Summerfield,
101 U. S. App
D. C. 358 498, 499
Swparingen v. UnitPd States,
161 U.S. 446 484 510
Swift & Co. v. Packinghouse'
Workers, 17i F. Supp.
511 247
Swift & Co. v. United States,
196 u. s. 375 329,707
Swift & Co. v. United States,
276 U.S. 311 310
Talbot v. Seeman, 1 Cranch
1 414
Tampa Electric Co. v. Nashville
Coal Co., 365 U. S.
320 330,331,372 3n
Tappan v. :\Ierchants' Nat.'
Bank, 19 Wall. 490 620
Taylor v. Board of Education,
288 F. 2d 600 360
Teamsters v. Lucas Flour
Co,369U.S.95 217,226,227,
241,245,246,262,537
Teamsters v. Yellow Transit
Lines, 282 F. 2d 345 199
XLVI TABLE OF CASES CITED.
Page
Tennant v. Peoria & P. U. R.
Co., 321 U.S. 29 696,701
Terminiello v. Chicago, 337
U. S. 1 666,679
Terry, Ex parte, 128 U. S.
289 237
Texas & Pacific R. Co. v.
Watson, 190 U. S. 287 35
Textile Workers v. Lincoln
Mills, 353 U. S. 448 212-
216, 219, 220, 224, 226,
241, 246, 249, 261, 263
Third Ave. Transit Corp.,
In re, 192 F 2d 971 199
Thomas v. Virginia, 364
U. S. 443 622
Thompson v. Foote, 199 Ark.
474 631
Thomsen v. Cayser, 243 U.S.
66 704
Thorn v. Worthing Skating
Rink Co., 6 Ch. D. 412 37
Thornhill v. Alabama, 310 u. s. 88 383,388, 391
Timken Roller Bearing Co.
v. United States, 341 U.S.
593 335
T. J. Hooper, The, 60 F. 2d
737 37
Toledo Newspaper Co. v.
United States, 247 U. S.
402 387,388
Toolson v. New York Yankees,
346 U. S. 356 457
Toth v. Quarles, 350 U. S.
11 596
Townsend v. State, 54 Ga.
App. 627 385
T rad e Commission. See
Federal Trade Comm'n.
Trailmobile Co. v. Whirls,
331 u. s. 40 408
Travelers Insurance Co. v.
Calbeck, 293 F. 2d 52 116
Travelers Insurance Co. v.
Gonzalez, 351 S. W. 2d
374 138
Treichler v. Wisconsin, 338
U.S. 251 622
Trotter v. Tennessee, 290
U. s. 354 160, 162
Truax v. Corrigan, 257 U. S.
312 386
Page
Tully, In re, 20 F. 812 657
Tumey v. Ohio, 273 U. S.
510 389
Turner v. Bank of North
America, 4 Dall. 8 551
Tutun v. United Stat.es, 270
U.S. 568
573,577,578,588,598
Union. For labor union,
see name of trade.
Union Refrigerator Transit
Co. v. Kentucky, 199 U.S.
194 612,616,621
Union Refrigerator Transit
Co. v. Lynch, 177 U. S.
149 613
United. For labor union, see
name of trade.
United Biscuit Co. v. Labor
Board, 128 F. 2d 771 246
United States, Ex parte, 226
U.S. 420 306
United States v. Alcea Band
of Tillamooks, 329 U. S.
40 566
United States v. Alire, 6
Wall. 573 557,569
United States v. Aluminum
Co., 148 F. 2d 416
316, 705, 709
United States v. Amedy, 11
\Vheat. 392 405
United States v. American-
Foreign S. S. Corp., 363
U.S. 685 535
United States v. American
R. Express Co., 265 U. S.
425 635
United States v. American
Tobacco Co., 221 U. S.
106 704
United States v. A. P. Woodson
Co., 198 F. Supp.
582 416
United States v. Atkinson,
297 u. s. 157 718
United States v. Atlantic
Comm'n Co., 45 F. Supp.
187 415
United States v. Ballin, 144
U.S. 1 575
United States v. Bennett, 24
Fed. Cas. 1093 484
TABLE OF CASES CITED. XLVII
Page
United States v. Bethlehem
Steel Corp., 168 F. Supp.
576 322, 324-326,
332, 336, 343, 345, 367
United States v. Borden Co.,
308 U.S. 188 30
United States v. Butler, 297 u. s. 1 91, 100, 101
United States v. California
Cooperative Canneries,
279 U. S. 553 305, 358
United States v. Carabasi,
292 F. 2d 362 658
United States v. Celanese
Corp., 91 F. Supp. 14 313
United States v. Central
Eureka Mining Co., 357
U.S. 155 566
United States v. Coe, 155
U. S. 76 545,547
United States v. Columbia
Pictures Corp., 189 F.
Supp. 153 337
United States v. Columbia
Steel Co., 334 U. S. 495
318,325,367
United States v. Diebold,
Inc., 369 U. S. 654 697
United States v. Dotterweich,
320 U.S. 277 409
United States v. Duell, 172 u. s. 576 576
United States v. E. I. du
Pont de Nemours & Co.,
351 U. S. 377 368
United States v. E. I. du
Pont de Nemours & Co.,
353 U. S. 586 310, 312,
313,318,324,325,333,
336, 343, 359, 368, 414
United States v. E. I. du
Pont de Nemours & Co.,
366 U.S. 316 310,359
United States v. Emholt, 105
U.S. 414 535
United States v. Engelhard-
Hanovia, Inc., 204 F.
Supp. 407 416
United States v. Fisher, 109 u. s. 143 534
United States v. Freeman,
3 How. 556 414
Pa~e
United States v. General
Motors Corp., 26 F. Supp.
353 415
United States v. General
Shoe Corp., 282 F. 2d 9 72
United States v. Greenhut,
50 F. 469 406
United States v. Hornick,
229 F. 2d 120 491
United States v. Hutcheson,
312 u. s. 219 203,541
United States v. Jeffers, 342
U.S. 48 143
United States v. Jerrold
Electronics Corp., 187 F.
Supp. 545 322,337,345
United States v. Jones, 119
U. S. 477 569
United States v. ,Jones, 131 u. s. 1 557
United States v. Klein, 13
Wall. 128 568,605
United States v. Limehouse,
285 u. s. 424 510
United States v. Louisiana,
123 U.S. 32 564
United States v. Lovett, 328
U.S. 303 601
United States v. MacAndrews
& Forbes Co., 149
F. 823 409, 410, 420
United States v. Marine
Engineers, 294 F. 2d 385 184
United States v. Maryland &
Virginia Milk Producers,
167 F. Supp. 799
307,329,337
United States v. Milk Distributors
Assn., 200 F.
Supp. 792 416
United States v. Mills, 7 Pet.
138 417
United States v. Mine
Workers, 330 U. S. 258 411
United States v. More, 3
Cranch 159 306,363
United States v. Morgan,
307 U.S. 183 99, 111- 113
United States v. Morgan,
313 U. S. 409 112
United States v. National
Lead Co., 63 F. Supp.
513 307,705
XLVIII TABLE OF CASES CITED.
Page
United States v. National
l\falleable & Steel Castings
Co., 6 F. 2d 40 415
United States v. Ness, 245
U.S. 319 577,578
United States v. North
American Van Lines, 202
F. Supp. 639 416
United States v. O'Grady,
22 Wall. 641 555,569
United States v. Osgood, 27
Fed. Cas. No. 15,971a,
~2 MS
United States v. Pacific &
Arctic R. & Nav. Co., 228 u. s. 87 704
United States v. Packard-
Bell Electronics Corp., Cr.
No. 30158, S. D. Cal. 417
United States v. Paramount
Pictures, 334 U. S. 131
310,335
United States v. Paramount
Pictures, 70 F. Supp. 53 307
United States v. Patterson,
55 F. 605 406
United States v. Pfitsch, 256
U.S. 547 565
United States v. Price, 361 u. s. 304 411
United States v. Reading
Co., 253 U. S. 26 310
United States v. Reading
Co., 226 F. 229 307
United States v. Realty Co.,
163 U. S. 427 567
United States v. Rock Royal
Co-operative, 307 U. S.
533 102,706
United States v. Schaefer
Brewing Co., 356 U. S.
227 306
United States v. Schillaci,
166 F. Supp. 303 491
United States v. Schine
Chain Theatres, 63 F.
Supp. 229 307
United States v. Seattle
Brewing & Malting Co.,
1 Ct. Cust. App. 362 559
United States v. Sherwood,
312 U. S. 584 565,572
Page
United States v. Shirey, 359
U.S. 255 408
United States v. Silk, 331 u. s. 704 3
United States v. Sisal Sales
Corp., 274 U. S. 268 704-706
United States v. Socony-
Vacuum Oil Co., 310 U.S.
150 415,710
United States v. Sorrentino,
175 F. 2d 721 634,644
United States v. South Buffalo
R. Co., 333 U.S. 771 543
United States v. South-Eastern
Underwriters Assn.,
322 U.S. 533 452
United States v. Stafoff, 260 u. s. 477 414
United States v. Swift & Co.,
286 U.S. 106 310
United States v. Terminal R.
Assn. of St. Louis, 224
U.S. 383, 236 U.S. 194 310
United States v. Texas, 143
U.S. 621 563
United States v. Three Cases
of Toys, 28 Fed. Cas. 112 501
United States v. Tillamooks,
329 U.S. 40 599
United States v. Timken
Roller Bearing Co., 83 F.
Supp. 284 307
United States v. Tommasello,
64 F. Supp. 467 658
United States v. Trenton
Potteries Co., 273 U. S.
392 335,415
United States v. Tucker
Truck Lines, 344 U. S.
33 307,363,499
United States v. Turley, 352
U.S. 407 411
United States v. Union Pacific
R. Co., 98 U.S. 569 555
United States v. United Shoe
Machinery Corp., 110 F.
Supp. 295 307, 709
United States v. U. S. District
Court, 334 U.S. 258 306
United States v. United
States Gypsum Co., 340
U.S. 76 359
United States v. Winslow,
195 F. 578 410,420
TABLE OF CASES CITED. XLIX
PnR"e
Fnited States v. Wise, 370
U.S. 405 719
U. S. ex rel. See name of
real party in interest.
United States Smelting Co.
v. Parry, 166 F. 407
Virginia, Ex parte, 100 r. S.
35
339 457
\'irginian R. Co. v. System
Fednation, 300 U.S. 515 217
Vulcan-Cincinnati, Inc., v.
Steelworkers, 28!) F. 2d
103 242,264
Wabash H. Co.v.~kD:mi<'ls
107 F. S. 454 ' 37
Walker v. Popcnoe, 80 U.S.
App. D. C. 129 516
Wallaee v. Adam~, 204 L. S.
415 547
Walling v. General Industries
Co., 330 l'. S. 545 f>35
Ward, Ex partr, 17:3 F. S.
452 589
Washington v. Dawson &
Co., 264 U. S 219 11~,
120,126--128,133, 134
Wwrns v. l'nitC'd States, 217 u. s. 349 718
Westrrn Boat Building Co.
v. O'Leary, Hl8 F. 2d 409 132
Western Fuel Co. v. Gareia,
2s7 r. s. 233 us, 133
West Virginia Bd. of Edueation
v. Barnette, 319
U.S. 624 445
Whipple v. Martinson, 256
F. s. 41 664
WhitfiPld v. Ohio, 297 F. S.
431 146,152
Whitney v. California, 274 u. s. 357 389 391
Wieman v. Updrgraff, 344'
l:. s. 183 43
\Viener v. United States, 357
l'. S. 349
Wilkerson v. lTtah, 99 F. S.
43
130 67f,
663026 0-62-4
Pai:~
Willenbroek v. Rogers, 255
F. 2d 236 942
Williams v. United States,
2S9 C. S. 553 531,534,542,
543,548--551, 558,561-
564, 583-586, 592, 597
Williams ,·. Zuckert, 369
C'. s. 884 44
Wilmington Star ;\lining Co.
\'. Fulton, 205 U. S. 60 39
Winans v. )l°ew York & E.
H. Co., 21 How. 88 37
Wisconsin Bankers v. Hobrrt,,:
on, 111 r. S. App.
D. C. b5 15;3
Wisconsin Liquor Co. v.
Park & Tilford Distillers
Corp., 267 F. 2d 928 697
W. L. Mead, Inc., v. Teamsters,
217 F. 2d 6 199,205
"'olf v. Colorado, 338 l1. S.
25 142
Womack v. United States,
111 U. S. App. D. C. 8
4[)4,528
Wong Yang Sung v. Me-
Grath, 339 U. S 33 411,516
Wood v. Georgia, 103 Ga.
App. 305 383,391,399,403
Wood v. Hoy, 266 F. 2d 825 43
Wri,1?ht v. l'nited States, 172
F. 2d 310 658
Wy1mdotte v. Corrigan, 35
Kan. 21 418
Yale & Towne Co. v. Machinists,
299 F. 2d 882
242,265
Yeager v. Fnite<l States, 59
App. D. C. 11 658
Zap v. United States 328
l'. S. 624 ' 142
Zielinski v. United States,
120 F. 2d 792 6.'H
Zinnel Y. P nited States Shipping
Board Corp., 10 F.
2d 47 37
Zorarh v. Clauson, 343 U. S.
306 442,450

TABLE OF STATUTES CITED
(A) STATUTES OF THE UNITED STATES.
Page
1789, Sept. 24, c. 20, §§ 3, 4,
1 Stat. 73 ......... 530
§22 ............ 294
1823, Mar. 3, c. 38, 3 Stat.
771 .............. 650
1831, Mar. 2, c. 99, 4 Stat.
487 .............. 230
1842, Aug. 30, c. 270, 5 Stat.
548 .............. 478
1855, Feb. 24, c. 122, §§ 1, 7,
IO Stat. 612. . . . . . . . 530
1863, j,far. 3, C. 92, §§ 3, 5,
7, 14, 12 Stat. 765 .. 530
1865, Mar. 3, c. 89, § 16, 13
Stat. 504 .......... 478
Mar. 3, c. 100, 13 Stat.
517 .............. 421
1866, Mar. 17, c. 19, § 1,
14 Stat. 9 ......... 530
1870, July 8, c. 230, § 50, 16
Stat. 198 .......... 530
1872, June 8, c. 335, 17 Stat.
283 .............. 478
1873, Feb. 12, c. 131, 17 Stat.
424 .............. 421
Mar. 3, c. 234, 17 Stat.
566 .............. 159
Mar. 3, c. 258, 17 Stat.
598 .............. 478
1875, Mar. 3, c. 149, 18 Stat.
481 .............. 530
1876, July 12, c. 186, 19 Stat.
90 ............... 478
1877, Mar. 3, c. 105, 19 Stat.
344 .............. 530
1886, Aug. 2, c. 840, 24 Stat.
209 . . . . . . . . . . . . . . 1
1887, Feb. 4, c. 104, § 1, 24
Stat. 379. . . . . . . . . . 607
Mar. 3, c. 359, §§ 1, 2,
24 Stat. 505. . . . . . . 530
1888, June 18, c. 394, 25
Stat. 187 .......... 478
Sept. 26, c. 1039, 25
Stat. 496 .......... 478
PugP
1890, June 10, c. 407, §§ 15,
29, 26 Stat. 131, as
amended . . . . . . . . . . 530
July 2, c. 647, 26 Stat.
209 ........... 76,294
§ 1 .......... 19,230,
405,460,690
§ 2 . . 19, 230, 460, 690
§8 ............. 405
1893, Mar. 2, c. 196, 27 Stat.
531 . . . . . . . . . . . . . . 31
1903, Feb. 11, c. 544, § 2,
32 S t a t. 823, as
amended ...... 294,460
1905, Mar. 3, c. 1501, 33
Stat. 1269 ......... 478
1906, June 29, c. 3592, § 15,
34 Stat. 596 ........ 530
1908, May 18, c. 173, 35
Stat. 164 .......... 421
1909, Mar. 4, c. 321, 35 Stat.
1088 ............. 478
Aug. 5, c. 6, § 28, 36
Stat. 11. . . . . . . . . . . 530
1910, Feb. 25, c. 62, § 1, 36
Stat. 202 .......... 530
June 18, c. 309, 36
Stat. 539. . . . . . . . . . 530
1912, June 19, c. 174, 37
Stat. 137. . . . . . . . . . 530
1913, Oct. 22, c. 32, 38 Stat.
208 .............. 530
1914, Oct. 15, c. 323, § 2, 38
Stat. 730. . . . . . . . . . 460
§ 3 ............. 294
§ 4 . .. .. . 19, 230, 690
§ 6 . . . . . . . . . . . . . 19
§7 ............. 294
§ 14 ............ 405
§ 15 ............ 294
§ 16 ............ 230
1915, l\far. 4, c. 144, 38 Stat.
1086 ............. 478
LI
LII TABLE OF STATUTES CITED.
Pn ge
1917, Oct. 6, c. 97, 40 Stat.
395 .............. 114
Oct. 6, c. 106, 40 Stat.
411 .............. 940
1920, June 5, c. 250, 41 Stat.
988 . . . . . . . . . . . . . . 31
1921 May 27, c. 14, 42 Stat.
' 9 ................ 530
1922 Feb. 18, c. 57, § 1, 42
' Stat. 388.......... 19
June 10, c. 216, 42
Stat. 634 .......... 114
Sept. 14, c. 306, § 5, 42
Stat. 837. . . . . . . . . . 530
Sept. 21, c. 356, § 305,
42 Stat. 858 ........ 478
§ 316 ........... 530
1924, June 7, c. 320, § 22,
43 Stat. 607. . . . . . . 159
1925, Feb. 13, c. 229, 43 Stat.
936 .............. 294
1926, May 20, c. 347, 44 Stat.
577 .............. 195
1927, Mar. 2, c. 273, § 11,
44 Stat. 1335. . . . . . 530
Mar. 4, c. 509, 44 Stat.
1424 ......... 165,451
§§ 2, 3, 5......... 114
1928, May 18, c. 624, 45
Stat. 602. . . . . . . . . . 530
1929, Mar. 2, c. 488, §§ 1, 2,
45 Stat. 1475 ....... 530
1930, June 17, c. 497, 46
Stat. 590 .......... 478
§§ 337, 646 ....... 530
July 1, c. 788, 46 Stat.
844 .............. 530
July 10, c. 882, 46 Stat.
1022 .. .. . .. . . . . . . 1
1931, Mar. 3, c. 436, 46 Stat.
1508 ............. 421
1932, Mar. 23, c. 90, 47 Stat.
70 ........... 254,530
§§ 2, 4, 6-8, 13 .... 195
June 30, c. 314, §§ 107,
109, 47 Stat. 382 . . .. 530
1933, May 12, c. 25, §§ 8a,
8c, 48 Stat. 31, as
amended .......... 76
May 27, c. 38, § 17, 48
Stat. 74 ........... 478
.Tune 13, c. 64, 48 Stat.
128 .............. 159
Page
1933, June 16, c. 90, 48 Stat.
195 . . . . . . . . . . . . . . 76
1935, July 5, c. 372, §§ 2, 7,
8, 49 Stat. 449 ... . 9, 173
§ 9 ............. 173
§ 10 .......... 9,195
§ 14 ............ 173
Aug. 12, c. 510, § 3, 49
Stat. 607.. .. .. . .. . 159
Aug. 24, c. 641, 49
Stat. 750. . . . . . . . . . 76
Aug. 27, c. 742, § 2,
49 Stat. 882. . . . . . . . 530
1936, June 19, c. 592, 49
Stat. 1526 ......... 460
1937, June 3, c. 296, 50 Stat.
246 . . . . . . . . . . . . . . 76
Aug. 21, c. 726, 50
Stat. 738.......... 1
1938, May 24, c. 266, §§ 1-4,
52 Stat. 438. . . . . . . 530
June 8, c. 327, 52 Stat.
631 .............. 478
June 25, c. 675, 52
Stat. 1040 ......... 405
1939, Aug. 9, c. 615, 53 Stat.
1275 ............. 478
1940, Aug. 22, c. 686, §§ 20,
24, 203, 205, 206, 54
Stat. 789 .......... 478
1942, Jan. 30, c. 26, § 204,
56 Stat. 23 ........ 530
June 22, c. 435, § 7,
56 St at. 377, as
amended .......... 421
1945, Mar. 9, c. 20, 59 Stat.
33 ............... 451
1946, July 5, c. 540, 60 Stat.
427 . .... . . .. . . ... 530
Aug. 2, c. 753, §§ 410,
412, 60 Stat. 812, as
amended .......... 530
Aug. 13, c. 959, 60
Stat. 1049 ......... 530
Aug. 14, c. 966, § 203,
60 Stat. 1082 ...... 650
1947, June 23, c. 120, 61
Stat. 136.......... 9
§ 101 ........... 195
§ 203 ........... 254
§ 208 ........... 195
§ 301 .......... 173,
195,238,254
§§ 302, 303. . . . . .. 195
TABLE OF STATUTES CITED. LIII
!'age
1948, Apr. 2, c. 168, 62 Stat.
110 .............. 65
June 25, c. 645, 62
Stat. 683 .......... 230
1949, May 24, c. 139, § 89,
63 Stat. 89. . . . .. . . 530
1950,Aug. 16, c. 721, 64
Stat. 451. . . . . . . . . . 478
Sept. 8, c. 932, § 408,
64 Stat. 798. . . . . . . . 530
Sept. 23, c. 1024, § 10,
64 Stat. 987 ....... 478
Dec. 29, c. 1184, 64
Stat. 1125. . . . . . .. . 294
1951, Oct. 19, c. 519, 65 Stat.
451 .............. 940
1952, Apr. 17, C. 216, 66
Stat. 64 ........... 421
June 27, c. 477, § 243,
66 Stat. 163 ........ 292
1953, July 28, c. 253, §§ 1, 8,
67 Stat. 226. . . . . . . . 530
1954, June 14, c. 297, 68
Stat. 249 .......... 421
Aug. 16, c. 736, § 7206,
68A Stat. 3. . . . . . . . 650
1955, June 28, c. 190, 69
Stat. 183 .......... 478
July 11, c. 303, 69 Stat.
2!)0 .............. 421
1956, July 14, c. 589, § 1, 70
Stat. 532 .......... 530
July 27, c. 748, § 1302,
70 Stat. 678 ........ 530
July 27, c. 755, 70 Stat.
699 .............. 478
July 30, c. 795, 70 Stat.
732 .............. 421
1957, May 23, Pub. L. 85-36,
§ 104, 71 Stat. 31 ... 478
1958, Aug. 25, Pub. L. 85-
755, § 1, 72 Stat.
848 .............. 530
Aug. 28, Pub. L. 85-
796, 72 Stat. 962 ... 478
1959, Sept. 14, Pub. L. 86-
257, 73 Stat. 519 ... 173
1960, July 14, Pub. L. 86-
673, 74 Stat. 553 ... 478
Sept. 2, Pub. L. 86-
682, 74 Stat. 578 ... 478
Sept. 13, Pub. L. 86-
770, §§ 1, 2, 74 Stat.
912 .............. 530
Page
1961, Aug. 10, Pub. L. 87-
130, 75 Stat. 320 ... 421
Revi,:ed Statutes.
§ 3011 ............... 530
§ 3517 ............... 421
§ 4747 ............... 159
§ 5261 ............... 530
U.S. Code.
Title 7,
§ 150cc .......... 478
§ 291 . . . . . . . . . . . . 19
§ 601 et seq....... 76
§ 1575 ........... 478
§ 1622 ........... 650
Title 10, §§ 3792, 3794.. 41
Title 12, § 1464. . . . . . . 159
Title 15,
§ l .......... 19,230,
294,405,690
§ 2 . . . 19, 230, 294, 690
§7 .............. 405
§ 13 ............. 460
§ 14 ............. 294
§ 15 . . . . . . 19, 230, 690
§ 17 . . . .. . . . . . . .. 19
§ 18 ............. 294
§ 24 . . ........... 405
§ 25 ............. 294
§ 26 ............. 230
§ 29 . . . . . . . . . 294, 460
§§ 77q, 80a-20, 80a-
24, 80b-3, 80b-5,
80b-6 ......... 478
§§ 1011, 1012 ...... 451
§ 1071 ........... 530
Title 18,
§ 2 ............. . 405
§ 401 ............ 230
§§ 495, 1001-1026 .. 650
§§ 1302, 1341, 1342,
1461, 1463 ...... 478
§ 1504 ........... 375
§§ 1715-1718 ...... 478
§§ 2314, 3231 ...... 650
§ 3731 ........... 405
Title 19, §§ 169, 1337,
1516 ............... 530
Title 21, §§ 301-392 .... 405
Title 22, § 618 ........ 478
Title 25, §§ 70s, 651-
657 ........ .. . .... 530
Title 26,
§§ 61, 162 ......... 269
§ 7206 ........... 650
LIV TABLE OF STATL"TES CITED.
Pnge
U. S. Code-Continued.
Title 26 (1952 ed.),
§§1426, 1607 ....... 1
Title 28,
§§171, 173, 211,
213, 251, 291-296,
1256 ........... 530
§ 1257 ....... 607,660
§§ 1291, 1292 ...... 294
§ 1331 ........... 530
§ 1341 . .. . .. .. .. . 1
§§ 1346, 1406 ...... 530
§ 1441 ........... 195
§§ 1491, 1492, 1494-
1497, 1499, 1500,
1503-1506, 1541-
1543 .......... 530
§ 1651 ........... 294
§ 2281 ........... 713
§ 2282 ........... 478
§ 2284 ........... 713
§§ 2403, 2503, 2509,
2510, 2512, 2513,
2517, 2518 ...... 530
Title 28 (Supp. III),
§ 1498 ............. 530
Title 29,
§§ 102, 104, 106, 108,
113 ............ 195
§ 151 et seq....... 9
§ 152 .......... 9,173
§ 157 .. . .. .. .. . .. 9
§158 .......... 9,173
§ 160 .......... 9, 1!15
§ 173 ............ 254
§ liS ........... 195
§ 185 ........ 195,238
§§ 186, 187 ........ 195
Title 29 (Supp. II),
§ 158 .............. 173
Titlr 31,
§ 227 ............ 530
§§ 324, 324a. . . . . . . 421
§ 724a ........... 530
Title 33, §§901-950. 114,165
Title 35, §§ 141, 144-146. 530
Title 36, §§ 170,172,185. 421
Title 38, § 3101. ...... 159
Title 39 (Supp. II),
§§ 4001, 4003, 4005-
4007, 4058. . .. . . .. .. 478
U. S. Code-Continued.
Title 40, § 324.. . .. .. . 530
Title 45,
§ 4 . . . . . . . . . . . . . . 31
§ 87 ............. 530
Title 46, § 68S. . . . . . . . . 31
Title 49, § 1. . . . . . . . . . 607
Title 50, § 789 ........ 478
Appendix, § 1 et
seq ............ 940
Agricultural Adjustment Act
of 1933................. 76
Agricultural Adjustment Act
of 1935..... . . . . . . . . . . . . 76
Agricultural Ma r k e t i n g
Agreement Act of 1937... 76
Capper-Volstead Act. . . . . . 19
Clayton Act.............. 19,
230,294,405,460,690
Comstock Act ............ 478
Criminal Code. . . . . . . . . . . . 478
Cu s toms Administrative
Act ................... 530
Defense Product10n Act of
1950 .................. 530
Expediting Act ........ 294,460
Federal Food, Drug, and
Cosmetic Act ........... 405
Federal Tort Claims Act ... 530
Home Owners' Loan Act ... 159
Immigration and Nationality
Act ................... 292
Internal Revenue Code of
1939, §§ 1410, 1426, 1600,
1607 . . . . . . . . . . . . . . . l
Internal Revenue Code of
Hl~4
§ 61 . . . . . 65. 26<l
§§ 71-74, 101-121, 162 .. 269
§§ 212, 1001, 1002, 1012. 65
§§ 3111, 3121, 3301, 3306. 1
§ 3401 ............... 269
§§ 6212, 6213, 7421.... . 1
§ 7805 ............... 269
Jones Act.... . . . . . . . . . . . . 31
Judiciary Act of 1789. . 294, 530
Judiciary Act of 1925 ...... 294
Labor Management Relations
Act.............. In
Labor-l\Iana11:ement Reporting
and Discloliure Act. . 173
TABLE OF STATUTES CITED. LV
Pnge
Legislative Appropriation
Act ................... 530
Longshoremen's and Harbor
Workers' Compensation
Act ........ 114,165,451
!Vlann-Elkins Act .......... 530
McCarran-Ferguson Act .... 451
National Industrial Recovery
Act................ 76
National Labor Relations
Act ............. 9, 173, 195
Naturalization Act. . . . . . . . 530
N orris-LaGuardia Act. . . . . 195,
254,530
Payne-Aldrich Tariff Act. . . 530
Pai:e
Railway Labor Act. . . . . . . . 195
Revenue Act of 1948...... 65
Robinson-Patman Act ...... 460
Safety Appliance Act... . . . 31
Sherman Act ........... 19, 76,
230,294,405,460,690
Taft-Hartley Act .. 195,238,254
Tariff Act of 1842 ......... 478
Tariff Act of 1922 ..... 478,530
Tariff Act of 1930 ..... 478,530
Tax Injunction Act........ 1
Trading with the Enemy
Act ................... 940
Tucker Act. . . . . . . . . . . . . . . 530
World War Veterans' Act .. 159
(B) CoKSTITUTIONS AND STATUTES OF THE STATES AN D DrsTHICT
OF COLUMBIA.
California.
Health & Safety Code,
§§ 1 1 3 9 1, 1 1 7 2 1,
11728 ............. 660
Penal Code,§§ 781, 784-
786, 788 ............ 660
Welfare & Institutions
Code, §§ 5350-5361. . 660
Deb ware.
Code Ann.,
Tit. 12, §§ 502, 901,
904, 905........ 65
Tit. 13, § 1531. . . . 65
Code Ann. (Supp. 1960),
Tit. 12, § 512....... 65
Distric:t of Columbia.
Cod<>, §§ 11-306, 21-308,
31-101 ............ 530
Code, 1961,
Georgia.
Tit. 11, C. 5 ...... 530
§ 22-2901 . . . . . . . . 530
§ 43-705 . . . . . . . . . 530
Code Ann., §§ 24-105,
24--2813, 34-1907, 34-
9907, 59-302 ........ 375
Louisiana.
Rev. Stat, 1950,
§ 14: 103.1 ......... 154
Compensation Act ..... 114
New York.
Const., 1894 .......... 190
New York-Continued.
Const., Art. V, § 4 .... 421
Correction Law, § 500-c. 139
Education Law, §§ 101,
120 et seq., 202, 214--
219, 224, 245 et seq.,
704, 801 et seq. . . . . . 421
27 McKinney's Consol.
Laws, § 213. . . . . . . . . 269
WcKinney's 1958 Session
Laws, p. 1837 ... 139
Penal Law,
Art. 73 ........... 139
§§ 381, 584, 1330,
2447 .. .. . .. . .. 139
Alcoholic Beverage Control
Law ........... 713
Compensation Act ..... 114
Workmen's Compensation
Act ........... 114
Pennsylvania.
Purdon's Stat. Ann.,
1949, Tit. 72, §§ 1871,
Hi~ti, 1901 .......... till7
Texas.
14 Vernon's Civ. Stat.,
1952 {Cum. Supp.
1961),Art.21.38,§2. 451
Virginia.
12 Hening, Statutes of
Virginia (1823), 84 .. 421
LVI TABLE OF STATUTES CITED.
(C) INTERNATIONAL AGREEMENTS.
1942, July 8 (Mutual Aid
Agreement brtween the
United States and the
Netherlands), 56 Stat.
Page
1945, April 30 (Mutual Aid
Agreement between the
United States and the
Netherlands), ,59 Stat.
Page
1554 .................. 940 1627 .................. 940
(D) FOREIGN STATUTES.
England.
13 & 14 Car. II, c. 4 ...
2 & 3 Edw. VI, c. 1. ..
3 & 4 Edw. VI, c. 10 .. .
5 & 6 Edw. VI, c. 1. .. .
1 Eliz., c. 2 .......... .
421
421
421
421
421
England-Continued.
3 & 4 Geo. 5, c. 27, § 1. .
1 Mary, c. 2 ......... .
24 & 25 Viet., c. 98, §24.
Forgery Act, 1861 .... .
Forgery Act, 1913 .... .
650
421
650
650
650
CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 1961.
ENOCHS, DISTRICT DIRECTOR OF INTERN AL
REVENUE, v. WILLIAMS PACKING &
NAVIGATION CO., INC.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT.
No. 493. Argued April 18, 1962.-Decided May 28, 1962.
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§ 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.
291 F. 2d 402, reversed.
Assistant Attorney General Oberdorfer argued the
cause for petitioner. With him on the briefs were Solicitor
General Cox, Acting Assistant Attorney General
Jones, Meyer Rothwacks and George F. Lynch.
1
2 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
George E. Morse argued the cause for respondent.
With him on the briefs was W. E. Morse.
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 § 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
§ § 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§ 7421 (a)
was not, in the "special and extraordinary facts and cirENOCHS
v. WILLIAMS PACKING CO. 3
Opinion of the Court.
cumstances" of that case,1 intended to apply.2 368 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 §§ 1426 (d)(2) and
1607 (i) of the Internal Revenue Code of 1939, 26
U. S. C. (1952 ed.), and §§ 3121 (d) (2) and 3306 (i) of
the Internal Revenue Code of 1954. These sections
specifically adopt the common-law test for ascertaining
the existence of the employer-employee relationship. As
stated in 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.3
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 cor-
1 284 U. S., at 511.
2 See also Hill v. Wallace, 259 U.S. 44, 62; Allen v. Regents, 304
u. s. 439, 449.
3 See § 1410, 1939 Code, and § 3111, 1954 Code (social security
taxes); § 1600, 1939 Code, and § 3301, 1954 Code (unemployment
taxes).
Presumably the exceptions for fishing operations created by
§§1426(b)(l5) and 1607 (c)(17) of the 1939 Code and by §3306
(c) (17) of the 1954 Code do not apply because the vessels here
involved were of more than 10 net tons.
4 OCTOBER TERM, 1961.
Opimon of the Court. 370 U.S.
poration 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.4 On the other hand, the District
Court here found, and the respondent now asserts, that
the corporation was wholly without any right of control.
4 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).
ENOCHS v. WILLIAMS PACKING CO. 5
1 Opinion of the Court.
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 § 7421 (a) is to withdraw jurisdiction
from the state and federal courts to entertain suits seeking
injunctions prohibiting the collection of federal taxes.
In MiUer 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
... [§ 7421 (a)] apply, if at all, with little force." 5
5 Id., at 510.
The product in issue was made only with vegetable oils. The
pertinent taxing statute defined "oleomargarine" as " [ a] II substances
heretofore known as oleomargarine, oleo, oleomargarine-oil, butterine,
lardine, suine, and neutral; all mixtures and compounds of oleomargarine,
oleo, oleomargarine-oil, butterine, la.rdine, 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
6 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
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 Com't held that an
injunction could properly issue. Id., at 510-511. The
courts below seem to have found that Nut Margarine
decides that§ 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. § 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 § 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 § 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 § 7421 (a) bars any suit for
an injunction in this case, we need not determine whether
reference to "vegetable-oil annot.to" 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.
ENOCHS v. WILLIAMS PACKING CO. 7
1 Opinion of the Court.
the taxpayer would suffer irreparable injury if co11ection
were effected.
The manifest purpose of § 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.6 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 nart of
the Government would unduly interfere with a collateral
6 Compare S. Rep. No. 1035, 75th Cong., 1st Sess. 2, concerning
28 U.S. C. § 1341:
"The existing practice of the Federal courts in entertaining taxinjunction
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."
8 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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.
MR. JusTICE FRANKFURTER took no part in the consideration
or decision of this case.
LABOR BD. v. WASHINGTON ALUMINUM CO. 9
Syllabus.
NATIONAL LABOR RELATIONS BOARD v.
WASHINGTON ALUMINUM CO.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT.
No. 464. Argued April 10, 1962.-Decided May 28, 1962.
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
§ 8 (a)(l) of the Act by interfering with their right under § 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 § 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 § 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§ 10 (c). Pp. 16-17.
291 F. 2d 869, reversed.
Dominick L. M anoli argued the cause for petitioner.
With him on the briefs were Solicitor General Cox, Stuart
Rothman, Norton J. Come and Samuel M. Singer.
Robert R. Bair argued the cause and fi1ed briefs for
respondent.
663026 O-62-,
10 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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.1 Because that decision raises important
questions affecting the proper administration of the
National Labor Relations Act,2 we granted certiorari.3
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 pro-
1 291 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.
249 Stat. 449, as amended, 61 Stat. 136, 29 U. S. C. § 151 et seq.
3 368 U. S. 924.
LABOR BD. v. WASHINGTON ALUMINUM CO. 11
g Opinion of the Court.
duced 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."•
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 "[i]f 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
• 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.
12 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
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." 5 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 § 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
5 The Trial Examiner expressly credited this testimony and the
Board expressly relied upon it. 126 N. L. R. B., at 1411.
LABOR BD. v. WASHING TON ALUMINUM CO. 13
9 Opinion of the Court.
bargaining or other mutual aid or protection," 6 and that
the discharge of these workers by the company amounted
to an unfair labor practice under § 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." 7 Acting under the authority of § 10 (c)
of the Act, which provides that wh·en 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," 8 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 § 7 of the Act.9 On this basis, they
6 49 Stat. 452, as amended, 61 Stat. 140, 29 U.S. C. § 157. Section
7 in full is as follows: "Employees shall have the right to self-organization,
to form, ioin, 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) ."
7 49 Stat. 452, as amended, 61 Stat. 140, 29 U.S. C. § 158 (a)(l).
8 49 Stat. 453-454, as amended, 61 Stat. 146-147, 29 U. S. C.
§160(c).
9 291 F. 2d, at 877.
14 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
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 § 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." 10
We cannot agree that employees necessarily lose their
right to engage in concerted activities under § 7 merely
because they do not present a specific demand upon their
employer to remedy a condition they find objectionable.
The language of § 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 § 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
10 "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. § 160 (c).
LABOR BD. v. WASHING TON ALUMINUM CO. 15
!} Opinion of the Court.
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§ 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 § 2 (9) of the Act, which
declares that it includes "any controversy concerning
terms, tenure or conditions of employment .... " 11 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
11 49 Stat. 450, as amended, 61 Stat. 137-138, 29 U.S. C. § 152 (9).
(Emphasis supplied.)
16 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
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.12 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 obviousthat
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
12 "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." Labor Board v. Mackay Radio &
Telegraph Co., 304 U. S. 333, 344.
LABOR BD. v. WASHING TON ALUMINUM CO. 17
9 Opinion of the Court.
on the part of an employer.13 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
§ 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 § 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 ,vithin the normal categories of unprotected
concerted activities such as those that are unlawful,14
violent 15 or in breach of con tract.10 Nor can they be
brought under this Court's more recent pronouncement
which denied the protection of § 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.11 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 civmzed society like ours.
13 See, e. g., Labor Board v. Jones & Laughlin Steel Corp., 301 u. s. 1, 45.
14 Southern Steamship Co. v. Labor Board, 316 U. S. 31.
15 Labor Board v. Fansteel Metallurgical Corp., 306 U. S. 240.
16 Labor Board v. Sands Manufacturing Co., 306 U.S. 332.
17 Labor Board v. Local Union No. 1229, International Brotherhood
of Electrical Workers, 346 U. S. 464, 477.
18 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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.
MR. JusTICE FRANKFURTER and MR. JusTICE WHITE
took no part in the consideration or decision of this case.
SUNKIST v. WINCKLER & SMITH CO. 19
Syllabus.
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.
No. 241. Argued March 21-22, 1962.-Decided May 28, 1962.
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 § 4 of the
Clayton Act, claiming that they had conspired with the other
processing cooperative and two privately owned processing corporations
to restrain a.nd monopolize interstate trade in citrus fruit
and by-products and had actually monopolized the same, in violation
of §§ 1 and 2 of the Sherman Act. Held: In view of the
exemption from the antitrust laws accorded to agricultural cooperatives
by§ 6 of the Clayton Act and § 1 of the Capper-Volstead
Act, 7 U. S. C. § 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 § 6 of the Clayton Act and § 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
§§ 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.
284 F. 2d 1, reversed and cause remanded.
20 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
Herman F. Selvin argued the cause for petitioners.
With him on the briefs was Ross C. Fisher.
William C. Dixon argued the cause for respondents.
With him on the briefs was Holmes Baldridge.
MR. JuSTICE CLARK delivered the opinion of the Court.
This is a treble damage suit brought under § 4 of the
Clayton Act. 38 Stat. 731, 15 U.S. C. § 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 § § 1 and 2 of the Sherman Act,
26 Stat. 209, 15 U. S. C. §§ 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 § 6 of the Clayton
Act, 38 Stat. 731, 15 U. S. C. § 17, and § 1 of the Capper-
Volstead Act, 42 Stat. 388, 7 U.S. C. § 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
SUNKIST v. WINCKLER & SMITH CO. 21
19 Opinion of the Court.
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 1 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.
1 These include juices, concentrates, oil, pectin, pharmaceuticals,
and cattle feed.
22 OCTOBER TERM, 1961.
Opinion of the Court. 370U.S.
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.2 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.3 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
2 Some by-product fruit is sold to or processed by independent
processors.
3 Sunkist also sold by-product oranges to additional companies
for processing into by-products other than canned orange juice.
SUNKIST v. WINCKLER & SMITH CO. 23
19 Opinion of the Court.
alleged to have been $25.10 per ton.4 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.5 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 processand-
purchase arrangements described above.
Respondents brought this suit on the theory that Sunkist
and Exchange Orange controlled the supply of byproduct
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 Ex-
• The soluble solids content of the oranges processed by TreeSweet
under this contract averaged 131-6 pounds per ton.
5 The soluble solids content of these oranges averaged 120 pounds
per ton.
24 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
change 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 Prod19
SUNKIST v. WINCKLER & SMITH CO. 25
Opinion of the Court.
ucts], 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 cbnspiracy
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." At the outset
6 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.
663026 0-62-6
26 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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 Silzle as coconspira
tors. 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 thesti 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
SUNKIST v. WINCKLER & SMITH CO. 27
19 Opinion of the Court.
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,t:JOO
growers-can be considered in de pendent parties for the
purposes of the conspiracy provisions of § § 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.7
7 "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."
28 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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 .... ""
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.9 Although we cannot
draw from these references a knowing approval of the
8 The Act has certain organizational requisites which are not in
issue here.
9 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).
SUNKIST v. WINCKLER & SMITH CO. 29
19 Opinion of the Court.
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 lemongrower
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
30 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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), "[!]ts 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.
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.
SALEM v. UNITED STATES LINES CO. 31
Opinion of the Court.
SALEM v. UNITED STATES LINES CO.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT.
No. 283. Argued March 19, 1962.-Decided May 28, 1962.
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.
293 F. 2d 121, affirmed in part and reversed in part.
Robert Klonsky argued the cause for petitioner. With
him on the briefs was Philip F. Di Costanzo.
Walter X. Connor argued the cause and filed briefs for
respondent.
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 1 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
1 41 Stat. 1007, 46 U. S. C. § 688.
32 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
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 anq its approach as "purposely constructed
SALEM v. UNITED STATES LINES CO. 33
31 Opinion of the Court.
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 !edging 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 aroued 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.
34 OCTOBER TERM, 1961.
Opinion of the Court. 370U.S.
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." 2 293 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
2 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 ten-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.
SALEM v. UNITED ST ATES LINES CO. 35
31 Opinion of the Court.
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.3 If the holding is that claims which
might be said to touch upon naval architecture can never
succeed ,vithout 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), §§ 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,
3 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.
36 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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.' 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 c~mmon 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 351.5
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
4 27 Stat. 531, 45 U. S. C. § 4.
5 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.
31
SALEM v. UNITED STATES LINES CO. 37
Opinion of the Court.
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) .6
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
6 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. M~sissippi 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).
38 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370 u. s.
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: " ... [A]mounts [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.
\Ve affirm as respect.s 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.
lt is so ordered.
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) (emphasis added), 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.
SALEM v. UNITED STATES LINES CO. 39
31 Opinion of HARLAN, J.
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. (Emphasis
added.) 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. Pennsylvani,a 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
40 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370 U.S.
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.
BEARD v. STAHR.
Per Curiam.
BEARD v. STAHR, SECRETARY OF THE
ARMY, ET AL.
41
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA.
No. 648. Decided May 28, 1962.
After administrative proceedings by an Army Board of Inquiry and
a Board of Review under 10 U.S. C. (Supp. II) §§ 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 § 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.
Reported below: 200 F. Supp. 766.
Frederick Bernays Wiener for appellant.
Solicitor General Cox, Assistant Attorney General
Orrick and John G. Laughlin, Jr. for appellees.
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.
§ 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
663026 0-62-7
42 OCTOBER TERM, 1961.
DouGLAS, J., dissenting. 370U.S.
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 considemtion
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.
§ 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
BEARD v. STAHR. 43
41 DouGLAS, J., dissenting.
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.
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
Cafeter-ia 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 of ten 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
*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.
44 OCTOBER TERM, 1961.
DouGLAS, J., dissenting. 370 U.S.
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 tha.t 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
BEARD v. STAHR. 45
41 DouGLAS, J., dissenting.
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.
46 OCTOBER TERM, 1961.
Per Curiam. 370U.S.
WATKINS v. CITY OF WILSON ET AL.
APPEAL FROM THE SUPREME COURT OF NORTH CAROLINA.
No. 789. Decided May 28, 1962.
Appeal dismissed and certiorari denied.
Reported below: 255 N. C. 510, 121 S. E. 2d 861.
Romallus 0. Murphy and Samuel S. Mitchell for
appellant.
John F. Doyle for appellees.
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.
FASS v. NEW JERSEY.
370U.S. Per Curiam.
FASS v. NEW JERSEY.
APPEAL FROM THE SUPREME COURT OF NEW JERSEY.
No. 824. Decided May 28, 1962.
Appeal dismissed and certiorari denied.
Reported below: 36 N. J. 102, 175 A. 2d 193.
Joseph L. Freiman for appellant.
47
Arthur J. Sills, Attorney General of Xew Jersey, Theodore
I. Botter, Assistant Attorney General, and Herman
D. Ringle for appellee.
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.
48 OCTOBER TERM, 1961.
Per Curiam. 370 U.S.
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.
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.
Petitioners pro se.
Solicitor General Cox, Assistant Attorney Gener.al Marshall,
Harold H. Greene and Howard A. Glickstein for
respondents.
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.
GALLEGOS v. COLORADO.
Opinion of the Court.
GALLEGOS v. COLORADO.
CERTIORARI TO THE SUPREME COURT OF COLORADO.
No. 475. Argued April 9, 1962.-Decided June 4, 1962.
49
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 juveniir
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 bern
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 pt>titioner's
conviction may have rested was obtained in violation of
due process, and the judgment sustaining his conviction is reversed.
Pp. 49-55.
145 Colo. 53, 358 P. 2d 1028, reversed.
Charles S. Vigil argued the cause and filed briefs for
petitioner.
J. F. Brauer, Jr., Assistant Attorney General of Colorado,
argued the cause for respondent. With him on the
brief were Duke W. Dunbar, Attorney General, and Frank
E. Hickey, Deputy Attorney General.
MR. JusTICE DouGLAS delivered the opm10n 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,
50 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
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 Januuary
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 Cou.rt 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,
GALLEGOS v. COLORADO. 51
49 Opinion of the Court.
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 selfincrimination
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
52 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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 proceedmgs.
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.
(Italics added.)
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
GALLEGOS v. COLORADO. 53
49 Opinion of the Court.
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
54 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
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-yearold
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
GALLEGOS v. COLORADO. 55
49 CLARK, J., dissenting.
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, "[i]f 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
56 OCTOBER TERM, 1961.
CLARK, J., dissenting. 370 U.S.
by 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,'
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
'At this time Smith was still alive. He died on January 26, and
the murder prosecution here at issue followed.
GALLEGOS v. COLORADO. 57
49 CLARK, J., dissenting.
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,2
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 . . . . [U] pon seeing an
old man, who was later identified as Robert F. Smith,
he followed him to a hotel on 18th street ....
[H]e ... 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
2 These notes were signed by petitioner.
663026 0-62-8
58 OCTOBER TERM, 1961.
CLARK, J., dissenting. 370 u. s.
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. . . . [A] t 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. . . . [T]hey 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 testiGALLEGOS
v. COLORADO. 59
49 CLARK, J., dissenting.
mony 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 boy!> 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
60 OCTOBER TERM, 1961.
CLARK, J., dissenting. 370U.S.
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 .... " 3 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
Cuiombe v. Connecticut, 367 U. S. 568, 577-602 (1961)
(opinion of MR. JUSTICE FRANKFURTER).
3 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 HaJI pending a hearing is in keeping with advanced procedures
being followed with reference to juvenile offenders throughout
the United States.
GALLEGOS v. COLORADO. 61
49 CLARK, J., dissenting.
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, hut 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.4 And she was not prevented
from seeing him but was merely asked to comply
with reasonable visiting regulations. She was informed on
t\\'O 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
4 Indeed, no attorney was obtained for petitioner's trial in the
juvenile court.
62 OCTOBER TERM, 1961.
CLARK, J., dissenting. 370 U.S.
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 J usGALLEGOS
v. COLORADO. 63
49 CLARK, J., dissenting.
tice 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.
64 OCTOBER TERM, 1961.
CLARK, J., dissenting. 370U.S.
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.
UNITED STATES v. DAVIS. 65
Syllabus.
UNITED STATES v. PAVIS ET AL.
CERTIORARI TO THE COURT OF CLAIMS.
No. 190. Argued March 28, 1962.-Decided .June 4, 1962.*
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 werP
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
§ 212 (3) of the Internal Revenue Code of 1954. Pp. 74--75.
152 Ct. Cl. 805, 287 F. 2d 168, affirmed in part and reversed in part.
I. Henry Kutz and Harold C. Wilkenfeld argued the
cause for the United States in both cases. With them on
the briefs were Solicitor General Cox, Assistant Attorney
General Oberdorfer, Wayne G. Barnett, Meyer Rothwacks
and Arthur I. Gould.
Converse Murdoch argued the cause and filed briefs
for the respondents in No. 190 and petitioners in No. 268.
*Together with No. 268, Davis et al. v. United States, also on
certiorari to the same Court.
66 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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 1 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.2 368 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.3 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
1 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.
2 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).
3 12 Del. Code Ann. (Supp. 1960) § 512; 13 Del. Code Ann. § 1531.
In the case of realty, the wife in addition to the above has rights of
dower. 12 Del. Code Ann. §§ 502, 901, 904, 905.
UNITED STATES v. DAVIS. 67
65 Opinion of the Court.
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. Commisswner,
68 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
9 T. C. 53 (1947); Patino v. Commi,ssioner, 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. Commi,ssioner 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 essentia11y 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 ... [g] ains derived from
dealings in property,"• 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
4 Internal Revenue Code of 1954 § 61 (a).
UNITED STATES v. DAVIS. 69
65 Opinion of the Court.
statutory language, which provides that gains from dealings
in property are to be taxed upon "~ale or other
disposition," 5 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,6 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
5 Internal Revenue Code of 1954 §§ 1001, 1002.
6 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 thr
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).
70 OCTOBER TERM, 1961.
Opinion of the Court. 370U. S.
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. § 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 tb.e 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
UNITED STATES v. DAVIS. 71
65 Opinion of the Court.
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 ambiguous 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
72 OCTOBER TERM, 1961.
Opinion of the Court. 370U.S.
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) § 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) § 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
arc presumed to be equal." Accord, United States v.
General Shoe Corp., 282 F. 2d 9 (C. A. 6th Cir. 1960);
International Freighting Corp. v. Commi,ssioner, 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
UNITED STATES v. DAVIS. 73
65 Opinion of the Court.
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,
7 all indicia point to a "cost" basis for this property
in the hands of the wife. 8 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, Commi.ssioner 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
7 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).
8 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). . . "
663026 0-62-9
74 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
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.9
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 § 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. Cer-
9 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.
UNITED STATES v. DAVIS. 75
65 Opinion of the Court.
tainly 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.
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.
76 OCTOBER TERM, 1961.
Syllabus. 3i0 U.S.
LEHIGH VALLEY COOPERATIVE FARMERR,
I~C., ET AL. v. UNITED STATES ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT.
No. 79. Argued January 17-18, 1962.-Decidrd June 4, 1962.
Under § 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 includrd in the
orders a provision in effect requiring those who buy milk el8ewherc
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 § 8c (5) (G) of the Act, which, as 8hown
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.
287 F. 2d 726, reversed.
Willis F. Daniels argued the cause for petitioners.
With him on the briefs was Donn L. Snyder.
Alan S. Rosenthal argued the cause for the United
States and the Secretary of Agriculture. With him on
the briefs were Solicitor General Cox, Assistant Attorney
General Orrick, Neil Brooks and Pauline B. Heller.
Briefs of amici curiae, urging affirmance, were filed by
Frederic P. Lee, John A. Cardon, Leslie H. Deming,
Frederick U. Conard, Jr., Thomas 0. Berryhill, George M.
St. Peter and Reuben Hall for the Dairymen's League
Cooperative Assn., Inc., et al.; Louis J. Lefkowitz, Attorney
General of New York, Paxton Blair, Solicitor General,
and Robert G. Blabey for the State of New York;
Thomas Debevoise, Attorney General of Vermont, Albert
LEHIGH VALLEY COOP. v. UNITED STATES. 77
76 Opinion of the Court.
L. Coles, Attorney General of Connecticut, and Reuben
Hall for the States of Vermont and Connecticut; and
David D. Furman, Attorney General of New Jersey, and
William L. Boyan, Deputy Attorney General, for Floyd
R. Hoffman, Director of the Office of Milk Industry of
New Jersey.
Briefs urging reversal were filed by Walter F. Mondale,
Attorney General, and Sydney Berde, Deputy Attorney
General, for the State of Minnesota, as amicus curiae.
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 § 8c of the Agricultural Marketing
Agreement Act of 1937, 7 U. S. C. § 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,1 conflicted with an earlier
1 The petitioners instituted this action challenging the validity of
the compensatory payment provision by filing administrative petitions
with the Secretary of Agriculture pursuant to § 8c (15) (A) of
the Agricultural Marketing Agreement Act of 1937, 7 U. S. C.
§ 608c (15) (A). The Hearing Examiner sustained the petitioners'
78 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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
§§ 1002.l et seq.,2 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
§ 8c (5)(A),3 the Order classifies milk that is sold within
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 § 8c (15) (B) of the Act. The review proceedings
were consolidated with enforcement actions brought by the Government
pursuant to § 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.
2 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 § 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.
3 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
section shall contain one or more of the following terms and condiLEHIGH
VALLEY COOP. v. UNITED STATES. 79
76 Opinion of the Court.
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 § 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
tions, 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. § 608c (5)(A).
80 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
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 §§ 1002.25-1002.29 •-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 § 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 non pool 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 § 1002.66.
4 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."
LEHIGH VALLEY COOP. v. UNITED STATES. 81
76 Opinion of the Court.
Adjustments among handlers are made by way of a
"Producer Settlement Fund," into which each handler
contributes the excess of his "use value" 5 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.6
But it is quite obvious that under certain circumstances
some regulation of such milk may be necessary. Accord-
5 "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.
6 See 7 CFR §§ 1034 (Dayton-Springfield), 1037 (North Central
Ohio), 1038 (Rockford-Freeport), 1074 (Southwest Kansas).
82 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
ingly, § 8c (7)(D) of the Act, 7 U.S. C. § 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.1
Of the 68 regional milk orders which establish marketwide
pools,8 64 contain "compensatory payment" provi-
7 The payment provision of 7 CFR § 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.
8 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
LEHIGH VALLEY COOP. v. UNITED STATES. 83
76 Opinion of the Court.
sions of one kind or another. The Order now before us
is typical of 23 of these orders.9 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
se1Ier 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
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 §§ 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).
9 Compare 7 CFR §§ 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).
84 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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 nonpool
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 8448.10
10 "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
LEHIGH VALLEY COOP. v. UNITED STATES. 85
76 Opinion of the Court.
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
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 nonpool
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 rnspective 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 ,vhat 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 th(>
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 pric'='
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 UI
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
86 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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 1957.11
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
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."
11 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.
LEHIGH VALLEY COOP. v. UNITED STATES. 87
76 Opinion of the Court.
barriers" as in the instance just given,12 on the nonpool
milk.13
It is in considering the effect of the present compensatory
payment provision on the pool producers, however,
12 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.
13 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 §§ 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 §§ 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 (Nash ville), 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 §§ 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-De88
OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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
cember), 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, s1Lpra.
LEHIGH VALLEY COOP. v. UNITED STATES. 89
76 Opinion of the Court.
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.14 In effect, therefore, the nonpool milk is
HA 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
663026 0 - 62-10
90 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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
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 § 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 § 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.
LEHIGH VALLEY COOP. v. UNITED STATES. 91
76 Opinion of the Court.
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).
Section 8c (5)(G) of the Act, however, taken in light
of i~s 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
92 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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 § Sc (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. 9462.15 An amendment to the bill clarifying
this position was then offered by Representative
15 "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 . .TONES. 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.
"i\fr. 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 _'.)rogram 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." (Emphasis added.)
LEHIGH VALLEY COOP. v. UNITED STATES. 93
76 Opinion of the Court.
Sauthoff of Wisconsin, 79 Cong. Rec. 9493,16 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
§ Sc (S)(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 sha11
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 "[i] t 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.17 Ibid.
16 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."
17 "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
94 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
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
authority to fix a minimum price to producers. That, at least in a
mea,mre, 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."
LEHIGH VALLEY COOP. v. UNITED STATES. 95
76 Opinion of the Court.
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." (Emphasis added.) 18
In the Senate § 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." 19
Section Sc ( 5) ( G) emerged from conference in its present
form. The 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 pro-
1
• The "3-month period" provision here referred to is the present
§ 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.
19 "Subsection (d)" is § 8c (5) (D). See note 18, supra.
96 OCTOBER TER:\1, 1961.
Opinion of the Court. 370 U.S.
visions 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
§ 8c (5)(G), when taken together with § 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 applies 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.
":\Ir. 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 bi1l 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
LEHIGH VALLEY COOP. v. UNITED STATES. 97
76 Opinion of the Court.
all regulations and requirements of that area. For
the first 2 months he would be required to take
the manufacturer's price." (Emphasis added.)
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,
§ 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. \Vhenever 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 § 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
p A YMENT PROVISION.
In light of the legislative history of § 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
98 OCTOBER TERM, 1961.
Opinion of the Court. 370U.S.
that section.20 Because it conflicts with§ Sc (5)(G), the
payment provision cannot be justified under the general
terms of § Sc (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 nonpool
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§ 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§ 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
20 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§ 8c (5) (A) precluded,
in themselves, the promulgation of the present compensatory payment
provision.
LEHIGH VALLEY COOP. v. UNITED ST ATES. 99
76 Opinion of the Court.
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. Industri,a,l
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.
100 OCTOBER TERM, 1961.
BLACK, J., dissenting. 370U.S.
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\1R. 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
opm10n. In 1936, in United States v. Butler,1 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.2
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
1 297 u. s. 1.
2 50 Stat. 246, 7 U. S. C. § 601 et seq.
LEHIGH VALLEY COOP. v. UNITED STATES. 101
76 BLACK, J., dissenting.
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 3 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
a 49 Stat. 750.
102 OCTOBER TERM, 1961.
BLACK, J., dissenting. 370 u. s.
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." 4
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.5
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.6 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 rnarket.7 The 1937 reenactment
went beyond even this, however, and gave the Secretary
power to fix prices above this parity level in order to
4 48 Stat. 31.
5 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.
6 50 Stat. 246, as amended, 7 U. S. C. § 608c.
' 49 Stat. 750.
LEHIGH VALLEY COOP. v. UNITED ST ATES. 103
76 BLACK, J., dissenting.
insure that dairy farmers in particular would receive a
high enough price for their products.8 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.• 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.10 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 prob-
8 50 Stat. 247, 7 U.S. C. § 608c (18).
9 49 Stat. 757, 7 U.S. C. §608c (7)(D).
1° Congress specifically provided in § Sc (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. § 608c (11) (C).
See also § Sc (11) (A). 49 Stat. 759, 7 U.S. C. § 60Sc (11) (A).
104 OCTOBER TERM, 1961.
BLACK, J., dissenting. 370U. S.
lems 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 wheR 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 § 8c (5)(G) of the Act because it
limits the ability of outside handlers to se11 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 § 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 comLEHIGH
VALLEY COOP. v. UNITED STATES. 105
76 BLACK, J., dissenting.
petition 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." 11
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 fr.ee 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.12
Outside the language of§ Sc (5) (G) itself the clearest
indication that this is the proper interpretation of the leg-
11 49 Stat. 755, 7 U. S. C. § 608c (5) (G). (Emphasis supplied.)
12 See Bailey Farm Dairy Co. v. Anderson, 15i F. 2d 87, 96; Kass
v. Brannan, 196 F. 2d 791,800 (L. Hand, J., dissenting).
663026 0-62-11
106 OCTOBER TERM, 1961.
BLACK, J., dissenting. 370 u. s.
islative 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.13 The
arguments of the Chairman of the House Committee on
Agriculture, one of the principal architects of the program,
13 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 § 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 [ § 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 1_Jrice fixing, price adjustment, payments for milk,
etc." (Emphasis supplied.)
LEHIGH VALLEY COOP. v. UNITED STATES. 107
76 BLACK, J., dissenting.
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 § Sc ( 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." u
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
"79 Cong. Rec. 9572. (Emphasis supplied.)
108 OCTOBER TERM, 1961.
BLACK, J., dissenting. 370 u. s.
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 fiuid 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." 1 5
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 § 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
15 79 Cong. Rec. 13022. (Emphasis supplied.)
LEHIGH VALLEY COOP. v. UNITED STATES. 109
76 BLACK, J., dissenting.
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,16 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 § 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.11
16 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 at
least part of the year. See note 13 of the Court's opinion.
17 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 evf'n 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:
"[T]he 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, 0f course, results in a competitive advantage in milk procurement
to the outside handler as against the regulated handler and
llO OCTOBER TERM, 1961.
BLACK, J., dissenting. 370U.S.
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
outside and regulated handlers draw on the same production area for
supplies. Furthermore, the regulated handler has to equalize 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 suggests, 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 lvlovement of Fluid Milk Under Federal Milk Marketing
Orders, 37 U. Det. L. J. 525, 573-576, particularly at note 220.
LEHIGH VALLEY COOP. v. UNITED STATES. 111
76 BLACK, J., dissenting.
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,18 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
18 307 U. S. 183. Cf. Inland Steel Co. v. United States, 306 U. S.
153.
112 OCTOBER TERM, 1961.
BLACK, J ., dissenting. 370 u. s.
until such time as the Secretary, proceeding with due
expedition, shall have entered a final order in the
proceedings pending before him." 19
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
20 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,21 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 section 22 as the one under which the handlers
made the compensatory payments of which they com-
19 307 U.S., at 198.
20 313 U. S. 409.
21 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 m 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.
22 7 CFR § 1002.29 (d).
LEHIGH VALLEY COOP. v. UNITED STATES. 113
76 BLACK, J., dissenting.
plain. 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 nonpool
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.23 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.
23 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.
114 OCTOBER TERM, 1961.
Syllabus. 370U.S.
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.
No. 532. Argued April 23, 1962.-Decided June 4, 1962.*
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 § 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.
293 F. 2d 51, 52, reversed.
Solicitor General Cox argued the cause for petitioners.
With him on the briefs were Assistant Attorney General
Orr·ick, Bruce J. Terris, Morton Hollander and David L.
Rose.
Louis V. Nelson argued the cause for Travelers Insurance
Co. et al., respondents. With him on the briefs was
Ewell Strong.
Charles Kohlmeyer, Jr. argued the cause and filed a
brief for Avondale Shipyards, Inc., respondent.
Briefs of amici curiae, urging reversal, were filed by
Raymond H. Kierr and Samuel C. Gainsburgh for Minus
Aizen, and by Herman Wright for McGuyer's widow and
children.
*Together with Donovan, Deputy Commissioner, v. Avondale
Shipyards, Inc.
CALBECK v. TRAVELERS INSURANCE CO. 115
114 Opinion of the Court.
MR. JUSTICE BRENNAN delivered the opinion of the
Court.
Section 3 (a) of the Longshoremen's and Harbor
Workers' Compensation 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." 1 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.2
1 The Act, 44 Stat. 1424, as amended, is comprised in 33 U. S. C.
§§ 901-950. Section 3 (a), 33 U.S. C. § 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."
2 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 construe116
OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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.3 The court
below interpreted § 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§ 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 § 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 injurieseven
though incurred on navigable waters and so within
tion 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.
3 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.
CALBECK v. TRAVELERS INSURANCE CO. 117
114 Opinion of the Court.
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 § 3 (a) in particular, contravenes it; and our
decisions construing § 3 (a) have rejected it. Our conclusion
is that Congress invoked its constitutional power
so as to provide compensation for a11 injuries sustained
by employees on navigable waters 4 whether or not a particular
injury might also have been within th_e 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, constitutiona1ly,
be applied to an injury sustained on a gangplank between
a vessel and a wharf.5 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
• Our use of the term "employees" throughout this opinion excludes
those special categories described in subsections (1) and (2) of§ 3 (a),
see note 1, supra; and assumes that they are employed by an "employer"
as defined in § 2 (4), 33 U. S. C. § 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)."
5 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.
118 OCTOBER TERM, 1961.
Opinion of the Court. 370U. S.
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.
CALBECK v. TRAVELERS INSURANCE CO. 119
114 Opinion of the Court.
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.6 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.7
Thus, the problem which confronted Congress in 1927
had two facets. One was that the failure of Congress'
6 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.
7 See, e. g., State Commission v. Nordenholt Corp., 259 U. S. 263;
Millers' Indemnity Underwriters v. Braud, 270 U.S. 59.
120 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
attempts to shelter the employees under state compensation
laws rendered it certain that for many maritime
injuries no compensation remedy wa.s 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.8 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 9
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
8 See 1 Larson, The Law of Workmen's Compensation,§§ 4.10-5.30.
9 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.
CALBECK v. TRAVELERS INSURANCE CO. 121
114 Opinion of the Court.
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,10 without leav-
10 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
663026 0-62-12
122 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
ing 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 § 3 of S. 3170 in its original form was
under discussion at the Senate Hearings. That version
of § 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."· (Emphasis supplied.) 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.'1 The danger was
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 Bess., 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."
11 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?
[Footnote 11 continued on p. 123]
CALBECK v. TRAVELERS INSURANCE CO. 123
114 Opinion of the Court.
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 § 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
"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 law:;: 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.
124 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
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 § 3 to omit
both the original "local concern" language and the Senate
sul:stitute.12 A parliamentary obstacle on an unrelated
issue led to the House Committee's finally accepting the
Senate version.la
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
12 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."
13 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§ 3 again
the Committee adopted the Senate version. See id., 5403-5404, 5410,
5412, explaining that the effect was to exclude seamen from coverage.
CALBECK v. TRAVELERS INSURANCE CO. 125
114 Opinion of the Court.
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
126 OCTOBER TERM, 1961.
Opinion of the Court. 370U.S.
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." Congress brought under the coverage of the
14 The Committee reports, note 10, supra, make no reference to
the "local concern" doctrine or the cases applying it. They explain
CALBECK v. TRAVELERS INSURANCE CO. 127
114 Opinion of the Court.
Act all such injuries whether or not a particular one was
also within the constitutional reach of a state workmen's
compensation law.15
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
the problem in terms of the limitations on the availability of state
remedies imposed by the Court's decisions in Jensen, Knickerbocker,
and Dawson.
15 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.
128 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
statute" in the light of § 3 (a). 314 U. S., at 248. The
Court held that § 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 § 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
CALBECK v. TRAVELERS INSURANCE CO. 129
114 Opinion of the Court.
to whether the situation might be "maritime but local"
plainly implies a rejection of any reading of § 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 § 3 (a)'s requirement that it
occur "upon ... navigable waters," defined in § 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 ,vas 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
130 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
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 aH 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
CALBECK v. TRAVELERS INSURANCE CO. 131
114 Opinion of the Court.
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
132 OCTOBER TERM, 1961.
STEWART, J., dissenting. 370 u. s.
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 409.16
The judgments of the Court of Appeals are reversed
and the judgments of the District Courts are affirmed.
It is so ordered.
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. §§ 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. § 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. § 903 (a) could ever be ignored in
the name of effectuating the supposed "Congressional
desire." Be that as it may, this particular statutory Ian-
16 Section 5 of the Longshoremen's Act, 33 U. S. C. § 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.
CALBECK v. TRAVELERS INSURANCE CO. 133
ll4 STEWART, J., dissenting.
guage 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 \Vorkers' 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.
Garcw, 257 U. S. 233, provided the basis for holding that
a state compensation act could be applied to a worker
134 OCTOBER TERM, 1961.
STEWART, J., dissenting. 370 u. s.
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. 469.1
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 Washing ton 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, unfortu-
1 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.
CALBECK v. TRAVELERS INSURANCE CO. 135
114 STEWART, J., dissenting.
nately, 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.
2 Several witnesses pointed out that the statute
applied to but two categories of workers, longshoremen
and those involved in ship repair,3 the classes of employees
denied relief under state compensation acts by the Jensen
case and the decisions which followed it.•
2 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.
3 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.
4 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
136 OCTOBER TERM, 1961.
STEWART, J., dissenting. 370 U.S.
The meaning of 33 U. S. C. § 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."
And the administrators of the Act have so held, specifically
with respect to new ship construction.6
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 § 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
"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."
5 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.
0 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.
CALBECK v. TRAVELERS INSURANCE CO. 137
114 STEWART, J., dissenting.
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:
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 Iswnd
7 To achieve the result reached in Davis after today's decision
would require the Court to ignore still another provision of the
Federal Act-§ 905-which makes federal compensation the exclusive
remedy when the Federal Act is clearly applicable.
663026 0-62-13
138 OCTOBER TERM, 1961.
STEWART, J., dissenting. 370 U. 8.
Sand & Gravel Co., 358 U. S. 272. Today the Court
simply removes these "terms" from the Act.8
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 twHight zone. The Federal Act is thus by its
terms inapplicable.
I would affirm.
8 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 § 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.
LANZA v. NEW YORK. 139
Opinion of the Court.
LANZA v. NEW YORK.
CERTIORARI TO THE COURT OF APPEALS OF NEW YORK.
No. 236. Argued April 2, 1962.-Decided June 4, 1962.
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.
9 N. Y. 2d 895, 175 N. E. 2d 833, affirmed.
Leo Pfeffer and Jacob D. Fuchsberg argued the cause
and filed briefs for petitioner.
H. Richard Uvil"ler argued the cause for respondent.
With him on the briefs was Frank S. Hogan.
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
140 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
Commission, under rather unusual circumstances.1 This
prompted a committee of the New York Legislature to
hold an investigation of possible corruption in the state
parole system.2
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,3 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.4 His conviction was affirmed
on review by the New York courts.5 We granted certio-
1 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.
2 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."
3 New York Penal Law §§ 381, 584, 2447.
4 New York Penal Law§ 1330: "A person who being present before
either house of the legislature or any committee thereof authorized to
summon witnesses, wilfully 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."
5 The Appellate Division modified the judgment by directing that
the terms imposed on the 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
LANZA v. NEW YORK. 141
139 Opinion of the Court.
rari, 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
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.
142 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
that New York therefore denied him due process of law
by convicting him for refusing to answer the committee's
questions.6
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. Co"lorado, 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. This Court through the
years has not taken a literal or mechanical approach to
the question of what may constitute a search or seizure.7
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
6 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 questio~ 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."
7 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; McGinni,s v. United States, 227 F. 2d 598.
LANZA v. NEW YORK. 143
139 Opinion of the Court.
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,8 and so may be a store.9
A hotel room, in the eyes of the Fourth Amendment, may
become a person's "house," 10 and so, of course, may an
apartment.11 An automobile may not be unreasonably
searched.12 Neither may an occupied taxicab.13 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.14 Though it may be assumed that even
s Silverthorne Lumber Co. v. United States, 251 U.S. 385; Gouled
v. United States, 255 U. S. 298.
9 Amos v. United States, 255 U.S. 313; Davis v. United States, 328 u. s. 582.
10 Lustig v. United States, 338 U.S. 74; United States v. Jeffers,
342 u. s. 48.
11 Jones v. United States, 362 U.S. 257.
12 Gambino v. United Sta~es, 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.
13 Rios v. United States, 364 U. S. 253.
14 N. Y. Correction Law § 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.
[Footnote 14 continued on p. 144]
144 OCTOBER TERM, 1961.
Opinion of the Court. 370U.S.
in a jail, or perhaps especially there, the relationships
which the law has endowed with particularized confidentiality
must continue to receive unceasing protection,15
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,16
"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."
15 Cf. Lanza v. N. Y. S. Joint Legi_$. 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.
16 See Jones v. United States, 362 U.S. 257.
LANZA v. NEW YORK. 145
139 Opinion of the Court.
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 t\vo 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,
146 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
1957, about releasing his brother on parole.11 He was
asked to describe the efforts he had made to assist in
obtaining his brother's release.18 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.19 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.20 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.21 The committee knew that the petitioner had
been one of the three visitors the brother had had during
17 "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."
18 "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."
19 "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."
20 See note 5.
21 See note 1.
LANZA v. NEW YORK. 147
139 Opinion of WARREN, C. J.
his stay in jail.22 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.
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 "lib~rty"
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
22 The others were the brother's wife and his lawyer.
148 OCTOBER TERM, 1961.
Opinion of WARREN, C. J. 370 U.S.
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. Jus-
TICE 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 offiLANZA
v. NEW YORK. 149
139 Opinion of WARREN, C. J.
cials 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," Peop"le 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
150 OCTOBER TERM, 1961.
Opinion of BRENNAN, J. 370U.S.
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
LANZA v. NEW YORK. 151
139 Opinion of BRENNAN, J.
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.1 Since this Court is thus
able to see that the judgment of the court below-which
is unelucidated by any opinion-is maintainable on an
1 See People v. Faden, 271 N. Y. 435, 3 N. E. 2d 584; People v.
Cummim, 209 N. Y. 283, 103 N. E. 169; Hope v. People, 83 N. Y.
418; People v. Davi$, 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.
152 OCTOBER TERM, 1961.
Opinion of BRENNAN, J. 370 u. s.
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.2 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
count is good, and sufficient in itself to support the
judgment." Whitfield 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.
2 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]."
LANZA v. NEW YORK. 153
139 Opinion of BRENNAN, J.
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; 3 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.
3 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.
663026 0-62-14
154 OCTOBER TERM, 1961.
Per Curiam. 370U.S.
TAYLOR ET AL. v. LOUISIANA.
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME
COURT OF LOUISIANA.
No. 773. Decided June 4, 1962.
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.
Reversed.
Carl Rachlin and Judith P. Vladeck for petitioners.
Jack P. F. Gremillion, Attorney General of Louisiana,
and M. E. Culligan, Assistant Attorney General, for
respondent.
PER CURIAM.
Petitioners, six Negroes, were convicted of violating
Louisiana's breach-of-the-peace statute, La. Rev. Stat.,
1950, § 14:103.1,1 and were given fines and jail terms by
1 In relevant part, § 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: (I) crowds or congregates
with others . . . in or upon . . . any . . . public place or
TAYLOR v. LOUISIANA. 155
154 Per Curiam.
the state court. The Louisiana Supreme Court declined
t.o 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 t.old 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
t.o 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
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."
156 OCTOBER TERM, 1961.
Per Curiam. 370 u. s.
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.2 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.
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.
2 "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.
DECISIONS PER CURIAM.
370U.S. June 4, 1962.
CREEK NATION v. UNITED STATES.
CERTIORARI TO THE COURT OF CLAIMS.
No. 124. Argued April 24, 1962.-Decided June 4, 1962 .
.Judgment affirmed by an equally divided Court.
Reported below: 152 Ct. CL 747.
157
Paul M. Niebell argued the cause and filed briefs for
petitioner.
Ralph A. Barney argued the cause for the United States.
With him on the briefs were Solicitor General Cox,
Richard J. Medalie, Roger P. Marquis and Hugh Nugent.
PER CURIAM.
The judgment is affirmed by an equally divided Court.
Ma. JusTICE FRANKFURTER took no part in the consideration
or decision of this case.
HOLDEN V. PIONEER BROADCASTING CO. ET AL.
APPEAL FROM THE SUPREME COURT OF OREGON.
No. 1092, Misc. Decided June 4, 1962.
Appeal dismissed and certiorari denied.
Reported below: 228 Ore. 405, 365 P. 2d 845.
Dale A. Rader and Robert F. Maguire for appellant.
Clarence J. Young for appellees.
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.
Ma. JusTICE FRANKFURTER took no part in the consideration
or decision of this case.
158 OCTOBER TERM, 1961.
Per Curiam. 370U.S.
JEFFERSON LAKE SULPHUR CO. v.
NEW JERSEY.
APPEAL FROM THE SUPREME COURT OF NEW JERSEY.
No. 861. Decided June 4, 1962.
Appeal dismissed and certiorari denied.
Reported below: 36 N. J. 577, 178 A. 2d 329.
Eberhard P. Deutsch, Rene H. Himel, Jr. and Arthur
C. Dwyer for appellant.
Arthur J. Sills, Attorney General of New Jersey, Theodore
I. Batter, First Assistant Attorney General, and
Charles J. Kehoe, Deputy Attorney General, for appellee.
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.
PORTER v. AETNA CASUALTY CO. 159
Opinion of the Court.
PORTER v. AETNA CASUALTY &
SURETY CO.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT.
No. 604. Argued April 25, 1962.-Decided June 11, 1962.
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. § 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.
111 U. S. App. D. C. 267, 296 F. 2d 389, reversed.
Ethelbert B. Frey argued the cause and filed a brief for
petitioner.
John L. Laskey argued the cause for respondent. With
him on the brief was Richard Whittington Whitlock.
John G. Laughlin, Jr. argued the cause for the United
States, as amicus curiae, urging reversal. With him on
the brief were Solicitor General Cox, Assistant Attorney
General Orrick and Herbert E. Morris.
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. § 3101 (a) 1 after being
1 "(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
160 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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.2 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
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."
2 Act of Mar. 3, 1873, R. S. § 4747 (1878); World War Veterans'
Act of 1924, c. 320, § 22, 43 Stat. 607, 613; Act of Aug. 12, 1935, c.
510, § 3, 49 Stat. 607, 609.
PORTER v. AETNA CASUALTY CO. 161
159 Opinion of the Court.
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." 3 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 appehrs 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 imme-
3 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.
162 OCTOBER TERM, 1961.
Opinion of DOUGLAS, J. 370U. S.
diate 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.
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
PORTER v. AETNA CASUALTY CO. 163
159 Opinion of DouGLAS, J.
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. § 1464 (a). (Italics added.) Its capital 1 is in
"shares" ( 12 U.S. C. § 1464 (b)) such as are involved here.
1 "Capital" means "the aggregate of the payments on savings
accounts," plus earnings, less deductions. See 12 CFR § 541.3. "Savings
account," such as we have here, is "the monetary interest of the
holder" in the "capital" of the association. Id., § 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 § 545.2 (b).
164 OCTOBER TER~I, 1961.
Opinion of DouGLAS, J. 370 U.S.
The holders of savings accounts who apply for a withdrawal
of funds do not thereby become "creditors." 2
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 overthe-
counter. The true test seems to me to be liquiditythat
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.
2 "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 § 544.l (a) par. 6.
MORALES v. CITY OF GALVESTON. 165
Syllabus.
MORALES ET AL. v. CITY OF GALVESTON ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT.
No. 480. Argued April 23-24, 1962.-Decided June 11, 1962.
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.
291 F. 2d 97, affirmed.
Arthur J. Mandell argued the cause and filed a brief for
petitioners.
Preston Shirley argued the cause and filed briefs for the
City of Galveston. Edward W. Watson argued the cause
for the Cardigan Shipping Co., Ltd., respondent. On the
briefs with Mr. Watson was Clarence S. Eastham.
166 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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 threequarters
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.1 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
1 Petitioners of course received compensation and medical treatment
under the Longshoremen's and Harbor Workers' Compensation Act,
33 U.S. C. § 901 et seq. 181 F. Supp., at 207.
MORALES v. CITY OF GALVESTON. 167
165 Opinion of the Court.
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.2 Even a cursory examination of
2 "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 carrful
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.
168 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
the lengthy record shows that these findings were based
upon substantial evidence. They were re-examined and
affirmed on appeal.3 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!
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." 5 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
3 "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 deary 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.
4 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. 8. 85; Pope & Talbot, Inc., v. Hawn, 346 U.S. 406.
5 362 U. 8., at 540-541, n. 2.
MORALES v. CITY OF GALVESTON. 169
165 Opinion of the Court.
reasonable care is used under the circumstances
incident to the correction of the newly arisen defect." "
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
6 265 F. 2d 426, 432.
663026 0-62-1'
170 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
"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." 1 The court found that the
fumes in the present case came from "chloropicrin, an
insecticide which had never been used by the respondent
city." 8 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.9
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
7 181 F. Supp., at 205.
8 Ibid.
9 ". • • 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.
MORALES v. CITY OF GALVESTON. 171
165 DouGLAs, J., dissenting.
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.
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
172 OCTOBER TERM, 1961.
DouGLAs, J ., dissenting. 370 u. s.
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 l0'7o 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.
MARINE ENGINEERS v. INTERLAKE CO. 173
Syllabus.
MARINE ENGINEERS BENEFICIAL ASSOCIATION
ET AL. v. INTERLAKE
STEAMSHIP co. ET AL.
CERTIORARI TO THE SUPREME COURT OF MINNESOTA.
No. 166. Argued April 16, 1962.-Decided June 11, 1962.
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 § 8 (b) of the National Labor Relations
Act, as amended, if the petitioner unions were "labor organizations"
within the contemplation of § 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, 3/i9 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 § 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
§ 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.
260 Minn. 1, 108 N. W. 2d 627, reversed.
174 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
Lee Pressman argued the cause for petitioners. With
him on the briefs was Richard H. Markowitz.
Raymond T. Jackson argued the cause for respondents.
With him on the briefs was James P. Garner.
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.1 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 § 8 (b)
of the Labor Management Relations Act, 29 U. S. C.
§ 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
1 "At times it has not been clear whether the particular activity
regulated by the States was governed by § 7 or § 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.
MARINE ENGINEERS v. INTERLAKE CO. 175
173 Opinion of the Court.
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.2
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. Loe. 101
AFL-CIO." and "M. E. B. A. Loe. 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.
2 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."
176 OCTOBER TERM, 1961.
Opinion of the Court. 370U. S.
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.3
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 § 7 or prohibited by
§ 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 § 8 ( b) ( 4 )(A) of the
Act and thus within the primary jurisdiction of the Board,
if MEBA and Local 101 were "labor organizations"
3 Potential NLRB jurisdiction under § 8 (b) is the only basis
upon which the petitioners have claimed preemption of state court
jurisdiction. See note 4, infra.
MARINE ENGINEERS v. INTERLAKE CO. 177
173 Opinion of the Court.
within the contemplation of § 8 (b) generally.4 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.
It 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
4 On November 12, 1959, the day the picketing began, § 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.
§ 158 (b)(4) (A).
Shortly thereafter the amendments made by the Labor-Management
Reporting and Disclosure Act became effective, and § 8 (b) (4) (A)
became § 8 (b) ( 4) (B), 29 U. S. C. (Supp. II) § 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.
178 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
only whether the evidence in this case was sufficient
to show that either of them was arguably a "labor
organization" within the contemplation of § 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 §§ 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 § 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 fot' 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.
§ 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 § 2 (3) of the Act, "[t]he
term 'employee' . . . shall not include . . . any individual
employed as a supervisor .... " 29 U. S. C.
§ 152 (3).5 "Supervisor" is defined in turn by § 2 (11)
of the Act to mean:
" ... any individual having authority, in the interest
of the employer, to hire, transfer, suspend, lay off,
• The decision of Congress to forego regulation of labor relations
between employers and their supervisory personnel was the product
MARINE ENGINEERS v. INTERLAKE CO. 179
173 Opinion of the Court.
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.
§ 152 (11).
The statutory definition of the term "supervisor" has
been the subject of considerable litigation before the
NLRB and in the federal courts.6 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 naof
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.
6 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
deciEions 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.
180 OCTOBER TERM, 1961.
Opinion of the Court. 370 U. 8.
tional or even local unions may represent both "employees"
and "supervisors." 1 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? 8 What percentage or
degree of employee participation in the relevant unit is
required? 9 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 § 8 (b)
as an agent of some other organization which is? 10
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. § 158 (a) (2). Section 8 (a) (3)
makes it an unfair labor practice for an employer, by certain
discriminatory conduct, "to encourage or discourage
membership in any labor organization .... " 29 U. S. C.
§ 158 (a) ( 3). Section 9 ( c), dealing with the largely
1 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.
8 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.
9 See, e. g., International Organization of Masters, Mates & Pilots
v. Labor Board, 48 L. R. R. M. 2624 (C. A. D. C. Cir. 1960).
1° 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.
MARINE ENGINEERS v. INTERLAKE CO. 181
173 Opinion of the Court.
unreviewable area of representation elections,11 refers
repeatedly to both "employees" and "labor organizations."
The policy considerations underlying these and other sections
of the Act, and the relationship of a particular definitional
approach under § 8 (b) to the meaning of the
same term in the various sections, must obviously be taken
into account if the statute is to operate as a coherent
whole.12 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.13 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.14
11 See Leedom v. Kyne, 358 U.S. 184.
12 Cf. International Brotherhood of Teamsters (Di Giorgio Wine
Co.), 87 N. L. R. B., at 741.
13 Cf. Globe Steamship Co. (Great Lakes Engineers Brotherhood),
85 N. L. R. B., at 478, 480.
14 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."
182 OCTOBER TERM, 1961.
Opinion of the Court. 370U.S.
For these reasons we conclude that the task of determining
what is a "labor organization" in the context of
§ 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 § 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.15 It was also shown that MEBA
had steadfastly maintained in proceedings before the
NLRB that it was not a labor organization subject to
§ 8 (b) of the Act.16 However, the petitioners introduced
into the record two recent Board decisions, one holding
15 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§ 9 (c) election petition.
10 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 § 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 § 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.
MARINE ENGINEERS v. INTERLAKE CO. 183
173 Opinion of the Court.
that MEBA was subject to § 8 (b) and was guilty of an
unfair labor practice for engaging in an activity similar
to that involved in this case,11 and the other holding that
marine engineers represented by a branch of Local 101
were "employees" for the purpose of a § 9 ( c) election.18
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.'9 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 § 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 § 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.20
17 National Maritime Union (Standard Oil Co.), supra, n. 4.
18 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.
19 National Marine Engineers Beneficial Assn. v. Labor Board,
supra, n. 8.
20 Schauf!ler 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.
184 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
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 § 8 (b) of the Act.
In the absence of a showing that this position had been
authoritatively rejected by the courts,21 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.22
21 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§ 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
§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.
22 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 § 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 Be.neficial
Assn. v. Labor Board, 274 F. 2d, at 173, enforcing 121 N. L. R. B.
208; International Organization of Masters, Mates & Pilots (Chicago
MARINE ENGI~EERS v. INTERLAKE CO. 185
173 DouGLAS, J., dissenting.
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.
23 "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.
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.1
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).
23 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. Schauf!ler \',
Local 101, Marine Engineers Ben. Assn., supra, n. 20. See also other
cases cited, n. 20, supra.
1 "I can state most categorically that licensed marine engineers who
comprise the entire members of 1\-IEBA, without a single exception in
the nature of their work, have authority in the interests of the em-
663026 0-62-16
186 OCTOBER TERM, 1961.
DOUGLAS, J., dissenting. 370 U.S.
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.2 A union of masters and mates
ployer 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."
2 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 exerMARINE
ENGINEERS v. INTERLAKE CO. 187
173 DouGLAS, J., dissenting.
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.
Section 2 ( 5) defines "labor organization" as any organization
"in which employees participate" for the purpose
"of dealing with employers concerning grievances," etc.
The word "employee" was redefined by Congress 3
following our decision in Packard Co. v. Labor Board,
330 U. S. 485, so as to exclude "any individual employed
as a supervisor." § 2 (3). And § 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."
cise 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."
3 See H. R. Rep. No. 245, 80th Cong., 1st Sess., p. 23; S. Rep. No.
105, 80th Cong., 1st Sess., p. 28.
188 OCTOBER TERM, 1961.
DOUGLAS, J., dissenting. 370 U.S.
There is not a shred of evidence in this record showing
that any employee not a superv-isor 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.4
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 § 8 (b) (2)
or § 8 (b) ( 4), which makes certain practices, alleged to
have taken place here, unfair labor practices. For § 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.
4 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 Schauffier 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.
MARINE ENGINEERS v. INTERLAKE CO. 189
173 DouGLAS, J., dissenting.
It matters not that at other times this local or MEBA
may have been a "labor organization" for purposes of the
Federal Act.5 Apparently an engineer may at times be
only an ordinary employee.6 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.
5 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.
6 See National, Marine Engineers Ben. Assn. v. Labor Board, 274 F.
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."
190 OCTOBER TERM, 1961.
Per Curiam. 370U. S.
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.
No. 836. Decided June 11, 1962.
A three-judge Federal District Court dismissed a complaint under
the Civil Rights Act and 28 U. S. C. § 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.
Reported below: 202 F. Supp. 741.
Leonard B. Sand and Max Gross for appellants.
Louis J. Lefkowitz, Attorney General of New York,
Irving Galt, Assistant Solicitor General, George C. Mantzoros
and Gretchen W. Oberman, Assistant Attorneys
General, Sheldon Raab, Deputy Assistant Attorney General,
Leo A. Larkin, Benjamin Offner, Bertram Harnett
and Francis J. Morgan for appellees.
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
W. M. C. A., INC., v. SIMON. 191
190 HARLAN, J., dissenting.
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
192 OCTOBER TERM, 1961.
HARLAN, J., dissenting. 370U.S.
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
j usticiability, 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 "[t]here 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. (Emphasis added.)
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 conW.
M. C. A., INC., v. SIMON. 193
190 HARLAN, J., dissenting.
clusions 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. (Emphasis added.)
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 Amendent. The latter
ground was precisely the issue that was avoided in Baker
194 OCTOBER TERM, 1961.
H.~RLAN, J., dissenting. 370 U.S.
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.
SINCLAIR REFINING CO. v. ATKINSON. 195
Syllabus.
SINCLAIR REFINING CO. v. ATKINSON ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT.
No. 434. Argued April 18, 1962.-Decided June 18, 1962.
This suit under § 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 § 4 of the
Norris-La.Guardia 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 § 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 § 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 Navigati.on 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.
290 F. 2d 312, affirmed.
196 OCTOBER TERM, 1961.
Opinion of the Court. 370U.S.
George B. Christensen argued the cause for petitioner.
With him on the briefs were Fred H. Daugherty and
Richard W. A us tin.
Gilbert A. Cornfield argued the cause for respondents.
With him on the briefs were Gilbert Feldman and William
E. Rentfro.
MR. JusTICE BLACK delivered the opinion of the Court.
The question this case presents is whether § 301 of the
Taft-Hartley Act, in giving federal courts jurisdiction of
suits between employers and unions for breach of collective
bargaining agreements,1 impliedly repealed § 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." 2
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 "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. § 104.
SINCLAIR REFINING CO. v. ATKINSON. 197
195 Opinion of the Court.
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 al1eged: 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 . . . [f] or 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 ccntract" 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,
198 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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." 3
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.• 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 § 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."
5 The Court of Appeals for the Seventh Circuit
affirmed the order of dismissal for the same reasons.6
Because this decision presented a conflict with the deci-
3 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.
• 187 F. Supp. 225.
5 Id., at 228.
6 290 F. 2d 312.
SINCLAIR REFINING CO. v. ATKINSON. 199
195 Opinion of the Court.
sion on this same important question by the Court of
Appeals for the Tenth Circuit,7 we granted certiorari.8
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." 9 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.10
7 Chauffeurs, Team.~ters &: Helpers Local No. ?'95 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, 21i 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. Y. Seafarers' International Union. 250 F. 2d 326.
8 368 u. s. 937.
0 47 Stat. 73, 29 U. S. C. § 113.
10 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
200 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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 § 2 of that Act, which
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 ¾ 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 Department 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%, 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."
SINCLAIR REFINING CO. v. ATKINSON. 201
195 Opinion of the Court.
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." 11 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 co1Iective 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,12 rests more upon considerations of what many
11 "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 orgamze
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 selforganization
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. § 102.
12 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 collec-
663026 0-62-17
202 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
commentators think would be the more desirable industrial
and labor policy in view of their understanding as to
the prevailing circumstances of contemporary labormanagement
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 § 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 .13
tive 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 § 13 labor disputes and § 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 Marg.
L. Rev. 233.
13 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."
SINCLAIR REFINING CO. v. ATKINSON. 203
195 Opinion of the Court.
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.14
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 § 4 (a) of the Norris-LaGuardia Act, to the
proscription of injunctions against peaceful picketing contained
in § 4 (e) and to the proscription of injunctions
prohibiting the advising of such activities contained in
§ 4 (i).15 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 § 301 of the Taft-Hartley Act that
it no longer prohibits even the injunctions specifically
described in § 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 § 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.16
14 United States v. Hutcheson, 312 U. S. 219, 234, and cases cited
therein.
15 See note 2, supra.
16 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
204 OCTOBER TERM, 1961.
Opinion of the Court. 370U.S.
The language of § 301 itself seems to us almost if not
entirely conclusive of this question. It is especially significant
that the section contains no language that could
by any stretch of 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.17 If Congress had intended that
§ 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 § 101, amending § 10 (h) of the
National Labor Relations Act, and§ 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 Gensufficient
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.
11 Section 301 ( e) of the Act, 61 Stat. 156, 29 U. S. C. § 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 § 301 the previously controlling
provisions of § 6 of the Norris-LaGuardia Act, 47 Stat. 71,
29 U.S. C. § 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."
SINCLAIR REFINING CO. v. ATKINSON. 205
195 Opinion of the Court.
eral,18 and in § 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.19 Thus the failure of Congress
to include a provision in § 301 expressly repealing
the anti-injunction provisions of the N orris-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
§ 301 into its legislative history, whatever small doubts
as to the congressional purpose could have survived consideration
of the bare language of the section should be
wholly dissipated. For the legislative history of § 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 deliberately chose not to do so.2° The
18 61 Stat. 146, 155, as amended, 29 U.S. C. §§ 160 (h), 178 (b).
19 61 Stat. 157, 29 U. S. C. § 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
§ 186 makes the conduct so enjoinable a crime punishable by both fine
and imprisonment.
20 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 T-V. 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
206 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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.21 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.22 Instead it
made breach of a collective agreement an unfair labor
practice.23 Under the Senate version, therefore, a breach
decided to leave the anti-injunction provisions of that Act applicable
to § 301 suits. See Rice, A Paradox of our National Labor Law, 34
Marq. L. Rev. 233, 235.
21 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.
22 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.
23 I Leg. Hist. 111-112, 114, 239, 241-242.
SINCLAIR REFINING CO. v. ATKINSON. 207
195 Opinion of the Court.
of a collective bargaining agreement, like any unfair labor
practice, could have been enjoined by a suit brought by
the National Labor Relations Board,24 but no provision of
the Senate version would have permitted the issuance of
an injunction in a labor dispute at the suit of a 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 § 301, agreed that suits for breach
of such agreements should remain wholly private and "be
left to the usual processes of the law" 25 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 antiinjunction
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
" In such a situation, suit for injunction could be brought by the
Board and, by virtue of§ 10 (h) of the National Labor Relations Act,
as amended by the Taft-Hartley Act, 61 Stat. 146, 29 U. S. C.
§ 160 (h), the Norris-LaGuardia Act would not apply.
25 H. R. Conf. Rep. No. 510, on H. R. 3020, 80th Cong., 1st Sess.,
pp. 41-42, I Leg. Hist. 545-546.
208 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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 section 301
in determining whether any person is acting as an
agent 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." 26
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 N orris-LaGuardia Act." 27
26 H. R. Conf. Rep. No. 510, on H. R. 3020, 80th Cong., 1st Sess.,
p. 66, I Leg. Hist. 570.
27 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 Hoμse 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
amendment 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 collectiveSINCLAIR
REFINING CO. v. ATKINSON. 209
195 Opinion of the Court.
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
§ 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 § 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 N orris-LaGuardia Act and
the impact those prohibitions would have upon the
enforcement under § 301 of all related contractual provisions,
including contractual provisions dealing with arbitration.
If, as this argument suggests, the intention of
Congress in enacting § 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 repeal 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 § 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
bargaining contract, however, were retained in the conference agreement
(section 301)." 93 Cong. Rec. 6443, II Leg. Hist. 1539.
(Emphasis supplied.)
210 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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.28 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 § 301. Brotherhood of Railroad Trainmen v. Chicago
River & Indiana R. Co.,29 upon which Sinclair places
28 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 thitt no unintended repeal of the antiinjunction
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 § 303 (a) declaring 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.
29 353 u. s. 30.
SINCLAIR REFINING CO. v. ATKINSON. 211
195 Opinion of the Court.
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.30 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 N orris-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 § 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." 31 And certainly no one could
30 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.
31 353 U.S. 30, at 39.
212 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
contend that§ 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 MiUs,82 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.33 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§ 4 of the Norris-LaGuardia Act unequivocally
say cannot be prohibited.34
32 353 u. s. 448.
33 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§ 4 of the Norris-LaGuardia Act were distinguished on this ground.
H 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
rega.rd to the nature of the labor dispute." Id., at 253.
SINCLAIR REFINING CO. v. ATKINSON. 213
195 Opinion of the Court.
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.,35 United Steelworkers v. Warrior &
Gulf Navigation Co.,36 and United Steelworkers v. Enterprise
Wheel & Car Corp.,31 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 is "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 § 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 § 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§ 301, as passed by Congress, presents
no conflict at all with the anti-injunction provisions
of the Norris-LaGuardia Act. Obedience to the congres-
35 363 u. s. 564. 36 363 u. s. 574. 37 363 U. S. 593.
214 OCTOBER TERM, 1961.
Opinion of the Court. 370U.S.
sional commands of the Norris-LaGuardia Act does not
directly affect the "congressional policy in favor of
the enforcement of agreements to arbitrate grievance
disputes" 38 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 § 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 § 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
88 Textile Workers Union v. Lincoln Muls, 353 U.S. 448, at 458-459.
SINCLAIR REFINING CO. v. ATKINSON. 215
195 BRENNAN, J., dissenting.
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.s•
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.
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 bf; answered to decide this case. Of course
§ 301 of the Taft-Hartley Act did not, for purposes of
39 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.
216 OCTOBER TERM, 1961.
BRENNAN, J., dissenting. 370 u. s.
actions brought under it, "repeal" § 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 resultnot
justified by either the language or history of § 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.
Section 301 of the Taft-Hartley Act, enacted in 1947,
authorizes Federal District Courts to entertain "[s] uits
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§ 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.1 At the same time, § 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 indispensable 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
1 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.
SINCLAIR REFINING CO. v. ATKINSON. 217
195 BRENNAN, J., dissenting.
function under § 301.2 Therefore, to hold that § 301 did
not repeal § 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." 3
These decisions refusing inflexible application of Norris-
LaGuardia point to the necessity of a careful inquiry
whether the surface conflict between § 301 and § 4 is
irreconcilable in the setting before us: a strike over a
2 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.
3 353 U. S., at 40.
663026 0-62- 18
218 OCTOBER TERM, 1961.
BRENNAN, J., dissenting. 370U. S.
grievance which both parties have agreed to settle by
binding arbitration. I think that there is nothing in
either the language of § 301 or its history to prevent § 4's
here being accommodated with it, just as § 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 § 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 because 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." 4
That reasoning is applicable with equal force to an
injunction under § 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
§ 301 stresses the effective enforcement of such arbitra-
4 Id., at 41.
SINCLAIR REFINING CO. v. ATKINSON. 219
195 BRENNAN, J., dissenting.
tion agreements. When one of them is about to be
sabotaged by a strike, § 301 has as strong a claim upon
an accommodating interpretation of § 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" 5-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: 6 the express contractual commitment of
the union to refrain from striking, viewed in light of the
overriding purpose of § 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 th.at case, the Court held that the procedural
requirements of Norris-LaGuardia's § 7, although
in terms fully applicable, would not apply so as to frustrate
a federal court's effective enforcement under § 301
of an employer's obligation to arbitrate. It is strange, I
think, that § 7 of the Norris-LaGuardia Act need not be
read, in the face of § 301, to impose inapt procedural
restrictions upon the specific enforcement of an employer's
5 See, e.g., S. Rep. No. 163, 72d Cong., 1st Sess., p. 18; Frankfurter
and Greene, The Labor Injunction, pp. 24-46, 200, 202.
6 It is worth repeating that the Railway Labor Act incorporates
no express prohibition of strikes over "minor disputes."
220 OCTOBER TERM, 1961.
BRENNAN, J., dissenting. 370 u. s.
contractual duty to arbitrate; but that § 4 must be read,
despite § 301, to preclude absolutely the issuance of
an injunction against a strike which ignores a union's
identical duty.
III.
The legislative history of § 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 .... " 7 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 § 301 considered in light of other provisions of the
statute.
There is nothing in the words of§ 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 Lin-
7 Ante, p. 205.
SINCLAIR REFINING CO. v. ATKINSON. 221
195 BRENNAN, J., dissenting.
coln Mills. But the Court reasons that the failure of
§ 301 explicitly to repeal § 4 of Norris-LaGuardia completely
negates the availability of injunctive relief in any
case where that provision-in the absence of § 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." 8 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 § 301.
Sound reasons explain why repeal of Norris-LaGuardia
provisions, acceptable in other settings, might have been
found ill-suited for the purpose of § 301. And those reasons
fall far short of a design to preclude absolutely the
issuance under § 301 of any injunction against an activity
included in § 4 of Norris-LaGuardia. Section 10 (h) of
the Act 9 simply lifts the § 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
8 Ante, p. 205. (Emphasis added.)
9 National Labor Relations Act,§ 10 (h), 61 Stat. 149, 29 U.S. C.
§160(h).
222 OCTOBER TERM, 1961.
BRENNAN, J., dissenting. 370 U.S.
appropriate, definitely limited in scope, predictable in
effect, and devoid of any risk of abuse or misunderstanding.
Much the same is true of § 208 (b) of Taft-Hartley,
10 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 opinionafter
having been advised by a board of inquiry-that
continuation of the strike in question would imperil the
national health and safety.
Only in § 302 ( e) of Taft-Hartley 11 is there found a
repeal of Norris-LaGuardia's anti-injunction provisions
in favor of a suit by a private litigant.12 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,13 but the repeal
of N orris-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 § 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 coUective bargaining agreements, to foresee the
settings in which these would become subjects of litiga-
10 61 Stat. 155, 29 U.S. C. § 178.
11 61 Stat. 158, 29 U.S. C. § 186 (e).
12 Section 301 (e), 61 Stat. 157, 29 U.S. C. § 185 (e), also mentioned
by the Court, has no bearing on injunction problems. It
repeals, for its purposes, § 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§ 301 effected
no repeal of the anti-injunction provisions of Norris-LaGuardia.
13 Ante, p. 205, n. 19.
SINCLAIR REFINING CO. v. ATKINSON. 223
195 BRENNAN, J., dissenting.
tion, 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§ 301
is not the equal of § 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
14 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.15 Certainly, after this experience
Congress would have used language confining § 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 § 301 and § 4 as they arose
in the relatively manageable setting of particular cases,
as that Congress intended to limit to damages the reme-
14 29 U. S. C. § 187.
15 See II Leg. Hist. 1323-1400; I Leg. Hist. 571.
224 OCTOBER TERM, 1961.
BRENNAN, J., dissenting. 370U.S.
dies courts could afford against concerted activities under
§ 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 § 301 suggest any
different conclusion. As the Court notes, the House
version would have repealed Norris-LaGuardia in suits
brought under the new section.16 The Senate version of
§ 301, like the section as enacted, did not deal with
Norris-LaGuardia, but neither did it limit the remedies
available against concerted activity.17 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 § 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 § 301 whenever opposition from § 4 was
encoun tered.18
I emphasize that the question in this case is not whether
the basic policy embodied in N orris-LaGuardia against
the injunction of activities of labor unions has been abandoned
in actions under § 301; the question is simply
whether injunctions are barred against strikes over griev-
16 I Leg. Hist. 221-222.
17 I Leg. Hist. 279-280.
18 There is nothing in any Committee Report, or in any floor debate,
which even intimates a confinement of § 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.
SINCLAIR REFINING CO. v. ATKINSON. 225
195 BRENNAN, J., dissenting.
ances 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 § 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§ 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 § 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.
226 OCTOBER TERM, 1961.
BRENNAN, J., dissenting. 370 u. s.
We have held that uniform doctrines of federal labor
law are to be fashioned judicially in suits brought under
§ 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, § 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
19 and as a leading state decision holds,2° 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
19 Section 4 commences: "No court of the United States shall have
jurisdiction to issue any restraining order .... "
20 M cCarroll v. Los Angeles County District Council, 49 Cal. 2d
45, 315 P. 2d 322.
SINCLAIR REFINING CO. v. ATKINSON. 227
195 BRENNAN, J., dissenting.
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 § 4 is to be read literally,
removal will not be allowed.21 And if it is allowed,
the result once again is that§ 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.22 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.23 The Court says
only that federal courts may not grant such relief, that
Congress must amend § 4 if those courts are to give substance
to the congressional plan of encouraging peaceable
settlements of grievances through arbitration.
21 Compare note 19, supra, with the language of the removal statute,
28 U. S. C. § 1441, allowing removal in cases "of which the
district courts of the United States have original jurisdiction."
22 See Norris-LaGuardia Act, § 8, 47 Stat. 72, 29 U. S. C. § 108.
23 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.
228 OCTOBER TERM, 1961.
BRENNAN, J., dissenting. 370 U.S.
VI.
A District Court entertaining an action under § 301
may not grant injunctive relief against concerted activity
unless and until it decides that the case is one in which
an injunction would be appropriate despite the Norris-
LaGuardia Act. When a strike is sought to be enjoined
because it is over a grievance which both parties are contractually
bound to arbitrate, the District Court may
issue no injunctive order until it first holds that the contract
does have that effect; and the employer should be
ordered to arbitrate, as a condition of his obtaining an
injunction against the strike. Beyond this, the District
Court must, of course, consider whether issuance of an
injunction would be warranted under ordinary principles
of equity-whether breaches are occurring and will continue,
or have been threatened and will be committed;
whether they have caused or will cause irreparable injury
to the employer; and whether the employer will suffer
more from the denial of an injunction than will the union
from its issuance.
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 "[T]here shall be no strikes ...
for any cause which is or may be the subject of a grievance."
24 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
•• See Atkinson v. Sinclair Rfg. Co., decided this day, post, p. 238.
SINCLAIR REFINING CO. v. ATKINSON. 229
195 BRENNAN, J., dissenting.
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.
230 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
IN RE McCONNELL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT.
No. 498. Argued April 10, 1962.-Decided June 18, 1962.
Under 18 U. S. C. § 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. § 401, and a judgment
sustaining the conviction is reversed. Pp. 230-236.
294 F. 2d 310, reversed.
Thomas C. McConnell, petitioner, argued the cause
and filed briefs pro se.
Philip R. Monahan argued the cause for the United
States. With him on the brief were Solicitor General
Cox and Assistant Attorney General Miller.
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
IN RE McCONNELL. 231
230 Opinion of the Court.
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.1 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.2
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.3
1 This action was brought under the Clayton Act, §§ 4 and 16, 38
Stat. 731, 737, 15 U.S. C. §§ 15, 26, and charged violations of§§ 1 and
2 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. §§ 1, 2.
2 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 aso Radovich v. National Football League, 352 U.S. 445.
3 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 attor232
OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
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" 4 but also
repeatedly insisted that he be allowed to make his offers
of proof in compliance with the Rule.5 Following the trial
the judge charged petitioner and his co-counsel Freeman
in a number of specifications with being guilty of con tempney
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 .... "
4 Since our disposition of this case does not turn on whether petitioner
was correct in thinking that Rule 43 (c) absolutely requires
that all offers of proof in jury trials be based on questions before the
jury, we express no opinion on that question.
5 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
antitrust laws. 186 F. Supp. 533. The Court of Appeals for the
Seventh Circuit affirmed the decision on this latter ground. 292 F.
2d 794.
IN RE McCONNELL. 233
230 Opinion of the Court.
tuous 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,6 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).1
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,8 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.9
The statute under which petitioner was summarily convicted
of contempt is 18 U. S. C. § 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 10 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," 11 revealing "a Con-
6 292 F. 2d 806.
7 294 F. 2d 310.
8 348 u. s. 11, 13.
9 368 U.S. 936.
10 4 Stat. 487. The present wording of § 401 comes from the 1948
revision and codification of Title 18. 62 Stat. 701.
11 Nye v. United States, 313 U.S. 33, 45.
663026 0-62--19
234 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
gressional 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.'
" 12 "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." 13 And we held long ago, in Ex parte Hudgings,14
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 constitutional 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
12 In re Michael, 326 U. S. 224, 227.
13 Jbid.
14 249 U. s. 378, 383.
IN RE McCONNELL. 235
230 Opinion of the Court.
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 off er 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.'" (Emphasis added.)
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 throughoat the remainder
of the trial. We agree with Judge Duffy who dissented
below that there was nothing in petitioner's conduct suffi236
OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
ciently 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.
MR. JusTICE FRANKFURTER and MR. JUSTICE WHITE
took no part in the consideration or decision of this case.
IN RE McCONNELL. 237
230 HARLAN, J., dissenting.
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. § 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. § 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.
238 OCTOBER TERM, 1961.
Syllabus. 370U.S.
ATKINSON ET AL. v. SINCLAIR REFINING co.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT.
No. 430. Argued April 18, 1962.-Decided June 18, 1962.
1. Under § 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 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 count of the complaint properly states a cause of action
under § 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
fomented or assisted and participated in the strike or work stoppage
in violation of the collective bargaining contract. Held:
Under § 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
ATKINSON v. SINCLAIR REFINING CO. 239
238 Opinion of the Court.
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.
290 F. 2d 312, affirmed in part and reversed in part.
Gilbert A. Cornfield argued the cause for petitioners.
With him on the briefs were Gilbert Feldman and William
E. Rentfro.
George B. Christensen argued the cause for respondent.
With him on the briefs were Fred H. Daugherty and
Richard W. Austin.
J. Albert Woll, Theodore J. St. Antoine and Thomas E.
Harris filed a brief for the American Federation of Labor
and Congress of Industrial Organizations, as amicus
curiae, urging reversal.
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 § 301 of the Taft-Hartley
Act (29 U. S. C. § 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
240 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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,
fomented, 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 Sinc/,air 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.
ATKINSON v. SINCLAIR REFINING CO. 241
238 Opinion of the Court.
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 § 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 MiUs, 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§ 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. Co., 363 U. S. 574, 582. See also United
Steelworkers v. American Mfg. 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 1 that the parties did not intend to commit all
1 The no-strike clause (Article III) provides that "[TJhere 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 "opera242
OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
of their possible disputes and the whole scope of their
relationship to the grievance and arbitration procedures
established in Article XXVI,2 that article itself is determinative
of the issue in this case since it precludes arbitration
boards from considering any matters other than employee
grievances.3 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
tion 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 . . . ."
2 Article XXVI is set out in full infra, at p. 250, as an Appendix.
3 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., "difference[s] 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 wmplaints, disputes
or grievances arising between them [i. e., the parties] involving
any act or conduct or relation between the parties."
ATKINSON v. SINCLAIR REFINING CO. 243
238 Opinion of the Court.
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
244 OCTOBER TERM, 1961.
Opiruon of the Court. 370 u. s.
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 4 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
4 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.
ATKINSON v. SINCLAIR REFINING CO. 245
238 Opinion of the Court.
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.5
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.
IL
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 § 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.
5 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 § 301 suit, that doctrine is inapplicable. Local, 17 4 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.
246 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
Under § 301 a suit for violation of the collective bargaining
contract in either a federal or state court is governed
by federal law (Local 17 4 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 nostrike
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. Donnelley &
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
ATKINSON v. SINCLAIR REFINING CO. 247
238 Opinion of the Court.
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
§ 301 (b) the union is liable for the acts of its agents,
under familiar principles of the law of agency (see also
§ 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 § 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 § 301.6
Under any theory, therefore, the company's action is
governed by the national labor relations law which Congress
commanded this Court to fashion under § 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 § 301, it declared its view that
only the union was to be made to respond for union
6 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§§ 301 (b)
and 301 (e), but for want of jurisdiction rather than on the merits.
Our holding, however, is that the suit is a§ 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.
248 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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.
§ 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 § 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. 444 (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 § 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
ATKINSON v. SINCLAIR REFINING CO. 249
238 Opinion of the Court.
§ 301 (a) suits, we are strongly guided by and do not
give a niggardly reading to§ 301 (b). "We would undercut
the Act and defeat its policy if we read § 301 narrowly"
(Lincoln Mills, 353 U. S., at 456). We have
already said in another context that § 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.7
The case is remanded to the District Court for further
proceedings not inconsistent with this opinion.
It is so ordered.
MR. JusTICE FRANKFURTER took no part in the consideration
or decision of this case.
7 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 § 301 (a) claim if it charged
unauthorized, individual action.
663026 0-62-20
250 OCTOBER TERM, 1961.
Appendix to Opinion of the Court. 370 u. s.
APPENDIX TO OPINION OF THE COURT.
Article XXVI provides:
"GRIEVANCE AND ARBITRATION PROCEDURE
"Definition
"l. 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 purpose 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.
ATKINSON v. SINCLAIR REFINING CO. 251
238 Appendix to Opinion of the Court.
"(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.
252 OCTOBER TERM, 1961.
Appendix to Opinion of the Court. 370 U.S.
"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, AFLCIO.
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 agreedupon
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.
ATKINSON v. SINCLAIR REFINING CO. 253
238 Appendix to Opimon of the Court.
"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
corning within the Producing Divi~ion in which they are !orated.
"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."
254 OCTOBER TERM, 1961.
Syllabus. 370 u. s.
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.
No. 598. Argued April 18, 1962.-Decided June 18, 1962.
Under § 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.
DRAKE BAKERIES v. BAKERY WORKERS. 255
254 Opinion of the Court.
(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.
294 F. 2d 399, affirmed.
Robert Abelow argued the cause for petitioner. With
him on the briefs were Horace S. Manges and Marshall C.
Berger.
Howard N. Meyer argued the cause for respondents.
With him on the briefs was Paul O'Dwyer.
Edward Maguire filed a brief for the New York State
AFL-CIO, as amicus curiae, urging affirmance.
MR. JusTICE WHITE delivered the opinion of the Court.
The petitioning company brought this action for
damages in the District Court under§ 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.' 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.
1 The Court of Appeals originally heard the appeal before a threejudge
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.
256 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
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 Christmas 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 SteelDRAKE
BAKERIES v. BAKERY WORKERS. 257
254 Opinion of the Court.
workers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582.
But the contract here is much different from the agreement
in Atkinson. Under Article V 2 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,"
2 "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 :!\fanager 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."
258 OCTOBER TERM, 1961.
Opinion of the Court. 370U. S.
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 ref er 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.3 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
3 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."
DRAKE BAKERIES v. BAKERY WORKERS. 259
254 Opinion of the Court.
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,4 which contains the no-strike provisions, the parties
prohibited strikes, insulated tpe 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
4 "Article VII-No Strikes
"(a) There shall be no strike, boycott, interruption of work, stoppage,
temporary walk-out or lock-out for any rea.son 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."
260 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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.5 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.6
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
5 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 N orris-LaGuardia
Act. Ruppert v. Egelhofer, 3 N. Y. 2d 576, 148 N. E. 2d 129.
6 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.
DRAKE BAKERIES v. BAKERY WORKERS. 261
254 Opinion of the Court.
company does not deny that grievance and arbitration
procedures under this contract-as is true generally
(United Steelworkers v. Warrior & Gulf Nav. Co., 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.7
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
7 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 mutua.lly dependent covenants which are severable
from the other promises between the parties.
262 OCTOBER TERM, 1961.
Opinion of the Court. 370U.S.
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.8 Arbitration provisions,
which themselves have not been repudiated, are meant to
survive breaches of contract, in many contexts, even
total breach; 9 and in determining whether one party
has so repudiated his promise to arbitrate that the other
party is excused the circumstances of the claimed repudia-
8 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 § 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.
9 See In re Pahlberg Petition, 131 F. 2d 968 (C. A. 2d Cir.i;
Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F. 2d 9-18
(C. A. 2d Cir.); Pennsylvania Greyhound Lines v. Amalgamated
Assn., 98 F. Supp. 789 (W. D. Pa.), rev'd on other ground&, 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.
DRAKE BAKERIES v. BAKERY WORKERS. 263
254 Opinion of the Court.
tion are critically important.10 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§ 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 "[f]inal adjustment by a method agreed upon
by the parties" (§ 203 ( d) of the Act, 29 U.S. C. § 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 stabilizing influence of the
10 6 Corbin, Contracts § 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."
264 OCTOBER TERM, 1961.
Opinion of the Court. 370U.S.
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.11
Petitioner relies upon decisions by various Courts of
Appeals denying stays of damage suits for breach of nostrike
clauses for want of arbitrability of the dispute.12
Most of them, however, involved far more narrowly drawn
arbitration clauses than that which is involved here.13
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 arbi-
11 Cf. BooM v. Eyre, 1 Bl. H. 273, 126 Eng. Rep. 160 (K. B. 1777)
(L. Mansfield): " ... [W]here mutual covenants 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.
12 These cases are collected in the withdrawn decision of the threejudge
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.).
13 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.); CuMo
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.) ("[a]ll 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").
DRAKE BAKERIES v. BAKERY WORKERS. 265
254 Opinion of the Court.
trable and suits for damages have been stayed pending
arbitration.14
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 15 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
14 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.
15 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.
663026 0-62-21
266 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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,1° but we are not persuaded that
the remedy there will be inadequate. Whether the damages
to be awarded by the arbitrator would not normally
be expected to serve as an "effective" deterrent to future
strikes, which the company urges, is not a questiqn 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
16 Bernhardt v. Polygraphic Co., 350 U. S. 198, 203.
DRAKE BAKERIES v. BAKERY WORKERS. 267
254 HARLAN, J., dissenting.
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.11
As its conduct shows in a previous situation, the employer
was aware of the procedure to be followed.18 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.
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, if 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 &
17 Compare Shanferoke Coal Corp. v. Westchester 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.).
18 See text accompanying notes 5-6, supra.
268 OCTOBER TERM, 1961.
HARLAN, J., di;;;;enting. 370 U.S.
Car Corp., 363 U. S. 593, 597-598. The les.s 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 co1lective agreement or record affords to persuade me
that it was contemplated that the employer would forego
his statutory remedy under § 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.
RUDOLPH v. UNITED STATES. 269
Per Curiam.
RUDOLPH ET ux. v. UNITED STATES.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT.
No. 396. Argued April 3, 1962.-Decided June 18, 1962.
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.
Reported beow: 291 F. 2d 841.
Richard A. Freling argued the cause for petitioners.
With him on the briefs was Felix Atwood.
John B. Jones, Jr. argued the cause for the United
States. With him on the briefs were Solicitor General
Cox, Assistant Attorney General Oberdorfer, Wayne G.
Barnett, I. Henry Kutz and Norman H. Wolfe.
Charles W. Merritt filed a brief for the American Hotel
Association, as amicus curiae, urging reversal.
PER CuarAM.
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
270 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370U. S.
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 Memori.
al Park Cemetery, 349 U. S. 70, 78 n. 2 (1955).
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.
* A joint return had been filed.
RUDOLPH v. UNITED STATES. 271
269 Opinion of HARLAN, J.
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 § 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 § 162 of the Code.1 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.
1 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. § 1.162- 17 (b), or to "run
it through" the taxpayer's income with an offsetting deduction in the
same amount.
272 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370 u. s.
The company paid all the expenses of the conventiontrip
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 curi.am 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 § 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 sections
of the 1954 Code enumerate particular receipts
which are included in the concept of "gross income," 2
including prizes and awards ( with certain exceptions) ; •
2 E. g., § 71 (Alimony and separate maintenance payments), § 72
(Annuities; certain proceeds of endowment and life insurance contracts),
§ 73 (Services of child).
3 § 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."
RUDOLPH v. UNITED STATES. 273
269 Opinion of HARLAN, J.
while other sections, §§ 101-121, specifically exclude certain
receipts from "gross income," including, for example,
gifts and inheritances• (see Commissioner v. Duberstein,
363 U. S. 278), and meals or lodgings furnished for
the convenience of the employer.5 The Treasury Regulations
emphasize the inclusiveness of the concept of
"gross income." 6
In light of the sweeping scope of § 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
4 § 102.
5 § 119. Some of the other exclusions are§ 101 (Certain death payments),
§ 103 (Interest on certain governmental obligations), § 104
(Compensation for injuries or sickness), § 105 (Amounts received
under accident and health plans), § 113 (Mustering-out payments
for members of the Armed Forces), § 117 (Scholarship and fellowship
grants).
6 Treas. Reg. § 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.
§ 1.61-2 (a) (1), (d) and § 1.74-1 (a).
,,
274 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370 U.S.
excluded from § 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.7 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.8
7 Petitioners rely on § 3401 of the 1954 Code, relating to withholding
taxes, and more especially on Treas. Reg.§ 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. R~v. Rul. 56-249, 1956-1 Cum.
Bull. 488, as amplified by Rev. Rul. 60-330, 1960-2 Cum. Bull. 46.
8 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 ....
" ... [W]e 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.
RUDOLPH v. UNITED STATES. 275
269 Opinion of HARLAN, J.
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 § 162.9 The relevant factors on
this branch of the case are found in Treas. Reg.§ 1.162-2.10
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
9 " (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.
10 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, § 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, § 39.23 (a)-2 (a).
276 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370 U.S.
"undertaken for other than business purposes" are
"personal expenses" and the meals and lodgings are
"living expenses." Treas. Reg. § 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.11 Id.,
§ 1.162-2 (b)(l).
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., § 1.162-2 (b)(2); so too with expenses
paid or incurred in attending a convention. Id.,
§ 1.162-2 (d).
Finally, the deductibility of the explmses of a taxpayer's
wife who accompanies her husband depends,
first, on whether his trip is a "business trip." Id.,
§ 1.162-2 (c); ifso,itmustfurtherbeshown 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."
11 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.
RUDOLPH v. UNITED STATES. 277
269 Opinion of HARLAN, J.
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 12 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 regu-
12 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 " · 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).
278 OCTOBER TERM, 1961.
DouGLAS, J., dissenting. 370 u. s.
lations, 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.
Ma. 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. § 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
§ 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
RUDOLPH v. UNITED STATES. 279
269 DOUGLAS, J., dissenting.
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
280 OCTOBER TERM, 1961.
DouGLAS, J ., dissenting. 370 U.S.
of life insurance payable at death, disability benefits.
the rental values of parsonages, scholarship and fellowship
grants, allowances of U. S. employees abroad, musteringout
payments to members of the Armed Forces, etc. Employees
may receive from their employers many fringe
benefits that are not income. Treasury Regulations
§ 31.3401 (a)-1 (b)(lO) 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 recurringday
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
RUDOLPH v. UNITED STATES. 281
269 Douous, J., dissenting.
entire amount expended for meals and lodging) while
away from home in the "pursuit of a trade or business,"
26 U. S. C. § 162 (a) (2).
The Regulations are even more explicit. Section 1.162-
2 (b)(l) 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." (Italics added.)
Thus, by the very terms of the Regulations a taxpayer
who combines business and pleasure may deduct all
"traveling expenses," provided the business purpose 1s
dominant.
Section 1.162-2 (b)(2) of the Regulations states:
"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."
663026 0-62-22
282 OCTOBER TERM, 1961.
DouGLAS, J., dissenting. 370 U.S.
Where, as here, at least one-half of the time is spent on
mundane "business" activities,1 the case is nowhere near
the colorable transaction described in § 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
1 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.
RUDOLPH v. UNITED STATES. 283
269 DouGLAS, J., dissenting.
benefit from the knowledge and increase in morale which
result from them.2 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
2 "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 a.t 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.
284 OCTOBER TERM, 1961.
DouGLAS, J., dissenting. 370 U.S.
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. § 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 3 are, on this record, also deductible.
The Treasury Regulations state in § 1.162-2 ( c):
"Where a taxpayer's wife accompanies him on a
business trip, expenses attributable to her travel are
3 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 sttending an insurance convention
269
RUDOLPH v. UNITED STATES. 285
DouGLAS, J., dissenting.
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.4 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.5 Business reasons
is not permissible. N. Y. Ins. Dept. Rulings (1953), Oct. 6, 1953.
And see 27 McKinney's Con. Laws of N. Y., § 213, subdivisions 7 and
8, regulating insurance agents' competitions.
4 See H. R. Rep. No. 1274, 80th Cong., 2d Sess., pp. 1, 47.
s "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.
286 OCTOBER TERM, 1961.
DouGLAB, J ., dissenting. 370U. S.
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 program[s], 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'
269
RUDOLPH v. UNITED STATES. 287
DouGLAB, J., dissenting.
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.
288 OCTOBER TERM, 1961.
Per Curiam. 370 u. s.
GRUMMAN v. UNITED STATES.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT.
No. 436. Argued April 19, 1962.-Decided June 18, 1962.
Judgment reversed on the authority of Russell v. United States, 369
U.S. 749.
Reported below: 111 U.S. App. D. C. 79, 294 F. 2d 708.
David Rein argued the cause for petitioner. With him
on the briefs was Joseph Forer.
Bruce J. Terris argued the cause for the United States.
With him on the brief were Solicitor General Cox, Assistant
Attorney General Yeagl,ey and Kevin T. Maroney.
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 m
Russell v. United States, 369 U. S. 749, 779, 781.
Mn. 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.
DECISIONS PER CURIAM. 289
370U. S. June 18, 1962.
KANSAS CITY SOUTHERN RAILWAY CO. v.
REILY, COLLECTOR OF REVENUE OF
LOUISIANA.
APPEAL FROM THE SUPREME COURT OF LOUISIANA.
No. 918. Decided June 18, 1962.
Appeal dismissed for want of a substantial federal question.
Reported below: 242 La. 235, 135 So. 2d 915.
W. Scott Wilkinson, Milton W. Schober and Pike
Hall, Jr. for appellant.
Emmett E. Batson for appellee.
PER CuaIAM.
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.
CEPERO v. PUERTO RICO ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK.
No. 1336, Misc. Decided June 18, 1962.
PER CuRIAM.
The appeal is dismissed.
MR. JusTICE FRANKFURTER took no part in the consideration
or decision of this case.
290 OCTOBER TERM, 1961.
Per Curiam. 370U.S.
VALENZUELA v. EYMAN, WARDEN, ET AL.
APP1>;AL FROM THE SUPREME COURT OF ARIZOXA.
No. 1144, Misc. Decided June 18, 1962.
Appeal dismissed and certiorari denied.
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.
PATSKAN v. BUCHKOE, WARDEN, ET AL.
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT.
No. 1262, Misc. Decided June 18, 1962.
Appeal dismissed.
Reported below: 296 F. 2d 724.
PER CuRIAM.
The appeal is dismissed.
MR. JusTICE FRANKFURTER took no part in the consideration
or decision of this case.
DECISIONS PER CURIAM. 291
370 U.S. June 18, 1962.
HALL v. HEARD, ACTING CORRECTIONS
DIRECTOR.
APPEAL FROM THE COURT OF CRIMINAL APPEALS OF TEXAS.
No. 1269, Misc. Decided June 18, 1962
Appeal dismissed and certiorari denied.
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.
WILBUR v. l.JNITED STATES.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA.
No. 1383, Misc. Decided June 18, 1962.
Appeal dismissed.
Appellant pro se.
Solicitor General Cox for the United States.
PER CuRIAM.
The motion to dismiss 1s granted and the appeal is
dismissed.
MR. JusTrCE FRANKFURTER took no part in the consideration
or decision of this case.
292 OCTOBER TERM, 1961.
Per Curiam. 370 u. s.
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.
No. 782. Decided June 18, 1962.
Certiorari granted; judgment of the Court of Appeals vacated; case
remanded to the District Court with instructions.
Reported below: 299 F. 2d 50.
Alfred W. Charles for petitioner.
Solicitor General Cox for respondent.
PER CuRrAM.
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§ 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.
SEELIG v. UNITED STATES. 293
370 u. s. Per Curiam.
SEELIG v. UNITED STATES.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.
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.
Petitioner pro se.
Solicitor General Cox, Assistant Attorney General Marshall,
Harold H. Greene and Howard A. Gli,ckstein for the
United .States.
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 f orma 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.
294 OCTOBER TERM, 1961.
Syllabus. 370 U.S.
BROWN SHOE CO., INC., v. UNITED STATES.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MISSOURI.
No. 4. Argued December 6, 1961.-Decided June 25, 1962.
The Government brought suit to enjoin consummation of a mergrr
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 § 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 substanti:il
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 § 2 of the Expediting Act, and this Court has juriRdiction
of this direct appeal under that Act. Pp. 304-311.
2. The legislative history of the 1950 amendments to § 7 of thr
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 § 7, as amended.
Pp. 323-334.
BROWN SHOE CO. v. UNITED STATES. 295
294 Syllabus.
(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 mergrr 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, womf'n's and children's shoes may be lessened
substantially in those cities. Pp. 339-346.
179 F. Supp. 721, affirmed.
296 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
Arthur H. Dean argued the cause for appellant. With
him on the briefs were Robert H. M cRoberts, Henry N.
Ess III and Dennis C. Mahoney.
Solicitor General Cox argued the cause for the United
States. With him on the brief were Assistant Attorney
General Loevinger, J. William Doolittle, Richard A. Solomon,
Philip Marcus and James J. Coyle.
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 § 7 of the Clayton Act, 15 U. S. C.
§ 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 § 15 of the
Clayton Act, 15 U. S. C. § 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.
BROWN SHOE CO. v. UNITED STATES. 297
294 Opinion of the Court.
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 1-and Kinney-the eighth largest
company, by dollar volume, among those primarily engaged
in selling shoes, itself a large manufacturer of shoes,
and 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 "line[s]" 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
1 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.
663026 0-62-23
298 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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
"line[s] of commerce" and the "section[s] 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" 2 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 recog-
2 "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.
BROWN SHOE CO. v. UNITED STATES. 299
294 Opinion of the Court.
nized 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, "[t]o
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) [3] 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
3 See note 1, supra.
300 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. 8.
out in some detail the District Court's findings concerning
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.• 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.5 These
• U. S. Bureau of Census, Facts for Industry, Production, by Kind
of Footwear: 1956 and 1955, Table l, 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.
5 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."
BROWN SHOE CO. v. UNITED STATES. 301
294 Opinion of the Court.
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 firms manufacturing
shoes. In 1947, there were 1,077 independent manufacturers
of shoes, but by 1954 their number had decreased
about 10% to 970.6
6 U. S. Bureau of the Census, 1958 Census of Manufacturers, MC
58(2)-31A-6. By 1958, the number of independent manufacturers
had decreased by another 10% to 872. Ibid.
302 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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
BROWN SHOE CO. v. UNITED STATES. 303
294 Opinion of the Court.
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.7
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;
7 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 GX 6, 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.
304 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
however, in line with Brown's conceded reasons 8 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 § 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 § 2 of the Expediting
8 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.
BROWN SHOE CO. v. UNITED STATES. 305
294 Opinion of the Court.
Act of February 11, 1903, 32 Stat. 823, as amended, 15
U. S. C. § 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." 9 (Emphasis supplied.) 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.
825.10
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 a threshold
9 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.
10 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.
306 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
inquiry appropriate to the disposition 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 1789.11 With occasional
modifications, the requirement has remained a
cornerstone of the structure of appeals in the federal
courts.12 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;
DiBeUa 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": 13 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 of
"finality" has not been raised or discussed by the parties
or the Court. On but few occasions have particular
11 Section 22, 1 Stat. 84, in its present form, 28 U.S. C. § 1291.
12 Cf. 28 U.S. C. § 1292; Fed. Rules Civ. Proc., 54 (b); 28 U.S. C.
§ 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.
13 Fed. Rules Civ. Proc., 1.
BROWN SHOE CO. v. UNITED STATES. 307
294 Opinion of the Court.
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." Cf. Stainback v. Mo
14 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 Courts 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, 898-901, 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.
308 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
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.'5 Appellant
here does not attack the full divestiture ordered by the
District Court as such; it is appellant's contention that
15 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.
BROWN SHOE CO. v. UNITED ST ATES. 309
294 Opinion of the Court.
under the facts of the case, as alleged and proved by the
Government, no order of divestiture could have been
proper. The propriety 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 affi.rmance
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
310 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
en try 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.16 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 § 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, 472-473.11 A fear of piecemeal appeals
because of our adherence to existing procedure can
find no support in history. Thus, the substantial body
16 The Court has, of course, occasionally reviewed varying facets
of single antitrust 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
lmurance 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.
17 Cf. Jerrold Electronics Corp. v. United States, 365 U. S. 567,
affirming 187 F. Supp. 545, 563-567 (D. C. E. D. Pa.).
BROWN SHOE CO. v. UNITED STATES. 311
294 Opinion of the Court.
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 § 7 of the Clayton Act,
as that section was amended in 1950.18 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 section of the antitrust laws considered by many
observers to be ineffective in its then existing form. Sixteen
bills to amend § 7 during the period 1943 to 1949
18 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 § i 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 § 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.
312 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
alone were introduced for consideration by the Congress,
and full public hearings on proposed amendments were
held in three separate sessions.10 In the light of this
extensive legislative attention to tlie 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, § 7 of the original Clayton Act prohibited
the acquisition by one corporation 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
19 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 Bess. (1949-1950).
For reviews of the legislative history of the amendments, see N ates,
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).
BROWN SHOE CO. v. UNITED STATES. 313
294 Opinion of the Court.
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.20 Nor did it appear to preclude the
acquisition of stock in any corporation other than a
direct competitor.21 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.22 The possibility of asset
acquisition was discussed,23 but was not considered impor-
20 See Arrow-Hart & Hegeman Electric Co. v. Federal Trade
Comm'n, 291 U.S. 587; Federal Trade Com.m'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.
21 This was the manner in which the Federal Trade Commission had
viewed the prohibitions of original § 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 § 7 was incorrert.
United States v. E. /. du Pont de Nemours & Co., 353 U.S. 586.
22 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 on 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.
23 See 51 Cong. Rec. 14255, 14316, 14456-14457 (remarks of Senators
Chilton, Cummins, Colt, Reed). An amendment offered durmg
the Senate's floor debate by Senator Cummins would have precluded
the acquisition by one corporation of the stock "or any other means
663026 0-62-24
314 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
tant 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.2
'
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.25 The Final Report of the Temporary
National Economic Committee also recommended changes
focusing on these two proposals.26 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
§ 7 was confined to embracing within the Act's terms the
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.
24 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.
25 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.
26 Temporary National Economic Committee, Final Report and
Recommendations, S. Doc. No. 35, 77th Cong., 1st Sess. 38-40 (1941).
BROWN SHOE CO. v. UNITED STATES. 315
294 Opinion of the Court.
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§ 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.21 Other
considerations cited in support of the bill were the desir-
27 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. 11911 81st Cong., 1st Sess. 3.
316 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
ability of retaining "local control" over industry and
the protection of small businesses.28 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 § 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.29
28 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 :,mall units which can effectively compete with each other."
29 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 [sic] 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.
BROWN SHOE CO. v. UNITED STATES. 317
294 Opinion of the Court.
Second, by the deletion of the "acquiring-acquired"
language in the original text,30 it hoped to make plain that
§ 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.31
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
30 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.
31 That § 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.
318 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
to brake this force at its outset and before it gathered
momentum.32
Fourth, and closely related to the third, Congress
rejected, as inappropriate to the problem it sought to
remedy, the application to § 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 § 7.33
32 That § 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.
33 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);
BROWN SHOE CO. v. UNITED STATES. 319
294 Opinion of the Court.
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.34
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.
34 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.,
320 OCTOBER TERM, 1961.
Opinion of the Court. 370U.S.
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.35 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 anti-
1st Sess. 6-8; S. Rep. No. 1775, 81st Cong., 2d Bess. 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.
35 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 as 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.
BROWN SHOE CO. v. UNITED STATES. 321
294 Opinion of the Court.
competitive 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.36
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
38 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 Bess. 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 § 3 of the Clayton Act, was decided while
Congress was considering H. R. 2734. Some discussion of the applicability
of this test to§ 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 ~ndorsed 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.
322 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
industry.37 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.38
87 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).
38 Subseqnent 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
marke~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).
BROWN SHOE CO. v. UNITED STATES. 323
294 Opinion of the Court.
Eighth, Congress used the words "may be substantially
to lessen competition" ( emphasis supplied), to
indicate that its concern was with probabilities, not
certainties.39 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,
39 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 [sic] 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).
324 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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 Califomia v. United States, 337 U. S. 293, 314,
which "deprive[s] ... rivals of a fair opportunity to compete."
40 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,
"[d]etermination 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." n
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").
•
0 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.
41 United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586,
593.
BROWN SHOE CO. v. UNITED STATES. 325
294 Opinion of the Court.
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.{2 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.43 Because § 7 of the Clayton Act
prohibits any merger which may substantially lessen competition
"in any line of commerce" ( emphasis supplied),
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.4•
42 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.
•a See generally Bock, Mergers and Markets, An Economic Analysis
of Case Law 25-35 (1960).
44 United States v. E. l. du Pont de Nemours & Co., 353 U.S. 586,
592, 595; A.G. Spalding & Bros. v. Pederal Trade Comm'n, 301 F.
2d 585, 603 (C. A. 3d Cir.); American Crystal Sugar Co. v. Cuban326
OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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."
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.
BROWN SHOE CO. v. UNITED STATES. 327
294 Opinion of the Court,
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 (l.5o/'d. 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 •o f this
328 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
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.45 And
the legislative history of § 7 indicates clearly that the
45 15 U. S. C. §§ 1 and 2. See S. Rep. No. 1775, 81st Cong., 2d
Sess. 4-5.
BROWN SHOE CO. v. UNITED STATES. 329
294 Opinion of the Court.
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.46 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."
A most important such factor to examine is the very
nature and purpose of the arrangement.4" Congress not
only indicated that "the tests of illegality [ under § 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," 49 but also chose for § 7
language virtually identical to that of § 3 of the Clayton
Act, 15 U.S. C. § 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 § 3,
appears to be a limited term exclusive-dealing contract,
• 6 See note 33, supra.
47 See note 38, supra, and note 55, infra, and the accompanying text.
• 9 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.
• 0 See H. R. Rep. No. 1191, 81st Cong., 1st Sess. 8.
663026 0-62-n
330 OCTOBER TERM, 1961.
Opinion of the Court. 370U.S.
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 Internationq,l Salt Co. v. United States,
332 U.S. 392.50 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 51
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
50 See also Comment, 59 Mich. L. Rev. 1236, 1239-1240 (1961).
51 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.
BROWN SHOE CO. v. UNITED STATES. 331
294 Opinion of the Court.
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 § 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. 291.52 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.53
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
52 H. R. Rep. No. 1191, 81st Cong., 1st Sess. 6; S. Rep. No. 1775,
81st Cong., 2d Sess. 7.
53 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).
332 OCTOBER TERM, 1961.
Opinion of the Court. 370U.S.
a manufacturer and an independent 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,5• 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.65
Another important factor to consider is the trend
toward concentration in the industry.56 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.57 But the very wording of § 7 requires a
prognosis of the probable future effect of the merger.58
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 prob-
54 See note 8, supra.
55 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).
56 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).
57 See Handler and Robinson, A Decade of Administration of the
Celler-Kefauver Antimerger Act, 61 Col. L. Rev. 629, 668 (1961).
58 See note 39, supra, and accompanying text.
BROWN SHOE CO. v. UNITED STATES. 333
294 Opinion of the Court.
able 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.59
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.6° 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 § 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
59 United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586,
589, 597.
60 See note 28, supra, and accompanying text.
334 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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. 5.61 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
61 See also Stigler, Mergers and Preventive Antitrust Policy, 104
U. of Pa. L. Rev. 176, 180 (1955).
BROWN SHOE CO. v. UNITED STATES. 335
294 Opinion of the Court.
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.62 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.63 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.
62 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.
63 See note 30, supra.
336 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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 § 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" 64 of the industry and be economi-
6
' 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.
BROWN SHOE CO. v. UNITED STATES. 337
294 Opinion of the Court,
cally 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. Maryl,and & 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 § 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. 65
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.66 By this definition of the geographic mar-
65 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.
66 In describing the geographic market in which Brown and Kinney
competed, the District Court included cities in which Brown "Fran338
OCTOBER TERM, 1961.
Opinion of the Court. 370U.S.
ket, 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
chise 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.
BROWN SHOE CO. v. UNITED ST ATES. 339
294 Opinion of the Court.
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.67
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 section of the country it had defined
as appropriate. It says the Court erred in failing to
enter findings with respect to each relevant city assessing
67 The District Court limited its findings to cities having a population
of at least 10,000 persons, since Kinney operated only in such
areas.
340 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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 busiBROWN
SHOE CO. v. UNITED STATES. 341
294 Opinion of the Court.
ness 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.68
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_t hese exhibits, appellant cannot
deny the correctness of the more general picture they
reveal."9 We have appended the exhibits to this opinion.
68 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.
69 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,
342 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
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 cominfra.
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 sa.Jes at two levels of distribution,
we believe they provide an adequate basis upon which to gauge
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 § 7: whether this merger may
tend to lessen competition substantially in the relevant markets.
BROWN SHOE CO. v. UNITED STATES. 343
294 Opinion of the Court.
bined share of Brown and Kinney sales of women's shoes
(by unit volume) exceeded 20%.10 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.11
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
• 0 Although the sum of the parties' pre-existing shares of the market
will normally equal their combined share of the immediate postmerger
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 cor.clusions of the probable
future effects of the merger.
71 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).
344 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
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 addiBROWN
SHOE CO. v. UNITED STATES. 345
294 Opinion of the Court.
tional 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.72 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,73 and 2.3% of the Nation's total retail
72 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.
Section 7 was enacted to prevent even small mergers that added to
concentration in an industry. See S. Rep. No. 1775, 81st Cong., 2d
Sess. 5. Cf. United States v. Jerrold Electronu;s 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.).
73 See note 5, supra.
663026 0-62-26
346 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
shoe outlets.74 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 same 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.
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.
74 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.
BROWN SHOE CO. v. UNITED STATES. 347
294 Appendix A to Opinion of the Court.
APPENDIX A
Sales of women's shoes by Brown and Kinney as a share of the total city
sales in 8tlected areas (1955)
Area
Total sales Kinney
(pairs) Shoe Store
(%)
Dodge City, Kans ............... . ... . . 31,400 23. 3
Texas City, Tex ............... ..... .. . 32,300 27. 8
Council Bluffs, Iowa .................. . 68,200 27.3
Marshalltown, Iowa ....... ........... . 72,600 21. 8
Uniontown, Pa ........ . . . ... ......... . 144,000 16. 3
Ardmore, Okla. ..... ....... ... ......... 62,600 14. 4
Keokuk, Iowa ...... ... ............... . 34,600 IS. 4
Ottumwa, Iowa _______________________ _ 67,200 28. 2
Pine Bluff, Ark ....................... . 63,100 21. 6
Lawton, Okla .............. ........ ... . 95,200 ~-2
Borger, Tex __________________________ _ 50, 100 15. 5
Roswell, N. Mexico ........ ......... . . . 80,900 11. 7
Topeka, Kans ...... ............ ...... . 224,000 11.7
Coatesville, Pa ....... .... . ............ . 46,200 17. 2
Hobbs, N. Mexico .................... . 50,800 22. 2
Iowa City, Iowa ........ ..... ... ...... . 72,200 15. 3
Dubuque, Iowa ..... . . .... ............ . 119, 000 14. 3
Carlisle, Pa ..... . ............... . ..... . 55, 500 17. 5
Texarkana, Ark ......... . . ...... ...... . 65,800 15. 9
Fort Dodge, Iowa ............ ... . . .... . 104,000 10. 8
Steubenville, Ohio. ......... ..... ...... ~7,200 14. 9
Mason City, Iowa .... . . ........ . . . . . . . 102,400 14. 4
Marion, Ohio. ..... .................... 91,600 6. 7
Pueblo, Colo ......... . . . ...... ........ . 152,400 14. 1
Hibbing, Minn ................. . ..... . 44,600 18. I
Fargo, N. Dak .... ...... .............. . 162, 800 15. 3
Franklin, Pa .......................... . 32,100 14. 4
Corpus Christi, Tex. ... . . . . . . .. - .... . 331,500 2. 4
Batavia, N.Y _________________________ _ 75,300 13. 2
McAllen, Te, ............... .......... . 00, 200 13. 0
Concord, N .H .................. ...... . 57,300 15. 6
Sioux City, Iowa ................. - .. . 222,000 7.7
Muskogee, Okla. ...................... 68,100 7. 6
Rochester, Minn ..... . ... ............. . 130,100 11. 2
Bartlesville, Okla. .. . . ................ . 63,100 15. 8
Berwyn, 111. .......................... . 95,900 17.8
Clarksburg, W. Va ...... . . ........... . 134,600 15. 5
Davenport, Iowa ...... ......... ...... . 230,300 6. 4
Freeport, Ill. .................. ... .... . 88,000 10. 7
Grand Forks, N. Dale ................ . 121,100 12. 8
Muskegon, Mich ... ........ . ...... ... . 172,000 4. 0
Baton Rouge, La ........... .... .... . . . 398, 100 3. 8
Des Moines, Iowa .................... . 562,800 4. 9
Brown
owned or
controlled
outlets
(%}·
34. 4
20. 7
15. 4
13. 4
18. 8
~.3
14. 8
4.3
9. 4
9.8
13. 8
15. 8
15. 8
10.0
5.0
JO. 7
11.5
5.9
7.5
12. 5
8.1
8.3
15. 7
7. 5
3.4
6. 2
7.1
19.0
8.1
8.3
4. 7
12.3
12.2
8.6
3. 9
1.9
3. 9
12. 8
8.3
6.1
14. 9
14.9
13.8
Combined
Brown•
Kinney
share
(%}·
57. 7
48. 5
42. 7
35. 2
35.1
34. 7
33. 2
32. 5
31.0
30.0
29.3
27.5
27.5
27. 2
27.2
26.0
25. 8
23. 4
23. 4
23.3
23. 0
22. 7
22. 4
21. 6
21. 5
21.5
21.5
21. 4
21.3
21.3
20.3
20.0
19.8
19.S
19. 7
19. 7
19.4
19. 2
19. 0
18. 9
18. 9
18. 7
18. 7
• The percentages in these rolumns reflect sales of Brown brand shoes throu~h Brown
owned or controlled outlets.
348 OCTOBER TERM, 1961.
Appendix A to Opinion of the Court.
Women's shoes-Continued
Area
Springfield, Mo_. ___________ _____ ____ _
Laredo, Tex.------·.--·---···----___ .
St. Cloud, Minn·----------············
Fort Smith, Ark·-······--·-··-·······-
Klngsport, Tenn.·-·-···-·····-···-····
Gulfport, Miss..·-··-···-·····-········
Cortland, N,Y ........................ .
Fremont, Nebr ....................... .
Manito,voc, W!s •••• ·-·········--·---·-
Sallna., KR.ns_ __ .............. ---.-------
Mnncie, Ind . .•••••••••••••••• ·-··--··-
Portsmoutb, Ohio.·-··············-··-
Reading, Pa •• · ·-·-·--···-············.
Greensburg, Pa.. ·-·--··--············-
Llttle Rock, Ark ••• ·-····-·-··-········
Flint, Mich. ..· -···-··-···.-•·• ••••••••
Wichita, Kans_·-···--···-·-···-·······
Lubbock, Tex ············-······-····
Kingston, N.Y ···············-·········
Em porla, Kans ....................... .
Johnson City, Tenn .. ................ .
Odessa, Tex ........................... .
Bloomington, Ill ...................... .
Elgin, Ill.. .............. -·····-········
Enid, Okla ················-········
Burlington, Iowa ••••• ·•··-···-··-·····
South Bend, Ind ...................... .
Galesburg, IIL .... . . ................ .
A bllene, Tex.······-·········••·•·•·• ••
Meridian, Miss ••• ·-···················
Toledo, Ohio •• ···········-······-·····
Tulsa, Okla. •••••.••• ·--···············
Colorado Springs, Colo ............ . . .. .
Williamsport, Pa ..................... .
Mankato, Minn .... ........... ....... .
Green Bay, Wis ...................... .
Waterloo, Iowa ....................... .
Sioux Falls, S. Dak . .................. .
Glens Falls, N .Y . .................... .
Kansas City, Kaas . ................. .
Oklahoma City, Okla ................. .
Hutchinson, Kans ... ....... ·········-·
Kenosha, Wls ............ ·-·····--···-·
Pottsville, Pa ......... ............ ···-·
San Angelo, Te•·······-·············-·
Wheeling, W. Va ..................... .
Ithaca, N. Y ··-••····--·-·-··-··-······
Zanesvllle, Oblo •......... -·····-······
Mobile, Ala .......... -................ .
• See footnote on p. 347.
Total sales Kinney
(pairs) Shoe Stora
(%)
210,400 3. 7
166, 200 15. 3
88,400 9. 6
166, 200 11. 8
106, 200 13. 0
99,700 14. 2
55,300 12. 2
56,100 11. 8
60,800 13. 9
102, 800 13. 8
158,000 7. 9
141,200 9. 2
417,200 6. 0
117,800 8. 0
468,100 2. 7
628,300 2. 7
666,600 7. 6
305,500 3. 9
112, 100 11. 6
44,300 1'.3
75,800 12. 0
167,700 8.1
129,600 6. 2
126,900 6. 7
140, 400 10. 7
74,600 10. 7
434,500 1. 6
115, 600 12. 4
184, 300 12. 4
120,000 3. 7
821,800 l . 3
749,000 7. 0
225, 600 7. 6
153,400 4. 1
99,900 7. 9
220,000 7.5
224,100 10. 2
172,000 7. 4
115, 300 7. 6
181,300 8. 6
839,500 1. 8
156,400 9. 0
107, 700 7. 0
147,000 6. 0
113,800 6. 5
311,600 6. g
82,300 6. 8
138,800 9. 0
473,100 1.0
Brown
owned or
controlled
outlets
(%)•
14. g
3.2
8. g
6. 5
5.1
3. 7
5. 5
5. 6
3.5
3.3
9.0
7.2
10. 4
7. 9
13. 2
13.1
8.3
11. 7
3. 9
0. 8
3.1
7. 0
8.6
8. 0
•. 0
3. 9
13. 0
2.1
2. 0
10.6
12. 6
6. 9
6.1
9. 2
5. 3
5. 2
2. 3
4. g
4.6
3. 6
10. 4
2. 4
4.3
5.3
4.6
3.9
4. 7
1. 5
9.4
370U.S.
Combined
Brown-
Kinney
share
(%)•
18. 6
18. 6
18. 6
18. 3
18. 1
17. 9
17. 7
17. 4
17.4
17.1
16. 9
16. 4
16. 4
15. 9
15. 9
16. 8
15. 8
15. 6
15. 5
Iii. I
15.1
15.1
14. 8
14. 7
14. 7
14.6
14.6
14.6
14.4
14.3
13.9
13. g
13. 6
13. 3
13. 2
12. 7
12. 5
12. 3
12. 2
12. 2
12.2
11.4
11. 3
11. 3
11. 1
10. 8
10. 5
lQ.5
10. 4
BROWN SHOE CO. v. UNITED STATES. 349
294 Appendix A to Opinion of the Court.
Women's shoes-Continued
Area
York, Pa ---------------·------·-----
Gary, Ind _________ . ------·--------·---
Decatur, 111--------------------- ______ _
Amarillo, Tex ________________________ _
M lnneapolls, Minn __________________ _
Fort Worth, TeX----·--·-·-----·-------
W aco, Tex ____________________________ _
Altoona, Pa __________________________ _
Lancaster, Pa ________________________ _
Rock lord, IlJ __________________________ _
Saginaw, Mich_----··-----·-··-·····-·
Grand Rapids, Mich _________________ _
Jacksonville, Fla _____________________ _
Col um bus, Ga _______________________ _
Evansville, Ind ___________________ ·--·
St. Paul, Minn--·---··-·-·----··--·--·
Montgomery, Ah•·-··-··-··-·····-·---·
Peoria, Ill .................... -....... -.
Springfield, Ill ••• • •••• ········-··---·--
Milwaukee, Wis.·--·······-··••·• •••••
San Antonio, Tex ............... ·-···-·
Cedar Rapids, Iowa .................. .
• See footnote on p. 347.
Total sales
(pairs)
344,200
414,400
221,800
334,100
1,900,900
1,002, 100
170,400
241,000
316,400
377,400
32jj,300
650,300
739,200
308,300
486,600
1,013,200
437,100
469,300
304,400
1,984,900
1,476,000
256,600
Kim1ey
Shoe Store
(%)
5.1
4.3
3. 9
5. 6
5.3
1. 4
5. 4
4.8
3. 9
6.0
2.1
5.8
0. 6
3. 4
3. I
3.1
I. 7
3. 6
5.1
5.9
1.0
3. 9
llrown
owned or
oontrolled
outlets
(%)•
4,9
5.3
5,5
3. 2
3.1
6.9
2.9
3.3
4.2
3.1
5.6
1. 6
6. 7
3.6
3. 6
3.5
4. 7
2.8
1. 3
0.3
4. 7
1.2
Combined
Bro-wn-
Kinney
share
(%)·
10.0
9.6
9.4
8,8
8.4
8.3
8.3
8.1
8.1
8.1
7.1
7. 4
7.3
6. 9
6. 7
6. 6
6. 4
6. 4
6. 4
6. 2
5. 7
5. 1
Source: GX 9, 214, R. 60-70, 1223-1227; DX RR, DDDD-1, DDDD-2, R.3892-4315, 4939-
6299, 5300-5652.
350 OCTOBER TERM, 1961.
Appendix B to Opinion of the Court. 370U.S.
APPENDIX B
Sales of children's shoes by Brown and Kinney as a share of the total city
sales in selected areas (1955)
Area
Coatesville, Pa .................. ...... .
Dodge City, Kans .................... .
Council Bluffs, Iowa .................. .
Ardmore, Okla ........................ .
Pueblo, Colo ................. ..... .... .
Borger, Tex ___________________________ _
Berwyn, Ill ........................... .
Batavia, N.Y-.---........ -.-..................... -.
Ottumwa, Iowa _______ ....................... ..
Carlisle, Pa ........................... .
Manitowoc, Wis ....... . ... . ......... .
Lawton, Okla ......................... .
Franklin, Pa .......................... .
OulCport, Miss ........ .............. .. .
Fremont, Nebr ....................... .
Bartlesville, Okla ..................... .
Concord, N .H ........................ .
Uniontown, Pa ....................... .
Marshalltown, Iowa .................. .
Cortland, N. Y ........................ .
Kingsport, Tenn ...................... .
McAllen, Tex ......................... .
Topeka, Kans ........................ .
Texarkana, Ark ........... ............ .
Johnson City, Tenn .................. .
Dubuque, Iowa ..................... .. .
Emporia, Kans ....................... .
Iowa City, Iowa .................. .... .
Muskogee, Okla ...................... .
Salina, Kans .......................... .
Mason City, Iowa .................... .
Enid, Okla ............. .............. .
Kingston, N.Y ........................ .
Rochester, Minn ...................... .
Ithaca, N. Y .......................... .
Hutchinson, Kans .. _________________ _
Baton Rouge, La ..................... .
Grand Forks, N. Dak ................. .
Sioux City, Iowa ...................... .
Altoona, Pa.. .......................... .
Elgin, Ill. ..............................
Total sales
(pairs)
20,900
14,200
30,900
28,400
69, 100
22,700
43,500
34.100
30,500
25,200
27,600
43,200
14,500
45,200
25,400
28,600
26,000
65,700
32,900
25,100
48, 100
40,000
101,600
29,800
34,300
53,900
20,100
32,700
30,000
46,600
46,400
63,700
50,800
59,100
37,300
70,900
180,400
54,900
100,600
109,300
57,500
Kinney
Shoe Store
(%)
20. 8
35. 5
36. 6
20. 7
25.4
24.8
31. 2
14.0
30. 4
21. 4
19. 2
18. 3
14.4
24. 5
14.3
20. 7
16. 3
18. 9
22.8
13.8
14. 8
17.0
15. 7
19.2
13. 0
17. 6
14. 5
1.,. 8
10. 7
12.5
16. 8
12.1
12. 8
7.5
5. 5
10. 9
8.0
12. 7
9. 8
12.5
13. l
Brown
owned or
controlled
outlets
(%)•
31.0
13. 5
6.5
21.0
15. 8
16.1
3.4
19.3
2. 5
11. 3
12. l
12. 6
14. 9
4.5
14. 6
7. 8
11. 8
8. 3
4. 2
12. 4
10. 6
7.5
7. 2
3. 6
9.4
4. 5
7. 4
11.R
10. 9
8. 7
3. 4
6.9
5.1
9. 9
11. 8
6.0
8.6
3.4
5. 9
2. g
2.3
Combined
Brown.
Kinney
share
(%)•
51.8
49.0
43. l
41. 7
41.2
40. 9
34. 6
33.3
32. 9
32. 7
31. 3
30.9
29.3
29.0
28. 9
28. 5
28. I
27. 2
27. 0
26.2
25.4
24.5
22. 9
22. 8
22.4
22. l
21. 9
21.6
21. 6
21. 2
20.2
19.0
17. 9
17. 4
17.3
16. 9
16.6
16.1
Iii.?
15.4
15. 4
'The percentages in these columns reflect sales of Brown brand shoes through Brown owned
or controlled outlets, with the single exception of Manitowoc, Wis., In which case they
reflect the sale of Brown brand shoes through all outlets, regardless or ownership or control,
and are, therefore, marginally too high.
BROWN SHOE CO. v. UNITED STATES. 351
294 Appendix B to Opinion of the Court.
Chiliiren's shoes-Continued
Area
Meridian, Miss ....................... .
Wichita, Kans ........................ .
Colorado Springs, Colo .......... ..... .
Fort Smith, Ark ........... ........... .
Fort Dodge, Iowa ..... ............ ... . .
Zanesville, Ohio .................. .... .
Muskegon, Mich ..................... .
Stenbenville, Ohio ............ . . .... .. .
Tulsa, Okla. .... ...... .................
Corpus Christi, Tex .................. .
Davenport, Iows .. __________________ _
Fargo, N. Dak ............. ...... . .... .
Wheeling, W. Va ..... . . ............ . . .
Amarillo, Te:r. .........................
Lillie Rock, Ark ................ . . .... .
South Bend, Ind ...................... .
Greensbnrg, Pa . .............. ........ .
Des Moines, Iowa .............. ...... .
Glens Falls, N. Y ......... . ........... .
Green Bay, Wis ...................... .
Decatur, Ill ............ . . ..... ........ .
Fort Worth, Tex ...................... .
Mobile, Ala ....... ........ ............ .
Gary, Ind ......... ........ . . . ·-·······
Bloomington, rn ................ . ..... .
Springfleld, Mo• •••• ••·······-·····
Willamsport, Pa . . . ................... .
Waco, Tex ___________________________ _
Lubbock, Tex• •• ··· ·-····- ·········
Pottsville, Pa ....... ... ............... .
Milwaukee, Wis . . ................... . .
Lancaster , Pa ... .. .................... .
Tampa, Fla ••••••••••• ·-··············
Oklahoma City, Okla ................. .
Mankato, Minn ............ .......... .
Minneapolis, Minn •••••••• ·--··· ···
Peoria, 111 .......... ... .......... ...... .
Colnmbns, Ga .............. .......... .
Reading, Pa• ••••••· -···············
Toledo, Ohio .......................... .
Jacksonville, Fla• ••· -·················
Spring!!eld, ru .... ......... . ........ .. .
Montgomery, Ala ............. ........ .
Brownsvllle, Tex ..... ..... . .......... .
Saginaw, Mich ...... .. ................ .
St. Paul, Minn ................. .... .
Detroit, Mich ......................... .
• See footnote on p. 350.
Total sales
(pairs)
54,400
302,200
102,300
74,900
47, 100
62,000
78,000
93,900
339,500
150,300
104,400
73,800
Hl,200
151,400
212,200
197,000
53,400
225,100
52,300
99,700
100,500
495,100
198,100
187,800
!i8, 800
95, 400
69,600
77,200
138,500
66, 600
899, 800
143,400
251, 600
380,600
45,300
865,800
212, 700
139, 700
189,100
372,500
335,100
558,500
164,500
100,500
147,900
459,300
2,483,900
Kinney
Sboe Store
(% )
6. 7
9.6
8.0
12.1
12. 5
9. 7
7. 4
11. 4
8.6
4.4
8.4
9.0
8. 7
8.6
3.0
2. g
8. g
6. 5
10. 2
7. 3
6. 3
3.3
4. 5
7.0
6. 5
3.1
5.0
6.3
6.4
5.Q
8.3
6.2
4.5
2.6
8'9
6. 7
6. 7
6. 4
4. 4
1. 5
2. 0
5. 7
3.3
4.3
3. 5
2. 7
4.4
Brown
owned or
controlled
outlets
(%).
8.7
5.6
7.1
3. 0
2. 4
4. 8
6. 6
2. 4
5. 2
8.8
4. 8
3. 8
4. I
4.2
9.5
9.4
3.0
6.1
1. 2
3.8
4.4
7.4
6.2
3.6
4.0
6.5
4.5
3.2
2. 8
3.3
0.4
2. 3
4.0
5.8
1. I
1. 2
1.0
1.2
3. 1
5.3
4. 5
0. 7
2.9
1.8
2. 5
2.5
0.6
Combined
Brown-
Kinney
share
(%)"
15. 4
15. 2
15. 1
15. l
14. 9
14.5
14.0
13.8
13.8
13.2
13.2
12. 8
12. 8
12. 7
12. 5
12.3
11.9
11. 6
11. 4
11. 1
10. 7
10. 7
10. 7
10. 6
10. 5
9.6
9.5
9.5
9.2
9.2
8. 7
8. 5
8. 5
8.3
7.9
7.9
7. 7
7.6
7.5
6.8
6. 5
6. 4
6.2
6, I
6,0
5.2
5.0
Source: G X 9, 214, R. 60-70, 1228-1232; DX RR, DDDD-1, DDDD-2, R. 3892-4315,
4939-52119, 5300-5652.
352 OCTOBER TERM, 1961.
Appendix C to Opinion of the Court. 370 u. 8.
APPENDIX C
Sales of men's shoes by Rrown and Kinney as a share of the total city sales
in selected areas (1955)
Area
Dodge City, Kans ____________________ _
Ardmore, OkllL _____ ---- · ____________ .
Batavia, N. Y------------·-----------__
Lawton, Okla _________________________ .
Borger, Tex __________________________ _
P11eblu, Colo _________________________ _
Carlisle, P•-----------------------· Freruont, Nebr _______________________ _
Coatesville, Pa ________________ _____ _
Manitowoc, Wis _____ ---------·---·-··
Franlrlin, Pa_---·--·---·---·--·---·-·-
Couocil Bluffs, Iowa_·---·_ _ .. _ _. .... Concord, N,H_ •••• ·----··············
Texarkana, Ark_ .... -..... ----------------
Corpus Christi, Tex_ •••••• ------·--··-
Muskogee, Okla _________ ----·--···--
Emporia, Kans .._ . ...•••. ••. ·--··--·
Kingsport, Ten!I _______ . ---·---··••·. ..
nartlcnllle, Okla ____ ·--·-___________ _
Cortland, N.Y _ . _____________________ _
Dubuque, Iow1:L _________ ·-------------
McAllen, Te,. ____ --·--._ ___ ·-·--·-·_ Jlerwyu, IJL ___________ . ___ --· ____ _
Salina, Kan•.---·-··--------·····---·--
Kingston, N .Y ·--·----·_ ______________ _
~:lgln, Il] _____ -· ___ ·--___ ·-___________ _
Enid, Okla._------------------ _______ _
Uniontown, Pa ___ ---·-_----·-·-·-----
Rochester, Minn __ ·------------- _____ .
Fort Smith, Ark _____ . ________________ _
Topekn, Kans ___ . ____________________ _
Hutchinson. Kans.··-·-··-·--·--------
Johnson C'lty, Tenn _ ________________ _
Davenport, lows. ____________________ _
Ithaca, N. Y .. ___________________ ··---
Zanesville, Oblo _____________ .. _______ _
Muske~on, Mich.----·---- ·-______ . __ _
Steubenville, Ohio ___________________ _
Spriugrleld, :\-fo _____________________ --
Total sales
(pairs)
12,00U
23,000
28. 700
36,300
19,100
58,100
21,200
21,400
17,600
23,200
12. 200
26. 000
21. 900
25. 100
12e, 500
26,000
16,900
40,500
24, 1()/)
21,100
,15,400
34,400
36,000
39,200
42,800
48,400
53,600
.15. 300
49,600
63,000
85,500
59, 700
28,900
87,900
31,400
53. 000
65. 600
79,000
SO, 300
Kinney
Shoe Store
(%)
16. 4
8.1
8. 9
II. 3
II. 5
8. 6
14. 3
8.0
9.3
10. I
10. 5
14. 0
II. 0
12. I
2. 0
6. 5
7. 8
7. 2
8. 9
7. 6
10. 2
8. 4
9.1
7.2
6.9
10. I
5.9
7.3
4.3
5.2
9.0
5.1
7. 7
6.0
3.5
5.2
5. I
5. 7
3.6
Brown
owned or
controlled
outlets
(%)•
8.4
15. .,
II. ;J
8.2
7. 8
10. 3
4. 2
10. 4
8. 2
7. 3
5.3
I.I
3. 7
2.6
12.3
7. 6
5. 7
~- u
4. I
5.2
2.1
3.5
2.6
3.9
3. 7
0. 4
4.6
2.9
5. s
4.5
0.5
3. 7
1.0
I. 7
4.2
2. I
I. 7
I.I
2. 8
Combined
Brown-
Kinney
shart!
(%)•
24.8
23. 6
20.2
19. 5
19. 3
1!1.9
IS. 5
18. 4
17.5
17. 4
15.8
15.1
14. 7
14. 7
14. 3
14. l
13.5
13.1
13.0
12.8
12. 3
II. 9
11. 7
11.1
10.6
10.
10.5
10.2
9.8
9. 7
9.5
8.8
8. 7
7. 7
7. 7
7. 3
6.8
6.8
6.4
'The percentages In these columns reflect sales or Brown brand shoes through Brown
owned or controlled outlets, with the single exception of Concord, N .H., In which case they
reflect the sale or Brown brand shoes through all outlets, regardless or ownership or control,
and are, therefore, marginally too high.
BROWN SHOE CO. v. UNITED STATES. 353
294 Appendix C to Opinion of the Court.
Men's shoes-Continued
Area
Amarillo, Tex_------------------------
Asheville, N.C _______________________ _
Green Bay, Wis_---······-·--·--·----·
Waco, Te:r_,.. _____ ... ------------------
Greensburg, Pa __________________ -- ---
Peoria, Ill ____________________________ _
Reading, Pa ____ ---------------------
Wichita, Kans ______________________ . .
Colorado Springs, Colo ______________ _
• See footnote on p. 352.
Total sales
(palrs)
127. 400
80,900
83,000
65,000
44. 000
179,000
159,200
2!\4,300
86.100
Klnn~y
Shoe Store
(%)
4. 6
2.9
4.0
2.6
4. 4
4. 7
2. 7
4.3
4. 4
Brown
owned or
controlled
outlets
(%)•
1.3
2. 9
1.6
3.0
1.0
o. 7
2.6 o. g
o. 7
Combined
Brown-
Kinney
share
(%)'
5. 9
5.8
5. 6
5.6
5. 4
5.4
5.3
5. 2
,I, I
Source: GX 9, 214, R. 60-70, 1219--1222; DX RR. DDDD-1, DDDD-2, R. 3892-4315,
493B-52!19, 5300-5652,
354 OCTOBER TERM, 1961.
Appendix D to Opinion of the Court. 370U.S.
APPENDIX D
Comparison of Brown-Kinney percentage of industry shoe sales for select Pd
cities, and counties or standard metropolitan area.,
[Appellant's percentages or 1054 dollar sales adjusted to include sales of llrown franchise anrt
Wohl plan stores]
City
Texas Cit.y, TP.x _______ _ Coatesvill~., PR. ___ ______ _
Ottumws:t.. IowA. ________ _
Uninntnwn, Pa __ ______ _
Texarl,rn.n~ Arlr __ __ ___ __ _
Marshalltown, lnwn. ____ _
Council Rlnff~ Tnwa_ ___ _
Corpus Christi, T,x_ ___ _
ArdmnTP., Okla. _________ _
Iowa City, lnwA. _ ______ _
Muskng"P., OklR. _______ _
Steubenville, Ohio _____ _
Grand Fmkc;, N .. Da.k ...
Masl'.\n t!ity, Tnwa _____ _
Topeka. Kans _________ _
Baton R<1ugiP., T,n _______ _
RocbPStPr, Minn . . ... ... .
Dubuque., Towf\ _________ _
Fort ~mlth, Ari< ________ _
1.ittle Rock, Ark _______ _
Fort nmlgP., Iowa. _ ___ _ Springflel<l, Mo ____ ___ _ 'Rerwyn, Ill _________ ·----
Davenport, Iowa ______ _
Fargo, N. Dak.·-·--··---
AltonnA., P11 ___________ Muskegon, Mif'h ___ ____ _
'R~ar11nit. PA ___________ _
81'.'uth 'R~m\ Tntl ________ _
Oreensburg, Pa. _________ _
lllnnmlngt:.on, TlL ....... .
Kansas City, Jvi.n!1. ..... .
Colorado Springs, Colo _ _
F.lgin, Jll--------···- •••
Oklahoma City, Okla __ _
County or SMA percentage 1
City per- 1_ __________________
eentage'
Name SMA Countr
35. 8 Galveston, Tex·-·----·-····-·_ 12. 2
32.9 Philadelphia, Pa____ __________ 1.9
27.3 Wapello County _____________ ··-----·-· 26.5
27.2 Fayette County _______ ·----· ----·--·-- 12.4
25.3 Miller County________________ 23.9
24. 9 Marshall County .. ___________ 22. 6
24.2 Omaha, Nebr __ . ___ __________ 7.9
24.0 Corpus Christi, TeX---·--··--· 22.6 _________ _
23.4 Carter County ______________ . ·--·····-· 20.4
18.9 Johnson CountY---------··-·· ----···-·· 16.6
17. 7 Muskogee County ___________ ··-····--- 16. 5
17. 5 Wheeling-Steubenville________ 8. 7
17.1 Grand Forks County ________ ·---·----- 14.4
16. 6 Cerro Gordo County._. ______ ----·----- lb. 6
15. 4 Topeka, Kans_________________ 16.1
16, 0 Baton Rouge, La.-_____ -·_ ·- __ 15. 9
15. 9 Rochester, Minn. _ . _________ . 15. 4
15.4 Dubuque,Iowa.____________ __ 13.9
15.4 Fnrt. ~mlt.h, Ari<______________ 14. 7
15. 2 Little Rock & North Little
Rnck, Ark. ___ -···--·--··-- 13.2
14. 8 Webster County __ ·------·---- 14.3
14.3 Springfield, Mo__ _________ ___ 13.3
14.1 ChlrAgn, m________________ ___ 2. 5
14. 1 Davenport, Moline, Rock
l<hnrl ••. • ---·-·---·---····-- 12.2
13.9 Cass County _________________ ·-·---·--- 13.5
13.1 Altoona, P•··---·------------- 10.6 ···---···-
13.1 Muskegon County ____________ -·-----··· 12.0
12.2 Reading, Pa_______ ___________ 10. 7
11.9 South Bend, Ind_____ _________ 11.1 ··---··---
11.3 Pittsburgh, Pa________________ 2.5
11.0 McLean County _____________ ·----···-· 9.8
to. 7 KsmSSl~ C;it.y, Mo_____________ 3.1 ----------
10. 6 El Paso CountY------- -·--····· --------- 10.5
10. 5 Chicago. Tll__ _________________ 2. 5
10. 0 Oklahoma City, Okh1-._______ JO. I ------·-· ·
1 Based on dollar values from DX DDDD-1, DDDD-2. NNNN, UUUUUU, R. 4930-5299,
R. 5300·5652, 5780-5818, 715o-7313; G X 241D, R. 2014--2365.
• Total areadollarestirnatesollootwenrsaleslrom GX242, R. 2807-2819, and DX UUUUUU,
R. 7155-7313. Area dollar sales orrootw~ar by Brown and Kinney owned or controlled outlets
lrom DDDD-1. DDDD-2, NNNN, UUUUUU, R. 4939-5299, 5300-5652, 5780-5818, 7155-7313;
G X241D, R. 2014--2365.
BROWN SHOE CO. v. UNITED STATES. 355
294 CLARK, J., concurring.
MR. JUSTICE CLARK, concurring.
I agree that so long as the Expediting Act, 15 U. S. C.
§ 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 2½ years have passed since the
District Court's decision.
On the merits the case presents the question of whether,
under § 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 § 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.
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
*Since the judgment below can be supported on this theory, there
is no need to inquire into any tendency to create a monopoly.
356 OCTOBER TERM, 1961.
CL.,.RK, J., concurring. 370 u. s.
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.
BROWN SHOE CO. v. UNITED STATES. 357
294 Opinion of HARLAN, J.
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 § 2 of the Expediting Act of 1903. That statute, in its
present form, provides (15 U. S. C. § 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." (Emphasis
added.)
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 Anti358
OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370 u. s.
Trust 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 jurisdiction 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
BROWN SHOE CO. v. UNITED ST ATES. 359
294 Opinion of HARLAN, J.
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
360 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370U.S.
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.'
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. Benefici,al Industrial Loan
Corp., 337 U. S. 541, and Forgay v. Conrad, 6 How. 201,
that a delay in appellate review would result in irreparable
1 "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.
BROWN SHOE CO. v. UNITED STATES. 361
294 Opinion of HARLAN, J.
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 a11owed 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
663026 0-62-2 7
-
362 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370U.S.
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 "negotiation 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
BROWN SHOE CO. v. UNITED STATES. 363
94 Opinion of HARLAN, J.
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 sub silentio, 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
364 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370U.S.
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.2
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
2 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). (Emphasis added.) 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.
BROWN SHOE CO. v. UNITED STATES. 365
294 Opinion of HARLAN, J.
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.
§ 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
366 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370 u. s.
be, in the language of § 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 § 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§ 7, without regard to what might be deemed
to be the "horizontal" effects of the transaction.
l. "Line of Commerce."-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
BROWN SHOE CO. v. UNITED STATES. 367
294 Opinion of HARLAN, J.
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 wearingapparel
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. Un-ited 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 § 7 speaks of the lessening of competition
"in any line of commerce" (emphasis added) does not, of
course, mean that the product market on which the effect
of the merger is considered may be defined as narrowly
368 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370 U.S.
or as broadly as the Government chooses to define it.3
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 wearingapparel
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
3 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.
BROWN SHOE CO. v. UNITED STATES. 369
294 Opinion of HARLAN, J.
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 "reasonable
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.4
Prior to 1955 Kinney had bought none of its outsidesource
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
• 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.
370 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370 u. s.
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.5
5 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%.
BROWN SHOE CO. v. UNITED STATES. 371
294 Opinion of HARLAN, J.
(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.•
( 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 mi1lion 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.7
If the contro11ing test were, as it may be under the
similar language of§ 3 of the Clayton Act, one of "quanti-
6 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.
7 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.
372 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370U. S.
tative 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 § 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 "a 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
BROWN SHOE CO. v. UNITED STATES. 373
294 Opinion of HARLAN, J.
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.8
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 § 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
8 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.
374 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370U.S.
statistics in the record fall short of convincing me that any
such trend exists.9 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.
9 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 outlets 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.
WOOD v. GEORGIA. 375
Syllabus.
WOOD v. GEORGIA.
CERTIORARI TO THE COURT OF APPEALS OF GEORGIA.
No. 369. Argued March 29, 1962.-Decided June 25, 1962.
In the midst of a local political campaign, a County Judge, in the
presence of representatives of news media assembled at the 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.
103 Ga. App. 305, 119 S. E. 2d 261, reversed.
Milton Kramer argued the cause for petitioner. With
him on the briefs was James I. Wood.
E. Freeman Leverett, Deputy Assistant Attorney General
of Georgia, argued the cause for respondent. With
376 OCTOBER TERM, 1961.
Opinion of the Court. 370U. S.
him on the briefs were Eugene Cook, Attorney General,
William M. West, Solicitor General, and Jack J. Gautier,
Assistant Solicitor General.
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 "create[d] an unhealthy, dangerous, and
unlawful situation [which] tend[ed] 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
WOOD v. GEORGIA. 377
375 Opinion of the Court.
to be founded in truth.1 In addition, certain questions
were posed to the jury which it was to investigate in
inquiring into the charges of election law violations.2
1 The Georgia Legislature has provided that it shall be a misdemeanor
for any person to "[b]uy or sell, or offer to buy or sell, a vote,
or [ to 1 . . . 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., § 34-9907. See also
Ga. Code Ann., § 34-1907, included in the court's charge.
2 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
bane 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 faels 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 inexpicable 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 ... .
" ... [T] he matter you are directed to investigate is the persistent
rumors and accusations concerning the methods used in the solicita-
663026 0-62-28
378 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
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
tion 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 candidate make, if any, in order to obtain
the bloc vote?
"Now, gentlemen, 1t 1s 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."
.
WOOD v. GEORGIA. 379
375 Opinion of the Court.
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.
380 OCTOBER TERM, 1961.
Opinion of the Court. 370U.S.
"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 nieve [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 ra.ce 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
'
WOOD v. GEORGIA. 381
375 Opinion of the Court.
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," 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 endorsements 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
3 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.
382 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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
WOOD v. GEORGIA. 383
375 Opinion of the Court.
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.
4 To determine the scope of this constitutional
• Thornhill v. Alabama, 310 U.S. 88, 95; Schneider v. State, 308
U. S. 147, 160; De Jonge v. Oregon, 299 U. S. 353; Near v. Minnesota,
283 U.S. 697, 707; Gitlow v. New York, 268 U.S. 652,666.
384 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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.~ 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 263.6 Subsequently,
in Pennekamp v. Florida, 328 U.S. 331, after
noting that "[f] ree 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
6 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, 26.1-268. 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
(1&'33), passim; Thayer, Legal Control of the Press (3d ed. 1956),
483 et seq. See also Deutsch, Liberty of Expre.,:;gion 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).
6 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 RightR." Bridges
v. California, supra, at 263.
WOOD v. GEORGIA. 385
375 Opinion of the Court.
be allowed in the broadest scope compatible with the
supremacy of order." Id., at 334.1 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 "[tJhe 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 376.8
It is with these principles in mind that we consider the
case before us. Initially, however, it should be noted that
the Georgia court.s have determined that the power to
punish for contempt of court is inherent in its state
judiciary 9 and the Court of Appeals thus ignored the
express limitations imposed by the Georgia Legislature in
punishing out-of-court statements.10 This holding thus
7 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.
8 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.
9 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.
10 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., § 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 dis386
OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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.11
Despite its conclusion that the petitioner's conduct
created a serious evil to the fair administration of justice,
obedience 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.
11 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.
WOOD v. GEORGIA. 387
375 Opinion of the Court.
the Court of Appeals did not cite or discuss the Bridges,
Pennekamp 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.12 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,13
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.14 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 inter-
12 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.
13 See, e.g., Toledo Newspaper Co. v. United States, 247 U.S. 402,
414-416.
14 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., § 59- 302.
388 OCTOBER TERM, 1961.
Opinion of the Court. 370 G.S.
ference 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.15
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 types 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 102.16
15 Compare Toledo Newspaper Co. v. United States, supra, note
13, at 425 (Holmes, J ., dissenting).
16 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.
WOOD v. GEORGIA. 389
375 Opinion of the Court.
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. Fiorida,
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
390 OCTOBER TERM, 1961.
Opinion of the Court. 370U. S.
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.11 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
17 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).
WOOD v. GEORGIA. 391
375 Opinion of the Court.
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.18 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
18 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").
392 OCTOBER TERM, 1961.
Opinion of the Court. 370U.S.
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 "[n]o 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."
WOOD v. GEORGIA. 393
375 Opinion of the Court.
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.10 The opin-
19 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.
663026 0-62-29
394 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
ion of the Court of Appeals does not articulate any specific
reliance on this fact,2° 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
20 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.
WOOD v. GEORGIA. 395
375 HARLAN, J., dissenting.
where his political life was at stake.21 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.
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.
21 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.
396 OCTOBER TERM, 1961.
HARLAN, J., dissenting. 370 u. s.
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
375
WOOD v. GEORGIA. 397
HARLAN, J., dissenting.
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.1 Even
1 "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.
§ 1504.
398 OCTOBER TERM, 1961.
HARLAN, J., dissenting. 370 U.S.
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
WOOD v. GEORGIA. 399
375 HARLAN, J., dissenting.
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
incumbent 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
400 OCTOBER TERM, 1961.
HARLAN, J., dissenting. 370 U.S.
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 it 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.
WOOD v. GEORGIA. 401
375 HARLAN, J ., dissenting.
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, § 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 delib402
OCTOBER TERM, 1961.
HARLAN, J., dissenting. 370 U.S.
erations 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
WOOD v. GEORGIA. 403
375 HARLAN, J ., dissenting.
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,2 was clearly justified.
2 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 [sic] 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" issues [sic] 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
404 OCTOBER TERM, 1961.
HARLAN, J., dissenting. 370U.S.
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.
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 find [sic] 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"
UNITED STATES v. WISE. 405
Syllabus.
UNITED STATES v. WISE.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI.
No. 488. Argued April 16, 1962.-Decided June 25, 1962.
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 § 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 § 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 § 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 § 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 § 8, which defines
"person" to include "corporations and associations." Pp. 408-411.
(c) A different conclusion is not required by § 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.
196 F. Supp. 155, reversed.
Robert L. Wright argued the cause for the United
States. With him on the briefs were Solicitor General
Cox, Assistant Attorney General Loevinger, Daniel M.
Friedman and Richard A. Solomon.
406 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
John T. Chadwell argued the cause for appellee. With
him on the briefs were Richard W. McLaren, James A.
Rahl, James E. Hastings, Martin J. Purcell and John H.
Lashly.
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 l" of the Sherman Act, 15 U. S. C.
§ 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 § 14 of the Clayton
Act, 15 U. S. C. § 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. § 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 St.ates v. Greenhut, 50 F. 469 (D. C. D. Mass.
1892); United States v. Patterson, 55 F. 605 (D. C. D.
UNITED STATES v. WISE. 407
405 Opinion of the Court.
Mass. 1893),1 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.
Section 1 of the Sherman Act imposes criminal sanctions
upon "every person" who violates that provision,
15 U. S. C. § l.2 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
'- 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.
2 "Every contract, combination in the form of trust or otherwise,
or conspiracy, in restraint of trade or commerce among the several
States, or with foreign nations, is declared to be illegal . . . . 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."
408 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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 orr 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 § 8 of the Sherman Act, 15
U. S. C. § 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 § 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 perUNITED
STATES v. WISE. 409
405 Opinion of the Court.
sons 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. §§ 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 § 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. Mac-
Andrews & Forbes Co., 149 F. 823 (C. C. S. D. N. Y.
66~026 O-62-~0
410 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
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 persona11y responsible
for the crime.'
In United States v. Winslow, 195 F. 578 (D. C. D. ~fass.
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.
3 "It is not without significance that offenses as S('rious, in congressional
opinion, as those created by this statute are made misdemeanors.
When the statute declares that certain acts notorious!~·
to be accomplished under modern business conditions only through
corporate instrumentality shall be misdemanors [sic], 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 bf'
also charged with personal participation, dirertion, or activity therein,
both may be so charged in the same indictment." 149 F., at 832.
UNITED STATES v. WISE. 411
405 Opinion of the Court.
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 § 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 feference
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, including 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,
412 OCTOBER TERM, 1961.
Opinion of the Court. 370U.S.
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 § 14 is an entirely new provision
added by Congress to provide for the criminal
reponsibility of corporate officers who act in a representative
capacity. The Government contends that § 14 is
merely supplemental and that appellee's construction
results in an implied repeal of part of § 1 of the Sherman
Act:•
Appellee asserts that § 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§ 14 of the Clayton
Act applies only to an officer acting in a representative
capacity, § 1 of the Sherman Act only applies to an officer
acting on his own account.
We do not agree. The reasons for § 14 are sufficiently
revealed by the legislative history. The provision origi-
• Appellee also argues, "[t]he Government in this case has not
expressly relied on an aider and abettor theory, but . . . it has sought
tacit support from the theory." Bri<'f for Appellee, pp. 62-68.
Under the view we take of the case, it 1s unnecessary to con«ider the
application of the general aider and abettor statute, 18 U.S. C. § 2.
UNITED STATES v. WISE. 413
405 Opinion of the Court.
nated 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, " [ § 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
offense. 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.
414 OCTOBER TERM, 1961.
Opinion of the Court. 3i0 U.S.
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 § 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 H ous1:ng 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.
Section 14 was intended to be a reaffirmation of the
Sherman Act's 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 § 14 as a restriction of § 1 of the Sherman
Act. Thus, insofar as § 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.
UNITED STATES v. WISE. 415
405 Opinion of the Court.
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 § 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.
416 OCTOBER TERM, 1961.
HARLAN, J., concurring. 370U.S.
Based upon the foregoing, we hold that a corporate
officer is subject to prosecution under § 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 crimeregardless
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.
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!
1 The opinion below is reported at 196 F. Supp. 155 (W. D. l\fo.
1961). In accord are United States v. A. P. Woodson Co., 198 F.
Supp. 582 (D. D. C. 1961), appeal pending, No. 1019, 0. 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, 0. 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
UNITED STATES v. WISE. 417
405 HARLAN, J., concurring.
The language of § 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 § 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),
§ 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), § 892, that an agent might be punished
for crimes committed for his principal. Cf. United
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 CCR Trade
Reg. Rep. (1961), par. 45,061, case 1632, charged violations of § 14
as well as of § 1.
418 OCTOBER TERM, 1961.
HARLAN, J., concurring. 370 U.S.
States v. Mills, 7 Pet. 138, 142. A substantial volume
of convictions of individuals for corporate crimes had
accumulated by 1890.2 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 repor.ted 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
2 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).
405
UNITED STATES v. WISE. 419
HARLAN, J., concurring.
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
420 OCTOBER TERM, 1961.
HARLAN, J., concurring. 370 u. s.
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 3 lead to the conclusion
that the indictment in this case must be sustained.
s 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.
ENGEL v. VITALE. 421
Syllabus.
ENGEL ET AL. v. VITALE ET AL.
CERTIORARI TO THE COURT OF APPEALS OF NEW YORK.
No. 468. Argued April 3, 1962.-Decided June 25, 1962.
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.
10 N. Y. 2d 174,176 N. E. 2d 579, reversed.
William J. Butler argued the cause for petitioners.
With him on the briefs was Stanley Geller.
Bertram B. Daiker argued the cause for respondents.
With him on the briefs was Wilford E. Neier.
Porter R. Chandler argued the cause for intervenorsrespondents.
With him on the briefs were Thomas J.
Ford and Richard E. Nolan.
Charles A. Brind filed a brief for the Board of Regents
of the University of the State of New York, as amicus
curiae, in opposition to the petition for certiorari.
Briefs of amici curiae, urging reversal, were filed by
Herbert A. Wolff, Leo Rosen and Nancy Wechsler for the
American Ethical Union; Lou-is Caplan, Edwin J. Lukas,
Paul Hartman, Theodore Leskes and Sol Rabkin for the
American Jewish Committee et al.; and Leo Pfeffer,
Lewis H. Weinstein, Albert Wald, Shad Po lier and Samuel
Lawrence Brennglass for the Synagogue Council of
America et al.
A brief of amici curiae, urging aflirmance, was filed by
Roger D. Foley, Attorney General of Nevada, Robert
422 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
Pickrell, Attorney General of Arizona, Frank Holt,
Attorney General of Arkansas, Albert L. Coles, Attorney
General of Connecticut, Richard W. Ervin, Attorney
General of Florida, Eugene Cook, Attorney General
of Georgia, Frank Benson, Attorney General of Idaho,
Edwin K. Steers, Attorney General of Indiana, William
M. Ferguson, Attorney General of Kansas, Jack
P. F. Gremillion, Attorney General of Louisiana, Thomas
B. Finan, Attorney General of Maryland, Joe T. Patterson,
Attorney General of Mississippi, William Maynard,
Attorney General of New Hampshire, Arthur J. Sills,
Attorney General of New Jersey, Earl E. Hartley, Attorney
General of New Mexico, Leslie R. Burgum, Attorney
General of North Dakota, David Stahl, Attorney General
of Pennsylvania, J. Joseph Nugent, Attorney General of
Rhode Island, Daniel R. McLeod, Attorney General of
South Carolina, A. C. Miller, Attorney General of South
Dakota, Will Wilson, Attorney General of Texas, and
C. Donald Robertson, Attorney General of West Virginia.
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
ENGEL v. VITALE. 423
421 Opinion of the Court.
legislative powers over the State's public school system.1
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.2
1 See New York Constitution, Art. V, § 4; New York Education
Law, §§ 101, 120 et seq., 202, 214--219, 224, 245 et seq., 704, and
801 et seq.
2 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
424 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
We granted certiorari to review this important decision
involving rights protected by the First and Fourteenth
Amendments.3
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
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 embarrassments 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. Nonparticipation
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.
3 368 u. s. 924.
ENGEL v. VITALE. 425
421 Opinion of the Court.
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 .... " 4
The petitioners contend among other things that the
state laws requiring or permitting use of the Regent.cl'
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,
4 18 Misc. 2d, at 671-672, 191 N. Y. S. 2d, at 468-469.
663026 0-62-31
426 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
which was created under governmental direction and
which was approved by Acts of Parliament in 1548 and
1549,5 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.
6 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.7
Powerful groups representing some of the varying religious
views of the people struggled among themselves to
impress their particular views upon the Government and
5 2 & 3 Edward VI, c. 1, entitled "An Act for Uniformity of Service
and Administration of the Sacra,nents throughout the Realm"; 3 & 4
Edward VI, c. 10, entitled "An Act for the abolishing and putting
away of divers Books and Images."
6 The provisions of the various versions of the Book of Common
Prayer are set out in broad outline 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).
7 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.
ENGEL v. VITALE. 427
421 Opinion of the Court.
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.8 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.9 Indeed, as late as the time of the Revolu-
8 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."
9 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).
428 OCTOBER TERM, 1961.
Opinion of the Court. 370U.S.
tionary 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.10 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.11 Similar though less far-reaching
10 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. Ser 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.
11 12 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
ENGEL v. VITALE. 429
421 Opinion of the Court.
legislation was being considered and passed in other
States.12
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 saydissenting
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.
12 See Cobb, The Rise of Religious Liberty in America (1902),
pp. 482- 509.
430 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
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
ENGEL v. VITALE. 431
421 Opinion of the Court.
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.13 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.14 The Establishment Clause
13 "[A]ttempts 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.
14 "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. . . . [E]xperience 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,
432 OCTOBER TERM, 1961.
Opinion of the Court. 370U.S.
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.15 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.16 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 11-a law
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.
15 Memorial and Remonstrance against Religious Assessments, II
Writings of Madison, at 187.
16 "[T]he 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 hayen, where liberty and
philanthropy in their due extent may offer a more certain repose from
his troubles." Id., at 188.
17 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 SacraENGEL
v. VITALE. 433
421 Opinion of the Court.
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 .... " 18 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.19 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
ments 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 'l"ithout 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."
18 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.
19 For a vivid account of some of these persecutions, see W ertenbaker,
The Puritan Oligarchy (1947).
434 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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. 20 And there were men of this same faith in the
20 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 N eroes. 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 material! 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 betweene 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:
"[W]hat imprudence and indiscretion is it in the most common
ENGEL v. VITALE. 435
421 Opinion of the Court.
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.21
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.
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 of
New York has sponsored in this instance.
436 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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 othersthat,
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:
"[IJt 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?" 22
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.
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.
22 Memorial and Remonstrance against Religious Assessments, II
Writings of Madison 183, at 185-186.
ENGEL v. VITALE. 437
421 DouGLAS, J., concurring.
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.1 Nevertheless,
I think it is an unconstitutional undertaking whatever
form it takes.
First, a word as to what this case does not involve.
1 "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 Iimits-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.
438 OCTOBER TERM, 1961.
DouGLAS, J., concurring. 370U.S.
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.2
2 West Point Cadets are required to attend chapel each Sunday.
Reg., c. 21, § 2101. The same requirement obtains at the Naval
Academy (Reg., c. 9, § 0901, (1) (a)), and at the Air Force Academy
except First Classmen. Catalogue, 1962-1963, p. 110. And see HoneyENGEL
v. VITALE. 439
421 DouGLAB, J., concurring.
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. 1n 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 a 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 pubHc
schools is what each House of Congress a does at the openwell,
Chaplains of the United States Army (1958); Jorgensen, The
Service of Chaplains to Army Air Units, 1917-1946, Vol. I (1961).
3 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.
440 OCTOBER TERM, 1961.
DouoLAs, J ., concurring. 370U.S.
ing of each day's business! Reverend Frederick B. Harris
is Chaplain of the Senate; Reverend Bernard Braskamp
is Chaplain of the House. Guest chaplains of various
denominations also officiate. 5
4 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. SeP
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.
5 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. § 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 est..'lblish 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 :\-larch 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
ENGEL v. VITALE. 441
421 DOUGLAS, J., concurring.
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.6 It is said that the
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 Bess.;
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
Betwet>n 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.
0 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.
663026 0-62-32
442 OCTOBER TER:'.\f, 1961.
DouGLAS, J., concurring. 3i0 u. s.
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.7 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.8 The
:New York Court said that the prayer given does not conform
to all of the tenets of the 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 l!. S.
306, 313. Under our Bill of Rights free play is given for
7 The Court analogizes the pre~ent caSt> to those involving the
traditional Established Church. We once had an Established Church,
the Anglican. All baptisms and marriages had to take place there.
That 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.
9 Somr communities have a Christmas tree purchased with the
taxpayers' money. The tree is sonwtimes decorated with the words
"Peace on earth, goodwill to men." At other times the authorities
draw from a different verfrnn 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.
ENGEL v. VITALE. 443
421 DouGLAs, J., concurring.
making religion an active force in our lives.9 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 think is durable First Amendment philosophy:
"The reasons underlying the Amendment's policy
have not vanished with time or diminished in force.
9 Religion was once deemed to be a function of the public school
system. The Northwest Ordinance, which antedated the First Amend•
ment, 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."
444 OCTOBER TERM, 1961.
STEWART, J., dissenting. 370 U.S.
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.
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
ENGEL v. VITALE. 445
421 STEWART, J., dissenting.
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
1s 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 Virqinia 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
446 OCTOBER TERM, 1961.
STEWART, J., dissenting. 370 U.S.
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."•
Both the Senate and the House of Representatives open
their daily Sessions with prayer.2 Each of our Presidents,
from George Washington to John F. Kennedy, has upon
assuming his Office asked the protection and help of God. 3
1 See Warren, The Supreme Court in United States History, Vol. 1,
p. 469.
2 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.
3 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 Almighty 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,
nor 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
ENGEL v. VITALE. 447
421 STEWART, J., dissenting.
Footnote 3-Continued.
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 tranquillity, and
dispositions for deciding with unparalleled 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 I'atron of
Order, the Fountain of Justice, and the Protector in all ages
of the world of virtuous liberty, continue His blessing upon this
nation and its Government and give it all possible success and
duration consistent with the ends of His providence."
On 21.farch 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 fellowcitizens,
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."
[Footnote 3 continued on p. 448]
448 OCTOBER TERM, 1961.
STEWART, J., dissenting. 370U.S.
Footnote 3-Continued.
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
hundred 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 was 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
ENGEL v. VITALE. 449
421 STEWART, J., diSSE'nting.
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.4
One of the stanzas of "The Star-Spangled Banner," made
our National Anthem by Act of Congress in 1931,5 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." G In 1952 Congress enacted legislation calling
upon the President each year to proclaim a National Day
of Prayer.1 Rince 1865 the words "IN GOD WE TRUST"
have been impressed on our coins.ij
not from the generosity of the state but from the hand of
God.
"With a good conscience our only sure reward, with history th<'
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."
My brother DOUGLAS says that the only question before us is
whether government "can constitutionally finance a religious exercise."
The official chaplains of Congress arc paid with public money.
So are military chaplains. So are state and federal prison chaplain~.
5 36 U.S. C. § 170.
6 36 U. S. C. § 172.
7 36 U. S. C. § 185.
s 13 Stat. 517,518; 17 Stat. 427; 35 Stat. 164; 69 Stat. 290. Thr
current provisions are embodied in 31 U.S. C. §§ 324, 324a.
450 OCTOBER TERM, 1961.
STEWART, .T., dissenting. 370 U.S.
Countless similar examples could be listed, but there is
no need to belabor the obvious.9 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 Nationtraditions
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.10
I dissent.
9 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?
10 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."
ST A TE BD. OF INS. v. TODD SHIPYARDS. 451
Syllabus.
STA TE BOARD OF INSURANCE ET AL. v. TODD
SHIPYARDS CORP.
CERTIORARI TO THE COURT OF CIVIL APPEALS OF TEXAS, THIRD
SUPREME JUDICIAL DISTRICT.
No. 144. Argued March 21, 1962.-
Decided June 25, 1962.
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 cover•
ing its property in Texas. All transactions pertaining to such
insurance took place outside of Texas. The insurers were domi•
ciled 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.
340 S. W. 2d 339, affirmed.
Bob E. Shannon and Fred B. Werkenthin, Assistant
Attorneys General of Texas, argued the cause for petitioners.
With them on the briefs were Will Wilson,
Attorney General, C. K. Richards and Coleman Gay II I,
Assistant Attorneys General.
Charles R. Vickery, Jr. argued the cause for respondent.
With him on the briefs was Frank A. Liddell.
Cloyd Laporte and John Mason Harding filed a brief for
the Church Fire Insurance Corp. et al., as amici curiae,
urging affirmance.
Jack P. F. Gremillion, Attorney General of Louisiana,
filed a brief for the State of Louisiana, as amicus curiae,
urging reversal.
452 OCTOBER TERM, 1961.
Opinion of the Court. 370U.S.
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 1,1cCarran-Ferguson Act,
59 Stat. 33, 15 U. S. C. § 1011, which provided that the
regulation and taxation of insurance should be left to the
States, without restriction by reason of the Commerce
Clause.1 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 requirernent 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
1 15 U. S. C. § 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 busine!;S
by the several States."
15 U.S. C. § 1012 provides, so far as relevant here:
"(a) The business of insurance, and every person engaged therem,
shall be subject to the laws of the several States which relate to the
regulation or taxation of such business."
STATE BD. OF INS. v. TODD SHIPYARDS. 453
451 Opinion of the Court.
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 2 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. Loui,siana, 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
Fourt€enth Amendment could not make it a misdemeanor
2 14 Vernon's Tex. Civ. Stat., 1952 (Cum. Supp. 1961), Art. 21.38,
§ 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."
454 OCTOBER TER:\1, 1961.
Opinion of the Court. 370 C. S.
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 ~ew
York for the policy. The St. Lou-is 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 havin~ 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 Trxas C'ourt of Civil Appeals, 340 R. W. 2d 339.
and the Texas Supreme C'ourt. feeling bound hy these
decisions, held the tax on premiums unconstitutional, 162
Tex. 8, 343 S. W. 2d 241. \Ve 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 outsidr Texas.
All losses arising under the policies are adjusted and paid
outside Texas. The insurers are not licensed to do busiSTATE
BD. OF INS. v. TODD SHIPYARDS. 455
451 Opinion of the Court.
ness 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 nova 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
456 OCTOBER TERM, 1961.
Opinion of the Court. 370U. S.
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. § 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," 3 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• tliat its ideas of policy should prevail.
s Supra, note 1.
4 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."
ST ATE BD. OF INS. v. TODD SHIPYARDS. 457
451 Opinion of the Court.
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 § 5
of that Amendment to enforce its provisions (Ex parte
Virgini,a, 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 "[t]he business has thus been left for thirty
years to develop, on the understanding that it was not sub-
663026 0-62- H
458 OCTOBER TERM, 1961.
BLACK, J., dissenting. 370U.S.
ject 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.
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
ST ATE BD. OF INS. v. TODD SHIPYARDS. 459
451 BLACK, J., dissenting.
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.
460 OCTOBER TERM, 1961.
Syllabus. 370 u. s.
UNITED STA TES v. BORDEN COMPANY ET AL.
APPEAL FROM THE UNITED STATES DfSTRICT COURT FOR THE
NORTHERN DISTRrCT OF ILLINOIS.
No. 439. Argued April 24-25, 1962.-Decided June 25, 1962.
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 § 2 (a) of the Clayton Act. The District Court found
that the pricing plan of each appellee was a prima facie violation
of § 2 (a); but it concluded that these discriminatory prices were
justified under the proviso of § 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 § 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.
Reversed and remanded.
Richard A. Solomon argued the cause for the United
States. With him on the briefs were Solicitor General
Cox, Assistant Attorney General Loevinger and Elliott H.
Moyer.
Stuart S. Ball argued the cause for The Borden Company,
appellee. With him on the briefs was H. Blair
White.
John Paul Stevens argued the cause for Bowman Dairy
Company, appellee. With him on the briefs was L.
Edward Hart.
UNITED STATES v. BORDEN CO. 461
460 Opinion of the Court.
MR. JusTICE CLARK delivered the opinion of the Court.
This is a direct appeal 1 from a judgment dismissing the
Government's Section 2 (a) Clayton Act 2 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 § 2 (a) but concluded that these discriminatory
prices were legalized by the cost justification proviso
of§ 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
1 Jurisdiction is conferred under § 2 of the Expediting Act of February
11, 1903, 32 Stat. 823, as amended, 15 U. S. C. § 29.
2 "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. § 13 (a).
462 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
cost-saving factors,3 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 §§ 1 and 2 of the Sherman Act and § 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 discrimina-
3 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.
UNITED ST ATES v. BORDEN CO 463
460 Opinion of the Court.
tions 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
,vere 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!
Although the two sets of discounts were never
• Borden in June of 1954 issued the following discount schedull." to
"be applied to all purchases of Borden's fresh milk":
Percent of
Average converted units per day: di.scounts
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 8½%
discounts. A few of the larger independents by special arrangement
were given an additional 1½% discount, thereby raising their total
discount to 5%%. [Footnote 4 continued on p. 464]
464 OCTOBER TERM, 1961.
Opinion of the Court. 370U.S.
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
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": Percent of
Average converted points per day: 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: Percent of
Average converted points per day: 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 8½%-
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.
UNITED STATES v. BORDEN CO. 465
460 Opinion of the Court.
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.5 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
5 The third chain, Goldblatt Bros., also did not take these services.
466 OCTOBER TERM, 1961.
Opinion of the Court. 370U.S.
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," 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 § 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
6 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 § 2 (a). In addition, appellee's cost justifications
were not limited to the Government's sample stores.
UNITED STATES v. BORDEN CO. 467
460 Opinion of the Court.
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-aft.er all, most chain stores
do purchase larger volumes of milk than do most independent
stores." 1 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 § 2 (a).
Such is the mandate of § 2 (b) as interpreted by this
Court in Federal Trade Comm.'n v. Morton Salt Co., 334
U.S. 37, 44-45 (1948).8 There can be no doubt that the
§ 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.9 The only
7 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.
• 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 primafacie
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. § 13 (b).
9 For a collection and discussion of the pertinent legislative history
as well as the cases and treatises on the § 2 (a) proviso, see
Rowe, Price Discrimination Under the Robinson-Patman Act, c.
10 (1962).
468 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
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,10 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
"[a]s 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.11 \Ve 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
1° 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).
11 For a discussion of the Commissi9n's position in this regard, S('e
Rowe, op. cit., supra, note 9, § 10.6.
UNITED STATES v. BORDEN CO. 469
460 Opinion of the Court.
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.12 High
on the list of "musts" in the use of the average cost of
customer groupings under the proviso of § 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
12 Advisory Committee on Cost Justification, Report to the United
States Federal Trade Commission ( 1956), p. 8.
470 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
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
UNITED STATES v. BORDEN CO. 471
460 Opinion of the Court.
the use of these cost factors across the board in calcula ting
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. 13
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
13 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.
472 OCTOBER TERM, 1961.
DOUGLAS, J., concurring. 370 U.S.
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.
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.,
UNITED STATES v. BORDEN CO. 473
460 DouGLAS, J ., concurring.
p. 9. The a11owance by § 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. (Italics added.)
663026 0-62-34
474 OCTOBER TERM, 1961.
DouGLAS, J., concurring. 370U. S.
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 cus460
UNITED STATES v. BORDEN CO. 475
DouaLAS, J., concurring.
tomers, 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 § 2 (a). But
where, as here, no centralized purchasing is involved, the
store-by-store costs are the only criteria relevant to the
§ 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-bystore
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
*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.
476 OCTOBER TERM, 1961.
HARLAN, J., dissenting. 370U.S.
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.
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 § 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
UNITED STATES v. BORDEN CO. 477
460 HARLAN, J., dissenting.
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.*
I would affirm.
* 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).
478 OCTOBER TERM, 1961.
Syllabus. 370 u. s.
MANUAL ENTERPRISES, INC., ET AL. v. DAY,
POSTMASTER GENERAL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT.
No. 123. Argued February 26-27, 1962.-
Decided June 25, 1962.
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. § 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.
110 U. S. App. D. C. 78, 289 F. 2d 455, reversed.
MR. JusTICE HARLAN, joined by MR. JUSTICE STEWART, concluded
that:
1. These magazines are not "obscene" within the meaning of
18 U.S. C. § 1461, because, taken as a whole, they cannot, under any
permissible constitutional standard, be deemed to be beyond the
pale of contemporary notions of rudimentary decency. Pp. 481-
491.
2. The obscene-advertising proscription of § 1461 is not applicable
unless the publisher knew that at least some of his advertisers
MANUAL ENTERPRISES v. DAY. 479
478 Opinion of HARLAN, J.
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. JosTICE BRENNAN, joined by THE CHIEF JUSTICE 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. Pp. 495--519.
Stanley M. Dietz argued the cause for petitioners.
With him on the brief was Edward J. Lynch.
J. William Doolittle argued the cause for respondent.
With him on the briefs were Solicitor General Cox,
Assistant Attorney General Orrick, John G. Laughlin, Jr.
and David L. Rose.
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. § 1461,
known as the Comstock Act.' Certiorari was granted (368
1 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
480 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370 u. s.
U. S. 809) to consider the claim that this ruling was inconsistent
with the proper interpretation and application of
§ 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. 147.2
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,
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 .... "
2 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
§ 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.
MANUAL ENTERPRISES v. DAY. 481
478 Opinion of HARLAN, .J.
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 eviden tiary 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 "bodybuilding"
publications, but are composed primarily, if
not exclusively, for homosexuals, and have no literary.
scientific or other merit; 3 (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 determina-
3 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 ... . "
482 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370 u. s.
tion 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 a 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 obscenity.
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 § 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 § 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
MANUAL ENTERPRISES v. DAY. 483
478 Opinion of HARLAN, J.
words have different shades of meaning,' the statute since
its inception has always been taken as aimed at obnoxiously
debasing portrayals of sex.5 Although the statute
condemns such material irrespective of the effect it may
4 The words of the statute are defined in Webster's New International
Dictionary (unabridged, 2d ed., 1956) as follows:
obscene
"l. 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).
5 The first federal statute bearing on obscenity was the Tariff Act
of 1842 which forbade the importation of "indecent and obscene" pie484
OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370 U.S.
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 ...
torial 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.
478
MANUAL ENTERPRISES v. DAY. 485
Opinion of HARLAN, J.
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. [6] 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 .... " 7 Regina v. Close, [1948]
Viet. L. R. 445, 463, Judgment of Fullagar, J.
(Emphasis in original.)
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
6 "Obscene libel" in English usage simply means obscene material,
being derived from libellus, "little book." See St. J ohn-Stevas,
Obscenity and the Law, 24.
• 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."
486 OCTOBER TERM, 1961.
Opinion of HARLAN. J. 370 U.S.
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), § 207.10 (2). (Emphasis
added.) 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), § 251.4 (1). (Emphasis added.)•
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
§ 1461. In most obscenity 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.9 Reading that case as dispensing with the
8 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.
9 lt 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.
MANUAL ENTERPRISES v. DAY. 487
478 Opinion of HARLAN, J.
requisite of patently offensive portrayal would be not
only inconsistent with § 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§ 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 § 1461 would doubtless encounter
constitutional barriers. Roth, at 487-489. Consequently
we consider the power exercised by Congress in enacting
§ 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
488 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370 U.S.
predominantly to appeal to the prurient interest that
Congress has chosen to bar from the mails by the force of
§ 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 10 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
10 The 1958 amendments to 18 U.S. C. § 1461, 72 Stat. 962, authorizing
criminal prosecution at the place of delivery evince no purpose
to make the standard less than national.
MANUAL ENTERPRISES v. DAY. 489
478 Opinion of HARLAN, J.
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,11 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 12 to indicate that only "hard-core" pornography can
constitutionally be reached under this or similar state
obscenity statutes. See Peop"le 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.13 Our own independent examination of
11 No issue was presented in Roth as to the obscenity of any of the
materials involved. 354 U. S., at 481, n. 8.
12 See cases cited, infra, p. 490.
13 ''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
663026 0-62-35
490 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370 U.S.
the magazines leads us to conclucj.e 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
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 .... "
MANUAL ENTERPRISES v. DAY. 491
478 Opinion of HARLAN, J.
only the slightest crack necessary to prevent encroachment
upon more important interests" (footnote omitted).
Roth, at 488.14
'\Ve 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 § 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,15 and that postal
,. 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.
15 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.
492 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370U.S.
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'
magazmes.
A question of law must first be dealt with. Should the
"obscene-advertising" proscription of § 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§ 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 materials 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 § 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
MANUAL ENTERPRISES v. DAY. 493
478 Opinion of HARLAN, J.
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 mate494
OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370 U.S.
rial.'" 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
16 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 admission of knowledge that
the advertisers' works were obscene.
MANUAL ENTERPRISES v. DAY. 495
478 Opinion of BRENNAN, J.
in their own magazines. This is not enough to satisfy
the Government's burden of proof on this score.11
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 § 1461. Reversed.
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
17 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 publisher8 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.
496 OCTOBER TERM, 1961.
Opinion of BRENNAN, J. 370 U.S.
plenary review 1 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. § 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
1 One, Inc., v. Olesen, 355 U. S. 371, and Sunshine Book Co. v.
Summerfield, 355 U. S. 372, were decided summarily without argument.
MANUAL ENTERPRISES v. DAY. 497
478 Opinion of BRENNAN, J.
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
498 OCTOBER TERM, 1961.
Opinion of BRENNAN, J. 370 U.S.
mails to obscenity by any means other than prosecution
of its sender; (b) whether Congress, if it 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.2
Lower courts and judges have been troubled by these
questions,3 but this Court has not had occasion to decide
them. At least question ( c) is before us now! 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
2 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.
3 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 Stanard v. Olesen,
74 S. Ct. 768 (opinion of MR. JUSTICE DouGLAs), Olesen v. Stanard,
227 F. 2d 785; Summerfield v. Sunshine Book Co., 95 U. S. App.
D. C. 169, 221 F. 2d 42.
• 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 § 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. § 2282, and therefore that claim is not here. But
insofar as their attack is grounded upon a claim that § 1461 is not to
be construed as granting censorial power to the Post Office, § 2282
does not apply.
MANUAL ENTERPRISES v. DAY. 499
478 Opinion of BRENNAN, J.
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. DuUes, 357 U. S. 116.5
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).
5 My Brother HARLAN states that no question is raised as to the
Post Office Department's general authority under 18 U.S. C. § 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: "[P]laintiffs argue that the entire civil procedure followed
by the Post Office based upon a criminal statute raises doubts of
constitutionality. 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.
500 OCTOBER TERM, 1961.
Opinion of BRENNAN, J. 370 U.S.
Whether Congress, by its enactment or amendment of
18 U. S. C. § 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 § 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 § 1461 is briefly told.6 It was the tag
end of a bill drawn in 1865 to meet Post Office requests
6 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 Bess. 661
(1865). The Post Office occasionally seized allegedly treasonable
MANUAL ENTERPRISES v. DAY. 501
478 Opinion of BRENNAN, J.
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 otherwise 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 to point out that
it "may be liable to some objection. . . . I am not perhaps
entirely satisfied with it," and Senator Reverdy
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, I 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).
502 OCTOBER TERM, 1961.
Opinion of BRENNAN, J. 370 u. s.
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: "[l]t 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 mafl
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.
MANUAL ENTERPRISES v. DAY. 503
478 Opinion of BRENNAN, J.
There are two possible constructions of § 1461 on the
basis of this brief Senate discussion. One possibility is
that short of breaking seals,1 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-and 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 § 1461,
and enacting a section banning material with obscene
matter on its face and-unlike § 1461-explicitly providing
that it "shall be withdrawn from the mails under such
regulations as the Postmaster-General shall prescribe." 8
The 1865 Senate discus.sion 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. I believe this is the correct
1 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).
8 25 Stat. 496, now 18 U. S. C. § 1463.
504 OCTOBER TERM, 1961.
Opinion of BRENNAN, J. 370 u. s.
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 9 (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 § l46l's enactment.
That ambiguity has persisted throughout § 146l'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
9 See Milwaukee Publishing Co. v. Burleson, 255 U. S. 407, 423,
429--430 ( Brandeis, J ., dissenting) .
MANUAL ENTERPRISES v. DAY. 505
478 Opinion of BRENNAN, J.
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 § 1461-an
important omission in the light of the observation of the
Attorney General that aside from the examples he gave
"[i]f 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." 10
In 1872, § 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
10 16 Op. Atty. Gen. 5, 6 ( 1878); 12 id., 538 (1868); and see 12 id.,
399, 401 (1868).
663026 0-62-36
506 OCTOBER TERM, 1961.
Opinion of BRENNAN, J. 370 U.S.
may have been written or printed, or disloyal devices
printed or engraved .... " 17 Stat. 302.11 The section
was further revised when the Comstock Law was enacted
in 1873. 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 then 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; 12 this insistence
upon judicial proceedings shows plainly the congressional
aversion to administrative censorship.
The Comstock bill received but scant and hasty consideration.
13 As passed, its language was susceptible of a
reading which would fail to penalize the mailing of
11 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.
12 But see Casserly's second statement, id., at 1436, which was a
misunderstanding of the bill.
13 See Paul, supra, n. 6, at 51-57.
MANUAL ENTERPRISES v. DAY. 507
478 Opinion of BRENNAN, J.
obscene or indecent literature, and reach only actual
abortifacients. Closing this inadvertent gap was the sole
purpose 14 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 postoffice
nor by any letter-carrier"-for the more cursory
"f 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 to 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:
"Whenever 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
H The bill's manager in the House said: "[T]he 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 port.ion of the section is prohibited from passing through
the mails, but no penalty is provided. . . . [I]t 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).
"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.
508 OCTOBER TERM, 1961.
Opinion of BRENNAN, J. 370 U.S.
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 make the law a
dead letter, because judges and juries would be unwilling
to convict. Thus the tenor of the entire debate reflected
the premise that § 1461 had only a criminal application.
No one suggested that it also authorized administrative
censorship. 4 Cong. Rec. 695-696.15 And see 8 Cong.
Rec. 697 ( 1879).
15 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 at
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 conMANUAL
ENTERPRISES v. DAY. 509
478 Opinion of BRENNAN, J.
Especially significant in pointing up the purely penal
application of § 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.16 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, ai:id this [new] bill eliminates that
objectionable feature .... " 19 Cong. Rec. 8189.17
But even more significantly, the new enactment transferred
to a new section, § 1463, 25 Stat. 496, the ban
of § 1461 which, in the 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 § 1463, instead of merely
sider 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.
10 "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 § 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).
17 But see also id., at 6733-6734.
510 OCTOBER TERM, 1961.
Opinion of BRENNAN, J. 370 u. s.
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 § 1461-amended at the same
time as § 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 § 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 § 1461 is exclusively penal. See 19 Cong. Rec.
7660-7662, 8189.
The last congressional dealing with § 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." 18
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. 283-284.19 The two brief House discussions
suggest that there were members who did believe that
18 35 Stat. 1129.
19 See United States v. Limehouse, 285 U. S. 424.
MANUAL ENTERPRISES v. DAY. 511
478 Opinion of BRENNAN, J.
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.
Section 1463 is not the only statute which goes further
than § 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.2° In sharp
20 (1) 18 U.S. C. § 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. §§ 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 mark
mail "fraudulent" or "lottery mail" and to return it to its sender, 39
U. S. C. (Supp. II) § 4005; (3) 18 U.S. C. § 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) § 4003;
(4) 18 U.S. C. §§ 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. § 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. § 150cc and
33 Stat. 1270 (plant pests); 38 Stat. 1113 (plants and plant products);
22 U. S. C. § 618 (foreign agents' propaganda advocating
violent disorder in any other American republic); compare 7 U.S. C.
§ 1575 (false advertising of seed); 15 U.S. C. §§ 77q (fraudulent mat512
OCTOBER TERM, 1961.
Opinion of BRENNAN, J. 370 u. s.
contrast, § 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 § 4001 (a), a section collecting the various
provisions designating matter as nonmailable and
which, the Committee Report indicates and the floor
discussion and reviser's note assure, was not intended to
change existing law 21-ambiguous throughout.
The removal of obscene material has not been the Post
Office's only weapon against it. In 1950, § 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.22 The clarity
of the grant of these powers is no less noteworthy than
their subsequent history. In 1956 the Postmaster General
sought 23 and obtained the power to enter an order,
pending the administrative proceeding to determine
whether § 4006 should be invoked, under which all mail
ter regarding securities), 80a-20 (solicitation of proxies), 80a-24
(sales literature regarding securities), 80b-3, S0b-5 and 80b-6 (investment
advisers' materials); 50 U.S. C. § 789 (publications of registered
Communist organizations).
See American School of Magnetic Healing v. McAnnulty, 187 U.S.
94, 109.
21 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.
22 64 Stat. 451, now revised and codified as 39 U. S. C. (Supp. II)
§ 4006. See 74 Stat. 578,655.
23 It appears that between 1950 and 1956, the Postmaster General
asserted, and some courts agreed, that he already had the power.
See Stanard v. Olesen, supra, n. 3, at 771.
MANUAL ENTERPRISES v. DAY. 513
478 Opinion of BRENNAN, J.
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
[§ 4006] ." 24 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." 25 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. 28
24 70 Stat. 699.
25 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).
26 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 § 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 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 indict514
OCTOBER TERM, 1961.
Opinion of BRENNAN, J. 370 U.S.
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.21 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
ment 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.
27 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 marshal or customs officer], directing him to ...
seize ... any article or thing mentioned in [§ 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.
MANUAL ENTERPRISES v. DAY. 515
478 Opinion of BRENNAN, J.
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 pr(?scribed 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
516 OCTOBER TERM, 1961.
Opinion of BRENNAN, J. 370 U.S.
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.28 The practice was described in
1952 by the Solicitor of the Department when testifying
before a congressional committee:
"(W]e 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." 29
28 These date from 1957. See 39 CFR §§ 14.4, 203 (1962).
29 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.
MANUAL ENTERPRISES v. DAY. 517
478 Opinion of BRENNAN, J.
And:
"[S]ometimes 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
opm10n. 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 Litera~
ture 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 Post Office practice has been brought to the
attention of a congressional committee.30 But the report
30 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 Bess. (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 § 1461 is a civil as well
518 OCTOBER TERM, 1961.
Opinion of BRENNAN, J. 370 U.S.
of the 1952 Select Committee, which listed § 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 .... " 31
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 § 1461
against a challenge of unconstitutionality under the First
Amendment. 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
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).
31 H. R. Rep. No. 2510, 82d Cong., 2d Sess. 5, 32.
MANUAL ENTERPRISES v. DAY. 519
478 CLARK, J., dissenting.
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 § 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.
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 § 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 § 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
520 OCTOBER TERM, 1961.
CLARK, J ., dissenting. 370 U.S.
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 § 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 § 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,1 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 § 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 § 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 by the Department's regulations. After a full
1 39 U.S. C. (Supp. II) § 4058.
MANUAL ENTERPRISES v. DAY. 521
478 CLARK, J ., dissenting.
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. 2
Section 1461 explicitly provides that:
"Every obscene, lewd, lascivious, indecent, filthy or
vile article, matter, thing, device, or substance;
and ... [e]very 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 ... [i]s declared to be nonmailable matter
and shall not be conveyed in the mails or delivered
from any post office or by any letter carrier."
(Emphasis supplied.)
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:
"[N]o obscene book, pamphlet, picture, print, or
other publication of a vulgar and indecent character,
shall be admitted into the mails of the United States;
2 I agree with the conclusion in that opinion that petitioners' constitutional
claim cannot be considered here.
663026 0-62- 37
522 OCTOBER TERM, 1961.
CLARK, J., dissenting. 370 U.S.
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."
"[A]ny 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
leg-islative 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. (Emphasis supplied.) 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.3
s The magazines here involved were second class matter and thus
were unsealed and subject to inspection. 39 U. S. C. (Supp. II)
§ 4058.
MANUAL ENTERPRISES v. DAY. 523
478 CLARK, J., dissenting.
The 1873 postal regulations reflected this power to
exclude obscene matter from the mails/ as have all succeeding
ones, e. g., Postal Laws and Regulations ( 1893 ed.)
§ 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:
"[T] he 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 ....
[ I] t in no way changes the section as it now is. It
makes nothing non-mailable that is not now nonmailable.
It merely provides a penalty .... " 4
Cong. Rec. 695 (1876). (Emphasis supplied.)
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 § 1461 within its collection of provisions
which designate matter as nonmailable. 39 U.S. C.
(Supp. II) § 4001 (a).
• "All books, pamphlets, circulars, prints, &c., of an obscene, vulgar,
or indecent character . . . must be withdrawn j rom the mails by
postmasters at either the office of mailing or the office of delivery."
Postal Laws and Regulations (1873 ed.) § 88. (Emphasis supplied.)
524 OCTOBER TERM, 1961.
CLARK, J., dissenting. 370 U.S.
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 Publ-ishing 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 § 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.
MANUAL ENTERPRISES v. DAY. 525
478 CLARK, J., dissenting.
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 § 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 .... " (Emphasis supplied.) 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 actionshould
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 § 1461 to mean what it says would
not give rise to the "serious constitutional question"
envisioned. This fear is premised entirely on Smith v.
Californi,a, 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 § 1461 is that the sender's scienter is immaterial
in determining the mailability of information on where
obscene material can be obtained.
526 OCTOBER TERM, 1961.
CLARK, J., dissenting. 370 U.S.
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.6
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 young men in nude or practically
nude poses handled in such a manner as to focus
attention on their genitals or buttocks or to emphasize
5 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).
MANUAL ENTERPRISES v. DAY. 527
478 CLARK, J., dissenting.
these parts . " Because of this content the magazines
do "not appeal to the ordinary male adult, ...
[who] would have no 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."
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 stim-
6 The magazines were offered in six bundles, apparently with copies
of each of the four magazines intermingled among the bundles.
528 OCTOBER TERM, 1961.
CLARK, J., dissenting. 370 U.S.
ulate 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: "0 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
MANUAL ENTERPRISES v. DAY. 529
478 CLARK, J ., dissenting.
to repeal the advertising provisions of § 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.
530 OCTOBER TERM, 1961.
Syllabus. 370 u. s.
GLIDDEN COMPANY v. ZDANOK ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT,
No. 242. Argued February 21, 26, 1962.-Decided June 25, 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
:md assignment by the Chief Justice of the United States under
28 U. S. C. §§ 293 (a) and 294 (d), on United States District
Courts and Courts of Appeals. Pp. 531-589.
288 F. 2d 99; 111 U.S. App. D. C. 238,296 F. 2d 360, affirmed.
Chester Bordeau argued the cause for petitioner in No.
242. With him on the briefs was William P. Smith.
Morris Shapiro argued the cause for respondents in No.
242. With him on the briefs was Harry Katz.
Solicitor General Cox argued the cause for the United
States, as intervenor, in No. 242. With him on the brief
were Assistant Attorney General Miller, Oscar H. Davis
and Philip R. Monahan.
By special leave of Court, 368 U. S. 973, Francis M.
Shea argued the cause in No. 242 for the Chief Judge and
Associate Judges of the United States Court of Claims,
as amici curiae, urging affirmance. With him on the
briefs was Richard T. Conway.
Briefs of amici curiae, in support of the petition in
No. 242, were filed by William B. Barton for the Chamber
of Commerce of the United States; John E. Branch for
the Georgia State Chamber of Commerce; Henry E. Seyfarth
for the Illinois State Chamber of Commerce;
*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.
GLIDDEN COMPANY v. ZDANOK. 531
530 Opinion of HARLAN, J.
Edward C. First, Jr. and Gilbert Nurick for the Pennsylvania
State Chamber of Commerce; Frank C. Heath for
the Chamber of Commerce of the City of Cleveland, Ohio;
Charles H. Tuttle for the American Spice Trade Association;
Carl M. Gould for the California Manufacturers
Association; Ashley Sellers and Jesse E. Baskette for the
National Association of Margarine Manufacturers; and
Daniel S. Ring for the National Paint, Varnish and
Lacquer Association, Inc.
Eugene Gressman argued the cause and filed briefs for
petitioner in No. 481.
Solicitor General Cox argued the cause for the United
States in No. 481. With him on the brief were Assistant
Attorney General Miller, Oscar H. Davis, Beatrice
Rosenberg and Philip R. Monahan.
By special leave of Court, Roger Robb argued the cause
and filed a brief in No. 481 for the Chief Judge and Associate
Judges of the United States Court of Customs and
Patent Appeals, as amici curiae, urging affirmance.
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
532 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370 U.S.
States." 1 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 col1ective 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.
§ 293 (a).2 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.3 The petitioner's
application for leave to appeal to the Court of Appeals
1 Act of July 28, 1953, § 1, 67 Stat. 226, added to 28 U. S. C. § 171
(Court of Claims); Act of August 25, 1958, § I, 72 Stat. 848, added
to 28 U. S. C. § 211 (Court of Customs and Patent Appeals). See
also Act of July 14, 1956, § 1, 70 Stat. 532, added to 28 U.S. C. § 251
(Customs Court).
2 "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."
3 28 U. S. C. § 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.
GLIDDEN COMPANY v. ZDANOK. 533
530 Opinion of HARLAN, J.
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.4
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,5 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, § 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
4 The petition in No. 481 sought certiorari only as to that issue.
5 10 Stat. 612 (1855), as amended, 28 U. S. C. § 173 (Court of
Claims); 46 Stat. 590, 762 (1930), as amended, 28 U.S. C. §213
(Court of Customs and Patent Appeals). Judge Madden was
appointed in 1941, Brief for Petitioner in No. 242, pp. 7-8, an<l
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.
534 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370 u. s.
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." 6
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. Pennsylvanw,
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,7 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.
0 The bearing of § 2 of Art. III on petitioners' claims is discussed
later. Infra, pp. 562-583.
1 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.
GLIDDEN COMP ANY v. ZDANOK. 535
530 Opinion of HARLAN, J.
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. Ernholt, 105 F. S. 414 (certificate of divided
opinion). In other circumstances as well, when the statute
claimed to restrict authority is not merely technical
536 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370 U.S.
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, § 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 conGLIDDEN
COMP ANY v. ZDANOK. 537
530 Opinion of HARLAN, J.
eluded 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, § 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, § 2z_::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.8 Authority for the Federal Government to
8 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.
663026 0-62-38
538 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370 u. s.
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. §§ 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
GLIDDEN COMPANY v. ZDANOK. 539
530 Opinion of HARLAN, J.
District of Columbia. Act of September 14, 1922, c. 306,
§ 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.9
A more novel suggestion is that the assignment statute
itself, 28 U.S. C. §§ 291-296, authorized the Chief Justice
to appoint inferior Article III judges in the course of
designating them for service on Article III courts.10 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
9 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).
10 Article II, § 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."
540 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370 u. s.
to such a construction. If nothing else, the authority
given the Chief Justice in 28 U. S. C. § 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.11
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.12 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 protections
of Article III while leaving at large the status
of those courts. For these various reasons, the constitutional
quality of tenure and compensation extended
11 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,
§204 (c), 56 Stat. 23, 32.
12 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 Bess. 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).
GLIDDEN COMPANY v. ZDANOK. 541
530 Opinion of HARLAN, J.
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 in tending 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
542 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370 U.S.
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, § 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 responsiGLIDDEN
COMPANY v. ZDANOK. 543
530 Opinion of HARLAN, J.
biJity 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,
§ 8, cl. 9, "To constitute Tribunals inferior to the supreme
Court," plainly relates to the "inferior Courts" provided
for in Art. III, § 1; it has never been relied on for
establishment of any other tribunals.
544 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370 U.S.
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 P et., at 545. All the Chief
Justice meant, and what the case has ever after been
GLIDDEN COMPANY v. ZDANOK. 545
530 Opinion of HARLAN, J.
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; 13 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.14
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
13 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.
14 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.
546 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370U.S.
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.15
At the same time as the absence of a federal structure
in the territories produced problems not foreseen 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 framework
of organic acts and subject to a retained power of
veto.16 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.11
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
15 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.
16 See Clinton v. Erl.{Jlebrecht, 13 Wall. 434, 441-445; Hornbuckle
v. Toombs, 18 Wall. 648, 655-656.
17 Compare Clinton v. Englebrecht, supra, 13 Wall., at 446, 447,
with Dreyer v. Illinois, 187 U. S. 71, 83-84.
GLIDDEN COMPANY v. ZDANOK. 547
530 Opinion of HARLAN, J.
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, 480.18
The touchstone of decision in a11 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,
18 See generally, as to each of these courts, 1 Moore, Federal Practice
(2d ed. 1961), 40-44, 47-50.
548 OCTOBER TERM, 1961.
Opinion of HARLAN, .T. 370 U.S.
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, 186.19 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 M ookini
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 con trolling 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,
19 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.
530
GLIDDEN COMPANY v. ZDANOK. 549
Opinion of HARLAN, J.
arismg 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 inlierently or
necessarily requires judicial determination," 20 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.21 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
20 Ex parte Bakelite Corp., 279 U. S. 438, 453, 458; accord, Williams
v. United States, 289 U. S. 553, 579.
21 Williams itself recognized that the jurisdiction conferred on the
Court of Claims by the Tucker Act, now 28 U. S. C. § 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 specifirally 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.
550 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370 u. s.
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,22 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
22 279 U. S., at 451 n. 8; 289 U. S., at 579.
530
GLIDDEN COMPANY v. ZDANOK. 551
Opinion of HARLAN, J.
their consent, we think that, by granting it, nothing
which may not be a subject of judicial cognizance is
brought before the court." 23
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,2• 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, § 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.);
23 18 How., at 284.
2 • But see note 21, supra.
552 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370 U.S.
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.25
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. § 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 inde-
25 See generally Hart and Wechsler, The Federal Courts and the
Federal System ( 1953), 312-340, and more specifically, pp. 567-568,
infra.
GLIDDEN COMPANY v. ZDANOK. 553
530 Opinion of HARLAN, .J.
pendence of judgment, and their proposal won acceptance
in the Act. § 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, § 5, 12 Stat. 765, 766,
Congress adopted the President's recommendation and
made the court's judgments final, with appeal to the
663026 0 - 62- 39
554 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370 u. s.
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, § 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§ 14, the Court was quick to protect
the Court of Claims' judgments from executive revision.
GLIDDEN COMPANY v. ZDANOK. 555
530 Opinion of HARLAN, J.
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. 2
" 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." 21
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
26 § 3, 12 Stat. 765, now 28 U. S. C. § 1503. See also 18 Stat. 481
(1875), as amended, 31 U. S. C. § 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.
27 22 Wall., at 648.
556 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370 U.S.
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 IIl.28 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, § 1, 24 Stat. 505 (1887), now 28 U. S. C. § 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 .... "
AU of the cases within this grant of jurisdiction arise
either immediately or potentially under federal law within
the meaning of Art. III, § 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
2s Evans v. Gore, 253 U. S. 245, 248-254.
GLIDDEN COMPANY v. ZDANOK. 557
530 Opinion of HARLAN, J.
been as intricate and far-ranging as any corning within the
federal-question jurisdiction, 28 U.S. C. § 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. CI. 557, 66 F. Supp. 142, aff'd, 328 U. S. 303 (bill of
attainder); Shapiro v. United States, 107 Ct. CI. 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,
558 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370U.S.
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 § 29 of the Customs Administrative Act of
1890, c. 407, 26 Stat. 131, as added by § 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, §§ 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, § 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/9 After the Bakelite case had
29 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
GLIDDEN COMPANY v. ZDANOK. 559
530 Opinion of HARLAN, J.
been decided, Congress expressly conferred tenure during
good behavior upon the court's judges, in the Tariff Act
of 1930, § 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 f sol 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, § 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.3° 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 import9nt 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
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 § 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.
30 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.
560 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370 u. s.
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. §§ 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
GLIDDEN COMPANY v. ZDANOK. 561
530 Opinion of HARLAN, J.
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.31 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 that 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.
31 Its functions were continued under the Defense Production Act
of 1950, c. 932, § 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.
,562 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370 u. s.
VIL
Article III, § 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.
GLIDDEN COMPANY v. ZDANOK. 563
530 Opinion of HARLAN, ,J.
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; "2 so
32 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.
564 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370 u. s.
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.
(Emphasis in original.) In this sense, and only in this
sense, is Article Ill'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. Missi.ssippi, 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."
GLIDDEN COMPANY v. ZDANOK. 565
530 Opinion of HARLAN, J.
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,§ 410 (a), 60 Stat. 842, 843-844 (1946),
as amended, 28 U. S. C. § 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. § 412 (a)(2), 60 Stat. 844--
845 (1946), as amended, 28 U.S. C. § 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, § 2, 24 Stat.
505 (1887), as amended, 28 U. S. C. § 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. § 1500 gives litigants an election to sue the
United States as principal in the Court of Claims or to
566 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370U.S.
pursue their claims against its agents in any other court,
including the District Courts. See National Cored Forgings
Co. v. l'nited States, 132 Ct. Cl. 11, 132 F. Supp.
454. In addition, by the Act of September 13, 1960, §§ 1,
2 (a), 74 Stat. 912, Congress added §§ 1406 (c) and 1506
to Title 28 of the united States Code, 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. §§ 651- 657;
Indians of California v. um·ted States, 98 Ct. Cl. 583,599.
Congress has waived the benefit of res judicata, Cherokee
A'ation v. United States, 270 U. S. 476, 486, and of
defenses based on the passage of time, United States v.
Alcea Band of 1'illamooks, 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 lr. S. 43, 47-48. Indeed the Court has held
GLIDDEN COMPANY v. ZDANOK. 567
530 Opinion of HARLAN, J.
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., Di,strict 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
568 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370 U.S.
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
unconstitutional 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. 33
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
33 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,).
GLIDDEN COMPANY v. ZDANOK. 569
530 Opinion of HARLAN, J.
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 § 14.
See also United States v. Alire, 6 Wall. 573, 576; United
States v. O'Grady, 22 Wall. 641, 647; Langford v. United
States, IOI U.S. 341, 344-345-in each of which the limitation
of the Gordon decision to the difficulties caused by
§ 14 clearly appears.
Nevertheless the problem remains and should be considered.
Its scope has, however, been reduced by the
Act of July 27, 1956, § 1302, 70 Stat. 678, 694, 31 U.S. C.
§ 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. § 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. § 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
663026 0-62-40
570 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370U.S.
of our problem, for Art. I, § 9, cl. 7, vests exclusive responsibility
for appropriations in Congress,3
• 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. Section 7 of the Act of March 3,
1863, 12 Stat. 765, 766, provided for 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). A 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.
34 "No Money shall be drawn from the Treasury, but in Consequence
of Appropriations made by Law .... "
GLIDDEN COMPANY v. ZDANOK. 571
530 Opinion of HARLAN, J.
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.3 ~ 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.
35 See also the intervening opinions and dispositions: 209 U.S. 514;
220 U.S. I, 36; 222 U.S. 17, 19-20; 231 U.S. 89; 234 U.S. 117;
238 U. S. 202; 241 U.S. 531.
572 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370 u. s.
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).36
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
36 The provision in 28 U. S. C. § 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.
GLIDDEN COMPANY v. ZDANOK. 573
530 Opinion of HARLAN, J.
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. § 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,37 form the staple
37 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
574 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370U.S.
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,38 to decide if debts 39
or penalties 40 are due the United States, and to determine
the liability of the United States for patent or copyright
infringement 41 and for other specially designated torts!2
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.43
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. § 1541!4 Contests over classifiwell
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. § 1505, added by 63 Stat. 102 (1949).
38 28 U. S. C. § 1494 (contractors or their sureties); 28 U. S. C.
§§ 1496, 2512 (disbursing officers).
30 R. S. § 5261 (1878), as amended, 45 U.S. C. § 87 (governmentaided
railroads).
• 0 28 U. S. C. § 1499 (violations of the Eight-Hour Law, 37 Stat.
137 (1912), as amended, 40 U.S. C. § 324).
41 28 U. S. C. (Supp. Ill) § 1498.
42 28 U.S. C. §§ 1495, 2513 (wrongful imprisonment); 28 U.S. C.
§ 1497 ( trespass to oyster beds) .
43 60 Stat. 1049, 1054 (1946), 25 U. S. C. § 70s.
44 42 Stat. 15 (1921), as amended, 19 U. S. C. § 169, makes 28
U. S. C. § 1541 applicable as well to the antidumping statute. See
also 46 Stat. 735 (1930), as amended, 19 U.S. C. § 1516 (b), (c),
GLIDDEN COMPANY v. ZDANOK. 575
530 Opinion of HARLAN, J.
cation and valuation of imported merchandise have long
been maintainable in inferior federal courts. Under
R. S. § 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 occasions. 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 § 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. § 1542 and 60 Stat. 435
(1946), as amended, 15 U.S. C. § 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. §§ 145, 146, or to seek review in the
Court of Customs and Patent Appeals under 35 U. S. C.
§ 141. If the latter choice is made, the Court confines
its review to the evidence adduced before the Patent
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.
576 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370 U.S.
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. § 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, § 50, 16 Stat. 198, 205; see Reviser's Note to 35
U. S. C. § 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 U. S.
576, 588-589, had upheld the judicial nature of the review
in all other respects.45 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).
45 Curiously, Duell was not cited in Postum, while the cases that
were-Frasch v. Moore, 211 U.S. I; 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.
GLIDDEN COMPANY v. ZDANOK. 577
530 Opinion of HARLAN, J.
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, § 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.46 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 .r 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
46 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. § 144.
41 Naturalization Act of June 29, 1906, c. 3592, § 15, 34 Stat. 596,
601.
578 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370 U.S.
asserted unsuccessfully by it in the naturalization court.48
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., § 2289, etc.,) or of the exclusive right to make,
use and vend a new and useful invention (Rev. Stat.,
§ 4883, etc.).'" (Emphasis added.)
Like naturalization proceedings in a District Court,
appeals from Patent Office decisions under 35 U. S. C.
§ 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.49 It
48 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.
49 We intimate no opinion whether 28 U.S. C. § 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).
GLIDDEN COMPANY v. ZDANOK. 579
530 Opinion of HARLAN, J.
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. § 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. §§ 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, 460-461,50 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. 222.51
50 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
§ 337 (c) of the Tariff Act of 1930, 46 Stat. 590, 703, as amended,
19 U. S. C. § 1337 (c).
51 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.
580 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370 U.S.
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 52-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 547-548.53 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.
52 See Keller v. Potomac Electric Power Co., 261 U. S. 428.
53 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, § 2, 49 Stat. 882, D. C. Code, 1961, § 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.
GLIDDEN COMPANY v. ZDANOK. 581
530 Opinion of HARLAN, J.
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.5
•
But those are not the only limitations embodied in
Article Ill's restriction of judicial power to cases or con-
54 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,
§ 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, §§ 31-101, 21-308, is probably traceable
to Art. II, § 2 of the Constitution. See note 10, supra; Ex parte
Siebold, 100 U. S. 371, 397-398.
582 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370U.S.
troversies. 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, § 337 of the Tariff
Act of 1930 and 28 U. S. C. §§ 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.
GLIDDEN COMPANY v. ZDANOK. 583
530 Opinion of HARLAN, J.
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 § 337 of the Tariff Act was first enacted,
the Court of Customs and Patent Appeals has entertained
only six such cases.55 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.
55 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.
584 OCTOBER TERM, 1961.
Opinion of HARLAN, J. 370 U. S.
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 constitutiona11y
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
GLIDDEN COMPANY v. ZDANOK. 585
530 CLARK, J., concurring in result.
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.
MR. JusTICE FRANKFURTER took no part in the decision
of this case.
Ma. JusTICE WHITE took no part in the consideration
or decision of this case.
Ma. 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/ headed in
the Bakelite case by Chief Justice Taft and in Willwms
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, § 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.
1 Bakelite: Taft, Holmes, Van Devanter, McReynolds, Brandeis,
Sutherland, Butler, Sanford and Stone. Williams: Hughes, Van
Devanter, McReynolds, Brandeis, Sutherland, Butler, Stone, Roberts
and Cardozo.
66~026 0-62-41
586 OCTOBER TERM, 1961.
CLARK, J ., concurring in result. 370 U.S.
It is my belief that prior to 1953 the Court of Claims
had all of the characteristics of an Article III courtjurisdiction
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.2 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, §§ 1-4, 52 Stat. 438, 28
U. S. C. § 1495, and appellate jurisdiction over tort suits
against the United States tried in the District Courts,
Act of Aug. 2, 1946, § 412 (a)(2), 60 Stat. 844, 28 U.S. C.
§ 1504, and over suits before the Indian Claims Commission,
Act of May 24, 1949, § 89 (a), 63 Stat. 102, 28
U.S. C. § 1505. In addition, the former jurisdiction over
questions referred by the Executive branch was withdrawn
in 1953. Act of July 28, 1953, § 8, 67 Stat. 226.
The result is that practically all of the court's jurisdiction
2 " 'From the outset Congress has required it [the Court of Claims l
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.
GLIDDEN COMPANY v. ZDANOK. 587
530 CLARK, J., concurring in result.
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
588 OCTOBER TERM, 1961.
CLARK, J ., concurring in result. 370 u. s.
Cases, 243 U.S. 97 (1917).3 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 Baketite opinion came down, Congress transferred the
appellate jurisdiction in 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, §§ 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, § 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
•1 That its original jurisdiction was in "cases" in the Article III, § 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).
GLIDDEN COMPANY v. ZDANOK. 589
530 DouGLAB, J., dissenting.
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.'
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.
5 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.
MR. JusTICE DouGLAS, with whom MR. J usTICE 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
4 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, § 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 Durk case was tried.
5 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).
590 OCTOBER TERM, 1961.
DOUGLAS, J., dissenting. 370U.S.
on the District Court 1 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,
§ 8, Congress is given a wide range of powers, including
1 The District Court of the District of Columbia, like the "inferior
courts" established by Congress under Art. III, § 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, § 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, § 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.
GLIDDEN COMPANY v. ZDANOK. 591
530 DouGLAs, J., dissenting.
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, § 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"; 2 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.3
2 "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. 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.
3 "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
592 OCTOBER TERM, 1961.
DouGLAS, J ., dissenting. 370 u. s.
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
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.
GLIDDEN COMPANY v. ZDANOK. 593
530 DouGLAS, J., dissenting.
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'M alley 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 guaran594
OCTOBER TERM, 1961.
DouGLAS, J ., dissenting. 370 u. s.
tees 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 en tire 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
530
GLIDDEN COMPANY v. ZDANOK. 595
DOUGLAS, J., dissenting.
the United States 'shall at stated times receive for
their services a compensation which shall not be
dimini.shed 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
596 OCTOBER TERM, 1961.
DoUGLAs, J., dissenting. 370 U.S.
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
530
GLIDDEN COMPANY v. ZDANOK. 597
DouGLAS, J., dissenting.
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." (Italics added.)
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.4 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
• 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.
598 OCTOBER TERM, 1961.
DOUGLAS, J., dissenting. 370 u. s.
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 I 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 5-all specifically named in Article III. They sit
5 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
GLIDDEN COMPANY v. ZDANOK. 599
530 DOUGLAS, J., dissenting.
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 0of 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
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 . . . ."
600 OCTOBER TERM, 1961.
DouGLAs, J., dissenting. 370 u. s.
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,
Congr"ess 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.6 The bill of
6 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
GLIDDEN COMPANY v. ZDANOK. 601
530 DouGLAS, J., dissenting.
attainder is banned by Art. I, § 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.
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) ."
663026 0-62-42
602 OCTOBER TERM, 1961.
DouGLAS, J., dissenting. 370U.S.
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:
Thus I cannot say, as some do, that the distinction
between the two kinds of courts is a "matter of language."
8 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, I 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
7 See 28 U. S. C. § 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. §§ 2509, 2510. 28 U. S. C.
§ 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.
8 See H. R. Rep. No. 2348, 84th Cong., 2d Sess., p. 3.
GLIDDEN COMPANY v. ZDANOK. 603
530 DoUGLAS, J., dissenting.
courts 9 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 sub-
9 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).
604 OCTOBER TERM, 1961.
DouGLAs, J ., dissenting. 370 u. s.
ject. 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 10 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 Cus-
10 See The Lottawanna, 21 Wall. 558, 575; The Osceola, 189 U. S.
158.
GLIDDEN COMPANY v. ZDANOK. 605
530 DouGLAS, J ., dissenting.
toms 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 on 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.11 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 minori-
11 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 th1tt 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.
606 OCTOBER TERM, 1961.
DouGLAS, J., dissenting. 3i0 u. s.
ties 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 Consiitution,
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.
CENTRAL R. CO. v. PENNSYLVANIA. 607
Syllabus.
CENTRAL RAILROAD COMPANY OF
PENNSYLVANIA v. PENNSYLVANIA.
APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA.
No. 400. Argued March 20, 1962.-Decided June 25, 1962.
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 of 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
608 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
State, since such a classification would be reasonable and would
not violate the Equal Protection Clause of the Fourteenth
Amendment. Pp. 617-618.
403 Pa. 419, 169 A. 2d 878, affirmed in part and reversed in part.
Roy J. Keefer argued the cause and filed briefs for
appel1ant.
George W. Keitel, Deputy Attorney General of Pennsylvania,
argued the cause for appellee. With him on the
briefs was David Stahl, Attorney General.
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, §§ 1871, 1901, to
the full value of all appellant's freight cars! 403 Pa.
1 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
CENTRAL R. CO. v. PENNSYLVANIA. 609
607 Opinion of the Court.
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. § 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.
§ 1, pars. (4), (10), (12), the members of the Association,
outside the State) bears to the value of the corporation's property
rverywhere. Purdon's Pa. Stat. Ann., 1949, Tit. 72, § 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.
610 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
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.2
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.3
2 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.
3 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.
CENTRAL R. CO. v. PENNSYLVAXIA. 611
607 Opinion of the Court.
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.• The state courts relied primarily on this
Court's decision in New York Central R. Co. v. Miller,
202 e. 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 l ... 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. 5 None of these
decisions has weakened the pivotal holding in Millerthat
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 jurisdic-
• The Supreme Comt of Pennsylvania did find, however, that rertain
diesel locomotives which had been leased to C:-{J by the appellant
and which traveled along fixed routes and schedules bad arquired a
tax situs in New Jersey and could not be taxed at their full value by
Pennsylvania. The State has not sought revie\\ of this part of that
decision.
5 E.g., Southern Pac. Co. v. Kentucky, 222 U.S. 63; Johnson Oil
Refining Co. v. Oklahoma, 290 U.S. 158; Northwest Airlines, In c., v.
Minnesota, 322 U.S. 292; Ott v. Mississippi Valley Barge Line C'o ..
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. 500.
See generally Developments, 75 Harv. L. Rev. 953, 979-987.
612 OCTOBER TERM, 1961.
Opinion of the Court. 370U.S.
tion 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 nondiscriminatory
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 power 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.
CENTRAL R. CO. v. PENNSYLVANIA. 613
607 Opinion of the Court.
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.
IL
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.
614 OCTOBER TERM, 1961.
Opinion of the Court. 370 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 CN J 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 railroads 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 if 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
CENTRAL R. CO. v. PENNSYLVANIA. 615
607 Opinion of the Court.
taxed elsewhere. Standard Oil Co. v. Peck, supra, at
384."
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
6 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.
616 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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.' 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
7 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.
CENTRAL R. CO. v. PENNSYLVANIA. 617
607 Opinion of the Court.
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. (Emphasis added.) 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
663026 0-62-43
618 OCTOBER TERM, 1961.
BLACK, J ., concurring. 370U.S.
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.
MR. JUSTICE FRANKFURTER took no part in the decision
of this case.
MR. JUSTICE WHITE took no patt 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.1
While my views expressed in those cases remain un-
1 See, e. g., Gwin, White & 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).
CENTRAL R. CO. v. PENNSYLVANIA. 619
607 BLACK, J., concurring.
changed, 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.2 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
2 Cf. Morgan v. Virginia, 328 U. S. 373, 386 (concurring opinion).
620 OCTOBER TERM, 1961.
BLACK, J., concurring. 3i0U. S.
adopted in 1868.3 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."• 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.' In
fact not a single state tax was struck down by this Court
as a violation of the Due Process Clause until 1903 °-
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.7 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
3 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.
4 Railroad Co. v. Jackson, 7 Wall. 262,268 (1869).
5 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).
6 Louisville & Jeffersonville Ferry Co. v. Kentucky, 188 U. S. 385.
1 Delaware, Lackawanna & Western R. Co. v. Pennsylvania, 198
U. S. 341 (1905)
607
CENTRAL R. CO. v. PENNSYLVANIA. 621
BLACK, J., concurring.
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." 8
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.9 But there is no reference to
commerce in the Fourteenth Amendment and the Court
has still never adequately explained just what the basis for
8 Union Refrigerator Tran~it Co. v. Kentucky, 199 U. 8. 194, 211
( 1905) . Professor Beale has said of this decision that, " [ t J he 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. 8. 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. 8. 174, where the Court overruled
First National Bank for the reasons expressed by the dissent in that
case.
9 See H. P. Hood & Sons, Inc., v. Du Mond, 336 U. S. 525, 562
( dissenting opinion).
622 OCTOBER TERM, 1961.
Opinion of DouGLAS, J. 370 u. 8.
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,1° 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.
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,N ew Orleans to levy ad valorem
taxes on barges of foreign corporations even though the
barges were not perma:nently in those jurisdictions nor
operated there on fixed routes and regular schedules.
The assessments sustained were "based on the ratio
10 See, e. g., Treichler v. Wisconsin, 338 U.S. 251, 257 (dissenting
opinion); Thomas v. Virginia, 364 U.S. 443 (dissenting opinion).
CENTRAL R. CO. v. PENNSYLVANIA. 623
607 Opinion of DOUGLAS, J.
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.,
624 OCTOBER TERM, 1961.
Opinion of DouGLAS, J. 370U. S.
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 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." 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
CENTRAL R. CO. v. PENNSYLVANIA. 625
607 Opinion of DouGLAS, J.
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.
626 OCTOBER TERM, 1961.
Syllabus. 370 U.S.
LINK v. WABASH RAILROAD CO.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT.
No. 422. Argued April 3, 1962.-Decided June 25, 1962.
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-rrcognized 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.
LINK v. WABASH RAILROAD CO. 627
626 Opinion of the Court.
(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.
291 F. 2d 542, affirmed.
Jay E. Darlington argued the cause and filed briefs for
petitioner.
John F. Bodle argued the cause for respondent. With
him on the briefs were Roger D. Branigin and George T.
&hilling.
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),1 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 I 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
1 See note 2, infra.
628 OCTOBER TERM, 1961.
Opinion of the Court. 370U. S.
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 13] or any time
Friday [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 2 and finding that counsel had failed
2 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 I,
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. [Footnote 2 continued on p. 629]
LINK v. WABASH RAILROAD CO. 629
626 Opinion of the Court.
"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.3 The power to invoke
this sanction is necessary in order to prevent undue delays
in the disposition of pending cases and to avoid congestion
"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 I, 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.
3 See Fed. Rules Civ. Proc., 41 (b), p. 630, infra.
630 OCTOBER TERYI, 1961.
Opinion of the Court. 3i0 u. s.
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 ]aw, 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
restriction. 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
LINK v. WABASH RAILROAD CO. 631
626 Opinion of the Court.
achieve the orderly and expeditious disposition of cases.•
That it has long gone unquestioned is apparent not only
from the many state court decisions sustaining such dismissals,
5 but even from language in this Court's opinion
in Redfield v. Y stalyfera Iron Co., 110 U. S. 174, 176.6 It
also has the sanction of wide usage among the District
Courts.7 It would require a much clearer expression of
• 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 7!)2:
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.
5 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.
6 The issue in that case was whether a plaintiff was entitled to
recover interest. on a rdund 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."
7 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
632 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
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).
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. Okla. Rule 12; E. D. Pa. Rule 18; M. D. Pa.
Rule 21-A; S. Dak. Rule 9, § 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.
LINK v. WABASH RAILROAD CO. 633
626 Opinion of the Court.
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.8
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)," 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 this attorney as his representative
in the action, and he cannot now avoid the consequences
of the acts or omissions of this freely selected
8 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.
9 The record shows that this was the "oldest" case on the District
Court's civil docket.
663026 0-62-44
634 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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. 320,326.10
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.11
1 ° 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 circumstances, 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.
11 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
LINK v. WABASH RAILROAD CO. 635
626 Opinion of the Court.
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
con text of other evidence of delay, be considered by a
District Court as justifying a dismissal with prejudice.12
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
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.
12 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.
636 OCTOBER TERM, 1961.
BLACK, J., dissenting. 370 U.S.
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.
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 co11ision 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
LINK v. WABASH RAILROAD CO. 637
626 BLACK, J., dissenting.
to recover compensation for his injuries.1 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
off ends 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." 2
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
1 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 Procedure 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.
2 291 F. 2d 542, 548.
638 OCTOBER TERM, 1961.
BLACK, J., dissenting. 370 U.S.
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,3 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." 4 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." 5 Indeed, the only
3 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."
4 291 F. 2d, at 543.
5 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 judgment 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.
LINK v. WABASH RAILROAD CO. 639
626 BLACK, J ., dissenting.
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 .... " 6
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." 7
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
6 ld., at 545. (Emphasis supplied.) 1 Id., at 547.
640 OCTOBER TERM, 1961.
BLACK, J., dissenting. 370 u. s.
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. 8 The railroad then asked
this Court to grant certiorari and review the Court of
Appeals' holding but, on February 25, 1957, we denied
certiorari.9 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 merits, 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
8 237 F. 2d 1. 9 352 U. s. 1003.
LINK v. WABASH RAILROAD CO. 641
626 BLACK, J ., dissenting.
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
642 OCTOBER TERM, 1961.
BLACK, J., dissenting. 370 u. s.
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 oneday
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.10 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
10 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.
LINK v. WABASH RAILROAD CO. 643
626 BLACK, J., dissenting.
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 reques~ 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
644 OCTOBER TERM, 1961.
BLACK, J., dissenting. 370U.S.
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." 11 One may readily accept
11 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 exercised
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
LINK v. WABASH RAILROAD CO. 645
626 BLACK, J ., dissenting.
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
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.
646 OCTOBER TERM, 1961.
BLACK, .J., dissenting. 370 U.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.12 Lawyers everywhere in this
country are granted licenses presumably because of their
skill, their integrity, their learning in the law and their
12 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 merit~
before an impartial judicial tribunal established under and operating
in accordance with the Constitution of the United States.
LINK v. WABASH RAILROAD CO. 647
626 BLACK, J., dissenting.
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.13
13 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
648 OCTOBER TERM, 1961.
BLACK, J., dissenting. 370 u. s.
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 createdthat
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
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.
LINK v. WABASH RAILROAD CO. 649
626 BLACK, J., dissenting.
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.
663026 0-62-4~
650 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
GILBERT v. UNITED STATES.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT.
No. 478. Argued April 10, 1962.-Decided June 25, 1962.
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. § 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 § 495 was intended to have its common
law meaning, and it does not include a purported but
unauthorized agency endorsement. Pp. 655-659.
291 F. 2d 586, judgment vacated and cause remanded.
Fred Okrand and Albert A. Dorn argued the cause and
filed briefs for petitioner.
Kirby W. Patterson argued the cause for the United
States. With him on the briefs were Solicitor General
Cox, Assistant Attorney General Miller, J. William
Doolittle and Beatrice Rosenberg.
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. § 7206 (2), 18 U. S. C. § 1001, and 18 U. S. C.
§ 495, in that he had allegedly falsified his clients' returns
(§ 7206 (2)), forged their endorsements on government
tax-refund checks ( § 495), and, by endorsing such checks,
had made false statements as to a matter within the jurisdiction
of a government agency(§ 1001). The jury convicted
on thirty-one counts and acquitted on four others.
GILBERT v. UNITED STATES. 651
650 Opinion of the Court.
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. Hartfield on two government refund
checks (18 U.S. C. § 495), was affirmed.1
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. Bartfi.eld
Charline R. Bartfield
R. Milo Gilbert, Trustee" 2
1 18 U. S. C. § 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."
2 As payee of the two checks, Mrs. Bartfield's first name (Charline)
was incorrectly spelled "Chalrene" on one and "Charlene" on the
652 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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.3
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
§ 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 § 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.
other, the former misspelling being carried over into the indictments.
(Note 1, supra.) On one of the checks, petitioner's first mme, as
part of the payee inscription, was incorrectly spelled "Mile."
3 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.
GILBERT v. UNITED STATES. 653
650 Opinion of the Court.
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." (Emphasis
added.) 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 § 495,• he at
• 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
654 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
no point undertook to explain the difference between
an agency and a nonagency endorsement.5 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
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."
5 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
:igent 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. § 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.
GILBERT v. UNITED STATES. 655
650 Opinion of the Court.
does not constitute forgery under § 495, the petitioner
jg at least entitled to a new trial under proper jury
instructions.
IL
The original predecessor of § 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 § 495. There is no significant legislative history illuminating
§ 495 or any of its predecessors. In deciding
whether "forges" under § 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." 0 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 § 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 Viet., c. 98, § 24, defining forgery to include
6 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).
656 OCTOBER TERM, 1961.
Opinion of the Court. 370U. S.
unauthorized signings "per procuration," with intent to
defraud.' 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 those 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."
(Emphasis in original.) Coke,8 Hawkins,9 and
7 The statute presently in effect in England, the Forgery Act of
1913, 3 & 4 Geo. 5, c. 27, § 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 .... "
8 "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 O 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, § 2, at 183 (1762).
9 "Forgery by the Common Law seemetl1 to be an Offence in falsly
and fraudulently making or altering any Matter of Record, or any
GILBERT v. UNITED STATES. 657
650 Opinion of the Court.
Blackstone,1° 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 § 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
other authentick Matter of a publick Nature .... " I Hawkins, Pleas
of the Crown, c. 70, § 1, p. 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 endeavouring
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., § 2, at 183.
10 "Forgery, or the crimen fa!,si, ... 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.
658 OCTOBER TERM, 1961.
Opinion of the Court. 370U.S.
squarely dealing with the point,11 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.12 Nor are we impressed with the argument
that "forge" in § 495 should be given a broader scope
than its common-law meaning because contained in a
statute aimed at protecting the Government against
fraud.13 Other federal statutes are ample enough to protect
the Government against fraud and false statements.
See 18 U. S. C. §§ 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. § 2314); Wright v. United States, 172
F. 2d 310, 311-312 (construing 18 U. S. C. § 2314);
Marteney v. United States, supra (construing 18 U.S. C.
§ 2314); United States v. Carabasi, 292 F. 2d 362, 364
( construing 7 U. S. C. § 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
11 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.
12 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.
13 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. § 3231, where a similar general
proviso relating to all statutes in Title 18 is now found.
GILBERT v. UNITED STATES. 659
650 Opinion of the Court.
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.
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 to do
so is guilty of forgery under 18 U. S. C. § 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.
660 OCTOBER TERM, 1961.
Opinion of the Court. 370U.S.
ROBINSON v. CALIFORNIA.
APPEAL FROM THE APPELLATE DEPARTMENT, SUPERIOR
COURT OF CALIFORNIA, LOS ANGELES COUNTY.
No. 554. Argued April 17, 1962.-Decided June 25, 1962.
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.
Reversed.
Samuel Carter McMorris argued the cause and filed
briefs for appellant.
William E. Doran argued the cause for appellee. With
him on the brief were Roger Arnebergh and Philip E.
Grey.
MR. JUSTICE STEWART delivered the opm1on of the
Court.
A California statute makes it a criminal offense for a
person to "be addicted to the use of narcotics." 1 This
1 The statute is § 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
ROBINSON v. CALIFORNIA. 661
660 Opinion of the Court.
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 had occasion to examine the
appellant's arms one evening on a street in Los Angeles
some four months before the trial.2 The officer testified
that at that time he had observed "scar tissue and discoloration
on the inside" of the appe1lant'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,
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."
2 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.
662 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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 .... 3 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
s 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 viol~tion of that provision of the statute. See
note 1, supra.
ROBINSON v. CALIFORNIA. 663
660 Opinion of the Court.
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.• "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 .... " 6
Under these instructions the jury returned a verdict
finding the appellant "guilty of the offense charged."
• "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."
5 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.
664 OCTOBER TERM, 1961.
Opinion of the Court. 370U.S.
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. § 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.6
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
Cons ti tu tion.
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 viola-
6 The appellant tried unsuccessfully to secure habeas corpus relief
in the District Court of Appeal and the California Supreme Court.
ROBINSON v. CALIFORNIA. 665
660 Opinion of the Court.
tion 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! 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.
7 California appears to have established just such a program in
§§ 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.
663026 0-62-46
666 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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 universa1ly 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.
ROBINSON v. CALIFORNIA. 667
660 Opinion of the Court.
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.8 Indeed, it is
apparently an illness which may be contracted innocently
or involuntarily.9 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
8 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.
9 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).
668 OCTOBER TERM, 1961.
DouGLAS, J ., concurring. 370 U.S.
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.
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
ROBINSON v. CALIFORNIA. 669
660 DouGLAS, J., concurring.
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 neardrowning),
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.1 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 cate-
1 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 Qr 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."
670 OCTOBER TERM, 1961.
DouGLAS, J., concurring. 370 U.S.
gory 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.
660
ROBINSON v. CALIFORNIA. 671
DouGLAS, J ., concurring.
" '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 dep~ndence 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, N arcotics
and Drug Addiction (1946), p. 40 et seq.
672 OCTOBER TERM, 1961.
DoUGLAS, J., concurring. 370U.S.
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
ROBINSON v. CALIFORNIA. 673
660 DouGLAS, J., concurring.
treatment of addicts squarely and exclusively into the
hands of the medical profession." Lindesmith, The
British System of Narcotics Control, 22 Law & Con temp.
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 selfcontrol."
S. Rep. No. 2033, 84th Cong., 2d Sess., p. 8.
There has been a controversy over the type of treatmentwhether
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
674 OCTOBER TERM, 1961.
DouGLAS, J ., concurring. 370 U.S.
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 transgression.
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.2 As Charles Winick has
said:
"There can be no single program for the elimination
of an illness as complex as drug addiction, which
2 "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
660
ROBINSON v. CALIFORNIA. 675
DouGLAS, J., concurring.
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 posttreatment
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 Franc-is 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).
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."
676 OCTOBER TERM, 1961.
DOUGLAS, J., concurring. 370 U.S.
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.3 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.4 Cruel and unusual punishment results not from
confinement, but from convicting the addict of a crime.
The purpose of § 11721 is not to cure, but to penalize.
3 See 3Catholic 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.
4 As to the insane, see Lynch v. Overholser, 369 U. S. 705; note, 1
L. R. A. (N. S.), p. 540 et seq.
ROBINSON v. CALIFORNIA. 677
660 DouGLAS, J., concurring.
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 § 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.5 This prosecution has no relationship to the curing
5 The difference between§ 5350 and§ 11721 is that the former aims
at treatment of the addiction, whereas § 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 § 11391, to be sure, indicates that perhaps
some form of treatment may be given an addict convicted under
§ 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."
(Emphasis supplied.)
Section 11391 does not state that any treatment is required for either
part or the whole of the mandatory 90-day prison term imposed by
§ 11721. Should the necessity for treatment end before the 90-day
678 OCTOBER TERM, 1961.
HARLAN, J., concurring. 370 u. s.
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.
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
term is concluded, or should no treatment be given, the addict clearly
would be undergoing punishment for an illness. Therefore, reference
to § 11391 will not solve or alleviate the problem of cruel and unusual
punishment presented by this case.
*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." (Emphasis added.) Although
the jury was told that it should acquit if the appellant proved that
his "being addicted to the use of narcotics was administered [sic] 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.
ROBINSON v. CALIFORNIA. 679
660 CLARK, J., dissenting.
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.
If the California statute reaches this type of conduct,
and for present purposes we must accept the trial court's
construction as binding, Terminwllo 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 § 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 § 11721, and the State
Legislature in its discretion continued the policy of that
section.
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
680 OCTOBER TERM, 1961.
CLARK, J ., dissenting. 370 U.S.
Code deals with this problem in realistic stages. At its
incipiency narcotic addiction is handled under § 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 § 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 § 11721: "The rehabilitation of narcotic addicts
and the prevention of continued addiction to narcotics is
a matter of statewide concern." California Health and
Safety Code § 11728.
Where narcotic addiction has progressed beyond the
incipient, volitional stage, California provides for commitment
of three months to two years in a state hospital.
ROBINSON v. CALIFORNIA. 681
660 CLARK, J., dissenting.
California Welfare and Institutions Code§ 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 § 5350. (Emphasis supplied.)
This proceeding is clearly civil in nature with a purpose
of rehabilitation and cure. Significantly, if it is found
that a person committed under § 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.
§ 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
663026 0-62-47
682 OCTOBER TERM, 1961.
CLARK, J ., dissenting. 370 u. s.
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 § 5355 as one who had completely "lost
the power of self-control." The jury was instructed that
narcotic "addiction" as used in § 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 N alline 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 § 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.
ROBINSON v. CALIFORNIA. 683
660 CLARK, J., dissenting.
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 § 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 § 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.
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 § 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
* 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.
684 OCTOBER TERM, 1961.
CLARK, J., dissenting. 370U.S.
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, 298 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 section at issue applies only to
persons who use narcotics often or even daily but not to
the point of losing self-control. When dealing with involuntary
addicts California moves only through § 5355 of
its Welfare Institutions Code which clearly is not penal.
Even if it could be argued that § 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.
ROBINSON v. CALIFORNIA. 685
660 WHITE, J., dissenting.
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 § 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.1
1 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
686 OCTOBER TERM, 1961.
WHITE, J., dissenting. 370 u. s.
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,2 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.'
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
construe its law as to bring it into conflict with the federal Constitution
or an act of Congress.' Allen-Bradley Local v. Wiscon.sin
Board, 315 U. S. 740, at 746."
2 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."
8 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 as 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.
ROBINSON v. CALIFORNIA. 687
660 WHITE, J., dissenting.
where there is no precise evidence of the county where the
use took place.4
Nor do I find any indications in this record that California
would apply § 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
4 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 § 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., §§ 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.
688 OCTOBER TERM, 1961.
WHITE, J., dissenting. 370U. 8.
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.5
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 recognizes 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 Fo,urteenth 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.
5 Health and Safety Code § 11391 expressly permits and contemplates
the medical treatment of narcotics addicts confined to jail.
ROBINSON v. CALIFORNIA. 689
660 WHITE, J., dissenting.
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.
690 OCTOBER TERM, 1961.
Syllabus. 370 U.S.
CONTINENT AL ORE CO. ET AL. v. UNION
CARBIDE & CARBON CORP. ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT.
No. 304. Argued April 16-17, 1962.-Decided June 25, 1962.
Petitioners sued respondents under § 4 of the Clayton Act to recover
treble damages, alleging that respondents had violated §§ 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 and 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 act•
ing 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.
CONTINENTAL CO. v. UNION CARBIDE. 691
690 Opinion of the Court.
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.
289 F. 2d Stl, judgment vacated and case remanded for new trial.
Joseph L. Alioto argued the cause for petitioners. With
him on the briefs were Maxwell Keith and Richard Saveri.
Josiah G. Holland argued the cause for the Vanadium
Corporation of America, respondent. With him on the
briefs were Edward R. Neaher, Robert P. Davison, Melvin
D. Goodman and Francis N. Marshall.
Richard J. Archer argued the cause for Union Carbide
& Carbon Corp. et al., respondents. With him on the
briefs were Herbert W. Clark and Girvan Peck.
MR. JUSTICE WHITE delivered the opinion of the Court.
This is a private treble damage action under the antitrust
lav,rs.1 Continental Ore Company, a partnership,
1 The action was brought under § 4 of the Clayton Act, 15 U.S. C.
§ 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."
692 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
and its individual partners, who were plaintiffs in the trial
court, are petitioners here.2 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,3 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 ferrovanadiurn; Electro Metallurgical
Sales Corporation ( Electro Met Sales), engaged in
the sale of vanadium oxide and ferrovanadium; and Electro
Meta11urgical Company of Canada, Ltd. (Electro Met
of Canada), engaged in selling vanadium products in
Canada. The complaint was filed on November 15,
2 The partnership is the successor in interest to Continental Ore
Corporation, organized in 1938 but later dissolved.
3 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.
CONTINENT AL CO. v. UNION CARBIDE. 693
690 Opinion of the Court.
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 § § 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 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 sales of
ferrovanadium and vanadium oxide among 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
• The Sherman Act,§§ 1-2, 15 U.S. C. §§ 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 with 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 .... "
694 OCTOBER TERM, 1961.
Opinion of the Court. 370 u. s.
99% of all ferrovanadium and over 90% of all vanadium
oxide produced in the United States and that during the
same period the defendants sold over 99% of the ferrovanadium
and vanadium oxide sold in this country.5
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
5 The complaint alleged that VCA sold approximately two-thirds
of all ferrovanadium and vanadium oxide sold by defendants (which
was i,aid to amount to approximately 99% of aU ferrovanadium
and vanadium oxide sold and consumed in the United States), while
Electro Met Sales (a Carbide subsidiary) sold approximately onethird.
According to petitioners' evidence, the Carbide group produced
approximately 77% of domestic vanadium oxide, while VCA
produced about 65% of ferrovanadium.
CONTINENT AL CO. v. UNION CARBIDE. 695
690 Opinion of the Court.
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 Continen
tal'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 find696
OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
ing 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.6 From our examination of the
6 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 evidem,e 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.); WisCONTINENT
AL CO. v. UNION CARBIDE. 697
690 Opinion of the Court.
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." 1 The court also assumed that the evidence was
consin 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.
1 289 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: "[IJn 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." 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.).
663026 0~2-48
698 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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% 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 Continental's claims as if they were
five completely separate and unrelated lawsuits. We
CONTINENTAL CO. v. UNION CARBIDE. 699
690 Opinion of the Court.
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. " ... [T]he 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 8 clearly do not support
any such formula and we cannot deem the injury
8 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, 59fh598; Milwaukee Towne Corp. v.
Loew's, Inc., 190 F. 2d 561, 568.
700 OCTOBER TERM, 1961.
Opinion of the Court. 370U.S.
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.9
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
9 Cf. Klor's, Inc., v. Broadway-Hal,e Stores, Inc., 359 U. S. 207.
CONTINENTAL CO. v. UNION CARBIDE. 701
690 Opinion of the Court.
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.1° 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
10 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.
702 OCTOBER TERM, 1961.
Opinion of the Court. 370U. S.
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 11 had elimi-
11 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
CONTINENTAL CO. v. UNION CARBIDE. 703
690 Opinion of the Court.
nated 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."
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. Reference Re
Regulations (Chemicals) Under War Measures Act, 1 D. L. R.
[1943] 248.
704 OCTOBER TERM, 1961.
Opinion of the Court. 370U.S.
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 & Arctic 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.
CONTINENT AL CO. v. UNION CARBIDE. 705
690 Opinion of the Court.
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. 319.12
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 defendants' 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.13
12 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).
13 "The circumstances of the present controversy are radically different
from those presented in American Banana Co. v. United Fruit
Co., supra, a.nd 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 a.cts, 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.
706 OCTOBER TERM, 1961.
Opinion of the Court. 370U.S.
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
Contro11er 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
CONTINENT AL CO. v. UNION CARBIDE. 707
690 Opinion of the Court.
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 Georgi,a v.
Pennsylvani,a 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 Conj. 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
708 OCTOBER TERM, 1961.
Opinion of the Court. 370U.S.
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, w.as 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 § 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 ref erring to "the joint acquisition
or maintenance by the members of the conspiracy formed
for that purpose, of the power to control and dominate
CONTINENTAL CO. v. UNION CARBIDE. 709
690 Opinion of the Court.
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 prejuclicial rather
than harmless. This error should not be repeated in a
new trial. 14
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
14 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.
710 OCTOBER TERM, 1961.
Opinion of the Court. 370 U.S.
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.15 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.16 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.
MR. JUSTICE FRANKFURTER took no part in the consideration
or decision of this case.
15 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.
16 See United States v. Socony-Vacuum Ou Co., 310 U. S. 150,
228-231.
TEAMSTERS v. YELLOW TRANSIT. 711
Per Curiam.
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.
No. 13. Argued October 11, 1961.-Decided June 25, 1962.
Judgment reversed on the authority of Sinclair Rfg. Co. v. Atkinson,
ante, p. 195.
Reported below: 282 F. 2d 345.
David Previant argued the cause and filed briefs for
petitioners.
Malcolm Miller argued the cause for respondents.
With him on the briefs were Charles Blackmar, Carl T.
Smith and John F. Eberhardt.
J. Albert Woll, Theodore J. St. Antoine and Thomas E.
H arri.s filed a brief for the American Federation of Labor
and Congress of Industrial Organizations, as amicus
curiae, urging reversal.
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
712 OCTOBER TERM, 1961.
BRENNAN, J., concurring. 370 u. s.
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," "[s]uch 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."
IDLEWILD LIQUOR CORP. v. EPSTEIN. 713
Syllabus.
IDLEWILD BON VOYAGE LIQUOR CORP. v.
EPSTEIN ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT.
No. 138. Argued February 28, 1962.-Decided June 25, 1962.*
Having been informed by officials of the State of New York that its
business of selling bottled wines and iiquors 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 Fedrral
Constitution and for an injunction against its enforcement. A
request for a three-judge court under 28 U. S. C. §§ 2281, 2284 was
denied, and the single District Judge to whom it was presented
sirnpl:v 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. There:ifter 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.
Reported below: 289 F. 2d 426.
Charles H. Tuttle argued the cause for petitioner.
With him on the briefs was John F. Kelly.
Julius L. Sackman argued the cause for respondents.
With him on the briefs were Louis J. Lefkowitz, Attorney
General of New York, and Paxton Blair, Solicitor General.
*Together with No. 180, Misc., ldlewild Bon Voyage Liquor Corp.
v. Ricks et al.. U.S. District Judges, on petition for writ of mandamus.
663026 0-62-49
714 OCTOBER TERM, 1961.
Per Curiam. 370 U.S.
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.
§§ 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.1 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 never-
1 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.
IDLEWILD LIQUOR CORP. v. EPSTEIN. 715
713 Per Curiam.
theless of the view that it was powerless tQ take formal
corrective action in light of this Court's decision in
Stratton v. St. Louis S. W. R. Co., 282 U. S. 10.2
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 threejudge
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 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.8
In the Stratton case it was held that a court of appeals
was precluded from reviewing on the merits a case which
2 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. §§ 1291, 1292," pointing out that "[a]ppellant was
effectively out of court." 289 F. 2d, at 428.
3 This is not a case like Chicago, Duluth & Georgian Bay Tran.sit
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.
663026 O-62- ~o
716 OCTOBER TERM, 1961.
Per Curiam. 370 U.S.
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.
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.
SILBER v. UNITED STATES. 717
Per Curiam.
SILBER v. UNITED STATES.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT.
No. 454. Argued April 19, 1962.-Decided June 25, 1962.
Petitioner's indictment for violating 2 U.S. C. § 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 it;
and petitioner was convicted. The issue raised by the 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.
lll U.S. App. D. C. 331,296 F. 2d 588, reversed.
Victor Rabinowitz argued the cause for petitioner.
With him on the briefs was Leonard B. Boudin.
Bruce J. Terris argued the cause for the United States.
On the briefs were Solicitor General Cox, Assistant Attorney
General Yeagley, George B. Searls and Kevin T.
Maroney.
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
718 OCTOBER TERM, 1961.
Per Curiam. 370U.S.
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).
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.
*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.
DECISIONS PER CURIAM. 719
370U.S. June 25, 1962.
UNITED STATES v. KNISS ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF WISCONSIN.
No. 762. Decided June 25, 1962.
Reversed.
Solicitor General Cox, Assistant Attorney General
Loevinger and Richard A. Solomon for the United States.
PER CuRIAM.
The judgment 1s reversed. United States v. Wise,
ante, p. 405.
MR. JusTICE FRANKFURTER took no part in the consideration
or decision of this case.
UNITED STATES v. STALEY ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF CALIFORNIA.
No. 882. Decided June 25, 1962.
Reversed.
Solicitor General Cox and Assistant Attorney General
Loevinger for the United States.
Homer I. Mitchell, Warren M. Christopher and Aloysius
F. Power for appellees.
PER CuRIAM.
The judgment 1s reversed. United States v. Wise,
ante, p. 405.
MR. JUSTICE FRANKFURTER took no part in the consideration
or decision of this case.
720 OCTOBER TERM, 1961.
Per Curiam. 370U.S.
CITY CENTER MOTEL, INC., v. FLORIDA HOTEL
AND RESTAURANT COMMISSION.
APPEAL FROM THE DISTRICT COURT OF APPEAL OF FLORIDA,
FIRST APPELLATE DISTRICT.
No. 920. Decided June 25, 1962.
Appeal dismissed for want of a substantial federal question.
Reported below: 134 So. 2d 856.
John H. Cotten for appellant.
Weldon G. Starry for appellee.
PER CumAM.
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.
WASILEWSKI v. BOARD OF SCHOOL DIRECTORS
OF THE CITY OF MILWAUKEE.
APPEAL FROM THE SUPREME COURT OF WISCONSIN.
No. 1124, Misc. Decided June 25, 1962.
Appeal dismissed and certiorari denied.
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.
DECISIONS PER CURIAM. 721
370U. S. June 25, 1962.
WINTERS v. OHIO.
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME
COURT OF OHIO.
No. 388, Misc. Decided June 25, 1962.
Certiorari granted; judgment vacated; case remanded for further
proceedings.
Petitioner pr.a se.
Richard 0. Harris for respondent.
PER CURIAM.
The motion for leave to proceed in forma pauper-is 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.
Ma. JusTICE FRANKFURTER took no part in the consideration
or decision of this case.
OLEN v. OLEN.
APPEAL FROM THE SUPREME COURT OF NEW JERSEY.
No. 1153, Misc. Decided June 25, 1962.
Appeal dismissed and certiorari denied.
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.
722 OCTOBER TERM, 1961.
Per Curiam. 370 u. s.
ELCHUK v. UNITED ST ATES.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
No. 965, Misc. Decided June 25, 1962.
Certiorari granted; judgment vacated; case remanded for further
procedings.
Reported below: 296 F. 2d 723.
Petitioner prose.
Solicitor General Cox, Assistant Attorney General
Miller and Beatrice Rosenberg for the United States.
PER CuRIAM.
The motion for leave to proceed in forma pauper-is 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.
MARAKAR v. UNITED STATES. 723
370 u. s. Per Curiam.
MARAKAR v. UNITED STATES.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COUR'l' OF APPEALS FOR THE THIRD CIRCUIT.
No. 1191, Misc. Decided June 25, 1962.*
Certiorari granted; judgments vacated; causes remanded with directions
to dismiss the indictments.
Reported below: 300 F. 2d 513.
Joseph F. Walsh for petitioner in No. 1191, Misc.
Harry T. Carter for petitioner in No. 1234, Misc.
Solicitor General Cox for the United States.
PER CuRIAM.
The motions for leave to proceed in forma pauperi.s 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.
*Together with No. 1234, Misc., Ali v. United States, also on
petition for writ of certiorari to the same Court.
724 OCTOBER TERM, 1961.
Per Curiam. 370U.S.
HARTMAN v. UNITED STATES.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.
No. 447, Misc. Decided June 25, 1962.
Certiorari granted; judgment reversed.
Reported below: 290 F. 2d 460.
Lawrence Speiser for petitioner.
Solicitor General Cox, Assistant Attorney General
Yeagley and George B. Searls for the United States.
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 m
Russell v. United States, 369 U. S. 749, 779, 781.
ALLEN v. BANNAN. 725
370 u. s. Per Curiam.
ALLEN v. BANNAN, WARDEN.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT.
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.
Petitioner pro se.
Frank J. Kelky, Attorney General of Michigan, Eugene
Krasicky, Solicitor General, and George Mason, Assistant
Attorney General, for respondent.
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.
726 OCTOBER TERM, 1961.
Per Curiam. 370 U.S.
LOUISIANA EX REL. w ASHINGTON v. w ALKER,
WARDEN.
APPEAL FROM THE SUPREME COURT OF LOUISIANA.
No. 900, Misc. Decided June 25, 1962.
Appeal dismissed for want of a substantial federal question.
Robert H. Reiter and Jack N. Rogers for appellant.
Jack P. F. Gremillion, Attorney General of Louisiana,
and Scallan E. Walsh, Assistant Attorney General, for
appellee.
PER CURIAM.
The motion to dismiss is granted and the appeal 1s
dismissed for want of a substantial federal question.
MR. JusTICE FRANKFURTER took no part in the con~
sideration or decision of this case.
GILLIAM v. UNITED STATES. 727
370U.S. Per Curiam.
GILLIAM v. UNITED STATES.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT.
No. 1274, Misc. Decided June 25, 1962.
Certiorari granted; judgment vacated; case remanded to the Court
of Appeals for further proceedings.
Petitioner pro se.
Solicitor General Cox for the United States.
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 m the consideration
or decision of this case.
728 OCTOBER TERM, 1961.
Per Curiam. 370 u. s.
WHITUS v. BALKCOM, WARDEN.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
No. 1357, Misc. Decided June 25, 1962.
Certiorari granted; judgment vacated; case remanded to the District
Court for a hearing on the merits of the petition for writ of habeas
corpus.
Reported below: 299 F. 2d 844.
Petitioner pro se.
Eugene Cook, Attorney General of Georgia, and
Howard P. Wallace, Assistant Attorney General, for
respondent.
PER CURIAM.
The motion for leave to proceed in forrna 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.
Mn. JusTICE FRANKFURTER took no part in the consideration
or decision of this case.
REPORTER'S NOTE.
The next page is purposely numbered 901. The numbers between
728 and 901 were purposely omitted, in order to make it possible to
publish the orders in the current advance sheets or "preliminary
prints" of the United States Reports with permanent page numbers,
thus making the official citations available immediately .

ORDERS FROM MAY 28 THROUGH
JUNE 25, 1962.
MAY 28, 1962.*
Miscellaneous Orders.
No.-. HOMESTEAD HosPITAL v. BoBCIK. The motion
of the appellee to dismiss under Rule 14 (2) is
granted and the appeal is dismissed. Edwin 0. Simon
for appellee.
No. 823. PAN AMERICAN PETROLEUM CoRP. v. KANSAS-
NEBRASKA NATURAL GAS Co., INC. On petition for
writ of certiorari to the United States Court of Appeals
for the Eighth Circuit. The motion of Western Natural
Gas Company for leave to file a brief, as amicus curiae,
is granted. George D. Horning, Jr. for movant. Reported
below: 297 F. 2d 561.
Probable Jurisdiction Noted.
No. 659. NORTHERN NATURAL GAs Co. v. STATE CORPORATION
COMMISSION OF KANSAS. Appeal from the
Supreme Court of Kansas. Probable jurisdiction noted.
MR. JusTICE WHITE took no part in the consideration or
decision of this case. Lawrence I. Shaw, F. Vinson
Roach, Patrick J. McCarthy, Mark H. Adams and Joe
Rolston for appellant. Jerome Ackerman for appellee.
Solicitor General Cox, Assistant Attorney General Orrick,
Morton Hollander, Sherman L. Cohn, Ralph S. Spritzer,
Howard E. Wahrenbrock and Arthur H. Fribourg for the
Federal Power Commission, as amicus cur-iae. Reported
below: 188 Kan. 351, 362 P. 2d 609; 188 Kan. 355, 362
P. 2d 599; 188 Kan. 624, 364 P. 2d 668.
*MR. JusTICE FRANKFURTER took no part in the consideration or
decision of cases in which orders were this day announced.
901
663026 0-62-' I
902 OCTOBER TERM, 1961.
May 28, 1962. 370U.S.
No. 796. NEw YORK CENTRAL RAILROAD Co. v. UNITED
STATES ET AL. Appeal from the United States District
Court for the Southern District of New York. Probable
jurisdiction noted. Kenneth H. Lundmark for appellant.
Solicitor General Cox, Assistant Attorney General Loevinger,
Lionel Kestenbaum and Robert W. Ginnane for the
United States and the Interstate Commerce Commission,
appellees. Reported below: 201 F. Supp. 958.
Certiorari Granted. (See also No. 728, Misc., ante,
p. 48.)
No. 793. SCHLUDE ET AL. v. COMMISSIONER OF INTERNAL
REVENUE. C. A. 8th Cir. Certiorari granted. Robert
Ash and Carl F. Bauersfeld for petitioners. Solicitor
General Cox, Assistant Attorney General Oberdorfer,
Harry Baum and Burt J. Abrams for respondent. Fontaine
C. Bradley, John T. Sapi.enza, Robert L. Randall
and Alvin Friedman for the American Institute of Certified
Public Accountants, as amicus curiae, in support of
the petition. Reported below: 296 F. 2d 721.
No. 1022, Misc. HAYNES v. WASHINGTON. Motion
for leave to proceed in forma pauperis and petition for
writ of certiorari to the Supreme Court of Washington
granted. Case transferred to the appellate docket.
Franc-is Hoague for petitioner. John J. Lally for respondent.
Reported below: 58 Wash. 2d 716, 364 P. 2d 935.
Certiorari Denied. (See also No. 789, ante, p. 46; and
No. 824, ante, p. 47.)
No. 864. CAIN ET AL. v. UNITED STATES. C. A. 7th
Cir. Certiorari denied. Maurice J. Walsh for petitioners.
Solicitor General Cox, Assistant Attorney General
Oberdorfer and Joseph M. Howard for the United
States. Reported below: 298 F. 2d 934.
ORDERS. 903
370 u. s. May 28, 1962.
No. 394. GEAGAN ET AL. v. GAVIN, CORRECTIONAL
SlTPERINTENDENT. C. A. 1st Cir. Certiorari denied.
Paul T. Smith and Lawrence O'Donnell for petitioners.
Edward J. McCormack, Attorney General of Massachusetts,
John F. McAuliffe and Gerald F. Muldoon, Special
Assistant Attorneys General, for respondent. Reported
below: 292 F. 2d 244.
No. 395. McDONALD v. OREGON. Supreme Court of
Oregon. Certiorari denied. Frederick Bernays Wiener
for petitioner. Reported below: 231 Ore.-, 361 P. 2d
1001.
No. 710. McDONALD v. OREGON. Supreme Court of
Oregon. Certiorari denied. Frederick Bernays Wiener
for petitioner. Reported below: 231 Ore. - , 365 P. 2d
494.
No. 856. WILLEMS INDUSTRIES, INC., v. UNITED
STATES. Court of Claims. Certiorari denied. Richard
J. Stull for petitioner. Solicitor General Cox, Assistant
Attorney General Orrick and John G. Laughlin, Jr. for
the United States. Reported below: - Ct. Cl.-, 295
F. 2d 822.
No. 859. BOSTIC v. OHIO. Supreme Court of Ohio.
Certiorari denied. Abraham Gertner for petitioner. Reported
below: 173 Ohio St. 176, 180 N. E. 2d 582.
No. 867. CHAPPELLE v. SHARP ET AL. United States
Court of Appeals for the District of Columbia Circuit.
Certiorari denied. Sommers T. Brown and Paul M.
Rhodes for petitioner. Solicitor Gener.al Cox, Assistant
Attorney General Orrick and Alan S. Rosenthal for
respondents. Reported below: 112 U.S. App. D. C. 182,
301 F. 2d 506.
904 OCTOBER TERM, 1961.
May 28, 1962. 370 u. s.
No. 827. ALVAREZ v. PuERTO Rico. C. A. 1st Cir.
Certiorari denied. Melvin S. Louuwn and Leonard Louison
for petitioner. J. B. Fernandez Badillo for respondent.
Reported below: 299 F. 2d 576.
No. 869. ASARO v. PARISI. C. A. 1st Cir. Certiorari
denied. Morris D. Katz for petitioner. James A. Whipple
for respondent. Reported below: 297 F. 2d 859.
No. 871. H. B. IvEs Co. v. COMMISSIONER OF INTERNAL
REVENUE. C. A. 2d Cir. Certiorari denied. Jules
G. Korner III for petitioner. Solicitor General Cox,
Assistant Attorney General Oberdorfer, /. Henry Kutz
and Fred E. Youngman for respondent. Reported below:
297 F. 2d 229.
No. 873. SARELAS v. GEKAS ET AL. Supreme Court of
Illinois. Certiorari denied. Peter S. Sarelas pro se.
John C. Gekas, James P. Economos, Catherine C. Anagnost
and Gerald M. Chapman for respondents.
No. 874. AuausT v. BoARD OF PUBLIC EDUCATION,
SCHOOL DISTRICT OF PHILADELPHIA. Supreme Court of
Pennsylvania. Certiorari denied. William J. Woolston
for petitioner. Edward B. Soken for respondent. Reported
below: 406 Pa. 229, 177 A. 2d 809.
No. 863. HAL UN v. JONES. United States Court of
Appeals for the District of Columbia Circuit. Certiorari
denied. MR. JUSTICE BLACK is of the opinion that certiorari
should be granted, the judgment of the Court of
Appeals reversed and the case remanded to the District
Court for a jury trial. Solomon Alpher for petitioner.
William H. Clarke for respondent. Reported below: 111
U. S. App. D. C. 340, 296 F. 2d 597.
ORDERS. 905
370U.S. May 28, 1962.
No. 866. IN RE CLAWANS. Supreme Court of New
Jersey. Certiorari denied. MR. JusTICE BRENNAN took
no part in the consideration or decision of this application.
Richard L. Merrick and Warren E. Magee for petitioner.
Reported below: See 69 N. J. Super. 373, 174 A. 2d 367.
No. 610, Misc. JOHNSON v. UNITED STATES. C. A.
10th Cir. Certiorari denied. Petitioner pro se. Solicitor
General Cox, Assi,stant Attorney General Miller and
Beatrice Rosenberg for the United States.
No. 782, Misc. PHINNEY v. MURPHY, WARDEN. Appellate
Division of the Supreme Court of New York,
Fourth Judicial Department. Certiorari denied. Petitioner
pro se. Louis J. Lefkowitz, Attorney General of
New York, Paxton Blair, Solicitor General, and Joseph J.
Rose, Assistant Attorney General, for respondent.
No. 802, Misc. BURTON v. FLORIDA. Supreme Court
of Florida. Certiorari denied. Petitioner prose. Richard
W. Ervin, Attorney General of Florida, and David U.
Tumin, Assistant Attorney General, for respondent.
No. 828, Misc. BANKS v. MADIGAN, WARDEN. C. A.
9th Cir. Certiorari denied. Petitioner pro se. Solicitor
General Cox, Assistant Attorney General Marshall and
Harold H. Greene for respondent.
No. 818, Misc. TYLER v. CALIFORNIA. District Court
of Appeal of California, First Appellate District. Certiorari
denied. MR. JUSTICE DouGLAS is of the opinion
that certiorari should be granted. Petitioner pro se.
Stanley Mosk, Attorney General of California, Arlo E.
Smith, Chief Assistant Attorney General, and John S.
Mcinerny and Derald E. Granberg, Deputy Attorneys
General, for respondent.
906 OCTOBER TERM, 1961.
May 28, June 4, 1962. 370U.S.
No. 832, Misc. OVERBY v. NEW YORK. Court of Appeals
of New York. Certiorari denied. Petitioner prose.
Carman F. Ball for respondent.
Rehearing Denied.
No. 22. SCHOLLE v. HARE, SECRETARY OF STATE OF
MICHIGAN, ET AL., 369 U.S. 429;
No. 776. LONG v. ILLINOIS CENTRAL RAILROAD Co.,
369 U.S. 858; and
No. 1044, Misc. HOLLIS v. TEXAS, 369 U.S. 862. Petitions
for rehearing denied.
JUNE 4, 1962. *
Miscellaneous Orders.
No.-. IN RE SHIELDS. Henry R. Shields, Esquire,
of New York, New York, having resigned as a member of
the Bar of this Court, it is ordered that his name be
stricken from the roll of attorneys admitted to practice
in this Court.
No. 8, Original. ARIZONA v. CALIFORNIA ET AL. Argued
January 8-11, 1962. This case is restored to the calendar
for reargument and set for Monday, October 8, 1962. A
total of six hours is allowed for the reargument. THE
CHIEF JusTICE took no part in the consideration or decision
of this case. Mark Wilmer and Charles H. Reed
argued the cause for the complainant. With them on the
briefs were William R. Meagher, Burr Sutter, John E.
Madden, Calvin H. Udall, John Geoffrey Will and Theodore
Kiendl. Fred 0. Wilson and Martin J. Sonosky also
were for the complainant. Stanley Mosk, Attorney General
of California, and Northcutt Ely, Special Assistant
*MR. JusTICE FRANKFURTER took no part in the consideration or
decision of cases in which orders were this day announced.
ORDERS. 907
370 U.S. June 4, 1962.
Attorney General, argued the cause for the State of California
et al., defendants. With them on the briefs were
Charles E. Corker and Gilbert F. Nelson, Assistant Attorneys
General, Burton J. Gindler, John R. Alexander and
Gerald Malkan, Deputy Attorneys General, Howard I.
Friedman, C. Emerson Duncan II, Franci,s E. Jenney,
Stanley C. Lagerlof, Harry W. Horton, R. L. Knox, Jr.,
Earl Redwine, James H. Howard, Charles C. Cooper, Jr.,
H. Kenneth Hutchinson, Frank P. Doherty, Roger Arnebergh,
Jean F. DuPaul and Henry A. Dietz. Solicitor
General Cox argued the cause for the United States, intervener.
With him on the briefs were John F. Davis, David
R. Warner, Walter Kiechel, Jr. and Warren R. Wise.
R. P. Parry argued the cause for the State of Nevada,
intervener. With him on the briefs were Roger D. Foley,
Attorney General, W. T. Mathews and Clifford E. Fix.
Dennis McCarthy, Special Assistant Attorney General,
argued the cause for the State of Utah, defendant. With
him on a statement on behalf of the State was ·Walter L.
Budge, Attorney General. Earl E. Hartley, Attorney
General of New Mexico, and Claude S. Mann, Special
Assistant Attorney General, argued the cause for the State
of New Mexico, defendant. With them on the brief were
Thomas 0. Olson, First Assistant Attorney General, and
Dudley Cornell, Special Assistant Attorney General.
[For earlier orders herein, see 344 U. S. 806, 919; 345 u. s. 914,968; 347 u. s. 985,986; 348 u. s. 947; 350 u. s.
114,812,880,955; 351 u. s. 977; 354 u. s. 918; 357 u. s.
902; 364 u. s. 940; 368 u. s. 893,917, 950.]
No. 809. FAY, WARDEN, ET AL. v. NoIA. Certiorari,
369 U. S. 869, to the United States Court of Appeals for
the Second Circuit. The motion of the respondent for
leave to proceed in forma pauperis is granted. Leon B.
Polsky for respondent. Reported below: 300 F. 2d 345.
908 OCTOBER TERM, 1961.
June 4, 1962. 370 u. s.
No. 479. WONG SuN ET AL. v. UNITED STATES. Certiorari,
368 U.S. 817, to the United States Court of Appeals
for the Ninth Circuit. Argued March 29 and April
2, 1962. This case is restored to the calendar for reargument.
Edward Bennett Willwms (appointed by this
Court, 368 U.S. 973) argued the cause and filed a supplemental
brief for petitioners. Sol A. Abrams also filed a
brief for petitioners. Solicitor General Cox argued the
cause for the United States. With him on the briefs
were Assistant Attorney General Miller, Beatrice Rosenberg,
J. F. Bishop and Julia P. Cooper. Reported below:
288 F. 2d 366.
Certiorari Granted. (See also No. 773, ante, p. 154.)
N 0. 868. BROTHERHOOD OF LOCOMOTIVE ENGINEERS
ET AL. v. LouisVILLE & NASHVILLE RAILROAD Co. C. A.
6th Cir. Certiorari granted. Charles I. Dawson, Harold
C. Heiss, Russell B. Day, Harold N. McLaughlin, Wayland
K. Sullivan and V. C. Shuttleworth for petitioners.
John P. Sandidge, H. G. Breetz, W. L. Grubbs, M. D. Jones
and Joseph L. Lenihan for respondent. Reported below:
297 F. 2d 608.
No. 890, Misc. GIDEON v. CocHRAN, CORRECTIONS DIRECTOR.
Motion for leave to proceed in f.orma pauper-
is and petition for writ of certiorari to the Supreme
Court of Florida granted. Case transferred to the appellate
docket. In addition to other questions presented
by this case, counsel are requested to discuss the following
in their briefs and oral argument: "Should this
Court's holding in Betts v. Brady, 316 U. S. 455, be
reconsidered?" Petitioner pro se. Richard W. Ervin,
Attorney General of Florida, and Bruce R. Jacob, Assistant
Attorney General, for respondent.
ORDERS. 909
370U.S. June 4, 1962.
Certiorari Denied. (See also No. 861, ante, p. 158;
and No. 1092, Misc., ante, p. 157.)
No. 728. UNITED STATES v. EVANS ET AL. C. A. 3d
Cir. Certiorari denied. Solicitor General Cox, Assistant
Attorney General Oberdorf er and Melva M. Graney for
the United States. Robert L. Kirkpatrick and John A.
M cCann for respondents. Reported below: 295 F. 2d 713.
No. 761. MoDE v. ARKANSAS. Supreme Court of
Arkansas. Certiorari denied. Charles J. Lincoln for
petitioner. Frank Holt, Attorney General of Arkansas,
and Thorp Thomas, Assistant Attorney General, for
respondent. Reported below: 231 Ark. 477, 330 S. W.
2d 88; 234 Ark. 46, 350 S. W. 2d 675.
No. 875. SHENANDOAH CoRP. v. JACKSON. United
States Court of Appeals for the District of Columbia
Circuit. Certiorari denied. Nathan L. Silberberg for
petitioner. Barrington D. Parker for respondents. Reported
below: 111 U.S. App. D. C. 410,298 F. 2d 324.
No. 876. GELLER ET AL. v. HOLLAND-AMERICA LINE.
C. A. 2d Cir. Certiorari denied. Robert S. Blanc, Jr.
for petitioners. Eugene Underwood for respondent. Reported
below: 298 F. 2d 618.
No. 879. F. P. BAUGH, lNc., v. LITTLE LAKE LUMBER
Co. ET AL. C. A. 9th Cir. Certiorari denied. Stanley
A. Weigel for petitioner. Solicitor General Cox, Assistant
Attorney General Oberdorf er and Fred E. Youngman
for the United States, respondent. Richard J. Archer
filed a brief for the California Bankers Association, as
amicus curiae, in support of the petition. Reported below:
297 F. 2d 692.
910 OCTOBER TERM, 1961.
June 4, 1962. 370U.S.
No. 877. FELDMAN v. UNITED STATES. C. A. 2d Cir.
Certiorari denied. Allen S. Stim and M enahem Stim
for petitioner. Solicitor General Cox and Assi,stant
Attorney General Loevinger for the United States.
Reported below: 299 F. 2d 914.
No. 880. APPLEBY ET AL. v. COMMISSIONER OF INTERNAL
REVENUE. C. A. 3d Cir. Certiorari denied. Robert
V. Carton for petitioners. Solicitor General Cox, Assistant
Attorney General Oberdorfer, Harry Baum and L. W.
Post for respondent. Reported below: 296 F. 2d 925.
No. 883. CHENU, ADMINISTRATOR, v. BoARD OF TRUSTEES,
POLICE PENSION FUND, ARTICLE No. 1, ET AL. Court
of Appeals of New York. Certiorari denied. Joseph L.
Forscher for petitioner. Adrien E. Laurencelle, Jr. and
Mario Matthew Cuomo for respondents. Reported
below: See 12 App. Div. 2d 422, 212 N. Y. S. 2d 818.
No. 886. FRASCONE v. UNITED STATES, C. A. 2d Cir.
Certiorari denied. Albert J. Krieger for petitioner. Solicitor
General Cox, Assistant Attorney General Miller, Beatrice
Rosenberg and Theodore George Gilinsky for the
United States. Reported below: 299 F. 2d 824.
No. 891. ESTATE OF CARTER ET AL. v. COMMISSIONER
OF INTERNAL REVENUE. C. A. 8th Cir. Certiorari denied.
Lynn M. Ewing, Jr. for petitioners. Solicitor General
Cox, Assistant Attorney General Oberdorfer, Melva
M. Graney and Norman H. Wolfe for respondent. Reported
below: 298 F. 2d 192.
No. 892. WooDs v. ILLINOIS. Supreme Court of Illinois.
Certiorari denied. Howard T. Savage for petitioner.
Reported below: 23 Ill. 2d 471, 179 N. E. 2d 11.
ORDERS. 911
370 u. s. June 4, 1962.
No. 884. R. A. HoLMAN & Co., INC., v. SECURITIES
AND ExcHANGE COMMISSION ET AL. United States Court
of Appeals for the District of Columbia Circuit. Certiorari
denied. Milton V. Freeman, Edgar H. Brenner
and Stanley D. Halperin for petitioner. Solicitor General
Cox, Peter A. Dammann and David Ferber for the
Securities and Exchange Commission, respondent. Reported
below: 112 U.S. App. D. C. 43, 299 F. 2d 127.
No. 888. JOHN V. BoLAND CONSTRUCTION Co. v.
UNITED STATES. Court of Claims. Certiorari denied.
Scott G. Rigby for petitioner. Solicitor General Cox,
Assistant Attorney General Orrick and John G. Laughlin,
Jr. for the United States. Reported below: - Ct. Cl.
No. 894. TENNESSEE PRODUCTS & CHEMICAL CORP. v.
UNITED STATES. C. A. 6th Cir. Certiorari denied. William
Waller for petitioner. Solicitor General Cox, Acting
Assistant Attorney General Jones, Robert N. Anderson
and Kenneth E. Levin for the United States. Reported
below: 297 F. 2d 529.
No. 898. KOHLER Co. v. LoCAL 833, UAW-AFL-CIO
INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT &
AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, ET AL.
United States Court of Appeals for the District of Columbia
Circuit. Certiorari denied. Lyman C. Conger, Edward
J. Hammer and William F. Howe for petitioner.
Solicitor General Cox, Stuart Rothman, Dominick L.
Manoli and Norton J. Come for the National Labor Relations
Board, and Joseph L. Rauh, Jr., John Silard, Harold
A. Cranefield, Louis H. Pollak and David Rabinovitz for
Local 833, respondents. Reported below: 112 U. S. App.
D. C. 107, 300 F. 2d 699.
912 OCTOBER TERM, 1961.
June 4, 1962. 370U.S.
No. 897. SKONTos, ALIAS SKOUNDRIANOS, v. GEKAS.
Supreme Court of Illinois. Certiorari denied. Peter S.
Sarelas for petitioner. John C. Gekas and James P.
Economos for respondent.
No. 899. UNIVERSAL TERMINAL & STEVEDORING CoRP.
v. IsBRANDTSEN Co., INc. Court of Appeals of New York.
Certiorari denied. Patrick E. Gibbons for petitioner.
Lawrence J. Mahoney and Robert J. Giufjra for respondent.
Reported below: 11 N. Y. 2d 690, 180 N. E. 2d 914.
No. 904. DAVISON v. UNITED STATES. C. A. 4th Cir.
Certiorari denied. David R. Shelton for petitioner. Solicitor
General Cox, Acting Assistant Attorney General Jones
and Robert N. Anderson for the United States. Reported
below: 299 F. 2d 611.
No. 905. HARDY v. UNITED STATES. C. A. 4th Cir.
Certiorari denied. David R. Shelton for petitioner.
Solicitor General Cox, Acting Assistant Attorney General
Jones and Robert N. Anderson for the United States. Reported
below: 299 F. 2d 600.
No. 906. FINOCCHAIRO v. KELLY, COMMISSIONER oF
MoTOR VEHICLES. Court of Appeals of New York. Certiorari
denied. George H. Brown for petitioner. Louis
J. Lefkowitz, Attorney General of New York, and Ruth
Kessler Toch, Assistant Solicitor General, for respondent.
Reported below: 11 N. Y. 2d 58, 181 N. E. 2d 427.
No. 969, Misc. EmsoN v. UNITED STATES. C. A. 10th
Cir. Certiorari denied. Petitioner pr.a se. Solicitor General
Cox, Assistant Attorney General Marshall and Harold
H. Greene for the United States. Reported below: 296
F. 2d 736.
ORDERS. 913
370U.S. June 4, 1962.
No. 1060, Misc. SANCHEZ v. UNITED STATES. C. A.
1st Cir. Certiorari denied. Petitioner pro se. Solicitor
General Cox, Assistant Attorney General Miller, Beatrice
Rosenberg and Robert G. Maysack for the United
States.
No. 1100, Misc. JONES v. UNITED STATES. United
States Court of Appeals for the District of Columbia Circuit.
Certiorari denied. James J. Laughlin ·and Albert
J. Ahern, Jr. for petitioner. Solicitor General Cox,
Assistant Attorney General Miller, Beatrice Rosenberg
and Sidney M. Glazer for the United States. Reported
below: 111 U.S. App. D. C. 276,296 F. 2d 398.
No. 1111, Misc. MOORE v. NEw YoRK. Appellate
Division of the Supreme Court of New York, Third Judicial
Department. Certiorari denied. Petitioner pro se.
Louis J. Lefkowitz, Attorney General of New York,
Paxton Blair, Solicitor General, and Winifred C. Stanley,
Assistant Attorney General, for respondent.
No. 1126, Misc. LAWRENSON v. UNITED STATES FIDELITY
& GUARANTY Co. C. A. 4th Cir. Certiorari denied.
Petitioner pro se. George M. Radcliffe for respondent.
Reported below: 298 F. 2d 890.
No. 1263, Misc. CRAWFORD v. BANNAN, WARDEN, ET
AL. Petition for writ of certiorari to the United States
Court of Appeals for the Sixth Circuit and for other
relief denied.
No. 1442, Misc. BuscH v. CALIFORNIA. Application
for stay and petition for writ of certiorari to the Supreme
Court of California denied. Al Matthews for petitioner.
914 OCTOBER TERM, 1961.
June 4, 11, 1962. 370 U.S.
Rehearing Denied.
No. 715. FLECK ET AL. v. CLEVELAND BAR AssocIATION,
369 U. S. 861;
No. 748. SIMPSON, DOING BUSINESS AS Mm-SEVEN
TRANSPORTATION Co., v. UNITED STATES, 369 U.S. 526; and
No. 818. UNITED STATES LINES Co. ET AL. v. VAN
CARPALS, 369 U. S. 865. Petitions for rehearing denied.
JUNE 11, 1962.*
Probable Jurisdiction Noted.
No. 923. BALTIMORE & OHIO RAILROAD Co. ET AL. v.
BOSTON & MAINE RAILROAD ET AL.;
No. 924. MARYLAND PORT AUTHORITY ET AL. v. Bos-
TON & MAINE RAILROAD ET AL.; and
No. 925. INTERSTATE COMMERCE COMMISSION v. Bos-
TON & MAINE RAILROAD ET AL. Appeals from the United
States District Court for the District of Massachusetts.
Probable jurisdiction noted. MR. JusTICE WHITE took
no part in the consideration or decision of these cases.
Jervis Langdon, Jr., Richard R. Bongartz, Robert B.
Claytor, John Henry Lewin and Willi.am C. Purnell for
appellants in No. 923. William L. Marbury, Chas. R.
Seal, J. Cookman Boyd, Jr., Donald Macleay, John Martin
Jones, Jr., Morris Duane, Warren Price, Jr., David
Berger and Robert M. Beckman for appellants in No. 924.
Robert W. Ginnane and /. K. Hay for appellant in No.
925. John H. Colgren, Robert G. Bleakney, Jr., Thomas
P. Hackett, Henry E. Foley, John F. Reilly, Raymond W.
Troy, Louis J. Lefkowitz, Dunton F. Tynan, Walter J.
Myskowski, Leo A. Larkin, Charles W. Merritt, Sidney
Goldstein, F. A. Mulhern, Arthur L. Winn, Jr., Samuel H.
Moerman and James M. Henderson for appellees. Reported
below: 202 F. Supp. 830.
*MR. JusTICE FRANKFURTER took no part in the consideration or
decision of cases in which orders were this day announced.
ORDERS. 915
370 U.S. June 11, 1962.
Certiorari Granted.
No. 858. McLEOD, REGIONAL DIRECTOR, NATIONAL
LABOR RELATIONS BoARD, v. EMPRESA HoNouRENA DE
VAPORES, S. A. C. A. 2d Cir. Certiorari granted. Solicitor
General Cox, Stuart Rothman, Dominick L. Manoli
and Norton J. Come for petitioner. Ori..'!on S. Marden
and Chester Bordeau for respondent. Reported below:
300 F. 2d 222.
No. 862. NATIONAL MARITIME UNION OF AMERICA,
AFL-CIO, v. EMPRESA HONDURENA DE VAPORES, S. A.
C. A. 2d Cir. Certiorari granted. Herman E. Cooper
and H. Howard Ostrin for petitioner. Orison S. Marden
and Chester Bordeau for respondent. Reported below:
300 F. 2d 222.
No. 942. McCULLOCH, CHAIRMAN, NATIONAL LABOR
RELATIONS BOARD, ET AL. v. SocrnDAD NAcIONAL DE MARINERos
DE HONDURAS ET AL. United States Court of
Appeals for the District of Columbia Circuit. Certiorari
granted. Solicitor General Cox, Stuart Rothman, Dominick
L. Manoli and Norton J. Come for petitioners.
Charles S. Rhyne, Brice W. Rhyne and Thomas P. Brown
II I for respondents.
No. 922. UNITED STATES v. BUFFALO SAVINGS BANK.
Court of Appeals of New York. Certiorari granted.
Solicitor General Cox, Assi..'!tant Attorney General Oberdorfer,
Joseph Kovner and George F. Lynch for the
United States. John Horace Little for respondent. Reported
below: 11 N. Y. 2d 31, 181 N. E. 2d 413.
Certiorari Denied.
No. 908. ANDERSON v. KNOX. C. A. 9th Cir. Certiorari
denied. Ivan E. Lawrence for petitioner. J. Russell
Gades for respondent. Reported below: 297 F. 2d
702.
916 OCTOBER TERM, 1961.
June 11, 1962. 370 U.S.
No. 845. OuACHITA PARISH SCHOOL BOARD v. STATE
OF LOUISIANA, THROUGH THE DEPARTMENT OF HIGHWAYS.
Supreme Court of Louisiana. Certiorari denied. George
M. Snellings, Jr. for petitioner. Norman L. Sisson for
respondent. Reported below: 242 La. 682, 138 So. 2d
109.
No. 872. ST. MARY PARISH ScHOOL BoARD v. TERREBONNE
PARISH SCHOOL BoARD. Supreme Court of Louisiana.
Certiorari denied. Jack C. Caldwell for petitioner.
George Arceneaux, Jr. for respondent. Reported
below: 242 La. 667, 138 So. 2d 104.
No. 890. H1LL ET AL., DOING BUSINESS AS ALASKA
MARKET, v. MoE ET AL. Supreme Court of Alaska. Certiorari
denied. Frank C. Mueller for petitioners. Reported
below: - Alaska-, 367 P. 2d 739.
No. 901. VON DER HEYDT ET AL. v. KENNEDY, ATTORNEY
GENERAL, ET AL. United States Court of Appeals
for the District of Columbia Circuit. Certiorari denied.
Isadore G. Alk, Irving Moskovitz and Peter N. Schiller
for petitioners. Solicitor General Cox, Assistant Attorney
General Orrick, Alan S. Rosenthal and Bruno A.
Ristau for respondents. Reported below: 112 U. S. App.
D. C. 79, 299 F. 2d 459.
No. 903. Riss & COMPANY, INc., v. Assoc1ATION OF
WESTERN RAILWAYS ET AL. United States Court of
Appeals for the District of Columbia Circuit. Certiorari
denied. A. Alvis Layne and Lester M. Bridgeman for
petitioner. Stuart S. Ball, Hugh B. Cox and James H.
McGlothlin for respondents. Reported below: 112 U.S.
App. D. C. 49, 299 F. 2d 133.
ORDERS. 917
370 u. s. June 11, 1962.
No. 275. WINCKLER & SMITH CITRUS PRODUCTS Co.
ET AL. v. SuNKIST GROWERS, INC., ET AL. C. A. 9th Cir.
Certiorari denied. William C. Dixon and Holmes Baldridge
for petitioners. Ross C. Fisher and Herman F.
Selvin for respondents. Reported below: 284 F. 2d 1.
No. 865. SIMMONS v. KANSAS CITY SouTHERN RAILWAY
Co. Court of Civil Appeals of Texas, Ninth Supreme
Judicial District. Certiorari denied. Franklin
Jones and Scott Baldwin for petitioner. Howell Cobb
for respondent. Reported below: 350 S. W. 2d 884.
No. 870. SCHAEFER v. UNITED STATES. C. A. 7th Cir.
Certiorari denied. Francis S. Cl.amitz for petitioner.
Solicitor General Cox, Assistant Attorney General Miller,
Beatrice Rosenberg and Julia P. Cooper for the United
States. Reported below: 299 F. 2d 625.
No. 881. ExPOSITI::>N PRESS, INc., ET AL. v. FEDERAL
TRADE COMMISSION. C. A. 2d Cir. Certiorari denied.
Jules R. Teitler for petitioners. Solicitor General Cox,
Assistant Attorney General Loevinger, Lionel Kestenbaurn,
James Mel. Henderson and Jno. W. Carter, Jr. for
respondent. Reported below: 295 F. 2d 869.
No. 887. DIDONATO v. UNITED STATES. C. A. 2d Cir.
Certiorari denied. James J. Hanrahan for petitioner.
Solicitor General Cox, Assistant Attorney General Miller,
Beatrice Rosenberg and Richard W. Schmude for the
United States. Reported below: 301 F. 2d 383.
No. 914. BAUMGARTEN v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. Daniel H. Greenberg for petitioner.
Solicitor General Cox, Assistant Attorney General
Miller, Beatrice Rosenberg and Robert G. Maysack
for the United States. Reported below: 300 F. 2d 807.
918 OCTOBER TERM, 1961.
June 11, 1962. 370 U.S.
No. 902. HECLA Mrnrno Co. v. UNITED STATES. C. A.
9th Cir. Certiorari denied. Valentine Brookes and Paul
E. Anderson for petitioner. Solicitor General Cox, Assistant
Attorney General Oberdorfer, Lee A. Jackson and
Harry Marselli for the United States. Reported below:
302 F. 2d 204.
No. 912. PAWNEE INDIAN TRIBE OF OKLAHOMA v.
UNITED STATES. Court of Claims. Certiorari denied.
John M. Wheeler and John Wheeler, Jr. for petitioner.
Solicitor General Cox, Roger P. Marquis, Ralph A. Barney
and Hugh Nugent for the United States. Reported
below: - Ct. Cl.-, 301 F. 2d 667.
No. 915. FLORES v. TEXAS. Court of Criminal Appeals
of Texas. Certiorari denied. Hume Cofer and
John D. Cofer for petitioner. Reported below: - Tex.
Cr. R. - , 353 S. W. 2d 852.
No. 916. IN RE MAGNUS ET AL. C. A. 2d Cir. Certiorari
denied. Boris Kostelanetz for petitioners. Solicitor
General Cox, Assistant Attorney General Oberdorfer
and Meyer Rothwacks for the United States. Reported
below: 299 F. 2d 335.
No. 919. GoNDECK v. PAN AMERICAN WoRLD ArnwAYs,
INC., ET AL. C. A. 5th Cir. Certiorari denied. Arthur
Roth and Norman Miller for petitioner. Leo M. Alpert
for respondents. Reported below: 299 F. 2d 74.
No. 929. ELLIS RESEARCH LABORATORIES, INc., ET AL.
v. UNITED STATES. C. A. 7th Cir. Certiorari denied.
Charles B. Cannon for petitioners. Solicitor General Cox,
Assistant Attorney General Miller, Beatrice Rosenberg
and William W. Goodrich for the United States.
ORDERS. 919
370 U.S. June 11, 1962.
No. 909. PHILAMON LABORATORIES, INc., v. NATIONAL
LABOR RELATIONS BoARD. C. A. 2d Cir. Certiorari denied.
Sanford H. Markham for petitioner. Solicitor
General Cox, Stuart Rothman, Dominick L. M anoli and
Norton J. Come for respondent. Reported below: 298
F. 2d 176.
No. 911. SOLER v. BoARD OF PUBLIC EDUCATION,
SCHOOL DISTRICT OF PHILADELPHIA. Supreme Court of
Pennsylvania. Certiorari denied. Osmond K. Fraenkel
and A. Harry Levitan for petitioner. Edward B. Soken
for respondent. Reported below: 406 Pa. 168, 176 A. 2d
653.
No. 921. UNITED STATES PIPE & FouNDRY Co. v. NATIONAL
LABOR RELATIONS BOARD. C. A. 5th Cir. Certiorari
denied. Douglas Arant, John J. Coleman, Jr. and
E. L. All for petitioner. Solicitor General Cox, Stuart
Rothman, Dominick L. M anoli and Norton J. Come for
respondent. Reported below: 298 F. 2d 873.
No. 927. BECK v. UNITED STATES. C. A. 9th Cir.
Certiorari denied. MR. JusTICE WHITE took no part in
the consideration or decision of this application. Charles
S. Burdell for petitioner. Solicitor General Cox, Assistant
Attorney General Oberdorjer, Joseph M . Howard and
Burt J. Abrams for the United States. Reported below:
298 F. 2d 622.
No. 949. LITTERAL ET AL. v. INDEMNITY INSURANCE
COMPANY OF NoRTH AMERICA. C. A. 7th Cir. Certiorari
denied. C. E. Tate and John Alan Appleman for petitioners.
Horace E. Gunn for respondent. Reported below:
300 F. 2d 340.
920 OCTOBER TERM, 1961.
June 11, 1962. 370 u. s.
No. 952. FREEMAN, SECRETARY OF AGRICULTURE, ET AL.
v. ARMOUR & Co. United States Court of Appeals for
the District of Columbia Circuit. Certiorari denied. THE
CHIEF JusTICE and MR. JusTICE BLACK are of the opinion
that certiorari should be granted. Solicitor General Cox,
Assistant Attorney General Orrick, John G. Laughlin, Jr.
and Sherman L. Cohn for petitioners. Herbert Brownell,
Thomas F. Daly, Harry A. Inman and George E. Leonard
for respondent.
Rehearing Denied.
No. 373, October Term, 1958. CAMERON IRON WoRKS,
INc., v. LODGE No. 12, DISTRICT No. 37, INTERNATIONAL
ASSOCIATION OF MACHINISTS, 358 u. s. 880. Motion for
leave to file petition for rehearing denied. MR. JusTICE
WHITE took no part in the consideration or decision of
this application.
No. 214. HoHENSEE v. NEws SYNDICATE, INc., 369 u. s. 659;
No. 841. HERMAN SCHWABE, INC., v. UNITED SHOE
MACHINERY CORP., 369 U.S. 865;
No. 588, Misc. KoSTAL ET AL. v. STONER, JuDGE, ET AL.,
369 U. S. 868;
No. 870, Misc. GENSBURG v. CALIFORNIA STATE LEGISLATURE
ET AL., 369 u. s. 875; and
No. 1192, Misc. DUKES v. SAIN, SHERIFF, 369 U. S.
868. Petitions for rehearing denied.
No. 920, Misc. WARREN v. LARSON, STATE TREASURER,
369 U. S. 427. Petition for rehearing denied. MR. Jus-
TICE WHITE took no part in the consideration or decision
of this application.
ORDERS.
370U.S. June 18, 1962.
JuNE 18, 1962.*
Mi.sceUaneous Orders.
921
No. 1049, Misc. PARMER v. ILLINOIS. Motion for
leave to file petition for writ of habeas corpus denied.
Petitioner pro se. William G. Clark, Attorney General
of Illinois, for respondent.
No. 1138, Misc. FRENCH v. Cox, WARDEN, ET AL.;
No. 1246, Misc. NEAL v. CALIFORNIA;
No. 1279, Misc. HICKS v. MrcHIGAN ET AL.; and
No. 1292, Misc. DAUGHERTY v. TINSLEY, WARDEN.
Motions for leave to file petitions for writs of habeas
corpus denied.
Probable Jurisdiction Noted.
No. 959. 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. Probable jurisdiction
noted. Motion to advance denied. MR. JUSTICE HARLAN
would note probable jurisdiction and deny the
motion to advance, with leave to the appellants to apply
to this Court for a stay of the injunction order of the
District Court pending determination of this appeal.
Eugene Cook, Attorney General of Georgia, B. D.
Jl-furphy and E. Freeman Leverett, Deputy Assistant
Attorneys General, and Lamar W. Sizemore for appellants.
Herman Heyman, Morris B. Abram and Robert
E. Hicks for appellee. Reported below: 203 F. Supp. 158.
*MR. JusTrcE FRANKFURTER took no part in the consideration or
decision of cases in which orders were this day announced.
922 OCTOBER TERM, 1961.
June 18, 1962. 370 U.S.
Certiorari Granted. (See No. 7'82, ante, p. 292, and No.
841, Misc., ante, p. ~93.)
Certiorari Denied. (See also No. 1141, Misc., ante,
p. 290, and No. 1269, Misc., ante, p. 291.)
No. 913. ANCHOR LINE, urn., ET AL. v. FEDERAL MARITIME
COMMISSION ET AL. United States Court of Appeals
for the District of Columbia Circuit. Certiorari denied.
Ronald A. Capone, Cletus Keating and Elmer C. Maddy
for petitioners. Solicitor General Cox, Assistant Attorney
General Loevinger, Irwin A. Seibel, Robert E. Mitchell
and Edward Schmeltzer for respondents. Reported
below: 112 U.S. App. D. C. 40,299 F. 2d 124.
No. 928. INTERNATIONAL LONGSHOREMEN's AssoCIATION
ET AL. v. GEORGIA PoRTS AUTHORITY. Supreme
Court of Georgia. Certiorari denied. Sewall Myer for
petitioners. Eugene Cook, Attorney General of Georgia,
and Anton F. Solms, Jr. for respondent. Reported below:
217 Ga. 712, 124 S. E. 2d 733.
No. 935. BALLENGER PAVING Co., INc., v. GOLDBERG,
SECRETARY OF LABOR. C. A. 5th Cir. Certiorari denied.
John Izard, Jr. for petitioner. Solicitor General Cox,
Charles Donahue, Jacob/. Karro and Isabelle R. Cappello
for respondent. Reported below: 299 F. 2d 297.
No. 948. YouNG ET AL. v. MoTION PICTURE AssoCIATION
OF AMERICA ET AL. United States Court of Appeals
for the District of Columbia Circuit. Certiorari denied.
David I. Shapiro, Ben Margolis, A. L. Wirin and Fred
Okrand for petitioners. William P. Rogers for respondents.
Reported below: 112 U. S. App. D. C. 35, 299 F.
2d 119.
ORDERS. 923
370U.S. June 18, 1962.
No. 926. GuLF PowER Co. v. SHAHID ET AL. C. A. 5th
Cir. Certiorari denied. E. Dixie Beggs for petitioner.
Reported below: 291 F. 2d 422; 298 F. 2d 793.
No. 933. WALLACE v. UNITED STATES. C. A. 4th Cir.
Certiorari denied. John J. Wilson and Philip S. Peyser
for petitioner. Solicitor General Cox, Assistant Attorney
General Oberdorjer, Joseph M. Howard and John M.
Brant for the United States. Reported below: 300 F.
2d 525.
No. 934. MILLER v. COMMISSIONER OF INTERNAL
REVENUE. C. A. 2d Cir. Certiorari denied. Mark H.
Johnson for petitioner. Solicitor General Cox and Assistant
Attorney General Oberdorjer for respondent. Reported
below: 299 F. 2d 706.
No. 939. KNIGHT ET AL. v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Joseph H. Davis and J. Sewell
Elliott for petitioners. Solicitor General Cox, Assistant
Attorney General Miller, Beatrice Rosenberg and Kirby
W. Patterson for the United States. Reported below:
297 F. 2d 675.
No. 947. FULLER BRUSH Co. v. FULLER PRODUCTS Co.
C. A. 7th Cir. Certiorari denied. W. Mahlon Dickerson
and Harold Johnson for petitioner. Theodore W. Miller
and Fleetwood M. McCoy for respondent. Reported
below: 299 F. 2d 772.
No. 951. NASSER -v. UNITED STATES. C. A. 7th Cir.
Certiorari denied. N. George Nasser for petitioner.
Solicitor General Cox, Assistant Attorney General Miller,
Beatrice Rosenberg and Theodore George Giiinsky for the
United States. Reported below: 301 F. 2d 243.
924 OCTOBER TERM, 1961.
June 18, 1962. 370 U.S.
N 0. 954. ALAMANCE INDUSTRIES, INC., ET AL. v.
TRIUMPH HosIERY MILLS, INc., ET AL. C. A. 4th Cir.
Certiorari denied. Jay H. Topkis for petitioners. Thornton
H. Brooks, John W. Malley and Carl G. Love for
respondents. Reported below: 299 F. 2d 793.
No. 973. NATIONAL BISCUIT Co. v. NEW YoRK. Court
of Appeals of New York. Certiorari denied. George R.
Fearon for petitioner. Louis J. Lefkowitz, Attorney General
of New York, Paxton Blair, Solicitor General, and
Julius L. Sackman for respondent. Reported below: 11
N. Y. 2d 743, 181 N. E. 2d 457.
No. 1010. PACIFIC MARITIME AssocIATION v. SEAFARERS
INTERNATIONAL UNION OF NORTH AMERICA,
PACIFIC DISTRICT, ET AL.; and
No. 1017. PACIFIC CoAsT MARINE FIREMEN, OILERS,
W ATERTENDERS and WIPERS AssocIATION ET AL. v. PACIFIC
MARITIME Assoc1ATION ET AL. C. A. 9th Cir. Certiorari
denied. J. Paul St. Sure, Richard Ernst, Warner W.
Gardner and Lawrence J. Lat to for Pacific Maritime Association.
Duane B. Beeson for Pacific Coast Marine Firemen,
Oilers, Watertenders and Wipers Association. Solicitor
General Cox, Acting Assistant Attorney General
Guilfoyle and Alan S. Rosenthal for the United States
in opposition. Reported below: 304 F. 2d 437.
No. 938. MORGANO v. PILLIOD, DISTRICT DIRECTOR,
IMMIGRATION AND NATURALIZATION SERVICE. C. A. 7th
Cir. Certiorari denied. MR. JuSTICE WHITE took no
part in the consideration or decision of this petition.
Anna R. Lavin and Richard E. Gorman for petitioner.
Solicitor General Cox, Assistant Attorney General Miller,
Beatrice Rosenberg and Jerome M. Feit for respondent.
Reported below: 299 F. 2d 217.
ORDERS.
370 u. s. June 18, 1962.
No. 716. ABBRESCIA v. UNITED STATES;
No. 895. DORAN v. UNITED STATES; and
925
No. 956. GRIECO v. UNITED STATES. C. A. 7th Cir.
Certiorari denied. MR. JusTICE DouGLAS is of the opinion
that certiorari should be granted. Julius Lucius
Echeles for petitioners in Nos. 716 and 895. Frank W.
Oliver for petitioner in No. 956. Solicitor General Cox,
Assistant Attorney General Miller, Beatrice Rosenberg
and Sidney M. Glazer for the United States. Reported
below: 299 F. 2d 511.
No. 885. WILLIAMS v. HoT SHOPPES, INC. United
States Court of Appeals for the District of Columbia Circuit.
Certiorari denied. MR. JusTICE DouGLAS is of the
opinion that certiorari should be granted. Petitioner
pro se. John J. Carmody, Charles J. Steele and John J.
Carmody, Jr. for respondent. Reported below: See 110
U. S. App. D. C. 358, 293 F. 2d 835.
No. 910. WILBURN BOAT Co. ET AL. v. FmEMAN's
FuND INSURANCE Co. C. A. 5th Cir. Certiorari denied.
MR. JuSTICE BLACK is of the opinion that certiorari
should be granted. Hobert Price and T. G. Schirmeyer
for petitioners. Edward B. Hayes and Joe A. Keith for
respondent. Reported below: 300 F. 2d 631.
No. 39, Misc. BAILEY v. SACKS, WARDEN, ET AL.
Supreme Court of Ohio. Certiorari denied. Petitioner
pro se. Mark McElroy, Attorney General of Ohio,
and Aubrey A. Wendt, Assistant Attorney General, for
respondents.
No. 223, Misc. SMITH v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Petitioner pro se. Solicitor
General Cox, Assistant Attorney General Miller, Beatrice
Rosenberg and Kirby W . Patterson for the United States.
926 OCTOBER TERM, 1961.
June 18, 1962. 370U.S.
No. 267, Misc. FosTER v. BOLES, WARDEN. Supreme
Court of Appeals of West Virginia. Certiorari denied.
Petitioner pro se. C. Donald Robertson, Attorney General
of West Virginia, George H. Mitchell and Simon M.
Bailey, Assistant Attorneys General, for respondent.
No. 294, Misc. IN RE SMITH. C. A. 9th Cir. Certiorari
denied. Petitioner pro se. Solicitor General Cox,
Assistant Attorney General Miller, Beatrice Rosenberg
and Kirby W. Patterson for the United States.
No. 568, Misc. GAMBLE v. SACKS, WARDEN. C. A.
6th Cir. Certiorari denied. Petitioner pro se. Mark
McElroy, Attorney General of Ohio, and Aubrey A.
Wendt, Assistant Attorney General, for respondent.
No. 595, Misc. SMITH v. SETTLE, WARDEN, ET AL.
C. A. 9th Cir. Certiorari denied. Petitioner pro se.
Solicitor General Cox, Assistant Attorney General
Miller, Beatrice Rosenberg and Kirby W. Patterson
for respondents.
No. 760, Misc. LYONS ET AL. v. OHIO. Supreme Court
of Ohio. Certiorari denied. Petitioners pro se. Robert
L. Marrs for respondent.
No. 792, Misc. PELIO v. NEw YoRK. Court of Appeals
of New York. Certiorari denied. Petitioner pro se.
Frank D. O'Connor and Benj. J. Jacobson for respondent.
No. 1109, Misc. BOLES v. HEARD, CORRECTIONS DIRECTOR.
Court of Criminal Appeals of Texas. Certiorari
denied. Petitioner pro se. Will"Wilson, Attorney General
of Texas, and Sam R. Wilson, Linward Shivers
and Charles R. Lind, Assistant Attorneys General, for
respondent.
ORDERS. 927
370 u. s. June 18, 1962.
No. 895, Misc. BROUGHTON v. NEw YoRK. Court of
Appeals of New York. Certiorari denied. Petitioner
pro se. Frank S. Hogan and Harold Roland Shapiro for
respondent.
No. 903, Misc. SLAUGHTER v. ILLINOIS. Supreme
Court of Illinois. Certiorari denied. Petitioner pro se.
William G. Clark, Attorney General of Illinois, for
respondent.
No. 974, Misc. SMITH v. SETTLE, WARDEN. C. A. 8th
Cir. Certiorari denied . . Petitioner prose. Solicitor General
Cox, Assistant Attorney General Marshall, Harold
H. Greene and David Rubin for respondent.
No. 1020, Misc. PUGH v. VIRGINIA. Supreme Court
of Appeals of Virginia. Certiorari denied. Petitioner
prose. Reno S. Harp III, Assistant Attorney General of
Virginia, for respondent.
No. 1074, Misc. STONE v. UNITED STATES. C. A. 4th
Cir. Certiorari denied. Charles L. Abernethy, Jr. for
petitioner. Solicitor General Cox, Ass-istant Attorney
General Miller, Beatrice Rosenberg and J. F. B-ishop for
the United States. Reported below: 298 F. 2d 441.
No. 1112, Misc. BANTZ v. KLINGER, SuPERINTENDENT,
CALIFORNIA MEN'S CoLONY, ET AL. C. A. 9th Cir. Certiorari
denied.
No. 1129, Misc. BERRY v. STATE BoARD OF PAROLE
OF COLORADO. Supreme Court of Colorado. Certiorari
denied.
No. 1130, Misc. HUNTER v. MYERS, WARDEN. C. A.
3d Cir. Certiorari denied.
928 OCTOBER TERM, 1961.
June 18, 1962. 370 u. s.
No. 1128, Misc. PATE v. UNITED STATES. C. A. 8th
Cir. Certiorari denied. Petitioner pro se. Solicitor
General Cox, Assistant Attorney General Miller and Beatrice
Rosenberg for the United States. Reported below:
297 F. 2d 166.
No. 1133, Misc. OWINGS v. JAMIESON, SHERIFF, ET
AL. Supreme Court of New Jersey. Certiorari denied.
Rudolph L. Zalowitz for petitioner.
No. 1134, Misc. LINKLETTER v. WALKER, WARDEN,
ET AL. Supreme Court of Louisiana. Certiorari denied.
No. 1135, Misc. KELLEY v. ILLINOIS. Supreme Court
of Illinois. Certiorari denied. Robert Wood Tullis for
petitioner. Reported below: 23 Ill. 2d 193, 177 N. E.
2d 830.
No. 1136, Misc. VALENTIN v. MURPHY, WARDEN.
C. A. 2d Cir. Certiorari denied.
No. 1137, Misc. JENKINS v. UNITED STATES. C. A.
5th Cir. Certiorari denied. Petitioner prose. Solicitor
General Cox, Assistant Attorney General Miller, Beatrice
Rosenberg and Julia P. Cooper for the United States.
Reported below: 293 F. 2d 96.
No. 1145, Misc. WHITTINGTON v. UNITED STATES.
United States Court of Appeals for the District of Columbia
Circuit. Certiorari denied. Petitioner prose. Solicitor
General Cox, Assistant Attorney General Miller and
Beatrice Rosenberg for the United States.
No. 1417, Misc. JOHNSON ET AL. v. NEW JERSEY.
Supreme Court of New Jersey. Certiorari denied. M.
Gene Haeberle, Stanford Shmukler and Curtis R. Reitz
for petitioners.
ORDERS. 929
370U.S. June 18, 25, 1962.
No. 1132, Misc. TRUEBLOOD v. TINSLEY, WARDEN.
Supreme Court of Colorado. Certiorari denied. Samuel
D. Menin for petitioner. J. F. Brauer, Assistant Attorney
General of Colorado, for respondent. Reported
below: 148 Colo.-, 366 P. 2d 655.
No. 1309, Misc. CUMMINGS v. BENNETT, WARDEN.
C. A. 8th Cir. Certiorari denied.
No. 1120, Misc. SELF v. WASHINGTON. Supreme
Court of Washington. Certiorari denied. MR. JUSTICE
DouGLAS is of the opinion that certiorari should be
granted. John D. Blankenship for petitioner. Charles
0. Carroll and Joel A. C. Rindal for respondent. Reported
below: 59 Wash. 2d 62, 366 P. 2d 193.
No. 1172, Misc. GARNER v. CALIFORNIA. Supreme
Court of California. Certiorari denied. MR. JUSTICE
DouGLAS is of the opinion that certiorari should be
granted. Gregory S. Stout for petitioner. Stanley Mask,
Attorney General of California, William E. James, Assistant
Attorney General, and Jack E. Goertzen, Deputy
Attorney General, for respondent. Reported below: 57
Cal. 2d 135, 367 P. 2d 680.
JUNE 25, 1962.*
Miscellaneous Orders.
No. 13, Original. TEXAS v. NEW JERSEY ET AL. In the
light of the concessions that no State will proceed with
any action, other than- discovery proceedings, the motion
for temporary injunctions is denied.
*MR. JusTICE FRANKFURTER took no part in the consideration or
decision of cases in which orders were this day announced.
930 OCTOBER TERM, 1961.
June 25, 1962. 370 u. s.
No. 8, Original. ARIZONA v. CALIFORNIA ET AL. The
petition of the Special Master for the payment of an additional
fee is granted and the parties are ordered to make
additional payments totaling $50,000 to Simon H. Rifkind,
Esquire, Special Master, on account of the fee to be
awarded by this Court as compensation for his services
as Special Master. Such payments are to be made in the
following proportions: Arizona, 28%; Califo~nia, 28%;
United States, 28%; Nevada, 12%; New Mexico, 2%;
and Utah, 2%. This order is subject to such further
award, allowance or division of costs or fees as this Court
may deem proper for his past or future services. THE
CHIEF JusTICE took no part in the consideration or decision
of this petition. [For earlier orders herein, see 344 u. s. 806,919; 345 u. s. 914,968; 347 u. s. 985,986; 348
U. S. 947; 350 U. S. 114, 812, 880,955; 351 U.S. 977; 354
U.S. 918; 357 U.S. 902; 364 U.S. 940; 368 U.S. 893,917,
950; ante, p. 906.]
No. 476. DouGLAS ET AL. v. CALIFORNIA. Certiorari,
368 U. S. 815, to the Supreme Court of California. Argued
April 17, 1962. This case is restored to the calendar for
reargument. Burton Marks and Marvin M. Mitchelson
argued the cause and filed a brief for petitioners. Jack
Goertzen, Deputy Attorney General of California, and
William E. James, Assistant Attorney General, argued
the cause for respondent. With them on the brief was
Stanley M osk, Attorney General. Reported below: See
187 Cal. App. 2d 802, 10 Cal. Rptr. 188.
No. 771. PEARLMAN, TRUSTEE IN BANKRUPTCY, v.
RELIANCE INSURANCE Co. Certiorari, 369 U. S. 847, to
the United States Court of Appeals for the Second Circuit.
The motion of John G. Street, Jr., for leave to file
brief, as amicus curiae, is granted. Reported below: 298
F. 2d 655.
ORDERS. 931
370 u. s. June 25, 1962.
No. 477. YELLIN v. UNITED STATES. Certiorari, 368
U. S. 816, to the United States Court of Appeals for the
Seventh Circuit. Argued April 18-19, 1962. This case
is restored to the calendar for reargument. Victor Rabinowitz
argued the cause for petitioner. With him on
the briefs was Leonard B. Boudin. Bruce J. Terris argued
the cause for the United States. With him on the briefs
were Solicitor General Cox, Assistant Attorney General
Yeagley, George B. Searls, Kevin T. Maroney and Lee B.
Anderson. Reported below: 287 F. 2d 292.
No. 799. UNITED STATES v. PHILADELPHIA NATIONAL
BANK ET AL. Appeal from the United States District
Court for the Eastern District of Pennsylvania (probable
jurisdiction noted, 369 U. S. 883); and
No. 1037. HoNEYWOOD ET AL. v. RocKEFELLER, Gov-
ERNOR OF NEW YoRK, ET AL. Appeal from the United
States District Court for the Eastern District of New
York. The motions to advance are denied.
No. 1018. CONNECTICUT COMMITTEE AGAINST PAY
TV ET AL. v. FEDERAL COMMUNICATIONS COMMISSION.
On petition for writ of certiorari to the United States
Court of Appeals for the District of Columbia Circuit.
The motion of RKO General Phonevision Company to
be named a party respondent is granted.
No. 928, Misc. HAYES v. MARYLAND. 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 and the case is transferred
to the United States District Court for the District of
Maryland. Chaapel v. Cochran, 369 U. S. 869. Petitioner
pro se. Thomas B. Finan, Attorney General of
Maryland, and Robert F. Sweeney, Assistant Attorney
General, for respondent.
932 OCTOBER TERM, 1961.
June 25, 1962. 370U. S.
No. 1011. GIDEON v. COCHRAN, CORRECTIONS DIRECTOR.
Certiorari, ante, p. 908, to the Supreme Court of
Florida. The motion for the appointment of counsel is
granted and it is ordered that Abe Fortas, Esquire, of
Washington, D. C., a member of the Bar of this Court,
be, and he is hereby, appointed to serve as counsel for
petitioner in this case.
No. 1157, Misc. KANE v. LAVALLEE, WARDEN;
No. 1206, Misc. WILBORN v. CALIFORNIA;
No. 1287, Misc. VAN PELT v. CALIFORNIA ET AL.;
No. 1334, Misc. WHITTINGTON v. OVERHOLSER, Hos-
PITAL SUPERINTENDENT;
No.1343, Misc. HARTFORDV. WicK,HosPITALDIRECTOR;
No. 1408, Misc. THOMAS v. HERITAGE, WARDEN;
No. 1430, Misc. Ex PARTE SCHLETTE;
No. 1448, Misc. HAMMOND v. LANGLOIS, WARDEN, ET
AL.; and
No.1458,Misc. FARRO v. KENTON, WARDEN, ET AL.
Motions for leave to file petitions for writs of habeas
corpus denied.
No. 1183, Misc. SNow v. PATE, WARDEN;
No. 1184, Misc. KING v. McNEILL, HosPITAL DIRECTOR;
No. 1341, Misc. BLACK v. UNITED STATES;
No. 1432, Misc. LAWRENSON v. ANDERSON, JAIL Su-
PERINTENDENT; and
No. 1438, Misc. WooTE~ v. BoMAR, WARDEN. Motions
for leave to file petitions for writs of habeas corpus
denied. Treating the papers submitted as petitions for
writs of certiorari, certiorari is denied.
No.1140, Misc. RYAN v. BucHKOE, WARDEN; and
No. 1429, Misc. PIERRE v. CALIFORNIA. Motions for
leave to file petitions for habeas corpus and for other relief
denied.
ORDERS. 933
370 U.S. June 25, 1962.
No. 997, Misc. KoACHES v. CouRT OF CoMMON PLEAS
OF ALLEGHENY COUNTY, PENNSYLVANIA;
No. 1283, Misc. WATTS v. CASTLE, CIRCUIT JUDGE;
No. 1296, Misc. WATSON v. HooPER, JunoE;
No. 1376, Misc. WEBB v. COMPTON, CHIEF JUSTICE OF
THE SuPREME CouRT OF NEW MExrco; and
No. 1444, Misc. BARKER v. SuPREME CouRT OF OHIO.
Motions for leave to file petitions for writs of mandamus
denied.
Probable Jurisdiction Noted.
No. 937. NEw JERSEY ET AL. v. NEw YoRK, SusQUEHANNA
& WESTERN RAILROAD Co. Appeal from the
United States District Court for the District of New
Jersey. Probable jurisdiction noted. Arthur J. Sills,
Attorney General of New Jersey, and William Gural,
Deputy Attorney General, for appellants. Vincent P.
Biunno and Charles H. Hoens, Jr. for appellee. Reported
below: 200 F. Supp. 860.
No. 969. BANTAM BooKs, lNc., ET AL. v. SULLIVAN ET
AL. Appeal from the Superior Court of Rhode Island.
Probable jurisdiction noted. Horace S. Manges for
appellants. Reported below: See - R. I. - , 176 A.
2d 393.
Certiorari Granted. (See also No. 388, Misc., ante,
p. 721; No. 447, Misc., ante, p. 724; No. 535, Misc.,
ante, p. 725; No. 928, Misc., supra; No. 965, Misc.,
ante, p. 722; Misc. Nos. 1191 and 1234, ante, p. 723;
No. 1274, Misc., ante, p. 727; and No. 1357, Misc.,
ante, p. 728.)
No. 80. LYNUM v. ILLINOIS. Supreme Court of Illinois.
Certiorari granted. Jewel Stradford Rogers for
petitioner. William G. Clark, Attorney General of Illinois,
for respondent. Reported below: 21 Ill. 2d 63,
171 N. E. 2d 17.
934 OCTOBER TERM, 1961.
June 25, 1962. 370 U.S.
No. 995. WILLNER v. COMMITTEE ON CHARACTER AND
FITNESS, APPELLATE DIVISION OF THE SuPREMf: CouRT
OF NEW YORK, FIRST JUDICIAL DEPARTMENT. Court of
Appeals of New York. Certiorari granted. Henry Waldman
for petitioner. Louis J. Lefkowitz, Attorney General
of New York, Samuel A. Hirshowitz, First Assistant
Attorney General, and Daniel M. Cohen, Assistant Attorney
General, for respondent. Reported below: See 11
N. Y. 2d 866, 182 N. E. 2d 288.
No. 85. AVENT ET AL. v. NORTH CAROLINA. Supreme
Court of North Carolina. Certiorari granted. Jack
Greenberg, James M. Nabrit III, William A. Marsh, Jr.,
F. B. McKissick, C. 0. Pearson, M. Hugh Thompson, William
T. Coleman, Jr., Louis H. Pollak, Charles A. Reich
and Spottswood W. Robinson Ill for petitioners. T. W.
Bruton, Attorney General of North Carolina, and Ralph
Moody, Assistant Attorney General, for respondent.
Reported below: 253 N. C. 580, 118 S. E. 2d 47.
No. 694. GoBER ET AL. v. CITY OF BIRMINGHAM.
Court of Appeals of Alabama. Certiorari granted. Jack
Greenberg, Constance Baker Motley, Arthur D. Shores,
Peter A. Hall, Orzell Billingsley, Jr., Oscar W. Adams, Jr.,
James M. Nabrit III and Louis H. Pollak for petitioners.
Earl McBee for respondent. Reported below: - Ala.
App.-, 133 So. 2d 697.
No. 721. SHUTTLESWORTH ET AL. v. CrTY OF BIRMINGHAM.
Court of Appeals of Alabama. Certiorari granted.
Jack Greenberg, Constance Baker Motley, Arthur D.
Shores, Orzell Billingsley, Peter A. Hall, Oscar Adams and
James M. Nabrit III for petitioners. Earl McBee for
respondent. Reported below: -Ala. App.-, 134 So.
2d 213; - Ala. App. - , 134 So. 2d 214.
ORDERS. 935
370 u. s. June 25, 1962.
No. 287. GRIFFIN ET AL. v. MARYLAND. Court of
Appeals of Maryland. Certiorari granted. Joseph L.
Rauh, Jr., John Silard, Thurgood Marshall, Jack Greenberg
and James M. Nabrit Ill for petitioners. Thomas
B. Finan, Attorney General of Maryland, and Clayton A.
Dietrich, Assistant Attorney General, for respondent.
Reported below: 225 Md. 422, 171 A. 2d 717.
No. 638. LOMBARD ET AL. v. LomsIANA. Supreme
Court of Louisiana. Certiorari granted. Petitioners pro
se. Jack P. F. Gremillion, Attorney General of Louisiana,
M. E. Culligan, Assistant Attorney General, Richard A.
Dowling and J. David McNeill for respondent. Reported
below: 241 La. 958, 132 So. 2d 860.
No. 750. PETERSON ET AL. v. CITY OF GREENVILLE.
Supreme Court of South Carolina. Certiorari granted.
Jack Greenberg, Constance Baker Motley, James M.
Nabrit Ill, Matthew J. Perry, Lincoln C. Jenkins, Jr. and
Willie T. Smith for petitioners. Thomas A. Wofford and
Theodore A. Snyder, Jr. for respondent. Reported below:
239 S. C. 298, 122 S. E. 2d 826.
No. 729. WRIGHT ET AL. v. GEORGIA. Supreme Court
of Georgia. Certiorari granted. Jack Greenberg and
Constance Baker M o{ley for petitioners. Eugene Cook,
Attorney General of Georgia, G. Hughel Harr-ison, Assistant
Attorney General, Andrew J. Ryan, Jr., Solicitor General,
and Sylvan A. Garfunkel, Assistant Solicitor General,
for respondent. Reported below: 217 Ga. 453, 122 S. E.
2d 737.
No. 817, Misc. DRAPER ET AL. v. WASHINGTON ET AL.
Motion for leave to proceed in forma pauper-is and petition
for writ of certiorari to the Supreme Court of Washington
granted. Case transferred to the appellate docket.
Reported below: 58 Wash. 2d 830,365 P. 2d 31.
663026 0-62-54
936 OCTOBER TERM, 1961.
June 25, 1962. 370 u. s.
No. 966. DELANO-EARLIMART IRRIGATION DISTRICT ET
AL. v. RANK ET AL. C. A. 9th Cir. Certiorari granted.
THE CHIEF JusTICE took no part in the consideration or
decision of this petition. Denver C. Peckinpah, Adolph
Moskovitz, James K. Abercrombie, Irl Davis Brett and
J. 0. Reavis for petitioners. John H. Lauten and Claude
L. Rowe for respondents. Reported below: 293 F. 2d
340; 307 F. 2d 96.
No. 996, Misc. SANDERS v. UNITED STATES. Motion
for leave to proceed in f orma pauperis and petition for
writ of certiorari to the United States Court of Appeals
for the Ninth Circuit granted. Case transferred to the
appellate docket. Petitioner pro se. Solicitor General
Cox, Assistant Attorney General Miller, Beatrice Rosenberg
and Sidney M. Glazer for the United States. Re•
ported below: 297 F. 2d 735.
Certiorari Denied. (See also No. 1124, Misc., ante,
p. 720; No. 1153, Misc., ante, p. 721; and Misc. Nos.
1183, 1184, 1341, 1432 and 1438, supra.)
No. 237. CHICAGO, RocK ISLAND & PACIFIC RAILROAD
Co. ET AL. v. SwITCHMEN's UNION OF NORTH AMERICA
ET AL. C. A. 2d Cir. Certiorari denied. Kenneth F.
Burgess for petitioners. Ruth Weyand for respondents.
Reported below: 292 F. 2d 61.
No. 671. LARSEN v. LADD, CoMMISSIONER OF PATENTS.
United States Court of Customs and Patent Appeals.
Certiorari denied. Dean Laurence and Herbert I. Sherman
for petitioner. Solicitor General Cox, Assistant
Attorney General Orrick and Morton Hollander for
respondent. Reported below: 49 C. C. P.A. (Pat.) 711,
292 F. 2d 531.
ORDERS. 937
370 u. s. June 25, 1962.
No. 722. MooRE-McCORMACK LINES, INc., v. RICHARDSON,
EXECUTRIX, ET AL. C. A. 2d Cir. Certiorari
denied. Eugene Underwood for petitioner. Henry N.
Longley, Benjamin H. Siff, Bernard Rolnick and Louis R.
H arolds for respondents. Reported below: 295 F. 2d 583.
No. 800. CROWN ZELLERBACH CoRP. v. FEDERAL TRADE
COMMISSION. C. A. 9th Cir. Certiorari denied. Arthur
H. Dean, Howard T. Milman and Philip S. Ehrlich for
petitioner. Solicitor Gener.al Cox, Assistant Attorney
General Loevinger, Lionel Kestenbaum and James Mel.
Henderson for respondent. Reported below: 296 F. 2d
800.
No. 823. PAN AMERICAN PETROLEUM CORP. v. KANSAS-
NEBRASKA NATURAL GAs Co., INC. C. A. 8th Cir.
Certiorari denied. William J. Grove, Carroll L. Gilliam,
Byron M. Gray, W.W. Heard and Wm. H. Emerson for
petitioner. Oscar Cox, Malcolm S. Langford, James D.
Conway and Richard B. Berryman for respondent. Solicitor
General Cox, Ralph S. Spritzer, Richard A. Solomon,
Howard E. Wahrenbrock and Josephine H. Klein for the
Federal Power Commission, and George D. Horning, Jr.
for Western Natural Gas Co., amici curiae. Reported
below: 297 F. 2d 561.
No. 958. WASHINGTON-OREGON SHIPPERS CooPERATIVE
ASSOCIATION, INC., v. SCHUMACHER ET AL., TAX
COMMISSIONERS OF WASHINGTON. Supreme Court of
Washington. Certiorari denied. Sam A. Wright for
petitioner. John J. O'Connell, Attorney General of
Washington, John W. Riley, Chief Assistant Attorney
General, and Timothy R. Malone, Assistant Attorney
General, for respondents. Reported below: 59 Wash.
2d 159, 367 P. 2d 112.
938 OCTOBER TERM, 1961.
June 25, 1962. 370 u. s.
No. 943. SLAVITT v. UNITED STATES. Court of Claims.
Certiorari denied. Charlotte Slavitt pro se. Solicitor
General Cox, Assistant Attorney General Orrick and John
G. Laughlin, Jr. for the United States. Reported below:
-Ct.Cl.-.
No. 955. FONG, TRADING AS ASIA DEVELOPMENT CORP.,
ET AL. v. UNITED STATES. C. A. 9th Cir. Certiorari
denied. Smith W. Brookhart, Ralph E. Becker, Benjamin
H. Dorsey and F. Murray Cal"lahan for petitioners.
Solicitor General Cox, Assistant Attorney General Orrick
and Morton Hollander for the United States. Reported
below: 300 F. 2d 400.
No. 960. CANADIAN NATIONAL RAILWAY Co. v. TAYLOR.
C. A. 2d Cir. Certiorari denied. H. H. Powers for
petitioner. Joseph A. McNamara for respondent. Reported
below: 301 F. 2d 1.
No. 965. MARQUES-ARBONA v. SECRETARY OF THE
TREASURY OF PUERTO Rico. Supreme Court of Puerto
Rico. Certiorari denied. Santos P. Amadeo for petitioner.
J. B. Fernandez Badillo, Solicitor General of
Puerto Rico, for respondent. Reported below: - P.R.
No. 1025. INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA v. GOLDBERG, SECRETARY OF LABOR. United
States Court of Appeals for the District of Columbia Circuit.
Certiorari denied. Edward Bennett Williams and
Raymond W. Bergan for petitioner. Solicitor General
Cox, Acting Assistant Attorney General Guilfoyle, A"lan
S. Rosenthal and Charles Donahue for respondent. Reported
below: 112 U. S. App. D. C. 391, 303 F. 2d 402.
ORDERS. 939
370 U.S. June 25, 1962.
No. 950. JACK DANIEL DISTILLERY, LEM MoTLOW,
PRoP., INc., v. HOFFMAN DISTILLING Co. ET AL. C. A.
6th Cir. Certiorari denied. John J. Hooker, Joe E.
Daniels and Chauncey P. Carter for petitioner. Charles
B. Cannon, John K. Skaggs, Jr. and James E. Fahey for
respondents. Reported below: 298 F. 2d 606.
No. 964. MAIN LINE THEATRES, INC., ET AL. v. PARAMOUNT
FILM DISTRIBUTING CoRP. ET AL. C. A. 3d Cir.
Certiorari denied. Harry Norman Ball for petitioners.
W. Bradley Ward, Samuel D. Slade, Louis J. Goffman and
H. Francis DeLone for respondents. Reported below:
298 F. 2d 801.
No. 974. ART NATIONAL MANUFACTURERS DISTRIBUTING
Co. ET AL. v. FEDERAL TRADE CoMMISSION. C. A.
2d Cir. Certiorari denied. B. Pattl Noble for petitioners.
Solicitor General Cox, Assuitant Attorney General
Loevinger, James Mel. Henderson and Jno. W. Carter,
Jr. for respondent. Reported below: 298 F. 2d 476.
No. 977. FUNKHOUSER v. UNITED STATES. C. A. 4th
Cir. Certiorari denied. Petitioner pro se. Solicitor
General Cox, Assistant Attorney General Oberdorfer and
Joseph M. Howard for the United States. Reported
below: 299 F. 2d 940.
No. 981. McCuE ET AL. v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. Simon H. Rif kind, Samuel J.
Silverman and George F. Lowman for petitioners. Solicitor
General Cox, Acting Assistant Attorney Gener.al Jones
and J. William Doolittle for the United States. Reported
below: 301 F. 2d 452.
No. 1028. ATKINSON ET AL. v. CITY OF DALLAS.
Supreme Court of Texas. Certiorari denied. Petitioners
prose. Henry P. Kucera for respondent.
940 OCTOBER TERM, 1961.
BLACK, J ., dissenting. 370 U.S.
No. 907. N. V. HANDELSBUREAU LA MoLA v. KENNEDY,
ATTORNEY GENERAL. United States Court of
Appeals for the District of Columbia Circuit. Certiorari
denied. Lawrence S. Lesser and Dinsmore Adams for
petitioner. Solicitor General Cox, Assistant Attorney
General Orrick, John G. Laughlin, Jr. and Pauline B.
Heller for respondent. Reported below: 112 U. S. App.
D. C. 92, 299 F. 2d 923.
MR. JusTICE BLACK dissents:
The Trading with the Enemy Act 1 authorizes the Government
to seize and confiscate under some circumstances
the property of aliens. By its denial of certiorari in this
case the Court leaves standing a judgment of confiscation 2
under circumstances which in my judgment the Act does
not authorize. I therefore feel impelled to dissent.
In May 1940 Hitler's forces, violating the historic neutrality
of the Netherlands, suddenly invaded that country,
largely destroyed one of its finest cities and within a
short time occupied the whole country. Although the
United States soon recognized and allied itself with a
group of Royal Netherlands citizens who had escaped and
set up an independent government-in-exile in London;
that occupation continued until May 1945 when troops
from this country and its allies finally managed to liberate
the Netherlands from the German forces. Within several
weeks this country's ally, the Free Netherlands Government,
assumed lawful command of its own citizens and
territory. It was not, however, until some five and a
1 40 Stat. 411, as amended, 50 U. S. C. App. § 1 et seq.
2 112 U.S. App. D. C. 92, 299 F. 2d 923.
3 See Mutual Aid Agreement between the United States and the
Netherlands, July 8, 1942, 56 Stat. 1554; and Mutual Aid Agreement,
April 30, 1945, 59 Stat. 1627.
HANDELSBUREAU LA MOLA v. KENNEDY. 941
940 BLACK, J., dissenting.
half years later, long after the end of the Nazi occupation
and the return of the lawful government of the Netherlands,
that the Alien Property Custodian in 1951, purportedly
acting under the Trading with the Enemy Act,
seized and confiscated the four bank accounts in this
country which belonged to the petitioning Dutch company
and which form the object of this lawsuit. That confiscation
of petitioner's property was sustained by the Court of
Appeals on the sole ground that the Netherlands, our
friend and ally, where petitioner was incorporated, had
been overrun and occupied by Germany during the war.
Because this result seems so contrary to the purpose of
Congress in passing the Trading with the Enemy Act and
raises such grave constitutional questions under the Fifth
Amendment's command that the Government not take
private property without paying just compensation, I
think we should grant certiorari to review the Court of
Appeals' decision.
The Trading with the Enemy Act provides that the
President may seize "During the time of war" "any property
in which any foreign country or any national thereof
has or has had any interest." That Act also provides,
however, that "Any person not an enemy or ally of enemy"
may sue to compel the return of his property. And even
though the Act defines an "enemy" as "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 ... and any corporation
incorporated within such territory ... ," it does not
say, as did the Court of Appeals, that every corporation
which was at any time present within the territory while
that territory was occupied by an enemy is an "enemy"
within the meaning of the Act. I do not see how it can be
thought that Congress intended by this Act to authorize
942 OCTOBER TERM, 1961.
BLACK, J., dissenting. 370 u. s.
the confiscation, between the end of actual occupation in
1945 and the official end of the war in 1951,4 of every bit of
property in this country owned by the citizens and corporations
of the Netherlands, France, Norway, Belgium
and other countries solely because those countries, our
staunch friends and allies, had during the war been overrun
by an enemy that was trying to destroy them and us.5
I can understand how Congress might be thought to have
desired to authorize the President to seize the property
of citizens and corporations of friendly countries and
allies when those countries were at the time being
occupied by an enemy which might be able to use their
property to carry on war against us. I do not believe,
however, that Congress intended to place a permanent
taint on the property of our friends so that whenever
that property showed up in this country it might be
seized-even though long after our friends' countries
had been fortunate enough to escape the occupation
clutches of our common enemy. It would be bad
enough after the end of occupation to confiscate the property
of friendly aliens which had been in this country
during the occupation but to go beyond that and confiscate
as here a bank account which did not even exist
in this country until 1948, three years after the return of
lawful government to the Netherlands, seems wholly contrary
to any purpose Congress could have had in the Act.
Moreover, to construe this statute this way raises serious
questions about the constitutionality of the Act as applied,
for it has long been settled that the provision of the Fifth
Amendment requiring the payment of just compensation
4 Joint Resolution to terminate the state of war between the United
States and the Government of Germany, October 19, 1951, 65 Stat.
451.
5 Cf. Willenbrock v. Rogers, 255 F. 2d 236.
HANDELSBUREAU LA MOLA v. KENNEDY. 943
940 BLACK, J., dissenting.
when private property is taken for public use protects
friendly aliens as well as citizens.6 And it is obviously
no answer to this to say, as did the Court of Appeals,
that the confiscation was proper because this Government
needed the property after the war to support the cost of
its past war efforts. Our constitutional guarantee against
uncompensated government seizure of private property
surely does not melt away merely because public officials
believe the Government needs to seize property without
paying for it.
This case would of course be far different if the Court
of Appeals had rested on the two other grounds urged by
the Government below: (1) that petitioner was "enemytainted,"
(2) and also that it was engaged in doing business
in Germany which was enemy territory. But the
Court of Appeals did not rest on either of these grounds
and we must accept the case as it comes to us or fail to
accord petitioner its full day in court. This is particularly
true here, since the question of enemy domination,
if litigated, would have to be decided in light of Kaufman
v. Societe Internationale,7 where we held that innocent
stockholders even of enemy corporations must be protected
from having their property confiscated.
It is true that the refusal of the Court to grant certiorari
in this case gives no express approval to the
interpretation of the Act made by the Court of Appeals
and leaves that question open for final authoritative decision
later. The Court's refusal to act now, however, does
leave standing the Court of Appeals' decision as a precedent
in the lower federal courts which will until reviewed
here hang as a cloud over the property rights in this country
of citizens of foreign countries.
6 Russian Volunteer Fleet v. United States, 282 U.S. 481, 491-492.
7 343 u. s. 156.
944 OCTOBER TERM, 1961.
June 25, 1962. 370 u. s.
No. 957. SoBLEN v. UNITED STATES. The motion of
Dr. Bernard Diamond et al. for leave to file brief, as amici
curiae, is granted. The petition for writ of certiorari to
the United States Court of Appeals for the Second Circuit
is denied. MR. JusTICE WHITE took no part in the
consideration or decision of this motion and petition.
Ephraim London and Leonard B. Boudin for petitioner.
Solicitor General Cox, Assistant Attorney General Yeagley
and Kevin T. Maroney for the United States. William
E. Haudek for Dr. Bernard Diamond et al. Norman
Dorsen and Melvin L. Wulf for the American Civil Liberties
Union, as amicus curiae, in support of the petition.
Reported below: 301 F. 2d 236.
No. 962. Poss v. LIEBERMAN. The motion to dispense
with printing the petition for certiorari is granted.
The petition for writ of certiorari to the United States
Court of Appeals for the Second Circuit is denied. Petitioner
prose. Solicitor General Cox, Assistant Attorney
General Orrick and John G. Laughlin, Jr. for respondent.
Reported below: 299 F. 2d 358.
No. 1022. BoARD OF EDUCATION OF THE CITY OF MEMPHIS
ET AL. v. NORTH CROSS ET AL. The motion of Memphis
Citizens' Council for leave to file brief, as amicus
curiae, is granted. The petition for writ of certiorari to
the United States Court of Appeals for the Sixth Circuit
is denied. Larry B. Creson for petitioners. Marvin
Brooks Norfleet for Memphis Citizens' Council. Reported
below: 302 F. 2d 818.
No. 927, Misc. JACKSON v. COCHRAN, CORRECTIONS
DIRECTOR. Supreme Court of Florida. Certiorari denied.
Petitioner pro se. Richard W. Ervin, Attorney General
of Florida, and James G. Mahorner, Assistant Attorney
General, for respondent.
ORDERS. 945
370 U.S. June 25, 1962.
No. 738, Misc. CALDWELL v. WILKINS, WARDEN. C. A.
2d Cir. Certiorari denied.
No. 743, Misc. DEBARR v. MICHIGAN. Supreme
Court of Michigan. Certiorari denied. Petitioner pro
se. Frank J. Kelley, Attorney General of Michigan,
Eugene Krasicky, Solicitor General, Robert Weinbaum
and George Mason, Assistant Attorneys General, for
respondent.
No. 849, Misc. TILLERY v. MARONEY, CORRECTIONAL
SUPERINTENDENT. C. A. 3d Cir. Certiorari denied. Reported
below: See 294 F. 2d 12.
No. 951, Misc. VERDON v. UNITED STATES. C. A.
8th Cir. Certiorari denied. Petitioner prose. Solicitor
General Cox, Assistant Attorney General Marshall, Harold
H. Greene and David Rubin for the United States.
Reported below: 296 F. 2d 549.
No. 964, Misc. THOMPSON v. WASHINGTON. Supreme
Court of Washington. Certiorari denied. F. W.
Durnan for petitioner. Bruce T. Rinker for respondent.
Reported below: 58 Wash. 2d 598,364 P. 2d 527.
No. 970, Misc. Bosco v. NEW YoRK. Court of Appeals
of New York. Certiorari denied. Petitioner prose.
Isidore Dollinger and Walter E. Dillon for respondent.
No. 984, Misc. SuLLIVAN v. HEINZE, WARDEN, ET AL.
Supreme Court of California. Certiorari denied. Petitioner
pro se. Stanley M osk, Attorney General of California,
Doris H. Maier, Assistant Attorney General,
and Edsel W. Haws, Deputy Attorney General, for
respondents.
946 OCTOBER TERM, 1961.
June 25, 1962. 370U. S.
No. 986, Misc. MORRISON v. ILLINOIS. Supreme
Court of Illinois. Certiorari denied. Petitioner pro se.
William G. Clark, Attorney General of Illinois, for
respondent.
No. 1012, Misc. FROST v. UNITED STATES. United
States Court of Appeals for the District of Columbia Circuit.
Certiorari denied. Petitioner pro se. Solicitor
General Cox, Assistant Attorney General Miller, Beatrice
Rosenberg and Jerome M. Feit for the United States.
Reported below: 111 U.S. App. D. C. 414, 298 F. 2d 328.
No. 1027, Misc. SAWYER v. UNITED STATES. C. A. 4th
Cir. Certiorari denied. Petitioner pro se. Solicitor
General Cox, Assistant Attorney General Miller, Beatrice
Rosenberg and Robert G. Maysack for the United States.
Reported below: 297 F. 2d 535.
No. 1039, Misc. THORNTON ET AL. v. UNITED STATES.
United States Court of Appeals for the District of Columbia
Circuit. Certiorari denied. Petitioners prose. Solicitor
General Cox, Assistant Attorney General Miller and
Beatrice Rosenberg for the United States. Reported
below: 112 U. S. App. D. C. 57, 299 F. 2d 438.
No. 1097, Misc. MIDDLETON v. NEw YORK. Court of
Appeals of New York. Certiorari denied.
No. 1143, Misc. SrMPSON v. UNITED STATES;
No. 1156, Misc. WILLIAMS v. UNITED STATES; and
No. 1243, Misc. TURBERVILLE v. UNITED STATES.
United States Court of Appeals for the District of
Columbia Circuit. Certiorari denied. Petitioners prose.
Solicitor General Cox, Assistant Attorney General Miller,
Beatrice Rosenberg and Robert G. Maysack for the
United States. Reported below: 112 U. S. App. D. C.
400, 303 F. 2d 411.
ORDERS. 947
370 U.S. June 25, 1962.
No. 1032, Misc. OWENS v. ILLINOIS. Supreme Court
of Illinois. Certiorari denied. Petitioner pro se. William
G. Clark, Attorney General of Illinois, for respondent.
No. 1095, Misc. RoADHS v. TINSLEY, WARDEN. Supreme
Court of Colorado. Certiorari denied. Petitioner
prose. Duke W. Dunbar, Attorney General of Colorado,
Frank E. Hickey, Deputy Attorney General, and J. F.
Brauer, Assistant Attorney General, for respondent.
No. 1114, Misc. WRIGHT v. RHAY, PENITENTIARY
SUPERINTENDENT, ET AL. Supreme Court of Washington.
Certiorari denied. Petitioner prose. John J. O'Connell,
Attorney General of Washington, and Basil L. Badley,
Assistant Attorney General, for respondents.
No. 1131, Misc. LAWRENSON v. UNITED STATES. C. A.
4th Cir. Certiorari denied. Petitioner prose. Solicitor
General Cox, Assistant Attorney General Miller, Beatrice
Rosenberg and Theodore George Gilinsky for the United
States. Reported below: 298 F. 2d 880.
No. 1139, Misc. THOMAS v. WIMAN, WARDEN. C. A.
5th Cir. Certiorari denied. Petitioner pro se. Mac-
Donald Gallion, Attorney General of Alabama, and John
C. Tyson II I, Assistant Attorney General, for respondent.
No. 1142, Misc. RACINOWSKI v. PATE, WARDEN. Criminal
Court of Cook County, Illinois. Certiorari denied.
No. 1147, Misc. MATHIS v. UNITED STATES. C. A. 6th
Cir. Certiorari denied. Dale M. Quillen for petitioner.
Solicitor General Cox for the United States. Reported
below: 298 F. 2d 790.
No. 1148, Misc. PANARELLO v. RHODE ISLAND. Supreme
Court of Rhode Island. Certiorari denied.
948 OCTOBER TERM, 1961.
June 25, 1962. 370 u. s.
No. 1149, Misc. WRIGHT v. RHAY, PENITENTIARY
SUPERINTENDENT, ET AL. Supreme Court of Washington.
Certiorari denied.
No. 1150, Misc. MEIKLE v. NEW YORK. Court of
General Sessions of New York County, New York. Certiorari
denied.
No. 1151, Misc. REED v. RHAY, PENITENTIARY Su-
PERINTENDENT. Supreme Court of Washington. Certiorari
denied.
No. 1152, Misc. BOYES v. UNITED STATES. C. A. 8th
Cir. Certiorari denied. Petitioner pro se. Solicitor
General Cox, Assistant Attorney General Miller and Beatrice
Rosenberg for the United States. Reported below:
298 F. 2d 828.
No. 1154, Misc. McGANN v. UNITED STATES. C. A.
4th Cir. Certiorari denied. Petitioner prose. Solicitor
General Cox, Assistant Attorney General Miller and
Beatrice Rosenberg for the United States.
No. 1155, Misc. BoLDT v. UNITED STATES. Court of
Claims. Certiorari denied. Petitioner pro se. Solicitor
General Cox, Assistant Attorney General Orrick and Alan
S. Rosenthal for the United States.
No. 1159, Misc. MORRISON v. UNITED STATES. C. A.
2d Cir. Certiorari denied. Petitioner pro se. Solicitor
General Cox, Assistant Attorney General Miller and
Beatrice Rosenberg for the United States.
No. 1160, Misc. LANHAM v. KENTUCKY. Court of
Appeals of Kentucky. Certiorari denied.
ORDERS. 949
370 u. s. June 25, 1962.
No. 1162, Misc. GRIFFIN v. UNITED STATES. United
States Court of Appeals for the District of Columbia Circuit.
Certiorari denied. Petitioner pro se. Solicitor
General Cox, Assistant Attorney General Miller, Beatrice
Rosenberg and Richard W. Schmude for the United
States.
No. 1163, Misc. STRICKLAND v. UNITED STATES. C. A.
8th Cir. Certiorari denied. Petitioner prose. Solicitor
General Cox, Assistant Attorney General Miller and Beatrice
Rosenberg for the United States. Reported below:
295 F. 2d 186.
No. 1165, Misc. MONTGOMERY v. EYMAN, WARDEN.
Supreme Court of Arizona. Certiorari denied.
No. 1166, Misc.
SUPERINTENDENT.
Certiorari denied.
for respondent.
WATTERS v. MYERS, CORRECTIONAL
Supreme Court of Pennsylvania.
Petitioner pro se. Wilson Bucher
No. 1167, Misc. WASHINGTON v. UNITED STATES.
C. A. 9th Cir. Certiorari denied. Morris Lavine for
petitioner. Solicitor General Cox, Assistant Attorney
General Miller, Beatrice Rosenberg and Felicw Dubrovsky
for the United States. Reported below: 297 F. 2d
342.
No. 1169, Misc. FLETCHER v. RAINES, WARDEN. Oklahoma
Criminal Court of Appeals. Certiorari denied.
No. 1174, Misc. GEORGE v. RANDOLPH, WARDEN. Supreme
Court of Illinois. Certiorari denied.
No. 1175, Misc. SPANNER v. WASHINGTON ET AL.
Supreme Court of Washington. Certiorari denied.
950 OCTOBER TERM, 1961.
June 25, 1962. 370 U.S.
No. 1173, Misc. SPADY v. RHAY, PENITENTIARY Su-
PERINTENDENT. Supreme Court of Washington. Certiorari
denied.
No. 1176, Misc. GAUDET v. CowEN ET AL. C. A. 5th
Cir. Certiorari denied. Cecil M. Burglass, Jr. for petitioner.
Reported below: 297 F. 2d 227.
No. 1178, Misc. GARCIA v. TURNER. C. A. 10th Cir.
Certiorari denied. George H. Searle for petitioner. A.
Pratt Kesler, Attorney General of Utah, and Ronald N.
Boyce, Assistant Attorney General, for respondent.
Reported below: 297 F. 2d 881.
No. 1181, Misc. DELLA UNIVERSITA v. UNITED STATES.
C. A. 2d Cir. Certiorari denied. Petitioner pro se.
Solicitor General Cox, Assistant Attorney Gener.al Miller,
Beatr'ice Rosenberg and Richard W. Schmude for the
United States. Reported below: 298 F. 2d 365.
No. 1182, Misc. BAGLEY v. WILSON, CORRECTIONAL
SUPERINTENDENT, ET AL. Supreme Court of California.
Certiorari denied.
No. 1185, Misc. JOHNSON v. UNITED STATES. United
States Court of Appeals for the District of Columbia Circuit.
Certiorari denied. Petitioner pro se. Solicitor
General Cox, Assistant Attorney General Miller, Beatrice
Rosenberg and Theodore George Gilinsky for the United
States.
No. 1186, Misc. SMITH v. UNITED STATES. United
States Court of Appeals for the District of Columbia Circuit.
Certiorari denied. Petitioner pr.o se. Solicitor
General Cox, Assistant Attorney General Miller and
Beatrice Rosenberg for the United States.
ORDERS. 951
370 U.S. June 25, 1962.
No. 1187, Misc. JOHNSON v. ZIMMER ET AL. Supreme
Court of New York, Kings County. Certiorari denied.
No. 1189, Misc. CRISWELL v. HEINZE, WARDEN. Supreme
Court of California. Certiorari denied.
No. 1190, Misc. HALL v. lLLINOis. Supreme Court of
Illinois. Certiorari denied.
No. 1193, Misc. TucKER v. CALIFORNIA. Supreme
Court of California. Certiorari denied.
No. 1194, Misc. BoOTH v. BOLES, WARDEN. Supreme
Court of Appeals of West Virginia. Certiorari denied.
No. 1195, Misc. BRONSON v. UNITED STATES. United
States Court of Appeals for the District of Columbia Circuit.
Certiorari denied. Petitioner pro se. Solicitor
General Cox, Assistant Attorney General Miller and
Beatrice Rosenberg for the United States.
No. 1197, Misc. PATTERSON v. ALABAMA ET AL. Supreme
Court of Alabama. Certiorari denied.
No. 1198, Misc. REED v. SIGLER, WARDEN. Supreme
Court of Nebraska. Certiorari denied.
No. 1201, Misc. BRADEY v. Rrn1coFF, SECRETARY OF
THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE.
C. A. 4th Cir. Certiorari denied. John Bolt Culbertson
for petitioner. Solicitor General Cox, Assistant Attorney
General Orrick, Morton Hollander and David L. Rose for
respondent. Reported below: 298 F. 2d 855.
No. 1204, Misc. BROOKS v. RHAY, PENITENTIARY Su-
PERINTENDENT. Supreme Court of Washington. Certiorari
denied.
663026 0-62-) l
952 OCTOBER TERM, 1961.
June 25, 1962. 370U.S.
No. 1202, Misc. MITCHELL v. UNITED STATES. C. A.
2d Cir. Certiorari denied. Petitioner pro se. Solicitor
General Cox, Assistant Attorney General Miller, Beatrice
Rosenberg and Robert G. Maysack for the United States.
Reported below: 297 F. 2d 407.
No. 1205, Misc. JACEK v. UNITED STATES. C. A. 3d
Cir. Certiorari denied. Petitioner pro se. Solicitor
General Cox, Assistant Attorney General Miller, Beatrice
Rosenberg and Robert G. Maysack for the United States.
Reported below: 298 F. 2d 429.
No. 1207, Misc. BISNO v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Petitioner pro se. Solicitor
General Cox, Assistant Attorney General Miller, Beatrice
Rosenberg and J. F. Bishop for the United States. Reported
below: 299 F. 2d 711.
No. 1208, Misc. DUNCAN v. CARTER, INSTITUTION
SUPERINTENDENT. C. A. 9th Cir. Certiorari denied.
S. Ward Sullivan and Arthur Warner for petitioner.
Stanley Mosk, Attorney General of California, and William
E. James, Assistant Attorney General, for respondent.
Reported below: 299 F. 2d 179.
No. 1210, Misc. DEVINE v. NEw YORK. Court of
Appeals of New York. Certiorari denied. Petitioner
prose. Benj. J. Jacobson for respondent.
No. 1211, Misc. COFIELD v. ALABAMA. Supreme Court
of Alabama. Certiorari denied. Petitioner pro se.
MacDonald Gallion, Attorney General of Alabama, James
L. Screws, Assistant Attorney General, and Winston
Huddleston, Special Assistant Attorney General, for
respondent. Reported below: - Ala. -, 136 So. 2d
904.
ORDERS. 953
370 u. s. June 25, 1962.
No. 1209, Misc. YouNG v. UNITED STATES. C. A.
9th Cir. Certiorari denied. Petitioner pro se. Solicitor
General Cox, Assistant Attorney General Miller,
Beatrice Rosenberg and Sidney M. Glazer for the United
States. Reported below: 298 F. 2d 108.
No. 1212, Misc. CRuz v. TEXAS. Court of Criminal
Appeals of Texas. Certiorari denied.
No. 1214, Misc. RowLAND v. NoRTH CAROLINA. Supreme
Court of North Carolina. Certiorari denied.
No. 1215, Misc. DEARHART v. VIRGINIA. Supreme
Court of Appeals of Virginia. Certiorari denied.
No. 1216, Misc. O'LEARY v. MACY , CHAIRMAN, U. S.
C1v1L SERVICE COMMISSION, ET AL. United States Court
of Appeals for the District of Columbia Circuit. Certiorari
denied. Petitioner pro se. Solicitor General Cox,
Assistant Attorney General Orrick and Alan S. Rosenthal
for respondents. Reported below: 111 U.S. App. D. C.
357, 297 F. 2d 434.
No. 1217, Misc. BoYLE v. MISSOURI. Supreme Court
of Missouri. Certiorari denied.
No. 1218, Misc. HuoHES, DOING BUSINESS AS HUGHES
TRAILERS, v. L. B. SMITH, INC. C. A. 3d Cir. Certiorari
denied. William J. Ruano for petitioner.
No. 1220, Misc. SMITH v. NEW YORK. Court of
Appeals of New York. Certiorari denied.
No. 1221, Misc. BRUNSON v. NEw YoRK. Court of
Appeals of New York. Certiorari denied. Petitioner
pro se. Benj. J. Jacobson for respondent.
954 OCTOBER TERM, 1961.
June 25, 1962. 370U. S.
No. 1222, Misc. ADKINS v. UNITED STATES. C. A.
8th Cir. Certiorari denied. Petitioner pro se. Solicitor
General Cox, Assistant Attorney General Miller, Beatrice
Rosenberg and Richard W. Schmude for the United
States. Reported below: 298 F. 2d 842.
No. 1223, Misc. SULLIVAN, ADMINISTRATRIX, ET AL. v.
TREASURER OF SILVER Bow CouNTY, .MONTANA, ET AL.
Supreme Court of Montana. Certiorari denied.
No. 1225, Misc. LoPEZ v. TEXAS. Court of Criminal
Appeals of Texas. Certiorari denied.
No. 1226, Misc. Ruiz v. CALIFORNIA. Supreme Court
of California. Certiorari denied.
No. 1227, Misc. WEIRES v. NEw YoRK. Court of Appeals
of New York. Certiorari denied. Petitioner prose.
Joseph A. Mogavero, Jr. for respondent.
No. 1228, Misc. BEEBE v. RHAY, PENITENTIARY SUPERINTENDENT.
Supreme Court of Washington. Certiorari
denied.
No. 1229, Misc. PAULSON v. lLLINOIS. Supreme Court
of Illinois. Certiorari denied.
No. 1230, ~isc. MILLER v. BOLES, WARDEN. Supreme
Court of Appeals of West Virginia. Certiorari denied.
No. 1231, Misc. SMITH v. NASH, WARDEN. Supreme
Court of Missouri. Certiorari denied.
No. 1232, Misc. ScOTT v. THROSBY. Supreme Court
of California. Certiorari denied.
ORDERS. 955
370 u. s. June 25, 1962.
No. 1233, Misc. HUFFMAN v. UNITED STATES. C. A.
5th Cir. Certiorari denied. Petitioner pro se. Solicitor
General Cox, Assistant Attorney General Miller, Beatrice
Rosenberg and Kirby W. Patterson for the United States.
Reported below: 297 F. 2d 754.
No. 1236, Misc. ARRINGTON v. UNITED STATES. United
States Court of Appeals for the District of Columbia Circuit.
Certiorari denied. Petitioner pro se. Solicitor
General Cox for the United States.
No. 1237, Misc. HOLSCHER v. MINNESOTA. Supreme
Court of Minnesota. Certiorari denied.
No. 1239, Misc. WILLIS v. CocHRAN, CORRECTIONS
DIRECTOR. Supreme Court of Florida. Certiorari denied.
No. 1240, Misc. CORONADO v. UNITED STATES. C. A.
5th Cir. Certiorari denied. Petitioner prose. Solicitor
General Cox, Assistant Attorney General Miller, Beatrice
Rosenberg and J. F. Bishop for the United States.
No. 1241, Misc. SARDO v. NEW YORK. Court of Appeals
of New York. Certiorari denied.
No. 1245, Misc. McTIER v. lLLINOIS. Supreme Court
of Illinois. Certiorari denied.
No. 1248, Misc. CHAPIN v. RHAY, PENITENTIARY
SUPERINTENDENT. Supreme Court of Washington. Certiorari
denied.
No. 1249, Misc. SMITH v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. Petitioner pro se. Solicitor
General Cox, Assistant Attorney General Miller, Beatrice
Rosenberg and J. F. Bishop for the United States. Reported
below: 299 F. 2d 574.
956 OCTOBER TERM, 1961.
June 25, 1962. 370U.S.
No. 1251, Misc. GRAVES v. MARYLAND. Court of
Appeals of Maryland. Certiorari denied. T. Emmett
McKenzie for petitioner.
No. 1253, Misc. NELSON v. GLADDEN, WARDEN. Supreme
Court of Oregon. Certiorari denied.
No. 1254, Misc. DAVIS ET AL. v. GovERNMENT EMPLOYEES
INSURANCE Co. ET AL. Supreme Court of
Appeals of Virginia. Certiorari denied. Elmer B. Gower
for petitioners. Robert J. Dimond for respondents.
No. 1255, Misc. IN RE BRINSON. Supreme Court of
California. Certiorari denied.
No. 1256, Misc. HASSETT v. CALIFORNIA. Supreme
Court of California. Certiorari denied.
No. 1259, Misc. ScoTT v. UNITED STATES. United
States Court of Appeals for the District of Columbia Circuit.
Certiorari denied. Petitioner pro se. Solicitor
General Cox, Assu;tant Attorney General Miller, Beatrice
Rosenberg and Richard W. Schmude for the United
States.
No. 1260, Misc. HARDEN v. CALIFORNIA. C. A. 9th
Cir. Certiorari denied.
No. 1264, Misc. GRUBBS v. NEW YoRK. Appellate
Division of the Supreme Court of New York, Third Judicial
Department. Certiorari denied.
No. 1265, Misc. JACKSON v. ILLINOIS. Supreme Court
of Illinois. Certiorari denied.
No. 1266, Misc. BROWN v. LAVALLEE, WARDEN. C. A.
2d Cir. Certiorari denied.
ORDERS. 957
370U.S. June 25, 1962.
No. 1267, Misc. KOPTIK v. UNITED STATES. C. A. 7th
Cir. Certiorari denied. Petitioner pro se. Solicitor
General Cox, Assistant Attorney General Miller, Beatrice
Rosenberg and Theodore George Gilinsky for the United
States. Reported below: 300 F. 2d 19.
No. 1268, Misc. BROWN v. UNITED STATES. United
States Court of Appeals for the District of Columbia Circuit.
Certiorari denied. Petitioner pro se. Solicitor
General Cox for the United States. Reported below: 112
U. S. App. D. C. 87, 299 F. 2d 468.
No. 1270, Misc. JOHNSON v. UNITED STATES. C. A.
2d Cir. Certiorari denied. Petitioner pro se. Solicitor
General Cox for the United States.
No. 1275, Misc. SULLIVAN v. OREGON. Supreme Court
of Oregon. Certiorari denied.
No. 1276, Misc. RICHTER v. RIEDMAN, WARDEN.
Supreme Court of North Dakota. Certiorari denied.
No. 1278, Misc. HoMCHAK v. NEW YORK. Court of
Appeals of New York. Certiorari denied. Petitioner
pro se. Benj. J. Jacobson for respondent.
No. 1280, Misc. THOMPSON v. BANNAN, WARDEN.
C. A. 6th Cir. Certiorari denied.
No. 1281, Misc. HUNT v. UNITED STATES. United
States Court of Appeals for the District of Columbia Circuit.
Certiorari denied. Petitioner pro se. Solicitor
General Cox for the United States.
No. 1284, Misc. BROWN v. PuRCELL, WARDEN, ET AL.
Supreme Court of Iowa. Certiorari denied.
958 OCTOBER TERM, 1961.
June 25, 1962. 370 U.S.
No. 1285, Misc. CEDILLO v. TEXAS. Court of Criminal
Appeals of Texas. Certiorari denied.
No. 1286, Misc. McLEAN v. CALIFORNIA. Supreme
Court of California. Certiorari denied.
No. 1289, Misc. HALL v. CUNNINGHAM, PENITENTIARY
SUPERINTENDENT. Supreme Court of Appeals of
Virginia. Certiorari denied.
No. 1290, Misc. JONES v. MISSOURI 'ET AL. Supreme
Court of Missouri. Certiorari denied.
No. 1291, Misc. HAMILTON v. NEW YoRK. Appellate
Division of the Supreme Court of New York, Second
Judicial Department. Certiorari denied.
No. 1293, Misc. MARSHALL v. UNITED STATES. C. A.
10th Cir. Certiorari denied. Petitioner pro se. Solicitor
General Cox, Assistant Attorney General Miller,
Beatrice Rosenberg and Felicia Dubrovsky for the United
States. Reported below: 299 F. 2d 141.
No. 1294, Misc. SoTO v. FAY, WARDEN. Court of
Appeals of New York. Certiorari denied.
No. 1295, Misc. GERALD v. UNITED STATES. United
States Court of Appeals for the District of Columbia Circuit.
Certiorari denied. Petitioner pro se. Solicitor
General Cox, Assistant Attorney General Miller, Beatrice
Rosenberg and Robert G. Maysack for the United States.
No. 1297, Misc. WRIGHT v. UNITED STATES. United
States Court of Appeals for the District of Columbia Circuit.
Certiorari denied. Petitioner pro se. Solicitor
General Cox, Assistant Attorney General Miller, Beatrice
Rosenberg and Kirby W. Patterson for the United States.
ORDERS. 959
370U.S. .June 25, 1962.
No. 1302, Misc. KRAWITZ v. McSHANE, U. S. MARSHAL,
ET AL. United States Court of Appeals for the
District of Columbia Circuit. Certiorari denied. Petitioner
pro se. Solicitor General Cox, Assistant Attorney
General Orrick and Alan S. Rosenthal for respondents.
Reported below: 111 U.S. App. D. C. 359,297 F. 2d 436.
No. 1303, Misc. MORRIS v. Rousos. Supreme Court
of Texas. Certiorari denied.
No. 1304, Misc. MORGAN v. HEINZE, WARDEN. Supreme
Court of California. Certiorari denied.
No. 1305, Misc. DECLARA v. NEw YoRK. Court of
Appeals of New York. Certiorari denied. Frances Kahn
for petitioner.
No. 1310, Misc. GAGER v. SEIDEL, DOING BUSINESS AS
BoB SEIDEL'S RESTAURANT, ET AL. United States Court
of Appeals for the District of Columbia Circuit. Certiorari
denied. Petitioner pro se. Chester H. Gray,
Milton D. Korman, Hubert B. Pair and John R. Hess for
respondents. Reported below: 112 U. S. App. D. C. 135,
300 F. 2d 727.
No. 1311, Misc. ERNST v. YEAGER. Supreme Court of
New Jersey. Certiorari denied. Petitioner pro se. Norman
Heine for respondent.
No. 1312, Misc. MANGUM v. RANDALL. Supreme
Court of North Carolina. Certiorari denied.
No. 1313. Misc. ADAMS v. MYERS, CORRECTIONAL
SUPERINTENDENT. C. A. 3d Cir. Certiorari denied.
No. 1314, Misc. MARTIN v. WEST VIRGINIA. Supreme
Court of Appeals of West Virginia. Certiorari denied.
960 OCTOBER TERM, 1961.
.Tune 25, 1962. 370U.S .
No. 1318, Misc. WILLIAMS v. NEW YoRK. Court of
Appeals of Xew York. Certiorari denied.
No. 1319, :\Iisc. MORRELL ET AL. v. °CNITED STATES.
C. A. 9th Cir. Certiorari denied. Jay A. Darwin for
petitioners. Solicitor General Cox, Assistant Attorney
General Orrick and John G. Laughlin, Jr. for the Pnited
States. Reported below: 297 F. 2d 662.
No. 1320, Misc. LACRUE v. CALIFORNIA. Supreme
Court of California. Certiorari denied.
No. 1321, Misc. OYLER v. ALASKA. Supreme Court of
Alaska. Certiorari denied.
No. 1322, Misc. OLIVER v. UNITED STATES. C. A. 8th
Cir. Certiorari denied. Petitioner pro se. Solicitor
General Cox, Assistant Attorney General Miller, Beatrice
Rosenberg and Felicia Dubrovsky for the United States.
Reported below: 299 F. 2d 352.
No. 1323, Misc. WOODSON V. 1frERS, CORRECTIONAL
SUPERINTENDENT. Supreme Court of Pennsylvania.
Certiorari denied.
No. 1328, Misc. FLETCHER v. CAVELL, WARDEN. C. A.
3d Cir. Certiorari denied.
No. 1329, Misc. ANDREWS v. LANGLOIS, WARDEN.
Supreme Court of Rhode Island. Certiorari denied.
No. 1330, Misc. NADILE v. NEw YoRK. Court of
Appeals of New York. Certiorari denied.
No. 1335, Misc. LEWIS v. MICHIGAN. Supreme Court
of Michigan. C{!rtiorari denied.
ORDERS. 961
370 u. s. June 25, 1962.
No. 1333, Misc. CASE v. NORTH CAROLINA. Supreme
Court of North Carolina. Certiorari denied. Petitioner
pro se. T. W. Bruton, Attorney General of North Carolina,
and Harry W. McGalliard, Assistant Attorney General,
for respondent.
No. 1337, Misc. BURELL v. NORTH CAROLINA. Supreme
Court of North Carolina. Certiorari denied.
Petitioner pro se. T. W. Bruton, Attorney General of
North Carolina, and Harry W. McGalliard, Assistant
Attorney General, for respondent.
No. 1338, Misc. BROWN v. NEW YoRK. Court of
Appeals of New York. Certiorari denied. Petitioner
pro se. Benj. J. Jacobson for respondent.
No. 1339, Misc. NUNES v. PATE, WARDEN. Supreme
Court of Illinois. Certiorari denied.
No. 1340, Misc. SPECHT v. TINSLEY, WARDEN. Supreme
Court of Colorado. Certiorari denied. Petitioner
pro se. Duke W. Dunbar, Attorney General of Colorado,
Frank E. Hickey, Deputy Attorney General, and
J. F. Brauer, Assistant Attorney General, for respondent.
No. 1342, Misc. PUCKETT v. NORTH CAROLINA. Supreme
Court of North Carolina. Certiorari denied.
No. 1346, Misc. BARNETT V. CALIFORNIA. Supreme
Court of California. Certiorari denied.
No. 1347, Misc. MARION v. CALIFORNIA. Supreme
Court of California. Certiorari denied.
No. 1351, Misc. GoonsoN v. VIRGINIA. Supreme
Court of Appeals of Virginia. Certiorari denied.
..
962 OCTOBER TERM, 1961.
June 25, 1962. 370 U.S.
No. 1353, Misc. BLOCKER v. CALIFORNIA ET AL. District
Court of Appeal of California, Second Appellate
District. Certiorari denied.
No. 1359, Misc. BANKS v. WARDEN, MARYLAND PENITENTIARY.
Court of Appeals of Maryland. Certiorari
denied.
No. 1360, Misc. BARBER v. UNITED STATES. United
States Court of Appeals for the District of Columbia Circuit.
Certiorari denied. Petitioner pro se. Solicitor
General Cox, Assista?J,t Attorney General Miller and Beatrice
Rosenberg for the United States.
No. 1389, Misc. PEREIRA ET AL. v. NEW YoRK. Court
of Appeals of New York. Certiorari denied. Rudolph
Stand, John Cardone and Oscar Gonzalez-Suarez for petitioners.
H. Richard Uviller for respondent.
No. 1402, Misc. HEADLEY v. NEW YoRK. Court of
Appeals of New York. Certiorari denied. Petitioner
pro se. H. Richard Uviller for respondent.
No. 1410, Misc. LAWRENSON v. REID, JAIL SUPERINTENDENT.
United States Court of Appeals for the District
of Columbia Circuit. Certiorari denied. Petitioner
pro se. Solicitor General Cox for respondent.
No. 1413, Misc. LusTERINO v. NEW YoRK. Appellate
Division of the Supreme Court of New York, Second
Judicial Department. Certiorari denied. Petitioner pro
se. Benj. J. Jacobson for respondent.
No. 1420, Misc. DAWSON v. BOMAR, WARDEN. Supreme
Court of Tennessee, Middle Division. Certiorari
denied. George E. Barrett for petitioner.
ORDERS. 963
370 u. s. June 25, 1962.
No. 1431, Misc. IN RE SNEBOLD. Supreme Court of
California. Certiorari denied.
No. 1445, Misc. ANDERSON v. W1MAN, WARDEN.
Supreme Court of Alabama. Certiorari denied. Petitioner
pro se. MacDonald Gallion, Attorney General of
Alabama, and John C. Tyson III, Assistant Attorney General,
for respondent. Reported below: - Ala. - , 139
So. 2d 352.
No. 709, Misc. MILLER v. DISTRICT CouRT OF IowA
IN AND FOR LEE CouNTY. Petition for writ of certiorari
to the Supreme Court of Iowa denied in light of the representations
of the State Attorney General as to the adequacy
of state remedies. Petitioner prose. Evan Hultman,
Attorney General of Iowa, for respondent.
No. 867, Misc. RoGERS v. LoursIANA. Supreme Court
of Louisiana. Certiorari denied. The motion of G. Wray
Gill and Gerard H. Schreiber for leave to withdraw
appearances as counsel for petitioner is granted. Jack
P. F. Gremillion, Attorney General of Louisiana, and Scallan
E. Walsh, Assistant Attorney General, for respondent.
No. 1118, Misc. EVERETT v. NEw YoRK. Court of
Appeals of New Yark. Certiorari denied. MR. JusTICE
DouGLAS is of the opinion that certiorari should be
granted. Petitioner prose. Edward S. Silver and Frank
Di Lalla for respondent. Reported below: 10 N. Y. 2d
500, 180 N. E. 2d 556.
No. 990, Misc. MILLER v. MILLER. The motion to
correct the docket and the petition for writ of certiorari
to the United States Court of Appeals for the Second
Circuit are denied. Reported below: 296 F. 2d 283.
964 OCTOBER TERM, 1961.
June 25, 1962. 370 u. s.
No. 880, Misc. TITMUS v. TINSLEY, WARDEN. Petition
for writ of certiorari to the Supreme Court of Colorado
denied on the representations of the State Attorney
General that the courts of Colorado will consider and pass
upon a proper petition for furnishing a record without the
prepayment of costs. Petitioner pro se. Duke W. Dunbar,
Attorney General of Colorado, Frank E. Hickey,
Deputy Attorney General, and J. F. Brauer, Assistant
Attorney General, for respondent.
No. 1001, Misc. JACKSON v. CALIFORNIA. Supreme
Court of California. Certiorari denied. MR. JusTICE
DOUGLAS is of the opinion that certiorari should be
granted. Petitioner pro se. Stanley M osk, Attorney
General of California, Doris H. Maier, Assistant Attorney
General, and Raymond M. Momboisse, Deputy Attorney
General, for respondent.
No. 1079, Misc. SIMCOX v. MADIGAN, WARDEN. C. A.
9th Cir. Certiorari denied. MR. JUSTICE DouGLAS is of
the opinion that certiorari should be granted. Robert E.
Hannon for petitioner. Solicitor General Cox, Assistant
Attorney General Marshall, Harold H. Greene and David
Rubin for respondent.
No. 1038, Misc. MILLER v. PLEASURE, HosPITAL
SUPERINTENDENT. The motions to correct the docket
and to strike the respondent's brief are denied. Petition
for writ of certiorari to the United States Court of Appeals
for the Second Circuit denied. Petitioner pro se.
Louis J. Lefkowitz, Attorney General of New York, Irving
Galt, Assistant Solicitor General, Philip Watson and John
J. O'Grady, Assistant Attorneys General, for respondent.
Reported below: 296 F. 2d 283.
ORDERS. 965
370U. S. June 25, 1962.
No. 1252, Misc. MORGAN v. CALIFORNIA. Superior
Court of California, County of Kern. Certiorari denied.
MR. JusTICE DouGLAS and MR. JusTICE BRENNAN are of
the opinion that certiorari should be granted. William
A. Carver for petitioner.
Rehearing Denied.
No. 394. GEAGAN ET AL. v. GAVIN, CORRECTIONAL
SUPERINTENDENT, ante, p. 903;
No. 493. ENOCHS, DISTRICT DIRECTOR OF INTERNAL
REVENUE, v. WILLIAMS PACKING & NAVIGATION Co., INc.,
ante, p. 1;
No. 773. TAYLOR ET AL. v. LOUISIANA, ante, p. 154;
No. 835. WooTEN ET AL. v. TEXAS, 369 U.S. 885;
No. 852. WooDARD ET AL., DOING BUSINESS AS WooDARD
MoToR Co., v. GENERAL MoToRs CoRP., 369 U.S. 887;
No. 802, Misc. BURTON v. FLORIDA, ante, p. 905; and
No. 828, Misc. BANKS v. MADIGAN, WARDEN, ante,
p. 905. Petitions for rehearing denied.
No. 40. BECK v. WASHINGTON, 369 U.S. 541;
No. 241. SuNKIST GROWERS, INc., ET AL. v. WINCKLER
& SMITH CITRUS PRODUCTS Co. ET AL., ante, p. 19;
No. 283. SALEM v. UNITED STATES LINES Co., ante,
p. 31;
No. 323. VAUGHAN V. ATKINSON ET AL., 369 U. S. 527;
No. 475. GALLEGOS v. COLORADO, ante, p. 49; and
No. 667. RICHARDSON, EXECUTRIX, ET AL. v. MooREMcCoRMACK
LINES, INc., 368 U. S. 989. Petitions for
rehearing denied. MR. JusTICE WHITE took no part in
the consideration or decision of these applications.
No. 46. HUTCHESON v. UNITED STATES, 369 U. S. 599.
Petition for rehearing denied. MR. JUSTICE BLACK and
MR. JUSTICE WHITE took no part in the consideration or
decision of this application.
966 OCTOBER TERM, 1961.
June 25, 1962. 370 U.S.
No. 109. THOMAS ET ux. v. PATTERSON, DISTRICT
DIRECTOR OF INTERNAL REVENUE, 368 U. S. 837. The
motion for leave to file petition for rehearing is denied.
MR. JUSTICE WHITE took no part in the consideration
or decision of this application.
STATEMENT SHOWING THE NUMBER OF CASES FILED, DISPOSED OF, AND REMAINING
ON DOCKETS, AT CONCLUSION OF OCTOBER TERMS-1959, 1960, AND 1961
... I
'-" "'
"' O>
""I
OnIOINAL APPELLATE TOTALS MISCELLANEOUS I
Terms_ ---- -------- ------ --- - , 1959 1 1960 1 1961 I 1959 1 1960 J 1961 .I 1959 1-1960 F l--19_5_9_1_1_9_6_0...,.1_1_9_61
Numbero(casesondockets_____ 12 1 12 13 1,047 11,046 1,062 1,119 1,255 1,510 12, 178 12,313 1 2,585
Number disposed of during terms_ 0 1 0 860 887 860 962 1, 0-lO 1, 297 1, 822 1, !}28 2, 157
Number remaining on dockets___ 12 I 11 13 I 187 159 202 157 21.'i 213 I 356 1 385 I 428
Distribution o( cases disposed of
during terms:
Original cases ______________ - - -
Appellate cases on merits ______ _
Petitions for certiorari_ _______ _
Miscellaneous docket applications
__ _
JUNE 27, 1962
TERMS
1959 I 1960 I 1961
0 I l 215 259
645 628
962 Jl, 0-lO
0
195
665
1, 297
Distribution of cases remaining on
docket.s:
Original cases _______________ _ _
Appellate cases on merits ___ ___ _
Petitions for certiorari_ _______ _
MiHcellaneous docket applications
_
TERMS
1959 1 1960 1 1961
12
116
71
157
11
85
7-1
215
13
118
8-l
213

INDEX
ADDICTS. See Constitutional Law, I.
ADMINISTRATIVE PROCEDURE. See Agriculture; Armed
Forces; Postal Service.
ADMIRALTY.
1. Jones Act - Seamen - Damages for personal injuries- Evidence.-
In suit by seaman under Jones Act to recover damages for
injuries sustained by fall when going to post in crow's nest, it was
error for Court of Appeals to order new trial on ground that jury
could not determine, in absence of testimony by expert in naval
architecture, a claim that the shipowner had failed to provide necessary
and feasible safety devices; evidence did not support award of
future maintenance for three years. Salem v. United States Lines
Co., p. 31.
2. Longshoremen's Compensation Act-Coverage-Possibility of
recovery under state law-Election of remedies.-Injuries to workers
on new vessels under construction on navigable waters not excluded
from coverage of Longshoremen's and Harbor Workers' Compensation
Act by § 3 (a) thereof although recovery for such injuries may validly
be had under state workmen's compensation law; acceptance of payments
under state law did not preclude recovery under Longshorrmen's
Act. Calbeck v. Travelers Ins. Co., p. 114.
3. Longshoremen - Negligence - Unseaworthiness - Injuries from
noxious fumes in hold of ship.-In suit by longshoreman against
owners of ship and grain elevator to recover for injuries resulting
from noxious fumes given off in hold of ship by grain being loaded
from elevator, evidence was sufficient to support findings that ship
was not unseaworthy and that neither defendant knew or should
have known that grain had been improperly fumigated by someone
else at an inland point. Morales v. City of Galveston, p. 165.
AGENCY. See Criminal Law.
AGRICULTURE. See also Antitrust Acts, 3.
Milk marketing orders-Requirement of "compensatory payments"
by importers of milk from outside marketing region.-Requirement
that those who buy milk elsewhere and bring it into marketing region
for sale as fluid milk make "compensatory payments" to producers
969
970 INDEX.
AGRICULTURE-Continued.
who regularly supply the region, held invalid because of conflict with
§ 8c (f) {G) of Agricultural Marketing Agreement Act. Lehigh
Valley Coop. v. United States, p. 76.
ALIENS. See Trading with the Enemy Act.
ANTITRUST ACTS. See also Jurisdiction.
1. Clayton Act-Merger of competing corporations-Injunction.-
In suit by Government to enjoin merger of two corporations in shoe
industry as violative of § 7 of Clayton Act, record sustained District
Court's finding that merger might substantially lessen competition,
and its judgment enjoining merger and requiring divestiture affirmed.
Brown Shoe Co. v. United States, p. 294.
2. Clayton Act-Price discriminations-Milk-Chain grocers and
independent grocers.--Sales of milk at prices which discriminated
between independently owned grocery stores and grocery store chains
violated § 2 (a) of Clayton Act when class cost justifications submitted
to District Court did not satisfy defendants' burden under
§ 2 (b) of showing that their discriminatory pricing plans reflected
only a "due allowance" for actual cost differences. United States v.
Borden Co., p. 460.
3. Clayton Act-Sherman Act-Exemption of agricultural cooperatives.-
In view of exemption from antitrust laws accorded to agricultural
cooperatives by § 6 of Clayton Act and § 1 of Capper-Volstead
Act, a treble damage judgment under Clayton Act against two corporations
utilized by citrus fruit growers to process and market their
fruit collectively could not be sustained on theory that such corporations
conspired solely between themselves and with a third corporation,
which was another processing agency of the growers, to restrain
and monopolize trade in citrus fruit and by-products. Sunkist
Growers v. Winckler & Smith Citrus Co., p. 19.
4. Sherman Act-Coverage-Officers of corporations.-An officer
of a corporation is subject to prosecution under § 1 of Sherman Act
whenever he knowingly participates in effecting an illegal contract,
combination or conspiracy-regardless of whether he is acting in a
representative capacity. United States v. Wise, p. 405.
5. Shennan Act-Clayton Act-Suit for treble damages-Directed
verdict for defendants.-In treble damage suit under § 4 of Clayton
Act, alleging monopolization and conspiring and attempting to monopolize
trade and commerce in vanadium industry, District Court erred
in instructions to jury and in excluding certain evidence, and Court of
Appeals erred in holding that evidence was insufficient and that
verdict should have been directed for defendants. Continental Ore
Co. v. Union Carbide Corp., p. 690.
INDEX.
APPORTIONMENT. See Constitutional Law, III.
ARBITRATION. See Labor, 3--4.
ARMED FORCES. See also Veterans.
971
Regular Army-Removal of officer-lnjunction.-After administrative
proceedings by Army Board of Inquiry and Board of Review
under 10 U.S. C. (Supp. II) §§ 3792 and 3793 had resulted in recommendation
that Secretary remove a commissioned officer in Regular
Army, but before Secretary had taken any action under § 3794, suit
to enjoin him from doing so on grounds that administrative proceedings
were unconstitutional was premature. Beard v. Stahr, p. 41.
ATTACHMENTS. See Veterans.
BANKS. See Veterans.
BREACH OF THE PEACE. See Constitutional Law, II, 3.
BUS STATIONS. See Constitutional Law, II, 3.
CALIFORNIA. See Constitutional Law, I.
CAPPER-VOLSTEAD ACT. See Antitrust Acts, 3.
CENSORSHIP. See Postal Service.
CERTIORARI. See Procedure, 1-3.
CHAIN GROCERY STORES. See Antitrust Acts, 2.
CITRUS FRUIT. See Antitrust Acts, 3.
CIVIL RIGHTS ACT. See Constitutional Law, III.
CLAYTON ACT. See Antitrust Acts, 1-5; Contempt, l.
COLORADO. See Constitutional Law, II, 2.
COMMERCE. See Antitrust Acts, 1-5; Taxation, 3-4.
COMPETITION. See Antitrust Acts, 1, 3--4.
CONFESSIONS. See Constitutional Law, II, 2.
CONFLICTS OF LAWS. See Labor, 3.
CONGRESSIONAL INVESTIGATIONS. See Contempt, 2; Procedure,
1.
CONSPIRACY. See Antitrust Acts, 3-5.
CONSTITUTIONAL LAW. See also Armed Forces; Courts;
Postal Service; Procedure, 1, 3--4; Taxation, 4.
I. Cruel and Unusual Punishment.
State statute making status of narcotics addiction a criminal
of!ense.-A California statute, construed as making status of nar972
INDEX.
CONSTITUTIONAL LAW-Continued.
cotics addiction a criminal offense though the accused had never
used narcotics in the State or been guilty of antisocial behavior
there, held invalid as inflicting cruel and unusual punishment.
Robinson v. California, p. 660.
II. Due Process.
1. Apportionment of state legislature.-In suit under Civil Rights
Act alleging violations of Due Process Clause of Fourteenth Amendment
by New York State's constitutional and statutory provisions
governing apportionment of State Legislature, judgment dismissing
complaint set aside and case remanded for further consideration in
light of Baker v. Carr, 369 U.S. 186. W. M. C. A. v. Simon, p. 190.
2. State criminal trials-Confessions.-Circumstances in which
confession was obtained from 14-year-old boy while he was held for
five days without seeing lawyer, parent or other friendly adult violated
due process, and his conviction of murder, which may have
rested on such confession, cannot stand. Gallegos v. Colorado, p. 49.
3. State criminal trials-Breach of peace-Refusal of Negroes to
leave white waiting room.-When sole evidence to support convictions
of Negroes in state court for breach of the peace was that they
refused to leave bus-station waiting room customarily reserved for
white people, evidence was insufficient and convictions were reversed.
Taylor v. Louisiana, p. 154.
4. State conviction for contempt-Constitutional issues not presented
by record.-When petitioner claimed that use of intercepted
conversation with brother in jail violated his constitutional rights
and invalidated his conviction in state court for refusal to answer
questions of state legislative investigating committee, but record
showed that two of the questions were not related to intercepted
conversation and refusal to answer them was sufficient to support
judgment, his constitutional claim was not presented by the record.
Lanza v. New York, p. 139.
III. Equal Protection.
Apportionment of state legislature.-In suit under Civil Rights
Act alleging violation of Equal Protection Clause of Fourteenth
Amendment by New York State's constitutional and statutory provisions
governing apportionment of State Legislature, judgment
dismissing complaint set aside and case remanded for further consideration
in light of Baker v. Carr, 369 U. S. 186. W. M. C. A. v.
Simon, p. 190.
INDEX.
CONSTITUTIONAL LAW-Continued.
IV. Freedom of Religion.
973
Public schools-Recital of state-prescribed prayer.-Under First
and Fourteenth Amendments, state officials may not compose an
official prayer and require that it be recited in public schools at
beginning of each school day. Engel v. Vitale, p. 421.
V. Freedom of Speech.
Freedom of speech-Contempt of court-Statement of sheriff in
political campaign-Obstruction of grand jury proceedings.-Record
did not support finding that sheriff's statement in midst of political
campaign criticizing judge for instructing grand jury to investigate
charges of bloc voting by Negroes and use of money to obtain their
votes presented clear and present danger to administration of justice,
and his conviction by state court of contempt violated his right to
freedom of speech. Wood v. Georgia, p. 375.
CONTEMPT. See also Constitutional Law, II, 4; V; Procedure, 1.
l. Criminal contempt-Conduct of lawyer during civil trial-
Obstruction of justice.-Lawyer's persistent efforts to protect interest
of client in civil, suit under Clayton Act for treble damages, notwithstanding
erroneous adverse ruling of trial judge, held not sufficiently
disruptive of the trial court's business to "obstruct the administration
of justice" within meaning of 18 U. 8. C. § 401. In re
McConnell, p. 230.
2. Contempt of Congress--Sufficiency of indictment-Statement of
question under inquiry.-Under 2 U.S. C. §§ 192 and 194, an indictment
for refusal to answer questions asked by congressional committee
must state the question under inquiry at time of defendant's
refusal to answer. Silber v. United States, p. 717.
COOPERATIVE MARKETING ASSOCIATIONS. See Antitrust
Acts, 3.
CORPORATIONS. See Antitrust Acts, 1, 3-4.
COST JUSTIFICATIONS. See Antitrust Acts, 2.
COUNSEL. See Constitutional Law, II, 2; Contempt, 1; Procedure,
5; Taxation, 1.
COURTS. See also Constitutional Law, II, 4; V; Contempt, 1;
Jurisdiction; Procedure.
Constitutional or legislative courts-Court of Claims-Court of
Customs and Patent Appeals.-The Court of Claims and the Court
of Customs and Patent Appeals are constitutional courts created
974 INDEX.
COURTS-Continued.
under Art. III, and their judges, including retired judges, may serve
on District Courts and Courts of Appeals by designation of Chief
Justice under 28 U.S. C. §§293 {a) and 294 {d). Glidden Co. v.
Zdanok, p. 530.
CRIMINAL LAW. See also Antitrust Acts; Constitutional Law,
I; II, 2-4; V; Contempt, 1-2; Procedure, 1.
Forgery-Unauthorized agency endorsement of check.-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. § 495. Gilbert v. United
States, p. 650.
CRUEL AND UNUSUAL PUNISHMENT. See Constitutional
Law, I.
DAIRIES. See Agriculture; Antitrust Acts, 2, 4.
DAMAGES. See Admiralty, 1-3; Antitrust Acts, 3, 5; Contempt,
1; Labor, 4--5.
DELA WARE. See Taxation, 1.
DIRECTED VERDICTS. See Antitrust Acts, 5.
DISABILITY BENEFITS. See Veterans.
DISCRIMINATION. See Antitrust Acts, 2; Constitutional Law,
II, 3; III.
DIVORCE. See Taxation, 1.
DUE PROCESS. See Constitutional Law, II; Taxation, 3-4.
EAVESDROPPING. See Constitutional Law, II, 4.
EIGHTH AMENDMENT. See Constitutional Law, I.
ELECTION OF REMEDIES. See Admiralty, 2.
ELECTIONS. See Constitutional Law, III.
EQUAL PROTECTION OF LAWS. See Constitutional Law, III;
Taxation, 4.
EVIDENCE. See Admiralty, 1, 3; Antitrust Acts, 5; Constitutional
Law, II, 3.
EXPEDITING ACT. See Jurisdiction.
EXPERT TESTIMONY. See Admiralty, 1.
FEDERAL RULES OF CIVIL PROCEDURE. See Procedure, 5.
INDEX. 975
FEDERAL SAVINGS AND LOAN ASSOCIATIONS. See Veterans.
FEDERAL-STATE RELATIONS. See Constitutional Law, I; II,
1-4; III; IV; V; Labor, 2; Procedure, 3-4; Taxation, 3-4.
FIRST AMENDMENT. See Constitutional Law, IV; V; Postal
Service.
FORGERY. See Criminal Law.
FOURTEENTH AMENDMENT. See Constitutional Law, I; II,
1-4; III; IV; V.
FREEDOM OF PRESS. See Postal Service.
FREEDOM OF RELIGION. See Constitutional Law, IV.
FREEDOM OF SPEECH. See Constitutional Law, V.
FREIGHT CARS. See Taxation, 4.
FUMIGATION. See Admiralty, 3.
GEORGIA. See Constitutional Law, V.
GRAIN. See Admiralty, 3.
GRAND JURIES. See Constitutional Law, V.
GROCERS. See Antitrust Acts, 2.
HOMOSEXUALS. See Postal Service.
HUSBAND AND WIFE. See Taxation, 1.
INCOME TAX. See Procedure, 2; Taxation, 1.
INDICTMENTS. See Contempt, 2.
INJUNCTIONS. See Antitrust Acts, 1-2; Armed Forces; Labor,
2-3; Procedure, 4; Taxation, 2.
INSECTICIDES. See Admiralty, 3.
INSTRUCTIONS TO JURIES. See Antitrust Acts, 5.
INSURANCE. See Procedure, 2; Taxation, 3.
INTERNAL REVENUE CODE. See Taxation, 1-2.
INTERSTATE COMMERCE. See Antitrust Acts, 1-5; Taxation,
3-4.
JONES ACT. See Admiralty, 1.
JUDGES. See Courts; Procedure, 4.
JUDICIAL POWER. See Constitutional Law, III; Courts.
976 INDEX.
JURIES. See Antitrust Acts, 5.
JURISDICTION. See also Constitutional Law, II, 4; Courts:
Labor, 2; Procedure; Taxation, 2--4.
Supreme Court-Direct appeal from District Court-Antitrust
case-"Final" judgment.-Judgment of District Court enjoining
appellant from having or acquiring any interest in competing corporation,
requiring divestiture, and ordering appellant to propose
plan for carrying out Court's order of divestiture was "final" judgment
within meaning of § 2 of Expediting Act, and Supreme Court
had jurisdiction of direct appeal. Brown Shoe Co. v. United States,
p. 294.
JUVENILES. See Constitutional Law, II, 2.
LABOR. See also Admiralty, 1-3; Taxation, 2.
1. National Labor Relations Act-Right of nonunion employees to
act in concert-Walkout because of cold.-Discharge of nonunion
employees for walking off job together because shop was "too cold"
violated § 8 (a) (1) by interfering with their right under § 7 to act
in concert for mutual .aid or protection; rule against leaving work
without permission was not justifiable "cause" for discharge under
§ 10 (c). Labor Board v. Washington Aluminum Co., p. 9.
2. National Labor Relations Act-Dispute between shipowners and
unions of marine engineers-Jurisdiction of state court to enjoin
picketing.-In suit by shipowners to enjoin picketing and other protected
activities by unions of marine engineers, dispute was arguably
within jurisdiction of National Labor Relations Board, and state
court was precluded from exercising jurisdiction, notwithstanding
claim that only "supervisory" :i:,ersonnel were involved. Marine
Engineers v. Interlake Steamship Co., p. 173.
3. Labor Management Relations Act-Norris-LaGuardia Act-Suit
by employer to enjoin strike in violation of agreement.-Notwithstanding
§ 301 of Labor Management Relations Act, 1947, § 4 of
Norris-LaGuardia Act bars injunction against strike, picketing, etc.,
by union and its officers and members in violation of collective
bargaining agreement. Sinclair Refining Co. v. Atkinson, p. 195.
4. Labor Management Relations Act-Suit by employer for damages
for strike in violation of agreement-Arbitration.-Suit by
employer under § 301 of Labor Management Relations Act to
recover damages for strike or work stoppage in violation of collective
bargaining agreement stated cause of action against unions but not
against individual members; contract did not bind employer to
arbitrate its claim against union for damages. Atkinson v. Sinclair
Refining Co., p. 238.
INDEX. 977
LABOR-Continued.
5. Labor .Management Relations Act-Suit by employer for damages
for strike in violation of agreement-Arbitration.-Employer's
claim against union for damages for strike in violation of collective
bargaining agreement was within compulsory arbitration provisions of
agreement, and suit for damages under § 301 of Labor Management
Relations Act was properly stayed pending completion of arbitration.
Drake Bakeries v. Bakery Workers, p. 254.
LA WYERS. See Constitutional Law, II, 2; Contempt, 1 ; Procedure,
5; Taxation, 1.
LEGISLATURES. See Constitutional Law, III; Contempt, 2;
Procedure, 1.
LONGSHOREMEN. See Admiralty, 2-3.
LOUISIANA. See Constitutional Law, II, 3.
MAILS. See Postal Service.
MAINTENANCE. See Admiralty, 1.
MARINE ENGINEERS, See Labor, 2.
McCARRAN-FERGUSON ACT. See Taxation, 3.
MERGERS. See Antitrust Acts, 1.
MILK. See Agriculture; Antitrust Acts, 2, 4.
MINNESOTA. See Labor, 2.
MONOPOLY, See Antitrust Acts, 1, 3, 5.
NARCOTICS. See Constitutional Law, I.
NATIONAL LABOR RELATIONS ACT. See Labor, 1-2.
NEGLIGENCE. See Admiralty, 1-3; Procedure, 5.
NEGROES. See Constitutional Law, II, 3; V.
NEW TRIAL. See Admiralty, 1; Antitrust Acts, 5.
NEW YORK. See Constitutional Law, II, 4; III.
NORRIS-LaGUARDIA ACT. See Labor, 3.
NUDITY. See Postal Service.
OBSCENITY. See Postal Service.
OBSTRUCTION OF JUSTICE. See Contempt, 1.
OFFICERS. See Antitrust Acts, 4; Armed Forces.
PENNSYLVANIA. See Taxation, 4.
PERSONAL INJURIES. See Admiralty, 1-3; Procedure, 5.
978 INDEX.
PICKETING. See Labor, 2-3.
POLITICS. See Constitutional Law, III; Y.
POSTAL SERVICE.
Mails-"Obscene" material-Magazines containing pictures of nude
or nearly nude men.-Administrative order of Post Office Department
barring from mails as "obscene" under 18 U. S. C. § 1461 magazines
containing pictures of nude or nearly nude men and advertisements
offering similar pictures for sale, all of which appealed almost exclusively
to homosexuals, held invalid. Manual Enterprises v. Day,
p. 478.
PRAYERS. See Constitutional Law, IV.
PRICE DISCRIMINATION. See Antitrust Acts, 2.
PROCEDURE. See also Admiralty, 1-3; Antitrust Acts, 3, 5;
Armed Forces; Constitutional Law, II, 1-4; V; Contempt;
Courts; Jurisdiction; Labor, 2-5; Taxation, 2-4.
1. Supreme Court-Certiorari-Plain error not briefed or argued.-
When indictment for contempt of Congress was defective under Russell
v. United States, 369 U. S. 749, District Court denied timely
motion to dismiss it, and issue was not presented to Court of Appeals
or briefed or argued in Supreme Court, the latter could, at its option,
notice such plain error and reverse judgment sustaining conviction.
Silber v. United States, p. 717.
2. Supreme Court-Certiorari-Review of no importance except to
litigants.-When it appeared that outcome of suit for refund of
income taxes depended upon facts and review would be of importance
to no one except litigants, writ of certiorari dismissed as
improvidently granted. Rudolph v. United States, p. 269.
3. Supreme Court-Certiorari-Constitutional issues not presented
by record.-When petitioner claimed that use of intercepted conversation
with brother in jail violated his constitutional rights and
invalidated his conviction in state court for refusal to answer questions
of state legislative investigating committee, but record showed
that two of the questions were not related to intercepted conversation
and refusal to answer them was sufficient to support judgment, his
constitutional claim was not presented by the record. Lanza v. New
York, p. 139.
4. District Courts-Suit challenging state statute as conflicting
with Federal Constitution-Need for three-judge court.-Three-judge
court should have been convened under 28 U. S. C. §§ 2281, 2284 to
hear and determine suit to enjoin enforcement of state statute because
IJ j
INDEX. 979
PROCEDURE-Continued.
of conflict with Federal Constitution. Idlewild Bon Voyage Liquor
Corp. v. Epstein, p. 713.
5. District Courts-Dismissal of suit for want of prosecution-Sua
sponte and without notice.-District Court, acting sua sponte and
without prior notice, had inherent right to dismiss for want of prosecution
long-pending personal injury suit against railroad based on
diversity of citizenship; right not restricted by Federal Rule of Civil
Procedure 41 (b) to cases in which defendant moves for dismissal;
plaintiff bound by his lawyer's conduct. Link v. Wabash R. Co.,
p. 626.
PROPERTY SETTLEMENTS, See Taxation, 1.
PUBLIC SCHOOLS. See Constitutional Law, IV.
RACIAL DISCRIMINATION. See Constitutional Law, II, 3.
RAILROADS. See Procedure, 5; Taxation, 4.
RELIGIOUS FREEDOM. See Constitutional Law, IV.
REMEDIES. See Admiralty, 1.
RULES OF CIVIL PROCEDURE. See Procedure, 5.
SAVINGS AND LOAN ASSOCIATIONS. See Veterans.
SCHOOLS. See Constitutional Law, IV.
SEAMEN. See Admiralty, 1.
SEAWORTHINESS. See Admiralty, 3.
SECRETARY OF AGRICULTURE. See Agriculture.
SECRETARY OF ARMY. See Armed Forces.
SHERMAN ACT. See Antitrust Acts, 3-5.
SHIPOWNERS. See Admiralty, 1-3; Labor, 2.
SHOES. See Antitrust Acts, 1.
SOCIAL SECURITY. See Taxation, 2.
STAYS. See Labor, 5.
STOCK TRANSFERS. See Taxation, 1.
STRIKES. See Labor, 2-5.
SUPERVISORY PERSONNEL. See Labor, 2.
SUPREME COURT. See also Jurisdiction; Procedure, 1-3.
Tribute to MR. JUSTICE BLACK, p. v.
TAFT-BARTLEY ACT. See Labor, 3-5.
980 INDEX.
TAXATION. See also Procedure, 2.
1. Income tax-Transfers of stock-Husband to divorced wife in
property settlement-Deductibility of fee paid wife's attorney.-
Transfer by taxpayer in Delaware to divorced wife, in return for
release of her marital claims, of stock which had appreciated in market
value and which was solely property of the husband, was taxable
event under Internal Revenue Code of 1954 and not division of property
between co-owners; husband not entitled to deduct fee paid to
wife's attorney for advice about tax consequences of transaction.
United States v. Davis, p. 65.
2. Social security and unemployment taxes--Suit to enjoin collection.-
A suit to enjoin collection of social security and unemployment
taxes was barred by § 7421 (a) of the Internal Revenue Code of 1954,
even though District Court found that they were not, in fact, payable
and that their collection would destroy plaintiff's business. Enochs
v. Williams Packing & Navigation Co., p. 1.
3. State taxes--Wholly out-of-state insurance transactions covering
property in State.-In view of history and language of McCarran-
Ferguson Act, a State may not tax wholly out-of-state insurance
transactions covering property within the State. State Board of
Insurance v. Todd Shipyards Corp., p. 451.
4. State taxes-Personal property-Situs-Freight cars.-Pennsylvania
could tax all freight cars, wherever located, owned by railroad
incorporated and located in Pennsylvania, except cars proved to have
tax situs in another State. Central R. Co. v. Pennsylvania, p. 607."
TEXAS. See Taxation, 3.
THREE-JUDGE COURT. See Procedure, 4.
TRADING WITH THE ENEMY ACT.
Property subject to seizure-Bank account created a/ ter liberation
but before termination of war.-Right to sue for recovery.-Power of
Alien Property Custodian to seize from Dutch corporation bank
account created in United States in 1948, three years after liberation
of Netherlands but before formal termination of state of war in 1951;
right of owner to sue for recovery. Handelsbureau La Mola v.
Kennedy, p. 940 (Opinion of BLACK, J., dissenting from denial of
certiorari) .
TRANSPORTATION. See Constitutional Law, II, 3; Taxation, 4.
TRIAL. See Contempt, 1.
UNEMPLOYMENT INSURANCE. See Taxation, 2.
UNIONS. See Labor, 2-5.
L
INDEX.
VANADIUM. See Antitrust Acts, 5.
VETERANS.
981
Disability benefits-Exemption from attachment-Deposits in federal
savings and loan association.-Disability benefits paid to incompetent
veteran by United States and deposited by his committee or
guardian in a federal savings and loan association held exempted
from attachment by 38 U. S. C. § 3101 (a) in circumstances of case.
Porter v. Aetna Casualty & Surety Co., p. 159.
WORDS.
1. "Attempt to monopolize."-Sherman Act, § 2. Continental Ore
Co. v. Union Carbide Corp., p. 690.
2. "Concerted activities for the purpose of ... mutual aid or
protection."-National Labor Relations Act, § 7. Labor Board v.
Washington Aluminum Co., p. 9.
3. "Discharged for cause."-N ational Labor Relations Act, § 10 ( c).
Labor Board v. Washington Aluminum Co., p. 9.
4. "Due allowance for differences in the cost."-Clayton Act,
§ 2 (a). United States v. Borden Co., p. 460.
5. "Final judgment."-Expediting Act. Brown Shoe Co. v. United
States, p. 294.
6. "Forges."-18 U. S. C. § 495. Gilbert v. United States, p. 650.
7. "Labor dispute."-Norris-LaGuardia Act, § 4. Sinclair Refining
Co. v. Atkinson, p. 195.
8. "Labor dispute."-National Labor Relations Act,§ 2 (a). Labor
Board v. Washington Aluminum Co., p. 9.
9. "Labor organization."-National Labor Relations Act, § 8 (b).
Marine Engineers v. Interlake Steamship Co., p. 173.
10. "Monopolize."-Sherman Act, § 2. Continental Ore Co. v.
Union Carbide Corp., p. 690.
11. "Obscene."-18 U. S. C. § 1461. Manual Enterprises v. Day,
p. 478.
12. "Obstruct the administration of justice."-18 U. S. C. § 401.
In re McConnell, p. 230.
13. "Person."-Sherman Act, §§ 1, 8. United States v. Wise, p.
405.
14. "Substantially to lessen competition."-Clayton Act, § 7.
Brown Shoe Co. v. United States, p. 294.
15. "Tend to create a monopoly."-Clayton Act, § 7. Brown Shoe
Co. v. United States, p. 294.
WORKMEN'S COMPENSATION. See Admiralty, 2.
U.S. GOYHNMENT PRINTING OP'PICE: IHZ 0-113021
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