UNITED STATES REPORTS VOLUME 393 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1968 October 7, 1968 (Beginning of Term) Through (in Part) March 3, 1969 HENRY PUTZEL, jr. REPORTER OF DECISIONS UNITED STATES GOVERNMENT PRINTING OFFICE WASHINGTON : 1969 For sale by the Superintendent of Documents, U.S. Government Printing Office Washington, D.C. 20402 - Price $9.00 (Buckram) Errata. 106 U. S. xii : the entry “Fairview v. Marshall . . . 583” should be deleted. 245 U. S. 469: “1851” in the last line should be “1852.” 344 U. S. 115, line 4 from bottom: “1871” should be “1872.” 374 U. S. 836, No. 982, Mise., last line: “313” should be “113.” 386 U. S. 1041: “No. 1492” should be “No. 1492, Mise.” ii JUSTICES OF THE SUPREME COURT DURING THE TIME OF THESE REPORTS. EARL WARREN, Chief Justice. HUGO L. BLACK, Associate Justice. WILLIAM O. DOUGLAS, Associate Justice. JOHN M. HARLAN, Associate Justice. WILLIAM J. BRENNAN, Jr., Associate Justice. POTTER STEWART, Associate Justice. BYRON R. WHITE, Associate Justice. ABE FORTAS, Associate Justice. THURGOOD MARSHALL, Associate Justice. retired. STANLEY REED, Associate Justice. TOM C. CLARK, Associate Justice. RAMSEY CLARK, Attorney General.1 JOHN N. MITCHELL, Attorney General.1 2 ERWIN N. GRISWOLD, Solicitor General. JOHN F. DAVIS, Clerk. HENRY PUTZEL, jr., Reporter of Decisions. T. PERRY LIPPITT, Marshal. HENRY CHARLES HALLAM, Jr., Librarian. 1 Attorney General Clark resigned effective January 20, 1969. 2 Mr. John N. Mitchell, of New York, was nominated to be Attorney General by President Nixon on January 20, 1969. The nomination was confirmed by the Senate on January 20, 1969; he was commissioned on January 21, 1969; and took the oath of office on January 22, 1969. He was presented to the Court on February 24, 1969. (See post, p. v.) in SUPREME COURT OF THE UNITED STATES. Allotment of Justices. It is 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, Abe Fortas, 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, Thurgood Marshall, Associate Justice. For the Eighth Circuit, Byron R. White, Associate Justice. For the Ninth Circuit, William O. Douglas, Associate Justice. For the Tenth Circuit, Byron R. White, Associate Justice. October 9, 1967. (For next previous allotment, see 382 U. S., p. v.) IV PRESENTATION OF THE ATTORNEY GENERAL. Supreme Court of the United States. MONDAY, FEBRUARY 2 4, 1969. Present: Mr. Chief Justice Warren, Mr. Justice Black, Mr. Justice Douglas, Mr. Justice Harlan, Mr. Justice Brennan, Mr. Justice Stewart, Mr. Justice White, Mr. Justice Fortas, and Mr. Justice Marshall. Mr. Solicitor General Griswold presented the Honorable John N. Mitchell, Attorney General of the United States. The Chief Justice said: Mr. Attorney General, the Court welcomes you to the performance of the important duties which devolve upon you as the chief law officer of the Government, and as an officer of this Court. Your commission will be recorded with the Clerk. TABLE OF CASES REPORTED Note: All undesignated references herein to the United States Code are to the 1964 edition. Cases reported before page 801 are those decided with opinions of the Court or decisions per curiam. Cases reported on page 801 et seq. are those in which orders were entered. Page Aberdeen & Rockfish R. Co.; B. &. 0. R. Co. v..... 87,1009,1124 Aberdeen & Rockfish R. Co.; Interstate Com. Comm’n v.... 87 Abinoja v. Immigration and Naturalization Service.......... 828 Abramson v. Colonial Oil Co................................ 831 Accident Index Bureau v. Male.............................. 530 Acree v. Air Line Pilots Assn.............................. 852 Adams v. Beto............................................. 1056 Adams v. Clerk, Delaware County Court...................... 993 Adams; Fair v......................................... 893,1010 Adams; Sutton v.................................... 404,1124 Addison Farmers Mutual Insurance Co.; Elden v.............. 960 Adkins; Lear, Inc. v...................................... 812 Adkins Transfer Co. v. Dornbos............................ 322 Adult Parole Authority of Ohio; Pearson v................. 1075 Aetna Casualty & Surety Co.; Rodrigue v............... 932,1114 Aetna Casualty & Surety Co.; Scarselletti v................ 899 Agosto v. Alaska........................................... 861 Aguiar v. California....................................... 970 A. H. Emery Co.; Marcan Products Corp, v................... 835 Air India v. Hoffman....................................... 924 Air Line Pilots Assn.; Acree v............................. 852 A. J. Industries v. United States.......................... 833 Akin v. Board of Education of Riverside School Dist...... 1041 Akron Mayor ; Hunter v..................................... 385 Alabama; Argo v........................................... 1068 Alabama; Bell v............................................ 969 Alabama; Boykin v...................................... 820,931 Alabama; Carroll v......................................... 928 Alabama; Crawford v....................................... 1099 Alabama; Dooley v.......................................... 996 VII VIII TABLE OF CASES REPORTED. Page Alabama; Dunbar-Stanley Studios v................... 537,818 Alabama; Elliott v................................... 1041 Alabama; Garrison v.................................. 1051 Alabama; Guenther v................................. 1107 Alabama; Taylor v................................... 1072,1102 Alabama; Williams v.................................. 1109 Alabama Electric Cooperative; Alabama Power Co. v........ 1000 Alabama Power Co. v. Alabama Electric Cooperative........ 1000 Alabama Revenue Commissioner; Hornbeak v.................... 9 Alabama School & College Auth.; Ala. Teachers Assn. v.... 400 Alabama Secretary of State; Hadnott v............. 815,904,996 Alabama State Teachers Assn. v. Alabama School Auth...... 400 Alaska; Agosto v........................................ 861 Alaska; Fajeriak v...................................... 881 Alaska; Fuller v..................................... 80,992 Alaska; Gaff ord v..................................... 1120 Alaska; Knaub v........................................ 1039 Alaska v. Operating Engineers......................... 405, 1112 Alaska; Scott v........................................ 1082 Alaska; Stevens v...................................... 1039 Alaway v. United States............................... 985,1037 Alcoa Steamship Co. v. Charles Ferran & Co................ 836 Aldabe v. Aldabe......................................... 1042 Alexander; International Terminal Operating Co. v........ 1064 Alexander v. Kaess.......................................... 973 Alexander v. Morrison-Knudsen Co......................... 1063 Allen; Evans v.............................................. 922 Allen v. State Board of Elections........................... 544 Allied Air Freight; Pan American World Airways v......... 846 Allied Finance Co. of Casa View; Swinford v............... 923 Allied Van Lines; Jarboe Bros. Storage Warehouse v....... 1020 Allison v. Nelson......................................... 817 Allison v. Wainwright..................................... 946 Alloway v. Eyman......................................... 1011 Almeida v. Rundle......................................... 863 Alobaidi v. Texas......................................... 943 Alvarez v. Nebraska....................................... 823 Amalgamated. For labor union, see name of trade. Amarando; Mercer v......................................... 1104 Amarillo v. Eakens......................................... 1051 Amell v. United States.................................... 852 American Airlines; Hempstead v........................... 1017 American Can Co.; Kenney v................................. 1119 TABLE OF CASES REPORTED. ix Page American Federation of Musicians v. Carroll............... 902 American Federation of Musicians; Carroll v............... 902 American Finishing Co. v. Labor Board..................... 829 American Guarantee & Liability Insurance Co.; Glona v... 898 American Life & Accident Insurance Co. v. Labor Board... 913 American Mfg. Co. v. Heald Machine Co.................... 824 American Nat. Bk. & Tr. Co.; Bruns, Nordeman & Co. v.... 855 American Optical Co.; Rayex Corp, v....................... 835 American Pipe & Construction Co. v. California........... 842 American Pipe & Construction Co. v. Pence................ 817 American Soc. of Travel Agents v. Pan Am. World Airways.. 957 American-West African Line; Lavino Shipping Co. v....... 978 Amos; Hadnott v................................... 815,904,996 AMP Inc. v. Cohen......................................... 825 An Article of Drug . . . Bacto-Unidisk; United States v.. 911,972 Ancrum v. United States................................... 879 Andersen v. Florida........................................ 22 Anderson v. Empire Seafoods, Inc.......................... 983 Anderson v. Oklahoma..................................... 1017 Anderson v. Texas......................................... 887 Anderson v. United States................................. 817 Anderten v. Erickson................................ 1041, 1113 Anderten v. Warden.................................... 816,992 Andrau, In re Succession of.............................. 1016 Andrews v. Betancourt..................................... 892 Angeleri v. New Jersey.................................... 951 Angelini; United States v................................. 949 Appellate Division of the Supreme Court; Sarisohn v..... 1116 Architectural Models v. Neklason.......................... 999 Architectural Models v. Scale Models Unlimited............ 999 Archuleta v. Turner...................................... 1011 Arey v. Brown............................................ 1103 Argo v. Alabama.......................................... 1068 Argo v. Simpson.......................................... 1043 Argonaut Savings & Loan Assn. v. Federal Deposit Ins. Corp. 839 Arizona; Benson v......................................... 954 Arizona; Spencer v....................................... 1070 Arizona; Veres v......................................... 1014 Arizona ex rel. Eyman; White v.......................... 1121 Arkansas; Epperson v..................................... 97 Arkansas; Harris v....................................... 941 Arkansas; Moore v....................................... 1063 Arkansas; Owen v......................................... 816 X TABLE OF CASES REPORTED. Page Arkansas A. & M. College Board of Trustees v. Davis....... 962 Arkansas ex rel. Davis; Hammond v........................... 839 Arkansas Valley G & T, Inc. v. Federal Power Comm'n....... 857 Armement Deppe, S. A. v. United States..................... 1094 Arminan; Confederation Life Assn, v......................... 980 Arnold v. Arnold........................................... 1064 Arnold v. Hendrick......................................... 1033 Arnold v. Illinois.......................................... 917 Arnold Constable Corp. v. Eudowood Shopping Center.... 979,1045 Arsenault v. Massachusetts.................................... 5 Arthur v. Virginia.......................................... 215 Aschkar & Co. v. Kamen & Co................................. 801 Ashbrook; Krebs v.......................................... 1026 Ashby v. Virginia.......................................... 1111 Ashe v. Swenson............................................ 1115 Associates Discount Corp.; Catalanotto v.................... 989 Association. For labor union, see name of trade. Association on Broadcasting Standards v. FCC................ 914 Atchison, T. & S. F. R. Co.; Choctaw Nation v......... 922,1048 Atchison, T. & S. F. R. Co.; Owens v........................ 855 Atchison, T. & S. F. R. Co. v. United States................ 214 Atlantic Ocean Products v. Leth............................. 127 Attocknie v. Udall.......................................... 833 Attorney General; Boyd v............................... 316, 1112 Attorney General; Carter v................................. 1115 Attorney General; Cavagnaro v............................... 903 Attorney General v. Gabriel............................ 256,1112 Attorney General; McKinney v............................ 1098 Attorney General; Paulekas v........... 903,921,995,1037,1113 Attorney General; Quarles v............................. 1060 Attorney General; Sobell v............................... 940 Attorney General; Stuckey v.............................. 943 Attorney General of California v. Gilmore................ 1092 Attorney General of Michigan; Younglove v................. 883 Attorney General of Mississippi; Bunton v................. 544 Attorney General of Mississippi; Fairley v................ 544 Attorney General of New York; N. Y. C. R. Co. v......... 536 Attorney General of Oregon; Ivancie v.................... 1018 Auburn v. United States.................................... 1077 Augenblick; United States v.................................. 348 Austin v. Webster............................................ 214 Automobile Workers v. Labor Board............................ 831 Avella v. United States...................................... 837 TABLE OF CASES REPORTED. XI Page Avent v. Newark Housing Authority.......................... 870 Avery; Johnson v................................... 483,909,973 Avery7; Morton v........................................... 892 Backer v. Rockefeller...................................... 404 Bacto-Unidisk; United States v......................... 911,972 Baggett Transportation Co. v. Hughes Transportation, Inc... 936 Bailey; MacDougall v....................................... 847 Bailey v. New York........................................ 1029 Bailey’s Bakery v. Continental Baking Co.................. 1086 Baines v. McGrath......................................... 1108 Baker v. Craven............................................ 888 Baker; Frederick v......................................... 893 Baker v. Michigan.......................................... 953 Baker v. United States................................. 836,875 Baker National Bank v. Henderson........................... 530 Baldi; Freed v............................................. 317 Baldwin-Lima-Hamilton Corp. v. Federal Trade Comm’n.... 829 Ball v. Florida........................................... 1020 Ball v. Illinois............................................. 864 Ball v. Russell.............................................. 887 Baltimore County Welfare Board; Palmisano v.................. 853 Baltimore & Ohio R. Co. v. Aberdeen & R. R. Co.... 87, 1009,1124 Banco Credito y Ahorro Ponceno v. Labor Board.............. 832 Bandy v. United States................................ 1004,1006 Bank of Nova Scotia; Trujillo-M v.......................... 982 Bank of Southwest National Assn. v. Siegler............... 1016 Banks v. California............................... 912,931,1047 Banks v. Craven......................................... 862 Banks v. Pennsylvania................................... 895 Banks; Sims v.............................................. 801 Bankston v. Pennsylvania............................... 1100 Baranow; Gibraltar Factors Corp, v...................... 837 Baratta v. United States.............................. 939,1045 “Barbary Coast” v. Dept, of Alcoholic Bev. Control of Calif.. 855 Barenfanger v. Louis....................................... 935 Barenfanger Construction Co. v. Louis...................... 935 Barfield v. Beto........................................... 888 Barnes v. Texas........................................... 1115 Barnes v. United States................................... 1016 Barofsky v. General Electric Corp....................... 1031 Barr v. Chatman............................................ 998 Barrett; Hirschfield v.................................... 1062 Barringer v. United States................................ 1057 XII TABLE OF CASES REPORTED. Page Barrio v. California...................................... 872 Barron v. Florida........................................ 1001 Bartone v. United States................................. 1027 Bartsch v. Metro-Goldwyn-Mayer............................ 826 Baskin v. Tourlentes..................................... 1038 Bassick Co. v. Blake...................................... 828 Bates v. McMann.......................................... 1103 Bates v. Nelson....................................... 16,1008 Batsell v. United States................................. 1094 Bauch v. New York City.................................... 834 Bauerlien v. Warden...................................... 1031 Bauman v. Bauman.......................................... 987 Baxter Laboratories; Corn Products Co. v.................. 979 Beal v. United States.................................... 1084 Beale v. Virginia........................................ 1123 Bean v. Minnesota........................................ 1003 Bearden v. United States................................. 1111 Beardsley v. United States............................... 1057 Beasley v. Me Faddin...................................... 842 Beaty v. M. S. Steel Co.................................. 1049 Beaver v. United States.................................. 1003 Becker v. Virginia........................................ 528 Belcher v. Hallows....................................... 1076 Belk v. North Carolina.................................... 880 Bell v. Alabama........................................... 969 Bell v. Florida........................................... 928 Bell; Sanders v........................................... 909 Belli; Orlando Daily Newspapers v......................... 825 Beltowski v. Minnesota.......................... 988,1045,1113 Benbrook Water & Sewer Authority; Johnson v............... 836 Bennett v. Cottingham......................................317 Bennett; Johnson v........................................ 253 Bennett; Larson v........................................ 1036 Bennett v. Mississippi.................................. 320 Bennett v. North Carolina........................... 1006,1060 Bennett v. Stump....................................... 1001 Benson v. Arizona......................................... 954 Benson v. Carter......................................... 1080 Benton v. Maryland..................................... 994 Berberian v. Pennsylvania................................. 961 Bercera-Soto v. United States............................. 899 Berger v. California...................................... 314 Berke v. MacLaughlin...................................... 802 TABLE OF CASES REPORTED. XIII Page Berlin v. Berlin.............................................. 840 Bernal v. California........................................ 865 Berner Co.; Continental Nut Co. v............................. 923 Bernier v. Massachusetts................................... 1058 Berry v. Fitzharris........................................ 1011 Berry v. New York.......................................... 1103 Berube v. United States.................................... 1104 Bessemer & L. E. R. Co.; Co-Operative Leg. Com. v......... 959 Bessemer & L. E. R. Co.; Pennsylvania Comm’n v......... 959,1045 Betancourt; Andrews v......................................... 892 Beto; Adams v........................................... 1056 Beto; Barfield v........................................... 888 Beto; Brown v............................................ 948 Beto; Catlett v........................................... 1040 Beto; Crawford v........................................... 862 Beto; Daugherty v.......................................... 986 Beto; Hill v.............................................. 1007 Beto; Johnson v........................................ 868,992 Beto; Muniz v............................................ 22, 988 Beto; Saldana v............................................. 954 Beto; Silva v............................................... 903 Beto; Siwakowski v.......................................... 882 Beto; Smith v.............................................. 1119 Beto v. Spencer............................................ 1092 Beto; Stubblefield v....................................... 1072 Beto; Trotter v............................................. 878 Beto; Tyler v.............................................. 1030 Beto; Zerchausky v......................................... 1004 Beverly v. Nelson.......................................... 1070 Bickman v. Pate............................................ 1042 Biddle v. Bowser......................................... 10, 971 Biggs v. Campbell....................................... 816,900 Biggs v. Does............................................... 900 Biggs v. Justices of the Supreme Court of Illinois......... 1011 Biggs v. United States...................................... 900 Biglow v. Wainwright........................................ 894 Big Run Coal & Clay Co. v. Labor Board...................... 824 Bingler v. Johnson.......................................... 949 Bintliff; Wyndham Associates v.............................. 977 Birkholz; Dirks v........................................... 820 Birrell v. Herlands........................................ 1033 Bishop v. Ciccone.......................................... 1075 Bishop; Maxwell v...................................... 997,1074 XIV TABLE OF CASES REPORTED. Page Bishop v. United States.................................... 870 Blabon v. Nelson............................................ 20 Black v. California........................................ 891 Blackbum v. United States................................ 1022 Black & Decker Mfg. Co. v. Porter-Cable Machine Co....... 1063 Blackman v. Pennsylvania................................... 883 Blackwelder v. North Carolina.............................. 877 Blackwell; Hendrix v..................................... 1047 Blackwell; Jones v........................................ 815 Blackwell; Lacaze v....................................... 816 Blackwell; Pippin v...................................... 1011 Blackwell; Wood v........................................ 1060 Blackwell; Yant v........................................ 1033 Blake; Bassick Co. v....................................... 828 Blakey v. United States................................... 1034 Blanchey v. Washington..................................... 955 Blasius v. United States.............................. 950,1008 Blaylock v. United States.................................. 879 Bleisch; Hall v........................................... 1083 Bloss v. Michigan.......................................... 973 Blumner v. United States................................... 871 Blunt v. Sheehy........................................... 1006 Boag v. Craven............................................. 887 Board of Comm’rs, Port of New Orleans; Gypsum, Ltd. v.... 938 Board of Education of Riverside School Dist.; Akin v..... 1041 Board of Forestry of Oregon; Morgan v.................... 529 Board of Regents of U. of Wash.; Calvary Church v........ 960 Board of Trade of Chicago; Rosee v.................... 1055,1124 Board of Trustees of Arkansas A. & M. College v. Davis... 962 Boeckenhaupt v. United States.............................. 896 Bogart v. California...................................... 1101 Boggs v. California........................................ 871 Bohren Transport Co.; Corrigan v.......................... 1088 Bon Air Hotel, Inc.; Time, Inc. v...................... 815, 859 Bond; Noyd v.............................................. 1048 Bond v. United States..................................... 1035 Bonhiver; Exchange National Bank of Chicago v............. 1083 Bonicamp v. United States................................. 1121 Boone v. Fitzberger....................................... 1075 Boone v. Maryland...................................... 872,873 Boone v. Moylan............................................ 877 Borden Co. v. National Dairy Products Corp................. 953 Borough. See name of borough. TABLE OF CASES REPORTED. xv Page Boslow; McCloskey v................................... 1035 Bostick v. Craven..................................... 1071 Bostick v. United States.............................. 1068 Boston v. California................................... 887 Boswell; Morse v..................................... 802,1052 Boulden v. Holman.................................... 822,930 Boulder; Snyder v...................................... 1051 Bounds v. Crawford..................................... 76 Bowman v. First National Bank of Harrisonburg............. 891 Bowman; Tanksley v....................................... 1100 Bowser; Biddle v....................................... 10,971 Boyd v. California....................................... 1070 Boyd v. Clark........................................ 316,1112 Boyd v. Texas............................................. 863 Boyden v. Curtis......................................... 1036 Boyers; Swanson v......................................... 988 Boykin v. Alabama..................................... 820,931 Boykin v. United States.................................. 1032 Boyle v. Landry........................................... 974 Boyle; Landry v........................................... 220 Boyle v. United States............................... 901,1089 Boynton v. Ohio.......................................... 1109 Bracamonte v. Field...................................... 1036 Bradley v. Florida....................................... 1029 Bradshaw v. Island Creek Coal Co.......................... 991 Bradwell v. United States................................. 867 Brady; Machinists v...................................... 1048 Brady v. Trans World Airlines............................ 1048 Brady; Trans World Airlines v............................ 1048 Brady v. United States.................................... 912 Brainard; DeBacker v..................................... 1076 Brake v. Shoemaker........................................ 936 Brakefield v. McFarland................................... 913 Brandenburg v. Ohio....................................... 948 Brandon v. New York....................................... 991 Breaux v. G. H. Leidenheimer Co........................... 876 Bredehoeft; Cohen v...................................... 1086 Breeland v. United States................................. 847 Brennan v. United States.................................. 839 Brenner; Ebbert v......................................... 926 Brent v. White........................................... 1123 Brewer; Durham v.......................................... 879 Brewer v. Washington...................................... 970 XVI TABLE OF CASES REPORTED. Page Bricklayers, Masons & Plasterers v. Labor Board............ 832 Bridges; Swanson v......................................... 894 Brierley; Butler v.......................................... 15 Brierley; Manning v........................................ 882 Brinson v. Comstock........................................ 945 Brock; Inter National Bank of Miami v..................... 1118 Brocker v. Brocker........................................ 1081 Brockington v. Rhodes..................................... 1078 Broderick v. Indiana....................................... 872 Brooks v. Buder............................................ 990 Brotherhood. For labor union, see name of trade. Brown; Arey v............................................. 1103 Brown v. Beto....................................... 948 Brown v. California............................ 877,1043 Brown v. Coiner..................................... 322 Brown v. Commissioner.............................. 1065 Brown v. Craven............................................ 916 Brown; Cribb v............................................. 222 Brown; Fox v.............................................. 1114 Brown v. Illinois......................................... 1121 Brown; Madison v........................................... 970 Brown v. New York..................................... 888,1051 Brown v. Resor.............................................. 10 Brown; Southall v......................................... 1018 Brown; Southall Realty Co. v............................ 1018 Brown; South Carolina Board of Education v................. 222 Brown v. Texas............................................ 1089 Brown v. United States.................................... 1099 Brown v. Virginia......................................... 1122 Brown v. Wainwright....................................... 1101 Bruce; Ratcliff v...................................... 848,956 Bruce; Starrett v.......................................... 971 Bruce Trucking Co.; Starrett v............................. 971 Brundage v. United States................................. 1077 Bruns, Nordeman & Co. v. American Nat. Bk. & Tr. Co...... 855 Brunwasser v. Suave....................................... 1083 Bryant v. Craven.......................................... 1011 Bryant v. Illinois........................................ 1015 Bryson v. United States................................... 1079 Buchanan v. Burke.......................................... 947 Buchanan; Rhodes v......................................... 839 Buckman;. Dooner v................................... 1033,1112 Buckner Corp. v. Labor Board.............................. 1084 TABLE OF CASES REPORTED. XVII Page Buder; Brooks v....................................... 990 Buettner v. Virginia................................ 1118 Buick v. United States.............................. 1068 Bullard v. Sheehy....................................... 1120 Bumpus v. Massachusetts.............................. 1034,1112 Bundy v. United States.................................. 968 Bunge Corp.; London & Overseas Insurance Co. v........... 952 Bunton v. Patterson...................................... 544 Burchfield v. New York.................................. 1041 Burchil v. Wainwright.................................... 881 Bureau of Compensation, Dept, of Labor; Teplitsky v..... 943 Bureau of Employees’ Compensation; Lynch v............ 1070 Bureau of Employees’ Compensation; Welch v........... 1049 Bureau of Land Management; Dredge Corp, v............ 1066 Burgess v. United States................................ 1023 Burke; Buchanan v........................................ 947 Burke; Cammann v........................................ 1039 Burke; Cox v............................................. 958 Burke; Creighbaum v.................................. 955,1046 Burke; Kanieski v........................................ 816 Burke v. Langlois....................................... 1110 Burke; Schmitt v........................................ 1011 Burke; Schwamb v.................................... 1011 Burke; Taylor v.......................................... 816 Burke; Van Ermen v................................... 1004 Burkhart v. U. S. Court of Appeals...................... 1076 Burnell Estate v. Colorado............................ 13,992 Burns : Cunard Steamship Co. w.......................... 1117 Bums v. New Mexico....................................... 841 Bums v. Turner....................................... 873,947 Burns v. United States........................... 875,972,1095 Burnside Shipping Co.; Federal Marine Terminals v....... 820 Burton v. United States................................. 1089 Buscaglia; Liberty National Bank A Trust Co. v........... 929 Bush v. United States.................................... 532 Butcher v. Mississippi.................................. 1055 Butenko v. United States................................. 814 Butler v. Brierley........................................ 15 Buxbom v. California..................................... 934 B & W, Inc.; Pathfinder Co. v........................ 935,1060 B & W, Inc.; Swofford v.............................. 935,1060 Byczynski v. New York Central Development Corp.......... 1084 Byes v. United States................................... 1121 320-583 0 - 69 -2 XVIII TABLE OF CASES REPORTED. Page Bynacker v. McMichael........................................... 871 Byrd v. Lane................................................... 1020 Byrd v. Nelson.................................................. 816 Cabrera v. Vermont.............................................. 968 Cachoian v. United States................................. 1044,1113 Cagnolatti v. California Adult Authority........................ 884 Cain v. State Beverage Department of Florida................... 1025 Cain’s Bar v. State Beverage Department of Florida............ 1025 Cajo Trading, Inc.; United States v........................... 827 Calbeck; Nicholson v............................................ 903 Caldwell v. Coiner.............................................. 969 California; Aguiar v............................................ 970 California ; American Pipe & Construction Co. v................. 842 California; Banks v.................................... 912,931,1047 California; Barrio v............................................ 872 California; Berger v............................................ 314 California; Bernal v............................................ 865 California; Black v............................................. 891 California; Bogart v........................................... 1101 California; Boggs v............................................. 871 California; Boston v............................................ 887 California; Boyd v............................................. 1070 California; Brown v........................................ 877,1043 California; Buxbom v............................................ 934 California; Californians for Alternative in November v........ 1 California; Canard v............................................ 912 California; Carlin v........................................... 1037 California; Cassasa v.......................................... 1066 California; Castillo v......................................... 1098 California; Chacon v............................................ 880 California; Chandler v...................................... 1043 California; Chastain v...................................... 1100 California; Chimel v....................................... 958,1011 California; Clemmons v..................................... 1101 California; Cole v.............................................. 882 California; Connor v............................................ 838 California; Conway v............................................ 990 California v. Copeland.......................................... 967 California; Cottlo v............................................ 944 California; Davis v......................................... 882,890 California; DuVall v........................................... 1070 California; Eaton v............................................. 830 California; Edwards v........................................... 895 California; Erb v.............................................. 1056 TABLE OF CASES REPORTED. xix Page California; Failla v....................................... 926,1045 California; Fitzwater v........................................ 953 California; Fletcher v..................................... 916,992 California; Flores v.......................................... 1057 California; Frazier v.......................................... 955 California; Gardner v.......................................... 367 California; Gates v........................................... 1102 California; George v........................................... 941 California; Gonzales v........................................ 1055 California; Grant v........................................... 1044 California; Gutkowsky v..................................... 873 California; Harrington v............................. 949,1010,1075 California; Henderson v........................................ 888 California; Hill v........................................ 985,1038 California; Hogan v............................................ 990 California; Horn v............................................ 1100 California; Horton v....................................... 1070 California; Hoskins v........................................ 891 California; Howard v........................................ 941 California; Hull v............................................. 1109 California; Huskey v....................................... 1101 California; Hussar v....................................... 1108 California; Jackson v................................ 872,879,928 California; Jaimez v....................................... 1106 California v. Johnson.......................................... 1051 California; Johnson v............................. 861,945,991,1008 California; Kast v.................................... 1056 California; Kendrick v................................. 866 California; Krug v.................................... 1029 California; Latta v.................................... 870 California; Laudermilk v............................. 861 California; Lee v...................................... 988 California; Limon v..................................... 866 California; Linzy v................................... 1121 California; Lopez v.................................... 1104 California; Magee v................................... 1040 California; Malena v................................... 931 California; Martin v.................................. 1039 California; McDaniels v.............................. 893 California; Mendez v............................. 1007,1031,1060 California; Miller v................................... 970 California; Minhinnick v............................. 874 California; Mixon v................................... 1028 California; Morales v............................. 860,988,1104 XX TABLE OF CASES REPORTED. Page California; Muszalski v......................................... 1059 California; Nash v............................................... 944 California; O’Kelley v........................................... 899 California; Olvera v............................................. 969 California; Ortiz v.............................................. 882 California; Parker v............................................. 938 California; Perez v.......................................... 812,853 California; Pierce v............................................. 917 California; Ragen v............................................. 1000 California; Ray v............................................ 864,917 California; Reid v............................................... 885 California; Robinson v........................................... 988 California; Roy v.................................................. 869 California; Salcido v............................................. 1102 California; Schlette v........................................ 969,1109 California v. Sesslin............................................. 1080 California; Smith v................................................ 955 California; Smoak v................................................ 894 California; Stockman v.................................. 875 California v. Superior Court of California......................... 967 California; Thomas v............................................. 874 California; Thompson v....................................... 1070 California; Torres v............................................. 862 California; Valdez v............................................. 918 California; Valdivia v........................................... 955 California; Valenzuela v........................................ 943 California; Walker v............................................ 1071 California; Wallace v............................................ 968 California; Waller v............................................ 1039 California; Watroba v............................................ 864 California; Williams v........................................... 892 California; Williamson v...................................... 1042 California; Wilson v............................................. 817 California; Wood v............................................. 928 California; Wright v............................................. 896 California; Young v............................................. 893 California; Yount v............................................. 872 California; Zamora v.............................................. 1030 California Adult Authority; Cagnolatti v........................... 884 California Adult Authority; Conway v.............................. 1062 California Adult Authority; Gilmore v.............................. 916 California Adult Authority; Smith v................................ 927 California Attorney General v. Gilmore............................ 1092 TABLE OF CASES REPORTED. xxi Page California Conservation Center Supt.; Williams v.......... 1075 California Court of Appeal; Cross v........................ 128 California Dept, of Ale. Bev. Control; Cohon v............... 7 California Dept, of Ale. Bev. Control; Meacham v........... 855 California Dept, of Ale. Bev. Control; Pennwick Corp, v.. 19 California Dept, of Ale. Bev. Control; Samson Co. v...... 11,12 California Dept, of Ale. Bev. Control; Westside Co. v.... 17 California Dept, of Ale. Bev. Control; Westside Mkt. v... 993 California Dept, of Corrections; Lewis v.................. 1037 California Medical Facility Superintendent; Davis v...... 884 Californians for Alternative in November v. California... 1 California Secretary of State; Cleaver v................... 810 California Superior Court; Younger v...................... 1001 Call v. United States..................................... 1022 Calloway v. United States.................................. 987 Calvary Bible Presbyterian Church v. Board of Regents.... 960 Cammann v. Burke.......................................... 1039 Camp v. Dickinson......................................... 1079 Camp; Minichello v..................................... 849, 992 Campbell; Biggs v...................................... 816,900 Campbell; Langemyr v....................................... 934 Campbell v. Michigan...................................... 1103 Campbell; Tom Carpentry Construction Co. v................. 934 Campbell v. United States............................. 834,1121 Campbell; Western Seed Production Corp, v................. 1093 Canal Insurance Co.; Vance Trucking Co. v.................. 845 Canard v. California....................................... 912 Cancel-Miranda v. United States........................... 1101 Cannery Workers of the Pacific v. Labor Board............. 1025 Cannon v. New York........................................ 1122 Cantrell v. Kansas......................................... 944 Cantrell v. United States.................................. 970 Capehart; Irving v......................................... 801 Caperci v. Huntoon......................................... 940 Cappabianca v. United States............................... 935 Caraway; Lynn v............................................ 951 Carberry; Pacheco v........................................ 882 Carcerano v. Gladden....................................... 898 Card v. Kropp.............................................. 816 Carder v. Warden........................................... 943 Cardinale v. Louisiana..................................... 959 Caribbean Mills, Inc.; Kramer v............................ 819 Carlin v. California...................................... 1037 XXII TABLE OF CASES REPORTED. Page Carlino v. United States.................................... 872 Carlton v. United States................................... 1030 Cannae Corp.; McKean v...................................... 885 Carolina Pipeline Co. v. York County Nat. Gas Authority.... 824 Carr v. Montgomery County Board of Education............... 1116 Carroll v. Alabama.......................................... 928 Carroll v. American Federation of Musicians................. 902 Carroll; American Federation of Musicians v................ 902 Carroll v. President & Comm’rs of Princess Anne............. 175 Carroll; Senchal v.......................................... 979 Carroll v. Texas............................................ 899 Carson Pirie Scott & Co. v. Factor.......................... 834 Carter; Benson v........................................... 1080 Carter v. Jury Comm’n of Greene County.................... 1115 Carter v. Mitchell........................................ 1115 Carter v. Texas........................................... 1042 Carter v. United States................................... 1103 Carver v. Commissioner..................................... 1022 Casias v. Colorado........................................ 1108 Cassasa v. California..................................... 1066 Cassidy v. Riddles......................................... 893 Castillo v. California..................................... 1098 Catalanotto v. Associates Discount Corp...................... 989 Catlett v. Beto........................................... 1040 Cavagnaro v. Clark........................................... 903 Cavitt v. Nebraska......................................... 1078 CCI Corp.; Steelworkers v............................... 1019 Cedar Rapids & Iowa City R. Co.; Crane v................... 1047 Central Bank & Trust Co. v. United States................... 901 Central Gulf Steamship Corp.; McCorpen v..................... 894 Central R. Co. of New Jersey; Clemens v.................... 1023 Cepeda v. Cowles Magazines & Broadcasting................... 840 Cerda v. United States................................. 872,1008 Chabolla-Delgado v. Immigration and Naturalization Service. 865 Chacon v. California........................................ 880 Chambers; Norman v......................................... 1037 Chandler v. California..................................... 1043 Chandler v. Turner.......................................... 816 Charles v. United States.................................... 897 Charles Ferran & Co.; Alcoa Steamship Co. v................. 836 Chastain v. California..................................... 1100 Chatman; Barr v............................................. 998 Chattanooga Gas Co.; Southern Blowpipe & Roofing Co. v... 844 Chemical Tank Lines v. Holstine.............................. 78 TABLE OF CASES REPORTED. XXIII Page Chen v. Foley................................................. 838 Cheng Fu Sheng v. Immigration and Naturalization Service.. 1054 Chesapeake & Ohio R. Co.; Crouch v............................ 845 Chesapeake & Ohio R. Co.; Friedman v......................... 1016 Chesnut v. Utah.............................................. 1107 Chicago; Ditto v............................................. 1028 Chicago Board of Trade; Rosee v...................... 1055,1124 Chicago, B. & Q. R. Co. v. State Tax Comm’n of Missouri.... 1092 Chicago Civil Service Comm’n; Odes v................... 945,1008 Chicago Housing Authority; Stewart v.......................... 482 Chicago Mayor; Skolnick v..................................... 993 Chicago, M., St. P. & P. R. Co.; Locomotive Firemen v.... 1022 Chicago Park District; Lyons v................................ 939 Chicago, R. I. & P. R. Co.; Hardin v................... 129,1045 Chicago, R. I. & P. R. Co.; Locomotive Firemen v....... 129,1045 Chief Judge, U. S. District Court; Biggs v........... 900 Chief Judge, U. S. District Court; Hilliard v........ 970 Chief Judge, U. S. District Court; Standard Fruit Co. v.... 974 Chief Judge, U. S. District Court; Valenti v........... 929,957 Childress v. Wainwright...................................... 1011 Chimel v. California................................... 958,1011 Ching-Szu Chen v. Foley....................................... 838 Chinowith v. Insurance Co. of North America................... 990 Choctaw Nation v. Atchison, T. & S. F. R. Co........... 922,1048 Christman v. Lesher........................................... 885 Christofferson v. Washington................................. 1090 Chuen v. Esperdy....................................... 858, 956 Chuning v. Kansas............................................ 1069 Church v. United States....................................... 870 Church of Christ v. National Plan, Inc........................ 913 Church of Christ; National Plan, Inc. v....................... 913 Church of God at Sharpsburg; Md. & Va. Eldership v........ 528 Ciccone; Bishop v............................................ 1075 Cifarelli v. United States.................................... 987 Cincinnati Gas & Electric Co. v. Federal Power Comm’n..... 826 Cindle v. Oklahoma............................................ 862 Cinnamon v. Kentucky.......................................... 900 Cipriano v. Houma............................................ 1061 Circuit Court of Hillsborough County Clerk; Fair v........ 931 Circuit Court of Monroe County; Hashfield v................... 895 Cities Service Co.; First National Bank of Arizona v...... 901 Citizen Publishing Co. v. United States................... 911,995 City. See name of city. Civil Aeronautics Board v. Pan American World Airways.... 956 XXIV TABLE OF CASES REPORTED. Page Civil Service Comm’n Chairman; Levy v..................... 897 Civil Service Comm’n Chairman; Murray v. 1041 Civil Service Comm’n of Chicago; Odes v. 945,1008 Civil Service Comm’n of Cleveland; Robinson v..................... 898 Civil Service Comm’n of Pittsburgh; Stanek v..................... 1120 Clark; Boyd v................................................ 316,1112 Clark; Cavagnaro v................................................ 903 Clark v. Gabriel............................................. 256,1112 Clark v. Great American Insurance Co.............................. 825 Clark; Irwin v................................................... 1062 Clark; Paulekas v............................... 903,921,995,1037,1113 Clark v. Payne.................................................... 903 Clark; Quarles v................................................. 1060 Clark; Stuckey v.................................................. 943 Clark v. United States........................................... 873,1036 Clark Co.; Hogan v............................................... 961 Clarke v. Wisconsin............................................... 861 Clay v. United States............................................. 926 Cleaver v. Jordan................................................. 810 Clemens v. Central R. Co. of New Jersey.......................... 1023 Clemmons v. California........................................... 1101 Clerk, Delaware County Court; Adams v......................... 993 Clerk of Cook County; Hirschfield v............................. 1062 Clerk of Quarter Sessions Court; Mercer v........................ 1104 Cleveland; Raffa v................................................ 927 Cleveland Civil Service Comm’n; Robinson v........................ 898 Clifford v. Faulkner............................................. 1046 Clifford; McArthur v......................................... 810,1002 Clifford; Remenyi v............................................... 853 Clifton v. United States......................................... 1121 Coastwise Packet Co. v. United States............................. 937 Cobb v. Johns.................................................... 1087 Cobb v. United States............................................. 924 Coburn; Gas Service Co. v......................................... 911 Coca-Cola Bottling Co. v. United States.......................... 962 Cochran v. Morris................................................. 934 Cochran v. United States........................................ 899 Coghlan v. United States.......................................... 870 Cohen; AMP Inc. v................................................. 825 Cohen v. Bredehoeft.............................................. 1086 Cohen; Gruenwald v................................................ 982 Cohen v. New York................................................. 852 Cohen; Pierce v................................................... 885 Cohen; Small v.................................................... 984 TABLE OF CASES REPORTED. XXV Page Cohen; Strickland v....................................... 1034 Cohen v. Willis........................................ 217,407 Cohon v. Kirby............................................... 7 Coiner; Brown v............................................ 322 Coiner; Caldwell v......................................... 969 Colangelo v. United States................................. 802 Colavecchio v. Ohio....................................... 1034 Colchico v. Sweigert....................................... 817 Cole v. California......................................... 882 Coleman v. Maxwell................................... 1007,1058 Coleman; Nelson v......................................... 1065 Coleman v. Ohio............................................ 945 Coles; Peyton v............................................ 849 Collins v. Commissioner.................................... 215 Collins v. Nelson.......................................... 918 Colon; Graham v............................................ 845 Colonial Oil Co.; Abramson v............................... 831 Colorado; Burnell Estate v............................. 13,992 Colorado; Casias v....................................... 1108 Colorado; Lucero v........................................ 893 Colorado; Martinez v..................................... 990 Colorado; Valley v........................................ 925 Colourpicture Publishers; Mike Roberts Color Productions v. 848 Colson v. North Carolina.................................. 1087 Combs v. Field............................................. 944 Commanding Officer; Schonbrun v........................... 1009 Commercial National Bank v. United States................. 1000 Commercial Union Assurance Co.; Trice v................... 1018 Commissioner; Brown v.................................... 1065 Commissioner; Carver v................................... 1022 Commissioner; Collins v................................... 215 Commissioner; Freeland Estate v....................... 845,956 Commissioner; Gamer v............................... 1027,1124 Commissioner; Glimco v................................... 981 Commissioner; Good-All Electric Mfg. Co. v............... 829 Commissioner; Hamilton Memorial Gardens, Inc. v................ 936 Commissioner; Kenner v................................ 841,971 Commissioner; Marks v.................................... 883 Commissioner; Pillis v................................... 883 Commissioner; Powe v..................................... 826 Commissioner; Roberts v.................................. 936 Commissioner v. Shaw-Walker Co............................. 478 Commissioner v. Sugar Daddy, Inc........................... 901 Commissioner; Talbott Estate v............................ 1022 XXVI TABLE OF CASES REPORTED. Page Commissioner; Varian Estate v.............................. 962 Commissioner; Weinberg v................................... 901 Commissioner, Dept, of Social Services of N. Y.; Snell v.. 323,813 Commissioner of Agriculture of Tennessee; Estrin v......... 318 Commissioner of Internal Revenue. See Commissioner. Commissioner of Patents ; Ebbert v......................... 926 Commissioner of Revenue for Alabama ; Hornbeak v......... 9 Committee on Admissions H“13, 18> 19, 26 Stat. 209, as 48 Stat. 74........... 453 amended........ 199,333 1934, Mar. 2, c. 38, § 1, 1898, July 1, c. 543, §2, 30 48 Stat. 362 . ... 186 Stat. 570............ 186 MaY 10> c- 277> §§ 102> 1903, Feb. 11, c. 544, §2, 351,48 Stat 680 297 32 Stat. 823, as June % e. 404 §§ 3, amended........ 199,333 12, 18, 21, 28, 1908, Apr. 22, c. 149, 48 ^tat. 881, as 35 Stat. 65, as amended.......... 453 amended.............. 156 T § ,14 ‘ ‘''''' A 45_3’544 1909, Mar. 4, c. 299, § 1, 35 i?’ c' § 605’ sn Stat. 945.... ..... 186 w 91 ? 1913' °q; ?’ ,Ci416’ § 2' 38 907 48 Stat, ills ’ 324 anJ 297 1935,July 5, c. 372, §§s, 1914> SePj 26.’ ,c- § 5’ 10> 49 Stat- 449, as 38 Stat. 717, as amended............... 357 amended.............. 223 Al]e. 14 „ «1109 1916, Aug. 25, c. 408 §1, 49 ¿tat< ¿2§0, a’ 39 Stat. 535, as amended............... 268 amended.............. 186 1935^ june 22 c. 690, § 14, 1918, Apr. 10, c. 50, §§ 1, 2, 49 stat. 1648......... 297 40 Stat. 516......... 199 1937, Aug. 26, c. 815, §201, 1919, Feb. 24, c. 18, §220, 50 Stat. 813.......... 297 40 Stat. 1057........ 297 Sept. 1, c. 896, §§ 1, 8, 1920, June 5, c. 235, § 1, 41 10, 50 Stat. 888, as Stat. 874............ 186 amended .............. 268 1921, Aug. 15, c. 64, § 316, 1938, May 28, c. 289, § 102, 42 Stat. 159......... 544 52 Stat. 447..... 297 Nov. 23, c. 136, § 220, June 21, c. 556, § 16, 42 Stat. 227......... 297 52 Stat. 821, as 1925, Feb. 26, c. 339, 43 amended............... 268 Stat. 983............ 186 §19 .............. 71 CXXI CXXII TABLE OF STATUTES CITED. Page 1940, Sept. 16, c. 720, § 10, 54 Stat. 885............... 233 1945, Mar. 9, c. 20, §§ 1, 2, 59 Stat. 33, as amended............. 453 1946, June 11, c. 324, §§ 8, 10, 60 Stat. 237.... 87 1947, June 23, c. 120, §§ 101, 201, 301, 61 Stat. 136 ............... 357 1948, June 24, c. 625, §§ 6, 10, 62 Stat. 604, as amended......... 233,256 § 12 ............ 233 1949, July 15, c. 338, §2, 63 Stat. 413.........268 July 26, c. 361, 63 Stat. 479........... 544 1952, June 27, c. 477, § 243, 66 Stat. 163, as amended............. 1054 1956, July 24, c. 669, §§ 1, 3, 6, 70 Stat. 598... 186 1958, Aug. 23, Pub. L. 85- 726, §204, 72 Stat. 731 268 1959, Sept. 23, Pub.' L.' 86^ 372, §501, 73 Stat. 654 ................ 268 1960, Sept. 15, Pub. L. 86-794, Tit. II, Art. XII, §§ 1, 3, 4, 6, 10, 15, 74 Stat. 1031... 186 1961, Sept. 4, Pub. L. 87- 195, § 604, 75 Stat. 424 199 1963, Aug. 28, Pub. L. 88- 108, 77 Stat. 132... 129 1964, July 2, Pub. L. 88- 352, §602, 78 Stat. 241 ................ 268 Aug. 20, Pub. L. 88-467, §3, 78 Stat. 565 .................. 453 1965, Aug. 6, Pub. L. 89- 110, 79 Stat. 437.. 544 §2............... 904 Sept. 9, Pub. L. 89- 174, §5, 79 Stat. 667 ................ 268 Oct. 3, Pub. L. 89-236, §11, 79 Stat. 911 ................. 1054 Page 1965, Oct. 9, Pub. L. 89-249, §§1-7, 9, 79 Stat. 969 ............... 186 1966, Oct. 15, Pub. L. 89-687, § 101, 80 Stat. 980 .......... 802,1052 1967, Mav 25, Pub. L. 90- 19, 81 Stat. 17.... 268 June 30, Pub. L. 90- 40, § 1, 81 Stat. 100............ 233,256 §6............... 802 1968, Mar. 12, Pub. L. 90- 264, § 104, 82 Stat. 43................. 186 Apr. 11, Pub. L. 90- 284, §§810, 815, 82 Stat. 73........... 385 Revised Statutes. § 1978 385 § 1979 503 U. S. Code. Title 5 (Supp. Ill), §§ 557, 706 .......... 87 Title 7, §217......... 544 Title 8 (Supp. Ill), § 1253.............. 1054 Title 9, §§ 1-14...... 145 Title 10, §§ 672, 673... 802,1052 §679 .............. 802 §§ 836, 871, 876, 1552 ........... 348 Title 10 (Supp. Ill), § 263 ......... 802,1052 Title 15, §§ 1,29....... 199,333 §45 ............... 223 §§61,62......... 199 §§ 77b, 77c, 77e, 77k, 771, 77m, 77r, 77s, 78c, 78j, 781, 78r, 78u, 78bb, 1011, 1012...... 453 § 78n.......... 453,544 § 717o ......... 268 § 717r .......... 71 Title 16, §§ 1, 17b.... 186 Title 16 (Supp. Ill), §§20-20g ........... 186 Title 18 (1940 ed.), §250 ............... 286 TABLE OF STATUTES CITED. cxxm Page Page LT. S. Code—Continued. U. S. Code—Continued. Title 18, §§ 2, 1084, Title 50 App. (Supp. 3237 ............... 963 HI), §§201-218,873,1951, §§456, 460.... 233,256 3731 ........... 286 §462 ..................... 233 § 1952 410 963 Administrative Procedure §3500 MS ........... 87 Title 18 (Supp. Ill), i.rblirttlOt A 145 § 1952 ..... ...... 286 C1y,iaI S A °f 6’ va 22 §2354........ 199 Aci'of i 2^8 ‘§§269, 355, 357, Communications Act of 531-537,541-547, Department of Housing and 551-558 ........ 297 Urban Development Act. 268 §§4401, 4411, 4412. 963 Expediting Act.................... 199 Title 28, Federal Employers’ Liability §§294, 295........ 1113 Act............................. 156 § 1252 ........... 256 Federal Trade Commission §§ 1253, 1343, 2282. 544 Act ............................ 223 § 1257 ........ 97 175 Foreign Assistance Act of §1291 ..........’ 83 1961 ........................ 199 § 1331 ...... 233,316 Hobbs Act....................... 286 §§1346 1491 348 Housing Acts of 1949, 1959. 268 § I443’ ... 233 Immigration and Nationality §§ 1915, 2242-2255. 483 T ^ct- •• ...................... 1054 Lon 400 oik Internal Revenue Code of §2241 ........ 483,815 iq54 rr-1 §o2o28/a 400,544 §§269, 355> 357> 531~ Title 28 (Supp. HI), 537, 541-547, 551- § 753 ............ 367 558 ...................... 297 §2244 ............ 122 §§4401, 4411, 4412........... 963 Title 29, Interstate Commerce Act. 87,129 §§ 101-115 ........ 175 Jencks Act...................... 348 §§ 158, 160, 171, Labor Management Relations 185 ............. 357 Act, 1947 ................... 347 Title 42, McCarran-Ferguson Act.... 453 §§ 1 302, 1401, 1441, Military Selective Service 2000d-l .......... 268 Act of 1967...... 233,256 § 1982 385 National Labor Relations § 1983 503 Act......................... 357 Title 42 (Supp. HI), National Transportation § § 1408, 1410, 3534. 268 Policy ........................ 129 § 1973 .......... 904 Natural Gas Act.................. 71 § 1973 et seq.. 544 Norris-LaGuardia Act.......... 175 Title 45, Railway Labor Act......... 324 §51 et seq.... 156 Revenue Acts of 1918, 1921, § 153 First.... 324 1934, 1936, 1937, 1938... 297 Title 47, §605......... 80 Securities Act of 1933...... 453 Title 49, Securities Exchange Act of § 15 ............. 87 1934 453,544 § 305 ........... 544 Selective Service Act of § 1324 268 1948 233 cxxiv TABLE OF STATUTES CITED. Page Page Selective Training and Serv- United States Housing Act ice Act of 1940............ 233 of 1937................... 268 Sherman Act........... 199, 333 Universal Military Training Tariff Act of 1913.......... 297 and Service Act........... 233 Tucker Act.................. 348 Vo ting Rights Act of Uniform Code of Military 1965 ................. 544,904 Justice, Arts. 36, 71, 76.. 348 Washington Metropolitan United States Arbitration Area Transit Compact... 186 Act...................... 145 Webb-Pomerene Act......... 199 (B) Constitutions and Statutes of the States and the District of Columbia. Alabama. Illinois. Acts 1965, No. 243.... 400 Rev. Stat., c. 38, § 15-5. 286 Acts 1967, No. 403 .... 400 Rev. Stat., c. 38, § 122- Code, Tit. 14, §§ 49-50, 4 483 IpO •••••••••........ ^86 Indiana. Code, Tit. 51, §569... 537 Ann. Stat. § 10-3030... 286 Arizona. Kansas Rev Stat. Ann. § 10- Stat. Ann. §21-529... 286 Rev. Stat. Ann.'(Supp. Massachusetts. jggg) Gen. Laws, c. 625, § 25. 286 §§20-143, 20-731.. 453 Mu^gam Arkansas. Comp. Laws § 750.213. 286 Laws 1907, Act 116... 129 Stat- Ann- §28.410.... 286 Laws 1913, Act 67...... 129 Minnesota. Acts 1929, Initiated Act Stat. §609.27........... 286 No. 1................. 97 Mississippi. Laws 1951, Act 253.... 129 Code §§ 2870, 3238,3260, Laws 1953, Act 130.... 129 6271-08 ................ 544 Laws 1965, Act 501.... 129 Code §§ 6798, 6799.... 97 Stat. Ann. §§ 73-704 Missouri. through 73-706, 73- Congressional Redis- tricting Acts of 1961, 73-726 through 73- 9o 730 73-7® through Rev s-tat;--§§29360; Stat? Ann. "§§'80-1627, p 30 80—1628 97 Rev. Stat. § 563.360... 410 California. Montana. Const., Art. 6, § 10... 367 Rev- Codes Ann- §91-Penal Code §519........ 286 $20..................... 398 Penal Code §§ 1475, New Jersey. 1506 ................ 367 Laws 1967, c. 24........ 117 District of Columbia. Stat. Ann. §§2A: 105-3, Code Ann. (1940 ed.), 2A: 105-4 .............. 286 Tit. 1-24............ 186 Stat. Ann. §§14:15-2, Code Ann. §§8-108, 8- 54:4-3.6, 54:4-4.4... 117 109, 8-144, 40-613... 186 North Carolina. Georgia. Gen. Stat. §§ 14-118, Code Ann. §22-408... 440 66-7 ................... 286 TABLE OF STATUTES CITED. cxxv Page Page Ohio. Pennsylvania. Rev. Code Ann. Stat., Tit. 18, §§4318, §§2901.38, 2919.13.. 286 4801-4803 ............. 286 Rev. Code Ann. Tennessee. §§3501.01, 3505.03, Acts 1925, c. 27..... 97 3505.10, 3513.05- Code Ann. §§40-2019, 3513.191, 3513.251, 40-3821 ............... 483 3513.252, 3513.256- Code Ann. § 49-1922... 97 3513.262, 3517.01- Utah. 3517.04 .............. 23 Code Ann. §76-19-1.. 286 Rev. Code Ann. Virginia. §4112.01 et seq..... 385 Code §§24-251, 24- Oregon. 252 ................... 544 Rev. Stat. § 138.590.... 483 Wisconsin. Rev. Stat. § 163.480... 286 Stat. §943.30............... 286 CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES AT OCTOBER TERM, 1968. CALIFORNIANS FOR AN ALTERNATIVE IN NOVEMBER et al. v. CALIFORNIA et al. APPEAL FROM THE SUPREME COURT OF CALIFORNIA. No. 605. Decided October 7, 1968. Appeal dismissed. Doris Brian Walker for appellants. Thomas C. Lynch, Attorney General of California, Charles A. Barrett, Assistant Attorney General, and Clayton P. Roche, Deputy Attorney General, for appellees. Per Curiam. The appeal is dismissed. California is on the eve of a national election. Millions of ballots are being printed and in a few hours the absentee ballots will be sent out of State. Whatever may be the merits of the controversy, the shortness of time and the complicated task of preparing and distributing the ballots make it very doubtful if any effective relief would be possible. 1 2 OCTOBER TERM, 1968. Per Curiam. 393 U.S. McConnell v. rhay, penitentiary SUPERINTENDENT. ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF WASHINGTON. No. 87, Mise. Decided October 14, 1968* The decision in Mempa v. Rhay, 389 U. S. 128, holding that the Sixth Amendment, as applied through the Fourteenth Amendment, requires that counsel be afforded felony defendants in a proceeding for revocation of probation and imposition of deferred sentencing, should be applied retroactively. Certiorari granted; judgments reversed and remanded. Michael H. Rosen for petitioner in No. 458, Mise. John J. O’Connell, Attorney General of Washington, and Stephen C. Way, Assistant Attorney General, for respondent in both cases. Per Curiam. The sole issue presented by these cases is whether our decision in Mempa v. Rhay, 389 U. S. 128 (1967), should be applied retroactively. The facts in both cases are quite similar to those in Mempa. Petitioner Jack D. McConnell pleaded guilty to two counts of grand larceny by check. At a hearing on December 23, 1965, he was placed on probation for five years upon condition that he serve one year in the county jail. He was released from jail the following April, but five months later the prosecuting attorney moved that the December 23 order be revoked, alleging that McConnell had violated the terms of his probation. Two hearings on the motion followed—one on September *Together with No. 458, Mise., Stiltner v. Rhay, Penitentiary Superintendent, also on petition for writ of certiorari to the same court. McConnell v. rhay. 3 2 Per Curiam. 29, 1966, and the other on November 23, 1966. As a result of these hearings, McConnell was sentenced to two concurrent 15-year terms. At neither hearing was he represented by counsel or advised of his right to have counsel appointed. Petitioner Douglas Stiltner pleaded guilty to burglary in the second degree and grand larceny, and on June 23, 1958, he was placed on probation and sentencing was deferred. As in McConnell’s case, the prosecuting attorney later moved for revocation of this order. Hearings on December 30, 1958, and January 8, 1959, led to the imposition of two concurrent 15-year sentences. Stiltner was neither represented nor advised of his right to have counsel appointed. Although Stiltner was subsequently convicted of another offense and is serving a sentence for that crime, the Washington Supreme Court found that it had the power to fashion appropriate relief, were Mempa v. Rhay applicable. In habeas corpus proceedings, the Washington Supreme Court properly found that both petitioners’ Sixth Amendment rights were violated at their deferred sentencing hearings. That question was settled by our decision in Mempa. But the court denied relief in both cases, holding that Mempa should not be applied to cases in which probation and deferral or suspension of sentences had been revoked before November 13, 1967, the date upon which Mempa was decided. This was error. This Court’s decisions on a criminal defendant’s right to counsel at trial, Gideon v. Wainwright, 372 U. S. 335 (1963); at certain arraignments, Hamilton v. Alabama, 368 U. S. 52 (1961); and on appeal, Douglas v. California, 372 U. S. 353 (1963), have been applied retroactively. The right to counsel at sentencing is no different. As in these other cases, the right being asserted relates to “the very integrity of the fact-finding process.” Linkletter v. Walker, 381 U. S. 618, 639 320-583 0 - 69 -9 4 OCTOBER TERM, 1968. Per Curiam. 393 U.S. (1965); cf. Roberts v. Russell, 392 U. S. 293 (1968). As we said in Mempa, “the necessity for the aid of counsel in marshaling the facts, introducing evidence of mitigating circumstances and in general aiding and assisting the defendant to present his case as to sentence is apparent.” 389 U. S., at 135. The right to counsel at sentencing must, therefore, be treated like the right to counsel at other stages of adjudication. Certiorari and the motions to proceed in Jorma pauperis are granted in both cases, the judgments are reversed, and the cases are remanded for further proceedings not inconsistent with this opinion. It is so ordered. ARSENAULT v. MASSACHUSETTS. 5 Per Curiam. ARSENAULT v. MASSACHUSETTS. ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. No. 187, Mise. Decided October 14, 1968. Petitioner pleaded guilty to murder at a probable-cause hearing when he had no counsel. He testified at his trial (when he had counsel), and denied guilt. On cross-examination his prior plea was introduced. Petitioner was convicted and the State’s highest court affirmed over his contention that admission of the prior plea was error. Based on White v. Maryland, 373 U. S. 59, decided after petitioner’s trial, petitioner sought post-conviction relief, which that court denied on the ground that White was not retroactive. Held: White v. Maryland, which is indistinguishable in principle from the present case, applies retroactively. Certiorari granted; 353 Mass. 575, 233 N. E. 2d 730, reversed. F. Lee Bailey for petitioner. Elliot L. Richardson, Attorney General of Massachusetts, Howard M. Miller, Assistant Attorney General, and Richard L. Levine, Deputy Assistant Attorney General, for respondent. Per Curiam. In February 1955 petitioner was arrested in connection with a recent homicide and attempted robbery. The next morning at a probable-cause hearing, but unassisted by counsel, he pleaded guilty to counts of murder and assault with intent to rob. Six days later at his arraignment, and again unaided by counsel, he pleaded not guilty to an indictment charging him with first-degree murder. After being assigned counsel for trial he took the stand in his own defense and again pleaded not guilty to the indictment, asserting instead that he lacked the premeditation necessary for first-degree murder. On cross-examination, the district attorney questioned him about his prior statements at the preliminary hearing and introduced his plea of guilty for the purpose of refreshing 6 OCTOBER TERM, 1968. Per Curiam. 393 U. S. his memory. The jury then returned a verdict of guilty and imposed a sentence of death, since commuted to life imprisonment. On direct review by the Massachusetts Supreme Judicial Court, he assigned as error the admission at trial of his prior plea. The court rejected his claim by affirming the conviction. In 1966 petitioner sought post-conviction relief from the Massachusetts Supreme Judicial Court on the ground that our supervening decision in White v. Maryland, 373 U. S. 59, rendered his conviction void. While recognizing a “close similarity” between his case and White, that court nonetheless reaffirmed the judgment below on the ground that White was not retroactive. Petitioner comes here by petition for a writ of certiorari. The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. In White v. Maryland an accused pleaded guilty when arraigned at a preliminary hearing, and at that time had no counsel to represent him. We held that Hamilton v. Alabama, 368 U. S. 52, was applicable, as only the aid of counsel could have enabled the accused to know all the defenses available to him and to plead intelligently. White v. Maryland is indistinguishable in principle from the present case; and we hold that it is applicable here although it was not decided until after the arraignment and trial in the instant case. The right to counsel at the trial {Gideon v. Wainwright, 372 U. S. 335); on appeal {Douglas v. California, 372 U. S. 353); and at the other “critical” stages of the criminal proceedings {Hamilton v. Alabama, supra) have all been made retroactive, since the “denial of the right must almost invariably deny a fair trial.” * See Stovall v. Denno, 388 U. S. 293, 297. Reversed. *For the distinction drawn between the right-to-counsel cases and those arising under the Fourth and Fifth Amendments, see also Tehan v. Shott, 382 U. S. 406, 416. DECISIONS PER CURIAM. 7 393 U.S. October 14, 1968. HANOVER INSURANCE CO. OF NEW YORK v. VICTOR. APPEAL FROM THE COURT OF APPEALS OF NEW YORK. No. 50. Decided October 14, 1968. Appeal dismissed. Florindo M. DeRosa, Duncan C. Lee, Frank A. Celen-tano, and Peter J. Malloy, Jr., for appellant. Harriet E. Gair for appellee. Per Curiam. The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. COHON ET AL. v. KIRBY, DIRECTOR, DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL OF CALIFORNIA. APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT. No. 57. Decided October 14, 1968. 256 Cal. App. 2d 158, 64 Cal. Rptr. 26, appeal dismissed. Herbert A. Leland, Marc E. Leland, J. Bruce Fratis, Joseph L. Alioto, and Richard Saveri for appellants. Thomas C. Lynch, Attorney General of California, and Elizabeth Palmer and L. Stephen Porter, Deputy Attorneys General, for appellee. Per Curiam. The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. 8 OCTOBER TERM, 1968. October 14, 1968. 393 U. S. MAKAH INDIAN TRIBE v. TAX COMMISSION OF WASHINGTON et al. APPEAL FROM THE SUPREME COURT OF WASHINGTON. No. 52. Decided October 14, 1968. 72 Wash. 2d 613, 434 P. 2d 580, appeal dismissed. James J. McArdle for appellant. John J. O’Connell, Attorney General of Washington, and Timothy R. Malone and J. Richard Duggan, Assistant Attorneys General, for appellee Tax Commission of Washington. Solicitor General Griswold, Assistant Attorney General Martz, and Roger P. Marquis for the United States, as amicus curiae. Per Curiam. The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. DESERT OUTDOOR ADVERTISING, INC. v. COUNTY OF SAN BERNARDINO. APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT. No. 114. Decided October 14, 1968. 255 Cal. App. 2d 765, 63 Cal. Rptr. 543, appeal dismissed. J. Perry Langjord for appellant. William Sabourin for appellee. Per Curiam. The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. DECISIONS PER CURIAM. 9 393 U. S. October 14, 1968. WHITNEY STORES, INC., et al. v. SUMMERFORD et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA. No. 85. Decided October 14, 1968. 280 F. Supp. 406, affirmed. E. N. Zeigler for appellants. Per Curiam. The judgment is affirmed. HORNBEAK v. HAMM, COMMISSIONER OF REVENUE FOR ALABAMA. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA. No. 260. Decided October 14, 1968. 283 F. Supp. 549, affirmed. Barry Hess for appellant. MacDonald Gallion, Attorney General of Alabama, and Willard W. Livingston and Herbert I. Burson, Assistant Attorneys General, for appellee. Per Curiam. The motion to affirm is granted and the judgment is affirmed. Mr. Justice Black, Mr. Justice Harlan, and Mr. Justice Stewart are of the opinion that probable jurisdiction should be noted and the case set for argument. 10 OCTOBER TERM, 1968. October 14, 1968. 393 U. S. BIDDLE, ADMINISTRATRIX v. BOWSER et al. APPEAL FROM THE SUPREME COURT OF OHIO. No. 159. Decided October 14, 1968. Appeal dismissed and certiorari denied. Downey Rice for appellant. Per Curiam. The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied. BROWN ET AL. V. RESOR, SECRETARY OF THE ARMY. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 133, Mise. Decided October 14, 1968. Certiorari granted; 388 F. 2d 682, vacated and remanded. Charles Morgan, Jr., Morris Brown, Benjamin E. Smith, and Melvin L. Wulf for petitioners. Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg for respondent. Per Curiam. The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the Court of Appeals for further consideration in light of Carafas v. LaVallee, 391 U. S. 234. DECISIONS PER CURIAM. 11 393 U. S. October 14, 1968. LOPTIEN et ux. v. CITY OF SYCAMORE. APPEAL FROM THE SUPREME COURT OF ILLINOIS. No. 179. Decided October 14, 1968. Appeal dismissed and certiorari denied. William C. Murphy for appellee. Per Curiam. The motion to strike the response to the jurisdictional statement is denied. The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied. SAMSON MARKET CO, INC. v. KIRBY, DIRECTOR, DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL OF CALIFORNIA. APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT. No. 326. Decided October 14, 1968. 261 Cal. App. 2d 577, 68 Cal. Rptr. 130, appeal dismissed and certiorari denied. Jacques Leslie and Lawrence Teplin for appellant. Thomas C. Lynch, Attorney General of California, and Kenneth Scholtz, Deputy Attorney General, for appellee. Per Curiam. The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied. 12 OCTOBER TERM, 1968. October 14, 1968. 393 U.S. SAMSON MARKET CO., INC. v. KIRBY, DIRECTOR, DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL OF CALIFORNIA. APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT. No. 181. Decided October 14, 1968. Appeal dismissed. Jacques Leslie and Lawrence Teplin for appellant. Thomas C. Lynch, Attorney General of California, and Warren H. Deering and Henry G. Ullerich, Deputy Attorneys General, for appellee. Per Curiam. The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. MARTONE v. MORGAN et al. APPEAL FROM THE SUPREME COURT OF LOUISIANA. No. 216. Decided October 14, 1968. 251 La. 993, 207 So. 2d 770, appeal dismissed. J. Minos Simon for appellant. Ashton L. Stewart, Special Assistant Attorney General of Louisiana, and Wesley Wirtz, Assistant Attorney General, for appellees. Per Curiam. The appeal is dismissed for want of a substantial federal question. Mr. Justice Black dissents. DECISIONS PER CURIAM. 13 393 U. S. October 14, 1968. LEWINSON v. CREWS, COUNTY CLERK OF KINGS COUNTY. APPEAL FROM THE COURT OF APPEALS OF NEW YORK. No. 230. Decided October 14, 1968. Appeal dismissed. Emanuel Redfield for appellant. Seymour Besunder for appellee. Per Curiam. The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted. ESTATE OF BURNELL v. COLORADO. APPEAL FROM THE SUPREME COURT OF COLORADO. No. 239. Decided October 14, 1968. --- Colo.--, 439 P. 2d 38, appeal dismissed. Lawrence Speiser for appellant. Duke W. Dunbar, Attorney General of Colorado, Richard D. Robb, Assistant Attorney General, and Frank E. Hickey, Deputy Attorney General, for appellee. Per Curiam. The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted. 14 OCTOBER TERM, 1968. October 14, 1968. 393 U. S. ROSSO et ux. v. PUERTO RICO. APPEAL FROM THE SUPREME COURT OF PUERTO RICO. No. 242. Decided October 14, 1968. ---P. R. R.--, appeal dismissed. Walter L. Newsom, Jr., and James B. Donovan for appellants. Rajael A. Rivera-Cruz, Solicitor General of Puerto Rico, J. F. Rodriguez-Rivera, Deputy Solicitor General, and Peter Ortiz, Assistant Solicitor General, for appellee. Per Curiam. The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. Mr. Justice Fortas took no part in the consideration or decision of this case. ROBERTS, JUDGE, et al. v. POLLARD et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS. No. 251. Decided October 14, 1968. 283 F. Supp. 248, affirmed. Joe Purcell, Attorney General of Arkansas, and Don Langston, Deputy Attorney General, for appellants. Per Curiam. The judgment is affirmed. Mr. Justice Black is of the opinion that probable jurisdiction should be noted. DECISIONS PER CURIAM. 15 393 U.S. October 14, 1968. ILOWITE v. UNITED STATES et al. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT. No. 263. Decided October 14, 1968. Certiorari granted; 390 F. 2d 589, vacated and remanded with directions to dismiss the case as moot. Victor Rabinowitz, Leonard B. Boudin, Michael B. Standard, and David Rosenberg for petitioner. Solicitor General Griswold and Henry Geller for the United States et al. Per Curiam. Upon consideration of the suggestion of mootness and an examination of the entire record, the petition for a writ of certiorari is granted, the judgment is vacated, and the case is remanded to the Court of Appeals with directions to dismiss the case as moot. BUTLER v. BRIERLEY, CORRECTIONAL SUPERINTENDENT. APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. No. 197, Mise. Decided October 14, 1968. Appeal dismissed and certiorari denied. Stephen J. McEwen, Jr., and Vram Nedurian, Jr., for appellee. Per Curiam. The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied. 16 OCTOBER TERM, 1968. October 14, 1968. 393 U. S. PENJASKA et al. v. GOODBODY & CO. APPEAL FROM THE SUPREME COURT OF MICHIGAN. No. 270. Decided October 14, 1968. Appeal dismissed and certiorari denied. Per Curiam. The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied. BATES et al. v. NELSON, WARDEN. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 86, Mise. Decided October 14, 1968. Certiorari granted; 385 F. 2d 771, vacated and remanded. Richard Gladstein, Norman Leonard, and Ruth Jacobs for petitioners. Thomas C. Lynch, Attorney General of California, Albert W. Harris, Jr., Assistant Attorney General, and Charles R. B. Kirk, Deputy Attorney General, for respondent. Per Curiam. The motions to supplement the petition for a writ of certiorari and for leave to proceed in forma pauperis are granted. The petition for a writ of certiorari is also granted. The judgment is vacated and the case is remanded to the Court of Appeals for further consideration in light of Burgett v. Texas, 389 U. S. 109; Bruton v. United States, 391 U. S. 123; and Roberts v. Russell, 392 U. S. 293. DECISIONS PER CURIAM. 17 393 U.S. October 14, 1968. LOUISIANA EDUCATION COMMISSION FOR NEEDY CHILDREN et al. v. POINDEXTER ET AL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA. No. 284. Decided October 14, 1968. Affirmed. Leander H. Perez and Luke A. Petrovich for appellants. Solicitor General Griswold and Assistant Attorney General Pollak for appellees. Per Curiam. The motion to affirm is granted and the judgment is affirmed. WESTSIDE LIQUOR CO. v. KIRBY, DIRECTOR, DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL OF CALIFORNIA. APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT. No. 324. Decided October 14, 1968. 259 Cal. App. 2d 511, 66 Cal. Rptr. 434, appeal dismissed. Harold Easton for appellant. Thomas C. Lynch, Attorney General of California, and Lynn Henry Johnson, Deputy Attorney General, for appellee. Per Curiam. The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. 18 OCTOBER TERM, 1968. October 14, 1968. 393 U. S. GUERRA v. MISSISSIPPI. APPEAL FROM THE SUPREME COURT OF MISSISSIPPI. No. 286. Decided October 14, 1968. 209 So. 2d 627, appeal dismissed. W. D. Kendall for appellant. Per Curiam. The appeal is dismissed for want of a properly presented federal question. NATIONAL MOTOR FREIGHT TRAFFIC ASSN., INC., et al. v. UNITED STATES et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA. No. 355. Decided October 14, 1968. Affirmed. Bryce Rea, Jr., and Thomas M. Knebel for appellants. Solicitor General Griswold, Assistant Attorney General Zimmerman, Robert W. Ginnane, and Emmanuel H. Smith for the United States et al., James T. Johnson for Pacific Progress Shippers Assn., Inc., and Ronald N. Cobert and Philip R. Ehrenkranz for American Institute of Shippers’ Assns., Inc., appellees. Per Curiam. The motions to affirm are granted and the judgment is affirmed. DECISIONS PER CURIAM. 19 393 U. S. October 14, 1968. PENNWICK CORP. v. KIRBY, DIRECTOR, DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL OF CALIFORNIA. APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT. No. 325. Decided October 14, 1968. Appeal dismissed. Jacques Leslie and Lawrence Teplin for appellant. Thomas C. Lynch, Attorney General of California, and Lynn Henry Johnson, Deputy Attorney General, for appellee. Per Curiam. The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. TYRRELL v. CROUSE, WARDEN. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT. No. 59, Mise. Decided October 14, 1968. Certiorari granted; judgment reversed. Robert C. Londerholm, Attorney General of Kansas, and J. Richard Foth and Jon K. Sargent, Assistant Attorneys General, for respondent. Per Curiam. The motion for leave to proceed in jorma pauperis and the petition for a writ of certiorari are granted. In accordance with the concession by the respondent the judgment is reversed. Peyton v. Rowe, 391 U. S. 54. 320-583 0 - 69 - 10 20 OCTOBER TERM, 1968. October 14, 1968. 393 U. S. BLABON v. NELSON, WARDEN. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 3, Mise. Decided October 14, 1968. Certiorari granted; 370 F. 2d 997, vacated and remanded. Thomas C. Lynch, Attorney General of California, and Edward P. O’Brien and Deraid E. Granberg, Deputy Attorneys General, for respondent. Per Curiam. The motion for leave to proceed in jorma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the Court of Appeals for further consideration in the light of In re Bevill, 68 Cal. 2d 854, 442 P. 2d 679. LEMANSKI v. LEMANSKI. APPEAL FROM THE APPELLATE COURT OF ILLINOIS, SECOND DISTRICT. No. 473, Mise. Decided October 14, 1968. 87 Ill. App. 2d 405, 231 N. E. 2d 191, appeal dismissed and certiorari denied. Per Curiam. The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied. DECISIONS PER CURIAM. 21 393 U. S. October 14, 1968. JONES v. GEORGIA. ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF GEORGIA. No. 149, Mise. Decided October 14, 1968. Certiorari granted; 224 Ga. 283, 161 S. E. 2d 302, vacated and remanded. Frank B. Hester for petitioner. Lewis R. Slaton and J. Walter LeCraw 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 is vacated and the case is remanded to the Supreme Court of Georgia for further consideration in light of Witherspoon v. Illinois, 391 U. S. 510. WORKMAN v. UTAH. ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF UTAH. No. 39, Mise. Decided October 14, 1968. Certiorari granted; 20 Utah 2d 178, 435 P. 2d 919, reversed. Jimi Mitsunaga for petitioner. Phil L. Hansen, Attorney General of Utah, 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 is reversed. Miranda v. Arizona, 384 U. S. 436; Johnson v. New Jersey, 384 U. S. 719. 22 OCTOBER TERM, 1968. October 14, 1968. 393 U.S. ANDERSEN et al. v. FLORIDA. APPEAL FROM THE SUPREME COURT OF FLORIDA. No. 335. Decided October 14, 1968. 208 So. 2d 814, appeal dismissed. William Y. Akerman for appellants. Per Curiam. The appeal is dismissed for want of a substantial federal question. MUNIZ v. BETO, CORRECTIONS DIRECTOR. APPEAL FROM THE COURT OF CRIMINAL APPEALS OF TEXAS. No. 430, Mise. Decided October 14, 1968. Appeal dismissed and certiorari denied. Joseph A. Calamia for appellant. Crawjord C. Martin, Attorney General of Texas, Nola White, First Assistant Attorney General, A. J. Ca-rubbi, Jr., Executive Assistant Attorney General, Robert C. Flowers and Allo B. Crow, Jr., Assistant Attorneys General, and W. Barton Boling for appellee. Per Curiam. The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied. WILLIAMS v. RHODES. 23 Syllabus. WILLIAMS et al. v. RHODES, GOVERNOR OF OHIO, ET AL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO. No. 543. Argued October 7, 1968.—Decided October 15, 1968* Under the Ohio election laws a new political party seeking ballot position in presidential elections must obtain petitions signed by qualified electors totaling 15% of the number of ballots cast in the last gubernatorial election and must file these petitions early in February of the election year. These requirements and other restrictive statutory provisions virtually preclude a new party’s qualifying for ballot position and no provision exists for independent candidates doing so. The Republican and Democratic Parties may retain their ballot positions by polling 10% of the votes in the last gubernatorial election and need not obtain signature petitions. The Ohio American Independent Party (an appellant in No. 543), was formed in January 1968, and during the next six months by securing over 450,000 signatures exceeded the 15% requirement but was denied ballot position because the February deadline had expired. The Socialist Labor Party (an appellant in No. 544), an old party with a small membership, could not meet the 15% requirement. Both Parties brought actions challenging the Ohio election laws as violating the Equal Protection Clause of the Fourteenth Amendment. A three-judge District Court held those laws unconstitutional and ruled that the Parties were entitled to write-in space but not ballot position. The Parties appealed to this Court. The Independent Party immediately sought interlocutory relief from Mr. Justice Stewart, which he granted by order after a hearing at which Ohio represented that it could place the Party’s name on the ballot without disrupting the election if there was not a long delay. Several days after that order the Socialist Labor Party sought a stay which he denied because of that Party’s failure to move quickly for relief, the State having represented that at that time the granting of relief would disrupt the election. Held: 1. The controversy in these cases is justiciable. P. 28. *Together with No. 544, Socialist Labor Party et al. v. Rhodes, Governor of Ohio, et al., also on appeal from the same court. 24 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. 2. State laws enacted pursuant to Art. II, § 1, of the Constitution to regulate the selection of electors must meet the requirements of the Equal Protection Clause of the Fourteenth Amendment. Pp. 28-29. 3. Ohio’s restrictive election laws taken as a whole are invidiously discriminatory and violate the Equal Protection Clause because they give the two old, established parties a decided advantage over new parties. Pp. 30-34. (a) The state laws here involved heavily burden the right of individuals to associate for the advancement of political beliefs and the right of qualified voters to cast their votes effectively. Pp. 30-31. (b) The State has shown no “compelling interest” justifying those burdens. Pp. 31-32. 4. Under the circumstances here Ohio must allow the Independent Party and its candidates for President and Vice President to remain on the ballot, subject to compliance with valid state laws. Ohio is not at this late date required to place the Socialist Labor Party on the ballot for the coming election. Pp. 34-35. 290 F. Supp. 983, No. 543, modified; No. 544, affirmed. David J. Young argued the cause and filed briefs for appellants in No. 543. Jerry Gordon argued the cause, pro hac vice, and filed briefs for appellants in No. 544. Charles S. Lopeman argued the cause for appellees in both cases. With him on the briefs was William B. Saxbe, Attorney General of Ohio. Mr. Justice Black delivered the opinion of the Court. The State of Ohio in a series of election laws has made it virtually impossible for a new political party, even though it has hundreds of thousands of members, or an old party, which has a very small number of members, to be placed on the state ballot to choose electors pledged to particular candidates for the Presidency and Vice Presidency of the United States. Ohio Revised Code, § 3517.01, requires a new party to obtain petitions signed by qualified electors totaling 15% WILLIAMS V. RHODES. 25 23 Opinion of the Court. of the number of ballots cast in the last preceding gubernatorial election. The detailed provisions of other Ohio election laws result in the imposition of substantial additional burdens, which were accurately summarized in Judge Kinneary’s dissenting opinion in the court below and were substantially agreed on by the other members of that court.1 Together these various restrictive provisions make it virtually impossible for any party to qualify on the ballot except the Republican and Democratic Parties. These two Parties face substantially smaller burdens because they are allowed to retain their 1 Judge Kinneary describes, in his dissenting opinion below, the legal obstacles placed before a would-be third party even after the 15% signature requirement has been fulfilled: “First, at the primary election, the new party, or any political party, is required to elect a state central committee consisting of two members from each congressional district and county central committees for each county in Ohio. [Ohio Rev. Code §§ 3517.02-3517.04.] Second, at the primary election the new party must elect delegates and alternates to a national convention. [Ohio Rev. Code § 3505.10.] Since Section 3513.19.1, Ohio Rev. Code, prohibits a candidate from seeking the office of delegate to the national convention or committeeman if he voted as a member of a different party at a primary election in the preceding four year period, the new party would be required to have over twelve hundred members who had not previously voted in another party’s primary, and who would be willing to serve as committeemen and delegates. Third, the candidates for nomination in the primary would have to file petitions signed by qualified electors. [Ohio Rev. Code § 3513.05.] The term 'qualified electors’ is not adequately defined in the Ohio Revised Code [§ 3501.01 (H)], but a related section [§3513.19], provides that a qualified elector at a primary election of a political party is one who, (1) voted for a majority of that party’s candidates at the last election, or, (2) has never voted in any election before. Since neither of the political party plaintiffs had any candidates at the last preceding regular state election, they would, of necessity, have to seek out members who had never voted before to sign the nominating petitions, and it would be only these persons who could vote in the primary election of the new party.” 26 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. positions on the ballot simply by obtaining 10% of the votes in the last gubernatorial election and need not obtain any signature petitions. Moreover, Ohio laws make no provision for ballot position for independent candidates as distinguished from political parties. The State of Ohio claims the power to keep minority parties and independent candidates off the ballot under Art. II, § 1, of the Constitution, which provides that: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress . . . The Ohio American Independent Party, an appellant in No. 543, and the Socialist Labor Party, an appellant in No. 544, both brought suit to challenge the validity of these Ohio laws as applied to them, on the ground that they deny these Parties and the voters who might wish to vote for them the equal protection of the laws, guaranteed against state abridgment by the Equal Protection Clause of the Fourteenth Amendment. The three-judge District Court designated to try the case ruled these restrictive Ohio election laws unconstitutional but refused to grant the Parties the full relief they had sought, 290 F. Supp. 983 (D. C. S. D. Ohio 1968), and both Parties have appealed to this Court. The cases arose in this way: The Ohio American Independent Party was formed in January 1968 by Ohio partisans of former Governor George C. Wallace of Alabama. During the following six months a campaign was conducted for obtaining signatures on petitions to give the Party a place on the ballot and over 450,000 signatures were eventually obtained, more than the 433,100 required. The State contends and the Independent Party agrees that due to the interaction of several provisions of the Ohio laws, such petitions were required to be filed by February 7, 1968, WILLIAMS V. RHODES. 27 23 Opinion of the Court. and so the Secretary of the State of Ohio informed the Party that it would not be given a place on the ballot. Neither in the pleadings, the affidavits before the District Court, the arguments there, nor in our Court has the State denied that the petitions were signed by enough qualified electors of Ohio to meet the 15% requirement under Ohio law. Having demonstrated its numerical strength, the Independent Party argued that this and the other burdens, including the early deadline for filing petitions and the requirement of a primary election conforming to detailed and rigorous standards, denied the Party and certain Ohio voters equal protection of the laws. The three-judge District Court unanimously agreed with this contention and ruled that the State must be required to provide a space for write-in votes. A majority of the District Court refused to hold, however, that the Party’s name must be printed on the ballot, on the ground that Wallace and his adherents had been guilty of “laches” by filing their suit too late to allow the Ohio Legislature an opportunity to remedy, in time for the presidential balloting, the defects which the District Court held the law possessed. The appellants in No. 543 then moved before Mr. Justice Stewart, Circuit Justice for the Sixth Circuit, for an injunction which would order the Party’s candidates to be put on the ballot pending appeal. After consulting with the other members of the Court who were available, and after the State represented that the grant of interlocutory relief would be in the interests of the efficient operation of the electoral machinery if this Court considered the chances of successful challenge to the Ohio statutes good, Mr. Justice Stewart granted the injunction. The Socialist Labor Party, an appellant in No. 544, has all the formal attributes of a regular party. It has conventions and a State Executive Committee as required by the Ohio law, and it was permitted to have a place on 28 OCTOBER TERM, 1968. Opinion of the Court. 393 U.S. the ballot until 1948. Since then, however, it has not filed petitions with the total signatures required under new Ohio laws for ballot position, and indeed it conceded it could not do so this year. The same three-judge panel heard the Party’s suit and reached a similar result—write-in space was ordered but ballot position was denied the Socialist Labor Party. In this case the District Court assigned both the Party’s small membership of 108 and its delay in bringing suit as reasons for refusing to order more complete relief for the 1968 election. A motion to stay the District Court’s judgment was presented to Mr. Justice Stewart several days after he had ordered similar relief in the Independent Party case. The motion was denied principally because of the Socialist Party’s failure to move quickly to obtain relief, with the consequent confusion that would be caused by requiring Ohio once again to begin completely reprinting its election ballots, but the case was set by this Court for oral argument, along with the Independent Party case. I. Ohio’s claim that the political-question doctrine precludes judicial consideration of these cases requires very little discussion. That claim has been rejected in cases of this kind numerous times. It was rejected by the Court unanimously in 1892 in the case of McPherson v. Blacker, 146 U. S. 1, 23-24, and more recently it has been squarely rejected in Baker v. Carr, 369 U. S. 186, 208-237 (1962), and in Wesberry v. Sanders, 376 U. S. 1, 5-7 (1964). Other cases to the same effect need not now be cited. These cases do raise a justiciable controversy under the Constitution and cannot be relegated to the political arena. II. The State also contends that it has absolute power to put any burdens it pleases on the selection of electors WILLIAMS V. RHODES. 29 23 Opinion of the Court. because of the First Section of the Second Article of the Constitution, providing that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . .” to choose a President and Vice President. There, of course, can be no question but that this section does grant extensive power to the States to pass laws regulating the selection of electors. But the Constitution is filled with provisions that grant Congress or the States specific power to legislate in certain areas; these granted powers are always subject to the limitation that they may not be exercised in a way that violates other specific provisions of the Constitution. For example, Congress is granted broad power to “lay and collect Taxes,” 2 but the taxing power, broad as it is, may not be invoked in such a way as to violate the privilege against self-incrimination.3 Nor can it be thought that the power to select electors could be exercised in such a way as to violate express constitutional commands that specifically bar States from passing certain kinds of laws. Clearly, the Fifteenth and Nineteenth Amendments were intended to bar the Federal Government and the States from denying the right to vote on grounds of race and sex in presidential elections. And the Twenty-fourth Amendment clearly and literally bars any State from imposing a poll tax on the right to vote “for electors for President or Vice President.” Obviously we must reject the notion that Art. II, § 1, gives the States power to impose burdens on the right to vote, where such burdens are expressly prohibited in other constitutional provisions. We therefore hold that no State can pass a law regulating elections that violates the Fourteenth Amendment’s command that “No State shall . . . deny to any person . . . the equal protection of the laws.” 2 Art. I, § 8, cl. 1. 3 Marchetti v. United States, 390 U. S. 39 (1968); Grosso v. United States, 390 U. S. 62 (1968). 30 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. III. We turn then to the question whether the court below properly held that the Ohio laws before us result in a denial of equal protection of the laws. It is true that this Court has firmly established the principle that the Equal Protection Clause does not make every minor difference in the application of laws to different groups a violation of our Constitution. But we have also held many times that “invidious” distinctions cannot be enacted without a violation of the Equal Protection Clause.4 In determining whether or not a state law violates the Equal Protection Clause, we must consider the facts and circumstances behind the law, the interests which the State claims to be protecting, and the interests of those who are disadvantaged by the classification.5 In the present situation the state laws place burdens on two different, although overlapping, kinds of rights—the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively. Both of these rights, of course, rank among our most precious freedoms. We have repeatedly held that freedom of association is protected by the First Amendment.6 And of course this freedom protected against federal encroachment by the First Amendment is entitled under the Fourteenth Amendment to the same 4 Skinner v. Oklahoma, 316 U. S. 535, 539-541 (1942); Cox v. Louisiana, 379 U. S. 536, 557 (1965); Yick Wo v. Hopkins, 118 U. S. 356 (1886); Brown v. Board of Education, 347 U. S. 483 (1954); Loving v. Virginia, 388 U. S. 1 (1967). 5 See, e. g., Carrington v. Rash, 380 U. S. 89 (1965); Skinner v. Oklahoma, supra. 6 Mine Workers v. Illinois Bar Assn., 389 U. S. 217 (1967); NAACP v. Button, 371 U. S. 415 (1963); NAACP v. Alabama, 357 U. S. 449 (1958). WILLIAMS v. RHODES. 31 23 Opinion of the Court. protection from infringement by the States.7 Similarly we have said with reference to the right to vote: “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” 8 No extended discussion is required to establish that the Ohio laws before us give the two old, established parties a decided advantage over any new parties struggling for existence and thus place substantially unequal burdens on both the right to vote and the right to associate. The right to form a party for the advancement of political goals means little if a party can be kept off the election ballot and thus denied an equal opportunity to win votes. So also, the right to vote is heavily burdened if that vote may be cast only for one of two parties at a time when other parties are clamoring for a place on the ballot. In determining whether the State has power to place such unequal burdens on minority groups where rights of this kind are at stake, the decisions of this Court have consistently held that “only a compelling state interest in the regulation of a subject within the State’s constitutional power to regulate can justify limiting First Amendment freedoms.” NAACP v. Button, 371 U. S. 415, 438 (1963). The State has here failed to show any “compelling interest” which justifies imposing such heavy burdens on the right to vote and to associate. The State asserts that the following interests are served by the restrictions it imposes. It claims that the State may validly promote a two-party system in order to en- 7 See New York Times Co. v. Sullivan, 376 U. S. 254, 276-277 (1964), and cases there cited. 8 Wesberry v. Sanders, supra, at 17. See also Carrington v. Rash, supra. 32 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. courage compromise and political stability. The fact is, however, that the Ohio system does not merely favor a “two-party system”; it favors two particular parties— the Republicans and the Democrats—and in effect tends to give them a complete monopoly. There is, of course, no reason why two parties should retain a permanent monopoly on the right to have people vote for or against them. Competition in ideas and governmental policies is at the core of our electoral process and of the First Amendment freedoms. New parties struggling for their place must have the time and opportunity to organize in order to meet reasonable requirements for ballot position, just as the old parties have had in the past. Ohio makes a variety of other arguments to support its very restrictive election laws. It points out, for example, that if three or more parties are on the ballot, it is possible that no one party would obtain 50% of the vote, and the runner-up might have been preferred to the plurality winner by a majority of the voters. Conced-edly, the State does have an interest in attempting to see that the election winner be the choice of a majority of its voters. But to grant the State power to keep all political parties off the ballot until they have enough members to win would stifle the growth of all new parties working to increase their strength from year to year. Considering these Ohio laws in their totality, this interest cannot justify the very severe restrictions on voting and associational rights which Ohio has imposed. The State also argues that its requirement of a party structure and an organized primary insures that those who disagree with the major parties and their policies “will be given a choice of leadership as well as issues” since any leader who attempts to capitalize on the disaffection of such a group is forced to submit WILLIAMS V. RHODES. 33 23 Opinion of the Court. to a primary in which other, possibly more attractive, leaders can raise the same issues and compete for the allegiance of the disaffected group. But while this goal may be desirable, Ohio’s system cannot achieve it. Since the principal policies of the major parties change to some extent from year to year, and since the identity of the likely major party nominees may not be known until shortly before the election, this disaffected “group” will rarely if ever be a cohesive or identifiable group until a few months before the election. Thus, Ohio’s burdensome procedures, requiring extensive organization and other election activities by a very early date, operate to prevent such a group from ever getting on the ballot and the Ohio system thus denies the “disaffected” not only a choice of leadership but a choice on the issues as well. Finally Ohio claims that its highly restrictive provisions are justified because without them a large number of parties might qualify for the ballot, and the voters would then be confronted with a choice so confusing that the popular will could be frustrated. But the experience of many States, including that of Ohio prior to 1948, demonstrates that no more than a handful of parties attempts to qualify for ballot positions even when a very low number of signatures, such as 1 % of the electorate, is required.9 It is true that the existence of multitudinous fragmentary groups might justify some regulatory control but in Ohio at the present time this danger seems to us no more than “theoretically imaginable.”10 No such remote danger can justify the immediate and crippling impact on the basic constitutional rights involved in this case. 9 Forty-two States require third parties to obtain the signatures of only 1% or less of the electorate in order to appear on the ballot. It appears that no significant problem has arisen in these States which have relatively lenient requirements for obtaining ballot position. 10 Cf. Mine Workers v. Illinois Bar Assn., supra, at 224. 34 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. Of course, the number of voters in favor of a party, along with other circumstances, is relevant in considering whether state laws violate the Equal Protection Clause. And, as we have said, the State is left with broad powers to regulate voting, which may include laws relating to the qualification and functions of electors. But here the totality of the Ohio restrictive laws taken as a whole imposes a burden on voting and associational rights which we hold is an invidious discrimination, in violation of the Equal Protection Clause. IV. This leaves only the propriety of the judgments of the District Court. That court held that the Socialist Labor Party could get relief to the extent of having the right, despite Ohio laws, to get the advantage of write-in ballots. It restricted the Independent Party to the same relief. The Independent Party went before the District Court, made its challenge, and prayed for broader relief, including a judgment declaring the Ohio laws invalid. It also asked that its name be put on the ballot along with the Democratic and Republican Parties. The Socialist Labor Party also went to the District Court and asked for the same relief. On this record, however, the parties stand in different positions before us. Immediately after the District Court entered its judgment, the new Independent Party brought its case to this Court where Mr. Justice Stewart conducted a hearing. At that hearing Ohio represented to Mr. Justice Stewart that the Independent Party’s name could be placed on the ballot without disrupting the state election, but if there was a long delay, the situation would be different. It was not until several days after that hearing was concluded and after Mr. Justice Stewart had issued his order staying the judgment against the Independent Party that the Socialist Labor Party asked for similar relief. The State WILLIAMS V. RHODES. 35 23 Opinion of Douglas, J. objected on the ground that at that time it was impossible to grant the relief to the Socialist Labor Party without disrupting the process of its elections; accordingly Mr. Justice Stewart denied it relief, and the State now repeats its statement that relief cannot be granted without serious disruption of election process. Certainly at this late date it would be extremely difficult, if not impossible, for Ohio to provide still another set of ballots. Moreover, the confusion that would attend such a last-minute change poses a risk of interference with the rights of other Ohio citizens, for example, absentee voters. Under the circumstances we require Ohio to permit the Independent Party to remain on the ballot, along with its candidates for President and Vice President, subject, of course, to compliance with valid regulatory laws of Ohio, including the law relating to the qualification and functions of electors. We do not require Ohio to place the Socialist Party on the ballot for this election. The District Court’s judgment is affirmed with reference to No. 544, the Socialist Labor Party case, but is modified in No. 543, the Independent Party case, with reference to granting that Party the right to have its name printed on the ballot. It is so ordered. Mr. Justice Stewart concurs in the judgment in No. 544 insofar as it denies equitable relief to the appellants. Mr. Justice Douglas. I. Ohio, through an entangling web of election laws, has effectively foreclosed its presidential ballot to all but Republicans and Democrats. It has done so initially by abolishing write-in votes so as to restrict candidacy 320-583 0 - 69 - 11 36 OCTOBER TERM, 1968. Opinion of Douglas, J. 393 U. S. to names on the ballot;1 it has eliminated all independent candidates through a requirement that nominees enjoy the endorsement of a political party; 1 2 it has defined “political party” in such a way as to exclude virtually all but the two major parties.3 A candidate who seeks a place on the Ohio presidential ballot must first compile signatures of qualified voters who total at least 15% of those voting in the last gubernatorial election. In this election year, 1968, a candidate would need 433,100 such signatures. Moreover, he must succeed in gathering them long before the general election, since a nominating petition must be filed with the Secretary of State in February.4 That is not all: having compiled those signatures, the candidate must further show that he has received the nomination of a group which qualifies as a “political party” within the meaning of Ohio law.5 It is not enough to be an independent candidate for President with wide popular support; one must trace his support to a political party.6 To qualify as a party, a group of electors must participate in the state primary, electing one of its members from each county ward or precinct to a county central committee; two of its members from each congressional district to a state central committee; 7 and some of its members as delegates and alternates to a na- 1 Ohio Rev. Code §3505.03 (1960 Repl. Vol.). 2 Independent candidacy in Ohio is limited to municipal offices, Ohio Rev. Code §§3513.251-3513.252; county offices, Ohio Rev. Code § 3513.256; state offices, and federal offices excluding President, Ohio Rev. Code §§ 3513.257-3513.258. 3 Ohio Rev. Code §§3505.10, 3513.05-3513.191, 3517.01-3517.04. 4 A candidate for President must first formulate a party by gathering signatures, Ohio Rev. Code § 3517.01, which must, in turn, be presented in time for the party to participate in the state primary. Ohio Rev. Code §§ 3513.256-3513.262. 5 Ohio Rev. Code § 3513.258. 6 Ohio Rev. Code § 3505.10. 7 Ohio Rev. Code § 3517.02-3517.04. WILLIAMS v. RHODES. 37 23 Opinion of Douglas, J. tional convention.8 Moreover, those of its members who seek a place on the primary ballot as candidates for positions as central committeemen and national convention delegates must demonstrate that they did not vote in any other party primary during the preceding four years; 9 and must present petitions of endorsement on their behalf by anywhere from five to 1,000 voters who likewise failed to vote for any other party in the last preceding primary.10 11 Thus, to qualify as a third party, a group must first erect elaborate political machinery, and then rest it upon the ranks of those who have proved both unwilling and unable to vote. Having elected a central committee, the group has it convene a state convention attended by 500 delegates duly apportioned throughout the State according to party strength.11 Delegates to the state convention then go on to choose presidential electors for certification on the November ballot, while elected delegates to the national convention go on to nominate their candidate for President.12 Ohioans, to be sure, as a result of the decision below, enjoy the opportunity of writing in the man of their choice on the ballot. But in a presidential election, a vote for a candidate is only operative as a vote for the electors representing him; and where the State has prevented that candidate from presenting a slate of electors for certification, the write-in vote has no effect. Furthermore, even where operative, the write-ins are no substitute for a place on the ballot. To force a candidate to rely on write-ins is to burden him with disability. It makes it more difficult for him to get elected, and for the voters to elect him. 8 Ohio Rev. Code § 3505.10. 9 Ohio Rev. Code §3513.191. 10 Ohio Rev. Code § 3513.05. 11 Ohio Rev. Code § 3513.11. 12 Ohio Rev. Code § 3513.12. 38 OCTOBER TERM, 1968. Opinion of Douglas, J. 393 U. S. These barriers of party, timing, and structure are great obstacles. Taken together they render it difficult, if not impossible, for a man who disagrees with the two major parties to run for President in Ohio, to organize an opposition, and to vote a third ticket. II. The selection of presidential electors is provided in Art. II, § 1, of the Constitution. It is unnecessary in this case to decide whether electors are state rather than federal officials, whether States may select them through appointment rather than by popular vote, or whether there is a constitutional right to vote for them. For in this case Ohio has already provided for them to be chosen by right of popular suffrage. Having done so, the question is whether Ohio may encumber that right with conditions of the character imposed here. III. The First Amendment, made applicable to the States by reason of the Fourteenth Amendment, lies at the root of these cases. The right of association is one form of “orderly group activity” (NAACP v. Button, 371 U. S. 415, 430), protected by the First Amendment. The right “to engage in association for the advancement of beliefs and ideas” (NAACP v. Alabama, 357 U. S. 449, 460), is one activity of that nature that has First Amendment protection. As we said in Bates v. Little Rock, 361 U. S. 516, 523, “freedom of association for the purpose of advancing ideas and airing grievances is protected by the Due Process Clause of the Fourteenth Amendment from invasion by the States.” And see Louisiana v. NAACP, 366 U. S. 293, 296. At the root of the present controversy is the right to vote—a “fundamental political right” that is “preservative of all rights.” Yick Wo v. Hopkins, 118 U. S. 356, 370. The rights of expression WILLIAMS v. RHODES. 39 23 Opinion of Douglas, J. and assembly may be “illusory if the right to vote is undermined.” Wesberry v. Sanders, 376 U. S. 1, 17. In our political life, third parties are often important channels through which political dissent is aired: “All political ideas cannot and should not be channeled into the programs of our two major parties. History has amply proved the virtue of political activity by minority, dissident groups, which innumerable times have been in the vanguard of democratic thought and whose programs were ultimately accepted. . . . The absence of such voices would be a symptom of grave illness in our society.” Sweezy v. New Hampshire, 354 U. S. 234, 250-251 (opinion of Warren, C. J.). The Equal Protection Clause of the Fourteenth Amendment permits the States to make classifications and does not require them to treat different groups uniformly. Nevertheless, it bans any “invidious discrimination.” Harper v. Virginia Board of Elections, 383 U. S. 663, 667. That command protects voting rights and political groups (Carrington v. Rash, 380 U. S. 89), as well as economic units, racial communities, and other entities. When “fundamental rights and liberties” are at issue (Harper v. Virginia Board, supra, at 670), a State has less leeway in making classifications than when it deals with economic matters. I would think that a State has precious little leeway in making it difficult or impossible for citizens to vote for whomsoever they please and to organize campaigns for any school of thought they may choose, whatever part of the spectrum it reflects. Cumbersome election machinery can effectively suffocate the right of association, the promotion of political ideas and programs of political action, and the right to vote. The totality of Ohio’s requirements has those effects. It is unnecessary to decide whether Ohio has an interest, “compelling” or not, in abridging those 40 OCTOBER TERM, 1968. Opinion of Douglas, J. 393 U. S. rights, because “the men who drafted our Bill of Rights did all the ‘balancing’ that was to be done in this field.” Konigsberg v. State Bar, 366 U. S. 36, 61 (Black, J., dissenting). Appellees would imply that “no kind of speech is to be protected if the Government can assert an interest of sufficient weight to induce this Court to uphold its abridgment.” (Id., at 67.) I reject that suggestion.13 A three-judge district court held that appellants were entitled to the use of write-in ballots. Yet it refrained from ordering the Ohio American Independent Party to be placed on the ballot, relying partly on laches and partly on the presence of what it deemed to be so-called “political” questions. 290 F. Supp. 983. First Amendment rights, the right to vote, and other “fundamental rights and liberties” (Harper v. Virginia Board, supra, at 670) have a well-established claim to inclusion in justiciable, as distinguished from “political,” questions; and the relief the Court grants meets the practical needs of appellees in preparing and distributing the ballots. The Socialist Labor Party, with a lineage that goes back to the presidential contest in 1892, by 1964 was on the ballot in 16 States. Today, although it has only 108 members in Ohio, it earnestly presses its claim for recognition. Yet it started the present action so late that concededly it would now be impossible to get its name on all the ballots. The relief asked is of such a character that we properly decline to allow the federal courts to play a disruptive role in this 1968 state election. On the merits, however, the Socialist Labor Party has as strong a case as the American Independent Party, as my Brother Harlan states and as the Court apparently 13 Bates v. City of Little Rock, 361 U. S. 516, 528 (Black and Douglas, JJ., concurring); Smith v. California, 361 U. S. 147, 157 (Black, J., concurring). WILLIAMS V. RHODES. 41 23 Harlan, J., concurring in result. agrees. It is therefore proper for us to grant it declaratory relief. Hence I concur in today’s decision; and, while my emphasis is different from the Court’s, I join its opinion. Mr. Justice Harlan, concurring in the result. I agree that the American Independent Party is entitled to have the names of its Presidential and Vice Presidential candidates placed on the Ohio ballot in the forthcoming election, but that, for the practical reasons stated by the Court, the Socialist Labor Party is not. However, I would rest this decision entirely on the proposition that Ohio’s statutory scheme violates the basic right of political association assured by the First Amendment which is protected against state infringement under the Due Process Clause of the Fourteenth Amendment. See NAACP v. Button, 371 U. S. 415 (1963); Bates v. Little Rock, 361 U. S. 516 (1960); NAACP v. Alabama, 357 U. S. 449 (1958). It is true that Ohio has not directly limited appellants’ right to assemble or discuss public issues or solicit new members. Compare Thomas v. Collins, 323 U. S. 516 (1945); De Jonge v. Oregon, 299 U. S. 353 (1937); Near v. Minnesota, 283 U. S. 697 (1931). Instead, by denying the appellants any opportunity to participate in the procedure by which the President is selected, the State has eliminated the basic incentive that all political parties have for conducting such activities, thereby depriving appellants of much of the substance, if not the form, of their protected rights. The right to have one’s voice heard and one’s views considered by the appropriate governmental authority is at the core of the right of political association. It follows that the particular method by which Presidential Electors are chosen is not of decisive importance 42 OCTOBER TERM, 1968. Harlan, J., concurring in result. 393 U. S. to a solution of the constitutional problem before us. Just as a political group has a right to organize effectively so that its position may be heard in court, NAACP v. Button, supra, or in the legislature, cf. Eastern R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U. S. 127, 137-138 (1961); United States v. Rumely, 345 U. S. 41, 46-47 (1953); United States v. Harriss, 347 U. S. 612, 625-626 (1954); so it has the right to place its candidate for the Presidency before whatever body has the power to make the State’s selection of Electors. Consequently, it makes no difference that the State of Ohio may, under the Second Article of the Constitution, place the power of Electoral selection beyond the control of the general electorate. The requirement imposed by the Due Process Clause remains the same—no matter what the institution to which the decision is entrusted, political groups have a right to be heard before it. A statute that would require that all Electors be members of the two major parties is subject to the same constitutional challenge regardless of whether it is the legislature, the people, or some other body that is empowered to make the ultimate decision under the laws of the State. Of course, the State may limit the right of political association by invoking an impelling policy justification for doing so. But as my Brother Black’s opinion demonstrates, Ohio has been able to advance no such justification for denying almost half a million of its citizens their fundamental right to organize effectively for political purposes. Consequently, it may not exclude them from the process by which Presidential Electors are selected. In deciding this case of first impression, I think it unnecessary to. draw upon the Equal Protection Clause.1 1 The fact that appellants have chosen to pitch their argument throughout on the Equal Protection Clause does not, of course, limit us in reaching our decision here. WILLIAMS v. RHODES. 43 23 Harlan, J., concurring in result. I am by no means clear that equal protection doctrine, especially as it has been propounded in the recent state reapportionment cases, e. g., Reynolds v. Sims, 377 U. S. 533 (1964), may properly be applied to adjudicate disputes involving the mere procedure by which the President is selected, as that process is governed by profoundly different principles.2 Despite my doubts on this score, I think it perfectly consistent and appropriate to hold the Due Process Clause applicable. For I believe that our task is more difficult than one which involves merely the mechanical application of the commands to be found in the Fourteenth Amendment or in the first section of the Second Article to the Constitution. Rather, we must attempt to accommodate as best we may the narrow provision drafted by the Philadelphia Convention with the broad principles announced in the Fourteenth Amendment, generations later. A decision resting solely upon the Due Process Clause would permit such an accommodation—for such a holding fully respects the original purposes and early development of the Electoral College. When one looks beyond the language of Article II, and considers the Convention’s understanding of the College, Ohio’s restrictive approach is seen to undermine what the draftsmen understood to be its very essence. The College was created to permit the most knowledgeable members of the community to choose the executive of a nation whose continental dimensions were thought to preclude an informed choice 2 At no stage in the complex process by which a President is chosen is the “one man, one vote” principle of Reynolds v. Sims followed. The constitutional decision to grant each State at least three Electors, regardless of population, was a necessary part of the effort to gain the consent of the small States, as was the provision that when the choice of the President fell to the House, each state delegation would cast but one vote. See N. Peirce, The People’s President 43-50 (1968); L. Wilmerding, The Electoral College 17-22 (1958). 44 OCTOBER TERM, 1968. Harlan, J., concurring in result. 393 U. S. by the citizenry at large.3 If a State declares that an entire class of citizens is ineligible for the position of Elector, and that class is defined in a way in which individual merit plays no part, it strikes at the very basis of the College as it was originally conceived. The constitutional grant of power to the States was intended for a different purpose. While Madison reports that the popular election of Electors on a dis-trict-by-district basis was the method “mostly, if not exclusively, in view when the Constitution was framed and adopted,” 3 M. Farrand, The Records of the Federal Convention of 1787, p. 459 (1911), it is quite clear that a significant, if not dominant, group4 at the Convention contemplated that Electors would be chosen by other methods. It was to accommodate these members that the state legislatures were given their present leeway.5 While during the first four decades of the Republic, the States did in fact adopt a variety of methods for selecting their Electors,6 the parties in this case 3 Federalist Papers, No. 68 (Alexander Hamilton) (H. Lodge ed. 1908); American Bar Association, Electing The President 15 (1967); Wilmerding, supra, n. 2, at 10; R. MacBride, The American Electoral College 16-17 (1953). 4 The large number of leaders, of varying ideological convictions, who favored popular election included Hamilton, Madison, James Wilson, John Dickinson, Rufus King, Daniel Carroll, and Abraham Baldwin. The opponents of popular selection included Gerry, Ellsworth, Luther Martin, and Roger Sherman. See Chief Justice Fuller’s illuminating opinion in McPherson v. Blacker, 146 U. S. 1, 28 (1892). See also Wilmerding, supra, n. 2, at 13-14. 5 The story of the compromise is to be found in Wilmerding, supra, n. 2, at 17-22. The Convention did not, however, direct its attention to the precise meaning of the clause that is the subject of consideration here. See Peirce, supra, n. 2, at 45. 6 Electors were chosen by the legislature itself, by the general electorate on an at-large and district-by-district basis, partly by the legislature and partly by the people, by the legislature from a list of candidates selected by the people, and in other ways. See McPherson v. Blacker, supra, 28-33; Wilmerding, supra, n. 2, c. 3; Peirce, supra, n. 2, at 309. WILLIAMS V. RHODES. 45 23 Harlan, J., concurring in result. have pointed to, and I have found, no case in which the legislature attempted by statute to restrict the class of the enfranchised citizenry that could be considered for the office by whatever body was to make the choice.7 Nothing in the history of the Electoral College from the moment of its inception, then, indicates that the original understanding of that institution would at all be compromised if we refuse to read the language of Art. II, § 1, as granting a power of arbitrary action which is so radically inconsistent with the general principles of the Due Process Clause. Consequently, there is no obstacle to a holding which denies the States, absent an overriding state interest, the right to prevent third parties from having an opportunity to put their candidates before the attention of the voters or whatever other body the State has designated as the one which is to choose Electors. A word should be added about the constitutional status of Ohio’s requirement that a third party, to qualify for ballot position, must collect the signatures of eligible voters in a number equal to 15% of those voting at the last gubernatorial election. As I do not understand the State to contest the fact that Mr. Wallace and his partisans have successfully gathered more than the 433,100 signatures required by law, we can only properly reach this issue in the Socialist Labor Party case—for this Party did not even attempt to comply with the 7 Nor does the leading case in this area, McPherson v. Blacker, supra, support such a claim. There the plaintiffs-in-error had challenged Michigan’s attempt to permit its voters to select Electors on a district-by-district, rather than an at-large, basis. The Court held that, given the early history, see n. 6, supra, the States have the plenary power to alter the method by which Electors are selected so long as the method cannot be attacked on Fourteenth Amendment grounds. Pursuing this analysis, the unanimous Court found the district-by-district approach free of any Fourteenth Amendment defect, 146 U. S., at 37-40. I can perceive no reason to doubt the continuing validity of this holding. 46 OCTOBER TERM, 1968. Harlan, J., concurring in result. 393 U. S. statutory command. While the Court’s opinion, striking down Ohio’s statutory scheme in its entirety, does, as I read it, afford the Socialist Labor Party declaratory relief from the 15% provision, I think it well to deal with it more explicitly than the Court has done. In my view, this requirement, even when regarded in isolation, must fall. As my Brother Black’s opinion suggests, the only legitimate interest the State may invoke in defense of this barrier to third-party candidacies is the fear that, without such a barrier, candidacies will proliferate in such numbers as to create a substantial risk of voter confusion.8 Ohio’s requirement cannot be said to be reasonably related to this interest. Even in the unprecedented event of a complete and utter popular disaffection with the two established parties, Ohio law would permit as many as six additional party candidates to compete with the Democrats and Republicans only if popular support should be divided relatively evenly among the 8 My Brother Stewart is, of course, quite right in pointing out that the presence of third parties may on occasion result in the election of the major candidate who is in reality less preferred by the majority of the voters. It seems clear to me, however, that many constitutional electoral structures could be designed which would accommodate this valid state interest, without depriving other political organizations of the right to participate effectively in the political process. A runoff election may be mandated if no party gains a majority, or the decision could be left to the State Legislature in such a case, compare Fortson v. Morris, 385 U. S. 231 (1966). Alternatively, the voter could be given the right, at the general election, to indicate both his first and his second choice for the Presidency—if no candidate received a majority of first-choice votes, the second-choice votes could then be considered. Finally, Electors could be chosen on a district-by-district rather than an at-large basis, thereby apportioning the electoral vote in a way more nearly approximating the popular vote. See McPherson v. Blacker, supra, and text, at n. 4, supra. I would conclude that, with the substantial variety of less restrictive alternatives that are available, compare NA AGP v. Alabama, 377 U. S. 288, 307-308 (1964); Saia v. New York, 334 U. S. 558, 562 (1948); Martin v. Struthers, 319 U. S. WILLIAMS v. RHODES. 47 23 Harlan, J., concurring in result. new groups. And with fundamental freedoms at stake, such an unlikely hypothesis cannot support an incursion upon protected rights, especially since the presence of eight candidacies cannot be said, in light of experience, to carry a significant danger of voter confusion. As both Ohio’s electoral history9 and the actions taken by the overwhelming majority of other States 10 suggest, opening the ballot to this extent is perfectly consistent with the effective functioning of the electoral process. In sum, I think that Ohio has fallen far short of showing the compelling state interest necessary to overcome this otherwise protected right of political association. 141, 146-149 (1943); Thornhill v. Alabama, 310 U. S. 88, 96 (1940); Schneider v. State, 308 U. S. 147 (1939), this interest cannot support Ohio’s 15% requirement. 9 Ohio’s present statutory scheme is a product of legislative action taken between 1948 and 1952. Before that time, independent candidates had been granted a place on the ballot if they could gather the signatures of registered voters in the number of 1% of those voting at the preceding gubernatorial election and present their petitions 60 days before the general election. The State’s experience under this unexacting regime is instructive. Voting statistics compiled by Ohio’s Secretary of State reveal that since 1900 no more than seven parties have appeared on the ballot to compete for a major statewide or national office. And even this number was not attained after 1908. During the last 10 years of the old regime, there are only two third-party candidates of record. The State took effective action only after Electors pledged to Henry A. Wallace gained some 30,000 votes out of the 3,000,000 cast in 1948. Since Harry S Truman carried the State by some 7,000 votes, the Wallace vote might well have been decisive if it had increased marginally. 10 The other 49 States may be grouped in the following categories with regard to the size of the barriers they raise against third-party candidacies : Signatures Required as a % of Electorate No. of States De minimis to 0.1%...................................... 16 0.1% to 1%............................................ 26 1.1% to 3%.............................................. 3 3.1% to 5%.............................................. 4 48 OCTOBER TERM, 1968. Stewart, J., dissenting. 393 U.S. Since Ohio’s requirement is so clearly disproportionate to the magnitude of the risk that it may properly act to prevent, I need not reach the question of the size of the signature barrier a State may legitimately raise against third parties on this ground. This should be left to the Ohio Legislature in the first instance. Mr. Justice Stewart, dissenting in No. 543.* If it were the function of this Court to impose upon the States our own ideas of wise policy, I might be inclined to join my Brethren in compelling the Ohio election authorities to disregard the laws enacted by the legislature of that State. We deal, however, not with a question of policy, but with a problem of constitutional power. And to me it is clear that, under the Constitution as it is written, the Ohio Legislature has the power to do what it has done. I. The Constitution does not provide for popular election of a President or Vice President of the United States, either nationally or on a state-by-state basis. On the contrary, the Constitution explicitly specifies: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress . . . .” * 1 (Emphasis supplied.) * [Reporter's Note: For Mr. Justice Stewart's separate statement in No. 544, Socialist Labor Party et al. v. Rhodes, Governor of Ohio, et al., see ante, p. 35.] 1 U. S. Const., Art. II, §1. This provision represented a compromise among several conflicting views expressed at the Constitutional Convention regarding the most salutary method for choosing a President, most of which favored some method other than popular election. See McPherson v. Blacker, 146 U. S. 1, 28. WILLIAMS V. RHODES. 49 23 Stewart, J., dissenting. “The Electors shall meet in their respective states and vote by ballot for President and Vice-President . 2 Chief Justice Fuller, therefore, was stating no more than the obvious when he wrote for a unanimous Court in McPherson v. Blacker, 146 U. S. 1, more than 75 years ago: “The Constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket, nor that the majority of those who exercise the elective franchise can alone choose the electors. It recognizes that the people act through their representatives in the legislature, and leaves it to the legislature exclusively to define the method of effecting the object. “In short, the appointment and mode of appointment of electors belong exclusively to the States under the Constitution of the United States. . . .” Id., at 27, 35. A State is perfectly free under the Constitution to provide for the selection of its presidential electors by the legislature itself. Such a process of appointment was in fact utilized by several States throughout our early history, and by one State, Colorado, as late as 1876.3 Or a state legislature might nominate two slates of electors, and allow all eligible voters of the State to choose between them. Indeed, many of the States formerly provided for the appointment of presidential electors by 2 U. S. Const., Arndt. 12. The Twelfth Amendment also specifies the procedures for selecting a President and Vice President in the event that no candidate receives a majority of votes in the electoral college. 3 See McPherson v. Blacker, supra, at 35. 50 OCTOBER TERM, 1968. Stewart, J., dissenting. 393 U. S. various kinds of just such cooperative action of their legislatures and their electorates.4 Here, the Ohio Legislature has gone further, and has provided for a choice by the State’s eligible voters among slates of electors put forward by all political parties that meet the even-handed requirements of longstanding state laws. We are told today, however, that, despite the power explicitly granted to the state legislatures under Art. II, § 1, the Legislature of Ohio nonetheless violated the Constitution in providing for the selection of electors in this way. I can perceive no such constitutional violation. I agree with my Brethren that, in spite of the broad language of Art. II, § 1, a state legislature is not completely unfettered in choosing whatever process it may wish for the appointment of electors. Three separate constitutional amendments explicitly limit a legislature’s power. The Fifteenth Amendment makes clear that if voters are to be included in the process, no voter may be excluded “on account of race, color, or previous condition of servitude.” The Nineteenth Amendment makes equally clear that no voter may be excluded “on account of sex.” And the Twenty-fourth Amendment prohibits exclusion of any voter “by reason of failure to pay any poll tax or other tax.” But no claim has been or could be made in this case that any one of these Amendments has been violated by Ohio. 4 “[V]arious modes of choosing the electors were pursued, as, by the legislature itself on joint ballot; by the legislature through a concurrent vote of the two houses; by vote of the people for a general ticket; by vote of the people in districts; by choice partly by the people voting in districts and partly by the legislature; by choice by the legislature from candidates voted for by the people in districts; and in other ways . . . .” McPherson v. Blacker, supra, at 29. For a fuller description of the diverse methods pursued by the States in appointing their electors under Art. II, § 1, during this Country’s first century of constitutional experience, see id., at 26-35. WILLIAMS V. RHODES. 51 23 Stewart, J., dissenting. Rather, it is said that Ohio has violated the provisions of the Fourteenth Amendment. The Court holds that the State has violated that Clause of the Amendment which prohibits it from denying “to any person within its jurisdiction the equal protection of the laws.” And two concurring opinions emphasize First Amendment principles, made applicable to the States through the Fourteenth Amendment’s guarantees, in summarily concluding that Ohio’s statutory scheme is invalid. I concede that the Fourteenth Amendment imposes some limitations upon a state legislature’s freedom to choose a method for the appointment of electors. A State may not, for example, adopt a system that discriminates on grounds of religious or political belief. But I cannot agree that Ohio’s system violates the Fourteenth Amendment in any way. II. In view of the broad leeway specifically given the States by Art. II, § 1, of the Constitution, it seems clear to me that the basic standard of constitutional adjudication under the Equal Protection Clause—a standard under which only “invidious discrimination” is forbidden—is the most stringent test that properly can be held applicable here. A single quotation should suffice to summarize that standard of equal protection: “The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” McGowan v. Maryland, 366 U. S. 420, 425-426. 320-583 0 - 69 - 12 52 OCTOBER TERM, 1968. Stewart, J., dissenting. 393 U. S. The provisions enacted by the Ohio Legislature fully meet that standard.5 The laws of Ohio classify political parties, for purposes of access to that State’s ballot, according to size and strength.6 Those that timely demonstrate widespread support in the State may submit a slate of presidential electors to Ohio’s voters, while those that neither have participated in past elections nor can show the support of 15% of the voting public 90 days before a primary election may not.7 The appellants claim that these provisions discriminate against them. They assert that although Ohio may establish “reasonable” qualifying standards so that ballots do not become unwieldy, the 5 It is clear that this Court’s decisions in such cases as Baker v. Carr, 369 U. S. 186; Gray v. Sanders, 372 U. S. 368; and Reynolds v. Sims, 377 U. S. 533, all involving the direct popular election of candidates to state or federal office, do not control the issues in this case. Indeed, no opinion today suggests that those cases are apposite. They sustained the right of a voter to cast a ballot whose numerical weight is the equal of that of any other vote cast within the jurisdiction in question. No claim is made in this case that Ohio has in any way violated that right. 6 The appellants plainly do not object to working through or voting for candidates of partisan political organizations, and I do not understand them to claim discrimination on the basis of Ohio’s failure to allow access to its presidential ballot via an “independent nominating petition.” 7 Appellants have cited us to a complex group of Ohio statutes which they say are relevant to the participation of political parties in that State’s presidential elections. See Ohio Rev. Code §§ 3505.10, 3513.05, 3513.11, 3513.19, 3513.191, 3517.01-3517.04. It is not entirely clear that all of those provisions are applicable to parties participating in the electoral process for the first time. But we need not examine that question since in any event the appellants clearly failed to file with the Secretary of State of Ohio on February 7 of this year, 90 days before the State’s primary election, a petition signed by a number of voters equal to 15% of the number participating in Ohio’s last gubernatorial election. Ohio Rev. Code §§3505.10, 3517.01. WILLIAMS V. RHODES. 53 23 Stewart, J., dissenting. strength of the American Independent Party is so substantial that no such requirement could possibly suffice to keep the Party’s candidates off the presidential ballot. Ohio’s requirements are so high, they contend, that the legislative purpose behind those requirements can be only to keep new parties—even those that, like the American Independent Party, have gained considerably more than “splinter” support—off the ballot. And such requirements, they conclude, thus deny persons in their position equal protection of the laws. Ohio for its part concedes that the legislative objective underlying the statutes in question is to prevent the appearance on its ballot of slates of presidential electors whose substantial party support has not been timely demonstrated. That the basic classification drawn by the provisions is not “irrelevant to the achievement of the State’s objective”—the traditional standard for judging the validity of a legislative classification under the Equal Protection Clause—is clear. The Court seems to concede as much, but nonetheless holds that the Ohio provisions are invalid—a result which may rest in part, I believe, upon possible doubts regarding the permissibility of the legislative objective itself. The propriety of that objective is, then, a critical issue for determination. III. I can discern no basis for the position that Ohio’s objective is in any way an illegitimate one. Surely a State may justifiably assert an interest in seeing that its presidential electors vote for the candidate best able to draw the support of a majority of voters within the State. By preventing parties that have not demonstrated timely and widespread support from gaining places on its ballot, Ohio’s provisions tend to guard against the possibility that small-party candidates will draw enough support to prevent either of the major contenders from obtaining 54 OCTOBER TERM, 1968. Stewart, J., dissenting. 393 U. S. an absolute majority of votes—and against the consequent possibility that election may be secured by candidates who gain a plurality but who are, vis-à-vis their principal opponents, preferred by less than half of those voting.8 Surely the attainment of these objectives is well within the scope of a State’s authority under our Constitution. One may perhaps disagree with the political theory on which the objectives are based, but it is inconceivable to me that the Constitution imposes on the States a political philosophy under which they must be satisfied to award election on the basis of a plurality rather than a majority vote. In pursuing this interest Ohio has, at the same time, not completely prevented new parties from gaining access to that State’s ballot. It has authorized ballot position for parties that can demonstrate by petition the support of 15% of the voting public 90 days before a primary election is to be held. My Brethren seem to suggest that the percentage figure is set too high, and the date too early. But I cannot join in this kind of second-guessing. While necessarily arbitrary, Ohio’s standards can only be taken to represent reasonable 8 This interest, which several States have chosen to protect in the context of state and local primary contests by providing for runoff elections, may be illustrated by a hypothetical example. Assume a State in which a dissident faction of one of the two major parties—party A—becomes dissatisfied with that party’s nominees and sets itself up as a “third party”—party C—putting forward candidates more to its liking. Still, the members of party C much prefer the candidates of party A to those of party B. A situation is possible in which party B’s candidates poll, for example, 46% of the vote, party A’s candidates 44%, and party C’s candidates 10%. Party B’s candidates would in such a situation be elected by plurality vote. In an election involving only the candidates of parties A and B, however, those persons preferring party C’s candidates might well have voted overwhelmingly for party A’s, thus giving party A’s candidates a substantial majority victory. WILLIAMS v. RHODES. 55 23 Stewart, J., dissenting. attempts at accommodating the conflicting interests involved.9 Although Ohio’s provisions do not freeze the Republican and Democratic Parties into the State’s election structure by specific reference to those parties, it is true that established parties, once they become participants in the electoral process, continue to enjoy ballot position so long as they have polled 10% of the vote in the most recent Ohio gubernatorial election. It is suggested that the disparity between this figure and the *15% requirement applicable to new parties is invidiously discriminatory. But I cannot accept the theory that Ohio is constitutionally compelled to apply precisely the same numerical test in determining whether established parties enjoy widespread support as it applies in determining that question with regard to new parties. It is by no means clear to me that as an abstract matter there are no differences between parties that have long been on the ballot in a State and those that have not, such as might justify disparate standards for determining in those two classes of cases when widespread support, required for ballot position, has been demonstrated. In any event, I cannot conclude that the disparity involved here denies equal protection of the laws. The difference in figures is a difference between the requirements for getting on and staying on the ballot. It seems to me to be well within the State’s powers to set somewhat different standards for those two requirements, so long as it applies them uniformly to all political parties. The only remaining argument would seem to be that the Republican and Democratic Parties never had to meet the 15% requirement: they were on the ballot in Ohio at the time the statutory scheme was 9 The date specified, for instance, is related to Ohio’s requirement that all political parties hold primary elections—another provision that is, it seems to me, well within the State’s power to enact. 56 OCTOBER TERM, 1968. Stewart, J., dissenting. 393 U. S. enacted, and so have had only to make certain they remain on by meeting the 10% standard. But the Ohio Legislature could well have taken notice at the time the provisions were enacted that the parties which had polled over 10% of the vote in the most recent gubernatorial election—the Republican and Democratic Parties—had both demonstrated strength far beyond the 15% figure specified for ballot entry by new parties. It seems to me totally unrealistic, therefore, to conclude that this minor disparity in standards cannot be justified by “any state of facts [that] reasonably may be conceived.” McGowan v. Maryland, supra, at 426. IV. The Court’s opinion appears to concede that the State’s interest in attempting to ensure that a minority of voters do not thwart the will of the majority is a legitimate one, but summarily asserts that this legitimate interest cannot constitutionally be vindicated. That assertion seems to echo the claim of my concurring Brethren—a claim not made by the appellants—that Ohio’s statutory requirements in some way infringe upon First Amendment rights. I cannot agree. As the language of Art. II, § 1, and a great deal of history under that section make clear, there is no constitutional right to vote for presidential electors.10 I take it, therefore, that the First Amendment theory of my Brethren rests on the view that, despite the legitimacy of the objective underlying Ohio’s laws, those laws nonetheless have the effect of stifling the activity of persons who disagree with the major political parties now in existence. The concurring opinions cite a series of decisions protecting what has been termed the First 10 Cf. Minor v. Happersett, 21 Wall. 162, 178: “[T]he Constitution of the United States does not confer the right of suffrage upon any one . . . .” WILLIAMS V. RHODES. 57 23 Stewart, J., dissenting. Amendment right of association. NAACP v. Button, 371 U. S. 415; Bates v. Little Rock, 361 U. S. 516; NAACP v. Alabama, 357 U. S. 449; Thomas v. Collins, 323 U. S. 516; De Jonge v. Oregon, 299 U. S. 353. In my view, however, the principles on which those decisions were based do not call for today’s result. In Thomas v. Collins and De Jonge v. Oregon, supra, the very design of the statutes in question was to prevent persons from freely meeting together to advance political or social views. Ohio’s laws certainly are not of that nature. In the other three cases cited, all involving the activities of the National Association for the Advancement of Colored People, the statutes challenged were not on their face calculated to affect associational rights. We were able to determine with a good deal of certainty in those cases, however, (1) that application of the statutes to the NAACP would clearly result in a considerable impairment of those rights, and (2) that the interest said to underlie the statutes was insubstantial in the contexts presented. I believe that those conclusions should as a general matter be regarded as prerequisites to any holding that laws such as those involved here, which serve a legitimate state interest but are said to have some impact on First Amendment activity, are invalid. Cf. United States v. O’Brien, 391 U. S. 367. In NAACP v. Alabama, supra, for instance, where the NAACP was ordered in accord with state law to disclose its membership lists, we outlined the issues as follows: “We think that the production order, in the respects here drawn in question, must be regarded as entailing the likelihood of a substantial restraint upon the exercise by petitioner’s members of their right to freedom of association. Petitioner has made an uncontroverted showing that on past occasions revelation of the identity of its rank-and-file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and 58 OCTOBER TERM, 1968. Stewart, J., dissenting. 393 U.S. other manifestations of public hostility. Under these circumstances, we think it apparent that compelled disclosure of petitioner’s Alabama membership is likely to affect adversely the ability of petitioner and its members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate, in that it may induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of this exposure. “We turn to the final question whether Alabama has demonstrated an interest in obtaining the disclosures it seeks from petitioner which is sufficient to justify the deterrent effect which we have concluded these disclosures may well have on the free exercise by petitioner’s members of their constitutionally protected right of association. . . . “. . . The exclusive purpose [of the state authorities] was to determine whether petitioner was conducting intrastate business in violation of the Alabama foreign corporation registration statute, and the membership lists were expected to help resolve this question. The issues in the litigation commenced by Alabama by its bill in equity were whether the character of petitioner and its activities in Alabama had been such as to make petitioner subject to the registration statute, and whether the extent of petitioner’s activities without qualifying suggested its permanent ouster from the State. Without intimating the slightest view upon the merits of these issues, we are unable to perceive that the disclosure of the names of petitioner’s rank-and-file members has a substantial bearing on either of them. ...” 357 U. S., at 462-464. WILLIAMS V. RHODES. 59 23 Stewart, J., dissenting. And in Bates v. Little Rock, supra, where an almost identical requirement was involved, we stated: “On this record it sufficiently appears that compulsory disclosure of the membership lists of the local branches of the National Association for the Advancement of Colored People would work a significant interference with the freedom of association of their members. There was substantial uncontroverted evidence that public identification of persons in the community as members of the organizations had been followed by harassment and threats of bodily harm. There was also evidence that fear of community hostility and economic reprisals that would follow public disclosure of the membership fists had discouraged new members from joining the organizations and induced former members to withdraw. This repressive effect, while in part the result of private attitudes and pressures, was brought to bear only after the exercise of governmental power had threatened to force disclosure of the members’ names. . . . Thus, the threat of substantial government encroachment upon important and traditional aspects of individual freedom is neither speculative nor remote. “Decision in this case must finally turn, therefore, on whether the cities as instrumentalities of the State have demonstrated so cogent an interest in obtaining and making public the membership lists of these organizations as to justify the substantial abridgment of associational freedom which such disclosures will effect. . . . “In this record we can find no relevant correlation between the power of the municipalities to impose occupational license taxes and the compulsory disclosure and publication of the membership lists of the local branches of the National Association for the 60 OCTOBER TERM, 1968. Stewart, J., dissenting. 393 U. S. Advancement of Colored People. . . .” 361 U. S., at 523-525.11 Here, there certainly is no comparable showing that Ohio’s ballot requirements have any substantial impact on the attempts of political dissidents to organize effectively. Such persons are entirely free to assemble, speak, write, and proselytize as they see fit. They are free either to attempt to modify the character of the established major parties or to go their own way and set up separate political organizations. And if they can timely demonstrate that they have substantial support within the State—according to Ohio’s reasonable standards for deciding that question—they may secure ballot position for the candidates they support. Ohio has restricted only their ability to secure ballot position without demonstrating that support. To me the conclusion that that single disability in any way significantly impairs their First Amendment rights is sheer speculation. As my Brethren’s surveys of ballot requirements in the various States suggest, the present two-party system in this country is the product of social and political forces rather than of legal restrictions on minority parties. This Court has been shown neither that in States with minimal ballot restrictions third parties have flourished, nor that in States with more difficult requirements they are moribund. Mere speculation ought not to suffice to strike down a State’s duly enacted laws. Nor, I think, can we with any confidence conclude that Ohio’s interest in attempting to ensure that the will of the majority shall prevail is an insubstantial one. It requires more insensitivity to constitutional principles of federalism than I possess to tell Ohio that that interest is, ac- 11 The NAACP cases, furthermore, held invalid only the application of the state laws in question to the parties involved. Here, however, Ohio is told, as I read the opinion of the Court and the concurring opinions, that it cannot in any circumstances validly enforce its ballot requirements. WILLIAMS v. RHODES. 61 23 Opinion of White, J. cording to this Court’s scale of values, somehow unworthy of implementation.12 I cannot conclude, therefore, that First Amendment principles call for the result reached today. V. It is thought by a great many people that the entire electoral college system of presidential selection set up by the Constitution is an anachronism in need of major overhaul.13 As a citizen, I happen to share that view. But this Court must follow the Constitution as it is written, and Art. II, § 1, vests in the States the broad discretion to select their presidential electors as they see fit. The method Ohio has chosen may be unwise as a matter of policy, but I cannot agree that it violates the Constitution.14 Mr. Justice White, dissenting in No. 543 and concurring in No. 544. I agree with much of what my Brother Stewart says in his dissenting opinion in No. 543. In my view, neither 12 My Brother Harlan suggests that Ohio’s interest may be protected in “less restrictive” ways. In light of the views I have stated above, I do not see why Ohio should be compelled to utilize one method for achieving its ends rather than another. In any event, each of the methods mentioned by Mr. Justice Harlan appears to me to entail consequences which arguably would frustrate other legitimate state interests. Nor do all of them serve as effectively to promote the interest in question here as does the statutory scheme the Ohio Legislature has in fact enacted. I do not think problems such as those raised in this case can be solved by means of facile and unelaborated suggestions of “less restrictive alternatives”; issues of legislative policy are too complex for such easy answers to be satisfactory. 13 Similar suggestions were being made as early as 1804, at the time of the adoption of the Twelfth Amendment. See McPherson v. Blacker, 146 U. S. 1, 33. 14 For the reasons stated in this opinion, and the further reasons stated in Part IV of the opinion of the Court, I agree with the Court’s denial of equitable relief to the appellants in No. 544, the Socialist Labor Party case. 62 OCTOBER TERM, 1968. Opinion of White, J. 393 U. S. the Due Process Clause nor the Equal Protection Clause of the Fourteenth Amendment prohibits Ohio from requiring that the appointment of presidential electors be carried out through the political party process. The Court does not hold that Ohio must accord ballot position to those who are unwilling to work through the framework of an established or nascent political party, nor do I understand appellants to make this contention. In this connection, there is no suggestion in the majority opinion that Ohio, merely by requiring potential candidates to participate in a primary, has acted unreasonably. Indeed, this requirement provides the opportunity for the presentation and winnowing out of candidates which is surely a legitimate objective of state policy. Nor is it held that Ohio’s requirement, pursuant to this objective, that parties must show their base of popular support by obtaining the signatures of 15% of Ohio’s gubernatorial voters is itself unreasonable. In the face of such requirements, which neither alone nor in combination are unconstitutional, I do not understand how the American Independent Party may be ordered on the ballot over the objections of the State. The Independent Party has not complied with the provision that it show a sufficient base of popular support in time for participation in a primary. Indeed, the Party made no effort whatsoever to comply with these provisions. It claims it secured the necessary number of signatures but admits it wholly ignored the requirement that the petitions be filed prior to the primary election date. Had it filed them, and been denied participation in the primary or the election for failure to meet some other requirement, the case would be very different. But it did not even commence judicial challenge of the signature requirement, not to mention gathering signatures, in time to participate in the primary. The Independent Party is in no position to complain that it would have been impos- WILLIAMS V. RHODES. 63 23 Warren, C. J., dissenting. sible for its members to gather the necessary signatures— which they were in fact able to assemble subsequently— or that it might in its progress toward ballot position have encountered some later obstacle. That other Ohio provisions related to later phases of the election process might have imposed unconstitutional barriers to ballot position is no reason to excuse the Independent Party from complying with those preconditions which the State may validly impose. Why a majority of the Court insists on holding the primary petition requirement impermissible, not on its own demerits, but because it appears in the statute books with more questionable provisions is the major mystery of the majority position. Neither the Independent nor the Socialist Labor Party is entitled to relief in this Court. Mr. Chief Justice Warren, dissenting. We have had but seven days to consider the important constitutional questions presented by these cases. The rationale of the opinion of the Court, based both on the Equal Protection Clause and the First Amendment guarantee of freedom of association, will apply to all elections, national, state, and local. Already, litigants from Alabama, California, Illinois, and Virginia have requested similar relief virtually on the eve of the 1968 presidential election. I think it fair to say that the ramifications of our decision today may be comparable to those of Baker v. Carr, 369 U. S. 186 (1962), a case we deliberated for nearly a year.1 11 Appellants’ belated requests for extraordinary relief have compelled all members of this Court to decide cases of this magnitude without the unhurried deliberation which is essential to the formulation of sound constitutional principles. 1 Baker was originally argued on April 19-20, 1961. On May 1, 1961, it was set for reargument and was reargued on October 9, 1961. Our decision was not announced until March 26, 1962, over 11 months after the original argument. 64 OCTOBER TERM, 1968. Warren, C. J., dissenting. 393 U. S. I. I cannot agree that the State of Ohio should be compelled to place the candidates of the American Independent Party on the ballot for the impending presidential election. Nor can I draw a distinction between this Party and the Socialist Labor Party. Both suits were filed in July of this year, and both were decided on August 29, 1968. The following week the American Independent Party petitioned the Circuit Justice for its Circuit for provisional relief, which was granted on September 10. The Socialist Labor Party sought similar relief only three days after the September 10 order was issued. Mr. Justice Stewart granted provisional relief to one, but denied it to the other. No Ohio statutory deadline compelled that result, and presumably Ohio could have complied with an order granting the same relief to both Parties.* I 2 Both Parties should be treated alike; otherwise, we are bowing to a show of strength rather than applying constitutional principles. Appellants have invoked the equity jurisdiction of the federal courts. Placed in this context, the litigation be- 2 Mr. Justice Stewart based his denial of the Socialist Labor Party’s request for provisional relief upon the following considerations: “the late date on which this motion was presented, the action already taken by the Ohio authorities, the relief already granted the appellants by the district court, and the fact that the basic issues they present will be fully canvassed in the argument of the appeal in Williams v. Rhodes . . . .” He did not suggest that the State of Ohio made any representations that it could not comply with an order granting the Socialist Labor Party the same relief already granted the American Independent Party. I do not think any significance should be given to the fact that the interim relief granted by Mr. Justice Stewart made it physically possible to place the American Independent Party on the ballot. This relief, as explicitly recognized by Mr. Justice Stewart, was granted solely to allow Ohio to comply with all possible orders of this Court. WILLIAMS v. RHODES. 65 23 Warren, C. J., dissenting. fore us presents an issue not treated by the opinion of the Court: did the District Court abuse its discretion in denying the extraordinary equitable relief requested by appellants? 3 A review of the facts before the District Court convinces me that it did not, and therefore the emergency relief sought by appellants should be denied. The Socialist Labor Party has been an organized political party in Ohio since the end of the 19th century, and although it has not achieved ballot position since the enactment in 1948 of the laws it challenges,4 not until July 2, 1968, did it press its claims for equitable relief. Similarly, the supporters of George C. Wallace did not institute their action until July 29, 1968, although early in 1967 Governor Wallace had expressed interest in the Presidency,5 and, in the spring of that year, he voiced concern for the restrictive nature of Ohio’s qualifying laws.6 Nevertheless, neither the American Independent Party nor the Socialist Labor Party made an effort to comply with Ohio’s election laws. Nor has either timely invoked the jurisdiction of the courts. That both had the opportunity to do so cannot be denied. Because the 3 This is the traditional standard for review of the denial of equitable relief. See, e. g., Brotherhood of Locomotive Engineers v. M.-K.-T. R. Co., 363 U. S. 528, 535 (1960); United Fuel Gas Co. v. Public Serv. Comm’n, 278 U. S. 322, 326 (1929). 4 Appellants’ Complaint in No. 544, pp. 1-2. 5 New York Times, Jan. 26, 1967, p. 20, col. 3. 6 Commencing in late April 1967, Governor Wallace began a four-day tour of selected northern States. At a press conference in Pittsburgh on April 27 he stated that he expected to run for President in all 50 States and that it might be necessary to institute suit in States where third parties had difficulty obtaining ballot position. Aides to the Governor mentioned California and Ohio as States in which difficulty might be encountered. New York Times, April 28, 1967, p. 28, col. 5. 66 OCTOBER TERM, 1968. Warren, C. J., dissenting. 393 U. S. State of Ohio does not challenge the validity of the signatures gathered by the American Independent Party, a majority of this Court assumes they reflect the strength of that Party in Ohio. However, since the signatures were not submitted to Ohio in timely compliance with the State’s election laws, they have never been verified; in fact, appellants in No. 543 did not seek to file their signatures until over five months after the statutory filing date.7 Despite these delays in instituting suit and the failure of either party to make an effort to comply with any of Ohio’s election laws, the District Court ordered Ohio to provide for write-in voting. This relief guaranteed that each Ohio voter would have the right to vote for the candidate of his choice, including the candidates of these two Parties. At worst, therefore, denying appellants a position on the ballot for the 1968 election prevented their candidates from competing on a completely equal basis with the candidates of the two major parties. The imminence of the election, the Parties’ failure to comply with Ohio law and the District Court’s grant of partial relief must be considered in conjunction with the need to promote orderly federal-state relationships. Our reports are replete with decisions concerning the nature of the relief to be afforded in these sensitive areas, yet the opinion of the Court does not address itself to the principles of these cases. In the analogous area of legislative apportionment, we have often tolerated a temporary dilution of voting rights to protect the legitimate interests of the States in fashioning their own elec- 7 The Ohio election laws require that petitions for a position on the Ohio ballot be filed 90 days before the state primary. Ohio Rev. Code §§3513.256-3513.262, 3517.01 (1960 Repl. Vol.). Appellants in No. 543 concede in their brief that their deadline was February 7, 1968, yet they apparently did not attempt to file their petitions until late in July. Appellants’ Brief 86. WILLIAMS v. RHODES. 67 23 Warren, C. J., dissenting. tion laws, see, e. g., Lucas v. Colorado General Assembly, 377 U. S. 713, 739 (1964); cf. Davis v. Mann, 377 U. S. 678, 692-693 (1964); and in the area of school desegregation we have demonstrated even greater deference to the States. On occasion, we have even counseled abstention where First Amendment rights have been allegedly infringed by state legislation. See Harrison v. NAACP, 360 U. S. 167 (1959). For example, in WMCA, Inc. v. Lomenzo, 377 U. S. 633 (1964), holding unconstitutional the apportionment of New York’s Legislature, we stated that on remand the District Court “acting under equitable principles, must now determine whether, because of the imminence of that election and in order to give the New York Legislature an opportunity to fashion a constitutionally valid legislative apportionment plan, it would be desirable to permit the 1964 election of legislators to be conducted pursuant to the existing [unconstitutional] provisions, or whether under the circumstances the effectuation of appellants’ right to a properly weighted voice in the election of state legislators should not be delayed beyond the 1964 election.” 8 Id., at 655. (Emphasis added.) 8 The prior history of Preisler v. Secretary of State, 279 F. Supp. 952 (D. C. W. D. Mo. 1967), probable jurisdiction noted sub nom. Kirkpatrick v. Preisler, 390 U. S. 939 (1968), aptly demonstrates the deference we have paid legislative action in this area. On January 4, 1965, the United States District Court for the Western District of Missouri held that the 1961 Missouri Congressional Redistricting Act was unconstitutional, but it refused to grant any additional relief “until the Legislature of the State of Missouri has once more had an opportunity to deal with the problem . . . .” Preisler v. Secretary of State, 238 F. Supp. 187, 191 (D. C. W. D. Mo. 1965). The Missouri General Assembly then enacted the 1965 Congressional Redistricting Act. On August 5, 1966, the District Court held this new plan unconstitutional, but it nevertheless permitted the 1966 Missouri congressional elections to be conducted under the void act. Preisler v. Secretary of State, 257 F. Supp. 953 320-583 0 - 69 - 13 68 OCTOBER TERM, 1968. Warren, C. J., dissenting. 393 U.S. Green v. County School Board, 391 U. S. 430 (1968), decided only last Term, provides an even more striking example of our concern for the need to refrain from usurping the authority of the States in areas traditionally entrusted to them. Green reached this Court 13 years after Brown v. Board of Education, 349 U. S. 294 (1955), required that schools be established free of racial discrimination with “all deliberate speed.” Although we held in Green that the particular “freedom-of-choice” plan adopted by the school board did not pass constitutional muster, the case was remanded to the District Court so that the school board could once again attempt to formulate a constitutional plan. The result achieved here is not compatible with recognized equitable principles, nor is it compatible with our traditional concern, manifested in both the reapportionment and school desegregation cases, for preserving the properly exercised powers of the States in our federal system. Moreover, in none of these analogous areas did we deal with an express constitutional delegation of power to the States. That delegation is unequivocal here. U. S. Const., Art. II, § 1. The net result of the Court’s action is that this Court is writing a new presidential election law for the State of Ohio without giving the Legislature or the courts of that State an opportunity to appraise their statutes in litigation 9 or to eliminate any constitutional defects (D. C. W. D. Mo. 1966). We affirmed on January 9, 1967, sub nom. Kirkpatrick v. Preisler, 385 U. S. 450. In 1967, the Missouri General Assembly made still another attempt to enact a constitutional plan, but on December 29, 1967, this plan was also invalidated. 279 F. Supp. 952. 9 Cf. Scott v. Germano, 381 U. S. 407, 409 (1965), in which we stated that the “power of the judiciary of a State to require valid reapportionment or to formulate a valid redistricting plan has not only been recognized by this Court but appropriate action by the States in such cases has been specifically encouraged.” WILLIAMS v. RHODES. 69 23 Warren, C. J., dissenting. prior to a decision by this Court. Given both the lateness of the hour and the legitimate demands of federalism, the District Court did not abuse its discretion in denying the extraordinary relief appellants demanded. II. Although I believe that the court below properly exercised its discretionary equitable powers, this litigation involves far more than a resolution of whether either Party is entitled to ballot position for the 1968 election. Appellants’ request for declaratory relief, challenging the constitutionality of Ohio’s system of conducting presidential elections, has raised a question which may be fairly classified as one of first impression: 10 to what extent may a State, consistent with equal protection and the First Amendment guarantee of freedom of association, impose restrictions upon a candidate’s desire to be placed upon the ballot? As I have already stated, the principles which would of necessity evolve from an answer to this question could not be confined either to the State of Ohio or to presidential elections. Both the opinion of this Court and that of the District Court leave unresolved what restrictions, if any, a State can impose. Although both opinions treat the Ohio statutes as a “package,” giving neither Ohio nor the courts any guidance, each contains intimations that a State can by reasonable regulation condition ballot posi- 10 MacDougall v. Green, 335 U. S. 281 (1948), did contest the constitutionality of Illinois’ system of nominating candidates representative of new political parties. However, MacDougall was decided during the reign of Colegrove v. Green, 328 U. S. 549 (1946). Baker n. Carr, 369 U. S. 186 (1962), and its progeny have substantially modified the constitutional matrix in this area. Fortson v. Morris, 385 U. S. 231 (1966), although concerning the constitutionality of state election laws, involved consideration of a State’s post-election procedure, not state requirements for initial ballot qualification. 70 OCTOBER TERM, 1968. Warren, C. J., dissenting. 393 U. 8. tion upon at least three considerations—a substantial showing of voter interest in the candidate seeking a place on the ballot, a requirement that this interest be evidenced sometime prior to the election, and a party structure demonstrating some degree of political organization. With each of these propositions I can agree. I do not believe, however, as does Mr. Justice Stewart, that the Equal Protection Clause has only attenuated applicability to the system by which a State seeks to control the selection of presidential electors. Whatever may be the applicable constitutional principles, appellants and the State of Ohio are entitled to know whether any of the various provisions attacked in this litigation do comport with constitutional standards. As demonstrated by Zwickler v. Koota, 389 U. S. 241 (1967),11 this matter should be first resolved by the court below. Given the magnitude of the questions presented and the need for unhurried deliberation, I would dispose of appellants’ request for declaratory relief in a manner consistent with Zwickler by a remand to the District Court for a clearer determination of the serious constitutional questions raised in these cases. I must therefore dissent from the failure of the Court’s opinion to explore or dispose adequately of the declaratory judgment actions, as well as from the grant of extraordinary relief in No. 543. 11 “We hold that a federal district court has the duty to decide the appropriateness and the merits of the declaratory request irrespective of its conclusion as to the propriety of the issuance of the injunction.” 389 U. S., at 254. FPC v. UNITED GAS PIPE LINE CO. 71 Per Curiam. FEDERAL POWER COMMISSION v. UNITED GAS PIPE LINE CO. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 247. Decided October 21, 1968.* This Court previously sustained the formula of the Federal Power Commission (FPC) for determining the tax component of respondent’s cost of service but remanded the cases (386 U. S. 237) with respect to whether it was significant in applying the formula that respondent had both jurisdictional and non jurisdictional income. The Court of Appeals held that the issue had been sufficiently raised by respondent’s petition for rehearing before the FPC and that the formula required that consolidated tax savings be first allocated to respondent’s non jurisdictional income. Held: Since the FPC did not disclose the basis for its order and did not “give clear indication that it has exercised the discretion with which Congress has empowered it,” Phelps Dodge Corp. v. NLRB, 313 U. S. 177, 197, the cases were not in the proper posture for judicial review and should have been remanded to the FPC for further consideration. Certiorari granted; 388 F. 2d 385, reversed and remanded. Solicitor General Griswold, Harris Weinstein, Richard A. Solomon, and Peter H. Schiff for petitioner in No. 247. Reuben Goldberg and George E. Morrow for petitioner in No. 248. David T. Searls and Vernon W. Woods for respondent in both cases. Per Curiam. When these cases were here the first time, we sustained the authority of the Federal Power Commission to determine the tax component of United’s cost of service in *Together with No. 248, Memphis Light, Gas & Water Division v. United Gas Pipe Line Co., also on petition for writ of certiorari to the same court. 72 OCTOBER TERM, 1968. Per Curiam. 393 U.S. accordance with the formula developed by it in Cities Service Gas Co., 30 F. P. C. 158 (1963), but remanded the cases with respect to whether in applying the Cities Service formula it was significant that United apparently had both jurisdictional and non jurisdictional activities and income. FPC v. United Gas Pipe Line Co., 386 U. S. 237 (1967). Over the objections of the Commission, the Court of Appeals held that the issue had been sufficiently raised by United in its petition for rehearing before the Commission in accordance with § 19 of the Natural Gas Act, 52 Stat. 831, as amended, 15 U. S. C. § 717r, and that the Cities Service formula required that consolidated return tax savings coming to United be first allocated to United’s nonjurisdictional income. The petitions for certiorari are granted and the judgment of the Court of Appeals is reversed.! Although we acquiesce in the Court of Appeals’ construction of United’s petition for rehearing filed with the Commission, the issue on remand was not in the proper posture for final determination by the Court of Appeals and should have been remanded to the Commission for further consideration. It is true that the Commission in its opinion had remarked that “United is largely a regulated company, and we shall designate it as such for the purpose of these computations.” United Gas Pipe Line Co., 31 F. P. C. 1180, 1190 (1964). But the Commission made no effort to justify this characterization of United in terms of the findings, the fundamentals of the Cities Service formula, or the applicable law. This may have been because the adversary proceedings were primarily concerned with the validity of the formula itself and never focused precisely on the question of intra-company revenue and cost allocation. Whatever the reason, there was “no indication of the basis on which the Commission exercised its expert fThe motion for leave to use the record in the prior proceedings before this Court, Nos. 127 and 128, October Term, 1966, is granted. FPC v. UNITED GAS PIPE LINE CO. 73 71 Per Curiam. discretion,” no articulation of “any rational connection between the facts found and the choice made.” Burlington Truck Lines, Inc. v. United States, 371 U. S. 156, 167, 168 (1962). On this issue the Commission’s order was vulnerable on rehearing and in the Court of Appeals. But it does not follow that the Court of Appeals, in the face of the Commission’s insistence that its decision was wholly consistent with its Cities Service formula, should have itself determined that consolidated return savings be first allocated to non jurisdictional income and that “income from the unregulated component of United is sufficiently large to absorb all such net tax losses and no excess remains to reduce the regulated taxable income of United.” United Gas Pipe Line Co. v. FPC, 388 F. 2d 385, 391-392 (C. A. 5th Cir. 1968) (footnote omitted). These questions should have had adequate attention from the Commission in the first instance before being subjected to judicial review. Before the courts can properly review agency action, the agency must disclose the basis of its order and “give clear indication that it has exercised the discretion with which Congress has empowered it,” Phelps Dodge Corp. v. NLRB, 313 U. S. 177, 197 (1941); otherwise the courts are propelled “into the domain which Congress has set aside exclusively for the administrative agency.” SEC v. Chenery Corp., 332 U. S. 194, 196 (1947). The judgment of the Court of Appeals is reversed and the cases are remanded with instructions to return the cases to the Commission for further proceedings. It is so ordered. Mr. Justice Fortas and Mr. Justice Marshall took no part in the consideration or decision of these cases. 74 OCTOBER TERM, 1968. Per Curiam. 393 U. S. INTERNATIONAL TERMINAL OPERATING CO, INC. v. N. V. NEDERL. AMERIK STOOMV. MAATS. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 379. Decided October 21, 1968. Respondent, a shipowner, sought indemnity from petitioner, a stevedoring company, for damages respondent had paid petitioner’s employee, who had been injured while working on respondent’s ship. The Court of Appeals reversed the jury’s verdict for petitioner on the ground that as a matter of law petitioner had not taken reasonable action to avoid the injury. Held: Under the Seventh Amendment the issue as to the reasonableness of petitioner’s conduct should have been left to the jury. Atlantic & Gulf Stevedores, Inc. v. EHerman Lines, Ltd., 369 U. S. 355 (1962). Certiorari granted; 392 F. 2d 763, reversed. Sidney A. Schwartz for petitioner. Edmund F. Lamb for respondent. Per Curiam. The petition for a writ of certiorari is granted. The respondent, a shipowner, sought indemnity from the petitioner, a stevedoring company, for damages the shipowner had paid to an employee of the stevedore who was injured while working aboard the respondent’s ship. See Albanese v. N. V. Nederl. Amerik Stoomv. Moats., 382 U. S. 283 (1965). A jury found that the stevedoring company had fulfilled its duty of workmanlike service and, accordingly, that no indemnity was due. See Ryan Stevedoring Co. v. Pan-Atlantic S. S. Corp., 350 U. S. 124 (1956). The Court of Appeals reversed this verdict and held, as a matter of law, that the stevedore had not taken reasonable action to avert the injury. 392 F. 2d 763 (1968). INTERNATIONAL CO. v. NEDERL. AMERIK. 75 74 Per Curiam. The cause of the longshoreman’s injury was carbon monoxide inhalation that occurred as he and other longshoremen were using gasoline-powered vehicles to move cargo in the ship’s lower hold. The shipowner contends that the stevedore’s hatch boss acted unreasonably. When longshoremen complained about the lack of ventilation in the hold, the hatch boss informed one of the ship’s officers that his men would walk off the job unless the officer turned on the ship’s ventilating system. The officer told the men to continue working and promised to activate the ventilating system, which was within the shipowner’s exclusive control and which was concededly adequate to ventilate the hold. When, less than 10 minutes later, the hatch boss realized that the ventilating system had not been turned on, he ordered the men from the hold. The injured longshoreman collapsed as he was ascending a ladder to leave. The Court of Appeals said that the hatch boss should have ceased work when he first learned that the ship’s ventilating system was not operating, despite the officer’s promise to turn on the system. Alternatively, he should have used the stevedore’s blowers, which had been left on the pier, to ventilate the hold. The jury, however, in response to a special interrogatory, found that the stevedore had acted reasonably in continuing to work for a brief period in reliance on the officer’s promise. We cannot agree with the Court of Appeals that the stevedore acted unreasonably as a matter of law. Under the Seventh Amendment, that issue should have been left to the jury’s determination. Any other ruling would be inconsistent with this Court’s decision in Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U. S. 355 (1962). The judgment of the Court of Appeals is Reversed. 76 OCTOBER TERM, 1968. October 21, 1968. 393 U.S. BOUNDS, WARDEN v. CRAWFORD. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT. No. 279. Decided October 21, 1968. Certiorari granted; 395 F. 2d 297, vacated and remanded. Thomas Wade Bruton, Attorney General of North Carolina, and Andrew A. Vanore, Jr., for petitioner. Per Curiam. The motion of the respondent for leave to proceed in jorma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the Court of Appeals for further consideration in light of Witherspoon n. Illinois, 391 U. S. 510, and for consideration of the other constitutional questions raised in the case. Mr. Justice Black dissents. IN RE HAGOPIAN. APPEAL FROM THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. No. 352. Decided October 21, 1968. Appeal dismissed and certiorari denied. Per Curiam. The motion for leave to file an amended jurisdictional statement is granted. The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied. DECISIONS PER CURIAM. 77 393 U. S. October 21, 1968. LAKE et vir v. POTOMAC LIGHT & POWER CO. APPEAL FROM THE SUPREME COURT OF APPEALS OF WEST VIRGINIA. No. 364. Decided October 21, 1968. Appeal dismissed and certiorari denied. Per Curiam. The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied. DYMYTRYSHYN et al. v. ESPERDY, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. No. 380. Decided October 21, 1968. 285 F. Supp. 507, affirmed. John J. Abt for appellants. Solicitor General Griswold, Assistant Attorney General Vinson, and Philip R. Monahan for appellee. Per Curiam. The motion to affirm is granted and the judgment is affirmed. 78 OCTOBER TERM, 1968. October 21, 1968. 393 U. S. CHEMICAL TANK LINES, INC. v. HOLSTINE. APPEAL FROM THE SUPREME COURT OF APPEALS OF WEST VIRGINIA. No. 195. Decided October 21, 1968. Appeal dismissed and certiorari denied. J. Campbell Palmer III and Albert L. Bases for appellant. Robert H. C. Kay and Stanley E. Preiser for appellee. Per Curiam. The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied. Mr. Justice Black dissents. DECISIONS PER CURIAM. 79 393 U. S. October 21, 1968. CONTINENTAL OIL CO. v. UNITED STATES. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO. No. 206. Decided October 21, 1968. Affirmed. David T. Searls, Harry M. Reasoner, and Lloyd F. Thanhouser for appellant. Solicitor General Griswold, Assistant Attorney General Zimmerman, and Lawrence W. Somerville for the United States. Per Curiam. Being convinced on the record before us that Malco Refineries, Inc., was not a “failing company,” United States v. Third National Bank, 390 U. S. 171,183 (1968); International Shoe Co. v. FTC, 280 U. S. 291 (1930), and that the record otherwise supports the decree, United States v. Pabst Brewing Co., 384 U. S. 546 (1966), we affirm the judgment of the District Court. Mr. Justice Harlan, believing that this case involves issues of fact and law which should not be decided without plenary consideration, would note probable jurisdiction and set the case for argument. Mr. Justice Marshall took no part in the consideration or decision of this case. 80 OCTOBER TERM, 1968. Per Curiam. 393 U. S. FULLER v. ALASKA. ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF ALASKA. No. 249. Decided October 28, 1968. Lee v. Florida, 392 U. S. 378, which held inadmissible in state criminal trials evidence violative of § 605 of the Federal Communications Act, is to be applied only to trials in which such evidence is sought to be introduced after the date of that decision. Certiorari granted; 437 P. 2d 772, affirmed. George Kaufmann for petitioner. Per Curiam. Petitioner was convicted of shooting with intent to kill or wound and was sentenced to 10 years in prison. Over petitioner’s objection that it was obtained in violation of § 605 of the Federal Communications Act, 48 Stat. 1103, 47 U. S. C. § 605, the prosecution introduced in evidence a telegram allegedly sent by petitioner to an accomplice. The Supreme Court of Alaska affirmed, holding that it did not need to decide whether § 605 had actually been violated since the evidence was in any event admissible in state trials under Schwartz v. Texas, 344 U. S. 199. In Lee v. Florida, 392 U. S. 378, we overruled Schwartz v. Texas and held that evidence violative of § 605 is not admissible in state criminal trials. The decision of the Alaska Supreme Court cannot stand, therefore, if Lee is to be applied retroactively. We hold, however, that the exclusionary rule of Lee is to be given prospective application, and, accordingly, we affirm. FULLER v. ALASKA. 81 80 Per Curiam. Prospective application of Lee is supported by all of the considerations outlined in Stovall v. Denno, 388 U. S. 293, 297? The purpose of Lee was in no sense to “enhance the reliability of the fact-finding process at trial.” Johnson v. New Jersey, 384 U. S. 719, 729. Like Mapp v. Ohio, 367 U. S. 643, Lee was designed to enforce the federal law.1 2 Linkletter v. Walker, 381 U. S. 618, 639. And evidence seized in violation of the federal statute is no less relevant and reliable than that seized in violation of the Fourth Amendment to the Constitution. Moreover, the States have justifiably relied upon the explicit holding of Schwartz that such evidence was admissible. Retroactive application of Lee would overturn every state conviction obtained in good-faith reliance on Schwartz. Since this result is not required by the principle upon which Lee was decided, or necessary to accomplish its purpose, we hold that the exclusionary rule is to be applied only to trials in which the evidence is sought to be introduced after the date of our decision in Lee. The petition for a writ of certiorari is granted, and the judgment of the Supreme Court of Alaska is affirmed. Mr. Justice Black dissents for the reasons set out in his dissenting opinion in Linkletter v. Walker, 381 1 These considerations were more recently applied in DeStefano v. Woods, 392 U. S. 631, 633, in which we concluded that the right to a jury trial in state criminal prosecutions under Duncan v. Louisiana, 391 U. S. 145, and Bloom v. Illinois, 391 U. S. 194, was prospective only. 2 Lee v. Florida, 392 U. S., at 386-387: “We conclude, as we concluded in Elkins and in Mapp, that nothing short of mandatory exclusion of the illegal evidence will compel respect for the federal law ‘in the only effectively available way— by removing the incentive to disregard it.’ Elkins v. United States, 364 U. S., at 217.” 82 OCTOBER TERM, 1968. 393 U. S. Per Curiam. U. S. 618, 640. But see his dissent in Lee v. Florida, 392 U. S. 378, 387. Mr. Justice Douglas, believing that the rule of Lee v. Florida, 392 U. S. 378, which was applied retroactively in that case, should be applied retroactively in other cases, too, dissents. MENGELKOCH v. WELFARE COMM’N. 83 Per Curiam. MENGELKOCH et al. v. INDUSTRIAL WELFARE COMMISSION et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA. No. 375. Decided October 28, 1968. A three-judge federal court dissolved itself for want of jurisdiction. A single district judge then dismissed the case on the ground of abstention and incorporated the three-judge court’s dissolution order in his opinion by reference. In this appeal from both judgments held that the Court of Appeals, and not this Court, has jurisdiction over the appeal from the dissolution order and from the abstention decision. 284 F. Supp. 950, vacated and remanded; 284 F. Supp. 956, dismissed. Marguerite Rawalt for appellants. Thomas C. Lynch, Attorney General of California, and Edward M. Belasco, Jay L. Linderman, and William L. Zessar, Deputy Attorneys General, for appellees. Per Curiam. A three-judge federal court, convened pursuant to 28 U. S. C. § 2281, determined that “there is no jurisdiction for a three-judge court” and entered an order dissolving itself. 284 F. Supp. 950, 956. The single district judge in whose court the case was originally filed considered further and dismissed the case without prejudice under the doctrine of abstention, stating in his memorandum opinion that “[t]he order dissolving the three-judge court is incorporated in this memorandum by reference.” 284 F. Supp. 956, 957. Appellants appeal from both judgments. In these circumstances, we have no jurisdiction to entertain a direct appeal from the decision of the single judge; such jurisdiction is possessed only by the appropriate United States Court of Appeals. 28 U. S. C. § 1291. Moreover, we have held that w7hen, as here, a 320-583 0 - 69 - 14 84 OCTOBER TERM, 1968. Per Curiam. 393 U. S. three-judge court dissolves itself for want of jurisdiction, an appeal lies to the appropriate Court of Appeals and not to this Court. Wilson v. Port Lavaca, 391 U. S. 352.* Although the appellants have lodged in the Court of Appeals for the Ninth Circuit a protective appeal from the decision of the single judge, it does not appear from the record that such an appeal has been filed with respect to the three-judge order. Therefore, we vacate the order of the three-judge court and remand the case to the District Court so that a timely appeal may be taken to the Court of Appeals. See Wilson v. Port Lavaca, supra; Utility Comm’n v. Pennsylvania R. Co., 382 U. S. 281, 282. The appeal from the decision of the single judge is dismissed for want of jurisdiction. It is so ordered. *We think it makes no difference in principle that in Wilson v. Port Lavaca the single judge actually adopted the opinion of the three-judge court as his own. DECISIONS PER CURIAM. October 28, 1968. 85 393 U. S. OVERTON v. NEW YORK. ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. No. 212. Decided October 28, 1968. Certiorari granted; vacated and remanded. Melvin L. Wulf and David C. Gilberg for petitioner. Carl A. Vergari and James J. Duggan for respondent. Per Curiam. The petition for a writ of certiorari is granted. The judgment of the Appellate Term of the Supreme Court of New York is vacated, and the case is remanded for further consideration in the light of Bumper v. North Carolina, 391 U. S. 543 (1968). Mr. Justice Black dissents and would affirm the judgment of conviction here. 86 OCTOBER TERM, 1968. October 28, 1968. 393 U. S. LIGHTEN et al. v. TEXAS. APPEAL FROM THE COURT OF CRIMINAL APPEALS OF TEXAS. No. 414. Decided October 28, 1968. 434 S. W. 2d 128, appeal dismissed. Chris Dixie for appellants. Crawford C. Martin, Attorney General of Texas, Nola White, First Assistant Attorney General, A. J. Ca-rubbi, Jr., Executive Assistant Attorney General, and Hawthorne Phillips, Gilbert J. Pena, and Allo B. Croiv, Jr., Assistant Attorneys General, for appellee. Per Curiam. The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. Mr. Justice Harlan is of the opinion that probable jurisdiction should be noted and the case set for argument. B. & O. R. CO. v. ABERDEEN & R. R. CO. 87 Syllabus. BALTIMORE & OHIO RAILROAD CO. et al. v. ABERDEEN & ROCKFISH RAILROAD CO. ET AL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA. No. 13. Argued October 17, 1968.—Decided November 12, 1968* The Interstate Commerce Commission (ICC), pursuant to § 15 (6) of the Interstate Commerce Act, ordered new divisions for North-South joint rail rates, finding that the Northern lines’ costs warranted an increased share of the revenues. The North-South traffic, the costs for which were not isolated in the ICC’s findings, represents 6% of the total North traffic and 21.4% of the total South traffic. The average costs used by the ICC relate to all Northern and all Southern traffic, although 80% of all Northern traffic is intra-territorial. The District Court ruled that territorial average costs did not meet the statutory requirements for precise and relevant findings absent evidence relating the territorial average to North-South traffic, and held that the ICC’s order was not supported by substantial evidence and reasoned findings, and remanded for further proceedings. Held: 1. While mathematical precision and exactitude are not required, the nature and volume of the traffic must be known and exposed, if costs are to govern rate divisions. Pp. 91-92. 2. If average territorial costs are shown to be a distortion when applied to particular North-South traffic, reliance on administrative “expertise” is not sufficient, but it must be shown that there is, in fact, no basic material difference, or there must be an adjustment which fairly reflects the difference in costs. Pp. 92-93. 3. On remand the ICC must make specific findings to adjust average territorial costs with respect to commuter deficits, interchange of cars in North-South traffic at territorial border points, and empty freight car return ratios. Pp. 93-95. 270 F. Supp. 695, affirmed as modified. Edward A. Kaier argued the cause for appellants in No. 13. With him on the briefs were Joseph F. Eshel- *Together with No. 15, Interstate Commerce Commission v. Aberdeen & Rockfish Railroad Co. et al., on appeal from the same court. 88 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. man, Richard B. Montgomery, Jr., Eugene E. Hunt, Kenneth H. Lundmark, and Kemper A. Dobbins. Arthur J. Cerra argued the cause for appellant in No. 15. With him on the brief was Robert W. Ginnane. Howard J. Trienens argued the cause for the Southern railroad appellees. With him on the brief were Ashton Phelps, George L. Saunders, Jr., John W. Adams, Phil C. Beverly, James A. Bistline, James W. Hoeland, John E. McCullough, and Donal L. Turkal. Carl E. Sanders argued the cause for appellees Southern Governors’ Conference et al. With him on the brief was Walter R. McDonald. Mr. Justice Douglas delivered the opinion of the Court. In these cases the Interstate Commerce Commission undertook to prescribe just, reasonable, and equitable divisions of joint rates pursuant to § 15 (6) of the Interstate Commerce Act, 24 Stat. 384, as amended.1 The 149 U. S. C. §15 (6) provides in relevant part: “Whenever . . . the Commission is of opinion that the divisions of joint rates, fares, or charges, applicable to the transportation of passengers or property, are or will be unjust, unreasonable, inequitable, or unduly preferential . . . the Commission shall by order prescribe the just, reasonable, and equitable divisions thereof to be received by the several carriers .... In so prescribing and determining the divisions of joint rates, fares, and charges, the Commission shall give due consideration, among other things, to the efficiency with which the carriers concerned are operated, the amount of revenue required to pay their respective operating expenses, taxes, and a fair return on their railway property held for and used in the service of transportation, and the importance to the public of the transportation services of such carriers; and also whether any particular participating carrier is an originating, intermediate, or delivering line, and any other fact or circumstance which would ordinarily, without regard to the mileage haul, entitle one carrier to a greater or less proportion than another carrier of the joint rate, fare, or charge.” B. & 0. R. CO. v. ABERDEEN & R. R. CO. 89 87 Opinion of the Court. Commission found that existing divisions violated § 15 (6) because they allocated to Northern Unes a lesser share of the revenues from the joint rates than would be warranted by their share of the expenditures made in providing the joint service. 325 I. C. C. 1, 50. The Southern lines brought suit before a three-judge District Court to enjoin and to set aside the Commission’s order. The District Court set aside the Commission’s order and remanded the case for further proceedings. 270 F. Supp. 695. We noted probable jurisdiction. 390 U. S. 940. Both Northern and Southern lines used Rail Form A as their basic formula, that form being a rail freight formula for determining freight service costs which utilizes the expenses and statistics for a given year as reported to the Commission by the carriers and supplemented by special studies of the carriers. The Southern lines proposed 12 adjustments, five of which the Commission accepted and seven of which it rejected. The year 1956 was the one both Southern and Northern lines used in the final cost analysis. The cost level for that year, said the Commission, was higher in the North than in the South for like services; and it concluded that that situation would most likely continue in the immediate future. In that year the Northern lines received 44.64% of the revenues while incurring 46.35318% of the fully distributed costs. Accordingly, the Commission prescribed new divisions based on the fully distributed costs and divided the revenues in the same proportion to those costs. The shift in revenues resulting from the new divisions was approximately $8,000,000 a year, giving the Northern lines an overall increase in revenues from the traffic involved of 3.5% and reducing the revenues of Southern lines by about 3%. 90 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. When the Southern lines sued to set aside the new divisions, the Northern lines intervened as defendants. The District Court held that the Commission’s order was not supported by substantial evidence and reasoned findings within the meaning of § § 8 (b) 2 and 10 (e)3 of the Administrative Procedure Act and, as noted, remanded the case for further proceedings. The present problem of divisions deals only with North-South traffic which represents 6% of the total traffic of the North and 21.4% of the total traffic of the South. The costs of that North-South traffic are not isolated in the findings. The average costs used relate to all Northern traffic and to all Southern traffic. Nearly 80% of the total Northern traffic is intra-territorial and handled entirely in the North, and it is therefore argued that that traffic has the dominant influence on the Northern average. As the District Court said, it is difficult to maintain that these intra-territorial Northern costs are the same or approximately the same as Northern costs in handling traffic between North and South. In another divisions case, the Commission ruled 2 Section 8 (b), 60 Stat. 242, now 5 U. S. C. §557 (c) (1964 ed., Supp. Ill), provides in relevant part: “The record shall show the ruling on each finding, conclusion, or exception presented. All decisions, including initial, recommended, and tentative decisions, are a part of the record and shall include a statement of— “(A) findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record; and “(B) the appropriate rule, order, sanction, relief, or denial thereof.” 3 Section 10(e), 60 Stat. 243, now 5 U. S. C. §706 (1964 ed., Supp. Ill), provides in relevant part: “The reviewing court shall . . . “(2) hold unlawful and set aside agency action, findings, and conclusions found to be . . . “(E) unsupported by substantial evidence . . . .” B. & 0. R. CO. v. ABERDEEN & R. R. CO. 91 87 Opinion of the Court. that territorial average costs are entitled to little weight in determining the costs of handling particular movements. Increased Freight Rates, 1967, 332 I. C. C. 280, 303. The use of “unsifted averages” of costs does not necessarily establish greater costs either in rate cases {ICC v. Mechling, 330 U. S. 567, 583) or in divisions cases. The ruling of the District Court was, not that territorial average costs were irrelevant or that Rail Form A was not a usable and useful tool for cost determination, but that territorial average costs could not be used consistently with the statutory requirements for precise and relevant findings without any evidence relating the territorial average costs to North-South traffic. While Southern lines had offered evidence showing the costs of handling North-South traffic in the South, there was not always any such Northern offer; nor did the Commission always exercise its undoubted authority to gather it on its own. On the question whether territorial average costs represent costs of the North-South traffic, the Commission only replies that where particular traffic uses physical facilities and employees’ services in common with other traffic “and has been shown to have no distinguishing characteristics,” the application of Rail Form A costs is proper. Yet the Commission stated “its exclusive standard” for resolving this divisions question to be “the relevant cost of handling the specific freight traffic to which the divisions apply.” 270 F. Supp., at 710. We agree with the District Court that there is no substantial evidence that territorial average costs are necessarily the same as the comparative costs incurred in handling North-South freight traffic. If we were to reverse the District Court, we would in effect be saying that the expertise of the Commission is so great that when it says that average territorial costs fairly represent the costs of North-South traffic, the controversy is at an 92 OCTOBER TERM, 1968. Opinion of the Court. 393 U.S. end, even though the record does not reveal what the nature of that North-South traffic is. The requirement for administrative decisions based on substantial evidence and reasoned findings—which alone make effective judicial review possible—would become lost in the haze of so-called expertise. Administrative expertise would then be on its way to becoming “ ‘a monster which rules with no practical limits on its discretion.’ ” Burlington Truck Lines v. United States, 371 U. S. 156, 167. That is impermissible under the Administrative Procedure Act. If indeed that lax procedure were sanctioned in a North-South divisions case, whose solution turns solely on costs, the class rate discrimination in favor of the North and against the South which we condemned in New York v. United States, 331 U. S. 284, could well flourish in another form. Rail Form A was used in Chicago & N. W. R. Co. v. Atchison, T. >8. F. R. Co., 387 U. S. 326, and we approved its use. Moreover, ever since the New England Divisions Case, 261 U. S. 184, at 196-197, it has been held that mathematical exactness in dividing each rate of each carrier is not necessary, because practical necessities demand otherwise. Tn addition we repeat what we said in Chicago & N. W. R. Co. v. Atchison, T. & S. F. R. Co., supra, at 358, that there are no ‘‘mechanical restrictions on the range of remedies from which the Commission may choose” in solving a divisions case or making its expert judgment as to what scale of costs should be used in making the allocation. Precision and exactitude in the mathematical sense are not possible. Yet the nature and volume of the traffic in question must be known and exposed, if the costs of other traffic are to govern a division of rates. Moreover, where Rail Form A costs are shown to be a distortion when applied to the particular traffic over which the divisions dispute arises, some effort must be exerted to make an adjustment which B. & O. R. CO. v. ABERDEEN & R. R. CO. 93 87 Opinion of the Court. fairly reflects the difference in the costs or to make clear that there is in fact no basic, material difference. The Commission states to us that it cannot be expected to know whether peculiar characteristics may exist respecting the traffic involved in the divisions dispute or whether special studies may be needed. Yet if that is true, the Commission’s expertise is not equal to the task and the opposed carriers must be directed to expose the various versions of the conflict so that the Commission may make its informed decision. That was done on aspects of the present cases (325 I. C. C., at 25) and no reason is apparent why it cannot be done on other aspects of the controversy. The Commission in its argument before us said that Rail Form A territorial average costs were “adjusted” to reflect the costs attributable to the North-South traffic issue, which is true as respects five 4 of the 12 adjustments proposed by the Southern lines. On remand of the cases to the Commission we think specific findings must be made on the several items of so-called “adjustment” of average territorial costs to which we now turn. One is the question of commuter deficits, which swell the average territorial costs in the North while they are less important in the South that does not yet have substantial commuter operations. Passenger deficits generally are considered as part of the costs of providing freight service, since the common facilities that support each must be maintained for both types of service. There is, however, evidence that in some territories as much as one-half of the track facilities are maintained solely because of the company’s suburban service and even a larger 4 These five constituted way and through train separation, platform costs, switching and terminal companies, short lines (Class II railroads), train tonnage adjustment—all as discussed in Appendix B to the Commission’s opinion. 325 I. C. C., at 55 et seq. 94 OCTOBER TERM, 1968. Opinion of the Court. 393 U.S. proportion of other facilities such as stations, terminals, coach yards, and repair shops is maintained exclusively for commuter service. The Commission, however, ruled that costs of commuter service include “common costs which must be incurred to provide freight service or intercity passenger service” and that the deficit from suburban operations was properly included in “the constant costs.” The Commission on the other hand found that “many individual items of suburban service can be considered solely related ... to suburban service.” 325 I. C. C., at 78. How these two findings can be reconciled is not apparent. The Commission in its argument before us rests primarily on revenue needs—“Such losses must be recovered from railroad freight operations if railroads are to remain solvent.” Section 15 (6) makes plain that revenue needs come into focus in divisions cases. Revenue problems under § 15 (6) at times have resulted in putting a part of one area’s transportation costs upon other sections of the country. See New England Divisions Case, 261 U. S. 184, 191-195. But that issue is not presented in these cases. The issue in the present cases was costs, not revenue.5 The allocation either to the North or to the South of costs peculiar to its territorial traffic is a task with which the Commission is familiar. Thus in these very cases it excluded certain platform deficits incurred by the Northern lines because they were not related to North-South freight traffic. 325 I. C. C., at 56. There is no apparent reason why costs related solely to commuter service in the North cannot be determined. As to the costs of interchanging cars in North-South traffic at territorial border points, there is evidence in 5 On revenue needs the Commission said: “We find that no affirmative reasons appear in this record which would warrant any adjustment of the divisions in question over and above the relative costs of service, either on the grounds of greater revenue needs or otherwise.” 325 I. C. C., at 49. B. & 0. R. CO. v. ABERDEEN & R. R. CO. 95 87 Opinion of the Court. the record that the interchange operations performed by Northern lines are no more costly than those performed by Southern lines. Yet the Commission allowed the Northern lines a border interchange cost that is 58% higher than the one allowed the Southern lines. That apparently was done solely because Rail Form A showed higher interchange costs when all territorial interchanges were considered. We cannot bridge the gap by blind reliance on expertise which in this instance would be a mere assertion that no difference means a substantial difference. The empty freight car return ratios is another example of deficient findings. There is evidence that higher costs of Northern lines result from the Commission’s use of higher Northern territorial average empty return ratios. There was no attempt made to show that the latter were at all applicable to North-South traffic. The problem arises in the North by reason of boxcars on shuttle from Detroit to automobile plants, most of which are in the North. These shuttle boxcars return empty to Detroit. We know from the record that this is a major cost item as 800,000 carloads of automobile parts move out of Detroit each year. The record does not show the extent to which these empty returns swell the territorial average costs in the North, though it does show that Northern use of these shuttle boxcars is substantially higher than the Southern proportion. The District Court concluded the territorial average boxcar empty return ratios could not be said, absent specific findings, to reflect the costs of the North-South freight traffic relevant to this problem of divisions. There are other proposed adjustments 6 on which we think the Commission’s findings are adequate. 6 Car costs. The Southern lines sought to substitute average car costs for the entire country in lieu of Rail Form A territorial average. The Commission concluded that the “use of a national average car 96 OCTOBER TERM, 1968. 393 U. S. Opinion of the Court. The judgment of the District Court is modified and as modified it is Affirmed. cost conceals territorial differences in cost which are important in the consideration of divisions between the two involved territories.” 325 I. C. C., at 64. Cars interchanged between rail and water carriers at ports. The Southern and Northern lines submitted opposed evidence and views and the Commission concluded that the count of cars in Rail Form A was warranted. 325 I. C. C., at 58-60. Transit commodities. They move under a single published rate and receive some kind of storage or processing in transit and the rate covers the movement of the raw material into and the movement of the finished product beyond the transit or processing point. The Southern lines would include deficits on pulpwood and wet phosphate rock which they claim to be related in transit to the outbound movement of paper products and dry phosphate rock. But these were intraterritorial costs of the Southern lines which the Commission found were not properly transferable to the interterritorial costs, the only costs pertinent to this divisions case. 325 I. C. C., at 80. Switching costs. The Southern lines made special studies of switching costs which the Commission reviewed at length. 325 I. C. C., at 71-77. The Northern lines sought to discredit the studies and the sample on which they rested. The Commission took Rail Form A territorial average switching costs as the most accurate measure of the relative switching costs, saying: “Territorial average costs are particularly appropriate to the traffic in this case because it is a large and varied body of traffic moving to and coming from terminals in all parts of both territories. In our opinion, and we so find, the depressing effect, if any, of volume switching commodities on the average would affect both territories and, for purposes of comparison, would be largely offsetting.” 325 I. C. C., at 76. Contrary to the District Court, we believe these are adequate findings. EPPERSON v. ARKANSAS. 97 Syllabus. EPPERSON et al. v. ARKANSAS. APPEAL FROM THE SUPREME COURT OF ARKANSAS. No. 7. Argued October 16, 1968.—Decided November 12, 1968. Appellant Epperson, an Arkansas public school teacher, brought this action for declaratory and injunctive relief challenging the constitutionality of Arkansas’ “anti-evolution” statute. That statute makes it unlawful for a teacher in any state-supported school or university to teach or to use a textbook that teaches “that mankind ascended or descended from a lower order of animals.” The State Chancery Court held the statute an abridgment of free speech violating the First and Fourteenth Amendments. The State Supreme Court, expressing no opinion as to whether the statute prohibits “explanation” of the theory or only teaching that the theory is true, reversed the Chancery Court. In a two-sentence opinion it sustained the statute as within the State’s power to specify the public school curriculum. Held: The statute violates the Fourteenth Amendment, which embraces the First Amendment’s prohibition of state laws respecting an establishment of religion. Pp. 102-109. (a) The Court does not decide whether the statute is unconstitutionally vague, since, whether it is construed to prohibit explaining the Darwinian theory or teaching that it is true, the law conflicts with the Establishment Clause. Pp. 102-103. (b) The sole reason for the Arkansas law is that a particular religious group considers the evolution theory to conflict with the account of the origin of man set forth in the Book of Genesis. Pp. 103, 107-109. (c) The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion. Pp. 103-107. (d) A State’s right to prescribe the public school curriculum does not include the right to prohibit teaching a scientific theory or doctrine for reasons that run counter to the principles of the First Amendment. P. 107. (e) The Arkansas law is not a manifestation of religious neutrality. P. 109. 242 Ark. 922, 416 S. W. 2d 322, reversed. 98 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. Eugene R. Warren argued the cause for appellants. With him on the brief was Bruce T. Bullion. Don Langston, Assistant Attorney General of Arkansas, argued the cause for appellee. With him on the brief was Joe Purcell, Attorney General. Briefs of amici curiae, urging reversal, were filed by Leo Pfeffer, Melvin L. Wulf, and Joseph B. Robison for the American Civil Liberties Union et al., and by Philip J. Hirschkop for the National Education Association of the United States et al. Mr. Justice Fortas delivered the opinion of the Court. I. This appeal challenges the constitutionality of the “anti-evolution” statute which the State of Arkansas adopted in 1928 to prohibit the teaching in its public schools and universities of the theory that man evolved from other species of life. The statute was a product of the upsurge of “fundamentalist” religious fervor of the twenties. The Arkansas statute was an adaptation of the famous Tennessee “monkey law” which that State adopted in 1925? The constitutionality of the Tennessee law was upheld by the Tennessee Supreme Court in the celebrated Scopes case in 1927? The Arkansas law makes it unlawful for a teacher in any state-supported school or university “to teach the 1 Chapter 27, Tenn. Acts 1925; Tenn. Code Ann. §49-1922 (1966 Repl. Vol.). 2 Scopes v. State, 154 Tenn. 105, 289 S. W. 363 (1927). The Tennessee court, however, reversed Scopes’ conviction on the ground that the jury and not the judge should have assessed the fine of $100. Since Scopes was no longer in the State’s employ, it saw “nothing to be gained by prolonging the life of this bizarre case.” It directed that a nolle prosequi be entered, in the interests of “the peace and dignity of the State.” 154 Tenn., at 121,289 S. W., at 367. EPPERSON v. ARKANSAS. 99 97 Opinion of the Court. theory or doctrine that mankind ascended or descended from a lower order of animals/’ or “to adopt or use in any such institution a textbook that teaches” this theory. Violation is a misdemeanor and subjects the violator to dismissal from his position.3 The present case concerns the teaching of biology in a high school in Little Rock. According to the testimony, until the events here in litigation, the official textbook furnished for the high school biology course did not have a section on the Darwinian Theory. Then, for the academic year 1965-1966, the school administration, on recommendation of the teachers of biology in the school system, adopted and prescribed a textbook which contained a chapter setting forth “the theory about the origin ... of man from a lower form of animal.” 3 Initiated Act No. 1, Ark. Acts 1929; Ark. Stat. Ann. §§ 80-1627, 80-1628 (1960 Repl. Vol.). The text of the law is as follows: “§ 80-1627.—Doctrine of ascent or descent of man from lower order of animals prohibited.—It shall be unlawful for any teacher or other instructor in any University, College, Normal, Public School, or other institution of the State, which is supported in whole or in part from public funds derived by State and local taxation to teach the theory or doctrine that mankind ascended or descended from a lower order of animals and also it shall be unlawful for any teacher, textbook commission, or other authority exercising the power to select textbooks for above mentioned educational insti-tutions to adopt or use in any such institution a textbook that teaches the doctrine or theory that mankind descended or ascended from a lower order of animals. “§ 80-1628.—Teaching doctrine or adopting textbook mentioning doctrine—Penalties—Positions to be vacated.—Any teacher or other instructor or textbook commissioner who is found guilty of violation of this act by teaching the theory or doctrine mentioned in section 1 hereof, or by using, or adopting any such textbooks in any such educational institution shall be guilty of a misdemeanor and upon conviction shall be fined not exceeding five hundred dollars; and upon conviction shall vacate the position thus held in any educational institutions of the character above mentioned or any commission of which he may be a member.” 320-583 0 - 69 - 15 100 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. Susan Epperson, a young woman who graduated from Arkansas’ school system and then obtained her master’s degree in zoology at the University of Illinois, was employed by the Little Rock school system in the fall of 1964 to teach 10th grade biology at Central High School. At the start of the next academic year, 1965, she was confronted by the new textbook (which one surmises from the record was not unwelcome to her). She faced at least a literal dilemma because she was supposed to use the new textbook for classroom instruction and presumably to teach the statutorily condemned chapter; but to do so would be a criminal offense and subject her to dismissal. She instituted the present action in the Chancery Court of the State, seeking a declaration that the Arkansas statute is void and enjoining the State and the defendant officials of the Little Rock school system from dismissing her for violation of the statute’s provisions. H. H. Blanchard, a parent of children attending the public schools, intervened in support of the action. The Chancery Court, in an opinion by Chancellor Murray 0. Reed, held that the statute violated the Fourteenth Amendment to the United States Constitution.4 The court noted that this Amendment encompasses the prohibitions upon state interference with freedom of speech and thought which are contained in the First Amendment. Accordingly, it held that the challenged statute is unconstitutional because, in violation of the First Amendment, it “tends to hinder the quest for knowledge, restrict the freedom to learn, and restrain the freedom to teach.” 5 In this perspective, the Act, 4 The opinion of the Chancery Court is not officially reported. 5 The Chancery Court analyzed the holding of its sister State of Tennessee in the Scopes case sustaining Tennessee’s similar statute. It refused to follow Tennessee’s 1927 example. It declined to confine the judicial horizon to a view of the law as merely a direction EPPERSON v. ARKANSAS. 101 97 Opinion of the Court. it held, was an unconstitutional and void restraint upon the freedom of speech guaranteed by the Constitution. On appeal, the Supreme Court of Arkansas reversed.6 Its two-sentence opinion is set forth in the margin.7 It sustained the statute as an exercise of the State’s power to specify the curriculum in public schools. It did not address itself to the competing constitutional considerations. Appeal was duly prosecuted to this Court under 28 U. S. C. § 1257 (2). Only Arkansas and Mississippi have such “anti-evolution” or “monkey” laws on their books.8 There is no record of any prosecutions in Arkan- by the State as employer to its employees. This sort of astigmatism, it held, would ignore overriding constitutional values, and “should not be followed,” and it proceeded to confront the substance of the law and its effect. 6242 Ark. 922, 416 S. W. 2d 322 (1967). 7 “Per Curiam. Upon the principal issue, that of constitutionality, the court holds that Initiated Measure No. 1 of 1928, Ark. Stat. Ann. §80-1627 and §80-1628 (Repl. 1960), is a valid exercise of the state’s power to specify the curriculum in its public schools. The court expresses no opinion on the question whether the Act prohibits any explanation of the theory of evolution or merely prohibits teaching that the theory is true; the answer not being necessary to a decision in the case, and the issue not having been raised. “The decree is reversed and the cause dismissed. “Ward, J., concurs. Brown, J., dissents. “Paul Ward, Justice, concurring. I agree with the first sentence in the majority opinion. “To my mind, the rest of the opinion beclouds the clear announcement made in the first sentence.” 8 Miss. Code Ann. §§6798, 6799 (1942). Ark. Stat. Ann. §§ SO-1627, 80-1628 (1960 Repl. Vol.). The Tennessee law was repealed in 1967. Oklahoma enacted an anti-evolution law, but it was repealed in 1926. The Florida and Texas Legislatures, in the period between 1921 and 1929, adopted resolutions against teaching the doctrine of evolution. In all, during that period, bills to this effect were introduced in 20 States. American Civil Liberties Union (ACLU), The Gag on Teaching 8 (2d ed., 1937). 102 OCTOBER TERM, 1968. Opinion of the Court. 393 U.S. sas under its statute. It is possible that the statute is presently more of a curiosity than a vital fact of life in these States.9 Nevertheless, the present case was brought, the appeal as of right is properly here, and it is our duty to decide the issues presented. II. At the outset, it is urged upon us that the challenged statute is vague and uncertain and therefore within the condemnation of the Due Process Clause of the Fourteenth Amendment. The contention that the Act is vague and uncertain is supported by language in the brief opinion of Arkansas’ Supreme Court. That court, perhaps reflecting the discomfort which the statute’s quixotic prohibition necessarily engenders in the modern mind,10 stated that it “expresses no opinion” as to whether the Act prohibits “explanation” of the theory of evolution or merely forbids “teaching that the theory is true.” Regardless of this uncertainty, the court held that the statute is constitutional. On the other hand, counsel for the State, in oral argument in this Court, candidly stated that, despite the State Supreme Court’s equivocation, Arkansas would interpret the statute “to mean that to make a student aware of the theory . . . just to teach that there was 9 Clarence Darrow, who was counsel for the defense in the Scopes trial, in his biography published in 1932, somewhat sardonically pointed out that States with anti-evolution laws did not insist upon the fundamentalist theory in all respects. He said: “I understand that the States of Tennessee and Mississippi both continue to teach that the earth is round and that the revolution on its axis brings the day and night, in spite of all opposition.” The Story of My Life 247 (1932). 10 R. Hofstadter & W. Metzger, in The Development of Academic Freedom in the United States 324 (1955), refer to some of Darwin’s opponents as “exhibiting a kind of phylogenetic snobbery [which led them] to think that Darwin had libeled the [human] race by discovering simian rather than seraphic ancestors.” EPPERSON v. ARKANSAS. 103 97 Opinion of the Court. such a theory” would be grounds for dismissal and for prosecution under the statute; and he said “that the Supreme Court of Arkansas’ opinion should be interpreted in that manner.” He said: “If Mrs. Epperson would tell her students that ‘Here is Darwin’s theory, that man ascended or descended from a lower form of being,’ then I think she would be under this statute liable for prosecution.” In any event, we do not rest our decision upon the asserted vagueness of the statute. On either interpretation of its language, Arkansas’ statute cannot stand. It is of no moment whether the law is deemed to prohibit mention of Darwin’s theory, or to forbid any or all of the infinite varieties of communication embraced within the term “teaching.” Under either interpretation, the law must be stricken because of its conflict with the constitutional prohibition of state laws respecting an establishment of religion or prohibiting the free exercise thereof. The overriding fact is that Arkansas’ law selects from the body of knowledge a particular segment which it proscribes for the sole reason that it is deemed to conflict with a particular religious doctrine; that is, with a particular interpretation of the Book of Genesis by a particular religious group.11 III. The antecedents of today’s decision are many and unmistakable. They are rooted in the foundation soil of our Nation. They are fundamental to freedom. Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, 11 In Scopes v. State, 154 Tenn. 105, 126, 289 S. W. 363, 369 (1927), Judge Chambliss, concurring, referred to the defense contention that Tennessee’s anti-evolution law gives a “preference” to “religious establishments which have as one of their tenets or dogmas the instantaneous creation of man.” 104 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. and practice. It may not be hostile to any religion or to the advocacy of no-religion; and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.12 As early as 1872, this Court said: “The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect.” Watson v. Jones, 13 Wall. 679, 728. This has been the interpretation of the great First Amendment which this Court has applied in the many and subtle problems which the ferment of our national life has presented for decision within the Amendment’s broad command. Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint. Our courts, however, have not failed to apply the First Amendment’s mandate in our educational system where essential to safeguard the fundamental values of freedom of speech and inquiry and of belief. By and large, public education in our Nation is committed to the control of state and local authorities. Courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values.13 On the other hand, “ [t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools,” Shelton v. Tucker, 364 U. S. 479, 487 (1960). As this 12 Everson v. Board of Education, 330 U. S. 1, 18 (1947); McCollum v. Board of Education, 333 U. S. 203 (1948); Zorach v. Clauson, 343 U. S. 306, 313-314 (1952); Fowler n. Rhode Island, 345 U. S. 67 (1953); Torcaso v. Watkins, 367 U. S. 488, 495 (1961). 13 See the discussion in Developments in The Law—Academic Freedom, 81 Harv. L. Rev. 1045, 1051-1055 (1968). EPPERSON v. ARKANSAS. 105 97 Opinion of the Court. Court said in Keyishian v. Board of Regents, the First Amendment “does not tolerate laws that cast a pall of orthodoxy over the classroom.” 385 U. S. 589, 603 (1967). The earliest cases in this Court on the subject of the impact of constitutional guarantees upon the classroom were decided before the Court expressly applied the specific prohibitions of the First Amendment to the States. But as early as 1923, the Court did not hesitate to condemn under the Due Process Clause “arbitrary” restrictions upon the freedom of teachers to teach and of students to learn. In that year, the Court, in an opinion by Justice McReynolds, held unconstitutional an Act of the State of Nebraska making it a crime to teach any subject in any language other than English to pupils who had not passed the eighth grade.14 The State’s purpose in enacting the law was to promote civic cohesiveness by encouraging the learning of English and to combat the “baneful effect” of permitting foreigners to rear and educate their children in the language of the parents’ native land. The Court recognized these purposes, and it acknowledged the State’s power to prescribe the school curriculum, but it held that these were not adequate to support the restriction upon the liberty of teacher and pupil. The challenged statute, it held, unconstitutionally interfered with the right of the individual, guaranteed by the Due Process Clause, to engage in any of the common occupations of life and to acquire useful knowledge. Meyer v. Nebraska, 262 U. S. 390 (1923). See also Bartels v. Iowa, 262 U. S. 404 (1923). For purposes of the present case, we need not re-enter the difficult terrain which the Court, in 1923, traversed without apparent misgivings. We need not take advantage of the broad premise which the Court’s decision 14 The case involved a conviction for teaching ‘‘the subject of reading in the German language” to a child of 10 years. 106 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. in Meyer furnishes, nor need we explore the implications of that decision in terms of the justiciability of the multitude of controversies that beset our campuses today. Today’s problem is capable of resolution in the narrower terms of the First Amendment’s prohibition of laws respecting an establishment of religion or prohibiting the free exercise thereof. There is and can be no doubt that the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma. In Everson v. Board of Education, this Court, in upholding a state law to provide free bus service to school children, including those attending parochial schools, said: “Neither [a State nor the Federal Government] can pass lawys which aid one religion, aid all religions, or prefer one religion over another.” 330 U. S. 1, 15 (1947). At the following Term of Court, in McCollum v. Board of Education, 333 U. S. 203 (1948), the Court held that Illinois could not release pupils from class to attend classes of instruction in the school buildings in the religion of their choice. This, it said, would involve the State in using tax-supported property for religious purposes, thereby breaching the “wall of separation” which, according to Jefferson, the First Amendment was intended to erect between church and state. Id., at 211. See also Engel v. Vitale, 370 U. S. 421 (1962); Abington School District v. Schempp, 374 U. S. 203 (1963). While study of religions and of the Bible from a literary and historic viewpoint, presented objectively as part of a secular program of education, need not collide with the First Amendment’s prohibition, the State may not adopt programs or practices in its public schools or colleges which “aid or oppose” any religion. Id., at 225. This prohibition is absolute. It forbids alike the preference of a religious doctrine or the prohibition EPPERSON v. ARKANSAS. 107 97 Opinion of the Court. of theory which is deemed antagonistic to a particular dogma. As Mr. Justice Clark stated in Joseph Burstyn, Inc. v. Wilson, “the state has no legitimate interest in protecting any or all religions from views distasteful to them . . . .” 343 U. S. 495, 505 (1952). The test was stated as follows in Abington School District v. Schempp, supra, at 222: “[W]hat are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution.” These precedents inevitably determine the result in the present case. The State’s undoubted right to prescribe the curriculum for its public schools does not carry with it the right to prohibit, on pain of criminal penalty, the teaching of a scientific theory or doctrine where that prohibition is based upon reasons that violate the First Amendment. It is much too late to argue that the State may impose upon the teachers in its schools any conditions that it chooses, however restrictive they may be of constitutional guarantees. Keyishian v. Board of Regents, 385 U. S. 589, 605-606 (1967). In the present case, there can be no doubt that Arkansas has sought to prevent its teachers from discussing the theory of evolution because it is contrary to the belief of some that the Book of Genesis must be the exclusive source of doctrine as to the origin of man. No suggestion has been made that Arkansas’ law may be justified by considerations of state policy other than the religious views of some of its citizens.15 It is clear 15 Former Dean Leflar of the University of Arkansas School of Law has stated that “the same ideological considerations underlie the anti-evolution enactment” as underlie the typical blasphemy statute. He says that the purpose of these statutes is an “ideological” one which “involves an effort to prevent (by censorship) or punish the presentation of intellectually significant matter which 108 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. that fundamentalist sectarian conviction was and is the law’s reason for existence.16 Its antecedent, Tennessee’s “monkey law,” candidly stated its purpose: to make it unlawful “to teach any theory that denies the story of the Divine Creation of man as taught in the Bible, and to teach instead that man has descended from a contradicts accepted social, moral or religious ideas.” Leflar, Legal Liability for the Exercise of Free Speech, 10 Ark. L. Rev. 155, 158 (1956). See also R. Hofstadter & W. Metzger, The Development of Academic Freedom in the United States 320-366 (1955) (passim); H. Beale, A History of Freedom of Teaching in American Schools 202-207 (1941); Emerson & Haber, The Scopes Case in Modem Dress, 27 U. Chi. L. Rev. 522 (1960); Waller, The Constitutionality of the Tennessee Anti-Evolution Act, 35 Yale L. J. 191 (1925) (passim); ACLU, The Gag on Teaching 7 (2d ed., 1937); J. Scopes & J. Presley, Center of the Storm 45-53 (1967). 16 The following advertisement is typical of the public appeal which was used in the campaign to secure adoption of the statute: “THE BIBLE OR ATHEISM, WHICH? “All atheists favor evolution. If you agree with atheism vote against Act No. 1. If you agree with the Bible vote for Act No. 1. . . . Shall conscientious church members be forced to pay taxes to support teachers to teach evolution which will undermine the faith of their children? The Gazette said Russian Bolshevists laughed at Tennessee. True, and that sort will laugh at Arkansas. Who cares? Vote FOR ACT NO. 1.” The Arkansas Gazette, Little Rock, Nov. 4, 1928, p. 12, cols. 4-5. Letters from the public expressed the fear that teaching of evolution would be “subversive of Christianity,” id., Oct. 24, 1928, p. 7, col. 2; see also id., Nov. 4, 1928, p. 19, col. 4; and that it would cause school children “to disrespect the Bible,” id., Oct. 27, 1928, p. 15, col. 5. One letter read: “The cosmogony taught by [evolution] runs contrary to that of Moses and Jesus, and as such is nothing, if anything at all, but atheism. ... Now let the mothers and fathers of our state that are trying to raise their children in the Christian faith arise in their might and vote for this antievolution bill that will take it out of our tax supported schools. When they have saved the children, they have saved the state.” Id., at cols. 4-5. EPPERSON v. ARKANSAS. 109 97 Black, J., concurring. lower order of animals.” 17 Perhaps the sensational publicity attendant upon the Scopes trial induced Arkansas to adopt less explicit language.18 It eliminated Tennessee’s reference to “the story of the Divine Creation of man” as taught in the Bible, but there is no doubt that the motivation for the law was the same: to suppress the teaching of a theory which, it was thought, “denied” the divine creation of man. Arkansas’ law cannot be defended as an act of religious neutrality. Arkansas did not seek to excise from the curricula of its schools and universities all discussion of the origin of man. The law’s effort was confined to an attempt to blot out a particular theory because of its supposed conflict with the Biblical account, literally read. Plainly, the law is contrary to the mandate of the First, and in violation of the Fourteenth, Amendment to the Constitution. The judgment of the Supreme Court of Arkansas is Reversed. Mr. Justice Black, concurring. I am by no means sure that this case presents a genuinely justiciable case or controversy. Although Arkansas Initiated Act No. 1, the statute alleged to be unconstitutional, was passed by the voters of Arkansas in 1928, we are informed that there has never been even a single attempt by the State to enforce it. And the pallid, unenthusiastic, even apologetic defense of the Act presented by the State in this Court indicates that the State would make no attempt to enforce the law 17 Arkansas’ law was adopted by popular initiative in 1928, three years after Tennessee’s law was enacted and one year after the Tennessee Supreme Court’s decision in the Scopes case, supra. 18 In its brief, the State says that the Arkansas statute was passed with the holding of the Scopes case in mind. Brief for Appellee 1. 110 OCTOBER TERM, 1968. Black, J., concurring. 393 U. S. should it remain on the books for the next century. Now, nearly 40 years after the law has slumbered on the books as though dead, a teacher alleging fear that the State might arouse from its lethargy and try to punish her has asked for a declaratory judgment holding the law unconstitutional. She was subsequently joined by a parent who alleged his interest in seeing that his two then school-age sons “be informed of all scientific theories and hypotheses . . . .” But whether this Arkansas teacher is still a teacher, fearful of punishment under the Act, we do not know. It may be, as has been published in the daily press, that she has long since given up her job as a teacher and moved to a distant city, thereby escaping the dangers she had imagined might befall her under this lifeless Arkansas Act. And there is not one iota of concrete evidence to show that the parentintervenor’s sons have not been or will not be taught about evolution. The textbook adopted for use in biology classes in Little Rock includes an entire chapter dealing with evolution. There is no evidence that this chapter is not being freely taught in the schools that use the textbook and no evidence that the intervenor’s sons, who were 15 and 17 years old when this suit was brought three years ago, are still in high school or yet to take biology. Unfortunately, however, the State’s languid interest in the case has not prompted it to keep this Court informed concerning facts that might easily justify dismissal of this alleged lawsuit as moot or as lacking the qualities of a genuine case or controversy. Notwithstanding my own doubts as to whether the case presents a justiciable controversy, the Court brushes aside these doubts and leaps headlong into the middle of the very broad problems involved in federal intrusion into state powers to decide what subjects and schoolbooks it may wish to use in teaching state pupils. While I hesitate to enter into the consideration and deci- EPPERSON v. ARKANSAS. Ill 97 Black, J., concurring. sion of such sensitive state-federal relationships, I reluctantly acquiesce. But, agreeing to consider this as a genuine case or controversy, I cannot agree to thrust the Federal Government’s long arm the least bit further into state school curriculums than decision of this particular case requires. And the Court, in order to invalidate the Arkansas law as a violation of the First Amendment, has been compelled to give the State’s law a broader meaning than the State Supreme Court was willing to give it. The Arkansas Supreme Court’s opinion, in its entirety, stated that: “Upon the principal issue, that of constitutionality, the court holds that Initiated Measure No. 1 of 1928, Ark. Stat. Ann. § 80-1627 and § 80-1628 (Repl. 1960), is a valid exercise of the state’s power to specify the curriculum in its public schools. The court expresses no opinion on the question whether the Act prohibits any explanation of the theory of evolution or merely prohibits teaching that the theory is true; the answer not being necessary to a decision in the case, and the issue not having been raised.” It is plain that a state law prohibiting all teaching of human development or biology is constitutionally quite different from a law that compels a teacher to teach as true only one theory of a given doctrine. It would be difficult to make a First Amendment case out of a state law eliminating the subject of higher mathematics, or astronomy, or biology from its curriculum. And, for all the Supreme Court of Arkansas has said, this particular Act may prohibit that and nothing else. This Court, however, treats the Arkansas Act as though it made it a misdemeanor to teach or to use a book that teaches that evolution is true. But it is not for this Court to arrogate to itself the power to determine the scope of Arkansas statutes. Since the highest court of 112 OCTOBER TERM, 1968. Black, J., concurring. 393 U. S. Arkansas has deliberately refused to give its statute that meaning, we should not presume to do so. It seems to me that in this situation the statute is too vague for us to strike it down on any ground but that: vagueness. Under this statute as construed by the Arkansas Supreme Court, a teacher cannot know whether he is forbidden to mention Darwin’s theory at all or only free to discuss it as long as he refrains from contending that it is true. It is an established rule that a statute which leaves an ordinary man so doubtful about its meaning that he cannot know when he has violated it denies him the first essential of due process. See, e. g., Connally v. General Construction Co., 269 U. S. 385, 391 (1926). Holding the statute too vague to enforce would not only follow long-standing constitutional precedents but it would avoid having this Court take unto itself the duty of a State’s highest court to interpret and mark the boundaries of the State’s laws. And, more important, it would not place this Court in the unenviable position of violating the principle of leaving the States absolutely free to choose their own curriculums for their own schools so long as their action does not palpably conflict with a clear constitutional command. The Court, not content to strike down this Arkansas Act on the unchallengeable ground of its plain vagueness, chooses rather to invalidate it as a violation of the Establishment of Religion Clause of the First Amendment. I would not decide this case on such a sweeping ground for the following reasons, among others. 1. In the first place I find it difficult to agree with the Court’s statement that “there can be no doubt that Arkansas has sought to prevent its teachers from discussing the theory of evolution because it is contrary to the belief of some that the Book of Genesis must be the exclusive source of doctrine as to the origin of man.” It may be instead that the people’s motive was merely that it would be best to remove this contro- EPPERSON v. ARKANSAS. 113 97 Black, J., concurring. versial subject from its schools; there is no reason I can imagine why a State is without power to withdraw from its curriculum any subject deemed too emotional and controversial for its public schools. And this Court has consistently held that it is not for us to invalidate a statute because of our views that the “motives” behind its passage were improper; it is simply too difficult to determine what those motives were. See, e. g., United States v. O’Brien, 391 U. S. 367, 382-383 (1968). 2. A second question that arises for me is whether this Court’s decision forbidding a State to exclude the subject of evolution from its schools infringes the religious freedom of those who consider evolution an anti-religious doctrine. If the theory is considered anti-religious, as the Court indicates, how can the State be bound by the Federal Constitution to permit its teachers to advocate such an “anti-religious” doctrine to schoolchildren? The very cases cited by the Court as supporting its conclusion hold that the State must be neutral, not favoring one religious or anti-religious view over another. The Darwinian theory is said to challenge the Bible’s story of creation; so too have some of those who believe in the Bible, along with many others, challenged the Darwinian theory. Since there is no indication that the literal Biblical doctrine of the origin of man is included in the curriculum of Arkansas schools, does not the removal of the subject of evolution leave the State in a neutral position toward these supposedly competing religious and anti-religious doctrines? Unless this Court is prepared simply to write off as pure nonsense the views of those who consider evolution an anti-religious doctrine, then this issue presents problems under the Establishment Clause far more troublesome than are discussed in the Court’s opinion. 3. I am also not ready to hold that a person hired to teach school children takes with him into the classroom a constitutional right to teach sociological, economic, 114 OCTOBER TERM, 1968. Harlan, J., concurring. 393 U. S. political, or religious subjects that the school’s managers do not want discussed. This Court has said that the rights of free speech “while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time.” Cox v. Louisiana, 379 U. S. 536, 554; Cox v. Louisiana, 379 U. S. 559, 574. I question whether it is absolutely certain, as the Court’s opinion indicates, that “academic freedom” permits a teacher to breach his contractual agreement to teach only the subjects designated by the school authorities who hired him. Certainly the Darwinian theory, precisely like the Genesis story of the creation of man, is not above challenge. In fact the Darwinian theory has not merely been criticized by religionists but by scientists, and perhaps no scientist would be willing to take an oath and swear that everything announced in the Darwinian theory is unquestionably true. The Court, it seems to me, makes a serious mistake in bypassing the plain, unconstitutional vagueness of this statute in order to reach out and decide this troublesome, to me, First Amendment question. However wise this Court may be or may become hereafter, it is doubtful that, sitting in Washington, it can successfully supervise and censor the curriculum of every public school in every hamlet and city in the United States. I doubt that our wisdom is so nearly infallible. I would either strike down the Arkansas Act as too vague to enforce, or remand to the State Supreme Court for clarification of its holding and opinion. Mr. Justice Harlan, concurring. I think it deplorable that this case should have come to us with such an opaque opinion by the State’s highest court. With all respect, that court’s handling of the EPPERSON v. ARKANSAS. 115 97 Stewart, J., concurring in result. case savors of a studied effort to avoid coming to grips with this anachronistic statute and to “pass the buck” to this Court. This sort of temporizing does not make for healthy operations between the state and federal judiciaries. Despite these observations, I am in agreement with this Court’s opinion that, the constitutional claims having been properly raised and necessarily decided below, resolution of the matter by us cannot properly be avoided.* See, e. g., Chicago Life Insurance Co. v. Needles, 113 U. S. 574, 579 (1885). I concur in so much of the Court’s opinion as holds that the Arkansas statute constitutes an “establishment of religion” forbidden to the States by the Fourteenth Amendment. I do not understand, however, why the Court finds it necessary to explore at length appellants’ contentions that the statute is unconstitutionally vague and that it interferes with free speech, only to conclude that these issues need not be decided in this case. In the process of not deciding them, the Court obscures its otherwise straightforward holding, and opens its opinion to possible implications from which I am constrained to disassociate myself. Mr. Justice Stewart, concurring in the result. The States are most assuredly free “to choose their own curriculums for their own schools.” A State is en- *Short of reading the Arkansas Supreme Court’s opinion to have proceeded on the premise that it need not consider appellants’ “establishment” contention, clearly raised in the state courts and here, in view of its holding that the State possesses plenary power to fix the curriculum in its public schools, I can perceive no tenable basis for remanding the case to the state court for an explication of the purpose and meaning of the statute in question. I am unwilling to ascribe to the Arkansas Supreme Court any such quixotic approach to constitutional adjudication. I take the first sentence of its opinion (ante, at 101, n. 7) to encompass an overruling of appellants’ “establishment” point, and the second sentence to refer only to their “vagueness” claim. 320-583 0 - 69 - 16 116 OCTOBER TERM, 1968. Stewart, J., concurring in result. 393 U. S. tirely free, for example, to decide that the only foreign language to be taught in its public school system shall be Spanish. But would a State be constitutionally free to punish a teacher for letting his students know that other languages are also spoken in the world? I think not. It is one thing for a State to determine that “the subject of higher mathematics, or astronomy, or biology” shall or shall not be included in its public school curriculum. It is quite another thing for a State to make it a criminal offense for a public school teacher so much as to mention the very existence of an entire system of respected human thought. That kind of criminal law, I think, would clearly impinge upon the guarantees of free communication contained in the First Amendment, and made applicable to the States by the Fourteenth. The Arkansas Supreme Court has said that the statute before us may or may not be just such a law. The result, as Mr. Justice Black points out, is that “a teacher cannot know whether he is forbidden to mention Darwin’s theory at all.” Since I believe that no State could constitutionally forbid a teacher “to mention Darwin’s theory at all,” and since Arkansas may, or may not, have done just that, I conclude that the statute before us is so vague as to be invalid under the Fourteenth Amendment. See Cramp v. Board of Pub. Instruction, 368 U. S. 278. WHYY v. GLASSBORO. 117 Per Curiam. WHYY, INC. v. BOROUGH OF GLASSBORO et al. APPEAL FROM THE SUPREME COURT OF NEW JERSEY. No. 10. Argued October 17, 1968.—Decided November 12, 1968. Appellant, a Pennsylvania nonprofit corporation, operates a noncommercial television station. It has broadcasting facilities in New Jersey and has registered and qualified to transact business there. Appellant’s request for exemption, as a nonprofit corporation, from New Jersey real and personal property taxes was denied by local tax boards. The Superior Court held that while appellant qualified for the exemption in all other respects, the statute exempted only New Jersey nonprofit corporations. The State Supreme Court rejected appellant’s argument that it was denied equal protection by being discriminated against solely because of its foreign incorporation. Held: When a foreign corporation is permitted to enter a State it is entitled to equal protection with domestic corporations, and New Jersey cannot deny appellant an opportunity equivalent to that of a domestic corporation to show that it meets the requirements for a nonprofit corporation under local law. 50 N. J. 6, 231 A. 2d 608, reversed and remanded. James M. Marsh argued the cause for appellant. With him on the briefs were Grover C. Richman, Jr., and Lewis Weinstock. John W. Trimble argued the cause and filed a brief for appellee Borough of Glassboro. Per Curiam. The appellant is a nonprofit corporation organized under the laws of Pennsylvania. Under a license issued by the Federal Communications Commission, it operates a noncommercial television station which broadcasts cultural, recreational, and educational programs. The broadcasting facilities for one of the television channels allocated to the appellant are in New Jersey; on its 50-acre plot in the Borough of Glassboro in that State 118 OCTOBER TERM, 1968. Per Curiam. 393 U. S. appellant has erected a transmittal station and a tower. Signals on this channel reach approximately 8,000,000 people in the Delaware Valley area, of whom 29.5% are estimated to live in New Jersey. Some of the programs are designed to appeal especially to the residents of New Jersey. In accordance with New Jersey law, the appellant has registered and qualified to transact business in the State.1 In November of 1963 the appellant wrote to the Glassboro Council requesting exemption, as a nonprofit organization, from state real and personal property taxes on its land and facilities for 1964. The request was denied, as was a similar petition to the Gloucester County Tax Board. The Division of Tax Appeals upheld the County Board, and the appellant took a further appeal to the Superior Court. That court held that while the appellant qualified for the exemption in all other respects, the statute exempted only those nonprofit corporations which were incorporated in New Jersey.1 2 1 N. J. Stat. Ann. § 14:15-2 requires a foreign corporation, in order to obtain a certificate of authorization to transact business in the State, to file with the Secretary of State a copy of its charter and a statement setting forth the amounts of its authorized and issued capital stock, the character of the business to be transacted in the State, the place of the principal office within the State, and the name of a resident agent for the service of process. 2 N. J. Stat. Ann. §54:4—3.6 provides in pertinent part that the “exemptions shall apply only where the association, corporation or institution claiming the exemption owns the property in question and is incorporated or organized under the laws of this State and authorized to carry out the purposes on account of which the exemption is claimed.” By Chapter 24 of the Laws of 1967, N. J. Stat. Ann. §54:4-3.6a was added. It provides an exemption for the following property: “All buildings and structures located in this State and used exclusively by a nonprofit association or corporation organized under the laws of this or another State for the production and broadcasting of educational television; the land whereon the buildings and struc WHYY v. GLASSBORO. 119 117 Per Curiam. 91 N. J. Super. 269, 219 A. 2d 893. On appeal to the Supreme Court of New Jersey, the appellant argued for the first time that the statute denied it equal protection of the laws in violation of the Fourteenth Amendment to the Constitution by discriminating against it solely on the basis of its foreign incorporation. The Supreme Court noted that it had discretion not to consider a question not raised in the lower court, but nevertheless proceeded to decide the constitutional question because of its widespread importance. It concluded that the classification was not wholly irrational and sustained the denial of exemption.3 50 N. J. 6, 231 A. 2d 608. We noted probable jurisdiction to consider the constitutional question thus raised. 390 U. S. 979. Cf. Raley v. Ohio, 360 U. S. 423, 436. This Court has consistently held that while a State may impose conditions on the entry of foreign corporations to do business in the State, once it has permitted them to enter, “the adopted corporations are entitled to equal protection with the state’s own corporate progeny, at least to the extent that their property is entitled to an equally favorable ad valorem tax basis.” Wheeling Steel Corp. v. Glander, 337 U. S. 562, 571-572. See Reserve Life Ins. Co. v. Bowers, 380 U. S. 258; Hanover Fire Ins. Co. v. Harding, 272 U. S. 494; Southern R. Co. v. tures are erected and which may be necessary for the fair enjoyment thereof, and which is devoted to the foregoing purpose, and no other purpose, and does not exceed 30 acres in extent; the furniture, equipment and personal property in said buildings and structures if used and devoted to the foregoing purpose.” The amendment applies only “to taxes payable in 1968 and thereafter.” 3 Because it concluded that the appellant was not entitled to an exemption in any event, the New Jersey Supreme Court noted that it did not have to decide whether the failure of the appellant to comply with the normal procedure for claiming an exemption under N. J. Stat. Ann. §54:4-4.4 should preclude it from asserting an exempt status. 120 OCTOBER TERM, 1968. Per Curiam. 393 U. S. Greene, 216 U. S. 400. Yet New Jersey has denied the appellant a tax exemption which it accords other nonprofit corporations solely because of the appellant’s foreign incorporation. This is not a case in which the exemption was withheld by reason of the foreign corporation’s failure or inability to benefit the State in the same measure as do domestic nonprofit corporations. Compare Board of Education v. Illinois, 203 U. S. 553. Nor have the appellees advanced any other distinction between this appellant and domestic nonprofit corporations which would justify the inequality of treatment. The New Jersey Supreme Court concluded that the legislative purpose could reasonably have been to avoid the administrative burden which the taxing authorities would bear if they had to examine the laws of other jurisdictions in order to determine whether a corporation with nonprofit status under those laws would also satisfy New Jersey requirements. But this burden would exist only if a foreign corporation sought exemption in New Jersey on the basis of its nonprofit status at home. It is one thing for a State to avoid this extra burden by refusing to grant such an automatic exemption. It is quite another to deny a foreign corporation an opportunity equivalent to that of a domestic corporation to demonstrate that it meets the requirements for a nonprofit corporation under local law. Neither the New Jersey Supreme Court nor the appellees have suggested that there is any greater administrative burden in evaluating a foreign than a domestic corporation under New Jersey law. We must therefore conclude, as we did in Wheeling, that the appellant has not been “accorded equal treatment, and the inequality is not because of the slightest difference in [New Jersey’s] relation to the decisive transaction, but solely because of the different residence of the owner.” 337 U. S., at 572. WHYY v. GLASSBORO. 121 117 Per Curiam. The judgment of the New Jersey Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. Mr. Justice Black dissents from the reversal of this case and would affirm it. 122 OCTOBER TERM, 1968. Per Curiam. 393 U. S. SMITH v. YEAGER, WARDEN. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT. No. 399. Decided November 12, 1968. Following the Supreme Court of New Jersey’s affirmance of petitioner’s murder conviction, in 1961 petitioner sought a writ of habeas corpus in the District Court, asserting, among other grounds, that his confession had been coerced. Petitioner’s then counsel, though asserting the right to an evidentiary hearing, relinquished it. Relying on the state trial record, the court held, inter alia, that the confession was not coerced and denied the petition. Thereafter Townsend v. Sain, 372 U. S. 293, was decided, which substantially increased the availability of evidentiary hearings in habeas corpus proceedings. The Court of Appeals affirmed. In 1965 petitioner again sought habeas corpus in the District Court and asked for an evidentiary hearing. Noting that the coercion issue had been adjudicated in the prior habeas corpus proceeding, the District Court, without conducting an evidentiary hearing, denied the application. The Court of Appeals affirmed, concluding that petitioner had waived his claim to such a hearing in 1961. Held: 1. The essential question in a subsequent habeas corpus proceeding (to which the usual principles of res judicata do not apply and regardless of waiver standards in other circumstances) is whether the petitioner in the prior proceeding “deliberately withheld the newly asserted ground or otherwise abused the writ.” 2. Petitioner’s failure to demand an evidentiary hearing in 1961 followed by such a demand after this Court decided Townsend v. Sain, constitutes no abuse of the writ of habeas corpus or a waiver of his claim to a hearing. Certiorari granted; 395 F. 2d 245, reversed and remanded. Edward Bennett Williams, Steven M. Umin, and Stephen F. Lichtenstein for petitioner. Per Curiam. This petition for a writ of certiorari presents the question whether petitioner’s relinquishment of an evidentiary SMITH v. YEAGER. 123 122 Per Curiam. hearing in a federal habeas corpus proceeding taking place prior to Townsend v. Sain, 372 U. S. 293, bars him from obtaining such a hearing on a subsequent application made after Townsend was decided. In 1957, petitioner was convicted of first-degree murder in a New Jersey court, and sentenced to death. The Supreme Court of New Jersey affirmed the conviction, State v. Smith, 21 N. J. 433, 142 A. 2d 890, and subsequently affirmed the denial of a motion for a new trial. State n. Smith, 29 N. J. 561, 150 A. 2d 769. Petitioner thereafter sought a writ of habeas corpus in the United States District Court for the District of New Jersey. During oral argument before the District Court on June 5, 1961, petitioner’s counsel, referring to the then recent decision in Rogers v. Richmond, 365 U. S. 534, stated: “The United States Supreme Court says your Honor may hold a hearing de novo if need be to go into the historical facts behind this case. I don’t think it is necessary here. “I think if your Honor limits himself to the record, I think that the error, the fundamental constitutional error in this case is so overwhelming that I need not stand here and argue this case at any great length.” Appendix to Petition 69a. The District Court did not conduct an evidentiary hearing. Relying on the state trial record, it denied the application, holding, inter alia, that petitioner’s confession, introduced at his trial, was not the product of coercion. United States ex rel. Smith v. New Jersey, 201 F. Supp. 272. The Court of Appeals affirmed. 322 F. 2d 810.1 1 Petitioner has sought, and was denied, certiorari in this Court on three previous occasions—twice to the state courts, 361 U. S. 861; 379 U. S. 1005, once to the United States Court of Appeals in the 124 OCTOBER TERM, 1968. Per Curiam. 393 U. S. In 1965, petitioner again sought habeas corpus in the District Court, requesting an evidentiary hearing. As supplemented, the application alleged facts relevant to the admissibility of the confession which were not brought out at trial, and which, if proved, presented a stronger case that the confession was coerced.* 2 The District Court denied the application without conducting an evidentiary hearing, noting that the issue of coercion had been adjudicated in the prior habeas proceeding. The Court of Appeals affirmed per curiam, Judge Biggs dissenting. Referring to the above-quoted statement by petitioner’s counsel, and to some remarks of the District Court at an earlier stage of the 1961 proceeding,3 the Court of Appeals concluded that petitioner had waived his claim to an evidentiary hearing in 1961. 395 F. 2d 245. Rehearing en banc was denied, Judge Freedman dissenting,4 and this petition for certiorari followed. We note initially that the usual principles of res judicata are inapplicable to successive habeas corpus pro prior habeas corpus proceeding, 376 U. S. 928. It is worth noting that the present pleadings below substantially expand and clarify the claims heretofore presented by petitioner. 2 The allegations, which include claims of physical harassment by the police, are set out in Judge Biggs’ dissenting opinion below, 395 F. 2d 245, 253, n. 12. 3 On May 15, 1961, during argument on the State’s motion to strike petitioner’s “Amended and/or Supplemental Petition,” the District Court indicated its concern that the record be complete to the satisfaction of both parties. The Court of Appeals construed this as an offer to conduct an evidentiary hearing. No explicit mention of an evidentiary hearing was made, however. A reading of the entire colloquy in the District Court, though not unambiguous, suggests, as Judge Biggs noted in dissent below, that the discussion was concerned only with “the issue of whether or not the case would proceed upon the original petition for habeas corpus and answer, the supplemental petition for habeas corpus and answer, or on both sets of pleadings.” 395 F. 2d 245, 249, n. 4. 4 Judge Biggs did not participate. SMITH v. YEAGER. 125 122 Per Curiam. ceedings.5 Salinger v. Loisel, 265 U. S. 224; cf. Sanders v. United States, 373 U. S. 1. Whatever the standards for waiver may be in other circumstances, the essential question here is whether the petitioner “deliberately withheld the newly asserted ground” in the prior proceeding, or “otherwise abused the writ.” 28 U. S. C. § 2244 (b) (1964 ed, Supp. III). At the time of the 1961 proceeding, Brown v. Allen, 344 U. S. 443, indicated that a District Court’s discretion to hold an evidentiary hearing was to be exercised only in “unusual circumstances,” 344 U. S., at 463, or where a “vital flaw” existed in the state procedure. 344 U. S., at 506 (opinion of Mr. Justice Frankfurter). Townsend v. Sain, supra, had not yet been decided. This Court recognized in Townsend “that the opinions in Brown v. Allen ... do not provide answers for all aspects of the hearing problem for the lower federal courts, which have reached widely divergent, in fact often irreconcilable, results,” 372 U. S., at 310, and established criteria for the granting of evidentiary hearings “which must be considered to supersede, to the extent of any inconsistencies, the opinions in Brown v. Allen . . . 372 U. S., at 312. Townsend v. Sain substantially increased the availability of evidentiary hearings in habeas corpus proceedings, and made mandatory much of what had previously been within the broad discretion of the District Court. See also Fay v. Noia, 372 U. S. 391. It is at least doubtful whether petitioner could have obtained an evidentiary hearing as the law stood in 1961. Indeed, at the time, the State argued to the District Court with some cogency that petitioner presented “no unusual circumstances calling for a hearing.” We do not believe that petitioner should be placed in a worse position be- 5 For this reason, if no other, the fact that Townsend v. Sain was decided before the Court of Appeals’ decision in the first proceeding, and considered by the Court of Appeals there in denying rehearing en banc, is not dispositive of the present case. 126 OCTOBER TERM, 1968. Per Curiam. 393 U. S. cause his then counsel asserted that he had a right to an evidentiary hearing and then relinquished it. Whatever counsel’s reasons for this obscure gesture of noblesse oblige,6 we cannot now examine the state of his mind, or presume that he intentionally relinquished a known right or privilege, Johnson v. Zerbst, 304 U. S. 458, 464, when the right or privilege was of doubtful existence at the time of the supposed waiver. In short, we conclude that petitioner’s failure to demand an evidentiary hearing in 1961, followed by such a demand after the decision in Townsend v. Sain, supra, constitutes no abuse of the writ of habeas corpus. “If, for any reason not attributable to the inexcusable neglect of petitioner . . . evidence crucial to the adequate consideration of the constitutional claim was not developed at the state hearing, a federal hearing is compelled.” Townsend v. Sain, supra, at 317. Petitioner’s assertion that he comes within this principle is not controverted by respondent or by the record below. We do not, however, pass on this question, or on the other questions presented in the petition. These, as well as other issues appropriately raised below, may be considered by the District Court. We hold only that petitioner has not, by reason of anything that occurred during the 1961 habeas proceeding, waived his claim to an evidentiary hearing in the District Court. The petition for a writ of certiorari is granted, the judgment of the Court of Appeals is reversed, and the case is remanded to that court for proceedings consistent with this opinion. so or(}ered. Mr. Justice White dissents and would grant certiorari and set the case for oral argument. 6 As the State pointed out during the 1961 hearing, Rogers v. Richmond, supra, the case chiefly relied on by petitioner, does not appear to support his claim to an evidentiary hearing. See especially 365 U. S., at 547. DECISIONS PER CURIAM. 127 393 U.S. November 12, 1968. ATLANTIC OCEAN PRODUCTS, INC, et al. v. LETH, DIRECTOR, DEPARTMENT OF AGRICULTURE OF OREGON, et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON. No. 417. Decided November 12, 1968. 292 F. Supp. 615, affirmed. Thomas H. Tongue for appellants. Robert Y. Thornton, Attorney General of Oregon, and Harold E. Burke, Assistant Attorney General, for appellees. Per Curiam. The motion to affirm is granted and the judgment is affirmed. DOOLIN, dba NATIONAL NOVELTY CO, et al. v. KORSHAK, DIRECTOR OF REVENUE, et al. APPEAL FROM THE SUPREME COURT OF ILLINOIS. No. 439. Decided November 12, 1968. 39 Ill. 2d 521, 236 N. E. 2d 897, appeal dismissed. Owen Rall for appellants. William G. Clark, Attorney General of Illinois, and John J. O’Toole, Assistant Attorney General, for appellees. Per Curiam. The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. 128 OCTOBER TERM, 1968. 393 U. S. November 12, 1968. CROSS et al. v. COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, et al. APPEAL FROM THE SUPREME COURT OF CALIFORNIA. No. 533, Mise. Decided November 12, 1968. Appeal dismissed and certiorari denied. Per Curiam. The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied. FIREMEN v. CHICAGO, R. I. & P. R. CO. 129 Syllabus. BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN et al. v. CHICAGO, ROCK ISLAND & PACIFIC RAILROAD CO. ET AL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF ARKANSAS. No. 16. Argued October 22, 1968.—Decided November 18, 1968* Appellees, a group of interstate railroads operating in Arkansas, sought declaratory and injunctive relief in the District Court, claiming, inter alia, that Arkansas’ “full-crew” laws violate the Commerce Clause, and the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The full-crew laws require minimum train crews for certain conditions of railroad operation in the State but, through mileage classification, have the effect of exempting the State’s intrastate railroads from those requirements. The laws were enacted in 1907 and 1913 to further railroad safety and, though several times subsequently re-evaluated, have been retained for that purpose. Conflicting evidence was given to support the railroads’ claims that full-crew requirements merely facilitate featherbedding and appellants’ claims that such requirements promote safety. Though earlier decisions of this Court upheld the statutes against constitutional challenge, the District Court concluded that conditions have changed and that the full-crew laws now impermissibly burden interstate commerce. The court also held that the full-crew laws are “unreasonable and oppressive,” and thus violate the Due Process Clause of the Fourteenth Amendment. The court did not reach appellees’ contention that the laws discriminate against interstate commerce in favor of intrastate commerce in violation of the Commerce and Equal Protection Clauses. Held: 1. Whether full-crew laws are necessary to further railroad safety is a matter for legislative determination. In the circumstances of this case the District Court erred in rejecting the legislative judgment that such laws promote railroad safety and that *Together with No. 18, Hardin, Prosecuting Attorney, et al. v. Chicago, Rock Island Pacific Railroad Co. et al., on appeal from the same court. 130 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. the cost of additional crewmen is justified by the safety such laws might achieve. Pp. 136-140. 2. The mileage classification of the Arkansas laws is permissible under the Commerce and Equal Protection Clauses. Pp. 140-142. 3. The full-crew laws do not violate the Equal Protection Clause by singling out railroads from other forms of transportation, and appellees’ contention that the statutes are “unduly oppressive” under the Due Process Clause affords no basis for their invalidation apart from any effect on interstate commerce. Pp. 142-143. 274 F. Supp. 294, reversed and remanded. James E. Youngdahl argued the cause for appellants in No. 16. Leslie Evitts, Chief Assistant Attorney General of Arkansas, argued the cause for appellants in No. 18. With them on the briefs were Joe Purcell, Attorney General of Arkansas, Robert D. Ross, and John P. Sizemore. Robert V. Light and Martin M. Lucente argued the cause for appellees in both cases. With them on the brief were W. J. Smith, H. H. Friday, and R. W. Yost. Mr. Justice Black delivered the opinion of the Court. These cases raise the question whether the Arkansas “full-crew” laws, specifying a minimum number of employees who must serve as part of a train crew under certain circumstances, violate the Commerce Clause or the Fourteenth Amendment. The constitutionality of these Arkansas laws has been specifically upheld against challenges under the same constitutional provisions in three decisions of this Court, in 1911, in 1916, and again in 1931? In the present cases, however, the District Court found that as a result of economic and technical 1 Chicago, R. I. & P. R. Co. v. Arkansas, 219 U. S. 453 (1911) ; St. L., I. M. & S. R. Co. v. Arkansas, 240 U. S. 518 (1916); Missouri Pac. R. Co. v. Norwood, 283 U. S. 249 (1931), 290 U. S. 600 (1933). The Court’s holdings in these cases were also reaffirmed, in dictum, in Southern Pacific Co. v. Arizona, 325 U. S. 761, 782 (1945). FIREMEN v. CHICAGO, R. I. & P. R. CO. 131 129 Opinion of the Court. developments since our last decision on this subject, the statutes were no longer justified as safety measures, the ground on which they had formerly been sustained, and struck them down as contrary to the Commerce Clause of the Constitution and the Due Process Clause of the Fourteenth Amendment. 274 F. Supp. 294 (D. C. W. D. Ark. 1967). We noted probable jurisdiction, 390 U. S. 941 (1968). We disagree with the District Court’s holding that the railroads have shown a change in circumstances sufficient to justify departure from our three previous decisions. We therefore reaffirm those cases and reverse the judgment of the District Court. The first of the two statutes challenged here was enacted in 1907, and this law makes it an offense for a railroad operating a line of more than 50 miles to haul a freight train consisting of more than 25 cars, unless the train has a crew of not “less than an engineer, a fireman, a conductor and three [3] brakemen . ...”2 The second statute, enacted in 1913, makes it an offense for any railroad with a line of 100 miles or more to engage in switching operations in cities of designated populations, with “less than one [1] engineer, a fireman, a foreman and three [3] helpers . ...”3 These two statutes, the constitutionality of which this Court previously upheld, are precisely the statutes here challenged and struck down. This latest attack on these Arkansas laws was commenced by a group of interstate railroads operating in Arkansas which asked the United States District Court to declare the statutes unconstitutional and enjoin two Arkansas prosecuting attorneys, appellants here, from enforcing them. The railroad brotherhoods, also appel- 2 Ark. Laws 1907, Act 116, Ark. Stat. Ann. §§ 73-720 through 73-722 (1957 Repl. Vol.). 3 Ark. Laws 1913, Act 67, Ark. Stat. Ann. §§ 73-726 through 73-729 (1957 Repl. Vol.). 320-583 0 - 69 - 17 132 OCTOBER TERM, 1968. 393 U. S. Opinion of the Court. lants here, were allowed to intervene in the District Court in order to defend the validity of the state statutes. In their complaint appellees charged that both statutes (1) operate in an “arbitrary, capricious, discriminatory and unreasonable” manner in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment; (2) unduly interfere with, burden, and needlessly increase the cost of interstate transportation in violation of the Commerce Clause, Art. I, § 8, cl. 3, of the Constitution, and contrary to the National Transportation Policy expressed in the Interstate Commerce Act; (3) discriminate against interstate commerce in favor of local or intrastate commerce; and (4) invade a field of federal legislation pre-empted by the Federal Government primarily through Pub. L. 88-108, passed by Congress in 1963 4 to avert a nationwide railroad strike. In its first opinion in these cases, the District Court granted the railroads’ motion for summary judgment, holding that the field of full-crew legislation was preempted by Pub. L. 88-108, 239 F. Supp. 1 (D. C. W. D. Ark. 1965), but we reversed on the pre-emption question, sub nom. Engineers v. Chicago, R. I. & P. R. Co., 382 U. S. 423 (1966). We also held that the railroads were not entitled to summary judgment on their alternative theory that because the effect of the mileage exemption in the two Acts is to free all of the State’s intrastate railroads from the full-crew requirements while ensuring coverage of most of the interstate railroads, the two Acts “constitute discriminatory legislation against interstate commerce in favor of intrastate commerce.” Id., at 437^438. On remand the District Court held an evidentiary hearing and, after compiling a voluminous record, found that the full-crew requirements had “no substantial effect on safety of operations,” placed “substantial financial burdens” upon the carriers, and caused 4 77 Stat. 132, 45 U. S. C. following § 157. FIREMEN v. CHICAGO, R. I. & P. R. CO. 133 129 Opinion of the Court. “some delays” and interference with the continuity of railroad operations. On the basis of these findings the District Court held the Arkansas laws unconstitutional as impermissible burdens on interstate commerce and also ruled that because the laws were “unreasonable and oppressive” they violated the Due Process Clause of the Fourteenth Amendment. The court did not reach the railroads’ further argument that the Arkansas laws discriminate against interstate commerce in favor of intrastate commerce in violation of the Commerce and Equal Protection Clauses. Appellants challenge both the accuracy of the District Court’s findings and holdings and their relevance to adjudication of the constitutional issues presented. They ask us to hold that the Arkansas laws do not impermissibly burden interstate commerce or otherwise violate any provision of the Constitution. I. The question of crew size has been a subject of dispute between the railroads and their employees for more than half a century. Much of the controversy has of course been fought out by collective bargaining between the railroads and the unions.5 In many States attempts have been made to settle the controversy by legislation. The Arkansas statutes before us were passed in 1907 and 1913, along with a number of other laws designed to further railroad safety, such as headlight standards, regulations concerning the obstruction of train crossings, and so on.6 Many other States have also passed full-crew laws as parts of detailed codes regulating railroad safety.7 5 The long and troublesome history of this aspect of the dispute is briefly summarized in our prior opinion in these cases, 382 U. S., at 430-432. 6 See, e. g., Ark. Stat. Ann. §§73-704 through 73-706; 73-718, 73-719 (1957 Repl. Vol.). 7 The approach taken in other States is summarized in the opinion of the District Court in these cases, 274 F. Supp., at 299. 134 OCTOBER TERM, 1968. Opinion of the Court. 393 U.S. These safety codes, and the full-crew provisions in particular, have been subject to continual re-evaluation throughout the country. In New York, for example, the Public Service Commission in 1960 recommended total repeal of the State’s full-crew legislation, and in 1966 two of the three New York laws in the field were repealed, but the legislature explicitly rejected a proposal to repeal the third law, which requires both a fireman and an engineer to be on duty in the engine cab, in addition to the brakeman who serves in the cab on freight hauls.8 In Arkansas the railroad safety laws have similarly been subject to close scrutiny. Additional safety requirements have been added from time to time,9 and some safety requirements considered out of date have been repealed.10 With respect to the full-crew statutes specifically, a proposal to repeal these statutes was placed on the ballot for popular referendum in 1958 and was decisively defeated by the voters. Congress too has been concerned with the problem of the rules governing crew size and in 1963 passed a statute referring the dispute between the railroads and the unions to arbitration, but as we held in our prior decision, Congress was aware of state fullcrew laws and did not intend to override them. 382 U. S., at 429-437. In spite of this background of frequent and recent legislative re-evaluation of the full-crew problem, both at the state and national levels, the railroads now ask us to determine as a judicial matter that these laws no longer make a significant contribution to safety and so 8 See New York Central R. Co. v. Lefkowitz, 23 N. Y. 2d 1, 241 N. E. 2d 730 (1968). 9E. g., Ark. Laws 1951, Act 253, Ark. Stat. Ann. § 73-740 (1957 Repl. Vol.); Ark. Laws 1953, Act 130, Ark. Stat. Ann. §§ 73-741 through 73-744 (1957 Repl. Vol.). 30 E. g., Ark. Laws 1965, Act 501, Ark. Stat. Ann. § 73-730 (Supp. 1967). FIREMEN v. CHICAGO, R. I. & P. R. CO. 135 129 Opinion of the Court. seriously burden the railroads in their operations that they should no longer stand under the Commerce Clause. The essence of the railroads’ position is that the requirement of additional crewmen amounts to nothing more than featherbedding. They claim that the firemen once needed to tend the furnaces on steam locomotives are not necessary on the diesel engines now generally in use. Although the railroads recognize that the fireman performs a valuable lookout function on passenger trains, where he and the engineer are the only crewmen in the engine cab, they assert that in both freight hauling operations and yard switching operations other railroad employees are available to provide an adequate lookout and assist the engineer in correcting mechanical problems and performing other miscellaneous duties. The railroads thus maintain that the firemen, and some of the other required crewmen, perform no useful function and make no significant contribution to safety. At the same time, the railroads contend, the full-crew requirements substantially increase their cost of operation, hampering their ability to improve railroad service and to compete with other modes of transportation, and also burden commerce by requiring interstate trains passing through Arkansas to slow down or stop at the border to pick up and let off the extra crewmen. The State of Arkansas and the railroad brotherhoods, all appellants here, take a different view of the functions performed by the firemen and other additional crewmen required under the statutes. They claim that the work performed by these employees—serving as lookout, passing signals, relieving the engineer in emergencies, inspecting the engine and other cars, and helping to make needed adjustments and repairs while the train is moving—is still necessary and cannot be performed by other employees without unduly burdening them and interfering with the proper performance of their other tasks. Ap- 136 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. pellants argue that although some technological improvements have tended to eliminate safety hazards and lighten the work of the train crew, other developments, such as the increased size and speed of trains, the heavier automobile traffic over train crossings, and the competitive pressures for faster switching of trains, have had exactly the opposite effect. The District Court analyzed these conflicting contentions and the conflicting evidence adduced to support them and concluded that the full-crew requirements have “no substantial effect on safety of operations.” The court also said that even if these requirements did add “some increment of safety to the operation, we think that such an increment is negligible ... and not worth the cost.” As additional factors justifying its conclusion that the laws created an unconstitutional burden on interstate commerce, the court emphasized “the financial burden of compliance, which is out of all proportion to the benefit, if any, derived, and the added burden involved in the taking on and discharging men at or near the Arkansas State line . . . We think it plain that in striking down the full-crew laws on this basis, the District Court indulged in a legislative judgment wholly beyond its limited authority to review state legislation under the Commerce Clause. The evidence as to the need for firemen and other additional crewmen was certainly conflicting and to a considerable extent inconclusive. Many railroad employees gave direct testimony as to incidents in which, for example, the presence of a fireman as a lookout helped avert a serious accident. With respect to statistical evidence, the District Court itself noted: “The statistical evidence as to the effect upon safety of the reductions in force authorized by the basic award and by the awards of the special adjustment boards [under the 1963 arbitration] is not entirely satisfactory either way . . . .” Indeed, as the FIREMEN v. CHICAGO, R. I. & P. R. CO. 137 129 Opinion of the Court. court below recognized, the statistics showed that railroad accidents had actually increased during the period from 1964-1966, when the size of train crews was being reduced.11 It would hardly be possible to summarize here all the other evidence in the record relevant to the safety question, and, as we have indicated, it is wholly unnecessary to do so. A brief summary of some of the findings of Arbitration Board No. 282, the panel set up pursuant to Pub. L. 88-108, should suffice to show that the question of safety is clearly one for legislative determination. In quoting from this report, of course, we in no way intend to indicate that the District Court should have accepted any of its specific conclusions or that this evidence was necessarily any more persuasive than any of the many other sources of information about the problem. We single it out only because it is one of the more recent reports and because it was heavily relied upon by the District Court and by the railroads themselves. The Board stated as its very first finding: “1. The record contains no evidence to support the charge, frequently and irresponsibly made, that firemen presently employed in road freight and yard service throughout the country are being paid to do nothing and actually perform no useful work.” The Board then went on to deal specifically with the various functions for which firemen were claimed to be necessary. It concluded that firemen were not necessary to perform the lookout function in “the great majority of cases” and that they were not needed to perform cer- 11 The District Court dealt with this fact by simply stating that this trend had been observed in years preceding the effective date of the arbitration award and concluding: “Why accident rates have been increasing we do not know with certainty, but it would be pure speculation to say that crew size has had anything to do with it.” 138 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. tain mechanical duties. The Board also held, however, that in order to insure relief of an engineer who becomes incapacitated while operating the train, firemen were clearly necessary in yard service on engines that were not equipped with a fully operative dead-man control, and the record before us in the present cases indicates that a substantial percentage of the engines operated in Arkansas are not equipped with this device. Although the Board thus thought that firemen could be eliminated in most cases, the Board emphasized: “[W]e are satisfied that a certain number of such assignments require the continued employment of firemen in order to prevent excessive safety hazard to lives and property, to avoid imposing an undue burden upon the remaining crew members, and to assure adequate and safe transportation service to the public.” Finally, and most significant, the Board itself stressed in conclusion the subjective nature of its findings with reference to safety: “Safety is, of course, essentially a relative concept; once adequate minimum standards have been achieved, the decision as to how much more safety is required must necessarily be governed by all the accompanying circumstances. Railroading is, unfortunately, a hazardous occupation, and the problem before us cannot be viewed simply in terms of preventing or not preventing accidents.” This summary, taken from evidence heavily relied upon by the railroads and generally favorable to their position, leaves little room for doubt that the question of safety in the circumstances of this case is essentially a matter of public policy, and public policy can, under our constitutional system, be fixed only by the people acting through their elected representatives. The District Court’s re- FIREMEN v. CHICAGO, R. I. & P. R. CO. 139 129 Opinion of the Court. sponsibility for making “findings of fact” certainly does not authorize it to resolve conflicts in the evidence against the legislature’s conclusion or even to reject the legislative judgment on the basis that without convincing statistics in the record to support it, the legislative viewpoint constitutes nothing more than what the District Court in this case said was “pure speculation.” Of the other matters relied upon by the District Court, the problem of delay at the state borders apparently has not changed appreciably since the days of this Court’s earliest full-crew decisions, and this Court’s statement of the insignificance of the problem in Southern Pacific Co. v. Arizona, 325 U. S. 761, 782 (1945), is equally valid today: “While the full train crew laws undoubtedly placed an added financial burden on the railroads in order to serve a local interest, they did not obstruct interstate transportation or seriously impede it. They had no effects outside the state beyond those of picking up and setting down the extra employees at the state boundaries; they involved no wasted use of facilities or serious impairment of transportation efficiency . . . .” Nor was it open to the District Court to place a value on the additional safety in terms of dollars and cents, in order to see whether this value, as calculated by the court, exceeded the financial cost to the railroads.12 As we said 12 The record contains no meaningful estimate of what this cost actually is. The railroads computed the total wages paid per year to the allegedly unnecessary employees and claimed that this total figure, $7,600,000, represents the cost of compliance. But it was admitted that the net cost is actually lower than this because elimination of the additional crewmen would create new expenses, such as the special compensatory allowance paid to engineers who operate without the assistance of a fireman, additional overtime pay, and other costs associated with somewhat slower operations in terminals 140 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. in Bibb v. Navajo Freight Lines, 359 U. S. 520 (1959), where the District Court had struck down an Illinois law requiring trucks to be equipped with contour mudguards, on the ground that the equipment had no safety advantages and was very costly to install and maintain: “Cost taken into consideration with other factors might be relevant in some cases to the issue of burden on commerce. But it has assumed no such proportions here. If we had here only a question whether the cost of adjusting an interstate operation to these new local safety regulations prescribed by Illinois unduly burdened interstate commerce, we would have to sustain the law under the authority of the Sproles [286 U. S. 374 (1932)], Barnwell [303 U. S. 177 (1938)1, and Maurer [309 U. S. 598 (1940)] cases. The same result would obtain if we had to resolve the much discussed issues of safety presented in this case.” Id., at 526.13 It is difficult at best to say that financial losses should be balanced against the loss of lives and limbs of workers and people using the highways. We certainly cannot do so on this showing. II. We deal next with the contention that because of the mileage exemption, the full-crew laws discriminate against interstate commerce in favor of intrastate commerce. This contention, like the railroads’ other claims, and en route. The railroads introduced no evidence to indicate the approximate amount of such new expenses, and we have no way of knowing whether, as appellants claim, these expenses would to a substantial extent offset the wage savings associated with the reduction in crew sizes. 13 Although we struck down the Illinois law in Bibb, we did so on the carefully limited basis that the contour mudguard requirement flatly conflicted with laws, enforced in at least one other State, that trucks must be equipped with straight mudguards. FIREMEN v. CHICAGO, R. I. & P. R. CO. 141 129 Opinion of the Court. was of course specifically rejected in this Court’s earlier decisions dealing with these same Arkansas statutes. We noted in our prior opinion in the present cases that the effect of the mileage exemptions was to free all of the State’s 17 intrastate railroads from the coverage of the Acts, while 10 of the 11 interstate railroads are subject to the 1907 Act, and eight of them are subject to the 1913 Act. We went on to say, however, that the difference in treatment based on differing track mileage might have a rational basis, and we therefore held that the mileage classification could not, “on the record now before us,” be considered a discrimination in violation of the Commerce and Equal Protection Clauses. 382 U. S., at 437. Despite the extensive testimony and exhibits added to the record since our previous consideration of these cases, we have found no basis for altering our conclusion that the mileage classification is permissible. The railroads argue that the extra men, if needed at all, are equally necessary on all trains, regardless of whether the company operating them happens to own a more or a less extensive system of track. But evidence in the record establishes a number of legitimate reasons for the mileage exemption. In the case of at least one of the short-line roads, the maximum speed for trains running over its main track is 35 miles per hour, while trains moving over the longer lines have speed limits of 65 and in some cases 75 miles per hour. The apparent use of much slower trains over the short lines certainly provides a basis upon which the Arkansas Legislature could conclude that the hazards encountered in line-haul operations are less serious, and accordingly that the need for regulation is less pressing, on the short lines. Similarly in connection with the switching operations, there was evidence that the usefulness of additional employees depends to some extent on the length of the train being switched, 142 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. another factor that—like speed—tends to vary according to the railroad’s total trackage. Finally, the legislature could also conclude that the smaller railroads would be less able to bear the cost of additional crewmen, even though the total additional cost would of course tend to be smaller in the case of the smaller companies. Although the railroads claim that other criteria could provide a more precise test of the situations where a larger crew is desirable, these other standards have inadequacies of their own, and are for the most part far too vague to provide a basis for a statutory classification. And in any event the courts may not force a state legislature to attain scientific perfection in determining the coverage of statutes of this type. As we stressed in the Bibb case, 359 U. S., at 524: “These safety measures carry a strong presumption of validity when challenged in court. If there are alternative ways of solving a problem, we do not sit to determine which of them is best suited to achieve a valid state objective. Policy decisions are for the state legislature, absent federal entry into the field.” Mileage classifications have repeatedly been upheld on this basis, not only in this Court’s previous decisions dealing with these very statutes but in many other cases involving similar problems. See, e. g., New York, N. H. H. R. Co. v. New York, 165 U. S. 628 (1897). Nothing suggests that full-crew laws should now be treated differently. III. There remains for consideration only the railroads’ contention that the Arkansas laws violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Little need be said of the claim that the statutes violate the Equal Protection Clause for the reason that they discriminate against the railroad industry FIREMEN v. CHICAGO, R. I. & P. R. CO. 143 129 Opinion of the Court. by singling it out for regulation and making no provision for minimum crews on “motor buses, taxicabs, airplanes, barges, cargo trucks, or any other segment of the transportation industry.” The statutes as written, requiring, for example, not “less than an engineer, a fireman, a conductor and three [3] brakemen,” could scarcely be extended in their present terms to such means of transportation as taxicabs or airplanes. Nor was the legislature, in attempting to deal with the safety problems in one industry, required to investigate the various differing hazards encountered in all competing industries and then to enact additional legislation to meet these distinct problems. The railroads also argue that the statutes violate the Due Process Clause because they are “unduly oppressive” and impose costs on the regulated industry that exceed the public benefits of the regulation. The District Court agreed with this position, holding that the impact of the full-crew laws today is “unreasonable and oppressive” and therefore a violation of due process. Insofar as these arguments seek to present an independent basis for invalidating the laws, apart from any effect on interstate commerce, we think, with all due deference to appellees and the District Court, that these contentions require no further consideration. Ferguson v. Skrupa, 372 U. S. 726 (1963); Williamson v. Lee Optical Co., 348 U. S. 483 (1955); Olsen v. Nebraska, 313 U. S. 236 (1941); West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937); Nebbia v. New York, 291 U. S. 502 (1934). IV. Under all the circumstances we see no reason to depart from this Court’s previous decisions holding that the Arkansas full-crew laws do not unduly burden interstate commerce or otherwise violate the Constitution. Undoubtedly heated disputes will continue as to the extent 144 OCTOBER TERM, 1968. Douglas, J., dissenting. 393 U. S. to which these laws contribute to safety and other public interests, and the extent to which such contributions are justified by the cost of the additional manpower. These disputes will continue to be worked out in the legislatures and in various forms of collective bargaining between management and the unions. As we have said many times, Congress unquestionably has power under the Commerce Clause to regulate the number of employees who shall be used to man trains used in interstate commerce. In the absence of congressional action, however, we cannot invoke the judicial power to invalidate this judgment of the people of Arkansas and their elected representatives as to the price society should pay to promote safety in the railroad industry. The judgment of the District Court is reversed, and the cases are remanded to that court with instructions to dismiss the complaint. It is so ordered. Mr. Justice Fortas took no part in the consideration or decision of these cases. Mr. Justice Douglas, dissenting. I would agree with the Court that if the constitutionality of these Arkansas laws were to be judged as safety measures under the State’s police power, they would have to be sustained. But as I indicated in my dissent in Engineers v. Chicago, R. I. & P. R. Co., 382 U. S. 423, 438, Congress in enacting Pub. L. 88-108, 77 Stat. 132, undertook to displace state “full-crew” laws by delegating power to a national arbitration board to determine, for example, the necessity of firemen on diesel freights and the minimum size of train and switching crews. I would, therefore, remand the cases to the District Court for further proceedings consistent with Pub. L. 88-108 and the awards that have been made under it. COMMONWEALTH CORP. v. CASUALTY CO. 145 Opinion of the Court. COMMONWEALTH COATINGS CORP. v. CONTINENTAL CASUALTY CO. et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT. No. 14. Argued October 22, 1968.—Decided November 18, 1968. Petitioner, a subcontractor, sued the sureties on the prime contractor’s bond to recover money allegedly due for a painting job. Pursuant to the arbitration provision in the contract, petitioner appointed an arbitrator, the prime contractor appointed another, and these two appointed a third. The third arbitrator was an engineering consultant whose services were used sporadically by the prime contractor, resulting in fees of about $12,000 over a period of four to five years. Petitioner challenges the arbitration award on the ground that this close business connection was not revealed until after the award was made. The Court of Appeals affirmed the District Court’s refusal to set aside the award. Held: Arbitrators should disclose to the parties any dealings which might create an impression of possible bias, and since the business connection between the arbitrator and the prime contractor was not disclosed here, the award can be vacated under § 10 of the United States Arbitration Act, which authorizes vacation of an award “procured by . . . undue means” or “where there was evident partiality ... in the arbitrators.” Pp. 146-150. 382 F. 2d 1010, reversed. Emanuel Harris argued the cause for petitioner. With him on the briefs was Max E. Greenberg. Overton A. Currie argued the cause for respondents. With him on the briefs were Luther P. House, Jr., Federico Ramirez Ros, and Edward H. Wasson, Jr. Mr. Justice Black delivered the opinion of the Court. At issue in this case is the question whether elementary requirements of impartiality taken for granted in every judicial proceeding are suspended when the parties agree to resolve a dispute through arbitration. 146 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. The petitioner, Commonwealth Coatings Corporation, a subcontractor, sued the sureties on the prime contractor’s bond to recover money alleged to be due for a painting job. The contract for painting contained an agreement to arbitrate such controversies. Pursuant to this agreement petitioner appointed one arbitrator, the prime contractor appointed a second, and these two together selected the third arbitrator. This third arbitrator, the supposedly neutral member of the panel, conducted a large business in Puerto Rico, in which he served as an engineering consultant for various people in connection with building construction projects. One of his regular customers in this business was the prime contractor that petitioner sued in this case. This relationship with the prime contractor was in a sense sporadic in that the arbitrator’s services were used only from time to time at irregular intervals, and there had been no dealings between them for about a year immediately preceding the arbitration. Nevertheless, the prime contractor’s patronage was repeated and significant, involving fees of about 812,000 over a period of four or five years, and the relationship even went so far as to include the rendering of services on the very projects involved in this lawsuit. An arbitration was held, but the facts concerning the close business connections between the third arbitrator and the prime contractor were unknown to petitioner and were never revealed to it by this arbitrator, by the prime contractor, or by anyone else until after an award had been made. Petitioner challenged the award on this ground, among others, but the District Court refused to set aside the award. The Court of Appeals affirmed, 382 F. 2d 1010 (C. A. 1st Cir. 1967), and we granted certiorari, 390 U. S. 979 (1968). In 1925 Congress enacted the United States Arbitration Act, 9 U. S. C. §§ 1-14, which sets out a comprehen- COMMONWEALTH CORP. v. CASUALTY CO. 147 145 Opinion of the Court. sive plan for arbitration of controversies coming under its terms, and both sides here assume that this Federal Act governs this case. Section 10, quoted below, sets out the conditions upon which awards can be vacated.1 The two courts below held, however, that § 10 could not be construed in such a way as to justify vacating the award in this case. We disagree and reverse. Section 10 does authorize vacation of an award where it was “procured by corruption, fraud, or undue means” or “[w]here there was evident partiality ... in the arbitrators.” These provisions show a desire of Congress to provide not merely for any arbitration but for an impartial one. It is true that petitioner does not charge before us that the third arbitrator was actually guilty of fraud or bias in deciding this case, and we have no reason, apart from the undisclosed business relationship, to suspect him of any improper motives. But neither this arbitrator nor the prime contractor gave to petitioner even an 1 “In either of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration— “(a) Where the award was procured by corruption, fraud, or undue means. “(b) Where there was evident partiality or corruption in the arbitrators, or either of them. “(c) Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced. “(d) Where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made. “(e) Where an award is vacated and the time within which the agreement required the award to be made has not expired the court may, in its discretion, direct a rehearing by the arbitrators.” 320-583 0 - 69 - 18 148 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. intimation of the close financial relations that had existed between them for a period of years. We have no doubt that if a litigant could show that a foreman of a jury or a judge in a court of justice had, unknown to the litigant, any such relationship, the judgment would be subject to challenge. This is shown beyond doubt by Tumey v. Ohio, 273 U. S. 510 (1927), where this Court held that a conviction could not stand because a small part of the judge’s income consisted of court fees collected from convicted defendants. Although in Tumey it appeared the amount of the judge’s compensation actually depended on whether he decided for one side or the other, that is too small a distinction to allow this manifest violation of the strict morality and fairness Congress would have expected on the part of the arbitrator and the other party in this case. Nor should it be at all relevant, as the Court of Appeals apparently thought it was here, that “[t]he payments received were a very small part of [the arbitrator’s] income . ...” 2 For in Tumey the Court held that a decision should be set aside where there is “the slightest pecuniary interest” on the part of the judge, and specifically rejected the State’s contention that the compensation involved there was “so small that it is not to be regarded as likely to influence improperly a judicial officer in the discharge of his duty . ...”3 Since in the case of courts this is a constitutional principle, we can see no basis for refusing to find the same concept in the broad statutory language that governs arbitration proceedings and provides that an award can be set aside on the basis of “evident partiality” or the use of “undue means.” See also Rogers v. Schering Corp., 165 F. Supp. 295, 301 (D. C. N. J. 1958). It is true that arbitrators cannot sever all their ties with the business world, since 2 382 F. 2d, at 1011. 3 273 U. S., at 524. COMMONWEALTH CORP. v. CASUALTY CO. 149 145 Opinion of the Court. they are not expected to get all their income from their work deciding cases, but we should, if anything, be even more scrupulous to safeguard the impartiality of arbitrators than judges, since the former have completely free rein to decide the law as well as the facts and are not subject to appellate review. We can perceive no way in which the effectiveness of the arbitration process will be hampered by the simple requirement that arbitrators disclose to the parties any dealings that might create an impression of possible bias. While not controlling in this case, § 18 of the Rules of the American Arbitration Association, in effect at the time of this arbitration, is highly significant. It provided as follows: “Section 18. Disclosure by Arbitrator of Disqualification—At the time of receiving his notice of appointment, the prospective Arbitrator is requested to disclose any circumstances likely to create a presumption of bias or which he believes might disqualify him as an impartial Arbitrator. Upon receipt of such information, the Tribunal Clerk shall immediately disclose it to the parties, who if willing to proceed under the circumstances disclosed, shall, in writing, so advise the Tribunal Clerk. If either party declines to waive the presumptive disqualification, the vacancy thus created shall be filled in accordance with the applicable provisions of this Rule.” And based on the same principle as this Arbitration Association rule is that part of the 33d Canon of Judicial Ethics which provides: “33. Social Relations. “. . . [A judge] should, however, in pending or prospective litigation before him be particularly 150 OCTOBER TERM, 1968. White, J., concurring. 393 U. S. careful to avoid such action as may reasonably tend to awaken the suspicion that his social or business relations or friendships, constitute an element in influencing his judicial conduct.” This rule of arbitration and this canon of judicial ethics rest on the premise that any tribunal permitted by law to try cases and controversies not only must be unbiased but also must avoid even the appearance of bias. We cannot believe that it was the purpose of Congress to authorize litigants to submit their cases and controversies to arbitration boards that might reasonably be thought biased against one litigant and favorable to another. Reversed. Mr. Justice White, with whom Mr. Justice Marshall joins, concurring. While I am glad to join my Brother Black’s opinion in this case, I desire to make these additional remarks. The Court does not decide today that arbitrators are to be held to the standards of judicial decorum of Article III judges, or indeed of any judges. It is often because they are men of affairs, not apart from but of the marketplace, that they are effective in their adjudicatory function. Cf. United Steehvorkers v. Warrior & Gulf Navigation Co., 363 U. S. 574 (1960). This does not mean the judiciary must overlook outright chicanery in giving effect to their awards; that would be an abdication of our responsibility. But it does mean that arbitrators are not automatically disqualified by a business relationship with the parties before them if both parties are informed of the relationship in advance, or if they are unaware of the facts but the relationship is trivial. I see no reason automatically to disqualify the best informed and most capable potential arbitrators. COMMONWEALTH CORP. v. CASUALTY CO. 151 145 White, J., concurring. The arbitration process functions best when an amicable and trusting atmosphere is preserved and there is voluntary compliance with the decree, without need for judicial enforcement. This end is best served by establishing an atmosphere of frankness at the outset, through disclosure by the arbitrator of any financial transactions which he has had or is negotiating with either of the parties. In many cases the arbitrator might believe the business relationship to be so insubstantial that to make a point of revealing it would suggest he is indeed easily swayed, and perhaps a partisan of that party.* But if the law requires the disclosure, no such imputation can arise. And it is far better that the relationship be disclosed at the outset, when the parties are free to reject the arbitrator or accept him with knowledge of the relationship and continuing faith in his objectivity, than to have the relationship come to light after the arbitration, when a suspicious or disgruntled party can seize on it as a pretext for invalidating the award. The judiciary should minimize its role in arbitration as judge of the arbitrator’s impartiality. That role is best consigned to the parties, who are the architects of their own arbitration process, and are far better informed of the prevailing ethical standards and reputations within their business. Of course, an arbitrator’s business relationships may be diverse indeed, involving more or less remote commercial connections with great numbers of people. He cannot be expected to provide the parties with his complete and unexpurgated business biography. But it is enough for present purposes to hold, as the Court does, that where the arbitrator has a substantial interest in a firm *In fact, the District Court found—on the basis of the record and petitioner’s admissions—that the arbitrator in this case was entirely fair and impartial. I do not read the majority opinion as questioning this finding in any way. 152 OCTOBER TERM, 1968. Fortas, J., dissenting. 393 U. S. which has done more than trivial business with a party, that fact must be disclosed. If arbitrators err on the side of disclosure, as they should, it will not be difficult for courts to identify those undisclosed relationships which are too insubstantial to warrant vacating an award. Mr. Justice Fortas, with whom Mr. Justice Harlan and Mr. Justice Stewart join, dissenting. I dissent and would affirm the judgment. The facts in this case do not lend themselves to the Court’s ruling. The Court sets aside the arbitration award despite the fact that the award is unanimous and no claim is made of actual partiality, unfairness, bias, or fraud. The arbitration was held pursuant to provisions in the contracts between the parties. It is not subject to the rules of the American Arbitration Association. It is governed by the United States Arbitration Act, 9 U. S. C. §§ 1-14. Each party appointed an arbitrator and the third arbitrator was chosen by those two. The controversy relates to the third arbitrator. The third arbitrator was not asked about business connections with either party. Petitioner’s complaint is that he failed to volunteer information about professional services rendered by him to the other party to the contract, the most recent of which were performed over a year before the arbitration. Both courts below held, and petitioner concedes, that the third arbitrator was innocent of any actual partiality, or bias, or improper motive. There is no suggestion of concealment as distinguished from the innocent failure to volunteer information. The third arbitrator is a leading and respected consulting engineer who has performed services for “most COMMONWEALTH CORP. v. CASUALTY CO. 153 145 Fortas, J., dissenting. of the contractors in Puerto Rico.” He was well known to petitioner’s counsel and they were personal friends. Petitioner’s counsel candidly admitted that if he had been told about the arbitrator’s prior relationship “I don’t think I would have objected because I know Mr. Capacete [the arbitrator].” Clearly, the District Judge’s conclusion, affirmed by the Court of Appeals for the First Circuit, was correct, that “the arbitrators conducted fair, impartial hearings; that they reached a proper determination of the issues before them, and that plaintiff’s objections represent a ‘situation where the losing party to an arbitration is now clutching at straws in an attempt to avoid the results of the arbitration to which it became a party.’ ” The Court nevertheless orders that the arbitration award be set aside. It uses this singularly inappropriate case to announce a per se rule that in my judgment has no basis in the applicable statute or jurisprudential principles: that, regardless of the agreement between the parties, if an arbitrator has any prior business relationship with one of the parties of which he fails to inform the other party, however innocently, the arbitration award is always subject to being set aside. This is so even where the award is unanimous; where there is no suggestion that the nondisclosure indicates partiality or bias; and where it is conceded that there was in fact no irregularity, unfairness, bias, or partiality. Until the decision today, it has not been the law that an arbitrator’s failure to disclose a prior business relationship with one of the parties will compel the setting aside of an arbitration award regardless of the circumstances.1 1 See Firemen’s Fund Ins. Co. v. Flint Hosiery Mills, 74 F. 2d 533 (C. A. 4th Cir. 1935); Texas Eastern Transmission Corp. v. Barnard, 177 F. Supp. 123, 128-129 (D. C. E. D. Ky. 1959), rev’d on other grounds, 285 F. 2d 536 (C. A. 6th Cir. 1960); llios Shipping 154 OCTOBER TERM, 1968. Fortas, J., dissenting. 393 U. S. I agree that failure of an arbitrator to volunteer information about business dealings with one party will, prima facie, support a claim of partiality or bias. But where there is no suggestion that the nondisclosure was calculated, and where the complaining party disclaims any imputation of partiality, bias, or misconduct, the presumption clearly is overcome.* 2 I do not believe that it is either necessary, appropriate, or permissible to rule, as the Court does, that, regardless of the facts, innocent failure to volunteer information constitutes the “evident partiality” necessary under § 10 (b) of the Arbitration Act to set aside an award. “Evident partiality” means what it says: conduct—or at least an attitude or disposition—by the arbitrator favoring one party rather than the other. This case demonstrates that to rule otherwise may be a palpable injustice, since all agree that the arbitrator was innocent of either “evident partiality” or anything approaching it. Arbitration is essentially consensual and practical. The United States Arbitration Act is obviously designed to protect the integrity of the process with a minimum & Trading Corp. v. American Anthracite & Bituminous Coal Corp., 148 F. Supp. 698, 700 (D. C. S. D. N. Y.), aff’d, 245 F. 2d 873 (1957); Cross Properties, Inc. v. Gimbel Bros., 15 App. Div. 2d 913, 225 N. Y. S. 2d 1014, aff’d, 12 N. Y. 2d 806, 187 N. E. 2d 129 (1962). Cf. Isbrandtsen Tankers, Inc. v. National Marine Engineers’ Beneficial Assn., 236 N. Y. S. 2d 808, 811 (1962). 2 At the time of the contract and the arbitration herein, § 18 of the Rules of the American Arbitration Association, which the Court quotes, was phrased merely in terms of a “request” that the arbitrator “disclose any circumstances likely to create a presumption of bias or which he believes might disqualify him as an impartial Arbitrator.” In 1964, the rule was changed to provide that “the prospective neutral Arbitrator shall disclose any circumstances likely to create a presumption of bias or which he believes might disqualify him as an impartial Arbitrator.” (Emphasis supplied.) COMMONWEALTH CORP. v. CASUALTY CO. 155 145 Fortas, J., dissenting. of insistence upon set formulae and rules.3 The Court applies to this process rules applicable to judges and not to a system characterized by dealing on faith and reputation for reliability. Such formalism is not contemplated by the Act nor is it warranted in a case where no claim is made of partiality, of unfairness, or of misconduct in any degree. 3 The reports on the Act make this purpose clear. H. R. Rep. No. 96, 68th Cong., 1st Sess., 1—2; S. Rep. No. 536, 68th Cong., 1st Sess., 3. Cf. Wilko v. Swan, 346 U. S. 427, 431 (1953). 156 OCTOBER TERM, 1968. Opinion of the Court. 393 U.S. GRUNENTHAL v. LONG ISLAND RAIL ROAD CO. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 35. Argued October 24, 1968.—Decided November 18, 1968. Petitioner was awarded a jury verdict of $305,000 in damages in an action for a severe foot injury which he brought under the Federal Employers’ Liability Act. Having concluded that the relevant evidence weighed heavily in favor of the jury’s award, the trial court denied respondent railroad’s motion to set the award aside as excessive. On the railroad’s appeal the Court of Appeals, in accordance with Dagnello v. Long Island R. Co., 289 F. 2d 797, limited its inquiry to determining whether the trial judge abused his discretion in denying the railroad’s motion. The court made no detailed appraisal of the evidence bearing on damages but found an abuse of discretion and ordered the District Court to grant the railroad a new trial unless petitioner agreed to remit $105,000 of the award. Held: This Court makes its own independent appraisal, and concludes that there was no abuse of the trial court’s discretion in allowing the award to stand. Pp. 159-162. 388 F. 2d 480, reversed and remanded. Miljord J. Meyer argued the cause for petitioner. With him on the briefs was Irving Younger. Daniel M. Gribbon argued the cause for respondent. On the brief was Paul F. McArdle. Mr. Justice Brennan delivered the opinion of the Court. Petitioner was working for respondent as foreman of a track gang when a 300-pound railroad tie being lifted by the gang fell and severely crushed his right foot. He sued respondent for damages under the Federal Employers’ Liability Act, 35 Stat. 65, as amended, 45 U. S. C. §51 et seq., and a jury in the District Court for the GRUNENTHAL v. LONG ISLAND R. CO. 157 156 Opinion of the Court. Southern District of New York awarded him $305,000? The trial judge denied the railroad’s motion to set the award aside as excessive. The railroad appealed the denial to the Court of Appeals for the Second Circuit, and that court, one judge dissenting, ordered the District Court to grant the railroad a new trial unless the petitioner would agree to remit $105,000 of the award. 388 F. 2d 480 (1968). We granted certiorari, 391 U. S. 902 (1968).1 2 We reverse. Petitioner argues that the Court of Appeals exceeded its appellate powers in reviewing the denial of the railroad’s motion, either because such review is constitutionally precluded by the provision of the Seventh Amendment that “no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law,” 3 or 1 Petitioner’s complaint sought damages of $250,000. This was amended with leave of the trial judge to $305,000 after the jury returned its verdict in that amount. 2 The Court of Appeals rejected the railroad’s grounds of appeal addressed to liability and to the dismissal of a third-party claim of the railroad against the contracting company which furnished a boom truck used by the track gang. None of those questions was brought here. 3 All 11 courts of appeals have held that nothing in the Seventh Amendment precludes appellate review of the trial judge’s denial of a motion to set aside an award as excessive. Boyle v. Bond, 88 U. S. App. D. C. 178, 187 F. 2d 362 (1951); Compañía Trasatlántica Espanola, S. A. v. Melendez Torres, 358 F. 2d 209 (C. A. 1st Cir. 1966); Dagnello v. Long Island R. po., 289 F. 2d 797 (C. A. 2d Cir. 1961); Russell v. Monongahela R. Co., 262 F. 2d 349, 352 (C. A. 3d Cir. 1958); Virginian R. Co. v. Armentrout, 166 F. 2d 400 (C. A. 4th Cir. 1948); Glazer v. Glazer, 374 F. 2d 390 (C. A. 5th Cir. 1967); Gault v. Poor Sisters of St. Frances, 375 F. 2d 539, 547-548 (C. A. 6th Cir. 1967); Bucher v. Krause, 200 F. 2d 576, 586-587 (C. A. 7th Cir. 1952); Bankers Life & Cas. Co. v. Kirtley, 307 F. 2d 418 (C. A. 8th Cir. 1962); Covey Gas & Oil Co. v. Checketts, 187 F. 2d 561 (C. A. 9th Cir. 1951); Barnes v. Smith, 305 F. 2d 226, 228 (C. A. 10th Cir. 1962). 158 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. because such review is prohibited by the Federal Employers’ Liability Act itself. We have no occasion in this case to consider that argument, for assuming, without deciding, that the Court of Appeals was empowered to review the denial and invoked the correct standard of review, the action of the trial judge, as we view the evidence, should not have been disturbed. See Neese v. Southern R. Co., 350 U. S. 77 (1955). The trial judge filed an unreported opinion.* He considered that in deciding the railroad’s motion he “must indulge ... in a fairly accurate estimate of factors to which the jury gave attention, and favorable response, in order to arrive at the verdict announced.” He concluded that the motion should be denied because, applying that standard, the relevant evidence weighed heavily in favor of the jury’s assessment. His instructions to the jury had limited the items of damages to wages lost before trial, compensation for loss of future earnings, and past and continuing pain and suffering. His opinion detailed the items of evidence which, in his view, were sufficient to support the jury in finding that (1) wages lost before trial amounted to approximately $27,000, (2) loss of future wages based on petitioner’s present salary of $6,000 per annum plus likely increases over a life expectancy of 27.5 years would amount to $150,000 present value, and (3) “an amount approaching $150,000 [would be appropriate] for plaintiff’s pain and suffering—past and future.” The judge conceded that the aggregate award seemed generous, but he concluded nevertheless that it was “not generous to a fault or outside the bounds of legal appropriateness.” He emphasized that “the trial record here has many unusual features, the most outstanding one being the non-controversial nature of the defense as to damages. The jury, impressed by the * [Reporter’s Note: The opinion was subsequently reported at 292 F. Supp. 813 (D. C. S. D. N. Y. 1967).] GRUNENTHAL v. LONG ISLAND R. CO. 159 156 Opinion of the Court. uncontroverted proof adduced by plaintiff, may well have adopted in toto its full significance and drawn such normal and natural inferences therefrom as the law endorses.” The Court of Appeals regarded its inquiry as limited to determining w’hether the trial judge abused his discretion in denying the railroad’s motion. Its guide for that determination, the court stated, was the standard of review announced in its earlier decision in Dagnello v. Long Island R. Co., 289 F. 2d 797, 806 (1961): “[W]e appellate judges [are] not to decide whether we would have set aside the verdict if we were presiding at the trial, but whether the amount is so high that it would be a denial of justice to permit it to stand. We must give the benefit of every doubt to the judgment of the trial judge; but surely there must be an upper limit, and whether that has been surpassed is not a question of fact with respect to which reasonable men may differ, but a question of law.” 4 We read Dagnello, however, as requiring the Court of Appeals in applying this standard to make a detailed appraisal of the evidence bearing on damages. Indeed this re-examination led to the conclusion in Dagnello that it was not a denial of justice to permit the jury’s award to stand. If the Court of Appeals made a similar appraisal of the evidence in this case, the details are not disclosed in the majority opinion. Beyond attaching unexplained significance to petitioner’s failure in his complaint “to ask for damages in such a large sum as $305,000,” the relevant discussion is limited to the bald statement that “giving Grunenthal the benefit of 4 The standard has been variously phrased: “Common phrases are such as: ‘grossly excessive,’ ‘inordinate,’ ‘shocking to the judicial conscience,’ ‘outrageously excessive,’ ‘so large as to shock the conscience of the court,’ ‘monstrous,’ and many others.” Dagnello v. Long Island R. Co., supra, at 802. 160 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. every doubt, and weighing the evidence precisely in the same manner as we did in Dagnello ... we cannot in any rational manner consistent with the evidence arrive at a sum in excess of $200,000.” 388 F. 2d, at 484. We have therefore made our own independent appraisal of the evidence. We conclude that the trial judge did not abuse his discretion in finding “nothing untoward, inordinate, unreasonable or outrageous—nothing indicative of a runaway jury or one that lost its head.” The liability and damage issues were tried separately before the same jury. The evidence at the trial on damages consisted of stipulated hospital and employment records, a stipulation that petitioner’s life expectancy was 27.5 years, and the oral testimony of the petitioner, his medical expert, and an official of his railroad union. The railroad offered no witnesses. Petitioner was 41 years of age at the time of his injury and had been in the railroad’s employ for over 20 years. The railroad concedes in its brief that he was earning approximately $6,000 annually and that the jury could properly find that he was entitled to $27,000 for wages already lost over the four and one-half year period between injury and judgment. The railroad further concedes that an award of $100,000 for loss of future wages would not be improper, this on the premise that invested in federal securities that sum would realize $6,000 annually. The trial judge on the other hand appraised the evidence on future earnings as sufficient to support an award of $150,000 for loss of future wages in light of the “convincing testimony not refuted . . . demonstrating the steady wage increases in recent time for work equivalent to that rendered by plaintiff, and the strong likelihood that similar increases would continue.” We cannot say that the trial judge’s view that the jury might properly have awarded $150,000 for loss of future earnings is without support in the evidence. The judge GRUNENTHAL v. LONG ISLAND R. CO. 161 156 Opinion of the Court. had instructed the jury without objection from the railroad that it was free to find on the evidence that the injury so disabled the petitioner “that it in effect closed out his working career.” Although petitioner’s medical witness testified that the condition of his foot would not prevent petitioner from engaging in “sedentary work,” petitioner’s unchallenged evidence of his unsuccessful efforts to obtain and keep jobs of that kind might reasonably have led the jury to decide that petitioner’s chances of obtaining or holding any employment were most doubtful. Petitioner testified that his applications for work had often been turned down: “[W]hen they found out I had a bad foot they wouldn’t take a chance.” On one occasion when he obtained employment as a salesman during the Christmas rush, “I worked there for about four or five days but I couldn’t stand it.” Moreover, the railroad refused to employ him for any kind of work when he failed a medical examination given him by a railroad physician; after being told, “You failed the medical and we can’t take you back,” petitioner said he began receiving a “disability pension from the railroad.” Since the jury’s award for lost future earnings may properly have been as high as $150,000, its award for pain and suffering might have been as low as $128,000 rather than the $150,000 deemed permissible by the trial judge. In any event we cannot say that the trial judge’s opinion that the jury might have awarded the higher $150,000 amount is without support in the record. Petitioner’s injury caused his hospitalization at five different times over a period of less than two years. His foot was so badly crushed that serious infection developed. The wounds did not heal properly and skin grafts were made from his right thigh about a year after his injury. Several months later gangrene set in and his doctors were concerned that the “foot was about to die.” A 162 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. sympathectomy was performed, consisting of an incision of the abdomen to reach the spinal column and the sympathetic ganglia along the spine “to remove [the] controls which maintain the closing down of the blood vessels.” This operation was successful but six months later petitioner was forced to submit to yet another operation to remove a piece of bone over the ball of the great toe. Petitioner’s medical witness testified that there is still a hazard of more surgery because “this is just a mess of bones”—“the metatarsal has been completely crushed”— “the joint is completely lost”—“the overall black appearance of the bone”—“indicates decalcification or demineralization”—“the nourishment to the foot is so bad that the skin shows the unhealthy condition of the foot.” Petitioner testified that “I always have a pain, it is like a dull toothache, to this day,” and that “I just take it for granted now. It doesn’t bother me now.” The jury might well have concluded that petitioner suffered and would continue to suffer great pain, although he had learned to live with it. As Judge Hays noted, 388 F. 2d, at 485, the trial judge referred to “the total absence of exaggeration” in petitioner’s testimony describing “the excruciating physical pain and mental anguish” he had endured since the accident. “On the record here,” said the trial judge, “[the jury] had good and sufficient reason to regard and assess [the plaintiff’s pain and suffering—past and future] as excruciating, deep-seated, unrelenting and debilitating—the inducing cause of his constant misery.” We therefore conclude that the action of the trial judge should not have been disturbed by the Court of Appeals. The judgment of the Court of Appeals is reversed and the case is remanded to that court with direction to enter a judgment affirming the judgment of the District Court. It is so ordered. GRUNENTHAL v. LONG ISLAND R. CO. 163 156 Harlan, J., dissenting. Mr. Justice Harlan, dissenting. I think it clear that the only issue which might conceivably justify the presence of this case in this Court is whether a United States Court of Appeals may constitutionally review the refusal of a district court to set aside a verdict for excessiveness. The Court purports not to decide that question, preferring to rest its decision upon the alleged correctness of the District Court’s action in the circumstances of this case. Like my Brother Stewart, I am at an utter loss to understand how the Court manages to review the District Court’s decision and find it proper while at the same time proclaiming that it has avoided decision of the issue whether appellate courts ever may review such actions. Even assuming that this feat of legal gymnastics has been successfully performed, I believe that the correctness of this particular District Court decision, a matter whose proper resolution depends upon a detailed examination of the trial record and which possesses little if any general significance, is not a suitable issue for this Court. Accordingly, I think it appropriate to vote to dismiss the writ as improvidently granted, even though the case formally is here on an unlimited writ. See my dissenting opinion in Protective Committee v. Anderson, 390 U. S. 414, 454 (1968). To the extent that this position is inconsistent with my having joined the per curiam opinion in Neese v. Southern R. Co., 350 U. S. 77 (1955), in which the Court adopted a course similar to that followed today, I feel bound frankly to say that the incongruity of today’s decision brings me face-to-face with the question whether that earlier disposition was correct, and that I now believe it to have been wrong.* *1 feel entitled to state, by way of partial confession and avoidance of my action in Neese, that the writ in Neese was granted before I took my seat on the Court. See 348 U. S. ix, and 950 (1955). 320-583 0 - 69 - 19 164 OCTOBER TERM, 1968. Stewart, J., dissenting. 393 U. S. Since the Court professes not to reach the constitutional issue in this case, I consider it inappropriate for me, as an individual Justice, to express my opinion on it. Mr. Justice Stewart, dissenting. The Court professes not to consider the petitioner’s argument that the Seventh Amendment and “the Federal Employers’ Liability Act itself” prohibit judicial review of a district judge’s order refusing to set aside a verdict as excessive. Yet by the very act of proceeding to review the district judge’s order in this case, the Court necessarily, and I think quite correctly, completely rejects that argument. I fully agree with the Court and with the 11 courts of appeals that “nothing in the Seventh Amendment [or in the FELA] precludes appellate review of the trial judge’s denial of a motion to set aside an award as excessive.” * In Dagnello v. Long Island R. Co., 289 F. 2d 797, the Court of Appeals for the Second Circuit, in a thorough and carefully considered opinion written by Judge Medina, articulated the standard to be followed by that court in reviewing a trial judge’s refusal to set aside a verdict as excessive: “If we reverse, it must be because of an abuse of discretion. If the question of excessiveness is close or in balance, we must affirm. The very nature of the problem counsels restraint. Just as the trial judge is not called upon to say whether the amount is higher than he personally would have awarded, so are we appellate judges not to decide whether we would have set aside the verdict if we were presiding at the trial, but whether the amount is so high that it would be a denial of justice to permit it to stand. We must give the benefit of every *See ante, at 157, n. 3. GRUNENTHAL v. LONG ISLAND R. CO. 165 156 Stewart. J., dissenting. doubt to the judgment of the trial judge; but surely there must be an upper limit, and whether that has been surpassed is not a question of fact with respect to which reasonable men may differ, but a question of law. . . .” Id., at 806. I believe this standard of judicial review is the correct one and can think of no better way to verbalize it. In the present case Judge Medina again wrote the prevailing opinion. This Court criticizes that opinion for not setting out “a detailed appraisal of the evidence bearing on damages.” But the Court of Appeals devoted several paragraphs to a review of all the relevant particulars of the petitioner’s financial loss and physical injuries, concluding its discussion of the evidence with the following passage: “[G]iving Grunenthal the benefit of every doubt, and weighing the evidence precisely in the same manner as we did in Dagnello, where the large sum allowed was found not to be excessive, we cannot in any rational manner consistent with the evidence arrive at a sum in excess of $200,000.” 388 F. 2d 480, 484. While it is arguable that a fuller written factual discussion might have been in order, I can find no reason to suppose that the Court of Appeals did not apply the standard of judicial review that it said it was applying— the standard of the Dagnello case. Since I believe that standard to be the correct one, and since I further believe that review of issues of this kind in individualized personal injury cases should be left primarily to the courts of appeals, I would affirm the judgment. 166 OCTOBER TERM, 1968. Syllabus. 393 U. S. RECZNIK v. CITY OF LORAIN. ON PETITION FOR CERTIORARI TO THE COURT OF APPEALS OF OHIO, LORAIN COUNTY. No. 323. Decided November 18, 1968. Police officers, on the basis of tips from unidentified persons, "suspected a crime was being committed” on premises owned by petitioner. The officers noted an unusually large number of cars parked nearby, met petitioner outside the rear entrance to an upper apartment which was located over a cigar store closed for the night, warned him against illegal activities, and said they would return. They returned shortly, saw several men enter the apartment, climbed the stairs, and entered through the rear doorway unannounced. When petitioner emerged from a front room to tell the officers they could not enter, one of them through the open door saw a dice game in progress. They entered the room, arrested everyone present, and seized the money and equipment used in the game. Petitioner’s motion to suppress the seized evidence was denied, the court ruling that the officers “entered this public establishment and observed gambling being conducted openly and in full view.” Petitioner was convicted for keeping a gambling place and exhibiting a gambling device and these convictions were affirmed by the state appellate courts. Held: Petitioner’s rights under the Fourth and Fourteenth Amendments were infringed by the entry of the police onto his premises. (a) There was no support for the finding that the apartment was a “public establishment,” as the cigar store was closed and had a separate entrance, and the fact that a large number of persons congregate in a private home does not transform it into a public place. (b) Entry was not justified as incidental to petitioner’s arrest, as the police officers did not have probable cause to believe that a crime was being committed. Even where a search warrant is obtained the police must show more than a mere assertion by an unidentified informer, and at least as much is needed to support a warrantless search. Certiorari granted; reversed and remanded. Meyer Gordon for petitioner. Henry T. Webber for respondent. RECZNIK v. CITY OF LORAIN. 167 166 Per Curiam. Per Curiam. On the night of June 10, 1965, two police officers of the City of Lorain, Ohio, left their assigned cruising district and drove to the premises at 1420-1422 Broadway because they “suspected a crime was being committed” there. This suspicion was founded upon tips from persons who had stopped the officers on the street. Petitioner is the owner of the building at 1420-1422 Broadway, which contains two unconnected units. No. 1420 consists of the ground floor and basement and houses a cigar shop and storeroom. No. 1422 is a second story suite of rooms. When the officers arrived at the premises at approximately 1 a. m., they noticed an unusually large number of cars parked in the vicinity. According to their testimony they met the petitioner outside the rear entrance to the upstairs suite, warned him that there had better be nothing illegal going on inside, and said they would return in half an hour. When they did return 20 minutes later, a large number of cars were still parked near the building, and the officers observed several men entering the upstairs apartment. The officers then climbed the stairs, listened to the sound of voices within, and tried to look through the window and door. Unable to see inside, they walked through the back doorway unannounced. As they headed for the front of the apartment, the petitioner emerged from a front room and told the officers they could not enter. Through the door opened by the petitioner, one of the officers saw a dice game in progress. The officers entered the room, placed everyone present under arrest, and seized the table, chips, dice, and money which were being used in the game. Those arrested, including the petitioner, were taken to the police station. The police continued to search the apartment, and came across some keys which they thought might open the store and basement downstairs. Apparently because the 168 OCTOBER TERM, 1968. Per Curiam. 393 U. S. officers “had information that there were all sorts of gaming devices downstairs,” the store and basement were also searched thoroughly, and various numbers game paraphernalia were discovered and seized. Petitioner was convicted in the Municipal Court of Lorain of violating three ordinances which prohibit keeping a gambling place, exhibiting a gambling device, and possessing a numbers game. His motion to suppress all the evidence which had been seized at 1420-1422 Broadway was denied, the court ruling, upon the evidence above summarized, that the officers had “entered this public establishment and observed gambling being conducted openly and in full view.” On appeal to the Court of Common Pleas, the conviction for possession of the numbers game paraphernalia found in the lower unit of the building was reversed. The court held that since the petitioner had already been taken to the police station and booked, “the search of the storeroom in this case was too remote in time to have been incidental to the arrest.” The Court of Appeals affirmed the convictions on the two remaining counts, and the Supreme Court of Ohio dismissed an appeal. Since we have concluded that the petitioner’s rights under the Fourth and Fourteenth Amendments to the Constitution were infringed by the entry of the police onto his premises, we grant certiorari and reverse. Mapp v. Ohio, 367 U. S. 643. The finding of the Municipal Court that the petitioner’s apartment was a “public establishment” has no support in the record. While the cigar store was usually open to the public during business hours, it was closed and dark at the time of the arrest. The upstairs suite was an entirely separate unit, with a different address and different entrances. The respondent’s suggestion that the officers were privileged to enter because the apartment “at that point had taken on, from the amount of people, a public appearance,” is untenable. The congregation of RECZNIK v. CITY OF LORAIN. 169 166 Per Curiam. a large number of persons in a private home does not transform it into a public place open to the police. Respondent argues that the entry into the apartment was justified as incidental to the arrest of the petitioner, who the officers had probable cause to believe was conducting an illegal game. The senior arresting officer, however, did not so view the matter, for he conceded that when he entered the apartment, he “had no evidence to make an arrest.” Nevertheless, it is argued, the officers could have entered to arrest the petitioner in view of the tips received from informers that evening and their own corroborating observations of the activities at the apartment. We cannot agree that the knowledge of the officers revealed by this record amounted to probable cause to believe that a crime was being committed. The testimony of one officer that the building was a “noted gambling joint” was stricken by the trial judge, and no further effort was made to show that either the petitioner or the apartment was at that time connected with illicit gambling operations. Nor did the respondent even attempt to establish that the informers were reliable. The officers identified these informers only as “people on the street” who were previously unknown to the officers and whose names they did not bother to ask because “there was no reason for it.” They did not relate what information they received from these nameless individuals other than that there were “all sorts of gaming devices downstairs.” (Emphasis supplied.) We have held that the prosecution has not met its burden when an arresting officer “said no more than that someone (he did not say who) had told him something (he did not say what) about the petitioner.” Beck v. Ohio, 379 U. S. 89, 97. Even where a search warrant is obtained, the police must show a basis for the search beyond the mere fact of an assertion by an informer. Aguilar v. Texas, 378 U. S. 108. At least as much is 170 OCTOBER TERM, 1968. Black, J., dissenting. 393 U.S. required to support a search without a warrant. Beck v. Ohio, supra, at 96. Since the respondent did not meet the burden of showing probable cause in this case, the motion to suppress should have been granted. The conviction is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Mr. Justice Stewart and Mr. Justice White would deny the petition for certiorari. Mr. Justice Black, whom Mr. Justice Harlan joins, dissenting. The Court here summarily reverses the jury’s conviction of petitioner, Pete Recznik, for violating the city’s laws against keeping a gambling house and having possession of gambling tables and other gambling devices. The Court simply grants certiorari and reverses, giving the City of Lorain no opportunity at all to argue its case before us. I dissent from such a hasty, ill-considered reversal. To reverse the conviction, this Court holds that it was error for the trial court to deny Recznik’s motion to suppress evidence obtained in part by a search without a warrant of the gambling establishment. Having read the entire 388 pages of testimony, I think that they show beyond doubt that there was no unlawful search and seizure and I think that an argument would reveal that fact to this Court. This is made clear by the per curiam opinion’s reliance on an order of July 7, 1965, refusing, prior to trial, to suppress the evidence. This Court bases its reversal on its disagreement with the pretrial finding that petitioner’s gambling house was a “public establishment.” The Court states that this finding “has no support in the record.” While I think that the testimony contains far more than enough evidence to support a finding that the so-called “apart- RECZNIK v. CITY OF LORAIN. 171 166 Black, J., dissenting. ment” was maintained as a public gambling house, and not as a private residence, it happens that this was only an alternative ground for the trial court’s refusal to suppress at this pretrial hearing. The other ground was this: “The Court upon consideration overrules defendant’s motion for the following reasons, to wit: That no evidence of any illegal search or seizure was presented. Defendant merely presented oral and written arguments in support of his motion.” The fact that no sworn evidence was presented to support the motion to suppress -was, of course, sufficient to dispose of the pretrial motion as the court did. That this first pretrial motion is not now relied on by petitioner is shown by his statement to the court at the beginning of the trial to this effect: “Mr. Gordon: On the motion to suppress the evidence in this case, the Court is to consider the evidence in the main case that will be presented to the Jury at this time and make its decision later.” At the end of the city’s evidence the motion to suppress was made again and denied; it was again made and denied at the conclusion of all the evidence. So it is not to the first pretrial motion to suppress of July 7, 1965, that we must look but to the whole record. That record, in my judgment, shows that the petitioner, who owned the premises which he permitted to be used as a gambling establishment, not only did not object to the officers going into the building but also actually invited them. As the Court says, the building into which the officers entered belongs to the petitioner, Pete Recznik. He is evidently a well-known gambler around town since he testified that he had been in and out of jail for around a quarter of a century, as had John Micjan whom the 172 OCTOBER TERM, 1968. Black, J., dissenting. 393 U. S. petitioner asserted was his upstairs “tenant” in the private “apartment” which was filled with dice, game tables, and other gambling devices. In fact, Micjan had come to the “apartment” straight from the jail only a month or two before. The arrest took place in the following factual context. While Police Officer Kochan was cruising around the streets someone told him that gambling was going on at Recznik’s building. He and his partner decided to go up and look around in the area of the building. Now, of course, this street information they had received would not alone have been enough to give probable cause either for a search warrant or an arrest. Nor did the officers treat it as enough. It was enough, however, for the officers to investigate, which they did. They went to the building about midnight and saw signs of extraordinary activities around it. While the bottom floor was dark, the upstairs, where the gambling paraphernalia were located, was well lighted. They saw about 40 to 50 automobiles parked in the front and rear of the building. They observed men coming in cars, getting out, going up the back stairs, and entering the upstairs rooms without any difficulty whatever. They observed someone upstairs peeping at them through Venetian blinds and shortly thereafter petitioner Recznik came out and talked with them. Recznik did not then or at any time order the officers not to come up. Instead, according to petitioner Recznik’s own testimony, he told Officer Kochan that they were having a party upstairs and, addressing the officer directly, said: “If you want to come up you can come up.” Again, Recznik testified: “I told him the first time, we had a party, that he was invited up. He says, T will be back later.’ ” After these invitations the officers went away and came back about 1 a. m., finding the place still lighted and filled with people. The officers walked up the RECZNIK v. CITY OF LORAIN. 173 166 Black, J., dissenting. back steps, where they had seen the others walking in and out. They opened the door which they testified was unlocked. They saw many people there. Recznik testified that they pulled the screen door off its hinges. The officers denied it and obviously neither the jury that convicted nor the judge that refused to suppress the evidence believed Recznik. Once inside, the officers met Recznik. Recznik testified as follows in response to questions from the prosecuting attorney: “Q. There has been a lot of talk about a warrant. Did you ask him to see a warrant? “A. No, I didn’t say nothing. “Q. Did you tell him to stay out? ‘‘A. No. Absolutely not. “Q. Did you say, ‘You can’t come in here?’ “A. No. “Q. You just said, ‘What do you want?’ “A. I said, ‘What do you want.’ “Q. Did you tell him ‘You can’t search this place?’ “A. Absolutely not. Why would I tell him that?” Officer Koch an testified that he saw dice and other gambling devices and that when Recznik opened the door to another room he, Kochan, looked over Recznik’s shoulder and saw many people gambling on a large dice table upon which was money and a green table covering. Micjan explained the presence of the money and dice table in this illuminating way: The money, $213, he had found on the street in a purse; the large dice table had been brought to him by strangers and left in his “apartment.” The moment Kochan (who had been invited by Recznik to come to the “party”) saw all these gambling paraphernalia, saw the people with money in their hands crying out in gambler’s language “I fade you,” 174 OCTOBER TERM, 1968. Black, J., dissenting. 393 U. S. he stated that all there were under arrest. That was his duty. Ohio law provides that an officer seeing a person committing a misdemeanor has a duty to arrest. Since the arrest was legal, the officer then had the authority to search the remainder of the building without a warrant. This he did. And when the case got to the jury it promptly convicted. There is no case decided by this Court that calls for a reversal here on the ground that the officer lacked probable cause to arrest for the misdemeanors he actually saw committed. One who will take the time to read this entire record as I have will find, I think, that this gambling establishment was so notorious in Lorain that it is not at all surprising that strangers to the police were urging them to do something about it. I wonder if in addition to having its just conviction reversed the City of Lorain will be compelled to return to their guilty owners the dice, dice tables, and other gambling devices that the officers took away as contraband. I regret very much that this Court, by its hasty, summary reversal, is providing its critics with such choice ammunition for their attacks. I would deny certiorari. If, however, four members of the Court are determined to grant certiorari, I would set the case down for argument in the conventional fashion and the normal way. CARROLL v. PRINCESS ANNE. 175 Syllabus. CARROLL et al. v. PRESIDENT AND COMMISSIONERS OF PRINCESS ANNE et al. CERTIORARI TO THE COURT OF APPEALS OF MARYLAND. No. 6. Argued October 21, 1968.—Decided November 19, 1968. Petitioners, members of the “white supremacist” National States Rights Party, held a public rally in Princess Anne, Maryland, on August 6, 1966, at which aggressively and militantly racist speeches were made to a crowd of both whites and Negroes. It was announced that the rally would be resumed the next night, August 7. That day the respondents, local officials, obtained an ex parte restraining order from the Somerset County Circuit Court, there having been no notice to or informal communication with petitioners. The order restrained petitioners for 10 days from holding rallies ‘‘which will tend to disturb and endanger the citizens of the County,” and the August 7 rally was not held. After trial 10 days later, the Circuit Court issued another injunction, extending the effect of the earlier order for 10 months. The Maryland Court of Appeals affirmed the 10-day order, but reversed the 10-month order, holding that “the period of time was unreasonable.” Held: 1. The case is not moot. The Maryland Court of Appeals’ approval of the 10-day order continues to play a role in the response of local officials to petitioners’ efforts to continue their activities in the county. Pp. 178-179. 2. The 10-day restraining order must be set aside because, where the principles guaranteed by the First Amendment and applicable to the States by the Fourteenth are involved, there is no place for such ex parte order, issued without formal or informal notice to petitioners, where no showing is made that it is impossible to serve or notify the opposing parties and to give them an opportunity to participate in an adversary proceeding. Pp. 179-185. 247 Md. 126, 230 A. 2d 452, reversed. Eleanor Holmes Norton and William H. Zinman argued the cause for petitioners. With them on the brief were Melvin L. Wulf and Leon Friedman. 176 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. S. Leonard Rottman and Alexander G. Jones argued the cause for respondents. With them on the brief was Francis B. Burch, Attorney General of Maryland. Mr. Justice Fortas delivered the opinion of the Court. Petitioners are identified with a “white supremacist” organization called the National States Rights Party. They held a public assembly or rally near the courthouse steps in the towm of Princess Anne, the county seat of Somerset County, Maryland, in the evening of August 6, 1966. The authorities did not attempt to interfere with the rally. Because of the tense atmosphere which developed as the meeting progressed, about 60 state policemen were brought in, including some from a nearby county. They were held in readiness, but for tactical reasons only a few were in evidence at the scene of the rally. Petitioners’ speeches, amplified by a public address system so that they could be heard for several blocks, were aggressively and militantly racist. Their target was primarily Negroes and, secondarily, Jews. It is sufficient to observe with the court below, that the speakers engaged in deliberately derogatory, insulting, and threatening language, scarcely disguised by protestations of peaceful purposes; and that listeners might well have construed their words as both a provocation to the Negroes in the crowd and an incitement to the whites. The rally continued for something more than an hour, concluding at about 8:25 p. m. The crowd listening to the speeches increased from about 50 at the beginning to about 150, of whom 25% were Negroes. In the course of the proceedings it was announced that the rally would be resumed the following night, August 7.1 1 Petitioner Norton said, “I want you to ... be back here at the same place tomorrow night, bring every friend you have . . . . We’re going to take it easy tonight ...” and “You white folks CARROLL v. PRINCESS ANNE. 177 175 Opinion of the Court. On that day, the respondents, officials of Princess Anne and of Somerset County, applied for and obtained a restraining order from the Circuit Court for Somerset County. The proceedings were ex parte, no notice being given to petitioners and, so far as appears, no effort being made informally to communicate with them, although this is expressly contemplated under Maryland procedure.* 2 The order restrained petitioners for 10 days from holding rallies or meetings in the county “which will tend to disturb and endanger the citizens of the County.” 3 As a result, the rally scheduled for August 7 was not held. After the trial which took place 10 days later, an injunction was issued by the Circuit Court on August 30, in effect extending the restraint for 10 additional months. The court had before it, in addition to the testimony of witnesses, tape recordings made by the police of the August 6 rally. On appeal, the Maryland Court of Appeals affirmed the 10-day order, but reversed the 10-month order on the ground that “the period of time was unreasonable and that it was arbitrary to assume that a clear and present bring your friends, come back tomorrow night. . . . Come on back tomorrow night, let’s raise a little bit of hell for the white race.” 2 Maryland Rule of Procedure BB72. 3 The text of the Writ of Injunction is as follows: "We command and strictly enjoin and prohibit you the said Joseph Car roll, Richard Norton, J. B. Stoner, Connie Lynch, Robert Lyons, William Brailsford and National States Rights Party from holding rallies or meetings in Somerset County which will tend to disturb and endanger the citizens of the County and to enjoin you, the said defendants, from using and operating or causing to be operated within the County any devices or apparatus for the application [sic] of the human voice or records from any radio, phonograph or other sound making or producing device thereby disturbing the tranquility of the populace of the County, until the matter can be heard and determined in equity, or for a period of ten days from the date hereof. "Hereof, fail not, as you will act to the contrary at your peril.” 178 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. danger of civil disturbance and riot would persist for ten months.” Petitioners sought review by this Court, under 28 U. S. C. § 1257 (3), asserting that the case is not moot and that the decision of the Maryland Court of Appeals continues to have an adverse effect upon petitioners’ rights. We granted certiorari. We agree with petitioners that the case is not moot. Since 1966, petitioners have sought to continue their activities, including the holding of rallies in Princess Anne and Somerset County, and it appears that the decision of the Maryland Court of Appeals continues to play a substantial role in the response of officials to their activities.4 In these circumstances, our jurisdiction is not at an end. This is the teaching of Bus Employees v. Missouri, 374 U. S. 74 (1963), which concerned a labor dispute which had led to state seizure of the business. This Court held that, although the seizure had been terminated, the case was not moot because “the labor dispute [which gave rise to the seizure] remains unresolved. There thus exists . . . not merely the speculative possibility of invocation of the [seizure law] in some future labor dispute, but the presence of an existing unresolved dispute which continues . . . Id., at 78. In Southern Pacific Terminal Co. v. ICC, 219 U. S. 498 (1911), this Court declined to hold that the case was moot although the two-year cease-and-desist order at 4 Petitioners recite that they were denied the right to hold a rally in Princess Anne on July 17, 1967, and that the letter of rejection relied upon the Court of Appeals’ decision. They acknowledge that on July 25, they were authorized to hold rallies in Princess Anne on July 28, 29, and 30, 1967; but they appear to complain that the permit stipulated that the sound should not be amplified for more than 250 feet, and that “you will not be permitted to use racial epithets or to make slanderous remarks about the members of any race or ethnic group.” CARROLL v. PRINCESS ANNE. 179 175 Opinion of the Court. issue had expired. It said: “The questions involved in the orders of the Interstate Commerce Commission are usually continuing . . . and their consideration ought not to be, as they might be, defeated, by short term orders, capable of repetition, yet evading review . . . Id., at 515. These principles are applicable to the present case. The underlying question persists and is agitated by the continuing activities and program of petitioners: whether, by what processes, and to what extent the authorities of the local governments may restrict petitioners in their rallies and public meetings. This conclusion—that the question is not moot and ought to be adjudicated by this Court—is particularly appropriate in view of this Court’s decision in Walker v. Birmingham, 388 U. S. 307 (1967). In that case, the Court held that demonstrators who had proceeded with their protest march in face of the prohibition of an injunctive order against such a march, could not defend contempt charges by asserting the unconstitutionality of the injunction. The proper procedure, it was held, was to seek judicial review of the injunction and not to disobey it, no matter how well-founded their doubts might be as to its validity. Petitioners have here pursued the course indicated by Walker; and in view of the continuing vitality of petitioners’ grievance, we cannot say that their case is moot. Since the Maryland Court of Appeals reversed the 10-month injunction of August 30, 1966, we do not consider that order. We turn to the constitutional problems raised by the 10-day injunctive order. The petitioners urge that the injunction constituted a prior restraint on speech and that it therefore violated the principles of the First Amendment which are applicable to the States by virtue of the Fourteenth Amendment. In any event, they assert, it was not constitution- 320-583 0 - 69 - 20 180 OCTOBER TERM, 1968. Opinion of the Court. 393 U.S. ally permissible to restrain petitioners’ meetings because no “clear and present danger” existed. Respondents, however, argue that the injunctive order in this case should not be considered as a “prior restraint” because it was based upon the events of the preceding evening and was directed at preventing a continuation of those events, and that, even if considered a “prior restraint,” issuance of the order was justified by the clear and present danger of riot and disorder deliberately generated by petitioners. We need not decide the thorny problem of whether, on the facts of this case, an injunction against the announced rally could be justified. The 10-day order here must be set aside because of a basic infirmity in the procedure by which it was obtained. It was issued ex parte, without notice to petitioners and without any effort, however informal, to invite or permit their participation in the proceedings. There is a place in our jurisprudence for ex parte issuance, without notice, of temporary restraining orders of short duration; but there is no place within the area of basic freedoms guaranteed by the First Amendment for such orders where no showing is made that it is impossible to serve or to notify the opposing parties and to give them an opportunity to participate. We do not here challenge the principle that there are special, limited circumstances in which speech is so interlaced with burgeoning violence that it is not protected by the broad guarantee of the First Amendment. In Cantwell n. Connecticut, 310 U. S. 296, at 308 (1940), this Court said that “[n]o one would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to riot.” See also Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (1942); Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U. S. 287, 294 (1941). Ordinarily, the State’s constitutionally permissible interests are adequately served by criminal CARROLL v. PRINCESS ANNE. 181 175 Opinion of the Court. penalties imposed after freedom to speak has been so grossly abused that its immunity is breached. The impact and consequences of subsequent punishment for such abuse are materially different from those of prior restraint. Prior restraint upon speech suppresses the precise freedom which the First Amendment sought to protect against abridgment.5 The Court has emphasized that “[a] system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Bantam Books v. Sullivan, 312 U. S. 58, 70 (1963); Freedman v. Maryland, 380 U. S. 51, 57 (1965). And even where this presumption might otherwise be overcome, the Court has insisted upon careful procedural provisions, designed to assure the fullest presentation and consideration of the matter which the circumstances permit. As the Court said in Freedman v. Maryland, supra, at 58, a noncriminal process of prior restraints upon expression “avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system.” Measured against these standards, it is clear that the 10-day restraining order in the present case, issued ex parte, without formal or informal notice to the petitioners or any effort to advise them of the proceeding, cannot be sustained. Cf. Marcus v. Search Warrant, 367 U. S. 717, 731 (1961); 6 A Quantity of Books v. Kansas, 5,The elimination of prior restraints was a “leading purpose” in the adoption of the First Amendment. See Lovell v. Griffin, 303 U. S. 444, at 451-452 (1938). 6 Marcus rejected the contention that Kingsley Books, Inc. v. Brown, 354 U. S. 436 (1957), supported “the proposition that the State may impose the extensive restraints imposed here on the distribution of these publications prior to an adversary proceeding on the issue of obscenity.” 367 U. S., at 736. In Kingsley, a New York statute authorizing an injunction pendente lite against the distribution of obscene books was upheld. By statute, the person enjoined 182 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. 378 U. S. 205 (1964).* 7 In the latter case, this Court disapproved a seizure of books under a Kansas statute on the basis of ex parte scrutiny by a judge. The Court held that the statute was unconstitutional. Mr. Justice Brennan, speaking for a plurality of the Court, condemned the statute for “not first affording [the seller of the books] an adversary hearing.” Id., at 211. In the present case, the reasons for insisting upon an opportunity for hearing and notice, at least in the absence of a showing that reasonable efforts to notify the adverse parties were unsuccessful, are even more compelling than in cases involving allegedly obscene books. The present case involves a rally and “political” speech in which the element of timeliness may be important. As Mr. Justice Harlan, dissenting in A Quantity of Books v. Kansas, pointed out, speaking of “political and social expression”: “It is vital to the operation of democratic government that the citizens have facts and ideas on important issues before them. A delay of even a day or two may be of crucial importance in some instances. On the other hand, the subject of sex is of constant but rarely particularly topical interest.” 378 U. S., at 224. In the present case, the record discloses no reason why petitioners were not notified of the application for injunction. They were apparently present in Princess Anne. They had held a rally there on the night preceding the application for and issuance of the injunction. They were scheduled to have another rally on the very could get a hearing “within one day after joinder of issue.” The New York courts have subsequently held that no ex parte injunction may be issued under the statute. Tenney v. Liberty Neus Distribs., Inc., 13 App. Div. 2d 770, 215 N. Y. S. 2d 663 (1961). 7 Compare the considerations leading to the Norris-LaGuardia Act, 47 Stat. 70, 29 U. S. C. §§ 101-115. See F. Frankfurter & N. Greene, The Labor Injunction 200-205 (1930). CARROLL v. PRINCESS ANNE. 183 175 Opinion of the Court. evening of the day when the injunction was issued.8 And some of them were actually served with the writ of injunction at 6:10 that evening. In these circumstances, there is no justification for the ex parte character of the proceedings in the sensitive area of First Amendment rights. The value of a judicial proceeding, as against self-help by the police, is substantially diluted where the process is ex parte, because the Court does not have available the fundamental instrument for judicial judgment: an adversary proceeding in which both parties may participate. The facts in any case involving a public demonstration are difficult to ascertain and even more difficult to evaluate. Judgment as to whether the facts justify the use of the drastic power of injunction necessarily turns on subtle and controversial considerations and upon a delicate assessment of the particular situation in light of legal standards which are inescapably imprecise.9 In the absence of evidence and argument offered by both sides and of their participation in the formulation of value judgments, there is insufficient assurance of the balanced analysis and careful conclusions which are essential in the area of First Amendment adjudication.10 The same is true of the fashioning of the order. An order issued in the area of First Amendment rights must be couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate and the essential needs of the public order. In this sensitive field, the State may not employ 8 The petition for the temporary injunction recited that Carroll and the others against whom the injunction was sought “are presently in Somerset or Wicomico Counties of the State of Maryland.” 9 Cf. Frankfurter & Greene, The Labor Injunction, supra. 10 There is a danger in relying exclusively on the version of events and dangers presented by prosecuting officials, because of their special interest. Freedman v. Maryland, supra, at 57-58. 184 OCTOBER TERM, 1968. 393 U.S. Opinion of the Court. “means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.” Shelton v. Tucker, 364 U. S. 479, 488 (1960). In other words, the order must be tailored as precisely as possible to the exact needs of the case. The participation of both sides is necessary for this purpose.11 Certainly, the failure to invite participation of the party seeking to exercise First Amendment rights reduces the possibility of a narrowly drawn order, and substantially imperils the protection which the Amendment seeks to assure. Finally, respondents urge that the failure to give notice and an opportunity for hearing should not be considered to invalidate the order because, under Maryland procedure, petitioners might have obtained a hearing on not more than two days’ notice. Maryland Rule of Procedure BB72. But this procedural right does not overcome the infirmity in the absence of a showing of justification for the ex parte nature of the proceedings. The issuance of an injunction which aborts a scheduled rally or public meeting, even if the restraint is of short duration, is a matter of importance and consequence in view of the First Amendment’s imperative. The denial of a basic procedural right in these circumstances is not excused by the availability of post-issuance procedure which could not possibly serve to rescue the August 7 meeting, but, at best, could have shortened the period in which petitioners were prevented from holding a rally. We need not here decide that it is impossible for circumstances to arise in which the issuance of an ex parte restraining order for a minimum period could be justified 11 Cf. Williams v. Wallace, 240 F. Supp. 100 (D. C. M. D. Ala. 1965). There District Judge Johnson initially refused to issue an injunction ex parte against the absent state officials. Then, after a hearing at which the plaintiffs submitted a detailed plan for their proposed Sehna-Montgomery march, he enjoined the State from interfering with the march as proposed in the plan. CARROLL v. PRINCESS ANNE. 185 175 Opinion of the Court. because of the unavailability of the adverse parties or their counsel, or perhaps for other reasons. In the present case, it is clear that the failure to give notice, formal or informal, and to provide an opportunity for an adversary proceeding before the holding of the rally was restrained, is incompatible with the First Amendment. Because we reverse the judgment below on this basis, we need not and do not decide whether the facts in this case provided a constitutionally permissible basis for temporarily enjoining the holding of the August 7 rally. Reversed. Mr. Justice Black concurs in the result. Mr. Justice Douglas, while joining the opinion of the Court, adheres to his dissent in Kingsley Books, Inc. v. Brown, 354 U. S. 436, 446-447, and to his concurring opinion in Freedman v. Maryland, 380 U. S. 51, 61-62. 186 OCTOBER TERM, 1968. Syllabus. 393 U.S. UNIVERSAL INTERPRETIVE SHUTTLE CORP. v. WASHINGTON METROPOLITAN AREA TRANSIT COMMISSION et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. No. 19. Argued October 21-22, 1968.—Decided November 25, 1968. Respondent Washington Metropolitan Area Transit Commission (WMATC) sued to enjoin petitioner, a concessionaire under contract with the Secretary of the Interior, from operating “minibus” guided tours of the Mall, a park area in the center of Washington, D. C., without obtaining from WMATC a certificate of convenience and necessity. The WMATC concedes the Secretary’s substantial powers over the Mall under specific authority dating from 1898 and as part of the national park lands over which he has broad statutory jurisdiction. WMATC contends, however, that the interstate compact under which it was established to centralize responsibility over mass transit service in the Washington metropolitan area implicitly limits the Secretary’s power to contract for provision of tour services by a concessionaire uncertified by WMATC. WMATC-certified carriers furnishing mass transit and sightseeing services in Washington, including D. C. Transit System, Inc., which contends that its franchise also limits the Secretary’s power, intervened as plaintiffs. The District Court dismissed the suit and the Court of Appeals reversed. Held: 1. When Congress established the WMATC, it did not intend to create dual regulatory jurisdiction by divesting the Secretary of the Interior of his long-standing “exclusive charge and control” over the Mall, and the WMATC is without authority to require that petitioner obtain from it a certificate of convenience and necessity. Pp. 189-194. 2. D. C. Transit’s franchise, which protects it from competition by an uncertified bus line transporting passengers over a given route on a fixed schedule in areas under WMATC jurisdiction, does not protect it against competition from petitioner’s leisurely sightseeing service on the Mall outside WMATC jurisdiction. Pp. 194-196. Reversed and remanded. SHUTTLE CORP. v. TRANSIT COMM’N. 187 186 Opinion of the Court. Jeffrey L. Nagin argued the cause for petitioner. With him on the briefs were Alien E. Susman and Ralph S. Cunningham, Jr. Russell W. Cunningham argued the cause and filed a brief for respondent Washington Metropolitan Area Transit Commission. Manuel J. Davis argued the cause for respondent D. C. Transit System, Inc. With him on the brief was Samuel M. Langerman. Assistant Attorney General Martz argued the cause for the United States, as amicus curiae, urging reversal. With him on the brief were Solicitor General Griswold, Francis X. Beytagh, Jr., S. Billingsley Hill, and Thomas L. McKevitt. Mr. Justice White delivered the opinion of the Court. The Secretary of the Interior is responsible for maintaining our national parks, and for providing facilities and services for their public enjoyment through concessionaires or otherwise.1 In meeting this responsibility, he has contracted for petitioner to conduct guided tours of the Mall, a grassy park located in the center of the City of Washington and studded with national monuments and museums. Visitors to the Mall may board petitioner’s open “minibuses” which travel among the various points of interest at speeds under 10 miles per hour. Guides on the buses and at certain stationary locations describe the sights. Visitors may debark to tour the museums, boarding a later bus to return to the point of departure. 116 U. S. C. §§ 1, 17b, 20 (1964 ed. and Supp. Ill). This responsibility is met principally through the National Park Service, which was created by the Act of August 25, 1916, c. 408, § 1, 39 Stat. 535, as an agency of the Department of the Interior. Since there is no conflict between them, wre shall refer directly to the Secretary of the Interior rather than to the Director of the National Park Service. 188 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. Suit was brought by the Washington Metropolitan Area Transit Commission (hereafter WMATC) to enjoin petitioner from conducting tours of the Mall without a certificate of convenience and necessity from the WMATC. Carriers permitted by WMATC to provide mass transit and sightseeing services in the City of Washington intervened as plaintiffs, and the United States appeared as amicus curiae. The concessionaire and the United States contend that the Secretary’s authority over national park lands, and in particular his grant of “exclusive charge and control” over the Mall dating from 1898,2 permit him to contract for this service without interference. The carriers and WMATC argue that the interstate compact which created the WMATC implicitly limited the Secretary’s authority over the Mall, and gave rise to dual jurisdiction over these tours in the Secretary and the WMATC. One carrier, D. C. Transit System, Inc., also argues that its franchise limits the Secretary’s power. In a detailed opinion the District Court dismissed the suit. The Court of Appeals reversed without opinion. We granted certiorari and, having heard the case and examined the web of statutes on which it turns, we reverse, finding the Secretary’s exclusive authority to contract for services on the Mall undiminished by the compact creating WMATC or by the charter granted a private bus company. 2 In the Act of July 1, 1898, c. 543, § 2, 30 Stat. 570, Congress placed the District of Columbia parks under the “exclusive charge and control” of the United States Army Chief of Engineers. This authority was transferred in the Act of February 26, 1925, c. 339, 43 Stat. 983, to the Director of Public Buildings and Public Parks of the National Capital. And in Executive Order No. 6166, June 10, 1933, H. R. Doc. No. 69, 73d Cong., 1st Sess., § 2, this authority finally devolved upon the agency now called the National Park Service. Act of March 2, 1934, c. 38, § 1, 48 Stat. 389. SHUTTLE CORP. v. TRANSIT COMM’N. 189 186 Opinion of the Court. I. That the Secretary has substantial power over the Mall is undisputed. The parties agree that he is free to enter into the contract in question. They also agree that he is free to exclude traffic from the Mall altogether, or selectively to exclude from the Mall any carrier licensed by the WMATC or following WMATC instructions. Moreover, the parties agree that the Secretary could operate the tour service himself without need to obtain permission from anyone.3 Yet the WMATC argues that before the Secretary’s power may be exercised through a concessionaire, the consent of the WMATC must be obtained. This interpretation of the statutes involved would result in a dual regulatory jurisdiction overlapping on the most fundamental matters. The Secretary is empowered by statute to “contract for services . . . provided in the national parks ... for the public ... as may be required in the administration of the National Park Service....” Act of May 26, 1930, c. 324, § 3, 46 Stat. 382, 16 U. S. C. § 17b. Moreover, he is “to encourage and enable private persons and corporations ... to provide and operate facilities and services which he deems desirable . . . .” Pub. L. 89-249, § 2, 79 Stat. 969, 16 U. S. C. § 20a (1964 ed, Supp. III). Congress was well aware that the services provided by these national park concessionaires include transportation. Hearings on H. R. 5796, 5872, 5873, 5886, and 5887 before the Subcommittee on National Parks of the House Committee on Interior and Insular Affairs, 88th Cong., 2d Sess., 151-159 (1964). In this case the Sec- 3 D. C. Transit System, Inc., an intervening carrier, contends otherwise. But that position is not directly at issue in our view of the case. 190 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. retary concluded that there was a public need for a motorized, guided tour of the grounds under his control, and that petitioner was most fit to provide it. The WMATC, however, also asserts the power to decide whether this tour serves “public convenience and necessity,” and the power to require the concessionaire to “conform to the . . . requirements of the Commission” and the “terms and conditions” which it may impose. Pub. L. 86-794, Tit. II, Art. XII, § 4 (b), 74 Stat. 1037. The Secretary’s contract leaves the tour’s route under his control, but the WMATC would in its certificate specify the “service to be rendered and the routes over which” the concessionaire might run within the Mall. Pub. L. 86-794, Tit. II, Art. XII, §4 (d)(1), 74 Stat. 1037. Moreover, the WMATC might require the provision of additional service on or off the Mall and forbid the discontinuance of any existing service. Pub. L. 86-794, Tit. II, Art. XII, §§4(e) and (i), 74 Stat. 1038, 1039. The contract with the Secretary provides fare schedules, pursuant to statutory authority in the Secretary to regulate the concessionaire’s charges. Pub. L. 89-249, § 3, 79 Stat. 969, 16 U. S. C. § 20b (1964 ed., Supp. III). The WMATC would have the power to “suspend any fare, regulation, or practice” depending on the WMATC’s views of the financial condition, efficiency, and effectiveness of the concessionaire and the reasonableness of the rate. Pub. L. 86-794, Tit. II, Art. XII, § 6, 74 Stat. 1040. And under the same section the WMATC could set whatever fare it found reasonable, although a profit of 6%% or less could not be prohibited. The Secretary is given statutory authority to require the keeping of records by the concessionaire and to inspect those records, and the Comptroller General is required to examine the concessionaire’s books every five years. Pub. L. 89-249, §9, 79 Stat. 971, 16 U. S. C. § 20g SHUTTLE CORP. v. TRANSIT COMM’N. 191 186 Opinion of the Court. (1964 ed., Supp. III). The WMATC would also have the power to require reports and to prescribe and have access to the records to be kept. Pub. L. 86-794, Tit. II, Art. XII, § 10, 74 Stat. 1042. Finally, the Secretary is given by statute the general power to specify by contract the duties of a concessionaire, 16 U. S. C. §§ 17b, 20-20g (1964 ed. and Supp. Ill); the WMATC would claim this power by regulation and rule. Pub. L. 86-794, Tit. II, Art. XII, § 15, 74 Stat. 1045. We cannot ascribe to Congress a purpose of subjecting the concessionaire to these two separate masters, who show at the outset their inability to agree by presence on the opposite sides of this lawsuit. There is no indication from statutory language or legislative history that Congress intended to divest the Secretary partly or wholly of his authority in establishing the WMATC. When the WMATC was formed there was in the statute books, as there is now, a provision that the “park system of the District of Columbia is placed under the exclusive charge and control of the Director of the National Park Service.” Act of July 1, 1898, c. 543, § 2, 30 Stat. 570, as amended, D. C. Code § 8-108(1967). He was, and is, explicitly “authorized and empowered to make and enforce all regulations for the control of vehicles and traffic.” Act of June 5, 1920, c. 235, § 1, 41 Stat. 898, D. C. Code § 8-109 (1967). And this extends to sidewalks and streets which “lie between and separate the said public grounds.” Act of March 4, 1909, c. 299, § 1, 35 Stat. 994, D. C. Code § 8-144 (1967).4 The creation 4 The Secretary’s power does not extend beyond these limits, however. In order to institute a transportation service from the Mall to a proposed Visitors’ Center in Union Station he sought specific authorization from Congress to add to and confirm his existing authority and provide a service embracing both the Mall and its surroundings. S. Rep. No. 959, 90th Cong., 2d Sess., 8-10 (1968). Congress simply directed him to study the transportation 192 OCTOBER TERM, 1968. Opinion of the Court. 393 U.S. of the Public Utilities Commission—the predecessor of the WMATC—was not intended “to interfere with the exclusive charge and control . . . committed to” the predecessor of the National Park Service. Act of March 3, 1925, c. 443, § 16 (b), 43 Stat. 1126, as amended, D. C. Code § 40-613 (1967). In this context the WMATC was established. After World War II, metropolitan Washington had expanded rapidly into Maryland and Virginia. The logistics of moving vast numbers of people on their daily round became increasingly complicated, and increasingly in need of coordinated supervision. Congress therefore gave its consent and approval through a joint resolution to an interstate compact which “centralizes to a great degree in a single agency . . . the regulatory powers of private transit now shared by four regulatory agencies.” S. Rep. No. 1906, 86th Cong., 2d Sess., 2 (1960). These four agencies were “the public utility regulatory agencies of the States of Virginia, Maryland, and the District of Columbia and the Interstate Commerce Commission.” Pub. L. 86-794, 74 Stat. 1031. The Secretary was not included in this listing. Moreover, Congress specifically provided that nothing in the Act or compact “shall affect the normal and ordinary police powers . . . of the Director of the National Park Service with respect to the regulation of vehicles, control of traffic and use of streets, highways, and other vehicular facilities . ...”* 5 needs of the entire area. Pub. L. 90-264, Tit. I, § 104, 82 Stat. 44 (1968); S. Rep. No. 959, 90th Cong., 2d Sess., 3 (1968); H. R. Rep. No. 810, 90th Cong., 1st Sess., 5 (1967). 5 Pub. L. 86-794, § 3, 74 Stat. 1050. The term “police power” is a vague one which “embraces an almost infinite variety of subjects.” Munn n. Illinois, 94 U. S. 113, 145 (1877) (economic regulation of grain storage an aspect of police power). It is broad enough to embrace the full range of the Secretary’s power over the Mall, which even prior to the compact was ordinarily directed to ends quite different from that of the surrounding municipalities in regulating their streets. The Secretary sought explicit recognition SHUTTLE CORP. v. TRANSIT COMM’N. 193 186 Opinion of the Court. Finally, the House Report on the compact lists the federal legislation which was suspended to give effect to the compact, and the laws giving exclusive control of the Mall to the Secretary are not on the list. H. R. Rep. No. 1621, 86th Cong., 2d Sess., 29-30 (1960). There is thus no reason to ignore the principle that repeals by implication are not favored 6 or to suspect that the Congress, in creating the WMATC, disturbed the exclusivity of the Secretary’s control over the Mall either by extinguishing entirely his power to contract for transportation services or by burdening the concessionaire with two separate agencies engaged in regulating precisely the same aspects of its conduct. Congress was endeavoring to simplify the regulation of transportation by creating the WMATC, not to thrust it further into a bureaucratic morass. It therefore established the WMATC to regulate the mass transit of commuters and workers. A system of minibuses, proceeding in a circular route around the Mall at less than 10 miles per hour, and stopping from time to time to describe the sights before disgorging most passengers where it picked them up, serves quite a different function.7 The Mall is, and was intended to be, of these differences through use of more specific language in the compact, but his clarification was not adopted. H. R. Rep. No. 1621, 86th Cong., 2d Sess., 20, 48-49 (1960). 6E. g., Wood v. United States, 16 Pet. 342, 363 (1842); FTC v. A. P. W. Paper Co., 328 U. S. 193, 202 (1946). 7 This transportation is undertaken by contract with the Federal Government to serve a purpose of the Federal Government, and so might be thought to fall within the specific exemption from the compact for transportation by the Federal Government. Pub. L. 86-794, Tit. II, Art. XII, § 1(a)(2), 74 Stat. 1036. Moreover, it is not primarily designed to transport people “between any points” but rather back to the same point of departure, and might therefore be excepted from the WMATC’s jurisdiction. Pub. L. 86-794, Tit. II, Art. XII, § 1 (a), 74 Stat. 1035. But we find it unnecessary to reach these arguments, which would involve much more severe limits on the power of the WMATC throughout the city. 194 OCTOBER TERM, 1968. Opinion of the Court. 393 U.S. an expansive, open sanctuary in the midst of a metropolis; a spot suitable for Americans to visit to examine the historical artifacts of their country and to reflect on monuments to the men and events of its history. The Secretary has long had exclusive control of the Mall and ample power to develop it for these purposes. We hold that the WMATC has not been empowered to impose its own regulatory requirements on the same subject matter. II. If the WMATC is without jurisdiction to issue a certificate of convenience and necessity in this case, as we have found, then the D. C. Transit System’s interpretation of its franchise as protecting it from any uncertified sightseeing service on the Mall would give it an absolute monopoly of service there: the WMATC, lacking jurisdiction over the Mall, would have no authority to certify another carrier. The Secretary, if D. C. Transit is right, would have to take D. C. Transit or no one. Nothing in the statute confers so rigid a monopoly. Section 1 (a) of D. C. Transit’s franchise, Pub. L. 757, c. 669, Tit. I, pt. 1, 70 Stat. 598, confers the power to operate a “mass transportation system.”8 That this does not include sightseeing is clearly shown by 8 “There is hereby granted to D. C. Transit System, Inc. . . . a franchise to operate a mass transportation system of passengers for hire within the District of Columbia ... the cities of Alexandria and Falls Church, and the counties of Arlington and Fairfax in the Commonwealth of Virginia and the counties of Montgomery and Prince Georges in the State of Maryland . . . Provided, That nothing in this section shall be construed to exempt the Corporation from any law or ordinance of the Commonwealth of Virginia or the State of Maryland or any political subdivision of such Commonwealth or State, or of any rule, regulation, or order issued under the authority of any such law or ordinance, or from applicable provisions of the Interstate Commerce Act and rules and regulations prescribed thereunder.” SHUTTLE CORP. v. TRANSIT COMM’N. 195 186 Opinion of the Court. the separate grant of power to operate “charter or sightseeing services” in § 6, 70 Stat. 599.9 The section giving D. C. Transit a measure of exclusivity is § 3, 70 Stat. 598, which protects it from any uncertified “competitive . . . bus line” for the “transportation of passengers of the character which runs over a given route on a fixed schedule . . . .” 10 In determining what is “competitive” one must refer back to the sections which grant the franchise. Even if § § 1 and 3 together would protect “mass transportation” on the Mall from uncertified competition, and even if § 3 protects § 6 activity, it does not follow that D. C. Transit has a monopoly over sightseeing on the Mall. Section 6 explicitly saves the “laws ... of the District of Columbia,” including the “exclusive charge and control” of the Secretary over the Mall. D. C. Code §8-108 (1967). D. C. Transit admits the Secretary could exclude its sightseeing service from the Mall; if so, surely the franchise protection does not extend there. Moreover, §§ 3 and 6 together cannot confer a monopoly of Mall sightseeing both because this would involve an impairment of the Secretary’s power under District law contrary to § 6, and because it would be unreasonable to construe the protection of § 3 against carriers uncerti- 9 “The Corporation is hereby authorized and empowered to engage in special charter or sightseeing services subject to compliance with applicable laws, rules and regulations of the District of Columbia and of the municipalities or political subdivisions of the States in which such service is to be performed, and with applicable provisions of the Interstate Commerce Act and rules and regulations prescribed thereunder.” 10 “No competitive street railway or bus line, that is, bus or railway line for the transportation of passengers of the character which runs over a given route on a fixed schedule, shall be established to operate in the District of Columbia without the prior issuance of a certificate by the Public Utilities Commission of the District of Columbia ... to the effect that the competitive line is necessary for the convenience of the public.” 320-583 0 - 69 - 21 196 OCTOBER TERM, 1968. Douglas, J., dissenting. 393 U. S. fied by the WMATC to apply where the WMATC has no powers of certification. And even were § 3 so construed, its protection against “transportation of passengers of the character which runs over a given route on a fixed schedule” was evidently aimed at commuter service whose most important qualities are speed and predictability, not the service here whose most important qualities are interesting dialogue and leisurely exposure of the rider to new and perhaps unexpected experiences. The agenda of the tour will be varied by the Secretary according to the events of the day. The franchise does not protect D. C. Transit against competition in this sort of service on the Mall. We reverse the judgment of the Court of Appeals and reinstate the judgment of the District Court. If the Congress, which has the matter before it, wishes to clarify or alter the relationship of these statutes and agencies, it is entirely free to do so. Reversed and remanded. Mr. Justice Marshall took no part in the consideration or decision of this case. Mr. Justice Douglas, with whom Mr. Justice Stewart concurs, dissenting. We have said over and again that we do not sit to review decisions on local law by District of Columbia courts where the reach of that law is confined to the District. District of Columbia v. Pace, 320 U. S. 698, 702; Busby v. Electric Utilities Union, 323 U. S. 72, 75. That law is not only peculiarly local; it is a compendium of a variety of laws drawn from numerous sources,* *The law of the District of Columbia is (1) the principles and maxims of equity as they existed in England and in the Colonies in 1776; (2) the common law of England and the Acts of Parlia SHUTTLE CORP. v. TRANSIT COMM’N. 197 186 Douglas, J., dissenting. with which the judges in the District are much more familiar than are we. No legal problem is more obviously peculiar to the District than the one posed by the present case. Traffic, including the movement of tourists, is a special concern of local government. The District Court held that the Secretary of the Interior, not WMATC, was the appropriate licensing authority. The Court of Appeals by a two-to-one vote reversed but did not file an opinion because “the interests of the parties and of the public would be better served” by a prompt disposition of the case. The Court of Appeals en banc, two judges dissenting, denied a petition for rehearing. The contrariety of views below suggests that this question of local law is not free from doubt. Certainly it is not a case where the decision is so palpably wrong as to make it the exceptional case for review by this Court. Nor is this question of local law so enmeshed with constitutional questions as to make appropriate its resolution here. See District of Columbia v. Little, 339 U. S. 1, 4, n. 1; District of Columbia v. Thompson Co., 346 U. S. 100. These considerations make much more appropriate here than in Fisher n. United States, 328 U. S. 463, 476 (from which the quotation is taken), the following observation : “Matters relating to law enforcement in the District are entrusted to the courts of the District. Our policy is not to interfere with the local rules of ment which were in effect in the Colonies in 1776 (and which were not locally inapplicable); (3) the laws of Virginia and Maryland as they existed on February 27, 1801 (2 Stat. 103); (4) the Acts of the Legislative Assembly created by the Act of February 21, 1871 (16 Stat. 419); (5) all Acts of Congress applicable to the District. See District of Columbia Code (1940 ed.), Tit. 1-24, p. IX et seq.; Comp. Stat. D. C. 1887-1889, pp. V-VI. 198 OCTOBER TERM, 1968. 393 U.S. Douglas, J., dissenting. law which they fashion, save in exceptional situations where egregious error has been committed. “Where the choice of the Court of Appeals of the District of Columbia in local matters between conflicting legal conclusions seems nicely balanced, we do not interfere.” The present case could not be more precisely described. U. S. v. PHOSPHATE EXPORT ASSN. 199 Syllabus. UNITED STATES v. CONCENTRATED PHOSPHATE EXPORT ASSN., INC., et al. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. No. 29. Argued October 24, 1968.—Decided November 25, 1968. The Government filed a civil antitrust action against appellee association and its member firms charging violations of § 1 of the Sherman Act with regard to 11 sales by the association of concentrated phosphate to the Republic of Korea under the United States foreign aid program. In two cases the Government itself let the contracts and the remaining nine were let by an agency of the Korean Government. The Agency for International Development (AID) retained effective control over the transactions, from approving the procurement, through the financing thereof by the United States, to the shipping. The trial court upheld appellees’ contention that they were exempt from antitrust liability under § 2 of the Webb-Pomerene Act as acts “done in the course of export trade.” Appellee association has since dissolved itself, alleging that a recent AID regulation has made continued operation uneconomical. Held: 1. The case is not moot. Pp. 202-204. (a) The Government sought relief not only against the association but also against its members. Pp. 202-203. (b) The AID regulation does not apply to all contracts on which the former members of the association might bid. P. 203. (c) Appellees’ statement that it would be uneconomical to engage in further joint operations, standing alone, does not satisfy the stringent test for mootness; but appellees may show on remand that the likelihood of further violations is sufficiently remote to make injunctive relief unnecessary. Pp. 203-204. 2. The antitrust exemption of the Webb-Pomerene Act, which was enacted to “extend our foreign trade” without significantly injuring American consumers, does not insulate transactions initiated, controlled, and financed by the United States Government, merely because a foreign government is the nominal “purchaser.” Pp. 206-210. (a) The economic reality of the transactions shows that American participation was overwhelmingly dominant, the foreign 200 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. elements were comparatively insignificant, and the burden of noncompetitive pricing fell, not on the foreign purchaser, but on the American taxpayer; and it stretches neither the language nor the purpose of the Act to determine that such sales are not “exports.” Pp. 208-209. (b) On the contracts involved here the world’s major trading nations were ineligible to compete as procurement was limited essentially to the United States and the underdeveloped countries, so that the major impact of permitting the combination appellees desire would be, not to encourage exports, but to deprive Americans of the main benefits of competition among American firms. P. 209. 273 F. Supp. 263, reversed and remanded. Deputy Attorney General Christopher argued the cause for the United States. On the brief were Solicitor General Griswold, Acting Assistant Attorney General Zimmerman, Lawrence G. Wallace, and Howard E. Shapiro. Samuel W. Murphy, Jr., argued the cause for appellees. On the brief were Marcus A. Hollabaugh and Alan S. Ward for Concentrated Phosphate Export Assn., Inc., Mr. Murphy and Andrew J. Kilcarr for American Cyana-mid Co., Lawrence J. McKay and Jerrold G. Van Cise for W. R. Grace & Co., Edgar E. Barton for International Minerals & Chemical Corp., Edward F. Howrey and John Bodner, Jr., for Mobil Oil Corp., Alfred D. Berman and Randolph Guggenheimer, Jr., for Tennessee Corp., appellees. Mr. Justice Marshall delivered the opinion of the Court. Involved in this case are 11 sales of concentrated phosphate made between 1961 and 1966 by appellee association. The phosphate was supplied by the association’s members,1 which are all producers of fertilizer, and was 1 Appellee-members are American Cyanamid Co., W. R. Grace & Co., International Minerals & Chemical Corp., Tennessee Corp., U. S. v. PHOSPHATE EXPORT ASSN. 201 199 Opinion of the Court. then shipped to the Republic of Korea under the United States foreign aid program. The Government, in a civil antitrust complaint filed on December 21, 1964, contended that the concerted activities of the association and its members in regard to these 11 sales violated § 1 of the Sherman Act, 26 Stat. 209 (1890), as amended, 15 U. S. C. § 1. Appellees defended on the ground, inter alia, that their activities were exempted from antitrust liability by § 2 of the Webb-Pomerene Act, 40 Stat. 517 (1918), 15 U. S. C. § 62,* 2 as “actfs] done in the course of export trade.” The trial court held that the Webb-Pomerene Act did immunize appellees’ conduct, 273 F. Supp. 263 (1967), and dismissed the complaint. and Mobil Oil Corp. Not all of these companies were members during the entire period involved in this case; the association was dissolved on December 28, 1967. 2 “Nothing contained in sections 1-7 of this title shall be construed as declaring to be illegal an association entered into for the sole purpose of engaging in export trade and actually engaged solely in such export trade, or an agreement made or act done in the course of export trade by such association, provided such association, agreement, or act is not in restraint of trade within the United States, and is not in restraint of the export trade of any domestic competitor of such association: Provided, That such association does not, either in the United States or elsewhere, enter into any agreement, understanding, or conspiracy, or do any act which artificially or intentionally enhances or depresses prices within the United States of commodities of the class exported by such association, or which substantially lessens competition within the United States or otherwise restrains trade therein.” Section 1 of the Act, 40 Stat. 516 (1918), 15 U. S. C. § 61, defines “export trade” as “solely trade or commerce in goods, wares, or merchandise exported, or in the course of being exported from the United States or any Territory thereof to any foreign nation; but the words 'export trade’ shall not be deemed to include the production, manufacture, or selling for consumption or for resale, within the United States or any Territory thereof, of such goods, wares, or merchandise, or any act in the course of such production, manufacture, or selling for consumption or for resale.” 202 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. The Government perfected a direct appeal to this Court under the Expediting Act, 32 Stat. 823 (1903), as amended, 15 U. S. C. § 29. Probable jurisdiction was noted, 390 U. S. 1001 (1968). I. We are met at the outset with appellees’ contention that this case is now moot. Appellees’ argument rests on two events which occurred after the case had been submitted to the District Court. On January 1, 1967, the Agency for International Development (AID), the State Department agency in charge of the foreign aid program, amended its regulations to preclude Webb-Pomerene associations from bidding on certain procurement contracts whenever procurement was limited to United States suppliers.3 According to appellees, this new regulation made it uneconomical for the association to continue in operation,4 since a large proportion of AID-financed procurement is limited to American sources.5 Accordingly, on December 28, 1967, appellee association dissolved itself.6 The new regulation and the dissolution, we are told, moot this case. Two factors make this argument untenable. First of all, the dissolved association was not the only defendant in this case. The Government sought injunctive relief against the association’s members as well; they were to be 3 31 Fed. Reg. 16693 (1966), codified as 22 CFR §§201.01 (v), 201.52 (a)(7), Appendix D (1968). The amended regulation applies only to certain specified commodities. 4 Motion to Affirm or Dismiss 5, 14-15. 5 See AID, Operations Report, Fiscal Year 1967, p. 74. The very large percentage of foreign aid procurement actually coming from American sources exceeds that required by regulation. 6 Appellees contend that economic factors dictated the dissolution, supra, n. 4, and the Government does not argue that the dissolution was related to the fact that a notice of appeal in this case was filed on November 9, 1967. U. S. v. PHOSPHATE EXPORT ASSN. 203 199 Opinion of the Court. prohibited from forming any new export associations without court approval and from continuing in effect any prices jointly agreed upon. Therefore, even if dissolution would have made it impossible to frame effective relief were the association the only party, here there is no such difficulty. Secondly, the new AID regulation does not apply to all contracts on which the former members of the association might bid. Whenever foreign bidders are eligible, AID still permits American Webb-Pomerene associations to compete. In fact, foreign bidders were eligible in all 11 of the transactions which gave rise to this suit. Therefore, however much the new regulation may reduce the practical importance of this case, it does not completely remove the controversy. Absent the relief prayed for, appellees would be free to act in concert in certain situations where the Government contends they must compete. The test for mootness in cases such as this is a stringent one. Mere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave “[t]he defendant . . . free to return to his old ways.” United States v. W. T. Grant Co., 345 U. S. 629, 632 (1953); see, e. g., United States v. Trans-Missouri Freight Assn., 166 U. S. 290 (1897). A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. But here we have only appellees’ own statement that it would be uneconomical for them to engage in any further joint operations. Such a statement, standing alone, cannot suffice to satisfy the heavy burden of persuasion which we have held rests upon those in appellees’ shoes. United States v. W. T. Grant Co., 345 U. S., at 633. Of course it is still open to appellees to show, on remand, that the likelihood of further violations is sufficiently remote to make injunctive relief unnecessary. Id., at 633-636. This is 204 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. a matter for the trial judge. But this case is not technically moot, an appeal has been properly taken, and we have no choice but to decide it. II. The 11 transactions involved in this case were not simple cash purchases by the Republic of Korea.7 Not only were they financed by the United States Government; AID retained effective control over them at every stage. The transactions involved were controlled by an impressive network of international treaties and agreements, as well as by American statutes, regulations, and administrative procedures. The procurement process, as revealed by the stipulated record, was rather involved. It began when funds were appropriated by Congress. Those funds were allocated to various development programs by AID, in accordance with the provisions of the applicable statutes and AID’s assessments of its priorities. The money allocated to Korea by this process was not simply shipped to Seoul, to be used as Korea wished. In fact, most of it never left this country. In accordance with a series of agreements, Korea was authorized to request that the United States finance purchases of certain “eligible commodities.” 8 A rather complicated “Procure- 7 The Government evidently does not contest the “export” status of two fertilizer sales to Korea made in 1962. One was paid for by Korea’s own foreign exchange funds; the other was financed out of a special stabilization fund granted by the United States. The use of this latter fund was not as fully controlled as were the grants which financed the 11 purchases involved here. 8 This particular limitation to a specific list of commodities is contained in the record in a Program Assistance Grant Agreement, dated November 29, 1965. Appendix 108, 116. Although this agreement could not have applied to the earlier transactions involved here, the stipulated record contains only examples—and not a complete compilation—of all the documents involved. In any case, earlier agreements which are included in the record contain limitations which give the Government equivalent powers. See, e. g., Appendix 81. U. S. v. PHOSPHATE EXPORT ASSN. 205 199 Opinion of the Court. ment Authorization Application” was then prepared on an AID form for Korean signature. The application sets forth not only the goods to be purchased but also rather detailed specifications of quality, delivery plans, bidding procedures, and a statement explaining Korea’s need for the goods. Even though AID officials obviously must have participated in drafting these “requests,” AID was in no way obligated to approve them. The agreement with Korea specifically states that AID “may decline to finance any specific commodity or service when, in its judgment, such financing would be inconsistent with the purposes of this grant or of the Foreign Assistance Act of 1961, as amended.” When each transaction was approved, a “Procurement Authorization” was issued by AID; it was specifically made subject to detailed regulations which specify the procedures to be followed in awarding any contracts.9 It also contained an authorization to a specified American bank to pay for the goods to be procured. After AID had in this way chosen what goods were to be purchased, either of two methods of procurement was used. In two cases, the Government itself let the contracts, through its General Services Administration. In the other nine cases, the formal act of letting the contracts was performed by the Office of Supply of the Republic of Korea (OSROK). In performing this task, the Koreans were subject to detailed regulation by AID. The invitation for bids even had to be submitted to AID so that it could be circulated in this country. All documents had to be in English, and criteria for selecting the winning contractors were carefully defined in advance. An abstract of bids received and a notice naming the contractor selected had to be sent to Washington. Finally, a letter of credit was issued, the supplier paid, and the payor bank reimbursed by the United States Treas- These regulations are collected in 22 CFR §201 (1968). 206 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. ury. The goods were shipped consigned to OSROK, but AID—as a last precaution—reserved the right to vest title in itself if “such action is necessary to assure compliance with the provisions or purposes of any act of Congress.” 22 CFR § 201.44 (1968). We are asked to decide whether transactions of this sort constitute “act[s] done in the course of export trade,” within the meaning of the Webb-Pomerene exemption from the Sherman Act.10 Although the Webb-Pomerene Act has been on the statute books for a half century, this is the first time this Court has been called upon to interpret the meaning of the words “export trade.” Upon a full consideration of the language, the purpose, and the legislative history of the statute, we reverse the judgment below. III. The Webb-Pomerene Act was passed “to aid and encourage our manufacturers and producers to extend our foreign trade.” H. R. Rep. No. 1118, 64th Cong., 1st Sess., 1 (1916). Congress felt that American firms needed the power to form joint export associations in order to compete with foreign cartels. But while Congress was willing to create an exemption from the antitrust laws to serve this narrow purpose, the exemption created was carefully hedged in to avoid substantial injury to domestic interests. Congress evidently made the economic judgment that joint export associations could increase American foreign trade without depriving American consumers of the main advantages of competition. This reading of the Act is confirmed both by its structure and its legislative history. The Act itself contains 10 The Government raises no questions under any of the various provisos included in the Webb-Pomerene Act. Accordingly, we intimate no opinion about their scope. U. S. v. PHOSPHATE EXPORT ASSN. 207 199 Opinion of the Court. a number of provisos obviously designed to protect domestic interests from the combinations Congress was authorizing. No act done by the export association could be “in restraint of trade within the United States,” § 2, 15 U. S. C. § 62; the words “export trade” were to exclude, among other things, “selling for consumption . . . within the United States,” § 1, 15 U. S. C. §61; and the association was forbidden to enter into any agreement “which artificially or intentionally enhances or depresses prices within the United States . . . , or which substantially lessens competition within the United States or otherwise restrains trade therein,” § 2, 15 U. S. C. § 62. The legislative history is even more explicit. During the hearings on the bill, one Congressman, Charles C. Carlin of Virginia, stated clearly what was later to be one of the dominant themes of the floor debate. In a question addressed to the Chairman of the Federal Trade Commission, who was testifying in support of the bill, he said: “I am frank to say that personally I have no sympathy with what a foreigner pays for our products; I would like to see the American manufacturers get the largest price possible, but if by indirection we are going to set up a system which is going to fix a higher price eventually at home, through a combination as suggested in this bill, I think you can very well see that such a system is a very dangerous one.” Hearings before the House Committee on the Judiciary on H. R. 16707, 64th Cong., 1st Sess., 7 (1916). The same theme was reiterated on the floor by the Act’s two main sponsors. Senator Pomerene said bluntly, “[W]e have not reached that high plane of business morals which will permit us to extend the same privi- 208 OCTOBER TERM, 1968. Opinion of the Court. 393 U.S. leges to the peoples of the earth outside of the United States that we extend to those within the United States.” 55 Cong. Rec. 2787 (1917). And Congressman Webb declared, “I would be willing that there should be a combination between anybody or anything for the purpose of capturing the trade of the world, if they do not punish the people of the United States in doing it.” 55 Cong. Rec. 3580 (1917). In this atmosphere, the Act was passed. It is clear what Congress was doing; it thought it could increase American exports by depriving foreigners of the benefits of competition among American firms, without in any significant way injuring American consumers. Cf. United States Alkali Export Assn. v. United States, 325 U. S. 196, 211 (1945). The validity of this economic judgment is not for us to question, but it is quite relevant in interpreting the language Congress chose. The question before us is whether Congress meant its exemption to insulate transactions initiated, controlled, and financed by the American Government, just because a foreign government is the nominal “purchaser.” We think it did not. In interpreting the antitrust laws, we are not bound by formal conceptions of contract law. Simpson v. Union Oil Co., 377 U. S. 13 (1964). We must look at the economic reality of the relevant transactions. Here, although the fertilizer shipments were consigned to Korea and although in most cases Korea formally let the contracts, American participation was the overwhelmingly dominant feature. The burden of noncompetitive pricing fell, not on any foreign purchaser, but on the American taxpayer. The United States was, in essence, furnishing fertilizer to Korea. AID selected the commodity, determined the amount to be purchased, controlled the contracting process, and paid the bill. The foreign elements in the transactions were, by comparison, insignificant. U. S. v. PHOSPHATE EXPORT ASSN. 209 199 Opinion of the Court. It stretches neither the language nor the purpose of the Act to determine that such sales are not “exports.” Appellees contend that a contrary result should be reached because they were competing for contracts with foreign suppliers. Evidently, it is their contention that they therefore fall within the class which Congress intended to allow to form export associations. But AID has already given American suppliers great competitive advantages in their battle with foreign firms. The governing statute requires a preference for American procurement. Foreign Assistance Act of 1961, § 604, 75 Stat. 439, 22 U. S. C. § 2354. On none of the contracts involved here were any of the major trading nations of the world eligible to compete; procurement was limited essentially to the United States and the underdeveloped countries. To say that American producers need an additional stimulus to be able to compete strains credulity. The major impact of allowing the combination appellees desire would not be to encourage American exports; it would be to place the burden of noncompetitive pricing on the shoulders of the American taxpayer. But whatever the impact on exports might be, it is clear that the framers of the Webb-Pomerene Act did not intend that Americans should be deprived of the main benefits of competition among American firms.11 Since in all relevant aspects the transactions involved here were American, not Korean, we hold that they are not “export trade” 11 There was a brief mention during the congressional debates of the existence of American loans to European nations whose purchasing power might be reduced by higher American export prices. See 55 Cong. Rec. 2789 (1917). Such an isolated statement cannot determine the meaning of a statute. But in any case, it is clear that America’s World War I loans bear little if any resemblance to the modern foreign aid program. Not only was it expected that they would be repaid, but also the loans were not made subject to the detailed American administrative control typical of today’s foreign aid program. 210 OCTOBER TERM, 1968. White, J., dissenting. 393 U.S. within the meaning of the Webb-Pomerene Act. On remand, the District Court may decide the other issues relevant to a resolution of the controversy. Reversed. Mr. Justice Harlan took no part in the decision of this case. Mr. Justice White, with whom Mr. Justice Stewart joins, dissenting. The majority holds today that concentrated phosphate shipped from an American firm in Florida to the Republic of Korea, which has itself solicited bids on the world market,1 are not “exports” within the meaning of the Webb-Pomerene Act, § 1, 40 Stat. 516 (1918), 15 U. S. C. § 61. The United States supplied the funds which Korea used to pay for the purchases, and retained limited power to control their expenditure. Korea was not obliged to repay the funds to the United States directly, but it was required to set aside proceeds of resale of the phosphate as “counterpart funds” to be spent in ways prescribed by the United States.1 2 This decision conforms neither to the plain meaning of the word “exports” nor to the underlying purposes of the Webb-Pomerene Act. The statute defines “export trade” as trade in goods “exported, or in the course of being exported from the United States.” § 1, 15 U. S. C. § 61. In this case, more than 800,000 tons of concentrated phosphate were shipped directly from the association in Florida to 1 In two of the 11 transactions challenged here, the General Services Administration solicited the bids for Korea, but neither the Government nor the Court finds that distinction significant. 2 These funds were used to support the Korean and American military establishments in Korea and to finance public works. They were generally available to the United States “as requested.” U. S. v. PHOSPHATE EXPORT ASSN. 211 199 White, J., dissenting. Korea. In any ordinary sense, these “goods” were “exported from the United States.” Even the AID regulations refer to receiving countries as “importers” and to these transactions as “exports.” E. g., 22 CFR § 201.42 (1968).3 And the District Court found that AID encouraged, or at least tolerated, bidding by Webb-Pomerene associations in these transactions. Nor does the exclusion from the definition of exports of goods sold “for consumption . . . within the United States,” § 1, 15 U. S. C. § 61, discussed by the majority, have any application to this case. The parties have so stipulated, since the phosphate was obviously to be consumed in Korea. And there is no contention here that purely domestic trade was “restrained” in any way, or that prices in it were “enhanced” or “depressed.”4 Given the clarity of the statute, there is no need to resort to legislative history. E. g., Unexcelled Chemical Corp. v. United States, 345 U. S. 59, 64 (1953). But even the legislative history lends no support to the majority, and indeed leads to a contrary conclusion. The majority asserts that Congress thought it could increase American exports by ending competition for foreign shipments among American firms without impairing domestic competition. That is correct. Congress recognized that trade in foreign nations is not ringed about with the antitrust restrictions which keep domestic industry competitive. Congress found foreign trusts to have substantial advantages over their American competitors. They can offer to extend credit and fill large orders which no single American firm could fill; they can maintain staffs to keep in touch with foreign demand 3 Indeed, even government statistics relating, to balance of payments refer to shipments such as these as “exports.” E. g., Department of Commerce, Bureau of the Census, Statistical Abstract of the United States 1968, at 669, 801; 15 CFR §30.1 et seq. (1968). 4 §2, 15 U. S. C. §62. 320-583 0 - 69 - 22 212 OCTOBER TERM, 1968. White, J., dissenting. 393 U. S. more cheaply than any single American seller; and their advertising and distribution costs are generally lower than those of separate American firms.5 Having made these findings, Congress concluded that American firms should be allowed to combine to achieve lower costs, lower prices, and more comprehensive and effective service, in order to be able to compete on an equal footing for foreign shipments. In a transaction such as this, where American goods compete with foreign goods for foreign consumption, Congress had no objection to the formation of American associations to achieve lower prices and compete with foreign suppliers. That such competition was involved here is graphically illustrated by the fact that in most of the Korean purchases involved in this case6 foreign bidders were successful in capturing at least part of the market, and the Government admits that foreign competition was never absent. It was precisely to enable American firms to meet such competition that the Webb-Pomerene Act was passed. Moreover, it is no kindness to the American taxpayer to carve out an exception forbidding the formation of Webb-Pomerene associations in this case, given the assumptions on which the Act was passed. Congress specifically discussed phosphate as a commodity where American associations were necessary in order to achieve the savings and organization which would enable them to compete with foreign cartels in price and service.7 5 See, e. g., S. Rep. No. 1056, 64th Cong., 2d Sess. (1917); H. R. Rep. No. 1118, 64th Cong., 1st Sess. (1916); Hearings on H. R. 17350 before the Senate Committee on Interstate Commerce, 64th Cong., 2d Sess, 44 (1917). 6 Thirteen phosphate purchases were made by Korea, of which the Govermnent challenges only the 11 to which the AID regulations apply. In those transactions alone, foreign bidders captured 18% of the business. 7 56 Cong. Rec. 110-111 (remarks of Senator Kellogg). U. S. v. PHOSPHATE EXPORT ASSN. 213 199 White, J., dissenting. Without Webb-Pomerene associations, Congress concluded that American firms could not underbid their foreign competitors. Even in this case, with the Association bidding, foreign cartels captured 18% of the business. Under the majority opinion, American taxpayers would be paying out more American dollars to buy from foreign cartels goods which could have been obtained more cheaply from American associations employing American workers. Congress explicitly found that Webb-Pomerene associations would lead to lower, not higher, prices in competition with foreign suppliers. It was on this basis that joint efforts by American companies in the export trade were exempted from the antitrust laws. Those charged with the duty faithfully to execute the laws should honor that exemption, not challenge it with facile assertions that the Act was “chauvinistic.” Certainly this Court is not equipped or empowered to challenge either the exemption or the assumptions on which it rests. To carve out an exception from the wrord “export” based on this Court’s notions of sound economic policy is to contradict the plain words of the statute and the congressional judgment that American associations were necessary to lower prices and combat foreign competition. If such an exception were ever justified, it would be in a case where not only are Americans paying the bill, but also foreign competition is absent. This is not such a case. 214 OCTOBER TERM, 1968. November 25, 1968. 393 U. S. ATCHISON, TOPEKA & SANTA FE RAILWAY CO. et al. v. UNITED STATES et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS. No. 520. Decided November 25, 1968. 287 F. Supp. 354, affirmed. 5. R. Brittingham, Jr., for Atchison, Topeka & Santa Fe Railway Co., and Albert E. Jenner, Jr., Thomas P. Sullivan, William R. McDowell, Thomas L. Farmer, and Thomas A. Ijoose for the Texas & Pacific Railway Co. et ah, appellants. Solicitor General Griswold, Assistant Attorney General Zimmerman, Howard E. Shapiro, and Robert W. Ginnane for the United States et al., and Richard Maguire and Gavin W. O'Brien for the Permian Basin Railroad Co., appellees. Per Curiam. The motions to affirm are granted and the judgment is affirmed. CITY OF AUSTIN v. WEBSTER. APPEAL FROM THE SUPREME COURT OF TEXAS. No. 499. Decided November 25, 1968. Appeal dismissed and certiorari denied. James W. Wilson for appellant. Per Curiam. The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied. DECISIONS PER CURIAM. 215 393 U. S. November 25, 1968. COLLINS v. COMMISSIONER OF INTERNAL REVENUE. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT. No. 134. Decided November 25, 1968. Certiorari granted; 388 F. 2d 353, vacated and remanded. Donald P. Moyers for petitioner. Solicitor General Griswold, Assistant Attorney General Rogovin, Jonathan S. Cohen, and Robert J. Campbell for respondent. Per Curiam. The petition for a writ of certiorari is granted, the judgment is vacated and the case is remanded to the Court of Appeals for further consideration in light of the opinion of the Supreme Court of Oklahoma in Collins v. Oklahoma Tax Comm’n, 446 P. 2d 290. ARTHUR v. VIRGINIA. APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA. No. 501. Decided November 25, 1968. Appeal dismissed and certiorari denied. Wm. Rosenberger, Jr., for appellant. Per Curiam. The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied. Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted. 216 OCTOBER TERM, 1968. November 25, 1968. 393 U.S. FARBENFABRIKEN BAYER A. G. v. UNITED STATES. APPEAL FR0M THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA. No. 504. Decided November 25, 1968. Appeal dismissed. Allen F. Maulsby, Arnold M. Lerman, Max 0. Truitt, Jr., and Daniel K. Mayers for appellant. Solicitor General Griswold for the United States. Per Curiam. The motion to dismiss is granted and the appeal is dismissed. GREEN v. TURNER, WARDEN. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT. No. 88, Mise. Decided November 25, 1968. Certiorari granted; vacated and remanded. Phil L. Hansen, Attorney General of Utah, 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 is vacated and the case is remanded to the Court of Appeals for further consideration in light of Garrison v. Patterson, 391 U. S. 464. 217 DECISIONS PER CURIAM. November 25, 1968. 393 U. S. STAMLER et al. v. WILLIS et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS. No. 478. Decided November 25, 1968* 287 F. Supp. 734, appeals dismissed. Albert E. Jenner, Jr., Thomas P. Sullivan, and Arthur Kinoy for appellants in No. 478. Mr. Jenner for appellant in No. 479. Solicitor General Griswold, Assistant Attorney General Yeagley, Kevin T. Maroney, and Lee B. Anderson for appellees in both cases. Briefs of amici curiae were filed by Jack G. Day and Melvin L. Wulf for the American Civil Liberties Union, and by Vern Countryman, Robert F. Drinan, Clark Byse, David F. Cavers, George T. Frampton, and Ira M. Heyman for certain law school deans and professors. Per Curiam. The motion to dismiss is granted and the appeals are dismissed. Mr. Justice Black, Mr. Justice Douglas, and Mr. Justice Harlan are of the opinion that further consideration of the question of jurisdiction should be postponed to the hearing of the cases on the merits and that the cases should be set for oral argument. Mr. Justice Marshall took no part in the consideration or decision of these cases. *Together with No. 479, Cohen v. Willis et al., also on appeal from the same court. 218 OCTOBER TERM, 1968. December 9, 1968. 393 U. S. PALMIERI v. FLORIDA. CERTIORARI TO THE SUPREME COURT OF FLORIDA. No. 131. Argued November 20, 1968.—Decided December 9, 1968. 198 So. 2d 633, dismissed. Phillip Goldman, by appointment of the Court, 392 U. S. 920, argued the cause and filed a brief for petitioner. Howard Mendelow, Assistant Attorney General of Florida, argued the cause for respondent. With him on the brief were Earl Faircloth, Attorney General, and Edward Cowart, Assistant Attorney General. Per Curiam. The petitioner was convicted of robbery in the Criminal Court of Dade County, Florida, and the judgment of conviction was affirmed by the District Court of Appeal, 189 So. 2d 512, and the Supreme Court of Florida, 198 So. 2d 633. We granted certiorari because the case appeared to present a substantial constitutional question concerning the admissibility at trial of “lineup” identifications made after the petitioner was arrested without probable cause for the sole purpose of gathering evidence against him. 391 U. S. 934. However, upon the complete review of the record that has now become possible, and in the light of oral argument by able and conscientious counsel, it has become evident that the legality of the petitioner’s arrest was not at issue in the Florida appellate courts, and is not challenged here. Accordingly, the writ is dismissed as improvidently granted. It is so ordered. DECISIONS PER CURIAM. 219 393 U. S. December 9, 1968. STILES v. UNITED STATES. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT. No. 74. Argued November 20, 1968.—Decided December 9, 1968. Certiorari dismissed. Charles J. Rogers, Jr., by appointment of the Court, post, p. 813, argued the cause and filed a brief for petitioner. Solicitor General Griswold argued the cause for the United States. With him on the brief were Assistant Attorney General Vinson, Jerome M. Feit, and Lawrence P. Cohen. Per Curiam. The writ of certiorari is dismissed as improvidently granted. 220 OCTOBER TERM, 1968. December 9, 1968. 393 U.S. SHAW v. GARRISON et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA. No. 579. Decided December 9, 1968. Affirmed. Herve Racivitch for appellant. Eberhard P. Deutsch and René H. Himel, Jr., for appellees. Per Curiam. The motion to affirm is granted and the judgment is affirmed. The Chief Justice took no part in the consideration or decision of this case. LANDRY et al. v. BOYLE, CHIEF JUDGE, et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS. No. 659. Decided December 9, 1968. 280 F. Supp. 938, appeal dismissed. Robert L. Tucker, R. Eugene Pincham, Jean F. Williams, Leonard Karlin, William M. Kunstler, and Arthur Kinoy for appellants. Per Curiam. The appeal is dismissed for failure to comply with Rule 13 (1). 221 DECISIONS PER CURIAM. 393 U. S. December 9, 1968. MOORE v. OHIO. APPEAL FROM THE SUPREME COURT OF OHIO. No. 423, Mise. Decided December 9, 1968. Appeal dismissed and certiorari denied. Per Curiam. The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied. CROSS v. ILLINOIS. APPEAL FROM THE SUPREME COURT OF ILLINOIS. No. 747, Mise. Decided December 9, 1968. 40 Ill. 2d 85, 237 N. E. 2d 437, appeal dismissed and certiorari denied. John Unger for appellant. Per Curiam. The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied. 222 OCTOBER TERM, 1968. December 9, 196S. 393 U. S. SOUTH CAROLINA STATE BOARD OF EDUCATION ET AL. V. BROWN ET AL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA. No. 553. Decided December 9, 1968* Affirmed. Daniel R. McLeod, Attorney General of South Carolina, and D. W. Robinson for appellants in No. 553. J. C. Long for appellants in No. 563. Solicitor General Griswold and Assistant Attorney General Pollak for appellee United States in both cases. Per Curiam. The motion to affirm is granted and the judgment is affirmed. *Together with No. 563, Cribb et al. v. Brown et al., also on appeal from the same court. FTC V. TEXACO. 223 Syllabus. FEDERAL TRADE COMMISSION v. TEXACO INC. et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. No. 24. Argued November 13, 1968.—Decided December 16, 1968. Respondent Texaco Inc., one of the country’s largest petroleum companies, made an agreement with respondent Goodrich to promote the sale of Goodrich tires, batteries, and accessories (TBA) to Texaco’s service station dealers. The Federal Trade Commission (FTC) in this proceeding and two related proceedings, each of which involved a major oil company and a major tire manufacturer, challenged the sales-commission arrangements as an unfair method of competition in violation of § 5 of the Federal Trade Commission Act. Relying on this Court’s decision upholding invalidation of such an arrangement in one of these cases, Atlantic Refining Co. v. FTC, 381 U. S. 357 (1965), the FTC on remand reaffirmed its conclusion that the Texaco-Goodrich arrangement violated § 5 of the Act. The Court of Appeals reversed on the ground that the evidence did not support the FTC’s conclusions. Respondents contend, inter alia, that the absence here of “overt economic practices” distinguishes this case from Atlantic. Held: 1. The FTC’s determinations of “unfair methods of competition” under § 5 of the Act are entitled to great weight. Pp. 225-226. 2. Texaco, as the record clearly shows and respondents do not dispute, holds dominant economic power over its dealers. Pp. 226-227. 3. The sales-commission system for marketing TBA is inherently coercive, and, despite the absence here of the kind of overtly coercive acts shown in Atlantic, Texaco exerted its dominant economic power over its dealers. Pp. 228-229. 4. The FTC correctly determined that the Texaco-Goodrich arrangement adversely affected competition in marketing TBA, the TBA manufacturer having purchased the oil company’s economic power and used it as a partial substitute for competitive merit in gaining a major share of the substantial TBA market. Pp. 229-231. 127 U. S. App. D. C. 349, 383 F. 2d 942, reversed and remanded. 224 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. Daniel M. Friedman argued the cause for petitioner. On the brief were Solicitor General Griswold, Assistant Attorney General Turner, Lawrence G. Wallace, James Mcl. Henderson, and Alvin L. Berman. Milton Handler and Edgar E. Barton argued the cause for respondents. With them on the brief were Stanley D. Robinson and Macdonald Flinn. Mr. Justice Black delivered the opinion of the Court. The question presented by this case is whether the FTC was warranted in finding that it was an unfair method of competition in violation of § 5 of the Federal Trade Commission Act, 38 Stat. 719, as amended, 15 U. S. C. § 45, for respondent Texaco to undertake to induce its service station dealers to purchase Goodrich tires, batteries, and accessories (hereafter referred to as TBA) in return for a commission paid by Goodrich to Texaco. In three related proceedings instituted in 1961, the Commission challenged the sales-commission method of distributing TBA and in each case named as a respondent a major oil company and a major tire manufacturer. After extensive hearings, the Commission concluded that each of the arrangements constituted an unfair method of competition and ordered each tire company and each oil company to refrain from entering into any such commission arrangements. In one of these cases, Atlantic Refining Co. v. FTC, 381 U. S. 357 (1965), this Court affirmed the decision of the Court of Appeals for the Seventh Circuit sustaining the Commission’s order against Atlantic Refining Company and the Goodyear Tire & Rubber Company. In a second case, Shell Oil Co. v. FTC, 360 F. 2d 470, cert, denied, 385 U. S. 1002, the Court of Appeals for the Fifth Circuit, following this Court’s decision in Atlantic, sustained the Commission’s order against the Shell Oil Company and the Firestone Tire & Rubber FTC V. TEXACO. 225 223 Opinion of the Court. Company. In contrast to the decisions of these two Courts of Appeals, the Court of Appeals for the District of Columbia Circuit set aside the Commission’s order in this, the third of the three cases, involving respondents Goodrich and Texaco. 118 U. S. App. D. C. 366, 336 F. 2d 754 (1964).1 The Commission petitioned this Court for review and, one week following our Atlantic decision, we granted certiorari and remanded for further consideration in light of that opinion. 381 U. S. 739 (1965). The Commission, on remand, reaffirmed its conclusion that the Texaco-Goodrich arrangement, like that involved in the other two cases, violated § 5 of the Federal Trade Commission Act. The Court of Appeals for the District of Columbia Circuit again reversed, this time holding that the Commission had failed to establish that Texaco had exercised its dominant economic power over its dealers or that the Texaco-Goodrich arrangement had an adverse effect on competition. 127 U. S. App. D. C. 349, 383 F. 2d 942. We granted certiorari to determine whether the court below had correctly applied the principles of our Atlantic decision. 390 U. S. 979. Congress enacted § 5 of the Federal Trade Commission Act to combat in their incipiency trade practices that exhibit a strong potential for stifling competition. In large measure the task of defining “unfair methods of competition” was left to the Commission. The legislative history shows that Congress concluded that the best check on unfair competition would be “an administrative 1 The sales-commission arrangement between Texaco and the Firestone Tire & Rubber Company was also the subject of Commission action. Firestone is not a respondent in this action, however, since it is already subject to a final order of the Commission prohibiting its use of a sales-commission plan with any oil company. See Shell Oil Co. v. FTC, 360 F. 2d 470, 474 (C. A. 5th Cir.), cert, denied, 385 U. S. 1002. 226 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. body of practical men . . . who will be able to apply the rule enacted by Congress to particular business situations, so as to eradicate evils with the least risk of interfering with legitimate business operations.” H. R. Conf. Rep. No. 1142, 63d Cong., 2d Sess., 19. Atlantic Refining Co. n. FTC, 381 U. S. 357, 367. While the ultimate responsibility for the construction of this statute rests with the courts, we have held on many occasions that the determinations of the Commission, an expert body charged with the practical application of the statute, are entitled to great weight. FTC v. Motion Picture Advertising Serv. Co., 344 U. S. 392, 396 (1953); FTC v. Cement Institute, 333 U. S. 683, 720 (1948). This is especially true here, where the Commission has had occasion in three related proceedings to study and assess the effects on competition of the sales-commission arrangement for marketing TBA. With this in mind, we turn to the facts of this case. The Commission and the respondents agree that the Texaco-Goodrich arrangement for marketing TBA will fall under the rationale of our Atlantic decision if the Commission was correct in its three ultimate conclusions (1) that Texaco has dominant economic power over its dealers; (2) that Texaco exercises that power over its dealers in fulfilling its agreement to promote and sponsor Goodrich products; and (3) that anticompetitive effects result from the exercise of that power. That Texaco holds dominant economic power over its dealers is clearly shown by the record in this case. In fact, respondents do not contest the conclusion of the Court of Appeals below and the Court of Appeals for the Fifth Circuit in Shell that such power is “inherent in the structure and economics of the petroleum distribution system.” 127 U. S. App. D. C. 349, 353, 383 F. 2d 942, 946; 360 F. 2d 470, 481 (C. A. 5th Cir.). Nearly 40% of the Texaco dealers lease their stations from Texaco. FTC V. TEXACO. 227 223 Opinion of the Court. These dealers typically hold a one-year lease on their stations, and these leases are subject to termination at the end of any year on 10 days’ notice. At any time during the year a man’s lease on his service station may be immediately terminated by Texaco without advance notice if in Texaco’s judgment any of the “housekeeping” provisions of the lease, relating to the use and appearance of the station, are not fulfilled. The contract under which Texaco dealers receive their vital supply of gasoline and other petroleum products also runs from year to year and is terminable on 30 days’ notice under Texaco’s standard form contract. The average dealer is a man of limited means who has what is for him a sizable investment in his station. He stands to lose much if he incurs the ill will of Texaco. As Judge Wisdom wrote in Shell, “A man operating a gas station is bound to be overawed by the great corporation that is his supplier, his banker, and his landlord.” 360 F. 2d 470, 487. It is against the background of this dominant economic power over the dealers that the sales-commission arrangement must be viewed. The Texaco-Goodrich agreement provides that Goodrich will pay Texaco a commission of 10% on all purchases by Texaco retail service station dealers of Goodrich TBA. In return, Texaco agrees to “promote the sale of Goodrich products” to Texaco dealers. During the five-year period studied by the Commission (1952-1956) $245,000,000 of the Goodrich and Firestone TBA sponsored by Texaco was purchased by Texaco dealers, for which Texaco received almost $22,000,000 in retail and wholesale commissions. Evidence before the Commission showed that Texaco carried out its agreement to promote Goodrich products through constantly reminding its dealers of Texaco’s desire that they stock and sell the sponsored Goodrich TBA. Texaco emphasizes the importance of TBA and the recommended brands as early as its initial interview 320-583 0 - 69 - 23 228 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. with a prospective dealer and repeats its recommendation through a steady flow of campaign materials utilizing Goodrich products. Texaco salesmen, the primary link between Texaco and the dealers, promote Goodrich products in their day-to-day contact with the Texaco dealers. The evaluation of a dealer’s station by the Texaco salesman is often an important factor in determining whether a dealer’s contract or lease with Texaco will be renewed. Thus the Texaco salesmen, whose favorable opinion is so important to every dealer, are the key men in the promotion of Goodrich products, and on occasion accompany the Goodrich salesmen in their calls on the dealers. Finally, Texaco receives regular reports on the amount of sponsored TBA purchased by each dealer. Respondents contend, however, that these reports are used only for maintaining Texaco’s accounts with Goodrich and not for policing dealer purchases. Respondents urge that the facts of this case are fundamentally different from those involved in Atlantic because of the presence there, and the absence here, of “overt coercive practices” designed to force the dealers to purchase the sponsored brand of TBA. We agree, as the Government concedes, that the evidence in this case regarding coercive practices is considerably less substantial than the evidence presented in Atlantic. The Atlantic record contained direct evidence of dealers threatened with cancellation of their leases, the setting of dealer quotas for purchase of certain amounts of sponsored TBA, the requirement that dealers purchase TBA from single assigned supply points, refusals by Atlantic to honor credit card charges for nonsponsored TBA, and policing of Atlantic dealers by “phantom inspectors.” While the evidence in the present case fails to establish the kind of overt coercive acts shown in Atlantic, we think it clear nonetheless that Texaco’s dominant eco FTC V. TEXACO. 229 223 Opinion of the Court. nomic power was used in a manner which tended to foreclose competition in the marketing of TBA. The sales-commission system for marketing TBA is inherently coercive. A service station dealer whose very livelihood depends upon the continuing good favor of a major oil company is constantly aware of the oil company’s desire that he stock and sell the recommended brand of TBA. Through the constant reminder of the Texaco salesman, through demonstration projects and promotional materials, through all of the dealer’s contacts writh Texaco, he learns the lesson that Texaco wants him to purchase for his station the brand of TBA which pays Texaco 10% on every retail item the dealer buys. With the dealer’s supply of gasoline, his lease on his station, and his Texaco identification subject to continuing review, we think it flies in the face of common sense to say, as Texaco asserts, that the dealer is “perfectly free” to reject Texaco’s chosen brand of TBA. Equally applicable here is this Court’s judgment in Atlantic that “[i]t is difficult to escape the conclusion that there would have been little point in paying substantial commissions to oil companies were it not for their ability to exert power over their wholesalers and dealers.” 381 U. S., at 376. We are similarly convinced that the Commission was correct in determining that this arrangement has an adverse effect on competition in the marketing of TBA. Service stations play an increasingly important role in the marketing of tires, batteries, and other automotive accessories. With five major companies supplying virtually all of the tires that come with new cars, only in the replacement market can the smaller companies hope to compete. Ideally, each service station dealer would stock the brands of TBA that in his judgment were most favored by customers for price and quality. To the extent that dealers are induced to select the sponsored brand in order to maintain the good favor of the oil 230 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. company upon which they are dependent, the operation of the competitive market is adversely affected. As we noted in Atlantic, the essential anticompetitive vice of such an arrangement is “the utilization of economic power in one market to curtail competition in another.” 381 U. S. 357, 369. Here the TBA manufacturer has purchased the oil company’s economic power and used it as a partial substitute for competitive merit in gaining a major share of the TBA market.2 The nonsponsored brands do not compete on the even terms of price and quality competition; they must overcome, in addition, the influence of the dominant oil company that has been paid to induce its dealers to buy the recommended brand. While the success of this arrangement in foreclosing competitors from the TBA market has not matched that of the direct coercion employed by Atlantic, we feel that the anticompetitive tendencies of such a system are clear, and that the Commission was properly fulfilling the task that Congress assigned it in halting this practice in its incipiency. The Commission is not required to show that a practice it condemns has totally eliminated competition in the relevant market. It is enough that the Commission found that the practice in question unfairly burdened competition for a not insignificant volume of commerce. International Salt Co. v. United States, 332 U. S. 392 (1947); United States v. Loew’s, Inc., 371 U. S. 38, 45, n. 4 (1962); Atlantic Refining Co. v. FTC, 381 U. S. 357, 371 (1965). The Commission was justified in concluding that more than an insubstantial amount of commerce was involved. 2 The Commission’s conclusion that under a sales-commission plan, a dealer would not make his choice solely on the basis of competitive merit was bolstered by the testimony of 31 sellers of competing, nonsponsored TBA that they were unable to sell to particular Texaco stations because of the dealers’ concern that Texaco would disapprove of their purchase of nonsponsored products. FTC v. TEXACO. 231 223 Stewart, J., dissenting. Texaco is one of the Nation’s largest petroleum companies. It sells its products to approximately 30,000 service stations, or about 16.5 % of all service stations in the United States. The volume of sponsored TBA purchased by Texaco dealers in the five-year period 1952-1956 was $245,000,000., almost five times the amount involved in the Atlantic case. For the reasons stated above, we reverse the judgment below and remand to the Court of Appeals for enforcement of the Commission’s order with the exception of paragraphs five and six of the order against Texaco, the setting aside of which by the Court of Appeals the Government does not contest. Reversed and remanded. Mr. Justice Harlan, concurring. I join the Court’s opinion, with the following statement. To the extent that my action in joining today’s opinion is inconsistent with my action in joining my Brother Stewart’s dissent in Atlantic Refining Co. v. FTC, 381 U. S. 357, 377 (1965), candor compels me to say that further reflection has convinced me that the portions of the Commission’s order which the Court today sustains were within the authority granted to the Commission under § 5 of the Federal Trade Commission Act. Mr. Justice Stewart, dissenting. We are told today that “[t]he sales-commission system for marketing TBA is inherently coercive.” If that is so, then the Court went to a good deal of unnecessary trouble in Atlantic Refining Co. v. FTC, 381 U. S. 357, 368, to establish that Atlantic “not only exerted the persuasion that is a natural incident of its economic power, but coupled with it direct and overt threats of reprisal . . . .” 232 OCTOBER TERM, 1968. Stewart, J., dissenting. 393 U.S. The Court acknowledges that “the evidence in this case regarding coercive practices is considerably less substantial than the evidence presented in Atlantic.” But that is an understatement. For the fact is that in this case the Court of Appeals was totally unable to “find that Texaco used its controlling economic power to compel its dealers to purchase sponsored TBA.” 127 U. S. App. D. C. 349, 356, 383 F. 2d 942, 949. That is why this Court must perforce create today’s per se rule of “inherent” coercion. For the reasons set out at some length in my separate opinion in Atlantic, supra, at 377, I cannot agree to any such per se rule. Accordingly, I would affirm the judgment of the Court of Appeals. OESTEREICH v. SELECTIVE SERVICE BD. 233 Syllabus. OESTEREICH v. SELECTIVE SERVICE SYSTEM LOCAL BOARD NO. 11, CHEYENNE, WYOMING, et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT. No. 46. Argued October 24, 1968.—Decided December 16, 1968. Petitioner, a theological student preparing for the ministry, was classified IV-D by his Selective Service Board in accordance with § 6 (g) of the Selective Service Act, which provides that “students preparing for the ministry” in qualified schools “shall be exempt from training and service” under the Act. He returned his registration certificate “for the sole purpose of expressing dissent from the participation by the United States in the war in Vietnam.” His Board then declared him delinquent for failure (1) to have his registration certificate in his possession and (2) to provide the Board with notice of his local status, and changed his classification to I-A. Petitioner took an administrative appeal and lost, and was ordered to report for induction. He sued to restrain his induction, but the District Court dismissed the complaint and the Court of Appeals affirmed, in part on the basis of § 10 (b) (3) of the Military Selective Service Act of 1967, which states that there shall be no pre-induction judicial review “of the classification or processing of any registrant,” judicial review being limited to a defense in a criminal prosecution or to habeas corpus after induction. Held: Pre-induction judicial review is not precluded in this case. Pp. 235-239. (a) There is no legislative authority to deny an unequivocal statutory exemption to a registrant who has qualified for one because of conduct or activities unrelated to the merits of granting or continuing the exemption, and delinquency proceedings cannot be used for that purpose. Pp. 236-237. (b) Section 10 (b)(3) cannot be construed to impair the clear mandate of § 6 (g) governing the exemption for theological students. P. 238. 390 F. 2d 100, reversed and remanded. Melvin L. Wulf argued the cause for petitioner. With him on the brief were Alan H. Levine, John Griffiths, 234 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. Marvin M. Karpatkin, Eleanor Holmes Norton, and William F. Reynard. Solicitor General Griswold argued the cause for respondents. With him on the brief were Assistant Attorney General Weisl, Francis X. Beytagh, Jr., Morton Hollander, and Robert V. Zener. Mr. Justice Douglas delivered the opinion of the Court. Petitioner is enrolled as a student at a theological school preparing for the ministry and was accordingly classified as IV-D by the Selective Service Board. Section 6 (g) of the Selective Service Act, 62 Stat. 611, as amended, now § 6 (g) of the Military Selective Service Act of 1967 (see 81 Stat. 100, § 1 (a)), 50 U. S. C. App. § 456 (g), gives such students exemption from training and service under the Act.1 He returned his registration certificate to the Government, according to the complaint in the present action, “for the sole purpose of expressing dissent from the participation by the United States in the war in Vietnam.” Shortly thereafter his Board declared him delinquent (1) for failure to have the registration certificate in his possession,1 2 and (2) for 1 Section 6 (g) reads as follows: “Regular or duly ordained ministers of religion, as defined in this title, and students preparing for the ministry under the direction of recognized churches or religious organizations, who are satisfactorily pursuing full-time courses of instruction in recognized theological or divinity schools, or who are satisfactorily pursuing full-time courses of instruction leading to their entrance into recognized theological or divinity schools in which they have been preenrolled, shall be exempt from training and service (but not from registration) under this title.” 2 Section 1617.1 of the Selective Service System Regulations requires a registrant to have the certificate in his personal possession at all times (32 CFR § 1617.1), and § 1642.4, 32 CFR § 1642.4 (a), provides that whenever a registrant fails to perform “any duty” OESTEREICH v. SELECTIVE SERVICE BD. 235 233 Opinion of the Court. failure to provide the Board with notice of his local status. The Board thereupon changed his IV-D classification to I-A. He took an administrative appeal and lost and was ordered to report for induction. At that point he brought suit to restrain his induction. The District Court dismissed the complaint, 280 F. Supp. 78, and the Court of Appeals affirmed. 390 F. 2d 100. The case is here on a petition for a writ of certiorari which we granted. 391 U. S. 912. As noted, § 6 (g) of the Act states that “students preparing for the ministry” in qualified schools “shall be exempt from training and service” under the Act.* 3 Equally unambiguous is §10 (b)(3) of the Military Selective Service Act of 1967, 81 Stat. 104, which provides that there shall be no pre-induction judicial review “of the classification or processing of any registrant,” 4 judicial review being limited to a defense in a criminal prosecution or, as the Government concedes, to habeas corpus after induction.5 See Estep v. United States, 327 required of him. (apart from the duty to obey an order to report for induction) the Board may declare him to be “a delinquent.” 3 The United States admits for purposes of the present proceeding by its motion to dismiss that petitioner satisfies the requirements of the exemption provided by § 6 (g). 4 Section 10 (b)(3) reads in pertinent part as follows: “No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under section 12 of this title, after the registrant has responded either affirmatively or negatively to an order to report for induction, or for civilian work in the case of a registrant determined to be opposed to participation in war in any form: Provided, That such review shall go to the question of the jurisdiction herein reserved to local boards, appeal boards, and the President only when there is no basis in fact for the classification assigned to such registrant.” 5 See S. Rep. No. 209, 90th Cong., 1st Sess., 10, where it is stated: “A registrant who presents himself for induction may challenge his classification by seeking a writ of habeas corpus after his induction. If the registrant does not submit to induction, he may raise as a 236 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. U. S. 114, 123-125; Eagles v. Samuels, 329 U. S. 304; Witmer v. United States, 348 U. S. 375, 377. If we assume, as we must for present purposes, that petitioner is entitled to a statutory exemption as a divinity student, by what authority can the Board withhold it or withdraw it and make him a delinquent? In 1967 Congress added a provision concerning the immediate service of members of a “prime age group” after expiration of their deferment, stating that they were the first to be inducted “after delinquents and volunteers.” 50 U. S. C. App. §456 (h)(1) (1964 ed, Supp. III). Congress has also made criminal the knowing failure or neglect to perform any duty prescribed by the rules or regulations of the Selective Service System. 50 U. S. C. App. § 462 (a) (1964 ed., Supp. III). But Congress did defense to a criminal prosecution the issue of the legality of the classification.” In Falbo v. United States, 320 U. S. 549, a Jehovah’s Witness had been given conscientious objector status and ordered to report to a domestic camp for civilian work in lieu of military service. In defense to a criminal prosecution for disobeying that order, he argued that his local board had wrongly classified him by denying him an exemption as a minister. Without deciding whether Congress envisaged judicial review of such classifications, we held that a registrant could not challenge his classification without first exhausting his administrative remedies by reporting, and being accepted, for induction. Because he might still have been rejected at the civilian camp for mental or physical disabilities, Falbo had omitted a “necessary intermediate step in a united and continuous process designed to raise an army speedily and efficiently.” Id., at 553. In Estep v. United States, ‘¿‘2.1 U. S. 114, petitioners were Jehovah’s Witnesses like Falbo who had been denied ministerial exemptions and who challenged that classification in defense to a criminal prosecution for refusing induction. In their case, however, they had exhausted their administrative remedies by reporting, and being accepted, for service, before then refusing to submit to induction. We found nothing in the 1940 Act to preclude judicial review of selective service classifications in defense to a criminal prosecution for refusing induction. OESTEREICH v. SELECTIVE SERVICE BD. 237 233 Opinion of the Court. not define delinquency; nor did it provide any standards for its definition by the Selective Service System. Yet Selective Service, as we have noted,6 has promulgated regulations governing delinquency and uses them to deprive registrants of their statutory exemption, because of various activities and conduct and without any regard to the exemptions provided by law. We can find no authorization for that use of delinquency. Even if Congress had authorized the Boards to revoke statutory exemptions by means of delinquency classifications, serious questions would arise if Congress were silent and did not prescribe standards to govern the Boards’ actions. There is no suggestion in the legislative history that, when Congress has granted an exemption and a registrant meets its terms and conditions, a Board can nonetheless withhold it from him for activities or conduct not material to the grant or withdrawal of the exemption. So to hold would make the Boards freewheeling agencies meting out their brand of justice in a vindictive manner. Once a person registers and qualifies for a statutory exemption, we find no legislative authority to deprive him of that exemption because of conduct or activities unrelated to the merits of granting or continuing that exemption. The Solicitor General confesses error on the use by Selective Service of delinquency proceedings for that purpose. We deal with conduct of a local Board that is basically lawless. It is no different in constitutional implications from a case where induction of an ordained minister or other clearly exempt person is ordered (a) to retaliate against the person because of his political views or (b) to bear down on him for his religious views or his racial attitudes or (c) to get him out of town so that the amorous interests of a Board member might be better served. Supra, at n. 2. 238 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. See Townsend v. Zimmerman, 237 F. 2d 376. In such instances, as in the present one, there is no exercise of discretion by a Board in evaluating evidence and in determining whether a claimed exemption is deserved. The case we decide today involves a clear departure by the Board from its statutory mandate. To hold that a person deprived of his statutory exemption in such a blatantly lawless manner must either be inducted and raise his protest through habeas corpus or defy induction and defend his refusal in a criminal prosecution is to construe the Act with unnecessary harshness. As the Solicitor General suggests, such literalness does violence to the clear mandate of § 6 (g) governing the exemption. Our construction leaves § 10(b)(3) unimpaired in the normal operations of the Act. No one, we believe, suggests that § 10 (b)(3) can sustain a literal reading. For while it purports on its face to suspend the writ of habeas corpus as a vehicle for reviewing a criminal conviction under the Act, everyone agrees that such was not its intent. Examples are legion where literalness in statutory language is out of harmony either with constitutional requirements, United States v. Rumely, 345 U. S. 41, or with an Act taken as an organic whole. Clark v. Uebersee Finanz-Korp., 332 U. S. 480, 488-489. We think § 10 (b)(3) and § 6 (g) are another illustration; and the Solicitor General agrees. Since the exemption granted divinity students is plain and unequivocal and in no way contested here,7 and since the scope of the statutory delinquency concept is not broad enough to sustain a revocation of what Congress has 7 We would have a somewhat different problem were the contest over, say, the quantum of evidence necessary to sustain a Board’s classification. Then we would not be able to say that it was plain on the record and on the face of the Act that an exemption had been granted and there would therefore be no clash between § 10 (b) (3) and another explicit provision of the Act. OESTEREICH v. SELECTIVE SERVICE BD. 239 233 Harlan, J., concurring in result. granted as a statutory right, or sufficiently buttressed by legislative standards, we conclude that pre-induction judicial review is not precluded in cases of this type. We accordingly reverse the judgment and remand the case to the District Court where petitioner must have the opportunity to prove the facts alleged and also to demonstrate that he meets the jurisdictional requirements of 28 U. S. C. § 1331. Reversed. Mr. Justice Harlan, concurring in the result. I concur in the holding that pre-induction review is available in this case, but I reach this conclusion by means of a somewhat different analysis from that contained in the opinion of my Brother Douglas. At the outset, I think it is important to state what this case does and does not involve. Petitioner does not contend that the Selective Service System has improperly resolved factual questions, or wrongfully exercised its discretion, or even that it has acted without any “basis in fact,” as that phrase is commonly used in this area of law. See Estep v. United States, 327 U. S. 114, 122-123 (1946); ante, at 238, n. 7. He asserts, rather, that the procedure pursuant to which he was reclassified and ordered to report for induction—a procedure plainly mandated by the System’s self-promulgated published regulations, 32 CFR, pt. 1642—is unlawful. Specifically, he asserts that the delinquency reclassification scheme is not authorized by any statute, that it is inconsistent with his statutory exemption as a ministerial student, 50 U. S. C. App. § 456 (g), and that, whether or not approved by Congress, the regulations are facially unconstitutional.1 1 Petitioner makes several other arguments which I do not find necessary to discuss. 240 OCTOBER TERM, 1968. Harlan, J., concurring in result. 393 U. S. The pivotal language of § 10 (b)(3), for present purposes, is the statute’s proscription of pre-induction judicial review “of the classification or processing of any registrant . . . .” I take the phrase “classification or processing” to encompass the numerous discretionary, factual, and mixed law-fact determinations which a Selective Service Board must make prior to issuing an order to report for induction. I do not understand that phrase to prohibit review of a claim, such as that made here by petitioner, that the very statutes or regulations which the Board administers are facially invalid. “Classification is the key to selection,” 32 CFR § 1622.1 (b), and among a local Board’s most important functions is “to decide, subject to appeal, the class in which each registrant shall be placed.” 32 CFR § 1622.1 (c). Classification is a highly individualized process, in which a Board must consider all pertinent information presented to it. Ibid. Thus, a Board may be required to determine, on a conflicting record, whether a registrant is conscientiously opposed to participation in war in any form, 32 CFR § 1622.14, or whether the registrant’s deferment “is in the national interest and of paramount importance to our national security . . . .” 32 CFR § 1622.20. A Board also exercises considerable discretion in the processing of registrants—for example, in securing information relevant to classification, 32 CFR §§ 1621.9-1621.15, scheduling of physical examinations, 32 CFR, pt. 1628, and scheduling and postponement of induction itself, 32 CFR, pt. 1632. Congress’ decision to defer judicial review of such decisions by the Selective Service Boards until after induction was, I believe, responsive to two major considerations. First, because these determinations are of an individualized and discretionary nature, a reviewing court must often examine Board records and other docu- OESTEREICH v. SELECTIVE SERVICE BD. 241 233 Harlan, J., concurring in result. mentary evidence, hear testimony, and resolve controversies on a sizable record. Even though the scope of judicial review is narrow, see Estep v. United States, supra, at 122-123, this cannot be done quickly. To stay induction pending such review would work havoc with the orderly processing of registrants into the Nation’s armed forces. See 113 Cong. Rec. 15426 (Senator Russell) ; cf. Estep v. United States, supra, at 137 (Mr. Justice Frankfurter, concurring in the result). Second, the registrant has been afforded, prior to his induction, the opportunity for a hearing and administrative appeals within the Selective Service System. 32 CFR, pts. 1624-1627. It is properly presumed that a registrant’s Board has fully considered all relevant information presented to it, and that it has classified and processed him regularly, and in accordance with the applicable statutes and regulations. Greer v. United States, 378 F. 2d 931 (1967); Storey n. United States, 370 F. 2d 255 (1966); cf. United States v. Chemical Foundation, 212 U. S. 1, 14-15 (1926); Chin Yow v. United States, 208 U. S. 8, 12 (1908); Martin v. Mott, 12 Wheat. 19 (1827). These factors are significantly altered where the registrant contends that the procedure employed by the Board is invalid on its face. First, such a claim does not invite the court to review the factual and discretionary decisions inherent in the “classification or processing’’ of registrants, and does not, therefore, present opportunity for protracted delay. To be sure, collateral factual determinations—for example, whether the registrant was subjected to the statute or regulation drawn in question (in this case, the delinquency reclassification procedure)—may sometimes be necessary. But, in general, a court may dispose of a challenge to the validity of the procedure on the plead- 242 OCTOBER TERM, 1968. Harlan, J., concurring in result. 393 U. S. ings. Insubstantial claims can usually be weeded out with dispatch.2 Second, a challenge to the validity of the administrative procedure itself not only renders irrelevant the presumption of regularity,3 but also presents an issue beyond the competence of the Selective Service Boards to hear and determine. Adjudication of the constitutionality of congressional enactments4 has generally been thought beyond the jurisdiction of administrative agencies. See Public Utilities Comm’n v. United States, 355 U. S. 534, 539 (1958); Engineers Public Service Co. v. SEC, 78 U. S. App. D. C. 199, 215-216, 138 F. 2d 936, 952-953 (1943), dismissed as moot, 332 U. S. 788. The Boards have no power to promulgate regulations, and are not expressly delegated any authority to pass on the validity of regulations or statutes. Such authority cannot readily be inferred, for the composition of the Boards, and their administrative procedures, render them wholly unsuitable forums for the adjudication of these matters: local and appeal Boards consist of part-time, uncompensated members, chosen ideally to be representative of the 2 Moreover, a court should be hesitant to grant a preliminary injunction staying induction except upon a strong showing that the registrant is likely to succeed on the merits. 3 A suggestive analogy may be found in the Court’s construction of the civil rights removal statute, 28 U. S. C. § 1443. Where state statutory procedure is valid on its face, it is presumed that the state courts will treat a defendant fairly, and removal is not permitted. Georgia v. Rachel, 384 U. S. 780, 803-804 (1966); Virginia v. Rives, 100 U. S. 313, 321-323 (1880). But, subject to qualifications not here pertinent, a defendant may remove the cause when the state statutory procedure is facially invalid: “When a statute of the State denies his right, or interposes a bar to his enforcing it, in the judicial tribunals, the presumption is fair that they will be controlled by it in their decisions . . . .” Id., at 321. See also Greenwood v. Peacock, 384 U. S. 808 (1966). 4 It may be noted that the Selective Service System urges that the delinquency reclassification provisions have been approved by Congress. Brief for the Respondents 71. OESTEREICH v. SELECTIVE SERVICE BD. 243 233 Harlan, J., concurring in result. registrants’ communities;5 the fact that a registrant may not be represented by counsel in Selective Service proceedings, 32 CFR § 1624.1 (b), seems incompatible with the Boards’ serious consideration of such purely legal claims. Indeed, the denial of counsel has been justified on the ground that the proceedings are nonjudicial. United States v. Sturgis, 342 F. 2d 328, 332 (1965), cert, denied, 382 U. S. 879; cf. United States v. Capehart, 141 F. Supp. 708, 719 (1956), aff’d, 237 F. 2d 388 (1956), cert, denied, 352 U. S. 971. To withhold pre-induction review in this case would thus deprive petitioner of his liberty without the prior opportunity to present to any competent forum—agency or court—his substantial claim that he was ordered inducted pursuant to an unlawful procedure. Such an interpretation of §10 (b)(3) would raise serious constitutional problems,6 and is not indicated by the stat- 5 See 32 CFR §§ 1603.3, 1604.22; Memorandum from General Hershey, S. Doc. No. 82, 89th Cong., 2d Sess., 4; Weekly Compilation of Presidential Documents, March 13, 1967, p. 395; Report of the National Advisory Commission on Selective Service 74-79 (1967). Although each local Board has assigned to it a part-time, uncompensated appeal agent—“whenever possible, a person with legal training and experience,” 32 CFR § 1604.71 (c)—his pertinent responsibilities to the Board are limited to assisting its members by “interpreting for them laws, regulations, and other directives,” 32 CFR § 1604.71 (d)(4), and he must be “equally diligent in protecting the interests of the Government and the rights of the registrant in all matters.” 32 CFR § 1604.71 (d)(5). 6 It is doubtful whether a person may be deprived of his personal liberty without the prior opportunity to be heard by some tribunal competent fully to adjudicate his claims. Cf. Kwong Hai Chew v. Colding, 344 U. S. 590, 596-598 (1953); Opp Cotton Mills, Inc. v. Administrator, 312 U. S. 126, 152-153 (1941); United States v. Illinois Central R. Co., 291 U. S. 457, 463 (1934); Londoner v. City and County of Denver, 210 U. S. 373, 385 (1908); Dixon v. Alabama State Board of Education, 294 F. 2d 150 (1961). But cf. Ewing v. Mytinger & Casselberry, Inc., 339 U. S. 594 (1950); Bowles v. Willingham, 321 U. S. 503, 520 (1944); North American 320-583 0 - 69 - 24 244 OCTOBER TERM, 1968. Harlan, J., concurring in result. 393 U. S. ute’s history,7 language, or purpose. On the foregoing basis I agree that §10 (b)(3) does not forbid preinduction review in this instance. Cold Storage Co. v. Chicago, 211 U. S. 306 (1908). The validity of summary administrative deprivation of liberty without a full hearing may turn on the availability of a prompt subsequent hearing, cf. U. S. Const., Arndt. VI; United States v. Ewell, 383 U. S. 116, 120 (1966); Freedman v. Maryland, 380 U. S. 51 (1965)—something not made meaningfully available to petitioner here, either by the option of defending a criminal prosecution for refusing to report for induction, see Ex parte Young, 209 U. S. 123 (1908); Oklahoma Operating Co. v. Love, 252 U. S. 331 (1920); cf. Reisman v. Caplin, 375 U. S. 440 (1964), or by filing a petition for a writ of habeas corpus after induction. See ante, at 235-236; Estep v. United States, supra, at 129-130 (concurring opinion of Mr. Justice Murphy). The problem is exacerbated by petitioner’s nonfrivolous argument that induction pursuant to the delinquency reclassification procedure constitutes “punishment” for violation of collateral regulations, without jury trial, right to counsel, and other constitutional requisites. See Kennedy v. Mendoza-Martinez, 372 U. S. 144, 168-169 (1963). It is not necessary to decide this issue. If petitioner’s claim is valid, however, then postponement of a hearing until after induction is tantamount to permitting the imposition of summary punishment, followed by loss of liberty, without possibility of bail, until such time as the petitioner is able to secure his release by a writ of habeas corpus. This would, at the very least, cut against the grain of much that is fundamental to our constitutional tradition. Cf. Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1380-1383 (1953). 7 The salient parts of the statute’s sparse legislative history are set out in my Brother Stewart’s dissenting opinion, post, at 247-248. Both the House and Senate committees were “disturbed by the apparent inclination of some courts to review the classification action of local or appeal Boards before the registrant had exhausted his administrative remedies.” H. R. Rep. No. 267, 90th Cong., 1st Sess., 30 (1967); S. Rep. No. 209, 90th Cong., 1st Sess., 10 (1967). As I have discussed in the preceding text, the Boards can provide no remedy for a registrant’s claim that the regulations or statutes are themselves invalid. (This is not to say that a registrant making such a claim may come into court before he has exhausted his administrative appeals, for the System may decide in his favor on other OESTEREICH v. SELECTIVE SERVICE BD. 245 233 Stewart, J., dissenting. Because both the District Court and the Court of Appeals passed on the merits of petitioner’s challenge to the delinquency reclassification regulations, this issue is ripe for our consideration. Whatever validity the procedure may have under other circumstances, I agree that the delinquency reclassification of petitioner for failure to possess his registration certificate is inconsistent with petitioner’s conceded statutory exemption as a student of the ministry. Mr. Justice Stewart, with whom Mr. Justice Brennan and Mr. Justice White join, dissenting. It is clear that in enacting § 10 (b) (3) of the Military Selective Service Act of 1967,1 Congress intended to * grounds, obviating the need for further review. Cf. my dissent in Public Utilities Comm’n v. United States, supra, at 549-550; Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U. S. 752, 772 (1947). Petitioner here has exhausted available remedies. Appendix 4.) Section 10 (b)(3) was likely precipitated by the Second Circuit’s well-publicized decision in Wolff v. Selective Service Bd., 372 F. 2d 817 (1967). See dissenting opinion of Mr. Justice Stewart, post, at 247; Brief for Respondent 18, n. 4, 69, n. 32. Wolff, as well as the other “recent eases” to which the committee reports probably referred, and this Court’s decisions construing the antecedent to §10 (b)(3), all involved claims that the Selective Service Boards had maladministered or misapplied the applicable statutes or regulations, and not challenges to the validity of the laws themselves. Wolff v. Selective Service Bd., supra (loss of deferment for participating in demonstration); Townsend v. Zimmerman, 237 F. 2d 376 (1956) (failure to follow proper appeal procedure); Schwartz v. Strauss, 206 F. 2d 767 (1953) (concurring opinion) (misclassification) ; Ex parte Fabiani, 105 F. Supp. 139 (1952) (refusal to recognize foreign medical school for deferment); Tomlinson v. Hershey, 95 F. Supp. 72 (1949) (refusal to hear request for deferment); Estep v. United States, supra (entitlement to ministerial exemption); Falbo v. United States, 320 U. S. 549 (1944) (entitlement to conscientious objector status). 1 50 U. S. C. App. §460 (b)(3) (1964 ed., Supp. III). The Act amends and supersedes the Universal Military Training and Service Act. 246 OCTOBER TERM, 1968. Stewart, J., dissenting. 393 U. S. specify the exclusive methods by which the determinations of Selective Service Boards may be judicially reviewed. Since under the terms of that provision the present suit is plainly premature, I would affirm the judgment of the Court of Appeals. Section 10 (b) (3) provides in pertinent part as follows: “No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under section 12 of this title, after the registrant has responded either affirmatively or negatively to an order to report for induction . . . It is unquestioned that the overriding purpose of this provision was “to prevent litigious interruptions of procedures to provide necessary military manpower.” 2 To be sure, the provision is somewhat inartistically drawn, but its background and legislative history clearly resolve whatever difficulties might otherwise be presented by the imprecision of the draftsman’s language. In interpreting the less explicit terms of predecessor statutes,3 this Court had established the general rule that draft classifications could not be judicially reviewed prior to the time a registrant was to be inducted. Review was held to be proper only when challenges to such determinations were raised either (1) in defense to a criminal prosecution following a refusal to be inducted, or (2) in habeas corpus proceedings initiated after induc- 2113 Cong. Rec. 15426 (1967) (Senator Russell). 3 See § 10 (a) (2) of the Selective Training and Service Act of 1940, 54 Stat. 893: “[B]ecisions of . . . local boards shall be final except where an [administrative] appeal is authorized . . . .” See also Estep v. United States, 327 U. S. 114, 119, 123-125. OESTEREICH v. SELECTIVE SERVICE BD. 247 233 Stewart, J., dissenting. tion. See Witmer v. United States, 348 U. S. 375, 377; Estep v. United States, 327 U. S. 114; Billings v. Truesdell, 321 U. S. 542; Falbo v. United States, 320 U. S. 549. Occasionally, however, other federal courts had allowed exceptions to this rule.4 Section 10(b)(3) was proposed and enacted shortly after the Court of Appeals for the Second Circuit had, in the well-publicized case of Wolff v. Selective Service Bd., 372 F. 2d 817, permitted just such an exception.5 In adopting the section Congress specifically disapproved those decisions that had deviated from the rule against pre-induction review, and made explicit its absolute commitment against premature judicial interference with the orderly processing of registrants. The Senate Armed Services Committee put the matter this way: “Until recently, there was no problem in the observance of the finality provision. In several recent cases, however, district courts have been brought into selective service processing prematurely. The committee attaches much importance to the finality provisions and reemphasizes the original intent that judicial review of classifications should not occur until after the registrant’s administrative remedies have been exhausted and the registrant presents himself for induction.” 6 A similar statement of intent was included in the report of the House Armed Services Committee: “The committee was disturbed by the apparent inclination of some courts to review the classification 4 See Townsend v. Zimmerman, 237 F. 2d 376; Schwartz v. Strauss, 206 F. 2d 767 (concurring opinion); Ex parte Fabiani, 105 F. Supp. 139; Tomlinson v. Hershey, 95 F. Supp. 72. 5 In Wolff the court allowed pre-induction review of the reclassification of two students who had demonstrated against the hostilities in Vietnam. 6 S. Rep. No. 209, 90th Cong., 1st Sess., 10 (1967). 248 OCTOBER TERM, 1968. Stewart, J., dissenting. 393 U.S. action of local or appeal boards before the registrant had exhausted his administrative remedies. Existing law quite clearly precludes such a judicial review until after a registrant has been ordered to report for induction and has responded either affirmatively or negatively to such an order. In view of this inclination of the courts to prematurely inquire into the classification action of local boards, the committee has rewritten this provision of the law so as to more clearly enunciate this principle. The committee was prompted to take this action since continued disregard of this principle of the law by various courts could seriously affect the administration of the Selective Service System.” 7 Although the language of § 10 (b)(3) contains no explicit reference to habeas corpus as a remedy for inductees seeking to challenge their classifications, that remedy was plainly recognized and approved by Congress. The section provides for review “after the registrant has responded either affirmatively or negatively to an order to report for induction . . . .” (Emphasis added.) The remedy for one who responds affirmatively cannot, of course, be by way of “defense to a criminal prosecution” for refusing to be inducted; the only remedy in such a case is habeas corpus, and the Senate Committee Report made quite clear Congress’ understanding in this regard: “A registrant who presents himself for induction may challenge his classification by seeking a writ of habeas corpus after his induction. If the registrant does not submit to induction, he may raise as a defense to a criminal prosecution the issue of the legality of the classification.” 8 7 H. R. Rep. No. 267, 90th Cong., 1st Sess., 30-31 (1967). 8 S. Rep. No. 209, supra, at 10. OESTEREICH v. SELECTIVE SERVICE BD. 249 233 Stewart, J., dissenting. Thus there can be no doubt that §10 (b)(3) was designed to permit judicial review of draft classifications only in connection with criminal prosecutions or habeas corpus proceedings. Today, however, the Court holds that § 10 (b)(3) does not mean what it says in a case like this, where it is “plain on the record and on the face of the Act that an exemption ha[s] been granted.” 9 In such a case, it is said, there is a “clash” between the exemption and the provisions of § 10 (b)(3). With all respect, I am simply unable to perceive any “clash” whatsoever. Exemptions from service are substantive, while §10 (b)(3) is purely procedural, specifying when substantive rights may be asserted. How the Court can conclude that the provisions of § 10 (b)(3) somehow do “violence to” the divinity student exemption is a mystery to me.10 9 The Court seems to Emit its holding to statutory “exemptions”; yet “deferments” may just as “plainly” preclude a registrant’s induction. See, e. g., 50 U. S. C. App. §456 (h)(1) (1964 ed., Supp. Ill); 32 CFR § 1622.25 (1968) (full-time college students). 10 A different ground for permitting review in the present case is set out in the separate opinion of my Brother Harlan. His opinion is founded on the proposition that constitutional problems would be presented by a system that “deprive [d] petitioner of his liberty without the prior opportunity to present to any competent forum—agency or court—his substantial claim that he was ordered inducted pursuant to an unlawful procedure.” Mr. Justice Harlan seeks to avoid such difficulties by viewing § 10 (b) (3) as intended to prohibit, not all delays in the processing of registrants, but merely those protracted delays that result from judicial consideration of factual claims. As the absence of any exception in its terms indicates, however, § 10 (b) (3) plainly was intended to prevent any interruption whatever of the orderly processing of registrants. There is not a glimmer of evidence in the section’s legislative history that Congress intended to prevent some sorts of delay but not others. Moreover, it is difficult to reconcile the distinction Mr. Justice Harlan seeks to draw—between claims “that the procedure employed by the Board 250 OCTOBER TERM, 1968. Stewart, J., dissenting. 393 U. S. The only other reason the Court offers for its casual disregard of § 10 (b)(3) is the suggestion that obedience to the statute would lead to “unnecessary harshness.” But if the statute is constitutional, we have no power to disregard it simply because we think it is harsh. That is a judgment for Congress, not for us. And the Court does not question the law’s constitutionality.11 To the * is invalid on its face” and challenges to a Board’s factual determinations—with his recognition that the enactment of § 10 (b)(3) was in substantial part a congressional reaction to the Second Circuit’s decision in Wolff v. Selective Service Bd., 372 F. 2d 817. Wolff involved no factual dispute whatsoever; rather, that decision held that, on the basis of admitted facts, the “delinquency” reclassification of the registrants there involved had been entirely unauthorized under both the statute and the applicable regulations. Nor can I view the constitutional theory suggested by my Brother Harlan as presenting a justifiable ground for decision. It is noteworthy, first of all, that no such theory has ever been advanced by the petitioner. Furthermore, persons arrested for criminal offenses are routinely deprived of their liberty—to a greater extent than are military inductees—without any prior opportunity for the adjudication of legal or constitutional claims, and often without any hope of securing release on bail. Preliminary hearings before magistrates, by and large, determine only the existence of a prima facie case for the prosecution, and do not begin to reach defenses that might be raised, whether factual, legal, or constitutional. Nor does § 10 (b) (3) necessarily compel deprivation of liberty. A registrant in the petitioner’s position is free to refuse induction, keeping open the option of raising his claims should a criminal prosecution be brought against him. And it is entirely possible, of course—and more than likely in the petitioner’s case—that no such prosecution will ever be instituted. 11 The petitioner suggests that where the action of a draft board is challenged as a violation of freedom of speech, the postponement of judicial review until after the scheduled time of induction might have a “chilling effect” upon First Amendment activity. But petitioner’s complaint presents no bona fide First Amendment issue. His alleged return of his registration certificate to the Government would not be protected expression. United States v. O’Brien, 391 U. S. 367. OESTEREICH v. SELECTIVE SERVICE BD. 251 233 Stewart, J., dissenting. contrary, the constitutionality of § 10 (b)(3) is upheld this very day in Clark v. Gabriel, post, p. 256, in reaffirmation of several previous decisions in which this Court has enunciated and applied the rule against preinduction review of Selective Service determinations.12 The Court states that its “construction leaves § 10 (b)(3) unimpaired in the normal operations of the Act.” The implication seems to be that the present case is somehow exceptional. But the Court has carved out an “exception” to § 10 (b)(3) in exactly the kind of case where, in terms of the interests at stake, an exception seems least justified. The registrant with a clear statutory exemption is precisely the one least jeopardized by the procedural limitations of § 10 (b)(3). For, as the Government has acknowledged, “the Department of Justice would not prosecute [such a registrant] if he refuses to be inducted, and would promptly confess error if he submits to induction and brings a habeas corpus action.” 13 It is upon those registrants, rather, whose rights are not so clear that the burden of § 10 (b)(3) most harshly falls. For it is they who must choose whether to run the serious risk of a criminal prosecution or submit to 12 In Falbo v. United States, 320 U. S. 549, 550, for instance, a registrant who had not reported for induction sought review of his classification, claiming—as the petitioner claims here—“that he was entitled to a statutory exemption from all forms of national service . . . In refusing to permit judicial review, the Court, through Mr. Justice Black, stated: “Even if there were, as the petitioner argues, a constitutional requirement that judicial review must be available to test the validity of the decision of the local board, it is certain that Congress was not required to provide for judicial intervention before final acceptance of an individual for national service.” Id., at 554. See also Witmer v. United States, 348 U. S. 375, 377; Estep v. United States, 327 U. S. 114; Billings v. Truesdell, 321 U. S. 542. 13 Brief for Respondents 70, n. 33. 252 OCTOBER TERM, 1968. 393 U.S. Stewart, J., dissenting. induction with the uncertain hope of prevailing in a habeas corpus proceeding. Yet the Court has made plain today in Clark v. Gabriel, supra, that a registrant whose exemption from service is not clear will under § 10 (b) (3) be put to just such a fateful choice. In light of Gabriel, the allowance of pre-induction review in the present case thus stands as all the more irrational and unjustified. I respectfully dissent. JOHNSON V. BENNETT. 253 Per Curiam. JOHNSON v. BENNETT, WARDEN. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT. No. 32. Argued November 13-14, 1968.—Decided December 16, 1968. At petitioner’s trial for murder in 1934, several witnesses testified that petitioner was in another city when the crime was committed. In accordance with Iowa law, the trial judge instructed the jury that the defendant had the burden of proof on an alibi defense. Petitioner was convicted, and his conviction was upheld by the Iowa Supreme Court. Contending that it violated the Due Process Clause of the Fourteenth Amendment to place on him the burden of proving an alibi defense, petitioner sought a writ of habeas corpus. The District Court denied the writ, and the Court of Appeals affirmed. After this Court granted certiorari, the Court of Appeals, sitting en banc in another case, held that to place on the defendant the burden of proving an alibi defense violated due process. Held: This case is vacated and remanded for reconsideration in the light of that holding. 386 F. 2d 677, vacated and remanded. Ronald L. Carlson argued the cause and filed briefs for petitioner. William A. Claerhout, Assistant Attorney General of Iowa, argued the cause for respondent. With him on the brief was Richard C. Turner, Attorney General. Per Curiam. In 1934, petitioner was indicted for murdering a policeman in Burlington, Iowa. Petitioner claimed that he was innocent and that he had not been present at the scene of the crime. At the trial, several witnesses testified that petitioner had been in Des Moines, 165 miles away from Burlington, on the day that the crime was committed. The trial judge instructed the jury that for the petitioner to be entitled to an acquittal on the ground 254 OCTOBER TERM, 1968. Per Curiam. 393 U.S. that he was not present at the scene of the crime, the petitioner must have shown by a preponderance of the evidence that he was not present.1 The jury found petitioner guilty of second-degree murder, and petitioner was sentenced to life imprisonment. His conviction was affirmed by the Iowa Supreme Court. State v. Johnson, 221 Iowa 8, 264 N. W. 596 (1936).1 2 In this habeas corpus proceeding, petitioner argued, among other points, that the State had denied him due process of law by placing on him the burden of proving the alibi defense. The United States District Court for the Southern District of Iowa rejected this argument and denied the petition. The United States Court of Appeals for the Eighth Circuit affirmed. 386 F. 2d 677 (1967). We granted certiorari to consider the constitutionality of the alibi instruction, along with other issues. 390 U. S. 1002 (1968).3 After we granted certiorari, the 1 The instruction was as follows: “The burden is upon the defendant to prove [the] defense [of alibi] by a preponderance of the evidence, that is, by the greater weight or superior evidence. The defense of alibi to be entitled to be considered as established must show that at the very time of the commission of the crime the accused was at another place so far away, or under such circumstances that he could not with ordinary exertion have reached the place where the crime was committed so as to have committed the same. If by a preponderance of the evidence the defendant has so shown, the defense must be considered established and the defendant would be entitled to an acquittal. But if the proof of alibi has failed so to show, you will not consider it established or proved. The evidence upon that point is to be considered by the jury, and if upon the whole case including the evidence of an alibi, there is a reasonable doubt of defendant’s guilt, you should acquit him.” 2 See also State v. Johnson, 221 Iowa 8, 21, 267 N. W. 91 (1936), in which the Iowa Supreme Court corrected certain errors made in its original opinion. 3 The other issues were whether the State had suppressed evidence favorable to petitioner and intentionally used false evidence at petitioner’s trial, in violation of the Fourteenth Amendment. 255 JOHNSON V. BENNETT. 253 Per Curiam. Court of Appeals for the Eighth Circuit, sitting en banc, held in another case that the Iowa rule shifting to the defendant the burden of proving an alibi defense violates the Due Process Clause of the Fourteenth Amendment. Stump v. Bennett, 398 F. 2d 111 (1968).4 In view of that holding, we vacate the decision in this case and remand to that court for reconsideration.5 Mr. Justice Black dissents. 4 The instruction in Stump was similar to the one in the present case. The Court of Appeals rejected the State’s contention that any error was harmless because the jury was also instructed that the State had the burden of proving “the crime as a whole” beyond a reasonable doubt. The court pointed out that, in view of the instruction’s inconsistency, reasonable minds could infer that the defendant retained the burden of proving nonpresence. 398 F. 2d, at 116, 121-122. 5 In Stump, the Court of Appeals said: “[W]e are not directly faced with issues of retroactivity. We recognize that a panel of this court in Johnson v. Bennett, also a habeas corpus proceeding by an Iowa state prisoner, refused relief as to a number of matters, including the alibi instruction. The Johnson case concededly has some factual distinctions from the present one. Also significant is the fact that in the Stump case, unlike Johnson, counsel has carefully preserved by objections throughout the trial and appellate procedures his argument as to the unconstitutionality of the instruction.” (Citations omitted.) 398 F. 2d, at 122-123. We express no opinion as to the validity of the distinctions suggested by the Court of Appeals. Instead, we deem it appropriate to remand to that court for a definite ruling on the issue. 256 OCTOBER TERM, 1968. 393 U. S. Per Curiam. CLARK, ATTORNEY GENERAL, et al. v. GABRIEL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA. No. 572. Decided December 16, 1968. Appellee’s draft Board rejected his claim to classification as a conscientious objector and classified him I-A. His administrative appeals were unsuccessful and, after he was ordered to report for induction, he filed suit in the District Court to enjoin his induction and to have the rejection of his conscientious objector claim declared improper. The District Court entered a preliminary injunction preventing induction until a determination of the claim on the merits. That court held that § 10 (b) (3) of the Military Selective Service Act of 1967, which provides that there shall be no pre-induction judicial review “of the classification or processing of any registrant,” if applied to bar pre-induction review of appellee’s classification, was unconstitutional. Held: The draft Board had exercised its statutory discretion, evaluating the evidence in appellee’s individual case, and had rejected his claim. Congress may constitutionally require that a registrant’s challenges to such decisions be deferred until after induction, when the remedy of habeas corpus would be available, or until defense of a criminal prosecution, should he refuse to submit to induction. See Oestereich v. Selective Service Bd., ante, p. 233. 287 F. Supp. 369, reversed and remanded. Solicitor General Griswold, Assistant Attorney General Weisl, Morton Hollander, and Robert V. Zener for appellants. Norman Leonard for appellee. Per Curiam. Appellee’s draft Board rejected his claim to classification as a conscientious objector and classified him I-A. His appeals within the Selective Service System were unsuccessful. After he was ordered to report for induction he brought an action in the United States District CLARK V. GABRIEL. 257 256 Per Curiam. Court for the Northern District of California seeking to have his induction enjoined and to have the rejection of his claim to conscientious objector classification declared improper on the grounds that it had no basis in fact, that the Board had misapplied the statutory definition of conscientious objector, and that the members of the Board were improperly motivated by hostility and bias against those who claim to be conscientious objectors. The District Court entered a preliminary injunction preventing appellee’s induction until after a determination of his claim on the merits. In entering the preliminary injunction, the District Court held that it had jurisdiction to hear appellee’s claim despite § 10 (b)(3) of the Military Selective Service Act of 1967, 50 U. S. C. App. § 460 (b)(3) (1964 ed., Supp. Ill), which provides: “No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under section 12 of this title, after the registrant has responded either affirmatively or negatively to an order to report for induction, or for civilian work in the case of a registrant determined to be opposed to participation in war in any form: Provided, That such review shall go to the question of the jurisdiction herein reserved to local boards, appeal boards, and the President only when there is no basis in fact for the classification assigned to such registrant.” Acknowledging that this statute if applicable would prevent pre-induction review of appellee’s classification, the District Court held that, so applied, § 10 (b)(3) was unconstitutional because to provide for judicial consideration of the lawfulness of the Board’s action only as a defense to a criminal prosecution would require that appellee pursue a “tortuous judicial adventure” so beset by “hazards” 258 OCTOBER TERM, 1968. Per Curiam. 393 U. S. and “penalties” as to result “in no review at all.” The Government has appealed under 28 U. S. C. § 1252 which allows direct appeal to this Court of “an interlocutory or final judgment, decree or order of any court of the United States . . . holding an Act of Congress unconstitutional in any civil action ... to which the United States ... or any officer . . . thereof ... is a party.” This Court has today, after full consideration, decided Oestereich v. Selective Service Bd., ante, p. 233. Because the result here is dictated by the principles enunciated in that case, it is appropriate to decide this case summarily, reversing the District Court. In Oestereich the delinquency procedure by which the registrant was reclassified was without statutory basis and in conflict with petitioner’s rights explicitly established by the statute and not dependent upon an act of judgment by the Board. Oestereich, as a divinity student, was by statute unconditionally entitled to exemption. Here, by contrast, there is no doubt of the Board’s statutory authority to take action which appellee challenges, and that action inescapably involves a determination of fact and an exercise of judgment. By statute, classification as a conscientious objector is expressly conditioned on the registrant’s claim being “sustained by the local board.” 50 U. S. C. App. § 456 (j) (1964 ed., Supp. III). Here the Board has exercised its statutory discretion to pass on a particular request for classification, “evaluating evidence and . . . determining whether a claimed exemption is deserved.” Oestereich v. Selective Service Bd., supra, at 238. A Local Board must make such a decision in respect of each of the many classification claims presented to it. To allow pre-induction judicial review of such determinations would be to permit precisely the kind of “litigious interruptions of procedures to provide necessary military manpower” (113 Cong. Rec. 15426 (report by Senator Russell on Conference Committee ac- CLARK V. GABRIEL. 259 256 Douglas, J., concurring. tion)) which Congress sought to prevent when it enacted §10 (b)(3). We find no constitutional objection to Congress’ thus requiring that assertion of a conscientious objector’s claims such as those advanced by appellee be deferred until after induction, if that is the course he chooses, whereupon habeas corpus would be an available remedy, or until defense of the criminal prosecution which would follow should he press his objections to his classification to the point of refusing to submit to induction. Estep v. United States, 327 U. S. 114 (1946); Falbo v. United States, 320 U. S. 549 (1944). The motion of appellee for leave to proceed in forma pauperis is granted. The decision of the District Court is reversed, and the case remanded for issuance of an order dissolving the preliminary injunction and dismissing the action. Mr. Justice Brennan, Mr. Justice Stewart, and Mr. Justice White concur in the judgment of the Court for the reasons stated in Mr. Justice Stewart’s dissenting opinion in 0estereich v. Selective Service Bd., ante, p. 245, decided today. Mr. Justice Black would note probable jurisdiction and set the case down for argument. Mr. Justice Douglas, concurring. The evidence in this case, which I have set forth in an Appendix, makes plain, as the Court states, that the question whether the registrant should be classified as a conscientious objector turns on the weight and credibility of the testimony. I therefore agree that § 10 (b)(3) of the Military Selective Service Act of 1967 precludes review of the action of the Board at this pre-induction stage. 320-583 0 - 69 - 25 260 OCTOBER TERM, 1968. Appendix to opinion of Douglas, J., concurring. 393 U. S. I would take a different view if this were a case where a registrant was moved from a CO (conscientious objector) classification to I-A because he made a speech, unpopular with the Board. This would also be a different case if the registrant were a member of an institutionalized group,1 such as the Quakers, whose opposition to war was well known and the registrant, though perhaps unpopular with the Board, was a bona fide member of the group. Then, too, a Board would act in a lawless way 1 2 if it moved a registrant from a CO classification to I-A and disregarding all the evidence denied him a CO classification. But in my view it takes the extreme case where the Board can be said to flout the law, as it did in Oestereich v. Selective Service Bd., ante, p. 233, to warrant preinduction review of its actions. APPENDIX TO OPINION OF DOUGLAS, J, CONCURRING. Charles Gabriel is 23 years old, son of a white father and Negro mother. He graduated from Berkeley High School, attended San Francisco State College for two years before being dropped; for the following year he tried to regain entrance to that College by attending its “Extension School”; but when he was denied re-admission, he spent the next year at a City College from which he graduated. He registered with the Selective Service in 1963 at the age of 18. Two years later, at the age of 20, he applied for CO status. He was denied reclassifi 1 Membership in a religious group is not, of course, the sole means of getting classification as a conscientious objector, as the exemption extends to anyone who has those conscientious objections, even though he is not associated with others. See United States v. Seeger, 380 U. S. 163, 172-173. 2 See White, Processing Conscientious Objector Claims: A Constitutional Inquiry, 56 Calif. L. Rev. 652, 660-667 (1968). CLARK V. GABRIEL. 261 256 Appendix to opinion of Douglas, J., concurring. cation, and his three requests for a “personal appearance” before the board over a nine-month period were disregarded. Finally, he was given an opportunity for a personal appearance after he complained to the State Headquarters. He was denied reclassification. (A) Gabriel’s Letter oj August 13, 1965. In 1965, after he obtained a copy of Form 150 by which a registrant files for conscientious objector status, Gabriel filled out the form and sent his local draft board an accompanying letter explaining his conscientious convictions: “As a Negro I firmly believe the United States Government has willfully let the Negro be deprived of his rights therefore the debt of forced service claimed arbitrarily from all eligible men for the purpose of fighting for the United States rights is in the Negroes case void. Because he has not been given the rights the United States fights for on its citizens behalf. “My beliefs are superior to my human relations with the U. S. government and duties coming out of my beliefs are superior to duties stolen from me by the U. S. government. “I have voiced my opinions and beliefs freely. In Berkeley H. S. in class in fall 1962 during the Cuban crisis I made a speech against U. S. action in Cuba otherwise I haven’t bothered to record all the times I said what I thought. “[listing activities]: active CORE member (1961-2) March on Wash DC 1963; Demonstrated against HU AC in Wash. D.C. 1959 I was in and helped organize the Freedom Week Play in Berkeley H. S. 1963. Demonstrated in 1960 in support of sit-ins against southern Wolworth Stores. 262 OCTOBER TERM, 1968. Appendix to opinion of Douglas, J., concurring. 393 U. S. “All through my life I have been in contact with people who did not believe in war or killing; who believed the U.S. government and system was unjust. My parents their friends, my friends, numerous books by liberal or leftist writers . . . have been things that make me what I am.” (B) Gabriel's Official Summary of his Personal Appearance. After his personal appearance, Gabriel filed a copy of his summary of the hearing, as provided by Selective Service regulations. “This is a summary of my personal appearance before you on Thursday, May 19, 1966. . . . The youngest, forty to forty-five years old was fairly friendly during the meeting; the oldest seemed neutral; the other three seemed fairly unfriendly. . . . The oldest man referred to my letters as ‘very pointed, belligerent.’ I said, jokingly, that I wrote the letters with the help of Ben Seaver and Alex Sliszka and they should share the blame. Then there was an unfriendly comment about Sliszka and Seaver. The youngest man read my statement that said I was a Negro and didn’t think I had my rights. He asked if this wasn’t the basis of most of my case. I said, ‘No. It was only part of it.’. . . Then one man asked me if I was trying to ‘beat the game.’ ... I said that there were easier ways to avoid the draft and gave some examples. . . . The man who asked me to reread my written statement said, i. e. wasn’t that answer subversive. I said ‘maybe so but I believe I’m right.’ . . . The oldest man asked me if I’d fought in high school. I answered, ‘No’ and he said, ‘You must have been a real good boy.’ He then asked me between two and four times to ‘eradicate’ the thought from my mind that I had gotten unfair treatment from the local board.” CLARK v. GABRIEL. 263 256 Appendix to opinion of Douglas, J., concurring. (C) Department of Justice Resume. After being denied CO status, Gabriel appealed. And as is customary in such appeals, the Justice Department conducted an investigation into the sincerity of his beliefs. The following is a resume of the investigating officer’s report. “A representative of Berkeley High School . . . stated that he was a ‘quiet rebel’ but was mature for his age. . . . Another representative at Berkeley High School stated that . . . she recalls that he demonstrated a high regard for the individual . . . and was extremely conscious of the role in society of the American Negro. It was advised that the registrant’s mother . . . and step-father have been politically active in such organizations as the Congress for Racial Equality. ... A representative of the Buildings and Grounds Department, San Francisco State College, advised that the registrant . . . had a reputation of being involved in any movement which has doings with antiwar demonstrations or activities. This representative stated that he never actually witnessed the registrant in these activities but it is general knowledge among employees around the campus. . . . An official of the Magic Theatre, San Francisco, California advised that . . . the registrant is against war and against military service. It was further stated that the registrant has discussed the Vietnam war and considers it unjust. . . . One person interviewed in San Francisco, California advised that she has resided here in an apartment building for the last four or five years. She stated as she recalls, a young Negro male resided with a young woman in an apartment in this building about a year ago. She believes this individual may have been the registrant. ... A reference stated that he has known 264 OCTOBER TERM, 1968. Appendix to opinion of Douglas, J., concurring. 393 U. S. the registrant since about 1963 . . . when they both were students at San Francisco State College. . . . He further stated that the registrant could well be a communist, however, they have never discussed this. He advised that he is aware that the registrant’s mother and father are very much against war and they are active in movements which are against war. He further stated that the registrant is also active in these movements and organizations, however, he did not know the names of these organizations. It was also stated that the registrant has mentioned that he is active in anti-war groups and he believes he has participated in anti-war marches. . . . Another reference stated . . . that when [the registrant] went to report for his armed forces physical examination he observed an anti-draft demonstration occurring in front of the physical facilities and felt compelled to take part in the demonstration, which he did.” (D) Department of Justice Recommendation. After conducting its investigation, the Department of Justice filed a “recommendation” with the local board, suggesting that Gabriel be denied CO status: “He said that he is definitely not a communist. . . . The registrant advised that he is, and has been, consistently nonviolent, and that he has never been a member of any aggressive anti-war demonstrations. He said that, although he was a member of the Vietnam Day Committee and the War Resistance League, and has participated in peace marches, he has always participated in a passive or peaceful manner.” DECISIONS PER CURIAM. 265 393 U. S. December 16, 1968. HOUSEHOLD GOODS CARRIERS’ BUREAU et al. v. UNITED STATES et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA. No. 615. Decided December 16, 1968. 288 F. Supp. 641, affirmed. Homer S. Carpenter for appellants. Alan F. Wohlstetter for Household Goods Forwarders Association of America, Inc., et al., intervening defendants below. Solicitor General Griswold, Assistant Attorney General Zimmerman, Robert W. Ginnane, and Betty Jo Christian for the United States et al. Per Curiam. The motions to affirm are granted and the judgment is affirmed. OGLE v. HEIM, AUDITOR-CONTROLLER OF COUNTY OF ORANGE. APPEAL FROM THE SUPREME COURT OF CALIFORNIA. No. 617. Decided December 16, 1968. 69 Cal. 2d 7, 442 P. 2d 659, appeal dismissed. Eric A. Rose for appellant. Robert F. Nuttman for appellee. Per Curiam. The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. 266 OCTOBER TERM, 1968. December 16, 1968. 393 U.S. WILSON ET AL. v. KELLEY, CORRECTIONS DIRECTOR, et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA. No. 561. Decided December 16, 1968. Affirmed. Charles Morgan, Jr., Reber F. Boult, Jr., Howard Moore, Jr., P. Walter Jones, Arthur Kinoy, Melvin L. Wulf, and Martin Garbus for appellants. Arthur K. Bolton, Attorney General of Georgia, Harold N. Hill, Jr., Executive Assistant Attorney General, Marion O. Gordon, Mathew Robins, and W. Wheeler Bryan, Assistant Attorneys General, and Don L. Hartman, Deputy Assistant Attorney General, for appellees. Per Curiam. The motion to affirm is granted and the judgment is affirmed. Mr. Justice Douglas and Mr. Justice White are of the opinion that probable jurisdiction should be noted. DECISIONS PER CURIAM. 267 393 U. S. December 16, 1968. STANDARD OIL CO. OF CALIFORNIA v. CITY OF LOS ANGELES et al. APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT. No. 609. Decided December 16, 1968. 262 Cal. App. 2d 118, 68 Cal. Rptr. 512, appeal dismissed. Francis R. Kirkham, Francis N. Marshall, and Marcus Mattson for appellant. Roger Arnebergh, Gilmore Tillman, Henry E. Kappler, and Ellis J. Horvitz for appellees. Per Curiam. The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. 268 OCTOBER TERM, 1968. Syllabus. 393 U.S. THORPE v. HOUSING AUTHORITY OF THE CITY OF DURHAM. CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA. No. 20. Argued October 23, 1968.—Decided January 13, 1969. Petitioner had a month-to-month tenancy in a federally assisted public housing project operated by respondent, the lease providing for termination by either party on 15 days’ notice. She received a lease cancellation notice, with no reasons being given, the day after being elected president of a tenants’ organization. Petitioner, who fruitlessly tried to determine why she was being evicted, refused to vacate. Respondent brought an eviction action, and the State Supreme Court affirmed the lower court’s eviction order which held that the reasons for cancellation were immaterial, notwithstanding petitioner’s contention that she was being evicted because of her organizational activities in violation of her First Amendment rights. This Court granted certiorari. Thereafter, on February 7, 1967, the Department of Housing and Urban Development (HUD) issued a circular requiring local housing authorities to give tenants the reasons for eviction and to afford them an opportunity for explanation or reply. Following this Court’s remand for further proceedings in the light of the HUD circular (386 U. S. 670), the State Supreme Court upheld petitioner’s eviction on the ground that the parties’ rights had “matured” before issuance of the circular, which the court held applied only prospectively. The court stayed execution of its judgment pending this Court’s decision. Respondent urges that the circular (1) is only advisory; (2) if mandatory, constitutes an unconstitutional impairment of respondent’s contract with HUD and its lease agreement with petitioner; and (3) if constitutional, does not apply to eviction proceedings commenced before its issuance. Held: 1. Housing authorities of federally assisted public housing projects must follow the requirements of the February 7, 1967, HUD circular before evicting any tenant residing in such projects on the date of this Court’s decision herein. Pp. 274-284. (a) The circular, which originally supplemented and later became incorporated in HUD’s Low-Rent Management Manual issued under the agency’s general rule-making powers pursuant to § 8 of the United States Housing Act of 1937, was intended by HUD to be mandatory. Pp. 274-276. THORPE v. HOUSING AUTHORITY. 269 268 Opinion of the Court. (b) The simple notification procedure required by the circular, which has only nominal effect on respondent’s administration of the housing project, does not violate the congressional policy set forth in the Act for local control of federally financed housing projects. Pp. 277-278. (c) The respective obligations of HUD and respondent under the annual contributions contract between them, and the lease agreement between petitioner and respondent, remain unchanged by the circular, which therefore does not involve any impairment of contractual obligations in violation of the Due Process Clause of the Fifth Amendment. Pp. 278-280. (d) The circular furthers the Act’s remedial purpose. Pp. 280-281. (e) The circular applies to eviction proceedings commenced before its issuance under the general rule that a court must apply the law (here that of an administrative agency acting pursuant to legislative authorization) in effect at the time it renders decision; and that rule is particularly applicable here where ascertainment of the reason for eviction is essential to enable a tenant to defend against eviction for activity claimed to be constitutionally protected. Pp. 281-283. 2. It would be premature to decide, as petitioner urges, that this Court must establish guidelines to insure that she is given not only the reasons for her eviction but also a hearing comporting with due process requirements. Pp. 283-284. 271 N. C. 468,157 S. E. 2d 147, reversed and remanded. James M. Nabrit III argued the cause for petitioner. With him on the briefs were Jack Greenberg, Charles Stephen Ralston, Charles H. Jones, Jr., Anthony G. Amsterdam, and William Bennett Turner. Daniel K. Edwards argued the cause for respondent. With him on the briefs was William Y. Manson. Mr. Chief Justice Warren delivered the opinion of the Court. This case raises the question whether a tenant of a federally assisted housing project can be evicted prior to notification of the reasons for the eviction and without an opportunity to reply to those reasons, when such a 270 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. procedure is provided for in a Department of Housing and Urban Development (hereinafter HUD) circular issued after eviction proceedings have been initiated. On November 11, 1964, petitioner and her children commenced a month-to-month tenancy in McDougald Terrace, a federally assisted, low-rent housing project owned and operated by the Housing Authority of the City of Durham, North Carolina. Under the lease, petitioner is entitled to an automatic renewal for successive one-month terms, provided that her family composition and income remain unchanged and that she does not violate the terms of the lease.1 The lease also provides, however, that either the tenant or the Authority may terminate the tenancy by giving notice at least 15 days before the end of any monthly term.1 2 1 “This lease shall be automatically renewed for successive terms of one month each at the rental last entered and acknowledged below .... Provided, there is no change in the income or composition of the family of the tenant and no violation of the terms hereof. In the event of any change in the composition or income of the family of the tenant, rent for the premises shall automatically conform to the rental rates established in the approved current rent schedule which has been adopted by the Management for the operation of this Project . . . .” 2 “This lease may be terminated by the Tenant by giving to Management notice in writing of such termination 15 days prior to the last day of the term. The Management may terminate this lease by giving to the Tenant notice in writing of such termination fifteen (15) days prior to the last day of the term. Provided, however, that this paragraph shall not be construed to prevent the termination of this lease by Management in any other method or for any other cause set forth in this lease.” The Housing Authority construes this provision to authorize termination upon the giving of the required notice even if the tenant has not violated the terms of the lease and his income and family composition have not changed. Petitioner, however, insists that since the Authority is a government agency, it may not constitutionally evict “for no reason at all, or for an unreasonable, arbitrary and capricious reason . . . .” Brief for Petitioner 27. We do not, however, reach that issue in this case. See n. 49, infra. THORPE v. HOUSING AUTHORITY. 271 268 Opinion of the Court. On August 10, 1965, petitioner was elected president of a McDougald Terrace tenants’ organization called the Parents’ Club. On the very next day, without any explanation, the executive director of the Housing Authority notified petitioner that her lease would be canceled as of August 31.3 After receiving notice, petitioner attempted through her attorneys, by phone and by letter, to find out the reasons for her eviction.4 Her inquiries went unanswered, and she refused to vacate. On September 17,1965, the Housing Authority brought an action for summary eviction in the Durham Justice of the Peace Court, which, three days later, ordered petitioner removed from her apartment. On appeal to the Superior Court of Durham County, petitioner alleged that she was being evicted because of her organizational activities in violation of her First Amendment rights. After a trial de novo,5 the Superior Court affirmed the 3 The text of the notice is as follows: “Your Dwelling Lease provides that the Lease may be cancelled upon fifteen (15) days written notice. This is to notify you that your Dwelling Lease will be cancelled effective August 31, 1965, at which time you will be required to vacate the premises you now occupy.” 4 One of those attempts was made on September 1. In an affidavit filed with the Superior Court of Durham County, petitioner alleged that on that day members of the Housing Authority met with a Durham police detective who had been investigating petitioner’s conduct. Although petitioner’s attorney met with Housing Authority representatives on this same day to request a hearing, the attorney was not informed what information had been uncovered by the police investigation or whether it had any bearing on petitioner’s eviction. 5 All of the essential facts were stipulated in the Superior Court, including: “that if Mr. C. S. Oldham, the Executive Director of the Housing Authority of the City of Durham, were present and duly sworn and were testifying, he would testify that whatever reason there may have been, if any, for giving notice to Joyce C. Thorpe of the termination of her lease, it was not for the reason that she was elected 272 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. eviction, and the Supreme Court of North Carolina also affirmed.* 6 Both appellate courts held that under the lease the Authority’s reasons for terminating petitioner’s tenancy were immaterial. On December 5, 1966, we granted certiorari7 to consider whether petitioner was denied due process by the Housing Authority’s refusal to state the reasons for her eviction and to afford her a hearing at which she could contest the sufficiency of those reasons. On February 7, 1967, while petitioner’s case was pending in this Court, HUD issued a circular directing that before instituting an eviction proceeding local housing authorities operating all federally assisted projects should inform the tenant “in a private conference or other appropriate manner” of the reasons for the eviction and give him “an opportunity to make such reply or explanation as he may wish.” 8 Since the application of president of any group organized in McDougald Terrace, and specifically it was not for the reason that she was elected president of any group organized in McDougald Terrace on August 10, 1965 ... .” 6 267 N. C. 431, 148 S. E. 2d 290 (1966). 7 385 U. S. 967. 8 The full text of that circular is as follows: DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT Washington, D. C. 20410 Circular 2-7-67 Office of the Assistant Secretary For Renewal and Housing Assistance TO: Local Housing Authorities Assistant Regional Administrators for Housing Assistance HAA Division and Branch Heads FROM: Don Hummel SUBJECT: Terminations of Tenancy in Low-Rent Projects Within the past year increasing dissatisfaction has been expressed with eviction practices in public low-rent housing projects. During THORPE v. HOUSING AUTHORITY. 273 268 Opinion of the Court. this directive to petitioner would render a decision on the constitutional issues she raised unnecessary, we vacated the judgment of the Supreme Court of North Carolina and remanded the case “for such further proceedings as may be appropriate in the light of the February 7 circular of the Department of Housing and Urban Development.” 9 On remand, the North Carolina Supreme Court refused to apply the February 7 HUD circular and reaffirmed its prior decision upholding petitioner’s eviction. Analo- that period a number of suits have been filed throughout the United States generally challenging the right of a Local Authority to evict a tenant without advising him of the reasons for such eviction. Since this is a federally assisted program, we believe it is essential that no tenant be given notice to vacate without being told by the Local Authority, in a private conference or other appropriate manner, the reasons for the eviction, and given an opportunity to make such reply or explanation as he may wish. In addition to informing the tenant of the reason (s) for any proposed eviction action, from this date each Local Authority shall maintain a written record of every eviction from its federally assisted public housing. Such records are to be available for review from time to time by HUD representatives and shall contain the following information: 1. Name of tenant and identification of unit occupied. 2. Date of notice to vacate. 3. Specific reason (s) for notice to vacate. For example, if a tenant is being evicted because of undesirable actions, the record should detail the actions which resulted in the determination that eviction should be instituted. 4. Date and method of notifying tenant with summary of any conferences with tenant, including names of conference participants. 5. Date and description of final action taken. The Circular on the above subject from the PHA Commissioner, dated May 31, 1966, is superseded by this Circular. s/ Don Hummel Assistant Secretary for Renewal and Housing Assistance 386 U. S. 670, 673-674 (1967). 274 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. gizing to the North Carolina rule that statutes are presumed to act prospectively only, the court held that since “ [a] 11 critical events” 10 11 had occurred prior to the date on which the circular was issued “[t]he rights of the parties had matured and had been determined before . . .” that date.11 We again granted certiorari.12 We reverse the judgment of the Supreme Court of North Carolina and hold that housing authorities of federally assisted public housing projects must apply the February 7, 1967, HUD circular before evicting any tenant still residing in such projects on the date of this decision.13 In support of the North Carolina judgment, the Housing Authority makes three arguments: (1) the HUD circular was intended to be advisory, not mandatory; (2) if the circular is mandatory, it is an unauthorized and unconstitutional impairment of both the Authority’s annual contributions contract with HUD 14 and the lease agreement between the Authority and petitioner; and (3) even if the circular is mandatory, within HUD’s power, and constitutional, it does not apply to eviction proceedings commenced prior to the date the circular was issued. We reject each of these contentions. I. Pursuant to its general rule-making power under § 8 of the United States Housing Act of 1937,15 HUD has 10 271 N. C. 468, 471, 157 S. E. 2d 147, 150 (1967). 11271 N. C., at 470, 157 S. E. 2d, at 149. 12 390 U. S. 942 (1968). 13 The Supreme Court of North Carolina stayed the execution of its judgment pending our decision. As a result, petitioner has not yet vacated her apartment. 14 Under § 10 (a) of the United States Housing Act of 1937, 50 Stat. 891, as amended, 42 U. S. C. § 1410 (a) (1964 ed., Supp. Ill), HUD is required to enter into an annual contributions contract with the local housing authorities. In that contract, HUD guarantees to provide a certain amount of money over a certain number of years. 15 50 Stat. 891, as amended, 42 U. S. C. § 1408 (1964 ed., Supp. III). THORPE v. HOUSING AUTHORITY. 275 268 Opinion of the Court. issued a Low-Rent Management Manual,16 which contains requirements that supplement the provisions of the annual contributions contract applicable to project management.17 According to HUD, these requirements “are the minimum considered consistent with fulfilling Federal responsibilities” under the Act.18 Changes in the manual are initially promulgated as circulars. These circulars, which have not yet been physically incorporated into the manual, are temporary additions or modifications of the manual’s requirements and “have the same effect.” 19 In contrast, the various “handbooks” and “booklets” issued by HUD contain mere “instructions,” “technical suggestions,” and “items for consideration.” 20 Despite the incorporation of the February 7 circular into the Management Manual in October 1967, the Housing Authority contends that on its face the circular purports to be only advisory. The Authority places particular emphasis on the circular’s precatory statement that HUD “believes” that its notification procedure should be followed. In addition to overlooking the significance of the subsequent incorporation of the circular into the Management Manual, the Authority’s argument is based upon a simple misconstruction of the language actually used. The import of that language, which characterizes the new notification procedure as “essential,” becomes apparent when the February 7 circular is contrasted with the one it superseded. The earlier circular, issued on May 31, 1966, stated: “[W]e strongly urge, as a matter of good social policy, that Local Authorities in a 16 Housing Assistance Administration, HUD, Low-Rent Management Manual. 17 Id., §0 (preface) (April 1962). 18 Ibid. 19 Housing Assistance Administration, HUD, Low-Rent Housing Manual § 100.2, at 2 (Sept. 1963). 20 Ibid. 320-583 0 - 69 - 26 276 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. private conference inform any tenants who are given . . . [termination] notices of the reasons for this action.” 21 (Emphasis added.) This circular was not incorporated into the Management Manual. That HUD intended the February 7 circular to be mandatory has been confirmed unequivocally in letters written by HUD’s Assistant Secretary for Renewal and Housing Assistance22 and by its Chief Counsel.23 As we stated in Bowles v. Seminole Rock Co., 325 U. S. 410, 414 (1945), when construing an administrative regulation, “a court must necessarily look to the administrative construction of the regulation if the meaning of the words used is in doubt. ... [T]he ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” 24 Thus, when the language and HUD’s treatment of the February 7 circular are contrasted with the language and treatment of the superseded circular, there can be no doubt that the more recent circular was intended to be mandatory, not merely advisory as contended by the Authority. 21 Circular from Commissioner Marie C. McGuire to Local Authorities, Regional Directors, and Central Office Division and Branch Heads, May 31, 1966. 22“[W]e intended it to be followed. . . . The circular is as binding in its present form as it will be after incorporation in the manual. . . . HUD intends to enforce the circular to the fullest extent of its ability. . . .” Letter from Assistant Secretary Don Hummel to Mr. Charles S. Ralston of the NAACP Legal Defense and Educational Fund, Inc., July 25, 1967. 23 HUD’s Chief Counsel stated that his “views are the same as those expressed” by Assistant Secretary Hummel. Letter from Mr. Joseph Burstein to Mr. Charles S. Ralston, Aug. 7, 1967. 24 Accord, Udall n. Tallman, 380 U. S. 1 (1965). See Zemel n. Rusk, 381 U. S. 1 (1965). THORPE v. HOUSING AUTHORITY. 277 268 Opinion of the Court. II. Finding that the circular was intended to be mandatory-does not, of course, determine the validity of the requirements it imposes.25 In our opinion remanding this case to the Supreme Court of North Carolina to consider the HUD circular’s applicability, we pointed out that the circular was issued pursuant to HUD’s rule-making power under § 8 of the United States Housing Act of 1937,26 which authorizes HUD 27 “from time to time [to] make, amend, and rescind such rules and regulations as may be necessary to carry out the provisions of this Act.” 28 The Housing Authority argues that this authorization is limited by the Act’s express policy of “vest[ing] in the local public housing agencies the maximum amount of responsibility in the administration of the low-rent housing program, including responsibility for the establishment of rents and eligibility requirements (subject to the approval of . . . [HUD]), with due consideration to accomplishing the objectives of this Act while effecting economies.”29 But the HUD circular is not inconsistent with this policy. Its minimal effect upon 25 See Udall v. Tailman, supra. 26 3 86 U. S. 670, 673, n. 4 (1967). 27 This rule-making power was transferred from the Public Housing Administration to HUD by § 5 (a) of the Department of Housing and Urban Development Act, 79 Stat. 669, 42 U. S. C. § 3534 (a) (1964 ed., Supp. III). 28 50 Stat. 891, as amended, 42 U. S. C. § 1408 (1964 ed., Supp. III). Such broad rule-making powers have been granted to numerous other federal administrative bodies in substantially the same language. See, e. g., 72 Stat. 743, 49 U. S. C. § 1324 (a) (Civil Aeronautics Board); 49 Stat. 647, as amended, 42 U. S. C. § 1302 (Department of Health, Education, and Welfare); 52 Stat; 830, 15 U. S. C. § 717o (Federal Power Commission). 29 Section 1 of the United States Housing Act of 1937, 50 Stat. 888, as amended by § 501 of the Housing Act of 1959, 73 Stat. 679, 42 U.S. C. § 1401. 278 OCTOBER TERM, 1968. Opinion of the Court. 393 U.S. the Authority’s “responsibility in the administration” of McDougald Terrace is aptly attested to by the Authority’s own description of what the circular does not require : “It does not . . . purport to change the terms of the lease provisions used by Housing Authorities, nor does it purport to take away from the Housing Authority its legal ability to evict by complying with the terms of the lease and the pertinent provisions of the State law relating to evictions. It does not deal with what reasons are acceptable to HUD .... Moreover, the Circular clearly does not say that a Housing Authority cannot terminate at the end of any term without cause as is provided in the lease.”30 The circular imposes only one requirement: that the Authority comply with a very simple notification procedure before evicting its tenants. Given the admittedly insubstantial effect this requirement has upon the basic lease agreement under which the Authority discharges its management responsibilities, the contention that the circular violates the congressional policy of allowing local authorities to retain maximum control over the administration of federally financed housing projects is untenable. The Authority also argues that under the Due Process Clause of the Fifth Amendment HUD is powerless to impose any obligations except those mutually agreed upon in the annual contributions contract.31 If HUD’s 30 Brief for Respondent 21, 23. 31 Although the constitutional prohibition of the impairment of contracts, U. S. Const. Art. I, § 10, applies only to the States, we have held that “[v]alid contracts are property, whether the obligor be a private individual, a municipality, a State or the United States. Rights against the United States arising out of a contract with it are protected by the Fifth Amendment.” Lynch v. United States, 292 U. S. 571, 579 (1934). THORPE v. HOUSING AUTHORITY. 279 268 Opinion of the Court. power is not so limited, the Authority argues, HUD would be free to impair its contractual obligations to the Authority through unilateral action. Moreover, in this particular case, the Authority contends that HUD has not only impaired its own contract with the Authority, but it has also impaired the contract between petitioner and the Authority. The obligations of each of these contracts, however, can be impaired only “by a law which renders them invalid, or releases or extinguishes them ... [or by a law] which without destroying [the] contracts derogate [s] from substantial contractual rights.” 32 The HUD circular does neither. The respective obligations of both HUD and the Authority under the annual contributions contract remain unchanged. Each provision of that contract is as enforceable now as it was prior to the issuance of the circular.33 Although the circular supplements the contract in the sense that it imposes upon the Authority an additional obligation not contained in the contract, that obligation is imposed under HUD’s wholly independent rule-making power. Likewise, the lease agreement between the Authority and petitioner remains inviolate. Petitioner must still pay her rent and comply with the other terms of the lease; and, as the Authority itself acknowledges, she is still subject to eviction.34 HUD has merely provided for a particular type of notification that must precede 32 Home Bldg. & Loan Assn. v. Blaisdell, 290 U. S. 398, 431 (1934). The statute challenged in Lynch v. United States, supra, fell into the first of these two categories. It repealed “all laws granting or pertaining to yearly renewable [War Risk term] insurance . . . .” 292 U. 8.» at 575. 33 A far different case would be presented if HUD were a party to this suit arguing that it could repudiate its obligations under the annual contributions contract because the Authority had failed to apply the circular. Cf. Lynch v. United States, supra. 34 Cf. Home Bldg. & Loan Assn. v. Blaisdell, supra, at 425. 280 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. eviction; and “[i]n modes of proceeding and forms to enforce the contract the legislature has the control, and may enlarge, limit, or alter them, provided it does not deny a remedy or so embarrass it with conditions or restrictions as seriously to impair the value of the right.”35 Since the Authority does not argue that the circular is proscribed by any constitutional provision other than the Due Process Clause, the only remaining inquiry is whether it is reasonably related to the purposes of the 35 Penniman’s Case, 103 U. S. 714, 720 (1881). See El Paso v. Simmons, 379 U. S. 497, at 508 (1965); Home Bldg. & Loan Assn. v. Blaisdell, supra. We have consistently upheld legislation that affects contract rights far more substantially than does the HUD circular. E. g., El Paso v. Simmons, supra, upheld a state statute that placed a time limit on the right to reinstate a claim in previously forfeited public lands; East N. Y. Sav. Bank v. Hahn, 326 U. S. 230 (1945), upheld a New York statute suspending mortgage foreclosures for the 10th year in succession; and Blaisdell upheld a statute that extended mortgagors’ redemption time. There is no reason why the principles that control legislation that affects contractual rights should not also control administrative rule making that affects contractual rights. Cf. Permian Basin Area Rate Cases, 390 U. S. 747, 779-780 (1968), which upheld a Federal Power Commission order limiting the application of “escalation clauses” in contracts for the sale of natural gas; and 24 CFR §§ 1.1-1.12 (1968), which proscribe a wide range of racially discriminatory practices by both governmental and private interests that receive any federal financial assistance whether or not pursuant to a preexisting contract. This regulation was promulgated under § 602 of the Civil Rights Act of 1964, 78 Stat. 252, 42 U. S. C. § 2000d-l, which directs each federal agency that administers federal financial assistance “by way of grant, loan, or contract other than a contract of insurance or guaranty ... to effectuate the provisions of section 601 [which prohibits racial discrimination in the administration of any program receiving federal financial assistance] ... by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken.” THORPE v. HOUSING AUTHORITY. 281 268 Opinion of the Court. enabling legislation under which it was promulgated.36 One of the specific purposes of the federal housing acts is to provide “a decent home and a suitable living environment for every American family” 37 that lacks the financial means of providing such a home without governmental aid. A procedure requiring housing authorities to explain why they are evicting a tenant who is apparently among those people in need of such assistance certainly furthers this goal. We therefore cannot hold that the circular’s requirements bear no reasonable relationship to the purposes for which HUD’s rulemaking power was authorized. HI. The Housing Authority also urges that petitioner’s eviction should be upheld on the theory relied upon by the Supreme Court of North Carolina: the circular does not apply to eviction proceedings commenced prior to its issuance. The general rule, however, is that an appellate court must apply the law in effect at the time it renders its decision.38 Since the law we are concerned with in this case is embodied in a federal administrative regulation, the applicability of this general rule is necessarily 36 See, e. g., FCC v. Schreiber, 381 U. S. 279, 289-294 (1965); American Trucking Assns., Inc. v. United States, 344 U. S. 298 (1953). 37 Section 2 of the Housing Act of 1949, 63 Stat. 413, 42 U. S. C. § 1441. That section further directs all agencies of the Federal Government “having powers, functions, or duties with respect to housing . . . [to] exercise their powers, functions, and duties under this or any other law, consistently with the national housing policy declared by this Act . . . .” Ibid. 38 “A change in the law between a nisi prius and an appellate decision requires the appellate court to apply the changed law.” Ziffrin, Inc. v. United States, 318 U. S. 73, 78 (1943). Accord, e. g., Vandenbark v. Owens-Illinois Glass Co., 311 U. S. 538 (1941); United States v. Chambers, 291 U. S. 217 (1934). 282 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. governed by federal law. Chief Justice Marshall explained the rule over 150 years ago as follows: “[I]f subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. If the law be constitutional, ... I know of no court which can contest its obligation. It is true that in mere private cases between individuals, a court will and ought to struggle hard against a construction which will, by a retrospective operation, affect the rights of parties, but in great national concerns . . . the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside.” 39 This same reasoning has been applied where the change was constitutional,40 statutory,41 or judicial.42 Surely it applies with equal force where the change is made by an administrative agency acting pursuant to legislative authorization. Exceptions have been made to prevent manifest injustice,43 but this is not such a case. To the contrary, the general rule is particularly applicable here. The Housing Authority concedes that its power to evict is limited at least to the extent that it may not evict a tenant for engaging in constitutionally 39 United States v. Schooner Peggy, 1 Cranch 103, 110 (1801). 40 See, e. g., United States v. Chambers, supra. 41 See, e. g., Carpenter v. Wabash R. Co., 309 U. S. 23 (1940). 42 See, e. g., Vandenbark v. Owens-Illinois Glass Co., supra. 43 See Greene v. United States, 376 U. S. 149 (1964), in which we held that the petitioner’s right to recover lost pay for a wrongful discharge was “vested” as a result of our earlier decision in Greene v. McElroy, 360 U. S. 474 (1959), which we construed to have made a “final” and “favorable” determination, 376 U. S., at 159, that petitioner had been wrongfully deprived of his employment. THORPE v. HOUSING AUTHORITY. 283 268 Opinion of the Court. protected activity;44 but a tenant would have considerable difficulty effectively defending against such an admittedly illegal eviction if the Authority were under no obligation to disclose its reasons.45 On the other hand, requiring the Authority to apply the circular before evicting petitioner not only does not infringe upon any of its rights, but also does not even constitute an imposition. The Authority admitted during oral argument that it has already begun complying with the circular.46 It refuses to apply it to petitioner simply because it decided to evict her before the circular was issued. Since petitioner has not yet vacated, we fail to see the significance of this distinction. We conclude, therefore, that the circular should be applied to all tenants still residing in McDougald Terrace, including petitioner, not only because it is designed to insure a fairer eviction procedure in general, but also because the prescribed notification is essential to remove a serious impediment to the successful protection of constitutional rights. IV. Petitioner argues that in addition to holding the HUD circular applicable to her case, we must also establish guidelines to insure that she is provided with not only 44 “We do not contend that, in the case of Housing Authority leases if the purpose of the notice of termination of the lease is to proscribe the exercise of a constitutional right by the tenant the notice would be effective; the notice would be invalid, and the term of the lease and its automatic renewal would not thereby be affected.” Brief for Respondent 11. 45 See generally Thorpe v. Housing Authority of the City of Durham, 386 U. S. 670, 674-681 (1967) (Douglas, J., concurring). 46 Transcript of Argument 28. Despite this admission, counsel for the Authority insisted throughout his oral argument that HUD has no power to require compliance with the circular. See id., at 26-27, 28, 30-32, 48-49. He even expressly suggested that the Authority could depart from its requirements “without violating any kind of Federal law.” Id., at 48. 284 OCTOBER TERM, 1968. Black, J., concurring. 393 U. S. the reasons for her eviction but also a hearing that comports with the requirements of due process. We do not sit, however, “to decide abstract, hypothetical or contingent questions ... or to decide any constitutional question in advance of the necessity for its decision . . . .”47 The Authority may be able to provide petitioner with reasons that justify eviction under the express terms of the lease. In that event, she may decide to vacate voluntarily without contesting the Authority’s right to have her removed. And if she challenges the reasons offered, the Authority may well decide to afford her the full hearing she insists is essential.48 49 Moreover, even if the Authority does not provide such a hearing, we have no reason to believe that once petitioner is told the reasons for her eviction she cannot effectively challenge their legal sufficiency in whatever eviction proceedings may be brought in the North Carolina courts. Thus, with the case in this posture, a decision on petitioner’s constitutional claims would be premature. Reversed and remanded. Mr. Justice Black, concurring. The Court here uses a cannon to dispose of a case that calls for no more than a popgun. The Durham Housing 47 Alabama State Federation oj Labor v. McAdory, 325 U. S. 450, 461 (1945). Cf. Zemel v. Rusk, supra, at 18-20; United States v. Fruehauj, 365 U. S. 146 (1961). 48 Moreover, if the procedure followed by the Authority proves inadequate, HUD may well decide to provide for an appropriate hearing. Cf. 24 CFR §§ 1.1-1.12 (1968), which establish a detailed procedure to dispose of complaints of racial discrimination in any federally assisted program. 49 These same considerations lead us to conclude that it would be equally premature for us to reach a decision on petitioner’s contention that it would violate due process for the Authority to evict her arbitrarily. That issue can be more appropriately considered if petitioner is in fact evicted arbitrarily. See Alabama State Federation oj Labor v. McAdory, supra. THORPE v. HOUSING AUTHORITY. 285 268 Black, J., concurring. Authority has clearly stated, both in its brief and at oral argument, that it is fully complying with the directive of the Department of Housing and Urban Development concerning notice to tenants of reasons for their eviction. The only possible issue therefore is whether the directive should apply to Mrs. Thorpe, against whom eviction proceedings were started prior to the effective date of the HUD memorandum but who is still residing in public housing, as a result of judicial stays. I agree, of course, that the directive should apply to her eviction. Nothing else need be decided. 286 OCTOBER TERM. 1968. Syllabus. 393 U. S. UNITED STATES v. NARDELLO et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. No. 51. Argued November 12, 1968.— Decided January 13, 1969. Appellees were indicted for violating 18 U. S. C. § 1952, which prohibits travel in interstate commerce with intent to carry on “extortion” in violation of the laws of the State in which committed. In Pennsylvania, where the acts were allegedly committed, the statute entitled “extortion” applies only to public officials, while other statutes prohibit various aspects of “blackmail.” The “blackmail” laws, which cover appellees’ alleged activities, each define the offense as an act committed with intent “to extort.” The District Court, believing that the term extortion was intended “to track closely the legal understanding under state law,” concluded that the offense of extortion could only be committed by public officials, and dismissed the indictment against appellees, who were not public officials. The Government appealed. Held: In light of the congressional purpose to assist local law enforcement officials in combating interstate activities of organized crime which violate state laws, and not merely to eliminate only those acts which a State has denominated extortion, the extortionate acts for which appellees were indicted, which were prohibited by Pennsylvania law, fall within the generic term “extortion” as used in 18 U. S. C. § 1952. Pp. 289-296. 278 F. Supp. 711, reversed and remanded. Philip A. Lacovara argued the cause for the United States, pro hac vice. With him on the brief were Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Sidney M. Glazer. F. Emmett Fitzpatrick, Jr., argued the cause and filed a brief for appellees. UNITED STATES v. NARDELLO. 287 286 Opinion of the Court. Mr. Chief Justice Warren delivered the opinion of the Court. This appeal presents solely a question of statutory construction: whether 18 U. S. C. § 1952,1 prohibiting travel in interstate commerce with intent to carry on “extortion” in violation of the laws of the State in which committed, applies to extortionate conduct classified as “blackmail” rather than “extortion” in the applicable state penal code. We believe that § 1952 (hereinafter “the Travel Act”) is applicable and thus must reverse the court below. Appellees were indicted under § 1952 for their alleged participation in a “shakedown” operation whereby individuals would be lured into a compromising homosexual situation and then threatened with exposure unless appellees’ silence was purchased. The indictments charged that appellees traveled in interstate com 1 Section 1952 provides: “(a) Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, including the mail, with intent to— “(1) distribute the proceeds of any unlawful activity; or “(2) commit any crime of violence to further any unlawful activity; or “(3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity, and thereafter performs or attempts to perform any of the acts specified in subparagraphs (1), (2), and (3), shall be fined not more than $10,000 or imprisoned for not more than five years, or both. “(b) As used in this section ‘unlawful activity’ means (1) any business enterprise involving gambling, liquor on which the Federal excise tax has not been paid, narcotics, or prostitution offenses in violation of the laws of the State in which they are committed or of the United States, or (2) extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States.” (1964 ed. and Supp. III.) 288 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. merce on three separate occasions, twice from New Jersey to Philadelphia and once from Chicago to Philadelphia, to promote their activities. Specifically, the indictments referred to “the unlawful activity of blackmail, in violation of the laws of the Commonwealth of Pennsylvania.” The District Court for the Eastern District of Pennsylvania dismissed the indictments, basing its decision upon Pennsylvania statutes which classify certain acts as “extortion” and others as various aspects of “blackmail.” In Pennsylvania, the statute entitled “extortion” is applicable only to the conduct of public officials. Pa. Stat. Ann., Tit. 18, § 4318 (1963). Three other Pennsylvania statutes, Pa. Stat. Ann., Tit. 18, §§4801— 4803 (1963), prohibit “blackmail,” “blackmail by injury to reputation or business,” and “blackmail by accusation of heinous crime.” Each of these three statutes defines the prohibited offense as, inter alia, an act committed with an intent “to extort.” The District Court believed that the term extortion as used in the Travel Act was intended “to track closely the legal understanding under state law.” 278 F. Supp. 711, 712 (1968). Reasoning from this premise, the court concluded that in Pennsylvania the offense of extortion was covered only by Pa. Stat. Ann., Tit. 18, § 4318, a statute which required that the accused be a public official. Since appellees were not public officials, the indictment was therefore defective.2 The United States appealed di- 2 This conclusion impliedly conflicts with at least two other cases in which prosecutions of private individuals for extortion violative of the Travel Act were successfully maintained in States having a statutory structure similar to that found in Pennsylvania. See United States v. Hughes, 389 F. 2d 535 (C. A. 2d Cir. 1968); McIntosh v. United States, 385 F. 2d 274 (C. A. 8th Cir. 1967). Hughes involved a prosecution pursuant to North Carolina statutes, one of which prohibits extortion by a public official, N. C. Gen. Stat. UNITED STATES v. NARDELLO. 289 286 Opinion of the Court. rectly to this Court pursuant to 18 U. S. C. § 3731 and probable jurisdiction was noted. 392 U. S. 923 (1968). Although Congress directed that content should be given to the term “extortion” in § 1952 by resort to state law, it otherwise left that term undefined.* 3 At common law' a public official who under color of office obtained the property of another not due either to the office or the official was guilty of extortion.4 In many States, however, the crime of extortion has been statutorily expanded to include acts by private individuals under which property is obtained by means of force, fear, or threats. See Cal. Penal Code § 519 (1955); N. J. Stat. Ann. §2A:105-3, §2A:105-4 (1953); 3 F. Wharton’s Criminal Law and Procedure § 1396 (R. Anderson ed. 1957). Others, such as Pennsylvania, retain the common-law definition of extortion but prohibit conduct for which appellees were charged under other statutes.5 At least one State does not denominate any § 66-7 (1965), while a second covers blackmailing, N. C. Gen. Stat. § 14-118 (1953). Hughes was charged with involvement in a scheme identical to that in which appellees allegedly participated. McIntosh, involving Missouri law, was a prosecution under Mo. Rev. Stat. § 560.130 (1959), a prohibition of threats with intent to extort. However, Missouri also prohibits extortion by certain state officials. See Mo. Rev. Stat. § 29.360 (state auditor), § 30.420 (state treasurer) (1959). 3Cf. the Hobbs Act, 18 U. S. C. §1951 (b)(2), which defines extortion as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” 4 See United States v. Laudam, 134 F. 2d 847, 851, n. 1 (C. A. 3d Cir. 1943), rev’d on other grounds, 320 U. S. 543 (1944); United States v. Altmeyer, 113 F. Supp. 854, 856 (D. C. W. D. Pa. 1953); W. Clark & W. Marshall, A Treatise on the Law of Crimes § 12.17 (6th ed. 1958). 5 Compare Ala. Code, Tit. 14, § 160 (1959) (extortion), with Ala. Code, Tit. 14, §§ 49-50 (1959) (blackmail), and Ohio Rev. Code 290 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. specific act as extortion but prohibits appellees’ type of activities under the general heading of offenses directed against property. See Ill. Rev. Stat., c. 38, § 15-5 (1967). Faced with this diversity, appellees contend alternatively that Congress intended either that extortion was to be applied in its common-law sense or that, where a State does have a statute specifically prohibiting extortion, then that statute alone is encompassed by § 1952. The Government, on the other hand, suggests that Congress intended that extortion should refer to those acts prohibited by state law which would be generically classified as extortionate, i. e., obtaining something of value from another with his consent induced by the wrongful use of force, fear, or threats.* 6 The Travel Act formed part of Attorney General Kennedy’s legislative proposals to combat organized crime. See Hearings on S. 1653-1658, S. 1665 before the Senate Judiciary Committee on the Attorney General’s Program to Curb Organized Crime and Racketeering, 87th Cong., 1st Sess. (1961). The Attorney General told the Senate Committee that the purpose of the Travel Act was to aid local law enforcement officials. In many instances the “top men” of a given criminal operation resided in one State but conducted their illegal activities in another; by creating a federal interest in limiting the interstate movement necessary to such operations, criminal conduct beyond the reach of local officials could be Ann. § 2919.13 (1954) (extortion), with Ohio Rev. Code Ann. §2901.38 (1954) (blackmail). 6 The Model Penal Code as first drafted included the offenses for which appellees are charged under the heading of “Theft by Intimidation.” Model Penal Code §206.3 (Tent. Draft No. 2, 1954). The Proposed Official Draft classifies the same offenses as “Theft by Extortion.” Model Penal Code §223.4 (Prop. Off. Draft 1962). The comments to the original draft indicate that the authors intended these sections to encompass extortionate offenses. See Model Penal Code §206.3, Comments 1, 5 (Tent. Draft No. 2, 1954). UNITED STATES v. NARDELLO. 291 286 Opinion of the Court. controlled. Id., at 15-17.7 The Attorney General’s concerns were reflected in the Senate Committee Report favoring adoption of the Travel Act. The Report, after noting the Committee’s belief that local law enforcement efforts would be enhanced by the Travel Act, quoted from the Attorney General’s submission letter: “Over the years an ever-increasing portion of our national resources has been diverted into illicit channels. Because many rackets are conducted by highly organized syndicates whose influence extends over State and National borders, the Federal Government should come to the aid of local law enforcement authorities in an effort to stem such activity.” S. Rep. No. 644, 87th Cong., 1st Sess., 4 (1961). The measure was passed by the Senate and subsequently became § 1952.8 The House version of the Travel Act contained an amendment unacceptable to the Justice Department. The Senate bill defined “unlawful activity” as “any business enterprise involving gambling, liquor . . . narcotics, or prostitution offenses in violation of the laws of the State . . . or . . . extortion or bribery in violation of the laws of the States.” S. Rep. No. 644, 87th Cong., 1st Sess., 2 (1961). However, the House amendment, by defining “unlawful activity” as “any business enterprise involving gambling, liquor, narcotics, or prostitution offenses or extortion or bribery in connection with such offenses in violation of the laws of the State,” required that extortion be connected with a business enterprise involving the other enumerated offenses. H. R. Rep. 7 The Attorney General characterized S. 1653, later enacted as § 1952, as “one of the most important” of his proposals. 8 In 1965 the crime of arson was added to the definition of unlawful activity in subsection (b)(2). This addition was prompted by a suggestion from the Department of Justice that arson was often used by organized crime to collect under insurance policies and had thus become another source of revenue. See H. R. Rep. No. 264, 89th Cong., 1st Sess. (1965); S. Rep. No. 351, 89th Cong., 1st Sess. (1965). 320-583 0 - 69 - 27 292 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. No. 966, 87th Cong., 1st Sess., 1 (1961). In a letter to the Chairman of the House Judiciary Committee the Justice Department objected that the House amendment eliminated from coverage of the Travel Act offenses such as “shakedown rackets,” “shylocking” and labor extortion which were traditional sources of income for organized crime.9 The House-Senate Conference Committee accepted the Senate version. See H. R. Conf. Rep. No. 1161, 87th Cong., 1st Sess. (1961). The Travel Act, primarily designed to stem the “clandestine flow of profits” and to be of “material assistance to the States in combating pernicious undertakings which cross State lines,”10 thus reflects a congressional judgment that certain activities of organized crime which were violative of state law had become a national problem. The legislative response was to be commensurate with the scope of the problem. Appellees suggest, however, that Congress intended that the common-law meaning of extortion—corrupt acts by a public official—be retained. If Congress so intended, then § 1952 would cover extortionate acts only when the extortionist was 9 The relevant portion of this letter, written by then Deputy Attorney General White, is reproduced in Pollner, Attorney General Robert F. Kennedy’s Legislative Program to Curb Organized Crime and Racketeering, 28 Brooklyn L. Rev. 37, 41 (1961): “[The House amendment] eliminated from the purview of the bill extortions not related to the four above offenses but which are, and have historically been, activities which involve organized crime. Such activities are the ‘shakedown racket,’ ‘shylocking’ (where interest of 20% per week is charged and which is collected by means of force and violence, since in most states the loans are uncollectable in court) and labor extortion. It also removes from the purview of the bill bribery of state, local and federal officials by the organized criminals unless we can prove that the bribery is directly attributable to gambling, liquor, narcotics or prostitution.” 10 S. Rep. No. 644, 87th Cong., 1st Sess., 4 (1961) (quoting Attorney General); H. R. Rep. No. 966, 87th Cong., 1st Sess., 4 (1961) (quoting Attorney General). UNITED STATES v. NARDELLO. 293 286 Opinion of the Court. also a public official. Not only would such a construction conflict with the congressional desire to curb the activities of organized crime rather than merely organized criminals who were also public officials, but also § 1952 imposes penalties upon any individual crossing state lines or using interstate facilities for any of the statutorily enumerated offenses. The language of the Travel Act, “whoever” crosses state lines or uses interstate facilities, includes private persons as well as public officials.11 Appellees argue that Congress’ decision not to define extortion combined with its decision to prohibit only extortion in violation of state law compels the conclusion that peculiar versions of state terminology are controlling. Since in Pennsylvania a distinction is maintained between extortion and blackmail with only the latter term covering appellees’ activities,11 12 it follows that the Travel Act does not reach the conduct charged. The fallacy of this contention lies in its assumption that, by defining extortion with reference to state law, Congress also incorporated state labels for particular offenses. Congress’ intent was to aid local law enforcement offi- 11 The Government notes that subsection (b) (2) prohibits bribery as well as extortion. Bribery has traditionally focused upon corrupt activities by public officials. See 18 U. S. C. §§ 201-218 ; 3 F. Wharton’s Criminal Law and Procedure §§ 1380-1391 (R. Anderson ed. 1957). Since Pennsylvania’s extortion statute covers corrupt acts by public officials, the Government suggests that appellees’ construction of “extortion” renders the bribery prohibition superfluous. 12 Several cases cast some doubt upon the vitality of this distinction as they indicate that in Pennsylvania the terms extortion and blackmail are considered synonymous. See Commonwealth v. Burdell, 380 Pa. 43, 48, 110 A. 2d 193, 196 (1955); Commonwealth v. Nathan, 93 Pa. Super. 193, 197 (1928). Federal criminal statutes have also used the terms interchangeably. For example, 18 U. S. C. §250 (1940 ed.) was entitled “Extortion by informer”; today substantially the same provision is captioned “Blackmail.” See 18 U. S. C. §873. 294 OCTOBER TERM, 1968. Opinion of the Court. 393 U.S. cials, not to eradicate only those extortionate activities which any given State denominated extortion. Indiana prohibits appellees’ type of conduct under the heading of theft, Ind. Ann. Stat. § 10-3030 (Supp. 1968); Kansas terms such conduct robbery in the third degree, Kan. Stat. Ann. § 21-529 (1964); Minnesota calls it coercion, Minn. Stat. § 609.27 (1967); and Wisconsin believes that it should be classified under threats, Wis. Stat. § 943.30 (1965). States such as Massachusetts, Mass. Gen. Laws Ann., c. 265, § 25 (1959), Michigan, Mich. Comp. Laws § 750.213 (1948), Mich. Stat. Ann. § 28.410 (1962), and Oregon, Ore. Rev. Stat. § 163.480 (1968), have enacted measures covering similar activities; each of these statutes contains in its title the term extortion. Giving controlling effect to state classifications would result in coverage under § 1952 if appellees’ activities were centered in Massachusetts, Michigan, or Oregon, but would deny coverage in Indiana, Kansas, Minnesota, or Wisconsin although each of these States prohibits identical criminal activities. A striking illustration is presented by United States n. Schwartz, 398 F. 2d 464 (C. A. 7th Cir. 1968), pet. for cert, pending, sub nom. Pyne v. United States* No. 507, 1968 Term. Schwartz and a codefendant were accused of participating in a venture identical to that in which appellees allegedly participated, i. e., luring a businessman into a compromising situation and then demanding a payoff. The indictment charged that Schwartz traveled to Utah to promote extortionate activities illegal under Utah Code Ann. § 76-19-1 (1953), a statute captioned extortion. Pennsylvania prohibits this conduct under its blackmail statutes. Congress intended that the Travel Act would support local law enforcement efforts by allowing the Federal Government to reach *[Reporter’s Note: Cert, denied, posi, p. 1062.] UNITED STATES v. NARDELLO. 295 286 Opinion of the Court. interstate aspects of extortion. We can discern no reason why Congress would wish to have § 1952 aid local law enforcement efforts in Utah but to deny that aid to Pennsylvania when both States have statutes covering the same offense. We therefore conclude that the inquiry is not the manner in which States classify their criminal prohibitions but whether the particular State involved prohibits the extortionate activity charged. Appellees do not dispute that Pennsylvania prohibits the conduct for which they were indicted. Accepting our conclusion that Congress did not intend to limit the coverage of § 1952 by reference to state classifications, appellees nevertheless insist that their activities were not extortionate. The basis for this contention is an asserted distinction between blackmail and extortion: the former involves two private parties while the latter requires the participation of a public official. As previously discussed, revenue-producing measures such as shakedown rackets and loan-sharking were called to the attention of Congress as methods utilized by organized crime to generate income. These activities are traditionally conducted between private parties whereby funds are obtained from the victim with his consent produced by the use of force, fear, or threats?3 Prosecutions under the Travel Act for extortionate offenses involving only private individuals have been consistently maintained. See United States v. Hughes, 389 F. 2d 535 (C. A. 2d Cir. 1968); McIntosh v. United States, 385 F. 2d 274 (C. A. 8th Cir. 1967) ; Marshall v. United States, 355 F. 2d 999 (C. A. 9th Cir.), cert, denied, 385 U. S. 815 (1966). Appellees, according to the court below, attempted to obtain money from their 13 Extortion is typically employed by organized crime to enforce usurious loans, infiltrate legitimate businesses, and obtain control of labor unions. See President’s Commission on Law Enforcement and Administration of Justice, Task Force Report : Organized Crime 3-5 (1967). 296 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. victims by threats to expose alleged homosexual conduct. Although only private individuals are involved, the indictment encompasses a type of activity generally known as extortionate since money was to be obtained from the victim by virtue of fear and threats of exposure. In light of the scope of the congressional purpose we decline to give the term “extortion” an unnaturally narrow reading, cf. United States v. Fabrizio, 385 U. S. 263, 266-267 (1966), and thus conclude that the acts for which appellees have been indicted fall within the generic term extortion as used in the Travel Act. The judgment of the United States District Court for the Eastern District of Pennsylvania is reversed and the case remanded to that court for further proceedings consistent with this opinion. It is so ordered. Mr. Justice White took no part in the decision of this case. UNITED STATES v. DONRUSS CO. 297 Opinion of the Court. UNITED STATES v. DONRUSS CO. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT. No. 17. Argued October 22-23, 1968.—Decided January 13, 1969. Tax imposed by §§ 531-537 of the Internal Revenue Code of 1954 on accumulated earnings of a corporation “formed or availed of for the purpose of avoiding the income tax with respect to its shareholders” held to apply if such tax avoidance was one of the purposes of an unreasonable accumulation of corporate earnings even though it was not the dominant, controlling, or impelling motive for the accumulation. Pp. 300-309. 384 F. 2d 292, reversed and remanded. Assistant Attorney General Rogovin argued the cause for the United States. With him on the brief were Solicitor General Griswold, Harris Weinstein, Richard C. Pugh, and Martin T. Goldblum. Richard L. Braunstein argued the cause for respondent. With him on the brief was Bernard J. Long. Richard E. Nolan and John P. Carroll, Jr., filed a brief for the Shaw-Walker Co., as amicus curiae, urging affirmance. Mr. Justice Marshall delivered the opinion of the Court. This case involves the application of § § 531-537 of the Internal Revenue Code of 1954, which impose a surtax on corporations ‘'formed or availed of for the purpose of avoiding the income tax with respect to . . . [their] shareholders ... by permitting earnings and profits to accumulate instead of being divided or distributed.” Respondent is a corporation engaged in the manufacture and sale of bubble gum and candy and in the operation of a farm. Since 1954, all of respondent’s out 298 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. standing stock has been owned by Don B. Wiener. In each of the tax years from 1955 to 1961, respondent operated profitably, increasing its undistributed earnings from $1,021,288.58 to $1,679,315.37. The company did not make loans to Wiener or provide him with benefits other than a salary, nor did it make investments unrelated to its business, but no dividends were declared during the entire period. Wiener gave several reasons for respondent’s accumulation policy; among them were capital and inventory requirements, increasing costs, and the risks inherent in the particular business and in the general economy. Wiener also expressed a general desire to expand and a more specific desire to invest in respondent’s major distributor, the Tom Huston Peanut Company. There were no definite plans during the tax years in question, but in 1964 respondent purchased 10,000 shares in Tom Huston at a cost of $380,000. The Commissioner of Internal Revenue assessed accumulated earnings taxes against respondent for the years 1960 and 1961. Respondent paid the tax and brought this refund suit. At the conclusion of the trial, the Government specifically requested that the jury be instructed that: “[I]t is not necessary that avoidance of shareholder’s tax be the sole purpose for the unreasonable accumulation of earnings; it is sufficient if it is one of the purposes for the company’s accumulation policy.” The instruction was refused and the court instructed the jury in the terms of the statute that tax avoidance had to be “the purpose” of the accumulations. The jury, in response to interrogatories, found that respondent had accumulated earnings beyond the reasonable needs of its business, but that it had not retained its earnings UNITED STATES v. DONRUSS CO. 299 297 Opinion of the Court. for the purpose of avoiding income tax on Wiener. Judgment was entered for respondent and the Government appealed. The Court of Appeals reversed and remanded for a new trial, holding that “the jury might well have been led to believe that tax avoidance must be the sole purpose behind an accumulation in order to impose the accumulated earnings tax.” Donruss Co. v. United States, 384 F. 2d 292, 298 (C. A. 6th Cir. 1967). The Court of Appeals rejected the Government’s proposed instruction and held that the tax applied only if tax avoidance was the “dominant, controlling, or impelling motive” for the accumulation. Ibid. We granted the Government’s petition for certiorari to resolve a conflict among the circuits 1 over the degree of “purpose” necessary for the application of the accumulated earnings tax, and because of the importance of that question in the administration of the tax. 390 U. S. 1023 (1968). 1 The court below adopted the view of the First Circuit. See Young Motor Co. v. Commissioner, 281 F. 2d 488, 491 (1960); see also Apollo Industries, Inc. v. Commissioner, 358 F. 2d 867, 875-876 (1966). The Second Circuit has rejected “the view that the prevention of the imposition of surtaxes must have been shown to have been the dominant factor behind the accumulations.” Trico Prods. Corp. v. Commissioner, 137 F. 2d 424, 426, cert, denied, 320 U. S. 799 (1943). See also United States v. Duke Laboratories, Inc., 337 F. 2d 280 (1964). The Fifth Circuit has also rejected the position that tax avoidance must be the “primary or dominant” purpose of the accumulation. Barrow Mjg. Co. v. Commissioner, 294 F. 2d 79, 82 (1961), cert, denied, 369 U. S. 817 (1962). The Eighth and Tenth Circuits have taken what appears to be an intermediate position, holding that imposition of the tax is proper if tax avoidance is one of the “determinating purposes.” Kerr-Cochran, Inc. v. Commissioner, 253 F. 2d 121, 123 (C. A. 8th Cir. 1958); World Pub. Co. v. United States, 169 F. 2d 186, 189 (C. A. 10th Cir. 1948), cert, denied, 335 U. S. 911 (1949). The Sixth Circuit has adhered to its view in Shaw-Walker Co. v. Commissioner, 390 F. 2d 205 (1968). A petition for certiorari in that case is now pending in this Court. 300 OCTOBER TERM, 1968. Opinion of the Court. 393 U.S. I. The accumulated earnings tax is established by §§ 531-537 of the Internal Revenue Code of 1954. Section 531 imposes the tax.2 Section 532 defines the corporations to which the tax shall apply. That section provides: “The accumulated earnings tax imposed by section 531 shall apply to every corporation . . . formed or availed of for the purpose of avoiding the income tax with respect to its shareholders or the shareholders of any other corporation, by permitting earnings and profits to accumulate instead of being divided or distributed.” 3 Section 533 (a) provides that: “For purposes of section 532, the fact that the earnings and profits of a corporation are permitted to accumulate beyond the reasonable needs of the business shall be determinative of the purpose to avoid the income tax with respect to shareholders, unless the corporation by the preponderance of the evidence shall prove to the contrary.” In cases before the Tax Court, § 534 allows the taxpayer in certain instances to shift to the Commissioner the burden of proving accumulation beyond the reasonable needs of the business. Section 535 defines “accu- 2 The rates are 27^% of the accumulated taxable income (defined in § 535) not in excess of $100,000, plus 38^2% of the accumulated taxable income in excess of $100,000. Internal Revenue Code of 1954, §531. 3 Section 532 (b) exempts personal holding companies, foreign personal holding companies, and certain tax-exempt corporations. Internal Revenue Code of 1954, § 532 (b). Both types of holding companies are taxed under other provisions of the Code. See Internal Revenue Code of 1954, §§ 541-547 (personal holding companies); Internal Revenue Code of 1954, §§ 551-558 (foreign personal holding companies). UNITED STATES v. DONRUSS CO. 301 297 Opinion of the Court. mulated taxable income.” It also provides for a credit for that portion of the earnings and profits retained for the reasonable needs of the business, with a minimum lifetime credit of $100,000. Finally, § 537 provides that “reasonable needs of the business” include “reasonably anticipated” needs. The dispute before us is a narrow one. The Government contends that in order to rebut the presumption contained in § 533 (a), the taxpayer must establish by the preponderance of the evidence that tax avoidance with respect to shareholders was not “one of the purposes” for the accumulation of earnings beyond the reasonable needs of the business. Respondent argues that it may rebut that presumption by demonstrating that tax avoidance was not the “dominant, controlling, or impelling” reason for the accumulation. Neither party questions the trial court’s instructions on the issue of whether the accumulation was beyond the reasonable needs of the business, and respondent does not challenge the jury’s finding that its accumulation was indeed unreasonable. We intimate no opinion about the standards governing reasonableness of corporate accumulations. We conclude from an examination of the language, the purpose, and the legislative history of the statute that the Government’s construction is the correct one. Accordingly, we reverse the judgment of the court below and remand the case for a new trial on the issue of whether avoidance of shareholder tax was one of the purposes of respondent’s accumulations. II. Both parties argue that the language of the statute supports their conclusion. Respondent argues that Congress could have used the article “a” in §§ 532 and 533 if it had intended to adopt the Government’s test. Instead, argues respondent, Congress used the article “the” 302 OCTOBER TERM, 1968. Opinion of the Court. 393 U.S. in the operative part of the statute, thus indicating that tax avoidance must at least be the dominant motive for the accumulation.4 The Government argues that respondent’s construction gives an unduly narrow effect to the word “the.” Instead, contends the Government, this Court should focus on the entire phrase “availed of for the purpose.” Any language of limitation should logically modify “availed of” rather than “purpose” and no such language is present. The Government further argues that Congress has dealt with similar problems in other sections of the Code and has used terms such as “principal purpose,” §§ 269 (a), 357 (b)(1), and “used principally,” § 355 (a)(1)(B). Similar terms could have been used in §§ 532 (a) and 533 (a), but were not. Finally, the Government points to the fact that prior to adoption of § 102 of the Revenue Act of 1938 (52 Stat. 483) the forerunner of § 532 (a) used the words “the purpose,” while the evidentiary section used the words “a purpose,” thus indicating that tax avoidance need only be one purpose. Respondent replies that the change from “a” to “the” in the evidentiary section supports its conclusion. Respondent also contends that the statute before the change was consistent with its construction. We find both parties’ arguments inconclusive. The phrase “availed of for the purpose” is inherently vague, and there is no indication in the legislative history that Congress intended to attach any particular significance to the use of the article “the.” Nor do we find the change in the evidentiary section from “a” to “the” at all helpful. That change came as part of a significant revision in the operation of the section, and there is no indication that it was other than a mere change in 4 The First Circuit in Young Motor Co. v. Commissioner, 281 F. 2d 488 (1960), in part based its conclusion that tax avoidance must be the “primary or dominant purpose” on the use of “the” rather than “a.” UNITED STATES v. DONRUSS CO. 303 297 Opinion of the Court. phraseology.5 6 Indeed, the Report of the Senate Finance Committee accompanying the bill that was to become the Revenue Act of 1938, insofar as it sheds any light on the question, supports the view of the Government. “The proposal is to strengthen [the evidentiary] section by requiring the taxpayer by a clear preponderance of the evidence to prove the absence of any purpose to avoid surtaxes upon shareholders . . . .” S. Rep. No. 1567, 75th Cong., 3d Sess., 5 (1938) (emphasis added). Since the language of the statute does not provide an answer to the question before us,G we have examined in detail the relevant legislative history. That history leads us to conclude that the test proposed by the Government is consistent with the intent of Congress and is necessary to effectuate the purpose of the accumulated earnings tax. III. The accumulated earnings tax is one congressional attempt to deter use of a corporate entity to avoid personal income taxes. The purpose of the tax “is to compel the company to distribute any profits not needed for the conduct of its business so that, when so distributed, individual stockholders will become liable” for taxes on the dividends received, Helvering v. Chicago Stock Yards Co., 318 U. S. 693, 699 (1943). The tax originated in the Tariff Act of 1913, 38 Stat. 114, the first persona] income tax statute following ratification of the Sixteenth Amendment. That Act imposed a tax on the shareholders of any corporation “formed or fraudulently 5 No change was made in that part of the statute providing that “[t]he fact that any corporation is a mere holding or investment company shall be prima facie evidence of a purpose” to avoid tax. Revenue Act of 1938, § 102 (b), 52 Stat. 483 (emphasis added). 6 The Regulations shed no light on the problem. See Treas. Reg. §§ 1.531-1.537, 26 CFR §§ 1.531-1.537. 304 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. availed of for the purpose of preventing the imposition of such tax through the medium of permitting such gains and profits to accumulate instead of being divided or distributed....” § II (A)(2), 38 Stat. 166. The same section provided that accumulation beyond the reasonable needs of the business “shall be prima facie evidence of a fraudulent purpose to escape such tax . . . .” 38 Stat. 167. In its first years of operation, difficulties in proving a fraudulent purpose made the tax largely ineffective. To meet this problem, Congress deleted the word “fraudulently.” Revenue Act of 1918, § 220, 40 Stat. 1072; see S. Rep. No. 617, 65th Cong., 3d Sess., 5 (1918).7 During the next few years, numerous complaints were made about the ineffectiveness of the accumulated earnings tax. Various attempts were made to strengthen the tax during the 1920’s and 1930’s, but the statute remained essentially the same until 1934. See Joint Committee on the Economic Report, The Taxation of Corporate Surplus Accumulations, 82d Cong., 2d Sess, 200-205 (Comm. Print 1952). In 1934, Congress dealt with one of the more flagrant examples of that ineffectiveness, the personal holding company. Personal holding companies were exempted from the general accumulated earnings tax and were subjected to a tax on undistributed income, regardless of the purpose of that accumulation. Revenue Act of 1934, §§ 102, 351, 48 Stat. 702, 751. The reason for the change was that, “[b]y making partial distribution of profits and by showing some need for the accumulation of the remain- 7 Another major change was made in the Revenue Act of 1921, 42 Stat. 227. Section 220 of that Act shifted the incidence of the accumulated earnings tax from the shareholders to the corporation itself. 42 Stat. 247. The change was prompted by the decision in Eisner v. Macomber, 252 U. S. 189 (1920). See H. R. Rep. No. 350, 67th Cong., 1st Sess., 12-13 (1921). UNITED STATES v. DONRUSS CO. 305 297 Opinion of the Court. ing profits, the taxpayer makes it difficult to prove a purpose to avoid taxes.” H. R. Rep. No. 704, 73d Cong., 2d Sess., 11 (1934). Again in 1936, Congress attempted to solve the continuing problem of undistributed corporate earnings. “The difficulty of proving such [tax avoidance] purpose . . . has rendered . . . [the accumulated earnings tax] more or less ineffective.” H. R. Rep. No. 2475, 74th Cong., 2d Sess., 5 (1936). However, Congress did not change the requirement that “purpose” must be proved. Rather, it attempted the alternative method of imposing an undistributed profits surtax on most corporations. Revenue Act of 1936, § 14, 49 Stat. 1655. The tax on personal holding companies and the general accumulated earnings tax were retained.8 The problem continued to be acute and several proposals were made by and to Congress in 1938. The House Ways and Means Committee proposed a surtax on all closely held operating companies. Only minor changes were proposed by the Committee in the accumulated earnings tax. See H. R. Rep. No. 1860, 75th Cong., 3d Sess. (1938). The House rejected all but the changes in the accumulated earnings tax. The Senate approached the problem of retained corporate earnings in a different way. Labeling the House Committee’s recommendation a “drastic” remedy, the Senate Finance Committee recommended “dealing with this problem where it should be dealt with—namely, in section 102, relating to corporations improperly accumulating surplus. The proposal is to strengthen this section by requiring the taxpayer by a 8 Tax avoidance and evasion were a major subject of congressional concern in 1937. See, e. g., H. R. Rep. No. 1546, 75th Cong., 1st Sess. (1937). Congress addressed itself to another aspect of the problem by establishing a separate method for the taxation of foreign personal holding companies, again without regard to corporate intent. Revenue Act of 1937, § 201, 50 Stat. 818. 306 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. clear preponderance of the evidence to prove the absence of any purpose to avoid surtaxes upon shareholders after it has been determined that the earnings and profits have been unreasonably accumulated.” S. Rep. No. 1567, 75th Cong., 3d Sess., 5 (1938). The change was thought to make it clear that the burden of proving intent, rather than the lesser burden of producing evidence on the question, was to be on the taxpayer. Id., at 16. The Senate proposal was enacted. Revenue Act of 1938, § 102, 52 Stat. 483. The Committee felt that a “reasonable enforcement of this revised section will reduce tax avoidance . . . .” S. Rep. No. 1567, supra, at 5. Only insignificant changes were made in the accumulated earnings tax from 1938 to 1954. Discussion of the problem continued, however, and numerous proposals were made to alter the tax. See, e. g., Joint Committee on the Economic Report, The Taxation of Corporate Surplus Accumulations, 82d Cong., 2d Sess. (Comm. Print 1952). Congress took cognizance of these complaints and incorporated many of them in the Internal Revenue Code of 1954, but no change was made in the required degree of tax avoidance purpose.9 Rather, the changes, which were generally favorable to the taxpayer,10 11 demonstrated congressional disaffection with the effect of the tax and its emphasis on intent. Congress’ reaction to the complaints was to emphasize the reasonable needs of the business as a proper purpose for corporate accumulations11 and to make it easier for the 9 Congress was urged to adopt a test of purpose similar to that proposed by respondent in the present case. See, e. g., Hearings before the House Committee on Ways and Means Pertaining to the General Revision of the Internal Revenue Code, 83d Cong., 1st Sess., pt. 3, p. 2142 (1953). 10 The changes were expected to decrease revenues by $10,000,000 in fiscal year 1955. See S. Rep. No. 1622, 83d Cong., 2d Sess., 72 (1954). 11 Section 535 (c) provided a credit for such accumulations. UNITED STATES v. DONRUSS CO. 307 297 Opinion of the Court. taxpayer to prove those needs.12 As the House Ways and Means Committee said, “Your committee believes it is necessary to retain the penalty tax on unreasonable accumulations as a safeguard against tax avoidance. However, several amendments have been adopted to minimize the threat to corporations accumulating funds for legitimate business purposes . . . H. R. Rep. No. 1337, 83d Cong., 2d Sess., 52 (1954). As this brief summary indicates, the legislative history of the accumulated earnings tax demonstrates a continuing concern with the use of the corporate form to avoid income tax on a corporation’s shareholders. Numerous methods were employed to prevent this practice, all of which proved unsatisfactory in one way or another. Two conclusions can be drawn from Congress’ efforts. First, Congress recognized the tremendous difficulty of ascertaining the purpose of corporate accumulations. Second, it saw that accumulation was often necessary for legitimate and reasonable business purposes. It appears clear to us that the congressional response to these facts has been to emphasize unreasonable accumulation as the most significant factor in the incidence of the tax. The reasonableness of an accumulation, while subject to honest difference of opinion, is a much more objective inquiry, and is susceptible of more effective scrutiny, than are the vagaries of corporate motive. Respondent would have us adopt a test that requires that tax avoidance purpose need be dominant, impelling, or controlling. It seems to us that such a test would exacerbate the problems that Congress was trying to 12 Section 534 allowed the taxpayer to shift to the Commissioner in certain instances the burden of proving unreasonable accumulation. Section 537 included anticipated needs as reasonable needs of the business. In addition to those changes, § 533 (a) omitted the requirement that the taxpayer negate the existence of tax avoidance purpose by a “clear preponderance of the evidence,” and substituted a “preponderance” test. 320-583 0 - 69 - 28 308 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. avoid. Rarely is there one motive, or even one dominant motive, for corporate decisions. Numerous factors contribute to the action ultimately decided upon. Respondent’s test would allow taxpayers to escape the tax when it is proved that at least one other motive was equal to tax avoidance. We doubt that such a determination can be made with any accuracy, and it is certainly one which will depend almost exclusively on the interested testimony of corporate management. Respondent’s test would thus go a long way toward destroying the presumption that Congress created to meet this very problem. As Judge Learned Hand said of the much weaker presumption contained in the Revenue Act of 1921, § 220, 42 Stat. 247, “[a] statute which stands on the footing of the participants’ state of mind may need the support of presumption, indeed be practically unenforceable without it . . . .” United Business Corp. v. Commissioner, 62 F. 2d 754, 755 (C. A. 2d Cir. 1933). And, “[t]he utility of . . . [that] presumption ... is well nigh destroyed if . . . [it] is saddled with requirement of proof of ‘the primary or dominant purpose’ of the accumulation.” Barrow Mfg. Co. v. Commissioner, 294 F. 2d 79, 82 (C. A. 5th Cir. 1961), cert, denied, 369 U. S. 817 (1962). The cases cited by respondent do not convince us to the contrary. For the most part, they lack detailed analysis of the precise problem. Perhaps the leading case for respondent’s position is Young Motor Co. v. Commissioner, 281 F. 2d 488 (C. A. 1st Cir. 1960). That case relied in part upon the use of the article “the” instead of “a.” We have previously rejected that argument. The case also relied, as did the court below, on certain cases from the gift and estate tax areas.13 We find those cases inappo- 13 Commissioner v. Duberstein, 363 U. S. 278 (1960); Allen v. Trust Co. of Georgia, 326 U. S. 630 (1946); City Bank Farmers Trust Co. v. McGowan, 323 U. S. 594 (1945); United States v. Wells, 283 U. S. 102 (1931). UNITED STATES v. DONRUSS CO. 309 297 Opinion of Harlan, J. site. They deal with areas of the Code whose language, purpose, and legislative history are entirely different from those of the accumulated earnings tax. See Commissioner v. Dub er stein, 363 U. S. 278, 284 (1960). Finally, we cannot subscribe to respondent’s suggestion that our holding would make purpose totally irrelevant. It still serves to isolate those cases in which tax avoidance motives did not contribute to the decision to accumulate. Obviously in such a case imposition of the tax would be futile. In addition, “purpose” means more than mere knowledge, undoubtedly present in nearly every case. It is still open to the taxpayer to show that even though knowledge of the tax consequences was present, that knowledge did not contribute to the decision to accumulate earnings. Reversed and remanded. Mr. Justice Harlan, whom Mr. Justice Douglas and Mr. Justice Stewart join, concurring in part and dissenting in part. I agree with the Court that the Court of Appeals erred in framing its remand order in this case. However, I would modify the order in a different way, which I find more in harmony with the statutory scheme than the one the Court has chosen. Section 532 of the Internal Revenue Code of 1954 states in relevant part: “The accumulated earnings tax imposed by section 531 shall apply to every corporation . . . formed or availed of for the purpose of avoiding the income tax with respect to its shareholders . . . , by permitting earnings and profits to accumulate instead of being divided or distributed.” Section 533 (a) provides: “For purposes of section 532, the fact that the earnings and profits of a corporation are permitted to 310 OCTOBER TERM, 1968. Opinion of Harlan, J. 393 U.S. accumulate beyond the reasonable needs of the business shall be determinative of the purpose to avoid the income tax with respect to shareholders, unless the corporation by the preponderance of the evidence shall prove to the contrary.” Our task is to decide what jury instruction with respect to the definition of “purpose” comports best with Congress’ intent as revealed by this statutory language and the underlying legislative history. I am in accord with much of the Court’s opinion. I too find that the successive changes in the wording of the statute, even when read together with the legislative history, do not help in our inquiry. I too find that the legislative history reveals a progressive congressional intention to rely more and more heavily upon a comparatively objective criterion: whether the accumulated earnings were in excess of the corporation’s reasonable business needs. Nevertheless, it is apparent from the language of § 533 (a), and from the legislative materials, that Congress chose still to give the taxpayer a “last clear chance” to prove that, despite the unreasonableness of the accumulation by business standards, the accumulation was not due to the proscribed purpose. My difficulty with the instruction approved by the Court is that in most instances it will effectively deny to the taxpayer the “last clear chance” which Congress clearly meant to afford and substitute a very fuzzy chance indeed. I reach this conclusion on what I regard as commonsense grounds. In practice, the accumulated-earnings provisions are applied only to closely held corporations, controlled by relatively few shareholders.1 As the Court admits, the shareholders almost always will have been advised that accumulation of corporate earnings will 1See S. Rep. No. 1622, 83d Cong., 2d Sess., 69 (1954); B. Bittker & J. Eustice, Federal Income Taxation of Corporations and Shareholders 213-214 (2d ed. 1966). UNITED STATES v. DONRUSS CO. 311 297 Opinion of Harlan, J. result in individual tax savings. That fact will be before the jury. In accord with the Court’s decision, the jury will be instructed that “it is sufficient if [avoidance of shareholders’ tax] is one of the purposes of the company’s accumulation policy.” (Emphasis supplied.) Under these circumstances, the jury is very likely to believe that it must find the forbidden purpose and impose the tax whenever the Government shows that the taxpayer has accumulated earnings with knowledge of the resultant tax saving, irrespective of any contrary evidence put forward by the taxpayer. The approved instruction simply tells the jury that the taxpayer must have had a “purpose” to avoid individual taxes. In everyday speech, we commonly say that a person has a “purpose” to do something when he acts with knowledge that the thing will inevitably result. Even were the jury legally knowledgeable, it might reach the same conclusion, for, assuming that the word “purpose” as used in § 532 is synonymous with “intention,” 2 there is ample authority for the proposition that an actor will be deemed to have an “intention” to cause consequences of an act if “the actor . . . believes that the consequences are substantially certain to result from [the act].”3 To confront the taxpayer with this likelihood that its evidence of another purpose will be entirely disregarded is incon- 2 “Purpose” is listed as a synonym for “intention” in Black’s Law Dictionary, at 948 (4th ed. 1968). Many courts have used the two words interchangeably in construing §§ 532 and 533 (a). See, e. g., Henry Van Hummed, Inc. v. Commissioner, 364 F. 2d 746 (1966); Youngs Rubber Corp. v. Commissioner, 331 F. 2d 12 (1964); Smoot Sand & Gravel Corp. v. Commissioner, 241 F. 2d 197 (1957); Harry A. Koch Co. v. Vinal, 228 F. Supp. 782 (1964); Motor Fuel Carriers, Inc. v. United States, 202 F. Supp. 497 (1962), vacated on other grounds, 322 F. 2d 576 (1963). 3 Restatement (Second), Torts §8 A (1965). See also id., Comment b; R. Perkins, Criminal Law 657-658 (1957); Cook, Act, Intention, and Motive in the Criminal Law, 26 Yale L. J. 645 (1917). 312 OCTOBER TERM, 1968. Opinion of Harlan, J. 393 U. S. sistent with the provision of § 533 (a) which explicitly affords the taxpayer an opportunity to avoid the tax by showing “by the preponderance of the evidence” that it had a “contrary” purpose. The Court, while conceding that the shareholders will know of the expected tax saving “in nearly every case,” see ante, at 309, reasons that the taxpayer will have its opportunity because “[i]t is still open to the taxpayer to show that even though knowledge of the tax consequences was present, that knowledge did not contribute to the decision to accumulate earnings.” Ibid. If, as appears from the Court’s opinion, this exegesis is not to be a part of the jury instruction, then the Court is simply engaging in wishful thinking. If by chance the explication is to be included in the instruction, then the jury will be told to impose the tax only if it finds that a desire to avoid tax “contribute [d] to the decision to accumulate earnings.” Such an instruction would at least inform the jury that the tax consequence must actually have been in the shareholders’ minds when they decided to accumulate. However, once the shareholders are shown to have had knowledge of the tax saving, it still will be extraordinarily difficult for the taxpayer to convince the jury that the knowledge did not play some part, however slight, in the decision. Again, it seems to me that such an instruction would not give proper scope to the congressional intention that the taxpayer have a chance to prove “by the preponderance of the evidence” that it had a “contrary” purpose. I would therefore adopt an instruction less loaded against the taxpayer. The Court of Appeals for the Sixth Circuit decided, and respondent argues, that the tax should apply only if the jury finds that tax avoidance was the “dominant, controlling, or impelling motive” for the accumulation. I agree with the Court that such an instruction would UNITED STATES v. DONRUSS CO. 313 297 Opinion of Harlan, J. be improper. It apparently would require the Government to show that tax avoidance was stronger than any other motive, and perhaps that it was stronger than all other motives put together. This would largely negate the statutory presumption of improper purpose contained in § 533 (a). In my view, it would also result in nonimposition of tax in cases where Congress meant there to be liability, for I think that Congress must at least have intended that the tax should apply whenever the taxpayer would have distributed, instead of accumulating, corporate earnings had there been no possibility of a tax saving. These considerations suggest what I believe to be the best rule: the jury should be instructed to impose the tax if it finds that the taxpayer would not have accumulated earnings but for its knowledge that a tax saving would result. This “but for cause” test would be consistent with the statutory language. It would allow the Government to succeed if it could show, with the aid of the § 533 (a) presumption, that without the spur of tax avoidance the taxpayer would not have accumulated the earnings, thus giving effect to the presumption and fulfilling Congress’ desire to penalize those with a “purpose” to avoid the tax. It would permit the taxpayer to escape the tax if it could convince the jury that for other, perhaps irrational, reasons it would have accumulated even had no tax saving been possible, thus affording the opportunity for proof of a “contrary” purpose which Congress intended to provide. In addition, I believe that this instruction would be relatively easy for a jury to understand and apply. For all of these reasons, I consider it preferable to the standard adopted by the Court. 314 OCTOBER TERM, 1968. Per Curiam. 393 U. S. BERGER v. CALIFORNIA. ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT. No. 221, Mise.—Decided January 13, 1969. The holding in Barber v. Page, 390 U. S. 719, that the absence of a witness from the jurisdiction would not justify the use at trial of preliminary hearing testimony unless the State had made a good-faith effort to secure the witness’ presence, should be given retroactive application. Certiorari granted; 258 Cal. App. 2d 622, 66 Cal. Rptr. 213, vacated and remanded. Thomas C. Lynch, Attorney General of California, William E. James, Assistant Attorney General, and Marvin A. Bauer, Deputy Attorney General, for respondent. Per Curiam. Petitioner was convicted of robbery and kidnaping for the purpose of robbery. The victim, one Carl Arthur Dunston, testified against petitioner at a preliminary hearing; there was evidence that at the time of the trial Dunston was in Colorado. A state investigator tried to contact Dunston on the telephone; he got through to some of Dunston’s relatives and to his employer, but not to Dunston himself. Although two telegrams were received, allegedly from Dunston, no subpoena was served. At trial, the transcript of Dunston’s preliminary hearing testimony was introduced into evidence. On appeal, the Court of Appeal for the Second Appellate District of California held that this procedure did not deny petitioner his Sixth Amendment right to be confronted with the witnesses against him since Dunston was absent from the State of his own free will and since petitioner’s counsel had had an adequate opportunity to BERGER v. CALIFORNIA. 315 314 Per Curiam. cross-examine Dunston at the preliminary hearing. 258 Cal. App. 2d 622, 66 Cal. Rptr. 213 (1968). The California Supreme Court denied petitioner a hearing on April 4, 1968. Nineteen days later we held in the case of Barber v. Page, 390 U. S. 719, that the absence of a witness from the jurisdiction would not justify the use at trial of preliminary hearing testimony unless the State had made a good-faith effort to secure the witness’ presence. The sole question in this case is whether the holding of Barber n. Page should be given retroactive application. We think that it should. Clearly, petitioner’s inability to cross-examine Dunston at trial may have had a significant effect on the “integrity of the fact-finding process.” Linkletter v. Walker, 381 U. S. 618, 639 (1965); cf. Roberts v. Russell, 392 U. S. 293 (1968); McConnell n. Rhay, ante, p. 2 (1968). As we pointed out in Barber v. Page, one of the important objects of the right of confrontation was to guarantee that the fact finder had an adequate opportunity to assess the credibility of witnesses. 390 U. S., at 721. And California’s claim of a significant countervailing interest based upon its reliance on previous standards, see Stovall v. Denno, 388 U. S. 293, 297 (1967), is most unpersuasive. Barber v. Page was clearly foreshadowed, if not preordained, by this Court’s decision in Pointer v. Texas, 380 U. S. 400 (1965), which was handed down more than a year before petitioner’s trial. Accordingly, we can see no reason why Barber v. Page should not be given fully retroactive application. The motion for leave to proceed in jorma pauperis and the petition for writ of certiorari are granted. The judgment of the Court of Appeal is vacated and the case is remanded for reconsideration in light of this Court’s decision in Barber v. Page, 390 U. S. 719 (1968). It is so ordered. 316 OCTOBER TERM, 1968. January 13, 1969. 393 U. S. BOYD et AL. V. CLARK, ATTORNEY GENERAL, et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. No. 490. Decided January 13, 1969. 287 F. Supp. 561, affirmed. Victor Rabinowitz and Leonard B. Boudin for appellants. Solicitor General Griswold for appellees. Per Curiam. The judgment is affirmed, Clark v. Gabriel, ante, p. 256, without reaching the jurisdictional question raised under 28 U. S. C. § 1331. MARKHAM ADVERTISING CO., INC., et al. v. WASHINGTON et al. APPEAL FROM THE SUPREME COURT OF WASHINGTON. No. 648. Decided January 13, 1969. 73 Wash. 2d 405, 439 P. 2d 248, appeal dismissed. Alfred J. Schweppe and Thomas R. Beierle for appellants. Per Curiam. The appeal is dismissed for want of a substantial federal question. DECISIONS PER CURIAM. 317 393 U. S. January 13, 1969. FREED v. BALDI et al. APPEAL FROM THE SUPREME COURT OF COLORADO. No. 652. Decided January 13, 1969. — Colo. —, 443 P. 2d 716, appeal dismissed. George Louis Creamer for appellant. Per Curiam. The appeal is dismissed for want of a substantial federal question. BENNETT et al. v. COTTINGHAM et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA. No. 665. Decided January 13, 1969. 290 F. Supp. 759, affirmed. Jack Greenberg, Michael Meltsner, Melvyn Zarr, Oscar W. Adams, Jr., and Anthony G. Amsterdam for appellants. MacDonald Gallion, Attorney General of Alabama, pro se, and Robert P. Bradley, Assistant Attorney General, for appellees. Per Curiam. The motion to affirm is granted and the judgment is affirmed. The Chief Justice, Mr. Justice Harlan, and Mr. Justice Brennan are of the opinion that probable jurisdiction should be noted. 318 OCTOBER TERM, 1968. January 13, 1969. 393 U.S. ESTRIN ET AL. V. MOSS, COMMISSIONER OF AGRICULTURE OF TENNESSEE, et al. APPEAL FROM THE SUPREME COURT OF TENNESSEE. No. 684. Decided January 13, 1969. 221 Tenn. 657, 430 S. W. 2d 345, appeal dismissed. Robert W. Healy for appellants. George F. McCanless, Attorney General of Tennessee, and Paul E. Jennings, Assistant Attorney General, for appellees. Per Curiam. The appeal is dismissed for want of a substantial federal question. WARD et al. v. JOHNSON, PRESIDENT OF THE UNITED STATES, et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS. No. 703. Decided January 13, 1969. Appeal dismissed. Solicitor General Griswold for appellees. Per Curiam. The motion to dispense with printing the jurisdictional statement is granted. The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. DECISIONS PER CURIAM. 319 393 U. S. January 13, 1969. WILLIAMS & CO, INC. v. CITY OF PITTSBURGH et al. APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. No. 706. Decided January 13, 1969. 430 Pa. 509, 244 A. 2d 37, appeal dismissed. Norman J. Cowie for appellant. Robert E. Dauer for appellees. Per Curiam. The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. COX et al. v. UNITED STATES et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI. No. 708. Decided January 13, 1969. Affirmed. Solicitor General Griswold, Assistant Attorney General Zimmerman, Howard E. Shapiro, Robert W. Ginnane, and Fritz R. Kahn for the United States et al. Per Curiam. The motion to affirm is granted and the judgment is affirmed. 320 OCTOBER TERM, 1968. January 13, 1969. 393 U.S. BENNETT v. MISSISSIPPI. APPEAL FROM THE SUPREME COURT OF MISSISSIPPI. No. 719. Decided January 13, 1969. 211 So. 2d 520, appeal dismissed and certiorari denied. Albert Sidney Johnston, Jr., for appellant. Per Curiam. The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied. WILLIAMS et al. v. VIRGINIA STATE BOARD OF ELECTIONS et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA. No. 733. Decided January 13, 1969. 288 F. Supp. 622, affirmed. Howard S. Spering and Robert L. Montague III for appellants. Per Curiam. The judgment is affirmed. DECISIONS PER CURIAM. 321 393 U. S. January 13, 1969. HILLIARD v. CITY OF GAINESVILLE. APPEAL FROM THE SUPREME COURT OF FLORIDA. No. 745. Decided January 13, 1969. 213 So. 2d 689, appeal dismissed. Richard W. Wilson for appellant. Osee R. Fagan for appellee. Per Curiam. The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted. MID-VALLEY PIPELINE CO. v. KING, COMMISSIONER OF REVENUE, et al. APPEAL FROM THE SUPREME COURT OF TENNESSEE. No. 756. Decided January 13, 1969. 221 Tenn. 724, 431 S. W. 2d 277, appeal dismissed. H. Vincent E. Mitchell and J. Martin Regan for appellant. George F. McCanless, Attorney General of Tennessee, and Milton P. Rice, Deputy Attorney General, for appellees. Per Curiam. The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. Mr. Justice Stewart and Mr. Justice White are of the opinion that probable jurisdiction should be noted. 322 OCTOBER TERM, 1968. January 13, 1969. 393 U. S. ADKINS TRANSFER CO., INC., et al. v. DORNBOS et al. APPEAL FROM THE SUPREME COURT OF MICHIGAN. No. 738. Decided January 13, 1969. Appeal dismissed. H. Winston Hathaway for appellants. Harold S. Sawyer for appellees Dornbos et al., and Robert E. Plunkett for appellee The Kroger Co. Per Curiam. The motions to dismiss are granted and the appeal is dismissed for want of a final judgment. Mr. Justice Black and Mr. Justice Douglas are of the opinion that the appeal should be dismissed for want of a substantial federal question. Mr. Justice Stewart is of the opinion that further consideration of the question of jurisdiction should be postponed to the hearing of the case on the merits. Mr. Justice Fortas took no part in the consideration or decision of this case. BROWN v. COINER, WARDEN. APPEAL FROM THE SUPREME COURT OF APPEALS OF WEST VIRGINIA. No. 871, Mise. Decided January 13, 1969. Appeal dismissed and certiorari denied. Per Curiam. The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied. DECISIONS PER CURIAM. 323 393 U. S. January 13, 1969. SNELL ET AL. v. WYMAN, COMMISSIONER OF DEPARTMENT OF SOCIAL SERVICES OF NEW YORK, et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. No. 191. Decided January 13, 1969. 281 F. Supp. 853, affirmed. James J. Graham and Martin Garbus for appellants. Louis J. Lefkowitz, Attorney General of New York, Samuel A. Hirshowitz, First Assistant Attorney General, and Charles A. La Torella, Jr., and Maria L. Marcus, Assistant Attorneys General, for Wyman, and J. Lee Rankin and Stanley Buchsbaum for Ginsberg, appellees. Solicitor General Griswold, Assistant Attorney General Weisl, Peter L. Strauss, and Morton Hollander for the United States, as amicus curiae, urging affirmance. Per Curiam. The motions to affirm are granted and the judgment is affirmed. Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted. 320-583 0 - 69 - 29 324 OCTOBER TERM, 1968. Syllabus. 393 U. S. GLOVER et al. v. ST. LOUIS-SAN FRANCISCO RAILWAY CO. et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 38. Argued November 14, 1968.—Decided January 14, 1969. Petitioners, a group of Negroes and whites employed as carmen helpers by respondent railroad, brought this action for damages and injunctive relief against the railroad and respondent union (the bargaining agent for carmen employees), claiming that respondents acted in concert to bar Negroes from promotion wholly because of race. Upholding respondents’ contention that petitioners had failed to exhaust their contractual or administrative remedies, the District Court dismissed the amended complaint, despite petitioners’ allegations that a formal effort to pursue such remedies would be absolutely futile. The Court of Appeals affirmed. Held: 1. The federal courts have jurisdiction over this action which essentially involves a dispute between some employees, on the one hand, and union and management together, on the other, and not a dispute between employees and a carrier concerning the meaning of the terms of a collective bargaining agreement, over which the Railroad Adjustment Board would have exclusive jurisdiction under the Railway Labor Act. Pp. 328-329. 2. In this case where resort to contractual or administrative remedies would be wholly fruitless, petitioners’ failure to exhaust such remedies constitutes no bar to judicial review of their claims. Pp. 329-331. 386 F. 2d 452, reversed and remanded. William M. Acker, Jr., argued the cause and filed a brief for petitioners. Donald W. Fisher argued the cause for respondents. On the brief for respondent St. Louis-San Francisco Railway Co. was Paul R. Moody. With Mr. Fisher on the brief for respondent Brotherhood of Railway Carmen of America were Richard R. Lyman and Jerome A. Cooper. GLOVER v. ST. LOUIS-S. F. R. CO. 325 324 Opinion of the Court. Mr. Justice Black delivered the opinion of the Court. The 13 petitioners here, eight Negroes and five white men, are all employees of the respondent railroad, whose duties are to repair and maintain passenger and freight cars in the railroad’s yard at Birmingham, Alabama. They brought this action in the United States District Court against the railroad and the Brotherhood of Railway Carmen of America, which is the duly selected bargaining agent for carmen employees. The complaint alleged that all of the plaintiffs were qualified by experience to do the work of carmen but that all had been classified as carmen helpers for many years and had not been promoted. The complaint went on to allege the following explanation for the railroad’s refusal to promote them: “In order to avoid calling out Negro plaintiffs to work as Carmen and to avoid promoting Negro plaintiffs to Carmen, in accordance with a tacit understanding between defendants and a subrosa agreement between the Frisco and certain officials of the Brotherhood, defendant Frisco has for a considerable period of time used so-called ‘apprentices’ to do the work of Carmen instead of calling out plaintiffs to do said work as required by the Collective Bargaining Agreement as properly and customarily interpreted; and the Frisco has used this means to avoid giving plaintiffs work at Carmen wage scale and permanent jobs in the classification of Carmen. This denial to plaintiffs of work as Carmen has been contrary to previous custom and practice by defendants in regard to seniority as far as ‘Upgrade Carmen’ are concerned. Defendant Frisco is not calling any of plaintiffs to work as Carmen in order to avoid having to promote any Negroes to Carmen.” 326 OCTOBER TERM, 1968. Opinion of the Court. 393 U.S. The complaint also claimed that each plaintiff had lost in excess of $10,000 in wages as the result of being a victim of “an invidious racial discrimination,” and prayed for individual damages, for an injunction to cause the defendants to cease and desist from their discrimination against petitioners and their class and “for any further, or different relief as may be meet and proper . . . .” The respondents moved to dismiss the complaint on the ground, among others, that petitioners had not exhausted the administrative remedies provided for them by the grievance machinery in the collective bargaining agreement, in the constitution of the Brotherhood, and before the National Railroad Adjustment Board. The District Court, in an unreported opinion, sustained the motion to dismiss, and the petitioners then filed the following amendment to their complaint: “On many occasions the Negro plaintiffs through one or more of their number, have complained both to representatives of the Brotherhood and to representatives of the Company about the foregoing discrimination and violation of the Collective Bargaining Agreement. Said Negro plaintiffs have also called upon the Brotherhood to process a grievance on their behalf with the Company under the machinery provided by the Collective Bargaining Agreement. Although a representative of the Brotherhood once indicated to the Negro plaintiffs that the Brotherhood would ‘investigate the situation,’ nothing concrete was ever done by the Brotherhood and no grievance was ever filed. Other representatives of the Brotherhood told the Negro plaintiffs time and time again: (a) that they were kidding themselves if they thought they could ever get white men’s jobs; (b) that nothing would ever be done for them; and (c) that to file a formal complaint with the Brotherhood or with the Company would be a waste of their GLOVER v. ST. LOUIS-S. F. R. CO. 327 324 Opinion of the Court. time. They were told the same things by local representatives of the Company. They were treated with condescension by both Brotherhood and Company, sometimes laughed at and sometimes ‘cussed,’ but never taken seriously. When the white plaintiffs brought their plight to the attention of the Brotherhood, they got substantially the same treatment which the Negro plaintiffs received, except that they were called ‘nigger lovers’ and were told that they were just inviting trouble. Both defendants attempted to intimidate plaintiffs, Negro and white. Plaintiffs have been completely frustrated in their efforts to present their grievance either to the Brotherhood or to the Company. In addition, to employ the purported internal complaint machinery within the Brotherhood itself would only add to plaintiffs’ frustration and, if ever possible to pursue it to a final conclusion it would take years. To process a grievance with the Company without the cooperation of the Brotherhood would be a useless formality. To take the grievance before the National Railroad Adjustment Board (a tribunal composed of paid representatives from the Companies and the Brotherhoods) would consume an average time of five years, and would be completely futile under the instant circumstances where the Company and the Brotherhood are working ‘hand-inglove.’ All of these purported administrative remedies are wholly inadequate, and to require their complete exhaustion would simply add to plaintiffs’ expense and frustration, would exhaust plaintiffs, and would amount to a denial of ‘due process of law,’ prohibited by the Constitution of the United States.” The District Court again sustained the motion to dismiss. The Court of Appeals affirmed the dismissal, agreeing 328 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. with the opinion of the District Court and adding several authorities to those cited by the District Court, 386 F. 2d 452 (C. A. 5th Cir. 1967), and we granted certiorari, 390 U. S. 1023 (1968). We think that none of the authorities cited in either opinion justify the dismissal and reverse and remand the case for trial in the District Court. It is true, as the respondents here contend, that this Court has held that the Railroad Adjustment Board has exclusive jurisdiction, under § 3 First (i) of the Railway Labor Act, set out below,1 to interpret the meaning of the terms of a collective bargaining agreement.1 2 We have held, however, that § 3 First (i) by its own terms applies only to “disputes between an employee or group of employees and a carrier or carriers.” Conley v. Gibson, 355 U. S. 41, 44 (1957). In Conley, as in the present case, the suit was one brought by the employees against their own union, claiming breach of the duty of fair representation, and we held that the jurisdiction of the federal courts was clear. In the present case, of course, the petitioners sought relief not only against their union but also against the railroad, and it might at one time have been thought that the jurisdiction of the Railroad Adjust- 1 In full, §3 First (i) reads: “The disputes between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, including cases pending and unadjusted on the date of approval of this Act [June 21, 1934], shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of the facts and all supporting data bearing upon the disputes.” 48 Stat. 1191, 45 U. S. C. § 153 First (i). 2 See, e. g., Slocum v. Delaware, L. & W. R. Co., 339 U. S. 239. GLOVER v. ST. LOUIS-S. F. R. CO. 329 324 Opinion of the Court. ment Board remains exclusive in a fair representation case, to the extent that relief is sought against the railroad for alleged discriminatory performance of an agreement validly entered into and lawful in its terms. See, e. g., Hayes v. Union Pacific R. Co., 184 F. 2d 337 (C. A. 9th Cir. 1950), cert, denied, 340 U. S. 942 (1951). This view, however, was squarely rejected in the Conley case, where we said, “[F]or the reasons set forth in the text we believe [Hayes, supra] was decided incorrectly.” 355 U. S., at 44, n. 4. In this situation no meaningful distinction can be drawn between discriminatory action in negotiating the terms of an agreement and discriminatory enforcement of terms that are fair on their face. Moreover, although the employer is made a party to insure complete and meaningful relief, it still remains true that in essence the “dispute” is one between some employees on the one hand and the union and management together on the other, not one “between an employee or group of employees and a carrier or carriers.” Finally, the Railroad Adjustment Board has no power to order the kind of relief necessary even with respect to the railroad alone, in order to end entirely abuses of the sort alleged here. The federal courts may therefore properly exercise jurisdiction over both the union and the railroad. See also Steele v. Louisville & Nashville R. Co., 323 U. S. 192 (1944). The respondents also argue that the complaint should be dismissed because of the petitioners’ failure to exhaust their remedies under the collective bargaining agreement, the union constitution, and the Railway Labor Act. They rely particularly on Republic Steel Corp. v. Maddox, 379 U. S. 650 (1965), and Vaca v. Sipes, 386 U. S. 171 (1967). The Court has made clear, however, that the exhaustion requirement is subject to a number of exceptions for the variety of situations in which doctrinaire application of the exhaustion rule would defeat 330 OCTOBER TERM, 1968. Opinion of the Court. 393 U. S. the overall purposes of federal labor relations policy. Thus, in Vaca itself the Court stressed: “[I]t is settled that the employee must at least attempt to exhaust exclusive grievance and arbitration procedures established by the bargaining agreement. Republic Steel Corp. v. Maddox, 379 U. S. 650. However, because these contractual remedies have been devised and are often controlled by the union and the employer, they may well prove unsatisfactory or unworkable for the individual grievant. The problem then is to determine under what circumstances the individual employee may obtain judicial review of his breach-of-contract claim despite his failure to secure relief through the contractual remedial procedures.” 386 U. S., at 184-185. The Court in Vaca went on to specify at least two situations in which suit could be brought by the employee despite his failure to exhaust fully his contractual remedies. The circumstances of the present case call into play another of the most obvious exceptions to the exhaustion requirement—the situation where the effort to proceed formally with contractual or administrative remedies would be wholly futile. In a line of cases beginning with Steele v. Louisville & Nashville R. Co., supra, the Court has rejected the contention that employees alleging racial discrimination should be required to submit their controversy to “a group which is in large part chosen by the [defendants] against whom their real complaint is made.” 323 U. S., at 206. And the reasons which prompted the Court to hold as it did about the inadequacy of a remedy before the Adjustment Board apply with equal force to any remedy administered by the union, by the company, or both, to pass on claims by the very employees whose rights they have been charged GLOVER v. ST. LOUIS-S. F. R. CO. 331 324 Harlan, J., concurring. with neglecting and betraying. Here the complaint alleges in the clearest possible terms that a formal effort to pursue contractual or administrative remedies would be absolutely futile. Under these circumstances, the attempt to exhaust contractual remedies, required under Maddox, is easily satisfied by petitioners’ repeated complaints to company and union officials, and no timeconsuming formalities should be demanded of them. The allegations are that the bargaining representatives of the car employees have been acting in concert with the railroad employer to set up schemes and contrivances to bar Negroes from promotion wholly because of race. If that is true, insistence that petitioners exhaust the remedies administered by the union and the railroad would only serve to prolong the deprivation of rights to which these petitioners according to their allegations are justly and legally entitled. The judgment is reversed and the case is remanded for trial. Reversed and remanded. Mr. Justice Harlan, concurring. I join in the Court’s opinion with one addition and one reservation. I believe that Richardson v. Texas 8. R. Zimmerman III for petitioner. Clarence C. Newcomer for respondent. Reported below: 428 Pa. 571, 237 A. 2d 339. No. 306, Mise. Hashfield v. Circuit Court of Monroe County et al. Sup. Ct. Ind. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Ferdinand Samper for petitioner. John J. Dillon, Attorney General of Indiana, Douglas B. McFadden, Assistant Attorney General, and Duejean C. Garrett, Deputy Attorney General, for respondents. Reported below: -------Ind.-----, 234 N. E. 2d 268. 896 OCTOBER TERM, 1968. October 14, 1968. 393 U.S. No. 125, Mise. Boeckenhaupt v. United States. C. A. 4th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Plato Cacheris and James C. Cacheris for petitioner. Solicitor General Griswold, Assistant Attorney General Yeagley, Kevin T. Maroney, and Robert L. Keuch for the United States. Reported below: 392 F. 2d 24. No. 263, Mise. Winters v. United States et al. C. A. 2d Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Moses M. Falk for petitioner. Solicitor General Griswold for the United States. Reported below: 390 F. 2d 879. [For earlier order herein, see, e. g., 391 U. S. 910.] No. 83, Mise. Wright v. California. Ct. App. Cal., 4th App. Dist. Certiorari and other relief denied. Thomas C. Lynch, Attorney General of California, William E. James, Assistant Attorney General, and James H. Kline, Deputy Attorney General, for respondent. No. 96, Mise. Schawartzberg v. United States. C. A. 2d Cir. Certiorari denied. Mr. Justice Marshall took no part in the consideration or decision of this petition. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Mervyn Hamburg for the United States. No. 338, Mise. Oquendo v. United States. C. A. 2d Cir. Motion of Youth Against War & Fascism for leave to file a brief, as amicus curiae, granted. Certiorari denied. Conrad J. Lynn for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg for the United States. Marvin M. Karpatkin for Youth Against War & Fascism, as amicus curiae, in support of the petition. ORDERS. 897 393 U. S. October 14, 1968. No. 312, Mise. Lucas v. New York. App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied. Mr. Justice Marshall took no part in the consideration or decision of this petition. Jay Greenfield for petitioner. Frank S. Hogan and Michael Juviler for respondent. No. 494, Mise. Charles v. United States. C. A. D. C. Cir. Certiorari denied. Mr. Justice Marshall took no part in the consideration or decision of this petition. John J. Dwyer for petitioner. Solicitor General Griswold for the United States. Reported below: 130 U. S. App. D. C. 151, 397 F. 2d 712. No. 113, Mise. Levy v. Macy, Chairman, U. S. Civil Service Commission, et al. C. A. D. C. Cir. Motion to supplement record granted. Certiorari denied. Mr. Justice Marshall took no part in the consideration or decision of this motion and petition. Solicitor General Griswold for respondents. No. 121, Mise. Vigliano v. Thevos et al. C. A. 3d Cir. Certiorari denied. Mr. Justice Brennan took no part in the consideration or decision of this petition. Leonard I. Garth for petitioner. Arthur J. Sills, Attorney General of New Jersey, William J. Brennan III, Assistant Attorney General, and Douglas J. Harper, Deputy Attorney General, for respondents. Reported below: 390 F. 2d 55. No. 158, Mise. Miller v. Pate, Warden. C. A. 7th Cir. Motion of Radio Station W-A-I-T (Chicago) et al. for leave to file a brief, as amici curiae, granted. Certiorari denied. Arthur G. Greenberg, Harry Goiter, William R. Ming, Jr., and Willard J. Lassers for petitioner. Roger W. Hayes for respondent. Maurice Rosenfield for Radio Station W-A-I-T (Chicago) et al., as amici curiae, in support of the petition. 898 OCTOBER TERM, 1968. October 14, 1968. 393 U. S. No. 300, Mise. Fermin v. United States. Ct. Cl. Certiorari denied. Mr. Justice Marshall took no part in the consideration or decision of this petition. Solicitor General Griswold for the United States. Rehearing Denied. No. 247, October Term, 1967. Puyallup Tribe v. Department of Game of Washington et al., 391 U. S. 392; No. 405, October Term, 1967. Powell v. Texas, 392 U. S. 514; No. 508, October Term, 1967. Levy, Administratrix v. Louisiana Through the Charity Hospital of Louisiana at New Orleans Board of Administrators et al., 391 U. S. 68; No. 639, October Term, 1967. Glona v. American Guarantee & Liability Insurance Co. et al., 391 U. S. 73; No. 765, October Term, 1967. Wills v. United States, 392 U. S. 908; No. 941, October Term, 1967. Carcerano v. Gladden, Warden, 392 U. S. 631; No. 1015, October Term, 1967. Witherspoon v. Illinois et al., 391 U. S. 510; No. 1076, October Term, 1967. Pickens v. Oliver, Warden, 392 U. S. 300; No. 1178, October Term, 1967. Franzen v. Township of Elk et al., 392 U. S. 909; No. 1245, October Term, 1967. In re Whiteside, 391 U. S. 920; No. 1255, October Term, 1967. Jones v. Louisiana, 392 U. S. 302; and No. 501, Mise., October Term, 1967. Robinson v. Civil Service Commission, City of Cleveland, 392 U. S. 944. Petitions for rehearing denied. 899 ORDERS. 393 U. S. October 14, 1968. No. 1261, October Term, 1967. Goldman v. New York, 392 U. S. 643; No. 1289, October Term, 1967. Cochran et al. v. United States, 391 U. S. 913; No. 1319, October Term, 1967. Hagerty v. Louisiana, 391 U. S. 935; No. 1330, October Term, 1967. Skolnick et al. v. Moses et al., 391 U. S. 600; No. 1343, October Term, 1967. O’Kelley et al. v. California, 391 U. S. 965; No. 1452, October Term, 1967. Scarselletti v. Aetna Casualty & Surety Co., 392 U. S. 907; No. 920, Mise., October Term, 1967. Roberts v. Russell, 392 U. S. 293; No. 969, Mise., October Term, 1967. Wolff v. Foley, 392 U. S. 933; No. 1030, Mise., October Term, 1967. West v. Mc-Mann, Warden, 392 U. S. 933; No. 1198, Mise., October Term, 1967. Hobbs v. Frye, Warden, 392 U. S. 934; No. 1224, Mise., October Term, 1967. Carroll v. Texas, 392 U. S. 664; No. 1262, Mise., October Term, 1967. Kozuck et ux. v. Lal Construction Co., 392 U. S. 934; No. 1309, Mise., October Term, 1967. Hodge v. Tennessee, 392 U. S. 912; No. 1363, Mise., October Term, 1967. Bercera-Soto v. United States, 391 U. S. 928 ; No. 1401, Mise., October Term, 1967. Jackson v. United States, 392 U. S. 935; No. 1447, Mise., October Term, 1967. Watson v. Common Pleas Court of Philadelphia et al., 391 U. S. 953; and No. 1482, Mise., October Term, 1967. Siegal v. United States, 391 U. S. 954. Petitions for rehearing denied. 900 OCTOBER TERM, 1968. October 14, 1968. 393 U.S. No. 1494, Mise., October Term, 1967. Perkins v. United States, 391 U. S. 954; No. 1571, Mise., October Term, 1967. McNeill v. Garrity, Warden, 391 U. S. 971; No. 1637, Mise., October Term, 1967. Fields v. Department of Social Welfare, 392 U. S. 297; No. 1646, Mise., October Term, 1967. Cinnamon v. Kentucky, 392 U. S. 939; No. 1653, Mise., October Term, 1967. Landman v. Peyton, Penitentiary Superintendent, 392 U. S. 939 ; No. 1674, Mise., October Term, 1967. Biggs v. United States, 392 U. S. 945; No. 1675, Mise., October Term, 1967. Biggs v. Campbell, Chief Judge, U. S. District Court, 392 U. S. 922; No. 1854, Mise., October Term, 1967. Biggs v. Does et al., 392 U. S. 922; No. 1861, Mise., October Term, 1967. Morford v. Hocker, Warden, 392 U. S. 944; and No. 1875, Mise., October Term, 1967. Harris v. Rhay, Penitentiary Superintendent, 392 U. S. 921. Petitions for rehearing denied. No. 469, October Term, 1962. Larkin, dba Larkin Co. v. Platt Contracting Co., Inc., et al., 371 U. S. 924. Motion for leave to file petition for rehearing denied. Mr. Justice Fortas and Mr. Justice Marshall took no part in the consideration or decision of this motion. No. 232, October Term, 1967. United States v. O’Brien; and No. 233, October Term, 1967. O’Brien v. United States, 391 U. S. 367. Petition for rehearing denied. Mr. Justice Marshall took no part in the consideration or decision of this petition. ORDERS. 901 393 U. S. October 14, 1968. No. 23, October Term, 1967. First National Bank of Arizona v. Cities Service Co., 391 U. S. 253. Petition for rehearing denied. Mr. Justice Douglas took no part in the consideration or decision of this petition. No. 335, October Term, 1967. Hanover Shoe, Inc. v. United Shoe Machinery Corp.; and No. 463, October Term, 1967. United Shoe Machinery Corp. v. Hanover Shoe, Inc., 392 U. S. 481. Petition for rehearing denied. Mr. Justice Marshall took no part in the consideration or decision of this petition. No. 1200, October Term, 1967. Powell v. Committee on Admissions and Grievances of the United States District Court for the District of Columbia, 392 U. S. 929. Petition for rehearing denied. Mr. Justice Marshall took no part in the consideration or decision of this petition. No. 1269, October Term, 1967. Central Bank & Trust Co. v. United States et al.; and No. 1270, October Term, 1967. Boyle v. United States et al., 391 U. S. 469. Petitions for rehearing denied. Mr. Justice Fortas took no part in the consideration or decision of these petitions. No. 1364, October Term, 1967. Commissioner of Internal Revenue v. Sugar Daddy, Inc., et al., 392 U. S. 929. Petition for rehearing denied. Mr. Justice Marshall took no part in the consideration or decision of this petition. No. 1389, October Term, 1967. Weinberg et ux. v. Commissioner of Internal Revenue, 392 U. S. 929. Petition for rehearing denied. Mr. Justice Marshall took no part in the consideration or decision of this petition. 902 OCTOBER TERM, 1968. October 14, 1968. 393 U. S. No. 974, October Term, 1967. In re Powell, 392 U. S. 930. Petition for rehearing denied. Mr. Justice Marshall took no part in the consideration or decision of this petition. No. 857, October Term, 1967. Miller, aka Coppola v. United States, 392 U. S. 929. Petition for rehearing denied. Mr. Justice Marshall took no part in the consideration or decision of this petition. No. 309, October Term, 1967. American Federation of Musicians of the United States and Canada et al. v. Carroll et al. ; and No. 310, October Term, 1967. Carroll et al. v. American Federation of Musicians of the United States and Canada et al., 391 U. S. 99. Petition for rehearing denied. The Chief Justice and Mr. Justice Marshall took no part in the consideration or decision of this petition. No. 618, October Term, 1967. Fortnightly Corp. v. United Artists Television, Inc., 392 U. S. 390. Motion of Authors League of America, Inc., for leave to file a brief, as amicus curiae, in support of rehearing granted. Petition for rehearing denied. Mr. Justice Douglas, Mr. Justice Harlan, and Mr. Justice Marshall took no part in the consideration or decision of this motion and petition. Irwin Karp on the motion. No. 1377, October Term, 1967. Wechsler et al. v. United States, 392 U. S. 932. Motion for leave to file supplement to petition for rehearing granted. Petition for rehearing denied. No. 548, Mise., October Term, 1967. McCarty et al. v. Kansas, 392 U. S. 308. Petition for rehearing by petitioner McCarty denied. ORDERS. 903 393 U.S. October 14, 16, 1968. No. 788, October Term, 1967. McCollough v. Travelers Insurance Co. et al., 389 U. S. 1050; No. 877, October Term, 1967. Nicholson v. Calbeck, Deputy Commissioner, et al., 389 U. S. 1051; No. 1017, October Term, 1967. Houser v. O’Leary, Deputy Commissioner, Fourteenth Compensation District, et al., 390 U. S. 954; and No. 1369, October Term, 1967. Sonderegger v. Heiss, 392 U. S. 931. Motions for leave to file petitions for rehearing denied. No. 883, Mise., October Term, 1967. Parker v. Maryland et al., 390 U. S. 982 and 1018. Motion for leave to file second petition for rehearing denied. No. 1550, Mise., October Term, 1967. Clark v. Payne, 391 U. S. 970. Motion of Lewis Clark for leave to file a brief, as amicus curiae, in support of petition for rehearing granted. Petition for rehearing denied. No. 1579, Mise., October Term, 1967. Silva v. Beto, Corrections Director, 392 U. S. 913. Motion for leave to file petition for rehearing denied. October 16, 1968. Miscellaneous Orders. No. ---. Cavagnaro v. Clark, Attorney General, et al.; and No. 889, Mise. Paulekas v. Clark, Attorney General, et al. Applications for stays, made to Mr. Justice Douglas, were submitted by him to the Court and denied by it. Mr. Justice Douglas, Mr. Justice Harlan, and Mr. Justice Stewart would grant the stays. Norman Leonard for applicant in each case. Solicitor General Griswold for respondents in both cases. Reported below: 291 F. Supp. 606 (D. C. N. D. Cal.). 904 OCTOBER TERM, 1968. October 16, 17, 19, 1968. 393 U. S. No.----. McAbee et al. v. Martinez et al. D. C. Md. Application for injunctive relief presented to The Chief Justice, and by him referred to the Court, denied. Peter R. Sherman for applicants. Reported below: 291 F. Supp. 77. October 17, 1968. Dismissal Under Rule 60. No. 526. Tillamook Cheese & Dairy Assn. v. State Department of Agriculture. Sup. Ct. Ore. Petition for writ of certiorari dismissed pursuant to Rule 60 of the Rules of this Court. Edwin J. Peterson for petitioner. Robert Y. Thornton, Attorney General of Oregon, and Harold E. Burke, Assistant Attorney General, for respondent. Reported below: ---- Ore. ---, 439 P. 2d 592;----Ore.----, 442 P. 2d 608. October 19, 1968. Miscellaneous Order. No. 647. Hadnott et al. v. Amos, Secretary of State of Alabama, et al. D. C. M. D. Ala. Order entered October 14, 1968 [ante, p. 815], restoring temporary relief is continued pending action upon the jurisdictional statement which has been filed. Motion to advance and expedite denied. Mr. Justice Stewart and Mr. Justice White dissent from continuance of the order restoring temporary relief. Mr. Justice Black took no part in the consideration or decision of this matter. Charles Morgan, Jr., Orzell Billingsley, Robert P. Schwenn, and Melvin L. Wulf on the motion. Mr. Justice Harlan, concurring in part and dissenting in part. The State of Alabama has excluded from its ballot in the forthcoming general election all but two of the candidates for local, state, and national office nominated ORDERS. 905 904 Opinion of Harlan, J. by the National Democratic Party of Alabama, a newly organized political group. Members of the Party, together with the Party itself, contend before us that the state statutes invoked in justification of Alabama’s action violate rights guaranteed both by the Voting Rights Act of 1965, 79 Stat. 437, 42 U. S. C. § 1973 (1964 ed., Supp. Ill), and the Constitution of the United States.1 It is clear to me that both the statutory and constitutional issues appellants have raised require plenary consideration of difficult and important questions that cannot be properly resolved in the time remaining before the ballots are cast, no matter how expeditiously the appeal is heard. Consequently, I concur in the Court’s denial of the motion to advance plenary hearing on the merits of the case. Such study as I have been able to make of the papers, in the short time since they were submitted to the Court, nevertheless convinces me that the chances of the Party’s ultimate success on the merits are sufficiently substantial so that we may appropriately take steps to prevent the risk of an irretrievable loss of important federal rights in the approaching election. Unfortunately, while the Court properly seeks to protect appellants from irreparable injury, it has done so in a manner that is almost 1 The three-judge District Court which initially heard this case issued a temporary injunction requiring Alabama to include on the ballot the names of all candidates of the National Democratic Party, and Alabama proceeded to comply. Upon consideration of the case on the merits, the District Court, with Chief Judge Frank M. Johnson dissenting, held against the plaintiffs and dissolved its temporary injunction. This occurred on October 11, 1968. A motion to reinstate the lower court’s temporary relief was made to us on the following day and an appeal was filed on Monday, October 14, along with a motion to accelerate our consideration of the cause. On the same day, we set the two motions before us for argument on Friday, October 18, reinstating the District Court’s injunction for the interim period. 906 OCTOBER TERM, 1968. Opinion of Harlan, J. 393 U.S. bound to create substantial confusion in the minds of Alabama’s voters when they cast their ballots for the Presidency of the United States. By ordering appellants’ slate of Presidential Electors on the ballot, the Court has created a situation in which two different slates, both pledged to support Hubert H. Humphrey and Edmund S. Muskie, will be presented to the electorate in November. In addition to the National Democratic Party, the Alabama Independent Democratic Party—whose right to ballot position is uncontested—has advanced a list of Electors who are pledged to this same national ticket. Since many voters do not realize that they do not have a direct voice in the selection of the President, it will not be clear to them that the votes cast for the Humphrey-Muskie ticket on the National Democratic line of the ballot will not be cumulated in the final tabulation with the votes cast for these same national candidates on the Independent Democratic line. But that, of course, is precisely the legal result—for votes cast for two different Electoral slates are not properly counted together under state law. A split in the Humphrey-Muskie vote, which in large part may simply be the product of ignorance, will be the almost certain result. In our recent decision in Williams v. Rhodes, ante, at 33 (opinion of the Court), and at 46-47 (Mr. Justice Harlan, concurring in the result), we recognized that the State may properly take steps to prevent a clear risk of voter confusion. This interest should inform our decision here. Alabama’s Presidential election will be much fairer, under all the circumstances, without the presence of the National Democratic Party. Moreover, it seems quite evident that it would be possible for the State’s election officials to comply with a decision of this Court ordering that all National Democratic candidates, other than those running for the office of Presidential Elector, ORDERS. 907 904 Opinion of Harlan, J. be placed before the voters in November. My inspection of the sample ballots submitted to us leads me to believe that such an order would present no insuperable administrative obstacles,2 and I do not understand counsel for the State to contend otherwise.3 2 The names of each Party’s 10 candidates for the office of Elector are not interspersed with the names of the candidates for other offices, but appear one after another in a bloc on the sample ballot that has been submitted to us. 3 At the argument, Alabama’s counsel made the following statements as to the State’s ability to comply with an order of this Court: “Mr. Justice Brennan: What is the situation about the preparation and distribution of ballots? “Mr. Redden (for Alabama): The probate judges in the various counties are charged with the preparation of the ballots in their particular county. I think the Court will readily understand as has been pointed out that this is not a complete ballot [pointing to a sample ballot], as the ballot will vary from county to county because of the fact that there are local and county offices up for election during 1968. So that on the ballot in each county you would have your statewide offices, you would have only one of these candidacies for Congress. We have eight congressional districts so that in the appropriate district you have a different ballot in each county. “Mr. Justice Stewart: Is there only one ballot in each county, however? “Mr. Redden: Sir? “Mr. Justice Stewart: In other words, is there only one ballot . . . ? “Mr. Redden: As I understand the question, there is only one ballot in each county. “Mr. Justice Stewart: Yes—but each one is different .... “Mr. Redden: To answer your question I would have to say that you would not have a uniform situation with reference to the degree of preparation of the ballot from county to county. “Mr. Justice Brennan: Do we have any information as to what each probate court judge did when the interim order came down? “Mr. Redden: I have some hearsay information solely. Remember that in the portions of the state voting on voting machines, those have been prepared in a great many cases following the District Court’s order. In some other instances the ballots are being printed 320-583 0 - 69 - 53 908 OCTOBER TERM, 1968. Opinion of Harlan, J. 393 U. S. Equity does not require the broad injunction the Court has issued, but rather an act of discretion that is fully cognizant of all the consequences of our actions. by printers at the order of the probate judges. There is no uniformity right now. They are in various states of preparation. “Mr. Justice Brennan: Well, is that to say then that to the extent that ballots are being prepared whether they are printed ballots or on voting machines, that they comply with the interim order and include the Column 7 [National Democratic Party] list? “Mr. Redden: I would have to say that a good many do not, that probably more do not than do. We have made contact since the Court rendered the order here with as many [probate judges] as we have been able to contact to advise them of the issuance of this order and to have them to undertake to do whatever they can do with regard to trying to wait and trying to find a printer who can put them in a position of compliance. But really we are getting very close to the election and I am sorry that I am unable to tell the Court precisely what the situation is in each county .... “Mr. Justice Fortas: Now you did not—the Attorney General did not—in the telegram sent to this Court assert that it would be impossible to comply with an order, if there were any, granting the relief requested. “Mr. Redden: That’s my understanding. “Mr. Justice Fortas: Are you now saying that compliance would be impossible or are you not? “Mr. Redden: I would not represent that to the Court. I would say that the officials will make every effort to comply with any order this Court makes. I’m not sure that it will be [possible] in every case, but I make no assertion of impossibility. I am not prepared to. “Mr. Justice Harlan: As I understand it, the restraining order in its present posture states that you would have on your ballot two sets of Presidential Electors, each of them pledged to Humphrey and Muskie, and then you have a third set pledged to Wallace, and a set pledged to Nixon and Agnew. Assuming for the moment that the restraining order were modified so as to eliminate the Electors of the appellant here but to leave their candidates on the ballot for other offices, what effect would that have on the Election? Could that be done? Could you eliminate from the ballot the Presidential Electors of these appellants and leave the other candidates on? “Mr. Redden: 1 can’t say that it cannot be done. I would only have to represent to you that if it can be done it would be an ORDERS. 909 393U.S. October 19, 21, 1968. I would therefore modify the temporary relief this Court granted on October 14, 1968, to permit the State’s election officials to remove from the ballot the Party’s candidates for the office of Presidential Elector. October 21, 1968. Miscellaneous Orders. No. 40. Johnson v. Anery, Correction Commissioner, et al. C. A. 6th Cir. [Certiorari granted, 390 U. S. 943.] Motion of American Civil Liberties Union et al. for leave to file a brief, as amici curiae, granted. Melvin L. Wulf on the motion. No. 217, Mise. Sanders et al. v. Bell, U. S. Circuit Judge, et al. Motion for leave to file petition for writ of mandamus denied. Joe W. Gerstein for petitioners. No. 463, Mise. Gullo v. District of Columbia Court of General Sessions, Domestic Relations Branch, et al. Motion for leave to file petition for writ of mandamus denied. Joseph S. Gullo for petitioner. extremely difficult thing to accomplish. I don’t want to represent further than that because I don’t have the knowledge adequate to do it. “Mr. Justice Harlan: Would it be more difficult than taking all the names off? “Mr. Redden: Yes, sir, for this reason, as I may point this out. The uniform removal may be accomplished in other ways that are very simple, whether to use a machine or a ballot because the intersplicing would be difficult. The District Court ruled in favor of the defendants on the constitutional issues and said that we exercised our discretion to refrain from deciding individual factual disputes. Those have not been ruled on. “Mr. Justice Brennan: If, as you suggested, it might be difficult to delete the Electors now under the interim order to be on the ballot for this Party. Of course it would be much more difficult to substitute other names . . . .” 910 OCTOBER TERM, 1968. October 21, 1968. 393 U. S. No. 17, Orig. Nebraska v. Iowa. It Is Ordered that the Honorable Joseph P. Willson, Senior Judge of the United States District Court for the Western District of Pennsylvania, be, and he is hereby, appointed Special Master in this case in the place of the Honorable Charles J. Vogel, resigned. The Special Master shall have authority to fix the time and conditions for the filing of additional pleadings and to direct subsequent proceedings, and authority to summon witnesses, issue subpoenas, and take such evidence as may be introduced and such as he may deem it necessary to call for. The Master is directed to submit such reports as he may deem appropriate. The Master shall be allowed his actual expenses. The allowances to him, the compensation paid to his technical, stenographic, and clerical assistants, the cost of printing his report, and all other proper expenses shall be charged against and be borne by the parties in such proportion as the Court hereafter may direct. It Is Further Ordered that if the position of Special Master in this case becomes vacant during a recess of the Court, The Chief Justice shall have authority to make a new designation which shall have the same effect as if originally made by the Court herein. [For earlier order herein, see, e. g., 392 U. S. 918.] Probable Jurisdiction Noted. No. 366. United States v. Covington. Appeal from D. C. S. D. Ohio. Probable jurisdiction noted and case set for oral argument immediately following No. 65 [No. 1365, October Term, 1967, 392 U. S. 903]. Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg for the United States. Reported below: 282 F. Supp. 886. ORDERS. 911 393 U. S. October 21, 1968. No. 243. Citizen Publishing Co. et al. v. United States. Appeal from D. C. Ariz. Probable jurisdiction noted. Mr. Justice Fortas took no part in the consideration or decision of this case. Richard J. MacLaury, John L. Donahue, Jr., and George Read Carlock for appellants. Solicitor General Griswold, Assistant Attorney General Zimmerman, Howard E. Shapiro, and Charles D. Mahaffie, Jr., for the United States. Robert L. Stern for the Albuquerque Journal et al., and Arthur B. Hanson and S. Chesterfield Oppenheim for American Newspaper Publishers Assn., as amici curiae, in support of appellants. Reported below: 280 F. Supp. 978. Certiorari Granted. (See also Nos. 247 and 248, ante, p. 71; No. 279, ante, p. 76; and No. 379, ante, p. 74.) No. 109. Snyder v. Harris et al. C. A. 8th Cir. Certiorari granted. Hyman G. Stein for petitioner. Morris A. Shenker for respondents. Reported below: 390 F. 2d 204. No. 343. United States v. An Article of Drug . . . Bacto-Unidisk. ... C. A. 6th Cir. Certiorari granted. Solicitor General Griswold, Assistant Attorney General Vinson, Lawrence G. Wallace, Beatrice Rosenberg, and William W. Goodrich for the United States. Edward Brown Williams for respondent (Difco Laboratories, Inc., real party in interest). Reported below: 392 F. 2d 21. No. 117. Gas Service Co. v. Coburn. C. A. 10th Cir. Certiorari granted and case set for oral argument immediately following No. 109, supra. Kirke W. Dale and Dale M. Stucky for petitioner. Robert Martin and D. Arthur Walker for respondent. Reported below: 389 F. 2d 831. 912 OCTOBER TERM, 1968. October 21, 1968. 393 U.S. No. 297. Immigration and Naturalization Service v. Stanisic. C. A. 9th Cir. Motion of respondent for leave to proceed in forma pauperis granted and petition for writ of certiorari granted. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Jerome M. Feit for petitioner. Dorothy McCullough Lee for respondent. Reported below: 393 F. 2d 539. No. 43, Mise. Banks v. California. Ct. App. Cal., 1st App. Dist. Motion for leave to proceed in forma pauperis granted. Certiorari granted and case transferred to appellate docket. Thomas C. Lynch, Attorney General of California, Albert W. Harris, Jr., Assistant Attorney General, and Louise H. Renne, Deputy Attorney General, for respondent. Certiorari Denied. (See also No. 195, ante, p. 78; No. 352, ante, p. 76; and No. 364, ante, p. 77.) No. 80. Canard et al. v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. Russell E. Parsons for petitioners. Thomas C. Lynch, Attorney General of California, William E. James, Assistant Attorney General, and Ronald M. George, Deputy Attorney General, for respondent. Reported below: 257 Cal. App. 2d 444, 65 Cal. Rptr. 15. No. 146. Gallicchio v. New Jersey. Sup. Ct. N. J. Certiorari denied. Michael A. Querques and Daniel E. Isles for petitioner. Herbert H. Tate for respondent. Reported below: 51 N. J. 313, 240 A. 2d 166. No. 307. Brady v. United States. Ct. Cl. Certiorari denied. William R. Kraham and Irvin M. Gottlieb for petitioner. Solicitor General Griswold for the United States. ORDERS. 913 393 U. S. October 21, 1968. No. 166. Rinaldi v. United States. C. A. 2d Cir. Certiorari denied. Henry B. Rothblatt for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Robert G. Maysack for the United States. Reported below: 393 F. 2d 97. No. 282. National Plan, Inc., et al. v. Church of Christ of Ecorse, Michigan, et al.; and No. 391. Church of Christ of Ecorse, Michigan, et al. v. National Plan, Inc., et al. C. A. 5th Cir. Certiorari denied. Rujus S. Garrett, Jr., for petitioners in No. 282, and William Burrow for petitioners in No. 391. Reported below: 391 F. 2d 357. No. 305. Westreich v. McFarland. C. A. D. C. Cir. Certiorari denied. Aaron R. Fodiman and Moses Krislov for petitioner. William 0. Bittman for respondent. No. 315. Hoffenberg v. Kaminstein, Register of Copyrights. C. A. D. C. Cir. Certiorari denied. Charles Rembar for petitioner. Solicitor General Griswold, Assistant Attorney General Weisl, and John C. Eldridge for respondent. Irwin Karp for Authors League of America, Inc., as amicus curiae, in support of the petition. Reported below: 130 U. S. App. D. C. 35, 396 F. 2d 684. No. 329. Brakefield v. McFarland. C. A. D. C. Cir. Certiorari denied. Aaron R. Fodiman and Moses Krislov for petitioner. William 0. Bittman for respondent. No. 347. American Life & Accident Insurance Co. of Kentucky v. National Labor Relations Board. C. A. 6th Cir. Certiorari denied. Richard A. Chenoweth for petitioner. Solicitor General Griswold, Arnold Ordman, Dominick L. Manoli, and Norton J. Come for respondent. Reported below: 394 F. 2d 616. 914 OCTOBER TERM, 1968. October 21, 1968. 393 U. S. No. 338. Winn v. Florida Bar. Sup. Ct. Fla. Certiorari denied. Joseph F. McDermott for petitioner. William H. Adams III for respondent. Reported below: 208 So. 2d 809. No. 356. Oil, Chemical & Atomic Workers International Union, Long Beach Local No. 1-128 v. National Labor Relations Board et al. C. A. 9th Cir. Certiorari denied. Jerry D. Anker for petitioner. Solicitor General Griswold, Arnold Ordman, Dominick L. Manoli, and Norton J. Come for National Labor Relations Board, and Willard Z. Carr, Jr., for MacMillan Ring-Free Oil Co., Inc., respondents. Reported below: 394 F. 2d 26. No. 360. Halstead v. Refined Syrups & Sugars, Inc. C. A. D. C. Cir. Certiorari denied. J. Sterling Halstead, petitioner, pro se. Sheldon E. Bernstein and Paul H. Mannes for respondent. No. 368. Association on Broadcasting Standards, Inc., et al. v. Federal Communications Commission et al.; No. 369. King’s Garden, Inc. v. Federal Communications Commission et al.; and No. 390. WBEN, Inc. v. Federal Communications Commission et al. C. A. 2d Cir. Certiorari denied. Michael H. Bader and William J. Potts, Jr., for Association on Broadcasting Standards, Inc., and James A. McKenna, Jr., Vernon L. Wilkinson, and John L. Tierney for May Broadcasting Co. et al., petitioners in No. 368; Lewis I. Cohen for petitioner in No. 369; and Frank U. Fletcher, Robert L. Heald, and Edward F. Kenehan for petitioner in No. 390. Solicitor General Griswold, As-sistant Attorney General Zimmerman, Henry Geller, Daniel R. Ohlbaum, and Stuart F. Feldstein for respondents in all three cases. Reported below: 396 F. 2d 601. ORDERS. 915 393 U. S. October 21, 1968. No. 374. Totton, dba Totton & Dunn Co. v. Local 43, United Association of Journeymen & Apprentices of Plumbing & Pipe Fitting Industry of the United States & Canada. C. A. 6th Cir. Certiorari denied. John A. Chambliss, Jr., and Sizer Chambliss for petitioner. S. Del Fusion for respondent. No. 382. Latta v. Wells Fargo Bank et al. Ct. App. Cal., 1st App. Dist. Certiorari denied. Reported below: 260 Cal. App. 2d 120, 66 Cal. Rptr. 832. No. 330. Lynch et al. v. Maryland. Ct. App. Md. Certiorari denied. Mr. Justice Black dissents. Melvin L. Wulf and Elsbeth Bothe for petitioners. Francis B. Burch, Attorney General of Maryland, S. Leonard Rottman, Assistant Attorney General, and Charles E. Moylan, Jr., for respondent. Reported below: See 2 Md. App. 546, 236 A. 2d 45. No. 378. Delaware Valley Conservation Assn, et al. v. Resor, Secretary of the Department of the Army, et al. C. A. 3d Cir. Motion to dispense with printing petition granted. Certiorari denied. Solicitor General Griswold for respondents. Reported below: 392 F. 2d 331. No. 50, Mise. Daegele v. Crouse, Warden. C. A. 10th Cir. Certiorari denied. Robert C. Londerholm, Attorney General of Kansas, and J. Richard Foth and Edward G. Collister, Jr., Assistant Attorneys General, for respondent. No. 289, Mise. Shorey v. Warden, Maryland Penitentiary. C. A. 4th Cir. Certiorari denied. Fred E. Weisgal for petitioner. Francis B. Burch, Attorney General of Maryland, and Fred Oken, Assistant Attorney General, for respondent. Reported below: 401 F. 2d 474. 916 OCTOBER TERM, 1968. October 21, 1968. 393 U. S. No. 75, Mise. Taylor v. Texas. Ct. Crim. App. Tex. Certiorari denied. C. L. Ray, Jr., for petitioner. Crawford C. Martin, Attorney General of Texas, Nola White, First Assistant Attorney General, A. J. Carubbi, Jr., Executive Assistant Attorney General, and Robert C. Flowers and Lonny F. Zwiener, Assistant Attorneys General, for respondent. Reported below: 421 S. W. 2d 403. No. 418, Mise. Johnson v. Craven, Warden. Sup. Ct. Cal. Certiorari denied. No. 420, Mise. Williams v. Craven, Warden, et al. C. A. 9th Cir. Certiorari denied. No. 421, Mise. Fletcher v. California. C. A. 9th Cir. Certiorari denied. No. 424, Mise. Steinhardt v. Florida. Dist. Ct. App. Fla., 4th Dist. Certiorari denied. Reported below : 205 So. 2d 30. No. 432, Mise. Brown v. Craven, Warden. Sup. Ct. Cal. Certiorari denied. No. 434, Mise. Gilmore v. California Adult Authority et al. Sup. Ct. Cal. Certiorari denied. No. 435, Mise. Nichols v. Page, Warden, et al. Ct. Crim. App. Okla. Certiorari denied. Reported below: 441 P. 2d 470. No. 439, Mise. Robbins v. Illinois. App. Ct. Ill., 1st Dist. Certiorari denied. Gerald W. Getty and James J. Doherty for petitioner. Reported below: 88 Ill. App. 2d 447, 232 N. E. 2d 302. ORDERS. 917 393 U. S. October 21, 1968. No. 433, Mise. Ray v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 468, Mise. Townsend v. City of Helena. Sup. Ct. Ark. Certiorari denied. Reported below: 244 Ark. 228, 424 S. W. 2d 856. No. 488, Mise. Montague v. Rhay, Penitentiary Superintendent. Sup. Ct. Wash. Certiorari denied. No. 489, Mise. Corn v. Oklahoma et al. C. A. 10th Cir. Certiorari denied. Reported below: 394 F. 2d 478. No. 492, Mise. Arnold v. Illinois. App. Ct. Ill., 1st Dist. Certiorari denied. Reported below: 89 Ill. App. 2d 185, 232 N. E. 2d 483. No. 493, Mise. Dorian v. Maroney, Correctional Superintendent. C. A. 3d Cir. Certiorari denied. No. 496, Mise. Pierce v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. Reported below: 260 Cal. App. 2d 852, 67 Cal. Rptr. 438. No. 504, Mise. Johnson v. United States. C. A. 2d Cir. Certiorari denied. Phylis Skloot Bamberger for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg for the United States. No. 510, Mise. Furtak v. New York. Ct. App. N. Y. Certiorari denied. No. 518, Mise. McDonough v. Director, Patuxent Institution. Ct. Sp. App. Md. Certiorari denied. Reported below: 3 Md. App. 539, 240 A. 2d 322. 918 OCTOBER TERM, 1968. October 21, 1968. 393 U. S. No. 514, Mise. Melendez v. Wilson, Warden. C. A. 9th Cir. Certiorari denied. No. 517, Mise. Collins v. Nelson, Warden, et al. C. A. 9th Cir. Certiorari denied. No. 519, Mise. Fair v. Schleman, Tax Collector, et al. Sup. Ct. Fla. Certiorari denied. No. 523, Mise. Valdez v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 539, Mise. Urbano v. Sondern, Executrix. C. A. 2d Cir. Certiorari denied. No. 544, Mise. Hankins et al. v. Kane, Collector of Estate. C. A. D. C. Cir. Certiorari denied. No. 549, Mise. Fermin v. United States. Ct. Cl. Certiorari denied. Solicitor General Griswold for the United States. No. 551, Mise. Hall v. United States. C. A. 4th Cir. Certiorari denied. Benjamin Lipsitz for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg for the United States. Reported below: 396 F. 2d 841. No. 574, Mise. Gregory v. Waller. Sup. Ct. App. Va. Certiorari denied. No. 156, Mise. Ellenbogen v. United States. C. A. 2d Cir. Certiorari denied. Mr. Justice Marshall took no part in the consideration or decision of this petition. Daniel H. Greenberg for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Sidney M. Glazer for the United States. Reported below: 390 F. 2d 537. ORDERS. 919 393 U. S. October 21, 1968. No. 588, Mise. Wendt v. United States. C. A. 9th Cir. Certiorari denied. Solicitor General Griswold for the United States. Reported below: 394 F. 2d 627. No. 623, Mise. Ray v. United States District Court, Middle District of Pennsylvania. C. A. 3d Cir. Certiorari denied. No. 633, Mise. Desmond v. United States Board of Parole. C. A. 1st Cir. Certiorari denied. Thomas G. Dignan, Jr., for petitioner. Solicitor General Griswold for respondent. Reported below: 397 F. 2d 386. No. 641, Mise. Graves v. Nevada. Sup. Ct. Nev. Certiorari denied. Harry E. Clairborne for petitioner. Harvey Dickerson, Attorney General of Nevada, and William J. Raggio for respondent. Reported below:------ Nev.-----, 439 P. 2d 476. No. 648, Mise. Kayser et al. v. United States. C. A. 8th Cir. Certiorari denied. Solicitor General Griswold for the United States. Reported below: 394 F. 2d 601. No. 583, Mise. Spiesel v. Roos et al. C. A. 2d Cir. Certiorari denied. Mr. Justice Marshall took no part in the consideration or decision of this petition. Rehearing Denied. No. 569, Mise., October Term, 1966. Griffin v. Hendrick, County Prisons Superintendent, 385 U. S. 981. Motion for leave to file petition for rehearing denied. Mr. Justice Marshall took no part in the consideration or decision of this motion. No. 636, Mise., October Term, 1967. Rucker v. Parker et al., 389 U. S. 995, 390 U. S. 930. Motion for leave to file second petition for rehearing denied. 920 OCTOBER TERM, 1968. 393 U. S. October 25, 1968. Miscellaneous Orders. No. —. Johnson et al. v. Powell. C. A. 5th Cir. Application for stay of deployment presented to Mr. Justice Douglas, and by him referred to the Court, denied. Elsbeth Levy Bothe for applicants. Solicitor General Griswold in opposition. Mr. Justice Douglas. This application for a stay denied by my Brother Black was referred to me. I asked for a response from the Solicitor General so that the application could be submitted to the entire Conference October 25, 1968. I have now been advised that applicants were moved to Vietnam October 24. This hurried calculated change in military plans has deprived applicants of the full hearing to which they are entitled. The question is not frivolous as Article I, Section 8, of the Constitution restricts members of the militia to service to “execute the Laws of the Union, suppress Insurrections and repel Invasions”—none of which, as I understand it, is relevant to service in Vietnam. The Solicitor General maintains that the status of these applicants must be measured not as members of the “militia” but as members of the Ready Reserve with whom we dealt in Morse v. Boswell, ante, p. 802. That contention might in time prevail, but it is not free of doubt; and I am not yet persuaded that either the Army or the Solicitor General can play loosely with the concept of “militia” as used in the Constitution and thus create a credibility gap at the constitutional level. It is, after all, the Constitution that creates in our people the faith that no one—not even the Department of Justice or the military—is above the law. It was for these reasons that I felt that the full Court should consider the question of law at the Octo ORDERS. 921 393 U. S. October 25, 28, 1968. ber 25, 1968, Conference. Since, however, applicants have been spirited out of the country,1 I have concluded to treat the case in practical effect, though not legally,1 2 as moot. No. 889, Mise. Paulekas v. Clark, Attorney General, et al. C. A. 9th Cir. Petition for rehearing from denial of stay of induction [ante, p. 903] granted, and the stay heretofore granted by Mr. Justice Douglas is continued until further order of the Court. Mr. Justice Fortas dissents. October 28, 1968. Miscellaneous Orders. No. —. Roman v. Critz. C. A. 5th Cir. Application for stay of court-martial presented to Mr. Justice Douglas, and by him referred to the Court, denied. Stewart J. Alexander for applicant. No. 31, Orig. Utah v. United States. Report of Special Master received and ordered filed. Exceptions, if any, may be filed by the parties within 45 days. Reply briefs, if any, may be filed within 30 days thereafter. Mr. Justice Marshall took no part in the consideration or decision of this matter. [For earlier order herein, see, e. g., 391 U. S. 962.] 1 Rule 49 of the Rules of the Court were flouted by the Solicitor General and the Army, as subdivision (1) provides: “Pending review of a decision in a habeas corpus proceeding commenced before a court, justice or judge of the United States for the release of a prisoner, a person having custody of the prisoner shall not transfer custody to another unless such transfer is directed in accordance with the provisions of this rule. Upon application of a custodian showing a need therefor, the court, justice or judge rendering the decision may make an order authorizing transfer and providing for the substitution of the successor custodian as a party.” 2 Ex parte Endo, 323 U. S. 283, 306; Jones v. Cunningham, 371 U. S. 236, 243-244. 922 OCTOBER TERM, 1968. October 28, 1968. 393 U. S. No. 71. Presbyterian Church in the United States et al. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church et al. Sup. Ct. Ga. [Certiorari granted, 392 U. S. 903.] Motion of W. J. Williamson, Secretary of Concerned Presbyterians, Inc., for leave to file a brief, as amicus curiae, granted. William J. McLeod, Jr., and W. Calvin Wells, Jr., on the motion. No. 161. Choctaw Nation et al. v. Atchison, Topeka & Santa Fe Railway Co. et al. C. A. 10th Cir. The Solicitor General is invited to file a brief expressing the views of the United States. No. 425, Mise. Murphy v. United States Court of Appeals for the Ninth Circuit et al. Motion for leave to file petition for writ of mandamus and other relief denied. Certiorari Granted. (See also No. 212, ante, p. 85; and No. 249, ante, p. 80.) No. 403. McKart v. United States. C. A. 6th Cir. Certiorari granted. Marshall Patner for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg for the United States. Reported below: 395 F. 2d 906. No. 413. North Carolina et al. v. Pearce. C. A. 4th Cir. Motion of respondent for leave to proceed in forma pauperis and petition for writ of certiorari granted. Thomas Wade Bruton, Attorney General of North Carolina, for petitioners. Reported below: 397 F. 2d 253. Certiorari Denied. No. 387. Evans et al. v. Allen et al. C. A. 5th Cir. Certiorari denied. Robert L. Mitchell for petitioners. Reported below: 396 F. 2d 801. ORDERS. 923 393 U. S. October 28, 1968. No. 383. Mackiewicz et ux. v. United States. C. A. 2d Cir. Certiorari denied. Curtiss K. Thompson for petitioners. Solicitor General Griswold, Assistant Attorney General Rogovin, Joseph M. Howard, and John M. Brant for the United States. Reported below: 401 F. 2d 219. No. 384. New York Credit Men’s Adjustment Bureau, Inc. v. United States. C. A. 2d Cir. Certiorari denied. Robert J. Clerkin, Harry A. Margolis, and Marks F. Paskes for petitioner. Solicitor General Griswold, Assistant Attorney General Rogovin, and Crombie J. D. Garrett for the United States. Reported below: 394 F. 2d 340. No. 386. Swinford v. Allied Finance Co. of Casa View. Ct. Civ. App. Tex., 5th Sup. Jud. Dist. Certiorari denied. Thomas P. Brown III for petitioner. John Louis Shook and Dixon W. Holman for respondent. Reported below: 424 S. W. 2d 298. No. 388. Malco Manufacturing Co. et al. v. National Connector Corp. C. A. 8th Cir. Certiorari denied. Erwin C. Heining er for petitioner Amphenol Corp. Ralph F. Merchant for respondent. Reported below: 392 F. 2d 766. No. 389. Continental Nut Co. v. Robert L. Berner Co. C. A. 7th Cir. Certiorari denied. George L. Saunders, Jr., James C. Leaton, and Robert A. Sprecher for petitioner. James E. Knox, Jr., for respondent. Reported below: 393 F. 2d 283. No. 392. Swan v. United States. C. A. 2d Cir. Certiorari denied. Frederick M. Reuss, Jr., for petitioner. Solicitor General Griswold for the United States. Reported below: 396 F. 2d 883. 320-583 0 - 69 - 54 924 OCTOBER TERM, 1968. October 28, 1968. 393 U. S. No. 393. Matzner et ux. v. New Jersey. Sup. Ct. N. J. Certiorari denied. F. Lee Bailey for petitioners. Arthur J. Sills, Attorney General of New Jersey, Joseph A. Hoffman, First Assistant Attorney General, and Elias Abelson, Deputy Attorney General, for respondent. Reported below: 52 N. J. 7, 243 A. 2d 225. No. 395. Pollock v. United States. C. A. 7th Cir. Certiorari denied. William H. Bowman for petitioner. Solicitor General Griswold, Assistant Attorney General Rogovin, and Joseph M. Howard for the United States. Reported below: 394 F. 2d 922. No. 396. Air India v. Hoffman, Executor, et al. C. A. 5th Cir. Certiorari denied. Jackson L. Peters for petitioner. Walter H. Beckham, Jr., for respondents. Reported below: 393 F. 2d 507. No. 397. Standard Cigar Co. v. Tabacalera Severiano Jorge, S. A., et al. C. A. 5th Cir. Certiorari denied. William A. Gillen for petitioner. Thomas H. Anderson for respondents. Reported below: 392 F. 2d 706. No. 398. Cobb et al. v. United States. C. A. 7th Cir. Certiorari denied. Palmer K. Ward for petitioners. Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg for the United States. Reported below: 397 F. 2d 416. No. 402. DiGiovanni v. United States. C. A. 7th Cir. Certiorari denied. Edward J. Caliban, Jr., for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Edward Fenig for the United States. Reported below: 397 F. 2d 409. ORDERS. 925 393 U. S. October 28, 1968. No. 401. Valley v. Colorado. Sup. Ct. Colo. Certiorari denied. Anthony F. Zarlengo for petitioner. Reported below:------Colo.-----, 441 P. 2d 14. No. 404. Schepps v. United States. C. A. 5th Cir. Certiorari denied. Edwin M. Sigel for petitioner. Solicitor General Griswold, Assistant Attorney General Rogovin, and Joseph M. Howard for the United States. Reported below: 395 F. 2d 749. No. 405. Mayer v. Ordman, General Counsel, National Labor Relations Board. C. A. 6th Cir. Certiorari denied. David G. Heilbrun for petitioner. Solicitor General Griswold, Arnold Ordman, pro se, Dominick L. Manoli, Norton J. Come, and Arthur A. Horowitz for respondent. Reported below: 391 F. 2d 889. No. 406. McCullough Tool Co. v. Well Surveys, Inc., now Dresser Sie, Inc., et al. C. A. 10th Cir. Certiorari denied. R. Welton Whann for petitioner. Rujus S. Day, Jr., and Robert J. Woolsey for respondents. Reported below: 395 F. 2d 230. No. 407. Henderson, Warden v. Progue et al. C. A. 5th Cir. Certiorari denied. Jack P. F. Gre-million, Attorney General of Louisiana, and George A. Bourgeois, Assistant Attorney General, for petitioner. Reported below: 393 F. 2d 938. No. 408. Nugara v. Illinois. Sup. Ct. Ill. Certiorari denied. Anna R. Lavin for petitioner. Reported below: 39 Ill. 2d 482, 236 N. E. 2d 693. No. 411. F. H. Sparks Co., Inc. v. George Sollitt Construction Co. C. A. 7th Cir. Certiorari denied. Francis X. Conway for petitioner. Albert E. Jenner, Jr., for respondent. Reported below: 397 F. 2d 439. 926 OCTOBER TERM, 1968. October 28, 1968. 393 U. S. No. 409. Los Angeles Herald Examiner, a Division of Hearst Corp., et al. v. San Francisco-Oakland Newspaper Guild et al. C. A. 9th Cir. Certiorari denied. Charles G. Bakaly, Jr., for petitioners. Stephen Reinhardt and George E. Bodie for San Francisco-Oakland Newspaper Guild et al., and Solicitor General Griswold, Arnold Ordman, Dominick L. Manoli, and Norton J. Come for Kennedy, respondents. No. 412. Glavin et al. v. United States. C. A. 9th Cir. Certiorari denied. G. G. Baumen for petitioners. Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg for the United States. Reported below: 396 F. 2d 725. No. 415. Ebbert et al. v. Brenner, Commissioner of Patents. C. A. D. C. Cir. Certiorari denied. John A. Blair for petitioners. Solicitor General Griswold for respondent. Reported below: 130 U. S. App. D. C. 168, 398 F. 2d 762. No. 249, Mise. Thomas v. United States. C. A. 6th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, and Philip R. Monahan for the United States. No. 369, Mise. Clay et al. v. United States. C. A. 8th Cir. Certiorari denied. William H. Bowen for petitioners. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Robert G. Maysack for the United States. Reported below: 394 F. 2d 281. No. 521, Mise. Failla v. California et al. Ct. App. Cal., 2d App. Dist. Certiorari denied. Reported below: 256 Cal. App. 2d 869, 65 Cal. Rptr. 115. ORDERS. 927 393 U. S. October 28, 1968. No. 405, Mise. Ford v. United States; and No. 414, Mise. Howard v. United States. C. A. 6th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg for the United States in both cases. Reported below: 395 F. 2d 679. No. 410, Mise. Steele v. Nelson, Warden, et al. C. A. 9th Cir. Certiorari denied. No. 411, Mise. Streeter v. Illinois. Sup. Ct. Ill. Certiorari denied. No. 427, Mise. Dentis v. Oklahoma et al. C. A. 10th Cir. Certiorari denied. No. 478, Mise. Jackson v. Maryland. Cir. Ct. Baltimore County. Certiorari denied. No. 479, Mise. Smith v. California Adult Authority et al. C. A. 9th Cir. Certiorari denied. No. 486, Mise. Fontana et ux. v. Walker et al. Ct. App. Md. Certiorari denied. Reported below: 249 Md. 459, 240 A. 2d 268. No. 513, Mise. Morton v. New York. C. A. 2d Cir. Certiorari denied. Reported below : 393 F. 2d 482. No. 525, Mise. Lamb v. City of Eastlake. Sup. Ct. Ohio. Certiorari denied. Ronald M. Benjamin and David P. Freed for petitioner. No. 578, Mise. Raffa v. City of Cleveland. Sup. Ct. Ohio. Certiorari denied. James R. Willis for petitioner. Thomas J. Italiano for respondent. Reported below: 13 Ohio St. 2d 112, 235 N. E. 2d 138. 928 OCTOBER TERM, 1968. October 28, 1968. 393 U. S. No. 528, Mise. Bell v. Florida. Dist. Ct. App. Fla., 1st Dist. Certiorari denied. John D. Buchanan, Jr., for petitioner. Reported below: 208 So. 2d 474. No. 535, Mise. Wood v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 537, Mise. Swanson v. White House Utility District et al. C. A. 6th Cir. Certiorari denied. No. 573, Mise. Jackson v. California. C. A. 9th Cir. Certiorari denied. No. 621, Mise. Kamsler v. Tri Par Radio & Appliance Co., Inc., et al. C. A. 7th Cir. Certiorari denied. No. 626, Mise. Carroll v. Alabama. C. A. 5th Cir. Certiorari denied. MacDonald Gallion, Attorney General of Alabama, and Robert P. Bradley and Walter S. Turner, Assistant Attorneys General, for respondent. No. 630, Mise. Heslip v. New Jersey. Sup. Ct. N. J. Certiorari denied. No. 294, Mise. Robinson v. Maryland. Ct. App. Md. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Francis B. Burch, Attorney General of Maryland, and Alfred J. O’Ferrall III, Assistant Attorney General, for respondent. Reported below: 249 Md. 200, 238 A. 2d 875. No. 408, Mise. White v. United States. C. A. 1st Cir. Certiorari denied. Mr. Justice Black and Mr. Justice Stewart are of the opinion that certiorari should be granted. Francis J. Larkin for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg for the United States. Reported below: 395 F. 2d 5. ORDERS. 929 393 U.S. October 28, November 1, 4, 1968. No. 593, Mise. Putt v. United States. C. A. 5th Cir. Certiorari denied. Mr. Justice Marshall took no part in the consideration or decision of this petition. Solicitor General Griswold for the United States. Reported below: 392 F. 2d 64. No. 600, Mise. McClellan v. Ohio. Sup. Ct. Ohio. Certiorari denied. The Chief Justice, Mr. Justice Douglas, Mr. Justice Stewart, and Mr. Justice Fortas concur in the denial of certiorari, pointing out that the issues under Witherspoon v. Illinois, 391 U. S. 510, can be decided only upon consideration of a transcript of the voir dire of the jury, which is not now in the record but which can presumably be made available in state or federal collateral proceedings. Harry Friberg for respondent. November 1, 1968. Dismissal Under Rule 60. No. 175. Liberty National Bank & Trust Co. v. Buscaglia, Director, Division of Sales Tax, Erie County, et al. Appeal from Ct. App. N. Y. Appeal dismissed pursuant to Rule 60 of the Rules of this Court. Manly Fleischmann for appellant. Louis J. Lejkowitz, Attorney General of New York, Ruth Kessler Toch, Solicitor General, and Robert W. Bush, Assistant Attorney General, for appellees. Reported below: 21 N. Y. 2d 357, 235 N. E. 2d 101. November 4, 1968. Miscellaneous Order. No. 1065, Mise. Valenti v. Lumbard, Chief Judge, U. S. District Court, et al. Request for acceleration of time within which respondents may submit their response to motion for leave to file petition for mandamus denied without prejudice to consideration of petition on its merits. 930 OCTOBER TERM, 1968. November 8, 12, 1968. 393 U.S. November 8, 1968. Miscellaneous Order. No. ---. Shanker et al. v. Rankin, Corporation Counsel of the City of New York. Ct. App. N. Y. Application for stay presented to Mr. Justice Harlan, and by him referred to the Court, denied. Ralph P. Katz for applicants. J. Lee Rankin, pro se, and Frederic S. Nathan and Stanley Buchsbaum in opposition. Reported below: 23 N. Y. 2d 111, 242 N. E. 2d 802. November 12, 1968. Miscellaneous Orders. No. 132, October Term, 1965. Holt et al. v. Kirby et al., 384 U. S. 28, 967. Motion of Morris Smith et al. to recall and amend judgment in this case denied. Mr. Justice Fortas and Mr. Justice Marshall took no part in the consideration or decision of this motion. Robert L. Bobrick on the motion. John E. Tobin and Benjamin Vinar for Kirby et al., and Mark F. Hughes and Vincent R. Fitzpatrick for Alleghany Corp., in opposition. No. 65. Leary v. United States. C. A. 5th Cir. [Certiorari granted, 392 U. S. 903.] Motion of American Civil Liberties Union for leave to file a brief, as amicus curiae, granted. Jonathan Sobelofl and Melvin L. Wulf on the motion. No. 644. Boulden v. Holman, Warden. C. A. 5th Cir. [Certiorari granted, ante, p. 822.] Motion of petitioner for appointment of counsel granted. It is ordered that William B. Moore, Jr., Esquire, of Montgomery, Alabama, a member of the Bar of this Court, be, and he is hereby, appointed to serve as counsel for petitioner in this case. ORDERS. 931 393 U. S. November 12, 1968. No. 461. Suffin v. Pennsylvania Railroad Co. et al. C. A. 3d Cir. The Solicitor General is invited to file a brief expressing the views of the United States. No. 642. Boykin v. Alabama. Sup. Ct. Ala. [Certiorari granted, ante, p. 820.] Motion of petitioner for the appointment of counsel granted. It is ordered that E. Graham Gibbons, Esquire, of Mobile, Alabama, a member of the Bar of this Court, be, and he is hereby, appointed to serve as counsel for petitioner in this case. No. 646. O’Callahan v. Parker, Warden. C. A. 3d Cir. [Certiorari granted, ante, p. 822.] Application for bail or release on personal recognizance presented to Mr. Justice Brennan, and by him referred to the Court, denied. Victor Rabinowitz for applicant. Solicitor General Griswold filed a memorandum for respondent. No. 670. Banks v. California. Ct. App. Cal., 1st App. Dist. [Certiorari granted, ante, p. 912.] Motion of petitioner for the appointment of counsel granted. It is ordered that Thomas J. Klitgaard, Esquire, of San Francisco, California, be, and he is hereby, appointed to serve as counsel for petitioner in this case. No. 678, Mise. Malena v. California et al.; No. 679, Mise. In re Henderson; and No. 795, Mise. Diamond v. Nelson, Warden. Motions for leave to file petitions for writs of habeas corpus denied. No. 568, Mise. Juliano v. Ohio et al.; No. 591, Mise. Fair v. Public Service Commission; No. 718, Mise. Fair v. Taylor, Clerk, Circuit Court of Hillsborough County, et al. ; and No. 786, Mise. In re Kamsler. Motions for leave to file petitions for writs of mandamus denied. 932 OCTOBER TERM, 1968. November 12, 1968. 393 U. S. Certiorari Granted. (See also No. 399, ante, p. 122.) No. 418. Simpson, Warden v. Rice. C. A. 5th Cir. Certiorari granted and case set for oral argument immediately following No. 413 [ante, p. 922]. MacDonald Gallion, Attorney General of Alabama, and Paul T. Gish, Jr., Assistant Attorney General, for petitioner. Oakley Melton, Jr., for respondent. Reported below: 396 F. 2d 499. No. 436. Rodrigue et al. v. Aetna Casualty & Surety Co. et al. C. A. 5th Cir. Certiorari granted. George Arceneaux, Jr., for petitioners Rodrigue et al. W. Ford Reese for respondents Mayronne et al. Reported below: 391 F. 2d 671; 395 F. 2d 216. No. 463. National Labor Relations Board v. Wyman-Gordon Co. C. A. 1st Cir. Certiorari granted. Solicitor General Griswold, Arnold Ordman, Dominick L. Manoli, and Norton J. Come for petitioner. Quentin 0. Young for respondent. Reported below: 397 F. 2d 394. No. 453. Gregg v. United States. C. A. 6th Cir. Certiorari granted limited to the questions raised with respect to Rule 32 (c)(1) of the Federal Rules of Criminal Procedure. Palmer K. Ward for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Jerome M. Feit, and Sidney M. Glazer for the United States. Certiorari Denied. (See also No. 533, Mise., ante, p. 128.) No. 221. Stidham v. Florida. Dist. Ct. App. Fla., 4th Dist. Certiorari denied. Neal Rutledge for petitioner. Earl Faircloth, Attorney General of Florida, and Charles W. Musgrove, Assistant Attorney General, for respondent. Reported below: 204 So. 2d 359. ORDERS. 933 393 U. S. November 12, 1968. No. 394. Huckaby v. United States. C. A. 6th Cir. Certiorari denied. James Easly for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg for the United States. No. 410. David v. Strelecki, Director of Division of Motor Vehicles of New Jersey. Sup. Ct. N. J. Certiorari denied. Mr. Justice Brennan took no part in the consideration or decision of this petition. Patrick T. McGahn, Jr., for petitioner. Arthur J. Sills, Attorney General of New Jersey, Joseph A. Hoffman, First Assistant Attorney General, and William J. Brennan III, Assistant Attorney General, for respondent. Reported below: 51 N. J. 563, 242 A. 2d 371. No. 416. Epling v. Ohio State Bar Assn. Sup. Ct. Ohio. Certiorari denied. George E. Tyack for petitioner. Samuel T. Gaines for respondent. Reported below: 15 Ohio St. 2d 23, 238 N. E. 2d 558. No. 419. Hart v. Ohio State Bar Assn. Sup. Ct. Ohio. Certiorari denied. George E. Tyack for petitioner. Samuel T. Gaines and James F. Shumaker for respondent. Reported below: 15 Ohio St. 2d 97, 238 N. E. 2d 560. No. 420. Loraine v. United States. C. A. 9th Cir. Certiorari denied. Russell E. Parsons for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Robert G. Maysack for the United States. Reported below: 396 F. 2d 335. No. 421. Wangrow et al. v. United States. C. A. 8th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg for the United States. Reported below: 399 F. 2d 106. 934 OCTOBER TERM, 1968. November 12, 1968. 393 U. S. No. 422. Cochran v. Morris et al., Executors and Trustees, et al. Sup. Ct. Pa. Certiorari denied. John A. Eichman 3d for petitioner. Joseph Neff Ewing and Thomas S. Weary for respondents Bryn Mawr Hospital et al.; and William C. Sennett, Attorney General of Pennsylvania, pro se, and Charles A. Woods, Jr., Deputy Attorney General, and Edward Friedman, Counsel General, for respondent Sennett. Reported below: 430 Pa. 318, 241 A. 2d 534. No. 424. Dresser Industries, Inc. v. Heraeus Engelhard Vacuum, Inc. C. A. 3d Cir. Certiorari denied. Jerome Gilson for petitioner. Ralph D. Dink-lage for respondent. Reported below: 395 F. 2d 457. No. 425. Monroe Auto Equipment Co. v. National Labor Relations Board. C. A. 5th Cir. Certiorari denied. J. Max Harding for petitioner. Solicitor General Griswold, Arnold Ordman, Dominick L. Manoli, and Norton J. Come for respondent. Reported below: 392 F. 2d 559. No. 427. Owens v. United States. C. A. 10th Cir. Certiorari denied. Robert S. Rizley for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Robert G. May sack for the United States. Reported below: 396 F. 2d 540. No. 428. Langemyr, dba Tom Carpentry Construction Co. v. Campbell et al. Ct. App. N. Y. Certiorari denied. Gerard E. Molony for petitioner. Robert Silagi for respondents. Reported below: 21 N. Y. 2d 796, 235 N. E. 2d 770. No. 433. Buxbom v. California. App. Dept., Super. Ct. Cal., County of Riverside. Certiorari denied. Stanley Fleishman and Sam Rosenwein for petitioner. 935 ORDERS. 393 U. S. November 12, 1968. No. 429. Cappabianca v. United States. C. A. 2d Cir. Certiorari denied. Ira B. Grudberg for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Jerome M. Feit, and Kirby W. Patterson for the United States. Reported below: 398 F. 2d 356. No. 434. Department of Forests and Parks et al. v. George’s Creek Coal & Land Co. Ct. App. Md. Certiorari denied. Francis B. Burch, Attorney General of Maryland, and Richard C. Rice, Special Assistant Attorney General, for petitioners. William C. Walsh for respondent. Reported below: 250 Md. 125, 242 A. 2d 165. No. 435. General Electric Credit Corp. v. Noblett. C. A. 10th Cir. Certiorari denied. James D. Fellers for petitioner. Reported below: 400 F. 2d 442. No. 437. Barenfanger, dba Barenfanger Construction Co. v. Louis. Sup. Ct. Ill. Certiorari denied. John Page Wham for petitioner. Irving M. Greenfield for respondent. Reported below: 39 Ill. 2d 445, 236 N. E. 2d 724. No. 440. Georgia Highway Express, Inc. v. National Labor Relations Board. C. A. D. C. Cir. Certiorari denied. Alexander E. Wilson, Jr., and Donald G. Mayhall for petitioner. Solicitor General Griswold, Arnold Ordman, Dominick L. Manoli, Norton J. Come, and Elliott Moore for respondent. Reported below: 131 U. S. App. D. C. 195, 403 F. 2d 921. No. 442. Swofford et al., dba Pathfinder Co. v. B & W, Inc. C. A. 5th Cir. Certiorari denied. Jack W. Hayden for petitioners. Tom Arnold for respondent. Reported below: 395 F. 2d 362. 936 OCTOBER TERM, 1968. November 12, 1968. 393 U. S. No. 444. Baggett Transportation Co. v. Hughes Transportation, Inc., et al. C. A. 8th Cir. Certiorari denied. William G. Somerville, Jr., for petitioner. Albert Thomson and Frank B. Hand for Hughes Transportation, Inc., and Bernard A. Gould, Robert W. Gin-nane, and Fritz R. Kahn for Interstate Commerce Commission, respondents. Reported below: 393 F. 2d 710. No. 445. Roberts et al. v. Commissioner of Internal Revenue. C. A. 4th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Rogovin, and Crombie J. D. Garrett for respondent. Reported below: 398 F. 2d 340. No. 447. Mustell v. Rose et al. Sup. Ct. Ala. Certiorari denied. Robert C. Barnett for petitioner. Andrew J. Thomas for respondents. Reported below: 282 Ala. 358, 211 So. 2d 489. No. 448. Laris v. United States. C. A. 3d Cir. Certiorari denied. Jack Wasserman for petitioner. Solicitor General Griswold for the United States. Reported below: 397 F. 2d 286. No. 449. Brake v. Shoemaker et al. Dist. Ct. App. Fla., 3d Dist. Certiorari denied. Robert M. Brake, petitioner, pro se. William C. Steel for respondents. Reported below: 208 So. 2d 107. No. 450. Hamilton Memorial Gardens, Inc. v. Commissioner of Internal Revenue. C. A. 6th Cir. Certiorari denied. Jacquin D. Bierman for petitioner. Solicitor General Griswold, Assistant Attorney General Rogovin, Louis M. Kauder, and Jonathan S. Cohen for respondent. Reported below: 394 F. 2d 905. ORDERS. 937 393 U. S. November 12, 1968. No. 452. Newland v. Indiana. Sup. Ct. Ind. Certiorari denied. Palmer K. Ward for petitioner. John J. Dillon, Attorney General of Indiana, and John F. Davis, Deputy Attorney General, for respondent. Reported below:-----Ind.-----, 236 N. E. 2d 45. No. 454. Eaton et al. v. United States. C. A. 5th Cir. Certiorari denied. Julius Lucius Echeles for petitioners. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Edward Fenig for the United States. Reported below: 398 F. 2d 485. No. 456. Cumberland Farms, Inc. v. National Labor Relations Board. C. A. 1st Cir. Certiorari denied. James L. Taft, Jr., for petitioner. Solicitor General Griswold, Arnold Ordman, Dominick L. Manoli, Norton J. Come, and Leonard M. Wagman for respondent. Reported below: 396 F. 2d 866. No. 458. Teller v. United States. C. A. 7th Cir. Certiorari denied. Anna L. Lavin and Edward J. Caliban, Jr., for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Jerome M. Feit, and Edward Fenig for the United States. Reported below: 397 F. 2d 494. No. 459. Coastwise Packet Co., Inc. v. United States. C. A. 1st Cir. Certiorari denied. John M. Hall for petitioner. Solicitor General Griswold, Assistant Attorney General Weisl, Morton Hollander, and Robert V. Zener for the United States. Reported below: 398 F. 2d 77. No. 466. Gyuro v. Connecticut. Sup. Ct. Conn. Certiorari denied. W. Paul Flynn for petitioner. Reported below: 156 Conn. 391, 242 A. 2d 734. 938 OCTOBER TERM, 1968. November 12, 1968. 393 U. S. No. 460. Turpin v. New York. Ct. App. N. Y. Certiorari denied. William Sonenshine for petitioner. No. 464. Courtesy Chevrolet, Inc. v. Tennessee Walking Horse Breeders’ & Exhibitors’ Association of America. C. A. 9th Cir. Certiorari denied. John H. Finger for petitioner. John J. Hooker for respondent. Reported below: 393 F. 2d 75. No. 465. Faucette, Trustee in Bankruptcy v. Van Dolson. C. A. 4th Cir. Certiorari denied. Philip Wittenberg for petitioner. M. M. Weinberg, Jr., for respondent. Reported below: 397 F. 2d 287. No. 467. Juaire v. Walter Marshak, Inc. C. A. 2d Cir. Certiorari denied. Albert Averbach and Pierre Lorsy for petitioner. 0. John Rogge for respondent. Reported below: 395 F. 2d 373. No. 468. Gypsum Transportation, Ltd. v. Board of Commissioners of Port of New Orleans. Ct. App. La., 4th Cir. Certiorari denied. Paul A. Nalty and Leon Sarpy for petitioner. Reported below: 209 So. 2d 296. No. 469. Parker v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 470. Janel Sales Corp, et al. v. Lanvin Par-fums, Inc., now Lanvin-Charles of the Ritz, Inc. C. A. 2d Cir. Certiorari denied. Morris Siegel for petitioners. Macdonald Flinn for respondent. Reported below: 396 F. 2d 398. No. 576. Huckaby v. United States. C. A. 6th Cir. Certiorari denied. James Easly for petitioner. Solicitor General Griswold for the United States. Reported below: 400 F. 2d 576. 939 ORDERS. 393 U.S. November 12, 1968. No. 578. Wyman-Gordon Co. v. National Labor Relations Board. C. A. 1st Cir. Certiorari denied. Quentin O. Young for petitioner. Solicitor General Griswold and Arnold Ordman for respondent. Reported below: 397 F. 2d 394. No. 205. Murchison & Co. et al. v. Glo Co. C. A. 3d Cir. Certiorari denied. Mr. Justice Fortas took no part in the consideration or decision of this petition. Robert H. Richards, Jr., and E. Norman Veasey for petitioner Sunray DX Oil Co. William D. Bailey, Jr., for respondent. Reported below: 397 F. 2d 928. No. 423. Baratta v. United States. C. A. 2d Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Abraham Glasser and Herman Edelman for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg for the United States. Reported below: 397 F. 2d 215. No. 462. Smith et al. v. Kirby et al., Guardians, et al. C. A. 2d Cir. Certiorari denied. Mr. Justice Fortas and Mr. Justice Marshall took no part in the consideration or decision of this petition. Robert L. Bobrick for petitioners. John E. Tobin for Kirby et al., Samuel N. Greenspoon for Fitzsimmons, and Vincent R. FitzPatrick for Alleghany Corp., respondents. Reported below: 394 F. 2d 381. No. 430. Lyons v. Chicago Park District. Sup. Ct. Ill. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Franklin C. Salisbury for petitioner. Thomas M. Thomas for respondent. Reported below: 39 Ill. 2d 584, 237 N. E. 2d 519. 320-583 0 - 69 - 55 940 OCTOBER TERM, 1968. November 12, 1968. 393 U. S. No. 144. Port of New York Authority et al. v. Wolin. C. A. 2d Cir. Motion of respondent to dispense with printing response granted. Certiorari denied. Sidney Goldstein for petitioners. Reported below: 392 F. 2d 83. No. 455. Caperci et al. v. Huntoon et al. C. A. 1st Cir. Certiorari denied. Mr. Justice Black is of the opinion that certiorari should be granted. Arthur V. Getchell for petitioners. Paul T. Smith for respondents. Reported below: 397 F. 2d 799. No. 509. Sobell v. Attorney General of the United States et al. C. A. 3d Cir. Certiorari denied. Mr. Justice Douglas, Mr. Justice Harlan, and Mr. Justice Brennan are of the opinion that certiorari should be granted. The renewed application for release presented to Mr. Justice Brennan, and by him referred to the Court, denied. Mr. Justice Douglas would grant bail for the reason that petitioner arguably has never received credit for the entire time he has served in prison. Mr. Justice White took no part in the consideration or decision of this petition and application. Thomas I. Emerson, David Rein, Morey M. Myers, and Joseph Forer for petitioner. Solicitor General Griswold, Assistant Attorney General Yeagley, and Kevin T. Maroney for respondents. Reported below: 400 F. 2d 986. No. 120, Mise. Poe v. Fitzharris, Prison Superintendent. C. A. 9th Cir. Certiorari denied. Thomas C. Lynch, Attorney General of California, Albert W. Harris, Jr., Assistant Attorney General, and Deraid E. Granberg, Deputy Attorney General, for respondent. No. 138, Mise. Sapp v. New York. Ct. App. N. Y. Certiorari denied. Daniel J. Sullivan for respondent. ORDERS. 941 393 U. S. November 12, 1968. No. 129, Mise. Howard v. California. Sup. Ct. Cal. Certiorari denied. Thomas C. Lynch, Attorney General of California, William E. James, Assistant Attorney General, and Phillip G. Samovar, Deputy Attorney General, for respondent. No. 235, Mise. Evans v. Cupp, Warden. C. A. 9th Cir. Certiorari denied. Robert Y. Thornton, Attorney General of Oregon, and David H. Blunt, Assistant Attorney General, for respondent. No. 288, Mise. George v. California. Ct. App. Cal., 1st App. Dist. Certiorari denied. Thomas C. Lynch, Attorney General of California, Albert W. Harris, Jr., Assistant Attorney General, and Timothy A. Reardon, Deputy Attorney General, for respondent. Reported below: 259 Cal. App. 2d 424, 66 Cal. Rptr. 442. No. 303, Mise. Graham v. United States. C. A. 6th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg for the United States. Reported below: 391 F. 2d 439. No. 359, Mise. Harris v. Arkansas. Sup. Ct. Ark. Certiorari denied. George Howard, Jr., for petitioner. Joe Purcell, Attorney General of Arkansas, and John Leslie Evitts, Chief Deputy Attorney General, for respondent. Reported below: 244 Ark. 314, 425 S. W. 2d 293. No. 377, Mise. Smith v. United States. C. A. 5th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Edward Fenig for the United States. Reported below: 392 F. 2d 169. 942 OCTOBER TERM, 1968. November 12, 1968. 393 U. S. No. 391, Mise. Roman-Morales v. United States; and No. 497, Mise. Juarez-Flores v. United States. C. A. 5th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Edward Fenig for the United States in both cases. Reported below: 394 F. 2d 161. No. 399, Mise. White v. Pennsylvania. C. A. 3d Cir. Certiorari denied. Robert W. Duggan for respondent. No. 437, Mise. Lewis v. Frye, Warden. Sup. Ct. Ill. Certiorari denied. No. 438, Mise. Jackson v. Illinois. Sup. Ct. Ill. Certiorari denied. No. 440, Mise. Ford v. Illinois. App. Ct. Ill., 1st Dist. Certiorari denied. Gerald W. Getty and James J. Doherty for petitioner. Reported below: 89 Ill. App. 2d 69, 233 N. E. 2d 51. No. 444, Mise. DeFoe v. United States; and No. 462, Mise. Morgan v. United States. C. A. 6th Cir. Certiorari denied. Clyde P. West for petitioner in No. 444, Mise. Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg for the United States in both cases. Reported below: 394 F. 2d 973. No. 467, Mise. Walker v. United States. C. A. 4th Cir. Certiorari denied. Roland D. Hartshorn for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg for the United States. Reported below: 393 F. 2d 491. ORDERS. 943 393 U. S. November 12, 1968. No. 482, Mise. Watts v. New York. Ct. App. N. Y. Certiorari denied. No. 498, Mise. Teplitsky v. Bureau of Compensation, United States Department of Labor, et al. C. A. 2d Cir. Certiorari denied. Solicitor General Griswold for respondents. Reported below: 398 F. 2d 820. No. 520, Mise. Valenzuela v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. Reported below: 259 Cal. App. 2d 826, 66 Cai. Rptr. 825, 67 Cal. Rptr. 691. No. 546, Mise. Jemison v. Ohio. Sup. Ct. Ohio. Certiorari denied. Bernard Cohen for petitioner. Reported below: 14 Ohio St. 2d 47, 236 N. E. 2d 538. No. 547, Mise. Carder v. Warden, Maryland Penitentiary. Ct. Sp. App. Md. Certiorari denied. Reported below: 3 Md. App. 309, 239 A. 2d 143. No. 567, Mise. Hughes v. United States. C. A. 8th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Edward Fenig for the United States. No. 595, Mise. India v. LaVallee, Warden. C. A. 2d Cir. Certiorari denied. No. 598, Mise. Alobaidi v. Texas. Ct. Crim. App. Tex. Certiorari denied. William E. Gray for petitioner. Reported below: 433 S. W. 2d 440. No. 624, Mise. Stuckey v. Clark, Attorney General, et al. C. A. 3d Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg for respondents. 944 OCTOBER TERM, 1968. November 12, 1968. 393 U. S. No. 611, Mise. Cottlo v. California. Sup. Ct. Cal. Certiorari denied. No. 613, Mise. Thomas v. Florida. Dist. Ct. App. Fla., 2d Dist. Certiorari denied. Reported below: 206 So. 2d 475. No. 614, Mise. Coonts v. Florida. Dist. Ct. App. Fla., 1st Dist. Certiorari denied. No. 617, Mise. Shannon v. Crouse, Warden. C. A. 10th Cir. Certiorari denied. No. 622, Mise. Nash v. California. Ct. App. Cal., 3d App. Dist. Certiorari denied. No. 635, Mise. Cantrell v. Kansas. Sup. Ct. Kan. Certiorari denied. Reported below: 201 Kan. 182, 440 P. 2d 580. No. 636, Mise. Combs v. Field, Men’s Colony Superintendent. Sup. Ct. Cal. Certiorari denied. No. 637, Mise. Marvel v. New Jersey. Sup. Ct. N. J. Certiorari denied. No. 653, Mise. Masterson v. United States. C. A. D. C. Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg for the United States. No. 661, Mise. Kamsler v. Stamos, State’s Attorney for Cook County, et al. C. A. 7th Cir. Certiorari denied. No. 664, Mise. Hale v. Gotten. C. A. 6th Cir. Certiorari denied. Charles M. Murphy, Jr., for petitioner. Robert L. Green for respondent. ORDERS. 945 393 U.S. November 12, 1968. No. 649, Mise. Coleman v. Ohio. Sup. Ct. Ohio. Certiorari denied. No. 666, Mise. Esparza v. Craven, Warden. Sup. Ct. Cal. Certiorari denied. No. 671, Mise. Martinez v. Idaho. Sup. Ct. Idaho. Certiorari denied. Allan G. Shepard, Attorney General of Idaho, and William D. Collins, Assistant Attorney General, for respondent. Reported below: 92 Idaho 183, 439 P. 2d 691. No. 677, Mise. Brinson v. Comstock, Conservation Center Superintendent. C. A. 9th Cir. Certiorari denied. No. 681, Mise. Perez v. New Jersey. Sup. Ct. N. J. Certiorari denied. Robert N. McAllister, Jr., for respondent. No. 687, Mise. Pollard v. United States. C. A. D. C. Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg for the United States. No. 693, Mise. Turner v. United States et al. C. A. D. C. Cir. Certiorari denied. Solicitor General Griswold for the United States. No. 696, Mise. Odes v. Civil Service Commission of the City of Chicago et al. Sup. Ct. Ill. Certiorari denied. No. 698, Mise. Johnson v. California. App. Dept., Super. Ct. Cal., County of L. A. Certiorari denied. 946 OCTOBER TERM, 1968. November 12, 1968. 393 U.S. No. 700, Mise. Sasso v. United States. C. A. 2d Cir. Certiorari denied. James W. Marshall for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Jerome M. Feit, and Kirby W. Patterson for the United States. Reported below: 398 F. 2d 356. No. 701, Mise. Morganti v. New York. Ct. App. N. Y. Certiorari denied. Reported below: 22 N. Y. 2d 679, 238 N. E. 2d 757. No. 716, Mise. Ward v. New Jersey. Sup. Ct. N. J. Certiorari denied. No. 723, Mise. Poston v. United States et al. C. A. 9th Cir. Certiorari denied. Joseph A. Ryan for petitioner. Solicitor General Griswold for the United States. Reported below: 396 F. 2d 103. No. 746, Mise. Prince v. United States. C. A. 2d Cir. Certiorari denied. Conrad J. Lynn for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Edward Fenig for the United States. Reported below: 398 F. 2d 686. No. 758, Mise. Quinones v. New York. Sup. Ct. N. Y., New York County. Certiorari denied. Frank S. Hogan and Sybil Landau for respondent. No. 694, Mise. Foster v. Kropp, Warden. C. A. 6th Cir. Certiorari and other relief denied. No. 695, Mise. Allison v. Wainwright, Corrections Director. Dist. Ct. App. Fla., 1st Dist. Certiorari and other relief denied. ORDERS. 947 393 U. S. November 12, 18, 1968. Rehearing Denied. No. 37, Mise. Hanks v. United States, ante, p. 863; No. 46, Mise. Handy v. Patuxent Institution Director, ante, p. 865; No. 54, Mise. Padgett v. Wainwright, Corrections Director, ante, p. 865; No. 137, Mise. Burns v. Turner, Warden, ante, p. 873; No. 293, Mise. Copeland v. Florida, ante, p. 884; No. 322, Mise. Joerger v. Wainwright, Corrections Director, ante, p. 886; No. 382, Mise. Morton v. Kansas, ante, p. 890; and No. 419, Mise. Holscher v. Young, Warden, ante, p. 816. Petitions for rehearing denied. November 18, 1968. Dismissal Under Rule 60. No. 193. International Salt Co. v. Ohio Turnpike Commission. C. A. 8th Cir. Petition for writ of certiorari dismissed pursuant to Rule 60 of the Rules of this Court. Robert D. Stiles for petitioner. James W. Shocknessy for respondent. Reported below: 392 F. 2d 579. [For earlier order herein, see ante, p. 814.] Miscellaneous Orders. No.---. Drent et al. v. McKean et al. C. A. 5th Cir. Application for stay presented to Mr. Justice Douglas, and by him referred to the Court, denied. Bernard D. Fischman for applicants. No. 823, Mise. Buchanan v. Burke, Warden. Motion for leave to file petition for writ of habeas corpus denied. 948 OCTOBER TERM, 1968. November 18, 1968. 393 U. S. No. 156, Mise. Ellenbogen v. United States, ante, p. 918. Respondent requested to file a response to petition for rehearing within 30 days. Mr. Justice Marshall took no part in the consideration or decision of this matter. No. 30. Kirkpatrick, Secretary of State of Missouri, et al. v. Preisler et al. ; and No. 31. Heinkel et al. v. Preisler et al. Appeals from D. C. W. D. Mo. [Probable jurisdiction noted, 390 U. S. 939.] Motions of appellants for additional time for oral argument granted, and an additional 30 minutes, to be divided equally, allotted to counsel for appellants. An additional 30 minutes allotted to counsel for appellees. Norman H. Anderson, Attorney General of Missouri, and Thomas J. Downey, First Assistant Attorney General, on the motion in No. 30, and John David Collins on the motion in No. 31. No. 505, Mise. Brown v. Beto, Corrections Director. Motion for leave to file petition for writ of habeas corpus denied. Crawford C. Martin, Attorney General of Texas, Nola White, First Assistant Attorney General, A. J. Carubbi, Jr., Executive Assistant Attorney General, and Robert C. Flowers and Lonny F. Zwiener, Assistant Attorneys General, in opposition. Probable Jurisdiction Noted. No. 492. Brandenburg v. Ohio. Appeal from Sup. Ct. Ohio. Probable jurisdiction noted. The Attorney General of Ohio is invited to file a brief expressing the views of the State of Ohio. Allen Brown, Melvin L. Wulf, Eleanor Holmes Norton, and Bernard A. Berkman for appellant. Melvin G. Rueger and Leonard Kirschner for appellee. ORDERS. 949 393 U. S. November 18, 1968. Certiorari Granted. (See also No. 323, ante, p. 166.) No. 138. Powell et al. v. McCormack, Speaker of the House of Representatives, et al. C. A. D. C. Cir. Certiorari granted. Arthur Kinoy, William M. Kunstler, Edward Bennett Williams, Robert L. Carter, Hubert T. Delany, Herbert O. Reid, Sr., Frank D. Reeves, and Henry R. Williams for petitioners. Bruce Bromley, John R. Hupper, Thomas D. Barr, Lloyd N. Cutler, John H. Pickering, Ijouis F. Oberdorjer, and Max 0. Truitt, Jr., for respondents. Reported below: 129 U. S. App. D. C. 354, 395 F. 2d 577. No. 473. Bingler, District Director of Internal Revenue v. Johnson et al. C. A. 3d Cir. Certiorari granted. Solicitor General Griswold, Assistant Attorney General Rogovin, Harris Weinstein, Jonathan S. Cohen, and Michael B. Arkin for petitioner. James C. Larrimer for respondents. Reported below: 396 F. 2d 258. No. 477. United States v. United States Coin and Currency in the Amount of $8,674 (Angelini, claimant). C. A. 7th Cir. Certiorari granted. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Jerome M. Feit for the United States. Anna R. Lavin for respondent. Reported below: 393 F. 2d 499. No. 231, Mise. Harrington v. California. Ct. App. Cal., 2d App. Dist. Motion for leave to proceed in forma pauperis granted. Certiorari granted and case transferred to appellate docket. Thomas C. Lynch, Attorney General of California, William E. James, Assistant Attorney General, and James H. Kline, Deputy Attorney General, for respondent. Reported below: 256 Cal. App. 2d 209, 64 Cal. Rptr. 159. 950 OCTOBER TERM, 1968. November 18, 1968. 393 U. S. No. 480. Blasius v. United States. C. A. 2d Cir. Certiorari granted limited to Question 1 presented by the petition which reads as follows: “Does an individual violate Section 33 of Title 35, United States Code, by representing that he is qualified to prepare applications for patent, when the individual is not registered with the Patent Office? “(a) Did the Court of Appeals for the Second Circuit err in its opinion that the provisions of Section 33 of Title 35, United States Code, are clear, and not ambiguous as determined by the United States Court of Appeals for the District of Columbia Circuit in Hull v. United States, 390 F. 2d 462 (D. C. Cir. 1968), thus creating a conflict within the Circuits? “(b) Does the word ‘qualified’ as used in Section 33 of Title 35, United States Code, mean skill or ‘know-how’ in performing the service or does it mean legal and actual authority from the Patent Office to perform a particular function?” Peyton Ford for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Jerome M. Feit, and Sidney M. Glazer for the United States. Jacob Stein, Eugene L. Bernard, and Donald R. Dunner for the Bar Association of the District of Columbia, and Eben M. Graves, Frank L. Neuhauser, W. Brown Morton, Jr., and William H. Elliott, Jr., for the American Patent Law Association, as amici curiae. Reported below: 397 F. 2d 203. No. 195, Mise. Jenkins v. Delaware. Sup. Ct. Del. Motion for leave to proceed in forma pauperis granted. Certiorari granted and case transferred to appellate docket. Henry N. Herndon, Jr., for petitioner. Jay H. Conner, Deputy Attorney General of Delaware, for respondent. Reported below: ------ Del. ---, 240 A. 2d 146. ORDERS. 951 393 U.S. November 18, 1968. No. 227, Mise. Rodriquez v. United States. C. A. 9th Cir. Motion for leave to proceed in forma pauperis granted. Certiorari granted and case transferred to appellate docket. Solicitor General Griswold for the United States. Reported below: 387 F. 2d 117. Certiorari Denied. No. 237. Angeleri v. New Jersey. Sup. Ct. N. J. Certiorari denied. Michael A. Querques and Daniel E. Isles for petitioner. S. Philip Klein for respondent. Reported below: 51 N. J. 382, 241 A. 2d 3. No. 250. Coyne v. Watson, Sheriff. C. A. 6th Cir. Certiorari denied. Richard J. Morr for petitioner. No. 278. Lynn et al. v. Caraway et al. C. A. 5th Cir. Certiorari denied. W. Scott Wilkinson for petitioners. Benjamin C. King for respondent Caraway, and Marion K. Smith for respondent Jones. Reported below: 379 F. 2d 943. No. 471. Perfo-Log, Inc. v. Well Surveys, Inc., now Dresser Systems, Inc., et al. C. A. 10th Cir. Certiorari denied. R. Welton Whann for petitioner. Rufus S. Day, Jr., for respondents. Reported below: 396 F. 2d 15. No. 475. Paul v. Dade County, Florida. Sup. Ct. Fla. Certiorari denied. D. P. S. Paul and P. D. Thomson for petitioner. William W. Gibbs for respondent. Reported below: 210 So. 2d 200. No. 476. Shrout, dba Shrout Agency v. McDonald’s System, Inc., et al. Sup. Ct. Ill. Certiorari denied. Willard Lassers for petitioner. Jerome Gilson for respondents. 952 OCTOBER TERM, 1968. 393 U.S. November 18, 1968. No. 481. First Camden National Bank & Trust Co. v. Lapinsohn et ux. Super. Ct. Pa. Certiorari denied. John P. Hauch, Jr., for petitioner. Yale B. Bernstein for respondents. Reported below: 212 Pa. Super. 185, 240 A. 2d 90. No. 482. Moretti v. New Jersey. Sup. Ct. N. J. Certiorari denied. George R. Sommer for petitioner. Reported below: 52 N. J. 182, 244 A. 2d 499. No. 484. Scroggins v. United States. Ct. Cl. Certiorari denied. Byron N. Scott for petitioner. Solicitor General Griswold for the United States. Reported below: 184 Ct. Cl. 530, 397 F. 2d 295. No. 485. London & Overseas Insurance Co. et al. v. Bunge Corp, et al. C. A. 2d Cir. Certiorari denied. William Warner, William Garth Symmers, and Frederick Fish for petitioners. Philip C. Scott for Bunge Corp., and Peter H. Kaminer, Edwin J. Wesely, and Marie L. McCann for Banker, respondents. Reported below: 394 F. 2d 496. No. 472. Garrett et al. v. United States. C. A. 5th Cir. Motion to dispense with printing petition granted. Certiorari denied. Emmett Colvin, Jr., and Joe H. Tonahill for petitioners. Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg for the United States. Reported below: 396 F. 2d 489. No. 486. Houston v. United States. C. A. 5th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, Jerome M. Feit, and Marshall Tamor Golding for the United States. Reported below: 397 F. 2d 261. ORDERS. 953 393 U. S. November 18, 1968. No. 489. Van Den Wymelenberg, Executor v. United States. C. A. 7th Cir. Certiorari denied. Roger C. Minahan for petitioner. Solicitor General Griswold, Assistant Attorney General Rogovin, and Jonathan S. Cohen for the United States. Reported below: 397 F. 2d 443. No. 495. Fitzwater v. California. Ct. App. Cal., 1st App. Dist. Certiorari denied. Al Matthews for petitioner. Reported below: 260 Cal. App. 2d 478, 67 Cal. Rptr. 190. No. 497. Borden Co. et al. v. National Dairy Products Corp. C. A. 7th Cir. Certiorari denied. Stuart S. Ball for Borden Co., R. Howard Goldsmith for L. D. Schreiber & Co. et al., and Charles F. Meroni for Safeway Stores, Inc., et al., petitioners. John T. Chad-well for respondent. Reported below: 394 F. 2d 887. No. 493. Woods v. Oklahoma. Ct. Crim. App. Okla. Motion to dispense with printing petition granted. Certiorari denied. William L. Anderson for petitioner. Reported below: 440 P. 2d 994. No. 491. Utility Users League et al. v. Federal Power Commission et al. C. A. 7th Cir. Motion to dispense with printing portions of appendix to petition granted. Certiorari denied. Harry R. Booth for petitioners. Solicitor General Griswold, Richard A. Solomon, Peter H. Schiff, Drexel D. Journey, and Israel Convisser for Federal Power Commission, and Charles A. Bane and James E. Knox, Jr., for Commonwealth Edison Co., respondents. Reported below: 394 F. 2d 16. No. 566, Mise. Baker v. Michigan. Sup. Ct. Mich. Certiorari denied. 954 OCTOBER TERM, 1968. November 18, 1968. 393 U. S. No. 498. Newark Stereotypers’ Union No. 18 v. Newark Morning Ledger Co. et al. C. A. 3d Cir. Certiorari denied. Mr. Justice Brennan took no part in the consideration or decision of this petition. William R. Meagher and Thomas L. Morrissey for petitioner. Bernard G. Segal, Samuel D. Slade, and Donald A. Robinson for respondents. Reported below: 397 F. 2d 594. No. 314, Mise. Pruett v. Missouri. Sup. Ct. Mo. Certiorari denied. Irl B. Baris for petitioner. Norman H. Anderson, Attorney General of Missouri, and Walter W. Nowotny, Jr., Assistant Attorney General, for respondent. Reported below: 425 S. W. 2d 116. No. 443, Mise. Phillips v. Washington. Sup. Ct. Wash. Certiorari denied. John A. Gose for petitioner. Reported below: 73 Wash. 2d 462, 438 P. 2d 876. No. 475, Mise. Benson v. Arizona. Sup. Ct. Ariz. Certiorari denied. Gary K. Nelson, Attorney General of Arizona, and Thomas M. Tuggle, Assistant Attorney General, for respondent. No. 581, Mise. Marsh v. Illinois. Sup. Ct. Ill. Certiorari denied. No. 585, Mise. Saldana v. Beto, Corrections Director. C. A. 5th Cir. Certiorari denied. Reported below: 394 F. 2d 827. No. 586, Mise. Tynan v. Eyman, Warden. C. A. 9th Cir. Certiorari denied. Reported below: 397 F. 2d 53. No. 639, Mise. Fierro v. Schneckloth, Conservation Center Superintendent, et al. C. A. 9th Cir. Certiorari denied. ORDERS. 955 393 U. S. November 18, 1968. No. 592, Mise. Haines et al. v. Kingsley. C. A. 10th Cir. Certiorari denied. No. 602, Mise. Smith v. California. Ct. App. Cal., 1st App. Dist. Certiorari denied. No. 609, Mise. Nichols v. Russell, Warden. C. A. 6th Cir. Certiorari denied. No. 628, Mise. Hill v. Texas. Ct. Crim. App. Tex. Certiorari denied. Reported below: 429 S. W. 2d 481. No. 632, Mise. Blanchey v. Washington. Sup. Ct. Wash. Certiorari denied. No. 638, Mise. Maxey v. Kropp, Warden. C. A. 6th Cir. Certiorari denied. No. 646, Mise. Ponce, aka Dominguez v. Craven, Warden. C. A. 9th Cir. Certiorari denied. No. 689, Mise. Valdivia v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. Reported below: 259 Cal. App. 2d 593, 66 Cal. Rptr. 615. No. 692, Mise. Creighbaum v. Burke, Warden. C. A. 7th Cir. Certiorari denied. Reported below: 398 F. 2d 822. No. 702, Mise. Frazier v. California. Cal., 2d App. Dist. Certiorari denied. Ct. App. No. 620, Mise. Levine et al. v. Lever Brothers Co. et al. C. A. 2d Cir. Certiorari denied. Mr. Justice Fortas took no part in the consideration or decision of this petition. 320-583 0 - 69 - 56 956 OCTOBER TERM, 1968. November 18, 1968. 393 U. S. No. 682, Mise. Mixon v. New York. App. Div., Sup. Ct. N. Y., 4th Jud. Dept. Certiorari denied. Mr. Justice Marshall took no part in the consideration or decision of this petition. Rehearing Denied. No. 196. De Simone v. United States, ante, p. 834; No. 274. Moreali v. Workmen’s Compensation Appeals Board of California et al., ante, p. 841 ; No. 341. Estate of Freeland et al. v. Commissioner of Internal Revenue, ante, p. 845; No. 353. Ratcliff v. Bruce et al., ante, p. 848; No. 50, Mise. Daegele v. Crouse, Warden, ante, p. 915; No. 150, Mise. Rucker v. City of Flint et al., ante, p. 873; No. 171, Mise. Lusk v. Strickland et al., ante, p. 875; No. 367, Mise. In re Kamsler, ante, p. 816; No. 396, Mise. Lewis v. United States, ante, p. 891 ; and No. 473, Mise. Lemanski v. Lemanski, ante, p. 20. Petitions for rehearing denied. No. 946, October Term, 1967. Civil Aeronautics Board v. Pan American World Airways, Inc., et al., 391 U. S. 461. Petition for rehearing denied. Mr. Justice Marshall took no part in the consideration or decision of this petition. No. 132. Yuen Kam Chuen et al. v. Esperdy, District Director of Immigration and Naturalization Service, ante, p. 858. Petition for rehearing denied. Mr. Justice Marshall took no part in the consideration or decision of this petition. ORDERS. 957 393 U.S. November 18, 20, 21, 1968. No. 800, October Term, 1967. World Airways, Inc., et al. v. Pan American World Airways, Inc., et al.; and No. 969, October Term, 1967. American Society of Travel Agents, Inc. v. Pan American World Airways, Inc., et al., 391 U. S. 461. Motion for leave to supplement petition for rehearing granted. Petition for rehearing denied. Mr. Justice Marshall took no part in the consideration or decision of this motion and petition. November 20, 1968. Dismissals Under Rule 60. No. 483. Vizcarra-Delgadillo v. United States. C. A. 9th Cir. Petition for writ of certiorari dismissed pursuant to Rule 60 of the Rules of this Court. Milton T. Simmons and Donald L. Ungar for petitioner. Solicitor General Griswold for the United States. Reported below: 395 F. 2d 70. No. 616. Stewart et al. v. Woodward. Sup. Ct. R. I. Petition for writ of certiorari dismissed pursuant to Rule 60 of the Rules of this Court. Richard P. McMahon and 8. Everett Wilkins for petitioners. Reported below: ---R. I.----, 243 A. 2d 917. November 21, 1968. Dismissal Under Rule 60. No. 1065, Mise. Valenti v. Lumbard, Chief Judge, U. S. District Court, et al. Motion for leave to file petition for writ of mandamus dismissed pursuant to Rule 60 of the Rules of this Court. John Manning Regan on the motion. Louis J. Lejkowitz, Attorney General of New York, and Jean M. Coon, Assistant Attorney General, for respondents. 958 OCTOBER TERM, 1968. 393 U. S. November 25, 1968. Miscellaneous Orders. No.----. Zaffarano v. Fitzpatrick, Warden. C. A. 2d Cir. Application for bail presented to Mr. Justice Harlan, and by him referred to the Court, denied. Irving Spieler for applicant. No. 49. Zenith Radio Corp. v. Hazeltine Research, Inc., et al. C. A. 7th Cir. [Certiorari granted, 391 U. S. 933.] The Solicitor General is invited to file a brief expressing the views of the United States. No. 838, Mise. Farbenfabriken Bayer A. G. v. United States. D. C. D. C.; and No. 839, Mise. Farbenfabriken Bayer A. G. v. United States. C. A. D. C. Cir. Motions for leave to file petitions for writs of certiorari denied. Allen F. Maulsby, Arnold M. Lerman, Max O. Truitt, Jr., and Daniel K. Mayers on the motions in both cases. No. 717, Mise. Cox v. Burke, Warden; and No. 869, Mise. Robinson v. Peyton, Penitentiary Superintendent. Motions for leave to file petitions for writs of habeas corpus denied. Certiorari Granted. (See also No. 134, ante, p. 215; and No. 88, Mise., ante, p. 216.) No. 252, Mise. Chimel v. California. Sup. Ct. Cal. Motion for leave to proceed in forma pauperis granted. Certiorari granted and case transferred to appellate docket. Thomas C. Lynch, Attorney General of California, William E. James, Assistant Attorney General, and Ronald M. George, Deputy Attorney General, for respondent. Reported below: 68 Cal. 2d 436, 439 P. 2d 333. ORDERS. 959 393 U. S. November 25, 1968. No. 76. Cardinale v. Louisiana. Sup. Ct. La. Certiorari granted. Nathan Greenberg for petitioner. Jack P. F. Gr emillion, Attorney General of Louisiana, William P. Schuler, Second Assistant Attorney General, Leander H. Perez, Jr., and Preston H. Hufft for respondent. Reported below: 251 La. 827, 206 So. 2d 510. No. 517. National Board of Young Men’s Christian Assns. et al. v. United States. Ct. Cl. Certiorari granted. Ronald A. Jacks for petitioners. Solicitor General Griswold, Assistant Attorney General Martz, Roger P. Marquis, and S. Billingsley Hill for the United States. Reported below: 184 Ct. Cl. 427, 396 F. 2d 467. Certiorari Denied. (See also No. 499, ante, p. 214; and No. 501, ante, p. 215.) No. 505. Farbenfabriken Bayer A. G. v. United States. C. A. D. C. Cir. Certiorari denied. Allen F. Maulsby, Arnold M. Lerman, Max 0. Truitt, Jr., and Daniel K. Mayers for petitioner. Solicitor General Griswold for the United States. No. 443. Pennsylvania Public Utility Commission v. Bessemer & Lake Erie Railroad Co. et al. ; and No. 638. Co-Operative Legislative Committee, Railroad Brotherhoods in the State of Pennsylvania v. Bessemer & Lake Erie Railroad Co. et al. Sup. Ct. Pa. Certiorari denied. William A. Goichman, Edward Munce, and Joseph C. Bruno for petitioner in No. 443, and G. P. MacDougall for petitioner in No. 638. R. N. Clattenburg, Donald A. Brinkworth, and Gordon E. Neuenschwander for respondents in both cases. Sheldon E. Bernstein for Railway Labor Executives’ Assn., as amicus curiae, in support of the petitions in both cases. Reported below: 430 Pa. 339, 243 A. 2d 358. 960 OCTOBER TERM, 1968. November 25, 1968. 393 U.S. No. 165. Calvary Bible Presbyterian Church of Seattle et al. v. Board of Regents of the University of Washington. Sup. Ct. Wash. Certiorari denied. William H. Botzer for petitioners. John J. O’Connell, Attorney General of Washington, and James B. Wilson, Assistant Attorney General, for respondent. Reported below: 72 Wash. 2d 912, 436 P. 2d 189. No. 494. Elden v. Addison Farmers Mutual Insurance Co. App. Ct. Ill., 2d Dist. Certiorari denied. William Elden, petitioner, pro se. Reported below: 90 Ill. App. 2d 417, 233 N. E. 2d 42. No. 503. Kington v. United States. C. A. 6th Cir. Certiorari denied. John T. Gilbertson for petitioner. Solicitor General Griswold for the United States. Reported below: 396 F. 2d 9. No. 506. New York Shipping Assn., Inc., et al. v. District 2, Marine Engineers Beneficial Assn. (AFL-CIO) et al. Ct. App. N. Y. Certiorari denied. Alfred Giardino and E. Barrett Prettyman, Jr., for petitioners. Howard Schulman for respondents. Reported below: 22 N. Y. 2d 809, 239 N. E. 2d 650. No. 508. Qualls v. Michigan. Sup. Ct. Mich. Certiorari denied. Frederick C. Kurth for petitioner. Frank J. Kelley, Attorney General of Michigan, Robert A. Derengoski, Solicitor General, and James J. Wood, Assistant Attorney General, for respondent. No. 514. Finks et al. v. United States. Ct. Cl. Certiorari denied. Walter E. Gillcrist and J. Gordon Forester, Jr., for petitioners. Solicitor General Griswold for the United States. Reported below: 184 Ct. Cl. 480, 395 F. 2d 999. ORDERS. 961 393 U. S. November 25, 1968. No. 513. Grey et al. v. First National Bank in Dallas et al. C. A. 5th Cir. Certiorari denied. Gerald Meyer for petitioners. Henry C. Coke, Jr., John N. Jackson, J. Edwin Fleming, and Ernest E. Figari, Jr., for First National Bank in Dallas; E. Taylor Armstrong for First National Bank in Dallas as trustee of the Morgan trust; Royal H. Brin, Jr., for First National Bank in Dallas as trustee of the O’Connor trust; and Crawford C. Martin, pro se, and Marvin H. Sentell, Assistant Attorney General, for the Attorney General of Texas, respondents. Reported below: 393 F. 2d 371. No. 516. Berberian v. Pennsylvania. Sup. Ct. Pa. Certiorari denied. Bernard L. Segal for petitioner. No. 518. Hogan et al. v. Ivor B. Clark Co., Inc. C. A. 2d Cir. Certiorari denied. William G. Grant for petitioners. Paul H. Tannenbaum for respondent. No. 519. Hayutin v. United States; and No. 567. Nash v. United States. C. A. 2d Cir. Certiorari denied. Jesse Climenko and Milton S. Gould for petitioner in No. 519, and Jerome J. Londin for petitioner in No. 567. Solicitor General Griswold, Assistant Attorney General Vinson, Jerome M. Feit, and Kirby W. Patterson for the United States in both cases. Reported below: 398 F. 2d 944. No. 521. Dreyfus v. Michael Reese Hospital & Medical Center. C. A. 7th Cir. Certiorari denied. R. Wicks Stephens II for petitioner. Frank D. Mayer for respondent. Reported below: 397 F. 2d 794. No. 523. Illinois v. Miller. Sup. Ct. Ill. Certiorari denied. John J. Stamos for petitioner. Charles A. Bellows for respondent. Reported below: 40 Ill. 2d 154, 238 N. E. 2d 407. 962 OCTOBER TERM, 1968. November 25, 1968. 393 U. S. No. 522. Crowder, trading as Harriman Broadcasting Co. v. Federal Communications Commission et al. C. A. D. C. Cir. Certiorari denied. Vincent A. Pepper for petitioner. Solicitor General Griswold and Henry Geller for Federal Communications Commission, and Arthur H. Schroeder and John B. Kenkel for Folkways Broadcasting Co., Inc., respondents. Reported below: 130 U. S. App. D. C. 198, 399 F. 2d 569. No. 524. Board of Trustees of Arkansas A. & M. College et al. v. Davis. C. A. 8th Cir. Certiorari denied. Joe Purcell, Attorney General of Arkansas, and Don Langston, Deputy Attorney General, for petitioners. Reported below: 396 F. 2d 730. No. 529. Owens v. Traynor, Deputy Commissioner, United States Department of Labor, et al. C. A. 4th Cir. Certiorari denied. Joseph F. Lentz, Jr., for petitioner. Solicitor General Griswold for Traynor, and Jesse Slingluff for Bethlehem Steel Corp., respondents. Reported below: 396 F. 2d 783. No. 530. Estate of Varian v. Commissioner of Internal Revenue. C. A. 9th Cir. Certiorari denied. Paul E. Anderson, Valentine Brookes, and Richard M. Leonard for petitioner. Solicitor General Griswold, Assistant Attorney General Rogovin, Ijoring W. Post, and Jonathan S. Cohen for respondent. Reported below: 396 F. 2d 753. No. 532. Darlington-Hartsville Coca-Cola Bottling Co., Inc., et al. v. United States. C. A. 4th Cir. Certiorari denied. J. M. Walters and B. E. Geer, Jr., for petitioners. Solicitor General Griswold and Assistant Attorney General Rogovin for the United States. Reported below: 393 F. 2d 494. ORDERS. 963 393 U. S. November 25, 1968. No. 426. Kelley v. United States. C. A. 2d Cir. Certiorari denied. Edward Bennett Williams for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Marshall Tamor Golding for the United States. Reported below: 395 F. 2d 727. Mr. Chief Justice Warren, dissenting. The Court, by denying certiorari in this case, has ignored the interrelationship between its recent decision in Marchetti v. United States, 390 U. S. 39 (1968), and the well-established rule that the Government cannot comment upon the accused’s decision to stand mute. See Wilson v. United States, 149 U. S. 60 (1893). Although I was the lone dissenter in Marchetti, see 390 U. S., at 77-84, I am puzzled by the Court’s failure to apply the principles it so recently advocated. Petitioner stands convicted of four related violations of the statutes governing those engaged in the business of accepting wagers: use of interstate facilities for transmitting wagering information in violation of 18 U. S. C. § 1084; use of interstate facilities with intent to carry on an unlawful gambling activity in violation of 18 U. S. C. § 1952; failing to pay the special tax imposed upon gamblers by 26 U. S. C. § 4401; and failing to register as a gambler as required by 26 U. S. C. §§ 4411-4412.1 The Court of Appeals, on the authority of Marchetti, reversed his convictions on the tax and registration counts but affirmed his convictions imposed upon the other two counts. United States v. Kelley, 395 F. 2d 727 (C. A. 2d Cir. 1968). In Marchetti the Court held that, given the widespread prohibition of gambling activities by both the state and federal sovereigns, the registration and taxation provisions of §§ 4401 and 4411-4412 compelled a gambler to 1 Petitioner received the maximum sentence on each count, the sentences to run consecutively. 964 OCTOBER TERM, 1968. Warren, C. J., dissenting. 393 U. S. admit that he was engaging in or planned to engage in unlawful activities. Specific reference was made to the criminal sanctions imposed by both § 1084 and § 1952, the two sections which form the basis of petitioner’s outstanding convictions. See 390 U. S., at 44. According to the Marchetti majority, the Government had in essence said to the accused gambler: either register and pay the tax, thereby exposing your activities, or be prosecuted for failing to incriminate yourself. I find this rationale equally applicable to this case. The Government in the first two counts indicted petitioner for interstate gambling, yet at the same time in the last two accused him of failing to incriminate himself on the first two counts. Had government counsel introduced evidence that petitioner, when asked if he was a gambler, refused to reply and then argued to the jury that petitioner’s silence indicated guilt, I have no doubt that a reversal would be mandated. See Miranda v. Arizona, 384 U. S. 436, 444, 468, n. 37 (1966).2 I have difficulty understanding why this same principle is not involved where the Government joins the tax and registration offenses with the substantive gambling offenses, for evidence introduced under counts three and four is a formal government comment on petitioner’s failure to confess to an essential element3 of counts one and two.4 2 Petitioner’s trial began in August 1966 and was thus after the applicable date of Miranda. See Johnson v. New Jersey, 384 U. S. 719 (1966). 3 The essential element is that the accused be a professional gambler. Section 1084 applies to individuals “engaged in the business of betting or wagering”; § 1952 refers to the use of interstate facilities to carry on “any business enterprise involving gambling”; and §§ 4411 and 4412 impose a tax and registration requirement upon those “engaged in the business of accepting wagers” as defined in § 4401. 4 The Court of Appeals intimated that petitioner did not properly preserve his present claim as he failed to move to sever the gambling ORDERS. 965 963 Warren, C. J., dissenting. The joinder of the tax and registration counts with the interstate gambling charges also had the result of strengthening a relatively weak case on the gambling charges by combining those charges with a strong case on failure to register and pay the tax. The Government’s proof disclosed that petitioner, a professional bookmaker, instructed his clients to call a number at a New York City hotel and ask for a fictitious name. The hotel operator would inform the prospective bettor that his party was not in; the bettor would thereupon give the operator a code name previously agreed upon between the bettor and petitioner. Thereafter, petitioner would call the bettor from his home in Brooklyn and consummate the wager.* 5 To prove its charges on the third and fourth counts the Government was required to show only that petitioner received wagers and had neither registered nor met his tax liability. The indictment on the first and second counts was based upon telephone calls made by bettors to the New York City number from outside New York State. The Government’s theory of prosecution was that petitioner caused the out-of-state bettors to use counts from the registration and tax counts. 395 F. 2d, at 729. However, prior to trial petitioner moved to dismiss the indictment on the theory that he could not be constitutionally convicted for violations of §§ 4401 and 4411-4412 on grounds subsequently adopted in Marchetti; petitioner added that combining charges of failing to register and pay the tax with the substantive gambling charges constituted a comment upon his failure to incriminate himself and therefore asked that the entire indictment be dismissed. On the day of trial this request was renewed. Certainly, these steps were adequate to preserve petitioner’s claim. 5 The Government chose to place venue in the Southern District of New York, the situs of the bettors’ telephone calls, rather than in the Eastern District, the district from which the return calls were made. See United States v. Synodinos, 218 F. Supp. 479 (D. C. Utah 1963); 18 U. S. C. § 3237. 966 OCTOBER TERM, 1968. Warren, C. J., dissenting. 393 U. S. telephone facilities to place their wagers. See 18 U. S. C. §2(b). The Government thus had to convince the jury that petitioner was the causative factor prompting the calls,6 proof not required for the third and fourth counts. Petitioner placed his defense upon the argument that it was unlikely that he, a lowly bookie, caused his customers, men of substantial means, to make the telephone calls. It is at least arguable that the jury, faced with overwhelming evidence of petitioner’s guilt of the registration and tax charges, allowed this fact to influence their deliberations concerning the interstate gambling offenses. Furthermore, this risk was compounded by the fact that the trial judge told the jury that, although petitioner was charged with four distinct offenses, these offenses were “interrelated violations of Federal law.” Simply, the Government was able to show via a prosecution for offenses which this Court has held constitutionally invalid that petitioner had violated the law ; this demonstration may well have induced the jury to conclude that petitioner was guilty of the other charges as well. Cf. Michelson v. United States, 335 U. S. 469 (1948). Furthermore, the joinder of these four charges can be viewed as a classic example of the improper use of “other-crimes” evidence.7 I have in mind the following situa 6 The trial judge charged : “Thus the government has attempted to show that the defendant devised a method whereby he caused these individuals to phone the Eldorado number, ask for Mr. Mellon, which the government contends was the name the defendant supplied to them and which was the trigger for his return call to them with the specific wagering information or to accept the particular bet, and when we say the defendant caused the telephone to be used we do not mean that he coerced the bettors.” 7 Typically, other-crimes evidence is introduced to establish intent, design, and system on the part of the accused where the other crimes are similar to the crimes for which he is charged. See Lisenba v. California, 314 U. S. 219, 227 (1941). ORDERS. 967 393 U. S. November 25, 1968. tion. An individual presently charged with interstate gambling has previously suffered a conviction prior to the Court’s decision in Marchetti for failure to register and pay the tax. Would the Government be able to introduce this previous conviction in the accused’s post-Marchetti trial although the Court has determined that the statutory scheme under which this conviction was procured is unconstitutional? It appears that by joining the gambling offenses with the registration and tax offenses the Government has been able to utilize just such a procedure. I would grant certiorari to resolve these issues. No. 527. Curry et ux. v. United States. C. A. 5th Cir. Certiorari denied. Nicholas J. Capuano for petitioners. Solicitor General Griswold and Assistant Attorney General Rogovin for the United States. Reported below: 396 F. 2d 630. No. 623. California v. Superior Court of California, County of San Diego (Copeland et al., real parties in interest). Ct. App. Cal., 4th App. Dist. Certiorari denied. Samuel N. Hecsh for respondents Copeland et al. Reported below: 262 Cal. App. 2d 283, 68 Cal. Rptr. 629. No. 502. Morrison v. United States. C. A. 2d Cir. Certiorari denied. Mr. Justice Marshall took no part in the consideration or decision of this petition. William S. Thompson for petitioner. Solicitor General Griswold for the United States. No. 483, Mise. Dentine v. New York. Ct. App. N. Y. Certiorari denied. Saverio A. Muschio and Paul A. Victor for petitioner. Daniel J. Sullivan for respondent. 968 OCTOBER TERM, 1968. November 25, 1968. 393 U. S. No. 510. Sgarlato v. Klein. Ct. App. N. Y. Certiorari denied. Mr. Justice Black and Mr. Justice Douglas are of the opinion that certiorari should be granted. Morton Liftin for petitioner. Solomon A. Klein, respondent, pro se. No. 515. Kaye v. Co-ordinating Committee on Discipline of the Association of the Bar of the City of New York et al. Ct. App. N. Y. Certiorari denied. Mr. Justice Black and Mr. Justice Douglas are of the opinion that certiorari should be granted. Morton Liftin for petitioner. Angelo T. Cometa for respondents. No. 511. Simons et al. v. Vinson et al. C. A. 5th Cir. Certiorari and other relief denied. Robert M. Helton and Frank Gibson for petitioners. James R. Ryan for Vinson et al., and Solicitor General Griswold, Assistant Attorney General Martz, Roger P. Marquis, and Raymond N. Zagone for Department of the Interior et al., respondents. Reported below: 394 F. 2d 732. No. 412, Mise. Cabrera v. Vermont. Sup. Ct. Vt. Certiorari denied. Reported below: 127 Vt. 193, 243 A. 2d 784. No. 542, Mise. In re Russo. C. A. 1st Cir. Certiorari denied. Solicitor General Griswold for the United States in opposition. No. 561, Mise. Bundy v. United States. C. A. D. C. Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Robert G. Maysack for the United States. No. 577, Mise. Wallace v. California. Sup. Ct. Cal. Certiorari denied. ORDERS. 969 393 U.S. November 25, 1968. No. 580, Mise. Dismuke v. Nelson, Warden. C. A. 9th Cir. Certiorari denied. No. 587, Mise. Wadsworth v. Kentucky. Ct. App. Ky. Certiorari denied. No. 599, Mise. Olvera v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. Reported below: 260 Cal. App. 2d 143, 67 Cal. Rptr. 45. No. 604, Mise. Bell v. Alabama. C. A. 5th Cir. Certiorari denied. Reported below: 391 F. 2d 286. No. 616, Mise. Schlette v. California. Sup. Ct. Cal. Certiorari denied. No. 644, Mise. Gonzalez v. New York. App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied. No. 647, Mise. Lockhart v. Hendrick, County Prisons Superintendent, et al. C. A. 3d Cir. Certiorari denied. No. 654, Mise. Hilberry v. Maroney, Penitentiary Superintendent. C. A. 3d Cir. Certiorari denied. No. 660, Mise. Garvie v. Craven, Warden. C. A. 9th Cir. Certiorari denied. No. 669, Mise. Caldwell v. Coiner, Warden. C. A. 4th Cir. Certiorari denied. No. 674, Mise. Piche v. Rhay, Penitentiary Superintendent. Sup. Ct. Wash. Certiorari denied. No. 706, Mise. Mercer v. Specter et al. C. A. 3d Cir. Certiorari denied. 970 OCTOBER TERM, 1968. November 25, 1968. 393 U.S. No. 601, Mise. Brewer v. Washington. Sup. Ct. Wash. Certiorari denied. Reported below: 73 Wash. 2d 58, 436 P. 2d 473. No. 676, Mise. Hilliard v. Harris, Chief Judge, U. S. District Court, et al. C. A. 9th Cir. Certiorari denied. No. 707, Mise. Darling v. Mancusi, Warden. C. A. 2d Cir. Certiorari denied. No. 708, Mise. Cantrell v. United States. C. A. 8th Cir. Certiorari denied. Solicitor General Griswold for the United States. No. 714, Mise. Groves v. Schultz, Sheriff, et al. C. A. 3d Cir. Certiorari denied. No. 731, Mise. Conover v. TV Station WPTZ, Channel 5, a Rollins Station, Plattsburgh. Ct. App. N. Y. Certiorari denied. No. 737, Mise. Aguiar v. California. Ct. App. Cal., 1st App. Dist. Certiorari denied. Reported below: 257 Cal. App. 2d 597, 65 Cal. Rptr. 171. No. 739, Mise. Welsh v. Nelson, Warden. Sup. Ct. Cal. Certiorari denied. No. 756, Mise. Watson v. New Jersey. Sup. Ct. N. J. Certiorari denied. No. 768, Mise. Miller v. California. C. A. 9th Cir. Certiorari denied. No. 775, Mise. Madison v. Brown. C. A. 4th Cir. Certiorari denied. 971 ORDERS. 393 U. S. November 25, 1968. No. 380, Mise. Starrett v. Bruce, dba Bruce Trucking Co. C. A. 10th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Raymond C. Jopling, Jr., for respondent. Reported below: 391 F. 2d 320. No. 631, Mise. Laws et al. v. New Jersey. Sup. Ct. N. J. Certiorari denied. Mr. Justice Brennan took no part in the consideration or decision of this petition. Charles L. Bertini for Laws and Gerald E. Monaghan for Washington, petitioners. Guy W. Calissi for respondent. Reported below: 50 N. J. 159, 233 A. 2d 633; 51 N. J. 494, 242 A. 2d 333. Rehearing Denied. No. 1511, Mise., October Term, 1967. Copeland v. First Federal Savings & Loan Association of Lake County et al., 391 U. S. 955; and No. 527, Mise. Hohensee et al. v. Minear, ante, p. 894. Motions for leave to file petitions for rehearing denied. No. 242. Rosso et ux. v. Puerto Rico, ante, p. 14. Petition for rehearing denied. Mr. Justice Fortas took no part in the consideration or decision of this petition. No. 50. Hanover Insurance Co. of New York v. Victor, ante, p. 7; No. 154. Fort Howard Paper Co. v. Kimberly-Clark Corp., ante, p. 831; No. 159. Biddle, Administratrix v. Bowser et al., ante, p. 10; No. 270. Penjaska et al. v. Goodbody & Co., ante, p. 16; and No. 281. Kenner et al. v. Commissioner of Internal Revenue, ante, p. 841. Petitions for rehearing denied. 320-583 0 - 69 - 57 972 OCTOBER TERM, 1968. November 25, December 9, 1968. 393 U. S. No. 319. Rao v. United States, ante, p. 845; No. 321. Hart v. Hedrick, Trustee in Bankruptcy, ante, p. 846; No. 334. Mizner v. Mizner, ante, p. 847; No. 343. United States v. An Article of Drug . . . Bacto-Unidisk . . . , ante, p. 911 ; No. 359. Graham v. Greene, Judge, et al., ante, p. 848; No. 126, Mise. Varone v. Varone, ante, p. 872; No. 172, Mise. Burns v. United States, ante, p. 875; No. 405, Mise. Ford v. United States, ante, p. 927; and No. 424, Mise. Steinhardt v. Florida, ante, p. 916. Petitions for rehearing denied. December 9, 1968. Miscellaneous Orders. No. ---. Granello, aka Burns v. United States. C. A. 2d Cir. Application for bail presented to Mr. Justice Harlan, and by him referred to the Court, denied. Mr. Justice Brennan and Mr. Justice Marshall took no part in the consideration or decision of this application. Irving Anolik for applicant. Solicitor General Griswold for the United States in opposition. No. ---. Thomas v. Crevasse, Sheriff. C. A. 5th Cir. Application for bail presented to Mr. Justice Black, and by him referred to the Court, denied. Robert G. Petree for applicant. Earl Faircloth, Attorney General of Florida, and Raymond L. Marky, Assistant Attorney General, in opposition. No.----. Hairston v. Illinois. Sup. Ct. Ill. Appli- cation for bail presented to Mr. Justice Douglas, and by him referred to the Court, denied. Marshall Patner for applicant. ORDERS. 973 393 U. S. December 9, 1968. No. ----. Frazier v. United States. C. A. 4th Cir. Application for bail presented tn Mr. Justice Black, and by him referred to the Court, denied. No.-----. Bloss v. Michigan. Sup. Ct. Mich. Ap- plication for stay and bail presented to Mr. Justice Stewart, and by him referred to the Court, denied. Stanley Fleishman and Sam Rosenwein for applicant. No. 40. Johnson v. Avery, Correction Commissioner, et al. [Certiorari granted, 390 U. S. 943.] Motions of Harry D. Smith and Calvin C. Shobe for leave to file briefs, as amici curiae, denied. No. 366. United States v. Covington. [Probable jurisdiction noted, ante, p. 910.] Motion of appellee for leave to proceed further herein in forma pauperis granted. Motion for appointment of counsel granted. It is ordered that William J. Davis, Esquire, of Columbus, Ohio, be, and he is hereby, appointed to serve as counsel for appellee in this case. No. 413. North Carolina et al. v. Pearce. [Certiorari granted, ante, p. 922.] Motion of respondent for appointment of counsel granted. It is ordered that Larry B. Sitton, Esquire, of Greensboro, North Carolina, be, and he is hereby, appointed to serve as counsel for respondent in this case. No. 65. Leary v. United States. [Certiorari granted, 392 U. S. 903.] Motion of National Student Assn, for leave to file a brief, as amicus curiae, granted. Joseph S. Oteri on the motion. No. 794, Mise. Alexander v. Kaess, U. S. District Judge. Motion for leave to file petition for writ of mandamus denied. Solicitor General Griswold for respondent in opposition. 974 OCTOBER TERM, 1968. December 9, 1968. 393 U. S. No. ----. Schnitzler v. Follette, Warden. C. A. 2d Cir. Application for bail presented to Mr. Justice Douglas, and by him referred to the Court, denied. No. 703, Mise. Park v. Nelson, Warden, et al. Motion for leave to file petition for writ of habeas corpus and other relief denied. No. 749. Rodriquez v. United States. [Certiorari granted, ante, p. 951.] Motion of petitioner for appointment of counsel granted. It is ordered that William R. Wallace, Esquire, of San Francisco, California, a member of the Bar of this Court, be, and he is hereby, appointed to serve as counsel for petitioner in this case. No. 780, Mise. Harper v. Craven, Warden, et al.; No. 886, Mise. Stout v. Michigan; No. 913, Mise. Turner v. Sheehy, Reformatory Superintendent, et al.; and No. 963, Mise. Shipp v. Craven, Warden. Motions for leave to file petitions for writs of habeas corpus denied. No. 788, Mise. Standard Fruit & Steamship Co. v. Lynne, Chief Judge, U. S. District Court, et al. Motion for leave to file petition for writ of mandamus denied. Eberhard P. Deutsch, Robert M. Moore, and René H. Himel, Jr., on the motion. Solicitor General Griswold for the United States, and Hugh B. Cox and James H. McGlothlin for United Fruit Co. in opposition. Probable Jurisdiction Noted. No. 244. Boyle, Judge, et al. v. Landry et al. Appeal from D. C. N. D. Ill. Probable jurisdiction noted. John J. Stamos, pro se, and Edward J. Hladis and Ronald Butler, for appellants. Robert L. Tucker for appellees. Reported below: 280 F. Supp. 938. 975 ORDERS. 393 U. S. December 9, 1968. No. 548. Jenkins v. McKeithen, Governor of Louisiana, et al. Appeal from D. C. E. D. La. Probable jurisdiction noted. J. Minos Simon for appellant. Jack P. F. Gremillion, Attorney General of Louisiana, and Ashton L. Stewart, Special Assistant Attorney General, for appellees. Reported below: 286 F. Supp. 537. No. 580. Samuels et al. v. Mackell, District Attorney of Queens County, et al. ; and No. 844, Mise. Fernandez v. Mackell, District Attorney of Queens County, et al. Appeals from D. C. S. D. N. Y. Probable jurisdiction noted. Cases consolidated and one hour allotted for oral argument. Motion for leave to proceed in forma pauperis in No. 844, Mise., granted and case transferred to appellate docket. Victor Rabinowitz and Leonard B. Boudin for appellants in No. 580, and Eleanor Jackson Piel for appellant in No. 844, Mise. Peter J. O’Connor for Mackell, Louis J. Lefkowitz, Attorney General of New York, pro se, and Mortimer Sattler, Assistant Attorney General, for appellees in both cases. Reported below: 288 F. Supp. 348. Certiorari Granted. No. 574. United States v. Estate of Grace et al. Ct. Cl. Certiorari granted. Solicitor General Griswold, Assistant Attorney General Rogovin, Harris Weinstein, Harry Baum, and Philip R. Miller for the United States. William S. Downard for respondents. Reported below: 183 Ct. Cl. 745, 393 F. 2d 939. No. 488. Daniel et al. v. Paul. C. A. 8th Cir. Certiorari granted. Jack Greenberg, James M. Nabrit III, and Norman C. Amaker for petitioners. Reported below: 395 F. 2d 118. 976 OCTOBER TERM, 1968. December 9, 1968. 393 U. S. No. 228. Willingham, Warden, et al. v. Morgan. C. A. 10th Cir. Certiorari granted. Solicitor General Griswold, Assistant Attorney General Weisl, and Morton Hollander for petitioners. Reported below: 383 F. 2d 139. No. 528. Nacirema Operating Co., Inc., et al. v. Johnson et al.; and No. 663. Traynor et al., Deputy Commissioners v. Johnson et al. C. A. 4th Cir. Motion of respondent Avery in No. 528 to dispense with printing his brief in opposition granted. Certiorari granted. Cases are consolidated and one hour allotted for oral argument. William A. Grimes and Randall C. Coleman for Nacirema Operating Co., Inc., and William B. Eley for Liberty Mutual Insurance Co., petitioners in No. 528; and Solicitor General Griswold, Assistant A ttorney General Weisl, and John C. Eldridge for petitioners in No. 663. John J. O’Connor, Jr., and Leroy W. Preston for respondents Johnson et al., and Ralph Rabinowitz for respondent Avery, in No. 528. Francis A. Scanlan, Edward D. Vickery, Scott H. Elder, and J. Stewart Harrison for National Association of Stevedores et al., as amici curiae, in support of the petition in No. 528. Reported below: 398 F. 2d 900. No. 442, Mise. DuVernay v. United States. C. A. 5th Cir. Motion for leave to proceed in forma pauperis and certiorari granted. Case transferred to appellate docket and set for oral argument immediately following No. 403 [ante, p. 922]. Benjamin Smith, Morton Stavis, Arthur Kinoy, and William M. Kunstler for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, and Philip R. Monahan for the United States. Reported below: 394 F. 2d 979. 977 ORDERS. 393 U. S. December 9, 1968. Certiorari. Denied. (See also No. 423, Mise., ante, p. 221; and No. 747, Mise., ante, p. 221.) No. 180. Cosentino v. Royal Netherlands Steamship Co. C. A. 2d Cir. Certiorari denied. Jacob Rassner for petitioner. William L. F. Gardiner for respondent. Reported below: 389 F. 2d 726. No. 487. National Dairy Products Corp. v. Federal Trade Commission. C. A. 7th Cir. Certiorari denied. John T. Chadwell, Richard W. McLaren, and William E. Nuessle for petitioner. Solicitor General Griswold, Assistant Attorney General Zimmerman, James Mcl. Henderson, and Alvin L. Berman for respondent. Reported below: 395 F. 2d 517. No. 531. Wyndham Associates et al. v. Bintliff et al. C. A. 2d Cir. Certiorari denied. Howard M. Jaffe for petitioners. Leo T. Kissam for respondent Bintliff; Frank W. Adams for respondents McNeese et al.; John Logan O’Donnell and Donald F. Johnston, Jr., for respondent Moroney, Beissner & Co., Inc.; Samuel R. Pierce, Jr., for respondent A. G. Becker & Co., Inc.; Thomas A. McGovern and Burton L. Knapp for respondent American Stock Exchange; and Edward J. Reilly for respondent Chase Manhattan Bank, N. A. Reported below: 398 F. 2d 614. No. 533. Green et al. v. Texas Gulf Sulphur Co. et al. C. A. 5th Cir. Certiorari denied. Sizer Chambliss and Andrew A. Wassick for petitioners. Major T. Bell, George A. Weller, and Ewell Strong for Texas Gulf Sulphur Co. et al.; Crawford C. Martin, Attorney General of Texas, Nola White, First Assistant Attorney General, A. J. Carubbi, Jr., Executive Assistant Attorney General, and Ben M. Harrison and Houghton Brownlee, Jr., Assistant Attorneys General, for Sadler, respondents. Reported below: 393 F. 2d 67. 978 OCTOBER TERM, 1968. December 9, 1968. 393 U. S. No. 534. Whayne v. M. V. Shuttler, Inc., et al. C. A. 3d Cir. Certiorari denied. Abraham E. Freedman and Avram G. Adler for petitioner. Mark D. Als-pach for respondents. Reported below: 397 F. 2d 287. No. 535. Western & Southern Life Insurance Co. v. National Labor Relations Board, C. A. 3d Cir. Certiorari denied. John G. Wayman for petitioner. Solicitor General Grisioold, Arnold Ordman, Dominick L. Manoli, and Norton J. Come for respondent. Reported below: 391 F. 2d 119. No. 536. Reiter et al., Trustees v. Federal Savings & Loan Insurance Corp. C. A. 7th Cir. Certiorari denied. William R. Quinlan for petitioners. Solicitor General Griswold, Assistant Attorney General Weisl, and John C. Eldridge for respondent. Reported below: 396 F. 2d 407. No. 537. Hendry Corp. v. United States Fidelity & Guaranty Co. C. A. 5th Cir. Certiorari denied. Stanley W. Rosenkranz and Charles W. Pittman for petitioner. E. Dixie Beggs for respondent. Reported below: 391 F. 2d 13. No. 538. Lavino Shipping Co. v. American-West African Line, Inc., et al. C. A. 3d Cir. Certiorari denied. Thomas F. Mount for petitioner. James F. Young for respondents. Reported below: 397 F. 2d 170. No. 539. Resolute Insurance Co. v. North Carolina et al. C. A. 4th Cir. Certiorari denied. Wade H. Penny, Jr., for petitioner. Thomas Wade Bruton, Attorney General of North Carolina, and Ralph Moody, Deputy Attorney General, for respondents. Reported below: 397 F. 2d 586. 979 ORDERS. 393 U. S. December 9, 1968. No. 540. Eastern Air Lines, Inc. v. Scott, Administrator. C. A. 3d Cir. Certiorari denied. J. Grant McCabe III and John J. Martin for petitioner. John R. McConnell for respondent. Reported below: 399 F. 2d 14. No. 541. LeLaurin v. Frost National Bank, Trustee, et al. C. A. 5th Cir. Certiorari denied. Edward V. Dylla for petitioner. C. Stanley Banks, Jr., for respondents. Reported below: 391 F. 2d 687. No. 545. Terminal Railroad Association of St. Louis v. United States. C. A. 7th Cir. Certiorari denied. Norman J. Gundlach for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Jerome M. Feit, and Sidney M. Glazer for the United States. Reported below: 397 F. 2d 467. No. 547. Ramantanin v. Department of Personnel of the City of New York. Ct. App. N. Y. Certiorari denied. J. Lee Rankin and Stanley Buchs-baum for respondent. No. 549. Senchal et al. v. Carroll, Trustee. C. A. 10th Cir. Certiorari denied. Harvey L. Davis for petitioners. Harry L. Dyer for respondent. Reported below: 394 F. 2d 797. No. 551. Corn Products Co. v. Baxter Laboratories, Inc. C. A. 7th Cir. Certiorari denied. John A. Dien-ner and Richard R. Wolfe for petitioner. Edward A. Haight for respondent. Reported below: 394 F. 2d 892. No. 560. Arnold Constable Corp. v. Eudowood Shopping Center, Inc. Ct. App. Md. Certiorari denied. Norman P. Ramsey for petitioner. Robert L. Sullivan, Jr., for respondent. 980 OCTOBER TERM, 1968. December 9, 1968. 393 U. S. No. 550. Slough v. Federal Trade Commission. C. A. 5th Cir. Certiorari denied. Fredric T. Suss for petitioner. Solicitor General Griswold and James Mcl. Henderson for respondent. Reported below: 396 F. 2d 870. No. 552. N. V. Stoomvaart Maatschappij “Nederland” v. Standard Oil Co. of California. C. A. 9th Cir. Certiorari denied. Francis L. Tetreault for petitioner. Stanley J. Madden for respondent. Reported below: 398 F. 2d 835. No. 554. Scam Instrument Corp. v. National Labor Relations Board. C. A. 7th Cir. Certiorari denied. David C. Newman for petitioner. Solicitor General Griswold, Arnold Ordman, Dominick L. Manoli, Norton J. Come, and Allison W. Brown, Jr., for respondent. Reported below: 394 F. 2d 884. No. 557. Park v. Georgia. Sup. Ct. Ga. Certiorari denied. Wesley R. Asinof for petitioner. Arthur K. Bolton, Attorney General of Georgia, and Marion O. Gordon, Assistant Attorney General, for respondent. Reported below: 224 Ga. 467, 162 S. E. 2d 359. No. 564. Confederation Life Assn. v. Vega y Armi-nan. Sup. Ct. Fla. Certiorari denied. John G. Lay-lin, Cotton Howell, William H. Allen, and George V. Allen, Jr., for petitioner. Thomas B. DeWolf for respondent. Reported below: 211 So. 2d 169. No. 565. Fredkin v. Irasek. C. C. P. A. Certiorari denied. Robert H. Rines, David Rines, and Nelson H. Shapiro for petitioner. John Hoxie and William T. Estabrook for respondent. Reported below: 55 C. C. P. A. (Pat.) 1302, 397 F. 2d 342. ORDERS. 981 393 U. S. December 9, 1968. No. 566. Sulger v. Pochyla et al. C. A. 9th Cir. Certiorari denied. George T. Davis for petitioner. Solicitor General Griswold for respondents. Reported below: 397 F. 2d 173. No. 569. Curry v. Florida Bar. Sup. Ct. Fla. Certiorari denied. Paul A. Louis, Bertha Claire Lee, and Fay L. Becker for petitioner. Lyle D. Holcomb, Jr., for respondent. Reported below: 211 So. 2d 169. No. 570. Snelling & Snelling of Baltimore, Inc. v. Mascaro et al. Ct. App. Md. Certiorari denied. Benjamin Lipsitz and Hyman K. Cohen for petitioner. Ambler H. Moss for respondent Mascaro. Reported below: 250 Md. 215, 243 A. 2d 1. No. 571. Sylvia v. Florida. Dist. Ct. App. Fla., 3d Dist. Certiorari denied. Milton E. Grusmark for petitioner. Earl Faircloth, Attorney General of Florida, and Melvin B. Grossman, Assistant Attorney General, for respondent. Reported below: 210 So. 2d 286. No. 575. Preston v. Wisconsin. Sup. Ct. Wis. Certiorari denied. Kenneth J. Ehlenbach for petitioner. Warren H. Resh for respondent. Reported below: 38 Wis. 2d 582, 157 N. W. 2d 615. No. 577. Glimco et ux. v. Commissioner of Internal Revenue. C. A. 7th Cir. Certiorari denied. Edward J. Calihan, Jr., for petitioners. Solicitor General Griswold, Assistant Attorney General Rogovin, Harry Baum, and Louis M. Kauder for respondent. Reported below: 397 F. 2d 537. No. 590. Jayson et al. v. United States. Ct. Cl. Certiorari denied. 0. P. Easterwood, Jr., for petitioners. Solicitor General Griswold for the United States. 982 OCTOBER TERM, 1968. December 9, 1968. 393 U. S. No. 581. Grossman v. United States. C. A. 4th Cir. Certiorari denied. Ralph N. Strayhorn and E. C. Bryson, Jr., for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Jerome M. Feit, and Marshall Tamor Golding for the United States. Reported below: 400 F. 2d 951. No. 583. Sanner et ux. v. Trustees of the Sheppard & Enoch Pratt Hospital. C. A. 4th Cir. Certiorari denied. D. Robert Cervera for petitioners. Norman P. Ramsey for respondent. Reported below: 398 F. 2d 226. No. 586. Trujillo-M v. Bank of Nova Scotia. App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied. Michael M. Platzman for petitioner. Henry Harfield for respondent. No. 588. HLH Products, Division of Hunt Oil Co. v. National Labor Relations Board. C. A. 7th Cir. Certiorari denied. Owen J. Neighbours and Robert W. Henderson for petitioner. Solicitor General Griswold, Arnold Ordman, Dominick L. Manoli, and Norton J. Come for respondent. Reported below: 396 F. 2d 270. No. 589. Marxuach v. United States. C. A. 1st Cir. Certiorari denied. Albert J. Krieger and Theodore Krieger for petitioner. Solicitor General Griswold, As-sistant Attorney General Vinson, Beatrice Rosenberg, and Mervyn Hamburg for the United States. Reported below: 398 F. 2d 548. No. 178, Mise. Gruenwald v. Cohen, Secretary of Health, Education, and Welfare. C. A. 2d Cir. Certiorari denied. Edward Q. Carr and Julius C. Biervliet for petitioner. Solicitor General Griswold for respondent. Reported below: 390 F. 2d 591. ORDERS. 983 393 U. S. December 9, 1968. No. 556. Anderson et al. v. Empire Seafoods, Inc., et al. C. A. 5th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Roger Robb and H. Donald Kistler for petitioners. Roland R. Parent for respondent Cleary Bros. Construction Co. Reported below: 398 F. 2d 204. No. 558. Pennington et al. v. United Mine Workers of America. C. A. 6th Cir. Certiorari denied. Mr. Justice Black is of the opinion that certiorari should be granted. Mr. Justice Fortas took no part in the consideration or decision of this petition. John A. Rowntree and Robert S. Young, Jr., for petitioners. Edward L. Carey, Harrison Combs, Willard P. Owens, E. H. Ray son, and M. E. Boiarsky for respondent. Reported below: 400 F. 2d 806. No. 568. Quinn v. United States. C. A. 7th Cir. Certiorari denied. Mr. Justice Marshall took no part in the consideration or decision of this petition. Samuel E. Hirsch for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, and Philip R. Monahan for the United States. Reported below: 398 F. 2d 298. No. 584. Ramos et ux. v. United States. C. A. 9th Cir. Certiorari denied. Mr. Justice Marshall took no part in the consideration or decision of this petition. Jerome A. Duffy for petitioners. Solicitor General Griswold, Assistant Attorney General Rogovin, Gilbert E. Andrews, and Loring W. Post for the United States. Reported below: 393 F. 2d 618. No. 89, Mise. Dvorsky v. United States. Ct. Cl. Certiorari denied. Solicitor General Griswold for the United States. Reported below: 173 Ct. Cl. 638, 352 F. 2d 373. 984 OCTOBER TERM, 1968. December 9, 1968. 393 U. S. No. 116, Mise. Small v. Cohen, Secretary of Health, Education, and Welfare. C. A. .1st Cir. Certiorari denied. Solicitor General Griswold for respondent. Reported below: 390 F. 2d 186. No. 136, Mise. Shale, dba J & C Co., Inc., dba Southern Home Properties, Inc. v. United States. C. A. 5th Cir. Certiorari denied. John Paul Howard for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Paul C. Summitt for the United States. Reported below: 388 F. 2d 616. No. 207, Mise. Williams v. United States. C. A. D. C. Cir. Certiorari denied. Robert P. Jaye for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Paul C. Summitt for the United States. Reported below: 129 U. S. App. D. C. 332, 394 F. 2d 957. No. 248, Mise. Frazier v. United States. C. A. 4th Cir. Certiorari denied. Solicitor General Griswold, As-sistant Attorney General Vinson, Beatrice Rosenberg, and Jerome M. Feit for the United States. Reported below: 394 F. 2d 258. No. 262, Mise. Reed v. United States. C. A. 7th Cir. Certiorari denied. Solicitor General Griswold, As-sistant Attorney General Vinson, Beatrice Rosenberg, and Robert G. Maysack for the United States. Reported below: 392 F. 2d 865. No. 304, Mise. Gallagher v. United States. Ct. Cl. Certiorari denied. Richard A. Baenen and Jerry C. Straus for petitioner. Solicitor General Griswold for the United States. ORDERS. 985 393 U. S. December 9, 1968. No. 324, Mise. Gray et al. v. United States. C. A. 9th Cir. Certiorari denied. Lawrence C. Cantor for petitioners. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Edward Fenig for the United States. Reported below: 394 F. 2d 96. No. 335, Mise. Watson v. United States. C. A. 5th Cir. Certiorari denied. Solicitor General Griswold, As-sistant Attorney General Vinson, Beatrice Rosenberg, and Edward Fenig for the United States. Reported below: 391 F. 2d 927. No. 343, Mise. Moore v. Cupp, Warden. C. A. 9th Cir. Certiorari denied. Robert Y. Thornton, Attorney General of Oregon, and David H. Blunt, Assistant Attorney General, for respondent. No. 413, Mise. Gilbert v. United States. C. A. 9th Cir. Certiorari denied. Solicitor General Griswold for the United States. No. 416, Mise. Alaway v. United States. C. A. 9th Cir. Certiorari denied. Solicitor General Griswold, As-sistant Attorney General Vinson, Beatrice Rosenberg, and Edward Fenig for the United States. No. 428, Mise. Hill v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 503, Mise. McHale v. United States. C. A. D. C. Cir. Certiorari denied. Francis C. Browne for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg for the United States. Reported below: 130 U. S. App. D. C. 163, 398 F. 2d 757. 986 OCTOBER TERM, 1968. December 9, 1968. 393 U. S. No. 460, Mise. Davis v. United States. C. A. 10th Cir. Certiorari denied. Solicitor General Griswold, As-sistant Attorney General Vinson, Beatrice Rosenberg, and Mervyn Hamburg for the United States. Reported below: 392 F. 2d 291. No. 466, Mise. Daugherty v. Beto, Corrections Director. C. A. 5th Cir. Certiorari denied. Crawjord C. Martin, Attorney General of Texas, Nola White, First Assistant Attorney General, A. J. Carubbi, Jr., Executive Assistant Attorney General, and Robert C. Flowers and Gilbert J. Pena, Assistant Attorneys General, for respondent. Reported below: 388 F. 2d 810. No. 481, Mise. Cornish v. Kenney, U. S. Attorney, et al. C. A. 4th Cir. Certiorari denied. No. 548, Mise. Hall v. United States. C. A. 10th Cir. Certiorari denied. Solicitor General Griswold, As-sistant Attorney General Vinson, and Beatrice Rosenberg for the United States. Reported below: 396 F. 2d 428. No. 552, Mise. Scott v. United States. C. A. D. C. Cir. Certiorari denied. Ira M. Lowe for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg for the United States. Reported below: 129 U. S. App. D. C. 396, 395 F. 2d 619. No. 554, Mise. Rogerson v. United States. C. A. 9th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Robert G. Maysack for the United States. No. 575, Mise. Heisler v. United States. C. A. 9th Cir. Certiorari denied. Solicitor General Griswold for the United States. Reported below: 394 F. 2d 692. 987 ORDERS. 393 U. S. December 9, 1968. No. 607, Mise. Matherne v. United States. C. A. 5th Cir. Certiorari denied. James David McNeill for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Robert G. May sack for the United States. Reported below: 397 F. 2d 406. No. 659, Mise. Calloway et al. v. United States. C. A. D. C. Cir. Certiorari denied. Albert J. Ahern, Jr., for petitioners. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Roger A. Pauley for the United States. Reported below: 130 U. S. App. D. C. 273, 399 F. 2d 1006. No. 672, Mise. Cifarelli v. United States. C. A. 2d Cir. Certiorari denied. Solicitor General Griswold for the United States. Reported below: 401 F. 2d 512. No. 673, Mise. Davis v. United States. C. A. 2d Cir. Certiorari denied. H. Elliot Wales for petitioner. Solicitor General Griswold for the United States. Reported below: 399 F. 2d 948. No. 675, Mise. Bauman v. Bauman. Sup. Ct. Pa. Certiorari denied. Melvin Hirshman and Sebert H. Keifler for petitioner. No. 697, Mise. Martin v. United States. C. A. 9th Cir. Certiorari denied. Harry D. Steward for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Roger A. Pauley for the United States. Reported below: 400 F. 2d 149. No. 713, Mise. Davis et al. v. Turner et al. C. A. 9th Cir. Certiorari denied. Reported below: 395 F. 2d 671. 320-583 0 - 69 - 58 988 OCTOBER TERM, 1968. December 9, 1968. 393 U. S. No. 645, Mise. Robinson v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 704, Mise. Perez v. Crouse, Warden. C. A. 10th Cir. Certiorari denied. No. 705, Mise. Swanson et al. v. Boyers, Judge, et al. C. A. 6th Cir. Certiorari denied. No. 722, Mise. Muniz v. Beto, Corrections Director. Ct. Crim. App. Tex. Certiorari denied. Joseph A. Calamia for petitioner. Crawford C. Martin, Attorney General of Texas, Nola White, First Assistant Attorney General, A. J. Carubbi, Jr., Executive Assistant Attorney General, Robert C. Flowers and Allo B. Crow, Jr., Assistant Attorneys General, and W. Barton Boling for respondent. No. 740, Mise. Beltowski v. Minnesota. Sup. Ct. Minn. Certiorari denied. Reported below: 281 Minn. 28, 160 N. W. 2d 705. No. 748, Mise. Lee v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 749, Mise. Hill v. Illinois. App. Ct. Ill., 1st Dist. Certiorari denied. Gerald W. Getty for petitioner. No. 750, Mise. Roland v. Illinois. App. Ct. Ill., 1st Dist. Certiorari denied. Gerald W. Getty, James J. Doherty, and Marshall J. Hartman for petitioner. Reported below: 93 Ill. App. 2d 97, 237 N. E. 2d 553. No. 754, Mise. Morales v. California. Sup. Ct. Cal. Certiorari denied. 989 ORDERS. 393 U. S. December 9, 1968. No. 760, Mise. Haughey v. Rhay, Penitentiary Superintendent, et al. Sup. Ct. Wash. Certiorari denied. No. 761, Mise. Raullerson v. Patterson, Warden. C. A. 10th Cir. Certiorari denied. No. 765, Mise. Smith v. Maryland. Ct. Sp. App. Md. Certiorari denied. Reported below: 4 Md. App. 550, 243 A. 2d 897. No. 771, Mise. In re Gaskins. Sup. Ct. Pa. Certiorari denied. Mary Bell Hammerman for petitioner. Reported below: 430 Pa. 298, 244 A. 2d 662. No. 772, Mise. Green v. Maryland. Ct. Sp. App. Md. Certiorari denied. No. 777, Mise. Nichols v. Peyton, Penitentiary Superintendent. C. A. 4th Cir. Certiorari denied. No. 783, Mise. Lemon v. New York. App. Div., Sup. Ct. N. Y., 4th Jud. Dept. Certiorari denied. No. 784, Mise. Schultz v. Sup. Ct. N. Y., 4th Jud. Dept. New York. App. Div., Certiorari denied. No. 787, Mise. Willard v. Florida. Dist. Ct. App. Fla., 3d Dist. Certiorari denied. No. 789, Mise. Catalanotto v. Associates Discount Corp. Sup. Ct. La. Certiorari denied. Edward B. Dujreche for petitioner. Reported below: 252 La. 105, 209 So. 2d 38. No. 800, Mise. Courtney v. Virginia State Parole Board. C. A. 4th Cir. Certiorari denied. 990 OCTOBER TERM, 1968. December 9, 1968. 393 U. S. No. 792, Mise. Brooks v. Buder, Judge. Sup. Ct. Mo. Certiorari denied. John L. Davidson, Jr., for petitioner. No. 802, Mise. Craig v. Hocker, Warden. Sup. Ct. Nev. Certiorari denied. No. 805, Mise. Martinez v. Colorado. Sup. Ct. Colo. Certiorari denied. Reported below: -------- Colo. ---, 442 P. 2d 422. No. 809, Mise. Chinowith v. Insurance Co. of North America. C. A. 5th Cir. Certiorari denied. Luther E. Jones, Jr., for petitioner. Reported below: 393 F. 2d 916. No. 816, Mise. Hogan v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 821, Mise. Conway v. California. Ct. App. Cal., 5th App. Dist. Certiorari denied. No. 822, Mise. Jones v. New York. App. Div., Sup. Ct. N. Y., 4th Jud. Dept. Certiorari denied. No. 824, Mise. Thompson et ux. v. Walsh et al., U. S. District Judges. C. A. D. C. Cir. Certiorari denied. Charles P. Howard, Jr., for petitioners. No. 827, Mise. Prillerman v. Ohio. Sup. Ct. Ohio. Certiorari denied. No. 290, Mise. Edwards v. United States. C. A. 6th Cir. Certiorari denied. Mr. Justice Marshall took no part in the consideration or decision of this petition. Solicitor General Griswold, Assistant Attorney General Vinson, and Philip R. Monahan for the United States. ORDERS. 991 393 U. S. December 9, 1968. No. 825, Mise. Stapleton v. Superior Court, Los Angeles County. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 853, Mise. Bradshaw v. Island Creek Coal Co. C. A. 4th Cir. Certiorari denied. Reported below: 396 F. 2d 501. No. 280, Mise. Gunston v. United States. Ct. Cl. Certiorari denied. Mr. Justice Marshall took no part in the consideration or decision of this petition. Solicitor General Griswold for the United States. No. 299, Mise. O’Day v. United States. C. A. 9th Cir. Certiorari denied. Mr. Justice Marshall took no part in the consideration or decision of this petition. Solicitor General Griswold, Assistant Attorney General Vinson, Jerome M. Feit, and Edward Fenig for the United States. No. 651, Mise. Brandon v. New York. Ct. App. N. Y. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Allen E. Stim for petitioner. Frank S. Hogan and Michael R. Stack for respondent. Reported below: 22 N. Y. 2d 476, 239 N. E. 2d 885. No. 711, Mise. Sumrall v. United States. C. A. 5th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Lawrence A. Aschenbrenner and Elliott C. Lichtman for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Roger A. Pauley for the United States. Reported below: 397 F. 2d 924. No. 742, Mise. Johnson v. California. Sup. Ct. Cal. Certiorari and other relief denied. 992 OCTOBER TERM, 1968. December 9, 1968. 393 U.S. No. 725, Mise. Lingo v. Georgia. Sup. Ct. Ga. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Charles Morgan, Jr., Reber F. Boult, Albert M. Horn, Melvin L. Wulf, Eleanor Norton, and Martin Garbus for petitioner. Arthur K. Bolton, Attorney General of Georgia, Marion 0. Gordon, Assistant Attorney General, and William R. Childers, Jr., Deputy Assistant Attorney General, for respondent. Reported below: 224 Ga. 333, 162 S. E. 2d 1. Rehearing Denied. No. 149. Courtney v. United States, ante, p. 857; No. 212. Overton v. New York, ante, p. 85; No. 249. Fuller v. Alaska, ante, p. 80; No. 364. Lake et vir v. Potomac Light & Power Co., ante, p. 77; No. 381. Minichello et al. v. Camp, Comptroller of the Currency, et al., ante, p. 849; No. 414. Lighten et al. v. Texas, ante, p. 86; No. 82, Mise. Johnson v. Beto, Corrections Director, ante, p. 868; No. 544, Mise. Hankins et al. v. Kane, Collector of Estate, ante, p. 918; No. 621, Mise. Kamsler v. Tri Par Radio & Appliance Co., Inc., et al., ante, p. 928; No. 661, Mise. Kamsler v. Stamos, State’s Attorney for Cook County, et al., ante, p. 944 ; and No. 786, Mise. In re Kamsler, ante, p. 931. Petitions for rehearing denied. No. 239. Estate of Burnell v. Colorado, ante, p. 13 ; No. 316, Mise. Anderten v. Warden, South Dakota Penitentiary, ante, p. 816; and No. 421, Mise. Fletcher v. California, ante, p. 916. Motions for leave to file petitions for rehearing denied. ORDERS. 993 393 U. S. December 9, 11, 16, 1968. No. 375. Mengelkoch et al. v. Industrial Welfare Commission et al., ante, p. 83. Petition for rehearing by appellant Mengelkoch denied. No. 300, Mise. Fermin v. United States, ante, p. 898. Petition for rehearing denied. Mr. Justice Marshall took no part in the consideration or decision of this petition. December 11, 1968. Dismissals Under Rule 60. No. 765. Westside Market, Inc. v. Kirby, Director, Department of Alcoholic Beverage Control of California. Appeal from Ct. App. Cal., 2d App. Dist., dismissed pursuant to Rule 60 of the Rules of this Court. Harold Easton for appellant. Thomas C. Lynch, Attorney General of California, and Lynn Henry Johnson, Deputy Attorney General, for appellee. No. 1149, Mise. Adams v. Clerk, Delaware County Court. Motion for leave to file petition for writ of mandamus dismissed pursuant to Rule 60 of the Rules of this Court. December 16, 1968. Miscellaneous Orders. No.----. Gavin v. Lynch. App. Div., Sup. Ct. N. Y., 3d Jud. Dept. Application for stay presented to Mr. Justice Black, and by him referred to the Court, denied. Daniel H. Mahoney for applicant. No.----. Skolnick et al. v. Mayor of Chicago et al. C. A. 7th Cir. Application for stay presented to Mr. Justice Douglas, and by him referred to the Court, denied. Raymond F. Simon, Marvin E. Aspen, and Edmund Hatfield for Mayor of Chicago et al. in opposition. 994 OCTOBER TERM, 1968. December 16, 1968. 393 U. S. No. ---. Great Northern Railway Merger Case. D. C. D. C. Applications by the United States and the City of Auburn, Washington, for stay of effectiveness of orders of the Interstate Commerce Commission, dated November 30, 1967, and April 11, 1968, authorizing merger of Great Northern Railway Co., Northern Pacific Railway Co., Chicago, Burlington & Quincy Railroad Co., Pacific Coast Railway Co., and Spokane, Portland & Seattle Railway Co., granted, said stay to remain in effect until further order of the Court. Mr. Justice Fortas took no part in the consideration or decision of these applications. Solicitor General Griswold for the United States, and Robert L. Wald and Joel E. Hoffman for the City of Auburn on the applications. Valentine B. Deale for Livingston Anti-Merger Committee in support of the applications. Memoranda in opposition were filed by Hugh B. Cox, Ray Garrett, D. Robert Thomas, Anthony Kane, Louis E. Torinus, Earl F. Requa, Frank S. Farrell, Eldon Martin, and Richard J. Flynn for Great Northern Railway Co. et al.; Robert W. Ginnane, Fritz R. Kahn, and Jerome Nelson for Interstate Commerce Commission • and by 230 Pacific Northwest Shippers. No. 201. Benton v. Maryland. Ct. Sp. App. Md. [Certiorari granted, 392 U. S. 925.] Case restored to the docket for reargument on March 24, 1969, limited to the following question, not specified in the original writ: Does the “concurrent sentence doctrine,” enunciated in Hirabayashi n. United States, 320 U. S. 81, 105, and subsequent cases, have continuing validity in light of such decisions as Ginsberg v. New York, 390 U. S. 629, 633, n. 2, Peyton n. Rowe, 391 U. S. 54, Caracas n. LaVallee, 391 U. S. 234, 237-238, and Sibron v. New York, 392 U. S. 40, 50-58? The Solicitor General is invited to file a brief expressing the views of the United States and to participate in oral argument. ORDERS. 995 393 U. S. December 16, 1968. No. 49. Zenith Radio Corp, v. Hazeltine Research, Inc., et al. C. A. 7th Cir. Request for additional time granted and a total of three hours allotted for oral argument. [For earlier orders herein, see, e. g., ante, p. 958.] No. 243. Citizen Publishing Co. et al. v. United States. Appeal from D. C. Ariz. [Probable jurisdiction noted, ante, p. 911]. Motion of Robert L. Stern for leave to participate in oral argument, for amici curiae, denied. Mr. Justice Fortas took no part in the consideration or decision of this motion. Robert L. Stern, pro se, on the motion. No. 273. Scofield et al. v. National Labor Relations Board et al. C. A. 7th Cir. [Certiorari granted, ante, p. 821.] Motion of respondent International Union, UAW, to argue orally granted and twenty additional minutes allotted for that purpose. Counsel for petitioners likewise allotted twenty additional minutes for oral argument. Mr. Justice Marshall took no part in the consideration or decision of this motion. Joseph L. Rauh, Jr., John Silard, and Stephen I. Schlossberg on the motion. No. 379. International Terminal Operating Co., Inc. v. N. V. Nederl. Amerik Stoomv. Maats., ante, p. 74. Motion to recall and amend judgment of this Court granted. It is ordered that the certified copy of the judgment sent to the District Court be recalled and that the case be remanded to the United States Court of Appeals for the Second Circuit. Edmund F. Lamb on the motion. No. 889, Mise. Paulekas v. Clark, Attorney General, et al. Stay heretofore granted by this Court on October 25, 1968 [ante, p. 921], is hereby dissolved. 996 OCTOBER TERM, 1968. December 16, 1968. 393 U.S. No. 646. O’Callahan v. Parker, Warden. C. A. 3d Cir. [Certiorari granted, ante, p. 822.] Motion to remove case from summary calendar denied. Victor Rabinowitz on the motion. No. 841, Mise. Dooley v. Alabama. Motion for leave to file petition for writ of habeas corpus denied. No. 860, Mise. Schmiedeberg v. Walton, Judge. Motion for leave to file petition for writ of mandamus denied. Probable Jurisdiction Noted. No. 620. Moore et al. v. Shapiro, Governor of Illinois, et al. Appeal from D. C. N. D. Ill. Probable jurisdiction noted. Richard F. Watt for appellants. William G. Clark, Attorney General of Illinois, and John J. O’Toole and Thomas E. Brannigan, Assistant Attorneys General, for appellees. Reported below: 293 F. Supp. 411. No. 647. Hadnott et al. v. Amos, Secretary of State of Alabama, et al. D. C. M. D. Ala. Motion to dispense with printing jurisdictional statement granted. Probable jurisdiction noted and case set for oral argument on January 21, 1969, together with motion for an order to show cause why Judge Herndon should not be held in contempt and for other relief. Appellants’ briefs shall be filed by January 3, 1969, and responding briefs by January 17, 1969. Case may be presented on original record, without printing. Mr. Justice Black took no part in the consideration or decision of these matters. Charles Morgan, Jr., Reber F. Boult, Jr., Orzell Billingsley, Jr., Robert P. Schwenn, and Melvin L. Wulf on the motion. [For earlier orders herein, see, e. g., ante, p. 904.] ORDERS. 997 393 U. S. December 16, 1968. Certiorari Granted. No. 573. National Labor Relations Board v. Gis-sel Packing Co., Inc., et al. ; and No. 691. Food Store Employees Union, Local No. 347, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO v. Gissel Packing Co., Inc. C. A. 4th Cir. Certiorari granted. Cases consolidated and a total of two hours allotted for oral argument. Solicitor General Griswold, Arnold Ordman, Dominick L. Manoli, and Norton J. Come for petitioner in No. 573, and Albert Gore for petitioner in No. 691. Lewis P. Hamlin, Jr., for respondent General Steel Products, Inc., in No. 573. Reported below: 398 F. 2d 336, 337, and 339. No. 585. Sinclair Co. v. National Labor Relations Board. C. A. 1st Cir. Certiorari granted and case set for oral argument immediately following Nos. 573 and 691, supra. Edward B. Schwartz for petitioner. Solicitor General Griswold, Arnold Ordman, Dominick L. Manoli, and Norton J. Come for respondent. Reported below: 397 F. 2d 157. No. 622. Maxwell v. Bishop, Penitentiary Superintendent. C. A. 8th Cir. Certiorari granted limited to Questions 2 and 3 of the petition which read as follows: “2. Whether Arkansas’ practice of permitting the trial jury absolute discretion, uncontrolled by standards or directions of any kind, to impose the death penalty violates the Due Process Clause of the Fourteenth Amendment? “3. Whether Arkansas’ single-verdict procedure, which requires the jury to determine guilt and punishment simultaneously and a defendant to choose between presenting mitigating evidence on the punishment issue or maintaining his privilege against self-incrimination on 998 OCTOBER TERM, 1968. December 16, 1968. 393 U. S. the guilt issue, violates the Fifth and Fourteenth Amendments?” Case set for oral argument immediately following No. 642 [Boykin v. Alabama, ante, p. 820]. Jack Greenberg, James M. Nabrit III, Norman C. Amaker, Michael Melts-ner, George Howard, Jr., and Anthony G. Amsterdam for petitioner. Joe Purcell, Attorney General of Arkansas, and Don Langston, Deputy Attorney General, for respondent. Reported below: 398 F. 2d 138. No. 167, Mise. Williams v. City of Oklahoma City et al. Ct. Crim. App. Okla. Certiorari granted. Motion for leave to proceed in forma pauperis granted. Certiorari granted and case transferred to appellate docket. Giles K. Ratcliffe for respondents. Reported below: 439 P. 2d 965. Certiorari Denied. No. 525. Matson Navigation Co. v. Smith, Secretary of Commerce, et al. C. A. 9th Cir. Certiorari denied. Alvin J. Rockwell, Willis R. Deming, and George D. Rives for petitioner. Solicitor General Griswold, As-sistant Attorney General Weisl, and John C. Eldridge for respondent Smith, and Edward D. Ransom for respondent States Steamship Co. Reported below: 394 F. 2d 514. No. 597. Mississippi Power Co. et al. v. South Mississippi Electric Power Assn. Sup. Ct. Miss. Certiorari denied. James S. Eaton and Thomas H. Watkins for Mississippi Power Co., and Sherwood W. Wise for Mississippi Power & Light Co., petitioners. T. Harvey Hedgepeth and Donald Wadsworth Williamson, Jr., for respondent. Reported below: 211 So. 2d 827. No. 602. Barr et al. v. Chatman et al. C. A. 7th Cir. Certiorari denied. Franklin J. Landing, Jr., for petitioners. Reported below: 397 F. 2d 515. ORDERS. 999 393 U. S. December 16, 1968. No. 593. Porter, Administratrix v. St. Louis-San Francisco Railway Co. Sup. Ct. Miss. Certiorari denied. Frank E. Everett, Jr., for petitioner. C. R. Bolton, E. D. Grinnell, and W. W. Dalton for respondent. Reported below: 211 So. 2d 530. No. 594. Legal Integrity Preservation Society, Inc., et al. v. Murphy et al. C. A. D. C. Cir. Certiorari denied. Irvin Lechliter for petitioners. Respondent Eugene X. Murphy, pro se. No. 599. Phoenix Title & Trust Co., now Trans-america Title Insurance Co. v. Markel. Sup. Ct. Ariz. Certiorari denied. Carl W. Divelbiss for petitioner. Leven B. Ferrin for respondent. Reported below: 103 Ariz. 353, 442 P. 2d 97. No. 600. Architectural Models, Inc. v. Neklason ET AL., DBA SCALE MODELS UNLIMITED. C. A. 9th Cir. Certiorari denied. James M. Naylor, Frank A. Neal, and Karl A. Limbach for petitioner. Edward B. Gregg for respondents. Reported below: 397 F. 2d 405. No. 601. Howie v. Massachusetts. Sup. Jud. Ct. Mass. Certiorari denied. Esther M. Stevens for petitioner. Elliot L. Richardson, Attorney General of Massachusetts, Ruth I. Abrams and Willie Davis, Assistant Attorneys General, and John J. Droney for respondent. Reported below: 354 Mass. 769, 238 N. E. 2d 373. No. 604. Stilley v. United States. Ct. Cl. Certiorari denied. Byron N. Scott for petitioner. Solicitor General Griswold for the United States. No. 607. Cribb v. United States. C. A. 5th Cir. Certiorari denied. J. Sewell Elliott for petitioner. Solicitor General Griswold for the United States. Reported below: 397 F. 2d 361. 1000 OCTOBER TERM, 1968. December 16, 1968. 393 U. S. No. 603. Continental Nut Co. v. National Labor Relations Board. C. A. 9th Cir. Certiorari denied. Kenneth C. McGuiness for petitioner. Solicitor General Griswold, Arnold Ordman, Dominick L. Manoli, and Norton J. Come for respondent. Reported below: 395 F. 2d 830. No. 612. Theatrical Protective Union No. 1, International Alliance of Theatrical & Stage Employees, AFL-CIO v. Phalen et al. Ct. App. N. Y. Certiorari denied. Harold P. Spivak and Louis Kantor for petitioner. Solomon D. Monshine for respondents. Reported below: 22 N. Y. 2d 34, 238 N. E. 2d 295. No. 614. Commercial National Bank of Kansas City et al. v. United States. C. A. 10th Cir. Certiorari denied. Robert B. Langworthy and Glenn Thomas for petitioners. Solicitor General Griswold, Assistant Attorney General Rogovin, Melva M. Graney, and Louis M. Kauder for the United States. Reported below: 404 F. 2d 927. No. 618. Alabama Power Co. v. Alabama Electric Cooperative, Inc., et al. C. A. 5th Cir. Certiorari denied. & Eason Balch, John Bingham, and Merrell E. Clark, Jr., for petitioner. J. M. Williams, Jr., and Bennett Boskey for Alabama Electric Cooperative, Inc., and Solicitor General Griswold, Assistant Attorney General Weisl, Alan S. Rosenthal, and Leonard Schaitman for the United States et al., respondents. Reported below: 394 F. 2d 672. No. 621. Ragen v. California. Ct. App. Cal., 4th App. Dist. Certiorari denied. Herman F. Selvin for petitioner. Reported below: 262 Cal. App. 2d 392, 68 Cal. Rptr. 700. 1001 ORDERS. 393 U.S. December 16, 1968. No. 687. Younger, District Attorney of County of Los Angeles v. Superior Court of California, County of Los Angeles (Sirhan, real party in interest). Ct. App. Cal., 2d App. Dist. Certiorari denied. Evelle J. Younger, petitioner, pro se. Joseph A. Ball for respondent. No. 591. Barron v. Florida. Dist. Ct. App. Fla., 3d Dist. Motion to dispense with printing petition granted. Certiorari denied. Milton E. Grusmark for petitioner. Earl Faircloth, Attorney General of Florida, and Edward D. Cowart and Jesse J. McCrary, Jr., Assistant Attorneys General, for respondent. Reported below: 207 So. 2d 696. No. 592. Bennett, Warden v. Stump. C. A. 8th Cir. Certiorari denied. Mr. Justice Black, Mr. Justice Harlan, and Mr. Justice White are of the opinion that certiorari should be granted. Richard C. Turner, Attorney General of Iowa, and David A. Elderkin and William A. Claerhout, Assistant Attorneys General, for petitioner. Reported below: 398 F. 2d 111. No. 595. Hinger v. City of Piqua. Sup. Ct. Ohio. Certiorari denied. The Chief Justice, Mr. Justice Black, and Mr. Justice Fortas are of the opinion that certiorari should be granted. Leo H. Faust for petitioner. Richard K. Wilson for respondent. Reported below: 15 Ohio St. 2d 110, 238 N. E. 2d 766. No. 608. Theckston et ux. v. Triangle Publications, Inc., et al. Sup. Ct. N. J. Certiorari denied. Mr. Justice Fortas is of the opinion that certiorari should be granted. Harry Green and Sidney W. Bookbinder for petitioners. Harold E. Kohn for respondents. Reported below: 52 N. J. 173, 244 A. 2d 302. 1002 OCTOBER TERM, 1968. December 16, 1968. 393 U. S. No. 613. McArthur et al. v. Clifford, Secretary of Defense, et al. C. A. 4th Cir. Motions to dispense with printing petition and to amend petition granted. Certiorari denied. Philip J. Hirschkop for petitioners. Solicitor General Griswold for respondents. Reported below: 402 F. 2d 58. Mr. Justice Douglas, dissenting. I dissent from a denial of certiorari in this case. An important unresolved constitutional issue of immediate importance to many Americans is involved. It is whether men may be sent abroad to fight in a war which has not been declared by Congress. This is a point on which I wrote rather elaborate dissents in Holmes v. United States, 391 U. S. 936, and Hart v. United States, 391 U. S. 956. This certainly is a substantial question and one which has never been resolved by this Court. The question of the power of the President to conduct a war without a declaration of war was raised in the Prize Cases, 2 Black 635, during the Civil War. That was an internal insurrection which would perhaps be analogous here if the Vietnamese were invading the United States. It was a five-to-four decision, upholding Presidential power. Would it have been the same if Lincoln had had an expeditionary force fighting a “war” overseas? There should not be the slightest doubt that whenever the Chief Executive of the country takes any citizen by the neck and either puts him in prison or subjects him to some ordeal or sends him overseas to fight in a war, the question is a justiciable one. To call issues of that kind “political” would be to abdicate the judicial function which the Court honored in the midst of the Civil War in the Prize Cases. The spectre of executive war-making is an ominous threat to our republican institutions. What can be done ORDERS. 1003 393 U.S. December 16, 1968. in Vietnam can be done in many areas of this troubled world without debate or responsible public decision. I would put the case down for argument and resolve this important constitutional problem. No. 258, Mise. Jones v. Schneckloth, Conservation Center Superintendent, et al. C. A. 9th Cir. Certiorari denied. Thomas C. Lynch, Attorney General of California, Doris H. Maier, Assistant Attorney General, and Arnold 0. Overoye, Deputy Attorney General, for respondents. No. 287, Mise. Owens v. Russell, Correctional Superintendent, et al. C. A. 3d Cir. Certiorari denied. Paul Bender for petitioner. William C. Sennett, Attorney General of Pennsylvania, and Stanley Asher Winikoff and Frank P. Lawley, Jr., Deputy Attorneys General, for respondents. No. 336, Mise. Pincus v. New York. Ct. App. N. Y. Certiorari denied. Elliott Golden and Harold M. Brown for respondent. No. 373, Mise. Early v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 394 F. 2d 117. No. 441, Mise. Beaver v. United States. C. A. 4th Cir. Certiorari denied. Solicitor General Griswold, As-sistant Attorney General Vinson, and Beatrice Rosenberg for the United States. No. 459, Mise. Bean et al. v. Minnesota. Sup. Ct. Minn. Certiorari denied. Douglas W. Thomson for petitioners. Douglas M. Head, Attorney General of Minnesota, Richard H. Kyle, Solicitor General, and William B. Randall for respondent. Reported below: 280 Minn. 35, 157 N. W. 2d 736. 320-583 0 - 69 - 59 1004 OCTOBER TERM, 1968. December 16, 1968. 393 U. S. No. 531, Mise. Sheldon v. Iowa. Sup. Ct. Iowa. Certiorari denied. Richard C. Turner, Attorney General of Iowa, and David A. Elderkin, Assistant Attorney General, for respondent. No. 596, Mise. Zerschausky v. Beto, Corrections Director. C. A. 5th Cir. Certiorari denied. Fred A. Semaan and James R. Gillespie for petitioner. Crawjord Martin, Attorney General of Texas, Lonnie Zwiener, Assistant Attorney General, James E. Barlow, and Preston H. Dial, Jr., for respondent. Reported below: 396 F. 2d 356. No. 597, Mise. Van Ermen v. Burke, Warden. C. A. 7th Cir. Certiorari denied. Bronson C. La Follette, Attorney General of Wisconsin, and William A. Platz, Assistant Attorney General, for respondent. Reported below: 398 F. 2d 329. No. 615, Mise. Lemon v. Oregon. Sup. Ct. Ore. Certiorari denied. George Van Hoomissen and Jacob B. Tanzer for respondent. No. 658, Mise. Bandy v. United States. C. A. 8th Cir. Certiorari denied. Acting Solicitor General Friedman, Assistant Attorney General Vinson, and Jerome M. Feit for the United States. Reported below: 396 F. 2d 929. No. 685, Mise. Lessard v. Dickson, Warden. C. A. 9th Cir. Certiorari denied. Reported below: 394 F. 2d 88. No. 727, Mise. Grimsley v. Pinto, Prison Superintendent, et al. C. A. 3d Cir. Certiorari denied. 1005 ORDERS. 393 U. S. December 16, 1968. No. 690, Mise. Warner v. New York. Ct. App. N. Y. Certiorari denied. Peter L. F. Sabbatino for petitioner. William Cahn for respondent. No. 499, Mise. Tolbert v. Georgia. Sup. Ct. Ga. Certiorari denied. John N. Crudup for petitioner. Arthur K. Bolton, Attorney General of Georgia, and Marion 0. Gordon, Mathew Robins, and Frank E. Blankenship, Assistant Attorneys General, for respondent. Reported below: 224 Ga. 291, 161 S. E. 2d 279. No. 763, Mise. Roberts v. United States. C. A. 2d Cir. Certiorari denied. Leon B. Polsky and Phylis Skloot Bamberger for petitioner. Solicitor General Griswold for the United States. Reported below: 401 F. 2d 538. No. 767, Mise. Jordan v. United States; and No. 774, Mise. Stokes v. United States. C. A. 2d Cir. Certiorari denied. John W. Condon, Jr., for petitioner in No. 767, Mise., and Herald Price Fahringer for petitioner in No. 774, Mise. Solicitor General Griswold, Assistant Attorney General Vinson, Jerome M. Feit, and Mervyn Hamburg for the United States in both cases. Reported below: 399 F. 2d 610. No. 769, Mise. Plaisance v. Louisiana. Sup. Ct. La. Certiorari denied. Jack Peebles for petitioner. Reported below: 252 La. 212, 210 So. 2d 323. No. 778, Mise. Knepfler v. United States. C. A. 5th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, Jerome M. Feit, and Edward Fenig for the United States. Reported below: 396 F. 2d 819. 1006 OCTOBER TERM, 1968. December 16, 1968. 393 U. S. No. 814, Mise. Hollis v. Wisconsin. Sup. Ct. Wis. Certiorari denied. No. 810, Mise. Williams v. Virginia. Sup. Ct. App. Va. Certiorari denied. Michael Meltsner for petitioner. Reno S. Harp III, Assistant Attorney General of Virginia, for respondent. Reported below: 208 Va. 724, 160 S. E. 2d 781. No. 818, Mise. Bandy v. United States. C. A. 10th Cir. Certiorari denied. Acting Solicitor General Friedman, Assistant Attorney General Vinson, and Jerome M. Feit for the United States. Reported below: 398 F. 2d 333. No. 845, Mise. Conway v. Illinois. Sup. Ct. Ill. Certiorari denied. No. 861, Mise. Bennett v. North Carolina. C. A. 4th Cir. Certiorari denied. No. 866, Mise. Williams v. Maryland. Ct. App. Md. Certiorari denied. No. 896, Mise. Blunt v. Sheehy, Reformatory Superintendent, et al. C. A. 4th Cir. Certiorari denied. No. 897, Mise. Williams v. New York. Ct. App. N. Y. Certiorari denied. No. 898, Mise. Henley v. Ohio. Sup. Ct. Ohio. Certiorari denied. Louis A. Ginocchio and Thomas Stueve for petitioner. Melvin G. Rueger, Calvin W. Prem, and Leonard Kirschner for respondent. Reported below: 15 Ohio St. 2d 86, 228 N. E. 2d 773. ORDERS. 1007 393 U.S. December 16, 1968. No. 843, Mise. Studenroth v. Pennsylvania. Sup. Ct. Pa. Certiorari denied. Reported below: 430 Pa. 425, 243 A. 2d 352. No. 903, Mise. Delaney v. Cupp, Warden. Sup. Ct. Ore. Certiorari denied. No. 147, Mise. Pool v. Nelson, Warden, et al. C. A. 9th Cir. Certiorari and other relief denied. Thomas C. Lynch, Attorney General of California, and Deraid E. Granberg and William D. Stein, Deputy Attorneys General, for respondents. No. 223, Mise. Mendez v. California. C. A. 9th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Thomas C. Lynch, Attorney General of California, and Edsel W. Haws and Daniel J. Kremer, Deputy Attorneys General, for respondent. No. 330, Mise. Coleman v. Maxwell, Warden. C. A. 6th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. William B. Saxbe, Attorney General of Ohio, and Leo J. Conway, Assistant Attorney General, for respondent. Reported below: 387 F. 2d 134. No. 255, Mise. Hill v. Beto, Corrections Director. C. A. 5th Cir. Certiorari denied. Mr. Justice Black and Mr. Justice Douglas are of the opinion that certiorari should be granted. Crawjord C. Martin, Attorney General of Texas, Nola White, First Assistant Attorney General, A. J. Carubbi, Jr., Executive Assistant Attorney General, and Robert C. Flowers and Lonny F. Zwiener, Assistant Attorneys General, for respondent. Reported below: 390 F. 2d 640. 1008 OCTOBER TERM, 1968. December 16, 1968, January 10, 13, 1969. 393 U. S. Rehearing Denied. No. 696, Mise. Odes v. Civil Service Commission of the City of Chicago et al., ante, p. 945; and No. 698, Mise. Johnson v. California, ante, p. 945. Petitions for rehearing denied. No. 86, Mise. Bates et al. v. Nelson, Warden, ante, p. 16; and No. 132, Mise. Cerda v. United States, ante, p. 872. Motions for leave to file petitions for rehearing denied. January 10, 1969. Dismissal Under Rule 60. No. 1159, Mise. Smalls v. Ives, Highway Commissioner of Connecticut. Appeal from D. C. Conn. Appeal dismissed pursuant to Rule 60 of the Rules of this Court. Bernard D. Fischman for appellant. Robert K. Killian, Attorney General of Connecticut, and Jack Rubin and Clement J. Kichuk, Assistant Attorneys General, for appellee. Reported below: 296 F. Supp. 448. January 13, 1969. Dismissal Under Rule 60. No. 480. Blasius v. United States. C. A. 2d Cir. [Certiorari granted, ante, p. 950.] Writ of certiorari dismissed pursuant to Rule 60 of the Rules of this Court. Peyton Ford and Harry Grossman for petitioner. Solicitor General Griswold for the United States. Donald R. Dunner for American Patent Law Assn, et al., as amici curiae. Miscellaneous Orders. No. 216. Martone v. Morgan et al., ante, p. 12. Motion to consolidate this case with No. 548 [ante, p. 975] denied. J. Minos Simon on the motion. ORDERS. 1009 393 U. S. January 13, 1969. No. ----. Dickens v. United States. Application for bail pending appeal presented to Mr. Justice Douglas, and by him referred to the Court, denied. Murry L. Randall for applicant. Solicitor General Griswold for the United States in opposition. No. ----. SCHONBRUN V. COMMANDING OFFICER ET al. C. A. 2d Cir. Application for reconsideration of denial of stay of mandate presented to Mr. Justice Harlan, and by him referred to the Court, denied. Mr. Justice Douglas is of the opinion that the application should be granted. Julius B. Kuriansky for applicant. No. 13. Baltimore & Ohio Railroad Co. et al. v. Aberdeen & Rockfish Railroad Co. et al., ante, p. 87. Appellees are requested to file within 30 days a response to the petition for rehearing. No. 44. Skinner et al. v. Louisiana. Sup. Ct. La. Motion of petitioners for leave to file brief after argument granted, and such brief shall be filed within 10 days. G. Wray Gill, Sr., and George M. Leppert for Skinner et al., and Robert S. Link, Jr., for Charbonnet, on the motion. [For earlier orders herein, see, e. g., ante, p. 813.] No. 138. Powell et al. v. McCormack, Speaker of the House of Representatives, et al. C. A. D. C. Cir. [Certiorari granted, ante, p. 949.] Motion to remove case from summary calendar granted. Herbert 0. Reid and Arthur Kinoy on the motion. No. 1029, Mise. Westendorf v. Patterson, Warden. Motion for leave to file petition for writ of habeas corpus denied. Treating the papers submitted as a petition for writ of certiorari, certiorari denied. 1010 OCTOBER TERM, 1968. January 13, 1969. 393 U. S. No. 297. Immigration and Naturalization Service v. Stanisic. C. A. 9th Cir. [Certiorari granted, ante, p. 912.] Motion of respondent for appointment of counsel granted. It is ordered that G. Bernhard Fedde, Esquire, of Portland, Oregon, be, and he is hereby, appointed to serve as counsel for respondent in this case. No. 418. Simpson, Warden v. Rice. C. A. 5th Cir. [Certiorari granted, ante, p. 932.] Motions of respondent for leave to proceed further herein in forma pauperis and for the appointment of counsel granted. It is ordered that Oakley W. Melton, Esquire, of Montgomery, Alabama, a member of the Bar of this Court, be, and he is hereby, appointed to serve as counsel for respondent in this case. No. 453. Gregg v. United States. C. A. 6th Cir. [Certiorari granted, ante, p. 932.] Motions of petitioner for leave to proceed further herein in forma pauperis and for appointment of counsel granted. It is ordered that Dean E. Richards, Esquire, of Indianapolis, Indiana, be, and he is hereby, appointed to serve as counsel for petitioner in this case. No. 750. Harrington v. California. Ct. App. Cal., 2d App. Dist. [Certiorari granted, ante, p. 949.] Motion of respondent to dispense with printing appendix denied. Thomas C. Lynch, Attorney General of California, and James H. Kline, Deputy Attorney General, on the motion. No. 1021, Mise. Fair v. Adams, Secretary of State of Florida, et al.; and No. 1049, Mise. Fair v. Florida Public Service Commission. Motions for leave to file petitions for writs of mandamus denied. 1011 ORDERS. 393 U. S. January 13, 1969. No. 770. Chimel v. California. Sup. Ct. Cal. [Certiorari granted, ante, p. 958.] Joint motion to dispense with printing appendix denied. Request by petitioner for additional time for oral argument denied. Thomas C. Lynch, Attorney General of California, William E. James, Assistant Attorney General, and Ronald M. George, Deputy Attorney General, for respondent on the joint motion. No. 1005, Mise. Alloway v. Eyman, Warden, et al. ; No. 1044, Mise. McCarthy v. North Carolina; No. 1058, Mise. Montalbano v. Field, Men’s Colony Superintendent; No. 1063, Mise. Cupp v. Crouse, Warden; No. 1071, Mise. Schwamb v. Burke, Warden, et al. ; No. 1081, Mise. Berry v. Fitzharris, Warden; No. 1083, Mise. Pippin v. Blackwell, Warden; No. 1092, Mise. Bryant v. Craven, Warden; No. 1101, Mise. Schmitt v. Burke, Warden; No. 1102, Mise. Archuleta v. Turner, Warden; and No. 1125, Mise. Childress v. Wainwright, Corrections Director. Motions for leave to file petitions for writs of habeas corpus denied. No. 977, Mise. Biggs v. Justices of the Supreme Court of Illinois. Motion for leave to file petition for writ of mandamus and other relief denied. Probable Jurisdiction Noted. No. 701. Gaston County, North Carolina v. United States. Appeal from D. C. D. C. Probable jurisdiction noted. Grady B. Stott and Wesley E. McDonald, Sr., for appellant. Solicitor General Griswold, Assistant Attorney General Pollak, and Nathan Lewin for the United States. Reported below: 288 F. Supp. 678. 1012 OCTOBER TERM, 1968. January 13, 1969. 393 U. S. No. 610. Sullivan, Tax Commissioner of Connecticut, et al. v. United States et al. Appeal from C. A. 2d Cir. Probable jurisdiction noted. Robert K. Killian, Attorney General of Connecticut, and F. Michael Ahern, Ralph G. Murphy, and Richard A. Gitlin, Assistant Attorneys General, for appellants. Solicitor General Griswold for the United States. Brief of amici curiae, in support of appellants, was filed by: MacDonald Gallion, Attorney General, and Willard W. Livingston for the State of Alabama; Duke W. Dunbar, Attorney General, and Aurel M. Kelly, Assistant Attorney General, for the State of Colorado; Arthur K. Bolton, Attorney General, and William L. Harper, Assistant Attorney General, for the State of Georgia; John B. Breckinridge, Attorney General, and William F. Riley, Assistant Attorney General, for the State of Kentucky; James S. Erwin, Attorney General, and John R. Doyle, Assistant Attorney General, for the State of Maine; Francis B. Burch, Attorney General, and Jon. F. Oster, Assistant Attorney General, for the State of Maryland; Elliot L. Richardson, Attorney General, and Alan J. Dimond, Assistant Attorney General, for the State of Massachusetts; Frank J. Kelley, Attorney General, and Maurice Barbour, Assistant Attorney General, for the State of Michigan; Douglas M. Head, Attorney General, for the State of Minnesota; Norman H. Anderson, Attorney General, and Walter W. Nowotny, Jr., Assistant Attorney General, for the State of Missouri; Ralph H. Gillan, Assistant Attorney General, for the State of Nebraska; Harvey Dickerson, Attorney General, for the State of Nevada; Thomas Wade Bruton, Attorney General, and Robert L. Gunn, Assistant Attorney General, for the State of North Carolina; William C. Sennett, Attorney General, and Edward T. Baker, Deputy Attorney General, for the State of Pennsylvania; Crawjord C. Martin, Attorney General, Nola White, First Assistant 1013 ORDERS. 393 U. S. January 13, 1969. Attorney General, Kerns B. Taylor, Assistant Attorney General, and A. J. Carubbi, Jr., Executive Assistant Attorney General, for the State of Texas; Robert Y. Button, Attorney General, and M. Harris Parker, Assistant Attorney General, for the State of Virginia; James Barrett, Attorney General, for the State of Wyoming; and the States of Louisiana and Oklahoma. Reported below: 398 F. 2d 672. No. 163. Younger, District Attorney of Los Angeles County v. Harris et al. Appeal from D. C. C. D. Cal. Motion to dispense with printing motion to affirm granted. Probable jurisdiction noted. Evelle J. Younger, appellant, pro se. Frank S. Pestana, A. L. Wirin, and Fred Okrand for appellees. Thomas C. Lynch, Attorney General, Albert W. Harris, Jr., Assistant Attorney General, and Clifford K. Thompson, Jr., Deputy Attorney General, filed a brief for the State of California, by invitation of the Court, ante, p. 813. Reported below: 281 F. Supp. 507. Certiorari Granted. (See also No. 221, Mise., ante, p. 314.) No. 624. Perkins v. Standard Oil Co. of California. C. A. 9th Cir. Certiorari granted. Earl W. Kintner, George R. Kucik, Roger Tilbury, Ernest Bonyhadi, and Bruce M. Hall for petitioner. Francis R. Kirkham, Richard J. MacLaury, and H. Helmut Loring for respondent. Reported below: 396 F. 2d 809. No. 672. United States v. King. Ct. Cl. Certiorari granted. Solicitor General Griswold, Assistant Attorney General Weisl, Harris Weinstein, and John C. Eldridge for the United States. Neil B. Kabatchnick for respondent. Reported below: 182 Ct. Cl. 631, 390 F. 2d 894. 1014 OCTOBER TERM, 1968. January 13, 1969. 393 U. S. No. 717. United States et al. v. Radio Television News Directors Assn, et al. C. A. 7th Cir. Certiorari granted and set for oral argument immediately following No. 2 [Red Lion Broadcasting Co., Inc., et al. v. Federal Communications Commission et al., certiorari granted, 389 U. S. 968]. Solicitor General Griswold, As-sistant Attorney General Zimmerman, Henry Geller, and Daniel R. Ohlbaum for the United States et al. Archibald Cox, W. Theodore Pierson, Robert M. Lichtman, and Maurice Rosenfield for Radio Television News Directors Assn, et al., Lloyd N. Cutler, J. Roger Wallenberg, Timothy B. Dyk, and Herbert Wechsler for Columbia Broadcasting System, Inc., and Lawrence J. McKay, Raymond L. Falls, Jr., Corydon B. Dunham, Jr., and Howard E. Monderer for National Broadcasting Co., Inc., respondents. Reported below: 400 F. 2d 1002. Certiorari Denied. (See also No. 719, ante, p. 320; No. 871, Mise., ante, p. 322; and No. 1029, Mise., supra.) No. 332. Moskowitz v. Kindt et al. C. A. 3d Cir. Certiorari denied. Abraham J. Brem Levy for petitioner. Solicitor General Griswold for respondents. Reported below: 394 F. 2d 648. No. 400. Veres v. Arizona. Sup. Ct. Ariz. Certiorari denied. Phillip Weeks for petitioner. Gary K. Nelson, Attorney General of Arizona, and William E. Eubank, Chief Assistant Attorney General, for respondent. No. 451. Fort v. Illinois. App. Ct. Ill., 1st Dist. Certiorari denied. Marshall Patner for petitioner. Elmer C. Kissane for respondent. Reported below: 91 Ill. App. 2d 212, 234 N. E. 2d 384. ORDERS. 1015 393 U. S. January 13, 1969. No. 81. Brotherhood of Locomotive Engineers v. McElroy et al. ; and No. 128. Terminal Railroad Association of St. Louis v. McElroy et al. C. A. 7th Cir. Certiorari denied. Harold A. Ross and John H. Haley, Jr., for petitioner in No. 81 and for respondent Brotherhood of Locomotive Engineers in No. 128. James A. Wilcox for petitioner in No. 128. Charles R. Judge for respondents McElroy et al. in both cases. Solicitor General Griswold, Assistant Attorney General Weisl, Peter L. Strauss, and John C. Eldridge filed a brief for the United States, as amicus curiae, by invitation of the Court, ante, p. 813, in both cases. Reported below: 392 F. 2d 966. No. 441. Bryant et ux. v. Illinois et al. Sup. Ct. Ill. Certiorari denied. R. Dickey Hamilton for petitioners. William G. Clark, Attorney General of Illinois, and John J. O’Toole, Assistant Attorney General, for respondents. No. 512. General Time Corp. v. Securities and Exchange Commission et al. C. A. 2d Cir. Certiorari denied. Edward R. Neaher and Paul G. Pennoy er, Jr., for petitioner. Solicitor General Griswold and Philip A. Loomis, Jr., for Securities and Exchange Commission, Breck P. McAllister, Walter L. Stratton, and Benjamin Vinar for Talley Industries, Inc., and Clendon H. Lee and Stanley L. Sobel for American Investors Fund, Inc., et al., respondents. Reported below: 399 F. 2d 396. No. 631. Yellow Cab Co. v. Democratic Union Organizing Committee, Local 777, S. I. U. N. A., AFL-CIO. C. A. 7th Cir. Certiorari denied. Robert E. Haythorne for petitioner. Harold A. Katz and Irving M. Friedman for respondent. Reported below: 398 F. 2d 735. 1016 OCTOBER TERM, 1968. January 13, 1969. 393 U.S. No. 625. Habib v. Edwards. C. A. D. C. Cir. Certiorari denied. Raphael G. Urciolo and Herman Miller for petitioner. Reported below: 130 U. S. App. D. C. 126, 397 F. 2d 687. No. 627. Libbey-Owens-Ford Glass Co. v. McCulloch, Chairman, National Labor Relations Board, et al. C. A. D. C. Cir. Certiorari denied. Guy Farmer and Arnold F. Bunge, Sr., for petitioner. Solicitor General Griswold, Arnold Ordman, Dominick L. Manoli, and Norton J. Come for respondents. Reported below: 131 U. S. App. D. C. 190, 403 F. 2d 916. No. 629. In re Succession of Andrau (Bank of the Southwest National Assn., Houston v. Siegler et al.). Sup. Ct. La. Certiorari denied. L. Keith Simmer for petitioner. Claude R. Miller for respondents Siegler et al. No. 630. Barnes et al. v. United States. Ct. Cl. Certiorari denied. Eberhard P. Deutsch, René H. Himel, Jr., and Charles K. Reasonover for petitioners. Solicitor General Griswold, Assistant Attorney General Weisl, and Alan S. Rosenthal for the United States. No. 635. Friedman et ux. v. Chesapeake & Ohio Railway Co. et al. C. A. 2d Cir. Certiorari denied. Abraham Glasser for petitioners. Carl E. Newton and M. Lauck Walton for Chesapeake & Ohio Railway Co., and Eugene Z. DuBose and John L. Rogers, Jr., for Baltimore & Ohio Railroad Co., respondents. Reported below: 395 F. 2d 663. No. 640. Ultimate Research & Development Corp, et al. v. Taylor Wine Co., Inc. C. A. 2d Cir. Certiorari denied. Hoflman Stone for petitioners. Reported below: 397 F. 2d 784. 1017 ORDERS. 393 U. S. January 13, 1969. No. 628. Anderson v. Oklahoma. Ct. Crim. App. Okla. Certiorari denied. H. Dale Cook for petitioner. Reported below: 444 P. 2d 239. No. 637. Town of Hempstead et al. v. American Airlines, Inc., et al. C. A. 2d Cir. Certiorari denied. Howard E. Levitt for petitioners. Eowler Hamilton, Lyman M. Tondel, Jr., and George Weisz for American Airlines, Inc., et al., Sidney Goldstein, Daniel B. Goldberg, and Joseph Lesser for Port of New York Authority, Samuel J. Cohen for Ruby et al., and Solicitor General Griswold, Assistant Attorney General Weisl, John C. Eldridge, and Norman Knopf for the Administrator of the Federal Aviation Agency, respondents. Reported below: 398 F. 2d 369. No. 639. Washington Metropolitan Area Transit Commission v. United States et al. ; and No. 658. Washington, Virginia & Maryland Coach Co., Inc., et al. v. United States et al. C. A. D. C. Cir. Certiorari denied. Russell W. Cunningham for petitioner in No. 639, and Manuel J. Davis and Samuel M. Langerman for petitioners in No. 658. Solicitor General Griswold, Assistant Attorney General Martz, Roger P. Marquis, Thomas L. McKevitt, and A. Donald Mileur for the United States et al. in both cases. Reported below: 130 U. S. App. D. C. 171, 398 F. 2d 765. No. 649. Dugger v. United States. C. A. 8th Cir. Certiorari denied. Kenneth K. Simon for petitioner. Solicitor General Griswold for the United States. Reported below: 396 F. 2d 279. No. 653. Prescott v. Shell Oil Co., Inc. C. A. 6th Cir. Certiorari denied. Leslie A. Nicholson for petitioner. J. Martin Regan for respondent. Reported below: 398 F. 2d 592. 1018 OCTOBER TERM, 1968. January 13, 1969. 393 U.S. No. 654. Southall, trading as Southall Realty Co. v. Brown. C. A. D. C. Cir. Certiorari denied. Raphael G. Urciolo and Herman Miller for petitioner. Florence Wagman Roisman for respondent. No. 655. Davis v. Littell. C. A. 9th Cir. Certiorari denied. Laurence Davis, petitioner, pro se. Joseph S. Jenckes, Jr., for respondent. Reported below: 398 F. 2d 83. No. 656. Norman et al. v. United States. Ct. Cl. Certiorari denied. Richard L. Merrick for Norman et al., and Clifford A. Dougherty for Martin, petitioners. Solicitor General Griswold, Assistant Attorney General Weisl, and John C. Eldridge for the United States. Reported below: 183 Ct. Cl. 41, 392 F. 2d 255. No. 661. Shott v. Conroy, Trustee in Bankruptcy. C. A. 6th Cir. Certiorari denied. James G. Andrews, Jr., for petitioner. J. Vincent Aug and William H. Neiman for respondent. No. 664. Ransburg Electro-Coating Corp. v. Ionic Electrostatic Corp. C. A. 4th Cir. Certiorari denied. James P. Hume and Clyde F. Willian for petitioner. John S. McDaniel, Jr., for respondent. Reported below: 395 F. 2d 92. No. 666. Trice, Executrix v. Commercial Union Assurance Co., Ltd., et al. C. A. 6th Cir. Certiorari denied. Fyke Farmer for petitioner. Lon P. MacFar-land for respondents. Reported below: 397 F. 2d 889. No. 669. Ivancie v. Thornton, Attorney General of Oregon, et al. Sup. Ct. Ore. Certiorari denied. Floyd A. Fredrickson for petitioner. Reported below: 250 Ore. 550, 443 P. 2d 612. ORDERS. 1019 393 U. S. January 13, 1969. No. 674. Preston et al. v. United States Trust Co. of New York et al., Trustees, et al. C. A. 2d Cir. Certiorari denied. C. Dickerman Williams for petitioners. Louis L. Stanton, Jr., and Stanley F. Reed, Jr., for United States Trust Co. of New York et al., and Standish F. Medina for Hutchings et al., respondents. Reported below: 394 F. 2d 456. No. 677. Poprowski v. Immigration and Naturalization Service. C. A. 5th Cir. Certiorari denied. Robert Gerard Tardij for petitioner. Solicitor General Griswold for respondent. Reported below: 394 F. 2d 987. No. 678. Flambeau Plastics Corp. v. National Labor Relations Board et al. C. A. 7th Cir. Certiorari denied. Walter S. Davis for petitioner. Solicitor General Griswold, Arnold Ordman, Dominick L. Manoli, and Norton J. Come for National Labor Relations Board, and David Previant for Local No. 380, International Union, Allied Industrial Workers of America, AFL-CIO, respondents. Reported below: 401 F. 2d 128. No. 679. In re Shavin. Sup. Ct. Ill. Certiorari denied. Georye D. Crowley for petitioner. John Cad-walader Menk for Commissioners of the Supreme Court of Illinois in opposition to the petition. Reported below: 40 Ill. 2d 254, 239 N. E. 2d 790. No. 688. United Steelworkers of America v. CCI Corp. C. A. 10th Cir. Certiorari denied. Elliot Bred-hoff, Michael H. Gottesman, George H. Cohen, Chris Dixie, and Bernard Kleiman for petitioner. Carl D. Hall, Jr., for respondent. Reported below: 395 F. 2d 529. 320-583 0 - 69 - 60 1020 OCTOBER TERM, 1968. January 13, 1969. 393 U.S. No. 680. Byrd v. Lane, Warden, et al. C. A. 7th Cir. Certiorari denied. Ferdinand Samper for petitioner. John J. Dillon, Attorney General of Indiana, and John F. Davis, Deputy Attorney General, for respondents. Reported below: 398 F. 2d 750. No. 681. Jarboe Bros. Storage Warehouse, Inc. v. Allied Van Lines, Inc. C. A. 4th Cir. Certiorari denied. Howard G. Reamer for petitioner. Francis D. Murnaghan, Jr., and Joseph H. H. Kaplan for respondent. Reported below: 400 F. 2d 743. No. 685. Union Railway Co. v. Swift & Co. C. A. 6th Cir. Certiorari denied. Cooper Turner, Jr., for petitioner. Jack Petree for respondent. Reported below: 396 F. 2d 798. No. 686. Ball v. Florida. Dist. Ct. App. Fla., 3d Dist. Certiorari denied. Milton E. Grusmark for petitioner. Reported below: 207 So. 2d 492. No. 689. Famiano v. Enyeart et al. C. A. 7th Cir. Certiorari denied. Benjamin Riser for petitioner. Nathan Levy and George N. Beamer, Jr., for respondents. Reported below: 398 F. 2d 661. No. 690. Stoltzfus et ux. v. United States. C. A. 3d Cir. Certiorari denied. Converse Murdoch for petitioners. Solicitor General Griswold, Assistant Attorney General Rogovin, Joseph M. Howard, and John M. Brant for the United States. Reported below: 398 F. 2d 1002. No. 692. Deming National Bank v. Morrison Flying Service. C. A. 10th Cir. Certiorari denied. Benjamin M. Sherman for petitioner. John H. Risken for respondent. Reported below: 404 F. 2d 856. ORDERS. 1021 393 U. S. January 13, 1969. No. 693. Zakutansky et al. v. United States et al. C. A. 7th Cir. Certiorari denied. Bernard H. Sokol for petitioners. Solicitor General Griswold, Assistant Attorney General Rogovin, Joseph M. Howard, and John M. Brant for the United States et al. Reported below: 401 F. 2d 68. No. 695. International Brotherhood of Electrical Workers, Local Union No. 5 v. United States Equal Employment Opportunity Commission. C. A. 3d Cir. Certiorari denied. Loyal H. Gregg for petitioner. Solicitor General Griswold, Assistant Attorney General Pollak, and Russell Specter for respondent. Reported below: 398 F. 2d 248. No. 696. City of Miami Beach v. Kugel et ux. Dist. Ct. App. Fla., 3d Dist. Certiorari denied. Raphael Steinhardt for petitioner. Martin Greenbaum for respondents. Reported below: 206 So. 2d 282. No. 697. Romero et ux. v. Ten Eyck-Shaw, Inc. C. A. 9th Cir. Certiorari denied. Alfred C. Marquez for petitioners. Madison B. Graves for respondent. Reported below: 400 F. 2d 81. No. 700. Hunt v. United States. C. A. 5th Cir. Certiorari denied. Luther E. Jones, Jr., for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Roger A. Pauley for the United States. Reported below: 400 F. 2d 306. No. 702. Samuels v. United States. C. A. 5th Cir. Certiorari denied. Ben F. Foster and Gordon G. Hawn for petitioner. Solicitor General Griswold, Assistant Attorney General Rogovin, and Joseph M. Howard for the United States. Reported below: 398 F. 2d 964. 1022 OCTOBER TERM, 1968. January 13, 1969. 393 U. S. No. 694. Pagano v. Martin et al. C. A. 4th Cir. Certiorari denied. Robert M. Harcourt and Philip J. Hirschkop for petitioner. Solicitor General Griswold, Assistant Attorney General Weisl, John C. Eldridge, and Walter H. Fleischer for respondents. Reported below: 397 F. 2d 620. No. 707. Brotherhood of Locomotive Firemen & Enginemen et al. v. Chicago, Milwaukee, St. Paul & Pacific Railroad Co. C. A. 7th Cir. Certiorari denied. Alex Elson, Harold C. Heiss, Willard J. Lassers, and Aaron S. Wolff for petitioners. James P. Reedy for respondent. Reported below: 397 F. 2d 541. No. 710. Blackburn v. United States; and No. 723. Call v. United States. C. A. 4th Cir. Certiorari denied. Larry S. Moore and Julius A. Rousseau, Jr., for petitioner in No. 710, and Franklin Smith for petitioner in No. 723. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Paul C. Summitt for the United States in both cases. Reported below: No. 710, 401 F. 2d 574; No. 723, 401 F. 2d 540. No. 714. Estate of Talbott (Carver, Executor) v. Commissioner of Internal Revenue. C. A. 4th Cir. Certiorari denied. Walter E. Barton for petitioner. Solicitor General Griswold, Assistant Attorney General Rogovin, and Harry Baum for respondent. Reported below: 403 F. 2d 851. No. 725. Patriarca et al. v. United States. C. A. 1st Cir. Certiorari denied. Francis J. DiMento for petitioner Patriarca and Ronald J. Chisholm for petitioner Cassesso. Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg for the United States. Reported below: 402 F. 2d 314. ORDERS. 1023 393 U. S. January 13, 1969. No. 718. Dawson v. United States. C. A. 2d Cir. Certiorari denied. Benjamin Ungerman for petitioner. Solicitor General Griswold, Assistant Attorney General Rogovin, Joseph M. Howard, and John M. Brant for the United States. Reported below: 400 F. 2d 194. No. 721. Darlington Manufacturing Co. v. National Labor Relations Board et al. ; and No. 722. Deering Milliken, Inc., et al. v. National Labor Relations Board et al. C. A. 4th Cir. Certiorari denied. Thornton H. Brooks, Hugh B. Cox, Brice M. Clagett, and George V. Allen, Jr., for petitioner in No. 721, and Stuart N. Updike and John R. Schoe-mer, Jr., for petitioners in No. 722. Solicitor General Griswold, Arnold Ordman, Dominick L. Manoli, Norton J. Come, and Nancy M. Sherman for respondent National Labor Relations Board in both cases. Reported below: 397 F. 2d 760. No. 724. Marcus v. United States. C. A. 2d Cir. Certiorari denied. Marvin J. Bloch for petitioner. Solicitor General Griswold, Assistant Attorney General Rogovin, Joseph M. Howard, and John P. Burke for the United States. Reported below: 401 F. 2d 563. No. 727. Burgess v. United States. C. A. 4th Cir. Certiorari denied. Charles Fuller Blanchard for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Robert G. Maysack for the United States. Reported below: 402 F. 2d 85. No. 728. Clemens v. Central Railroad Co. of New Jersey et al. C. A. 3d Cir. Certiorari denied. Lawrence J. Richette for petitioner. Robert H. Kleeb for respondents. Reported below: 399 F. 2d 825. 1024 OCTOBER TERM, 1968. January 13, 1969. 393 U. S. No. 729. International Woodworkers of America, Local Union 3-3, AFL-CIO v. National Labor Relations Board. C. A. 9th Cir. Certiorari denied. Joseph L. Rauh, Jr., and John Silard for petitioner. Solicitor General Griswold, Arnold Ordman, Dominick L. Manoli, and Norton J. Come for respondent. James C. Dezendorf for Western Wirebound Box Co., defendant below, in opposition. No. 730. Shelton v. United States. C. A. D. C. Cir. Certiorari denied. Fred Blanton, Jr., for petitioner. Solicitor General Griswold, Assistant Attorney General Yeagley, Kevin T. Maroney, and Robert L. Keuch for the United States. Reported below: 131 U. S. App. D. C. 315, 404 F. 2d 1292. No. 737. Napue v. United States. C. A. 7th Cir. Certiorari denied. R. Eugene Pincham, Earl E. Strayhorn, Charles B. Evins, and Sam Adam for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg for the United States. Reported below: 401 F. 2d 107. No. 742. Transit Casualty Co. et al. v. Security Trust Co. et al. C. A. 5th Cir. Certiorari denied. Samuel J. Powers, Jr., and George P. Bowie for petitioners. James A. Dixon and Sam Daniels for respondent Security Trust Co., and John M. Allison for respondent Treasurer and Insurance Commissioner of Florida. Reported below: 396 F. 2d 803, 399 F. 2d 665. No. 747. Structural Laminates, Inc. v. Douglas Fir Plywood Assn. C. A. 9th Cir. Certiorari denied. Kenneth E. Roberts for petitioner. Alfred J. Schweppe and Arthur S. Langlie for respondent. Reported below: 399 F. 2d 155. ORDERS. 1025 393 U. S. January 13, 1969. No. 736. Cain, dba Cain’s Bar v. State Beverage Department of Florida et al. Sup. Ct. Fla. Certiorari denied. A. K. Black for petitioner. No. 743. Freeman v. United States. C. A. 6th Cir. Certiorari denied. Jack G. Day and Frank E. Haddad, Jr., for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg for the United States. Reported below: 400 F. 2d 992. No. 739. Morgan v. United States. C. A. 5th Cir. Certiorari denied. Joe J. Harrell for petitioner. Solicitor General Griswold for the United States. Reported below: 399 F. 2d 93. No. 746. Converse v. Udall, Secretary of the Interior. C. A. 9th Cir. Certiorari denied. William Braly Murray for petitioner. Solicitor General Griswold, Assistant Attorney General Martz, S. Billingsley Hill, and George R. Hyde for respondent. Reported below: 399 F. 2d 616. No. 751. Cannery Workers Union of the Pacific v. National Labor Relations Board. C. A. 9th Cir. Certiorari denied. Robert W. Gilbert and Louis A. Nissen for petitioner. Solicitor General Griswold, Arnold Ordman, Dominick L. Manoli, and Norton J. Come for respondent. Reported below: 396 F. 2d 955. No. 752. Milton Frank Allen Publications, Inc. v. Georgia Association of Petroleum Retailers, Inc. Sup. Ct. Ga. Certiorari denied. Lynwood A. Maddox for petitioner. James A. Mackay and Cleburne E. Gregory, Jr., for respondent. Reported below: 224 Ga. 518, 162 S. E. 2d 724. 1026 OCTOBER TERM, 1968. January 13, 1969. 393 U. S. No. 821. General Time Corp. v. Securities and Exchange Commission et al. C. A. 2d Cir. Certiorari denied. Edward R. Neaher and Paul G. Pennoy er, Jr., for petitioner. Walter L. Stratton, Breck P. McAllister, and Benjamin Vinar for respondent Talley Industries, Inc., Clendon H. Lee and Stanley L. Sobel for respondents American Investors Fund, Inc., et al. Reported below: 407 F. 2d 65. No. 633. Krebs et al. v. Ashbrook et al. C. A. D. C. Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Melvin L. Wulf, Philip J. Hirschkop, Arthur Kinoy, William M. Kunstler, and Jeremiah Gutman for petitioners. Solicitor General Griswold, Assistant Attorney General Yeagley, Kevin T. Maroney, and Lee B. Anderson for respondents. Reported below: ---------- U. S. App. D. C.----, 407 F. 2d 306. No. 709. Whitfield v. United States. C. A. 9th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Claude L. Rowe for petitioner. Solicitor General Griswold, As-sistant Attorney General Rogovin, Joseph M. Howard, and John M. Brant for the United States. Reported below: 401 F. 2d 480. No. 716. General Time Corp. v. Talley Industries, Inc., et al. C. A. 2d Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Edward R. Neaher and Paul G. Pennoy er, Jr., for petitioner. Walter L. Stratton and Benjamin Vinar for respondents Talley Industries, Inc., et al., and Clendon H. Lee and Stanley L. Sobel for respondent American Investors Fund, Inc. Reported below: 403 F. 2d 159. ORDERS. 1027 393 U. S. January 13, 1969. No. 754. Tarboro v. Reading Co. C. A. 3d Cir. Certiorari denied. Abraham E. Freedman and Avram G. Adler for petitioner. Levy Anderson for respondent. Reported below: 396 F. 2d 941. No. 636. Yeager, Principal Keeper v. Johnson et al. C. A. 3d Cir. Motion of respondents for leave to proceed in forma pauperis granted. Certiorari denied. A. Morton Shapiro for petitioner. Curtis R. Reitz, Stanford Shmukler, and M. Gene Haeberle for respondents. Reported below: 399 F. 2d 508. No. 657. San Jacinto Sand Co., Inc. v. Southwestern Bell Telephone Co. Ct. Civ. App. Tex., 14th Sup. Jud. Dist. Motion to enlarge record granted. Certiorari denied. Alvin Diamond for petitioner. David T. Searls for respondent. Reported below: 426 S. W. 2d 338. No. 667. Garner et ux. v. Commissioner of Internal Revenue. C. A. 6th Cir. Motion to dispense with printing petition granted. Certiorari denied. Solicitor General Griswold, for respondent. No. 711. Bartone v. United States. C. A. 6th Cir. Motion to dispense with printing petition granted. Certiorari denied. Arlene B. Steuer for petitioner. Solicitor General Griswold, Assistant Attorney General Rogovin, and Joseph M. Howard for the United States. Reported below: 400 F. 2d 459. No. 676. Genovese v. United States. C. A. 2d Cir. Certiorari denied. Mr. Justice Marshall took no part in the consideration or decision of this petition. Wilfred L. Davis for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Kirby W. Patterson for the United States. 1028 OCTOBER TERM, 1968. January 13, 1969. 393 U. S. No. 671. Leonard, Administratrix v. Wharton, Administrator. C. A. 4th Cir. Motion to dispense with printing petition granted. Certiorari denied. Reported below: 396 F. 2d 452. No. 683. Rose v. New Mexico. Sup. Ct. N. M. Motion to dispense with printing petition granted. Certiorari denied. Dean Zinn for petitioner. Reported below: 79 N. M. 277, 442 P. 2d 589. No. 682. Ditto v. City of Chicago et al. App. Ct. Ill., 1st Dist. Certiorari denied. Mr. Justice Black and Mr. Justice Douglas are of the opinion that certiorari should be granted. Richard F. Watt and Stanley A. Bass for petitioner. Raymond F. Simon and Robert E. Wiss for respondents. Reported below: 86 Ill. App. 2d 340, 230 N. E. 2d 41. No. 16, Mise. Walker v. Michigan. Sup. Ct. Mich. Certiorari denied. Frank J. Kelley, Attorney General of Michigan, Robert A. Derengoski, Solicitor General, and Stewart H. Freeman, Assistant Attorney General, for respondent. No. 201, Mise. McCullough v. United States. C. A. 3d Cir. Certiorari denied. Charles Jay Bogdanofj for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Paul C. Summitt for the United States. Reported below: 389 F. 2d 563. No. 317, Mise. Mixon v. California. Ct. App. Cal., 4th App. Dist. Certiorari denied. Thomas C. Lynch, Attorney General of California, William E. James, Assistant Attorney General, and Edmond B. Marner, Deputy Attorney General, for respondent. ORDERS. 1029 393 U. S. January 13, 1969. No. 349, Mise. Menendez v. United States. C. A. 5th Cir. Certiorari denied. John Paul Howard for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Marshall Tamor Golding for the United States. Reported below: 393 F. 2d 312. No. 354, Mise. Krug v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. Thomas C. Lynch, Attorney General of California, Doris H. Maier, Assistant Attorney General, and Edward A. Hinz, Jr., Deputy Attorney General, for respondent. Reported below: 256 Cal. App. 2d 219, 63 Cal. Rptr. 813. No. 362, Mise. Bradley v. Florida. Dist. Ct. App. Fla., 2d Dist. Certiorari denied. Earl Faircloth, Attorney General of Florida, and William D. Roth, Assistant Attorney General, for respondent. Reported below: 206 So. 2d 657. No. 376, Mise. Lacey v. United States. C. A. 2d Cir. Certiorari denied. John F. X. Peloso for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Roger A. Pauley for the United States. Reported below: 395 F. 2d 881. No. 383, Mise. Holsen v. United States. C. A. 5th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg for the United States. Reported below: 392 F. 2d 292. No. 643, Mise. Bailey et al. v. New York. App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied. John M. Linsenmeyer for petitioners. Elliott Golden and Frank Di Laila for respondent. 1030 OCTOBER TERM, 1968. January 13, 1969. 393 U.S. No. 394, Mise. Oliveri v. Iowa. Sup. Ct. Iowa. Certiorari denied. Richard C. Turner, Attorney General of Iowa, and James C. Sell, Assistant Attorney General, for respondent. Reported below: -------- Iowa -----, 156 N. W. 2d 688. No. 455, Mise. Moore, aka Louis v. United States. C. A. 5th Cir. Certiorari denied. Ralph L. Crawjord for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Mervyn Hamburg for the United States. Reported below: 394 F. 2d 818. No. 495, Mise. Zamora v. California. Sup. Ct. Cal. Certiorari denied. Thomas C. Lynch, Attorney General of California, and Edsel W. Haws and Roger E. Venturi, Deputy Attorneys General, for respondent. No. 555, Mise. Mack v. Walker, Warden. C. A. 5th Cir. Certiorari denied. James Domengeaux for petitioner. Jack P. F. Gremillion, Attorney General of Louisiana, for respondent. Reported below: 372 F. 2d 170. No. 557, Mise. Tyler v. Beto, Corrections Director. C. A. 5th Cir. Certiorari denied. Crawjord C. Martin, Attorney General of Texas, Nola White, First Assistant Attorney General, and Robert C. Flowers and Lonny F. Zwiener, Assistant Attorneys General, for respondent. Reported below: 391 F. 2d 993. No. 563, Mise. Carlton v. United States. C. A. 9th Cir. Certiorari denied. Frank A. Bauman for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Edward Fenig for the United States. Reported below: 395 F. 2d 10. ORDERS. 1031 393 U. S. January 13, 1969. No. 565, Mise. Hendrickson v. United States. C. A. 6th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Edward Fenig for the United States. Reported below: 394 F. 2d 807. No. 569, Mise. Tolever v. Smith, Warden. Sup. Ct. Ga. Certiorari denied. Reuben A. Garland for petitioner. Arthur K. Bolton, Attorney General of Georgia, Marion 0. Gordon and Mathew Robins, Assistant Attorneys General, and Courtney Wilder Stanton, Deputy Assistant Attorney General, for respondent. Reported below: 224 Ga. 270, 161 S. E. 2d 266. No. 603, Mise. Miller v. United States. C. A. 8th Cir. Certiorari denied. Solicitor General Griswold, As-sistant Attorney General Vinson, Jerome M. Feit, and Mervyn Hamburg for the United States. Reported below: 396 F. 2d 492. No. 610, Mise. Mendez v. California. Sup. Ct. Cal. Certiorari denied. Thomas C. Lynch, Attorney General of California, William E. James, Assistant Attorney General, and & Clark Moore, Deputy Attorney General, for respondent. No. 650, Mise. Barofsky v. General Electric Corp. C. A. 9th Cir. Certiorari denied. William H. Pavitt, Jr., for petitioner. Ford W. Harris, Jr., and Thomas A. Briody for respondent. Reported below: 396 F. 2d 340. No. 655, Mise. Bauerlien v. Warden, Maryland Penitentiary. C. A. 4th Cir. Certiorari denied. No. 657, Mise. Price v. Virginia. Sup. Ct. App. Va. Certiorari denied. 1032 OCTOBER TERM, 1968. January 13, 1969. 393 U. S. No. 670, Mise. Tinch v. United States. C. A. D. C. Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, and Jerome M. Feit for the United States. No. 684, Mise. Boykin v. United States. C. A. 3d Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, and Jerome M. Feit for the United States. Reported below: 398 F. 2d 483. No. 719, Mise. Lewis v. United States. C. A. 6th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, and Jerome M. Feit for the United States. No. 728, Mise. Retolaza v. United States. C. A. 4th Cir. Certiorari denied. H. Thomas Howell for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, and Jerome M. Feit for the United States. Reported below: 398 F. 2d 235. No. 735, Mise. Hopkins v. United States. C. A. 9th Cir. Certiorari denied. Solicitor General Griswold for the United States. No. 736, Mise. Nelson v. Craven, Warden. C. A. 9th Cir. Certiorari denied. No. 759, Mise. Wolenski v. Shovlin, State Hospital Superintendent. C. A. 3d Cir. Certiorari denied. No. 764, Mise. Llanes v. United States. C. A. 2d Cir. Certiorari denied. Murray M. Segal for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Jerome M. Feit, and Ronald L. Gainer for the United States. Reported below: 398 F. 2d 880. ORDERS. 1033 393 U. S. January 13, 1969. No. 779, Mise. Hart v. United States. C. A. 8th Cir. Certiorari denied. Joseph J. De Raad for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Jerome M. Feit, and Roger A. Pauley for the United States. Reported below: 396 F. 2d 243. No. 782, Mise. Hill v. United States. C. A. 5th Cir. Certiorari denied. John S. Tucker, Jr., for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Jerome M. Feit, and Robert G. Maysack for the United States. Reported below: 395 F. 2d 694. No. 791, Mise. Peabody v. United States. C. A. 9th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, and Philip R. Monahan for the United States. Reported below: 394 F. 2d 175. No. 796, Mise. Yant v. Blackwell, Warden. C. A. 5th Cir. Certiorari denied. Solicitor General Griswold for respondent. Reported below: 396 F. 2d 808. No. 803, Mise. Webb v. Comstock, Conservation Center Superintendent. C. A. 9th Cir. Certiorari denied. No. 806, Mise. Arnold v. Hendrick, County Prisons Superintendent. C. A. 3d Cir. Certiorari denied. No. 808, Mise. Birrell v. Herlands, U. S. District Judge. C. A. 2d Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg for respondent. Reported below: 399 F. 2d 343. No. 835, Mise. Dooner v. Buckman, State Hospital Director. Ct. App. N. Y. Certiorari denied. 1034 OCTOBER TERM, 1968. January 13, 1969. 393 U.S. No. 811, Mise. Lupino v. United States. C. A. 8th Cir. Certiorari denied. Solicitor General Griswold for the United States. No. 817, Mise. Colavecchio et al. v. Ohio. Ct. App. Ohio, Cuyahoga County. Certiorari denied. James R. Willis for petitioners. John T. Corrigan for respondent. No. 819, Mise. Hamlett v. United States. C. A. D. C. Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, Jerome M. Feit, and Edward Fenig for the United States. No. 820, Mise. Williams v. United States. C. A. 9th Cir. Certiorari denied. Solicitor General Griswold for the United States. Reported below: 399 F. 2d 492. No. 830, Mise. Strickland v. Cohen, Secretary of Health, Education, and Welfare. C. A. 4th Cir. Certiorari denied. John B. Culbertson for petitioner. Solicitor General Griswold for respondent. Reported below: 396 F. 2d 954. No. 832, Mise. Blakey v. United States. C. A. D. C. Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, Jerome M. Feit, and Edward Fenig for the United States. No. 833, Mise. Bumpus v. Massachusetts. Sup. Jud. Ct. Mass. Certiorari denied. William. P. Homans, Jr., for petitioner. Howard M. Miller, Assistant Attorney General of Massachusetts, and Bruce G. McNeill, Deputy Assistant Attorney General, for respondent. No. 837, Mise. Henderson v. Pennsylvania et al. C. A. 3d Cir. Certiorari denied. 1035 ORDERS. 393 U. S. January 13, 1969. No. 842, Mise. McCloskey v. Boslow, Institution Director. Ct. Sp. App. Md. Certiorari denied. Reported below: 4 Md. App. 581, 244 A. 2d 463. No. 846, Mise. Bond v. United States. C. A. 10th Cir. Certiorari denied. James R. West for petitioner. Solicitor General Griswold for the United States. Reported below: 397 F. 2d 162. No. 848, Mise. Woodside v. Florida. Sup. Ct. Fla. Certiorari denied. No. 849, Mise. Tortorice v. New York. App. Div., Sup. Ct. N. Y., 4th Jud. Dept. Certiorari denied. Michael F. Dillon for respondent. No. 852, Mise. Hibbert v. New York City Transit Authority. App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied. Herman Adlerstein for petitioner. Helen R. Cassidy for respondent. No. 854, Mise. Furlong v. Walker. C. A. 3d Cir. Certiorari denied. No. 856, Mise. Leeman v. United States. C. A. 8th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Edward F enig for the United States. Reported below: 398 F. 2d 835. No. 862, Mise. Zimmerman v. Warden, Maryland House of Correction. Ct. Sp. App. Md. Certiorari denied. No. 863, Mise. Wurtzburger v. New York. App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied. Leon B. Polsky for petitioner. 320-583 0 - 69 - 61 1036 OCTOBER TERM, 1968. January 13, 1969. 393 U. S. No. 864, Mise. Larson v. Bennett, Warden. Sup. Ct. Iowa. Certiorari denied. Reported below: ---------- Iowa-----, 160 N. W. 2d 303. No. 868, Mise. New England Enterprises, Inc., et al. v. United States. C. A. 1st Cir. Certiorari denied. Stanley M. Brown for petitioners. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Roger A. Pauley for the United States. Reported below: 400 F. 2d 58. No. 870, Mise. Clark v. United States. C. A. 9th Cir. Certiorari denied. Solicitor General Griswold, As-sistant Attorney General Vinson, Jerome M. Feit, and Robert G. Maysack for the United States. Reported below: 400 F. 2d 83. No. 872, Mise. McCarthy v. New York. App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied. No. 873, Mise. Watkins v. Wisconsin. Sup. Ct. Wis. Certiorari denied. Reported below: 39 Wis. 2d 718, 159 N. W. 2d 675. No. 874, Mise. Lent v. New York. App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied. No. 876, Mise. Johnson v. New York et al. C. A. 2d Cir. Certiorari denied. No. 878, Mise. Boyden v. Curtis, U. S. District Judge. C. A. 9th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, Jerome M. Feit, and Robert G. May sack for respondent. No. 882, Mise. Bracamonte v. Field, Men's Colony Superintendent. Sup. Ct. Cal. Certiorari denied. ORDERS. 1037 393 U. S. January 13, 1969. No. 879, Mise. Norman v. Michigan. Sup. Ct. Mich. Certiorari denied. Frank J. Kelley, Attorney General of Michigan, Robert A. Derengoski, Solicitor General, and James J. Wood, Assistant Attorney General, for respondent. No. 880, Mise. Desroche v. Liberty Mutual Insurance Co. et al. Sup. Ct. La. Certiorari denied. Floyd J. Reed for petitioner. Robert B. Acomb, Jr., for respondents. No. 881, Mise. Alaway v. United States. C. A. 9th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, Jerome M. Feit, and Edward Fenig for the United States. No. 885, Mise. Snell v. Simpson, Warden. Sup. Ct. Ala. Certiorari denied. No. 888, Mise. Norman v. Chambers, U. S. Circuit Judge, et al. C. A. 9th Cir. Certiorari denied. Solicitor General Griswold for respondents. No. 889, Mise. Paulekas v. Clark, Attorney General, et al. C. A. 9th Cir. Certiorari denied. Norman Leonard for petitioner. Solicitor General Griswold for respondents. No. 890, Mise. Carlin v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. Reported below: 261 Cal. App. 2d 30, 67 Cal. Rptr. 557. No. 891, Mise. Wilson v. Procunier, Corrections Director, et al. C. A. 9th Cir. Certiorari denied. No. 892, Mise. Lewis v. California Department of Corrections. C. A. 9th Cir. Certiorari denied. 1038 OCTOBER TERM, 1968. January 13, 1969. 393 U.S. No. 893, Mise. Baskin v. Tourlentes et al. C. A. 7th Cir. Certiorari denied. William G. Clark, Attorney General of Illinois, John J. O’Toole, Assistant Attorney General, and Stuart D. Perlman, Special Assistant Attorney General, for Tourlentes et al., and Sheldon P. Migdal for Carson et al., respondents. No. 895, Mise. Shaird v. New York. App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied. No. 899, Mise. Hofler v. Spearin, Preston & Burrows, Inc., et al., dba Spearin-Tully. App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied. Morton Alpert for petitioner. Emil V. Pilz and George Foster Mackey for respondents. No. 900, Mise. Hill v. California. C. A. 9th Cir. Certiorari denied. No. 902, Mise. Owens v. United States. C. A. 5th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg for the United States. No. 904, Mise. Pinkney v. Koret of California et al. Ct. App. Cal., 1st App. Dist. Certiorari denied. Everett A. Corten for respondent Workmen’s Compensation Appeals Board of California. No. 906, Mise. Elliott v. Oregon. Sup. Ct. Ore. Certiorari denied. No. 918, Mise. Tarrance v. Louisiana. Sup. Ct. La. Certiorari denied. G. Wray Gill, Sr., and George M. Leppert for petitioner. Reported below: 252 La. 396, 211 So. 2d 304. ORDERS. 1039 393 U. S. January 13, 1969. No. 908, Mise. Miller v. Follette, Warden. C. A. 2d Cir. Certiorari denied. Reported below: 397 F. 2d 363. No. 911, Mise. Riffon v. New York. App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied. No. 914, Mise. Cammann v. Burke, U. S. District Judge, et al. C. A. 9th Cir. Certiorari denied. No. 915, Mise. Furtak v. New York. Ct. App. N. Y. Certiorari denied. No. 916, Mise. Knaub v. Alaska. Sup. Ct. Alaska. Certiorari denied. Reported below: 443 P. 2d 44. No. 917, Mise. Nassar v. Massachusetts. Sup. Jud. Ct. Mass. Certiorari denied. William P. Homans, Jr., for petitioner. Elliot L. Richardson, Attorney General of Massachusetts, John J. Jennings, Special Assistant Attorney General, Howard M. Miller, Assistant Attorney General, Wilmot R. Hastings, First Assistant Attorney General, and John M. Finn, Deputy Assistant Attorney General, for respondent. Reported below: 354 Mass. 249, 237 N. E. 2d 39. No. 920, Mise. Stevens v. Alaska. Sup. Ct. Alaska. Certiorari denied. Reported below: 443 P. 2d 600. No. 922, Mise. Martin v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 925, Mise. Waller v. California. Ct. App. Cal., 1st App. Dist. Certiorari denied. No. 927, Mise. Mace v. Missouri. Sup. Ct. Mo. Certiorari denied. Reported below: 427 S. W. 2d 507. 1040 OCTOBER TERM, 1968. January 13, 1969. 393 U. S. No. 910, Mise. Delaney v. Gladden, Warden. C. A. 9th Cir. Certiorari denied. Reported below: 397 F. 2d 17. No. 928, Mise. McCrimmon v. Pate, Warden. C. A. 7th Cir. Certiorari denied. No. 930, Mise. Catlett v. Beto, Corrections Director. C. A. 5th Cir. Certiorari denied. No. 931, Mise. Dorsey v. United States. C. A. D. C. Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Roger A. Pauley for the United States. No. 932, Mise. Hart v. Maroney, Correctional Superintendent. C. A. 3d Cir. Certiorari denied. No. 933, Mise. Keplinger v. Maryland. Ct. Sp. App. Md. Certiorari denied. No. 935, Mise. Ward v. Oklahoma. Ct. Crim. App. Okla. Certiorari denied. No. 941, Mise. Magee v. California et al. C. A. 9th Cir. Certiorari denied. No. 942, Mise. Peacock v. United States. C. A. 6th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg for the United States. Reported below: 400 F. 2d 992. No. 957, Mise. Evans v. United States Veterans Administration Hospital. C. A. 2d Cir. Certiorari denied. Solicitor General Griswold for respondent. Reported below: 391 F. 2d 261. 1041 ORDERS. 393 U. S. January 13, 1969. No. 944, Mise. Jackson v. Pinto, Prison Farm Superintendent, et al. C. A. 3d Cir. Certiorari denied. No. 945, Mise. Piche v. Washington. Sup. Ct. Wash. Certiorari denied. Reported below: 74 Wash. 2d 9, 442 P. 2d 632. No. 948, Mise. Murray v. Macy, Chairman, U. S. Civil Service Commission, et al. C. A. 5th Cir. Certiorari denied. Guy Sparks, Melvin L. Wulf, Charles Morgan, Jr., and Reber F. Boult, Jr., for petitioner. Solicitor General Griswold, Assistant Attorney General Weisl, and Alan S. Rosenthal for respondents. No. 950, Mise. Smiley v. Pregerson et al. C. A. 9th Cir. Certiorari denied. No. 954, Mise. Owens v. Field, Men’s Colony Superintendent. Sup. Ct. Cal. Certiorari denied. No. 955, Mise. Burchfield v. New York. Ct. App. N. Y. Certiorari denied. No. 958, Mise. Elliott v. Alabama. Sup. Ct. Ala. Certiorari denied. Reported below: 283 Ala. 67, 214 So. 2d 420. No. 961, Mise. Anderten v. Erickson, Warden. Sup. Ct. S. D. Certiorari denied. No. 962, Mise. Akin v. Board of Education of Riverside Unified School District. Ct. App. Cal., 4th App. Dist. Certiorari denied. A. L. Wirin, Fred Okrand, and Laurence R. Sperber for petitioner. Reported below: 262 Cal. App. 2d 161, 68 Cal. Rptr. 557. 1042 OCTOBER TERM, 1968. January 13, 1969. 393 U. S. No. 965, Mise. Aldabe v. Aldabe. Sup. Ct. Nev. Certiorari denied. Paul A. Richards for respondent. Reported below: ---Nev.-----, 441 P. 2d 691. No. 970, Mise. Bickman v. Pate, Warden. C. A. 7th Cir. Certiorari denied. No. 972, Mise. Pipkin v. New Jersey. Sup. Ct. N. J. Certiorari denied. No. 974, Mise. Carter v. Texas. Ct. Crim. App. Tex. Certiorari denied. Emmett Colvin, Jr., for petitioner. Reported below: 431 S. W. 2d 8. No. 975, Mise. Peele v. North Carolina. Sup. Ct. N. C. Certiorari denied. Jerry C. Wilson for petitioner. Thomas Wade Bruton, Attorney General of North Carolina, Harry W. McGalliard, Deputy Attorney General, and Millard R. Rich, Jr., Assistant Attorney General, for respondent. Reported below: 274 N. C. 106, 161 S. E. 2d 568. No. 983, Mise. Sawyer v. Department of Correction et al. C. A. 4th Cir. Certiorari denied. No. 989, Mise. Williamson v. California. Ct. App. Cal., 3d App. Dist. Certiorari denied. No. 1000, Mise. Hatcher v. Wainwright, Corrections Director. Sup. Ct. Fla. Certiorari denied. No. 1008, Mise. Schiavoni, Administrator v. Honus Wagner Co. C. A. 3d Cir. Certiorari denied. Harry Alan Sherman for petitioner. Reported below: 396 F. 2d 757. 1043 ORDERS. 393 U. S. January 13, 1969. No. 1002, Mise. Chandler v. California. Ct. App. Cal., 1st App. Dist. Certiorari denied. Reported below: 262 Cal. App. 2d 350, 68 Cal. Rptr. 645. No. 1007, Mise. Vacca v. Field, Men’s Colony Superintendent. Sup. Ct. Cal. Certiorari denied. No. 1009, Mise. Nathaniel v. Texas. Dist. Ct. Brazoria County, Tex., 23d Jud. Dist. Certiorari denied. No. 1011, Mise. Argo v. Simpson, Warden. C. A. 5th Cir. Certiorari denied. No. 1012, Mise. Kroll v. United States. C. A. 3d Cir. Certiorari denied. Solicitor General Griswold for the United States. Reported below: 402 F. 2d 221. No. 1013, Mise. Perez v. New York. App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied. No. 1016, Mise. Brown v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 1028, Mise. Mayberry v. New Jersey. Sup. Ct. N. J. Certiorari denied. Richard Newman for petitioner. Reported below: 52 N. J. 413, 245 A. 2d 481. No. 397, Mise. Prendez v. Craven, Warden. C. A. 9th Cir. Certiorari denied. Mr. Justice Brennan and Mr. Justice Stewart are of the opinion that certiorari should be granted, the judgment vacated, and the case remanded for further consideration in light of Peyton v. Rowe, 391 U. S. 54. Thomas C. Lynch, Attorney General of California, Doris H. Maier, Assistant Attorney General, and Edward A. Hinz, Jr., Deputy Attorney General, for respondent. 1044 OCTOBER TERM, 1968. January 13, 1969. 393 U. S. No. 1017, Mise. Klechka v. Texas. Ct. Crim. App. Tex. Certiorari denied. No. 1025, Mise. Grant v. California. Sup. Ct. Cal. Certiorari denied. No. 422, Mise. Forney v. Nebraska. Sup. Ct. Neb. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. James A. Lake for petitioner. Clarence A. H. Meyer, Attorney General of Nebraska, and Harold Mosher, Assistant Attorney General, for respondent. Reported below: 182 Neb. 802, 157 N. W. 2d 403. No. 572, Mise. McWilliams v. United States. C. A. 8th Cir. Motion to remand and petition for writ of certiorari denied. Mr. Justice Marshall took no part in the consideration or decision of this motion and petition. Bernard J. Mellman for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, and Philip R. Monahan for the United States. Reported below: 394 F. 2d 41. No. 743, Mise. Gray v. United States. C. A. D. C. Cir. Certiorari denied. Mr. Justice Marshall took no part in the consideration or decision of this petition. Solicitor General Griswold, Assistant Attorney General Vinson, Jerome M. Feit, and Edward Fenig for the United States. No. 884, Mise. Cachoian v. United States. C. A. 2d Cir. Motion for leave to supplement petition granted. Certiorari denied. Mr. Justice Marshall took no part in the consideration or decision of this motion and petition. Solicitor General Griswold, Assistant Attorney General Vinson, and Jerome M. Feit for the United States. ORDERS. 1045 393 U. S. January 13, 1969. No. 924, Mise. Cunningham v. Maroney, Correctional Superintendent. C. A. 3d Cir. Certiorari and other relief denied. Reported below: 397 F. 2d 724. Rehearing Denied. No. 131. Palmieri v. Florida, ante, p. 218; No. 423. Baratta v. United States, ante, p. 939; No. 443. Pennsylvania Public Utility Commission v. Bessemer & Lake Erie Railroad Co. et al., ante, p. 959; No. 519. Hayutin v. United States, ante, p. 961; No. 521. Dreyfus v. Michael Reese Hospital & Medical Center, ante, p. 961; No. 560. Arnold Constable Corp. v. Eudowood Shopping Center, Inc., ante, p. 979; No. 567. Nash v. United States, ante, p. 961; No. 36, Mise. King v. Tennessee, ante, p. 863; No. 62, Mise. Ussery et al. v. United States, ante, p. 866; No. 521, Mise. Failla v. California et al., ante, p. 926; No. 704, Mise. Perez v. Crouse, Warden, ante, p. 988; and No. 740, Mise. Beltowski v. Minnesota, ante, p. 988. Petitions for rehearing denied. No. 16. Brotherhood of Locomotive Firemen & Enginemen et al. v. Chicago, Rock Island & Pacific Railroad Co. et al., ante, p. 129; No. 18. Hardin, Prosecuting Attorney, et al. v. Chicago, Rock Island & Pacific Railroad Co. et al., ante, p. 129; and No. 558. Pennington et al. v. United Mine Workers of America, ante, p. 983. Petitions for rehearing denied. Mr. Justice Fortas took no part in the consideration or decision of these petitions. 1046 OCTOBER TERM, 1968. January 13, 17, 20, 1969. 393 U.S. No. 374. Totton, dba Totton & Dunn Co. v. Local 43, United Association of Journeymen & Apprentices of Plumbing & Pipe Fitting Industry of the United States & Canada, ante, p. 915; No. 394. Huckaby v. United States, ante, p. 933; No. 576. Huckaby v. United States, ante, p. 938; No. 472. Garrett et al. v. United States, ante, p. 952; and No. 692, Mise. Creighbaum v. Burke, Warden, ante, p. 955. Motions for leave to file petitions for rehearing denied. No. 568. Quinn v. United States, ante, p. 983. Petition for rehearing denied. Mr. Justice Marshall took no part in the consideration or decision of this petition. January 17, 1969. Dismissals Under Rule 60. No. 48. Julian Messner, Inc., et al. v. Spahn. Appeal from Ct. App. N. Y. Appeal dismissed pursuant to Rule 60 of the Rules of this Court. Selig J. Levitan for appellants. Frederic A. Johnson for appellee. [For earlier order herein, see ante, p. 818. j No. 825. Clifford, Secretary of Defense, et al. v. Faulkner. Appeal from D. C. E. D. N. Y. Appeal dismissed pursuant to Rule 60 of the Rules of this Court. Solicitor General Griswold, Assistant Attorney General Weisl, Morton Hollander, and Robert V. Zener for appellants. Stanley Faulkner for appellee. Reported below: 289 F. Supp. 895. January 20, 1969. Miscellaneous Orders. No. 582. Continental Casualty Co. et al. v. Robertson Lumber Co. Appeal from Sup. Ct. N. D. The Solicitor General is invited to file a brief in this case expressing the views of the United States. ORDERS. 1047 393 U. S. January 20, 1969. No. 580. Samuels et al. v. Mackell, District Attorney of Queens County, et al. ; and No. 813. Fernandez v. Mackell, District Attorney of Queens County, et al. Appeals from D. C. S. D. N. Y. [Probable jurisdiction noted, ante, p. 975.] Joint motion of appellants to enlarge time for oral argument of these consolidated cases granted, and 15 additional minutes allotted for that purpose. Counsel for appellees likewise allotted 15 additional minutes for oral argument. Victor Rabinowitz for Samuels et al. in No. 580, and Eleanor Jackson Piel for Fernandez in No. 813, on the motion. No. 670. Banks v. California. Ct. App. Cal., 1st App. Dist. Motion of respondent to dispense with printing record denied. Thomas C. Lynch, Attorney General of California, and Edward P. O’Brien, Deputy Attorney General, on the motion. Thomas J. Klitgaard for petitioner in opposition. [For previous orders herein, see, e. g., ante, p. 931.] No. 1014, Mise. Hendrix v. Blackwell, Warden; No. 1129, Mise. Smith v. Page, Warden, et al.; No. 1132, Mise. Fossum v. Porter, Sheriff; and No. 1168, Mise. White v. Warden, Maryland Penitentiary. Motions for leave to file petitions for writs of habeas corpus denied. Certiorari Granted. No. 791. Crane v. Cedar Rapids & Iowa City Railway Co. Sup. Ct. Iowa. Certiorari granted. E. Barrett Pretty man, Jr., for petitioner. William M. Dallas and John F. Gaston for respondent. Reported below: ---Iowa------, 160 N. W. 2d 838. 1048 OCTOBER TERM, 1968. January 20, 1969. 393 U.S. No. 830. Noyd v. Bond et al. C. A. 10th Cir. Certiorari granted. Stay heretofore granted by Mr. Justice Douglas shall remain in effect pending issuance of judgment of this Court or until further order of this Court. Marvin M. Karpatkin, Melvin L. Wulf, and William F. Reynard for petitioner. Solicitor General Griswold for respondents. Reported below: 402 F. 2d 441. Certiorari Denied. No. 161. Choctaw Nation et al. v. Atchison, Topeka & Santa Fe Railway Co. et al. C. A. 10th Cir. Certiorari denied. J. D. McLaughlin for petitioners. Streeter B. Flynn for respondents Atchison, Topeka & Santa Fe Railway Co. et al. Solicitor General Griswold filed a memorandum for the United States, as amicus curiae, by invitation of the Court, ante, p. 922, in opposition. Reported below: 396 F. 2d 578, 582, 583. No. 542. Dugas v. Louisiana. Sup. Ct. La. Certiorari denied. Sam J. D’Amico for petitioner. Jack P. F. Gremillion, Attorney General of Louisiana, and Ralph L. Roy for respondent. Reported below: 252 La. 345, 211 So. 2d 285. No. 712. International Association of Machinists v. Brady; No. 713. Trans World Airlines, Inc. v. Brady; and No. 735. Brady v. Trans World Airlines, Inc., et al. C. A. 3d Cir. Certiorari denied. Edward J. Hickey, Jr., and James L. Highsaw, Jr., for petitioner in No. 712 and for respondent International Association of Machinists in No. 735. Harold L. Warner, Jr., and Carl S. Rowe for petitioner in No. 713. Morris Duane for petitioner in No. 735 and for respondent in Nos. 712 and 713. Reported below: 401 F. 2d 87. 1049 ORDERS. 393 U. S. January 20, 1969. No. 757. Welch et al. v. Leavey, Deputy Commissioner, Bureau of Employees’ Compensation, U. S. Department of Labor, et al. C. A. 5th Cir. Certiorari denied. W. Jiles Roberts for petitioners. Solicitor General Griswold, Assistant Attorney General Weisl, and Morton Hollander for Leavey, and E. D. Vickery for Atlantic & Gulf Stevedores, Inc., et al., respondents. Reported below: 397 F. 2d 189. No. 758. John Langenbacher Co., Inc. v. National Labor Relations Board. C. A. 2d Cir. Certiorari denied. Algernon M. Miller for petitioner. Solicitor General Griswold and Arnold Ordman for respondent. Reported below: 398 F. 2d 459. No. 759. Intertype Co., a Division of Harris-Intertype Corp. v. National Labor Relations Board. C. A. 4th Cir. Certiorari denied. Kenneth C. Mc-Guiness and Flournoy L. Largent, Jr., for petitioner. Solicitor General Griswold, Arnold Ordman, Dominick L. Manoli, and Norton J. Come for respondent. Reported below: 401 F. 2d 41. No. 761. Beaty et al. v. M. S. Steel Co., Inc. C. A. 4th Cir. Certiorari denied. Eugene A. Alexander III for petitioners. Patrick A. O’Doherty and Hamilton O’Dunne for respondent. Reported below: 401 F. 2d 157. No. 760. Hession et ux. v. Pennsylvania. Sup. Ct. Pa. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. W. Bradley Ward, and Samuel D. Slade for petitioners. William C. Sennett, Attorney General of Pennsylvania, and Robert W. Cunliffe, Assistant Attorney General, for respondent. Reported below: 430 Pa. 273, 242 A. 2d 432. 1050 OCTOBER TERM, 1968. January 20, 1969. 393 U. S. No. 766. Lea et al., trading as Harry R. Lea & Co. v. Consolidated Sun Ray, Inc., et al. C. A. 3d Cir. Certiorari denied. Arthur R. Littleton for petitioners. Robert H. Malis for respondents. Reported below: 401 F. 2d 650. No. 767. Delta Theatres, Inc. v. Paramount Pictures, Inc., et al. C. A. 5th Cir. Certiorari denied. C. Ellis Henican for petitioner. Harry McCall, Jr., and Ashton Phelps for respondents. Reported below: 398 F. 2d 323. No. 768. Croll-Reynolds Co., Inc., et al. v. Perini-Leavell-Jones-Vinell et al. C. A. 5th Cir. Certiorari denied. Jennings Bailey, Jr., and Nelson Littell, Jr., for petitioners. William A. Denny for respondents. Reported below: 399 F. 2d 913. No. 771. Orsini v. Reincke, Warden. C. A. 2d Cir. Certiorari denied. Igor I. Sikorsky, Jr., for petitioner. Reported below: 397 F. 2d 977. No. 774. Brotherhood of Locomotive Firemen & Enginemen et al. v. Louisville & Nashville Railroad Co. et al. C. A. 6th Cir. Certiorari denied. Alex Elson, Willard J. Lassers, Aaron S. Wolff, Herbert L. Segal, Harold C. Heiss, Russell Day, and Robert E. Hogan for petitioners. John P. Sandidge, Joseph L. Lenihan, Marvin D. Joyces, and David M. Yearwood for Louisville & Nashville Railroad Co., and Harold A. Ross and Charles I. Dawson for Brotherhood of Locomotive Engineers, respondents. Reported below: 400 F. 2d 572. No. 762. Kimbrell v. Lawrence County Bar Assn, et al. C. A. 6th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. 1051 ORDERS. 393 U. S. January 20, 1969. No. 769. City of Amarillo et al. v. Eakens et al., Trustees. C. A. 5th Cir. Certiorari denied. C. J. Taylor, Jr., and R. A. Wiison for petitioners. Stephen P. Killough for respondents. Reported below: 399 F. 2d 541. No. 775. Brown v. New York. App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied. Ronald Podolsky for petitioner. No. 779. Garrison v. Alabama. Ct. App. Ala. Certiorari denied. Roscoe B. Hogan for petitioner. MacDonald Gallion, Attorney General of Alabama, and Robert P. Bradley, Assistant Attorney General, for respondent. Reported below: 44 Ala. App. 463, 213 So. 2d 369. No. 786. Wilcox Manufacturing Co. v. Jeffrey Galion Manufacturing Co. C. A. 4th Cir. Certiorari denied. John W. Malley and William T. Bullinger for petitioner. William H. Webb, John M. Webb, and David Young for respondent. Reported below: 400 F. 2d 960. No. 789. Snyder et al. v. City of Boulder. C. A. 10th Cir. Certiorari denied. Anthony F. Zarlengo for petitioners. Reported below: 396 F. 2d 853. No. 559. California v. Johnson. Sup. Ct. Cal. Motion to dispense with printing respondent’s brief granted. Certiorari denied. Mr. Justice Stewart is of the opinion that certiorari should be granted. Thomas C. Lynch, Attorney General of California, Doris H. Maier, Assistant Attorney General, and Edsel W. Haws and Arnold O. Overoye, Deputy Attorneys General, for petitioner. Robert J. Nareau for respondent. Reported below: 68 Cal. 2d 646, 441 P. 2d 111. 320-583 0 - 69 - 62 1052 OCTOBER TERM, 1968. January 20, 1969. 393 U. S. No. 781. Urbano v. Readers Digest Assn., Inc. C. A. 2d Cir. Motion to dispense with printing petition granted. Certiorari denied. Purvis Brearley for petitioner. Thomas F. Daly for respondent. No. 764. Morse et al. v. Boswell et al. C. A. 4th Cir. Certiorari denied. Fred Okrand and Elsbeth Levy Bothe for petitioners. Solicitor General Griswold, As-sistant Attorney General Weisl, and Morton Hollander for respondents. Reported below: 401 F. 2d 544. Mr. Justice Douglas, dissenting. When this case was before us earlier on an application for a stay, I filed a dissenting opinion, ante, p. 802, indicating that the issues to be presented on the petition for certiorari were at least in part substantial. Some of the enlistment contracts with which we deal provide that these reservists agree to active duty in “time of war or of national emergency declared by Congress,” as provided in 10 U. S. C. § 672. That section calls for active duty “[i]n time of war or of national emergency declared by Congress, or when otherwise authorized by law.” And see 10 U. S. C. § 673. The call-up was pursuant to a 1966 Act, 80 Stat. 981, 10 U. S. C. § 263 n. (1964 ed., Supp. Ill), which authorized the President to activate any unit of the Reserve for a period not to exceed 24 months. There has been no declaration of a national emergency either by Congress or by the President. There has been no declaration of war by the Congress. How then can 10 U. S. C. § 672 and the enlistment contracts be dishonored? The only answer given is that the phrase “when otherwise authorized by law” contained in 10 U. S. C. § 672 covers all future laws that may be passed. That phrase, as I understand it, refers to existing law, not to any law that may be passed. Mr. Justice Holmes ORDERS. 1053 393 U. S. January 20, 1969. said as much in United States v. Dalcour, 203 U. S. 408, 421. In that case the words were “otherwise provided by law” and he said: “These words must be taken to refer to existing provisions and not to be merely a futile permission to future legislatures to make a change.” The meaning must of course depend on the precise setting of the phrase. It does real violence to reason and to morality to read § 672 as an open-end power to change any promise willy-nilly. As I indicated in my dissent when the stay was before us, the phrase “when otherwise authorized by law” has meaning when construed as referring to existing law alone. See ante, at 808-809, and n. 17. When we allow it a more expanded meaning as embracing all future laws passed, we become an agency for helping to create an awesome credibility gap. We should construe laws as fulfilling, not breaking, promises made by this all-powerful government to its citizens, unless no alternative is open to us. The alternative is plain: to apply the 1966 Act to all enlistment contracts that do not contain the solemn promise that active duty starts only on a declaration of war or a declaration of a national emergency. This case should be set for argument. No. 782. Lee, Administratrix, et al. v. United States. C. A. 9th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Mr. Justice Marshall took no part in the consideration or decision of this petition. Lee S. Kreindler and Samuel N. Hecsh for petitioners. Solicitor General Griswold, Assistant Attorney General Weisl, Morton Hollander, and Leonard Schaitman for the United States. Reported below: 400 F. 2d 558. 1054 OCTOBER TERM, 1968. January 20, 1969. 393 U.S. No. 785. Cheng Fu Sheng et al. v. United States Immigration and Naturalization Service. C. A. 9th Cir. Certiorari denied. David Carliner and Robert S. Bixby for petitioners. Solicitor General Griswold, As-sistant Attorney General Vinson, Beatrice Rosenberg, and Roger A. Pauley for respondent. Reported below: 400 F. 2d 678. Mr. Justice Douglas, dissenting. I would grant this petition and put the case down for argument. Under § 243 (h) of the Immigration and Nationality Act, 66 Stat. 214, as amended, 79 Stat. 918, 8 U. S. C. § 1253 (h) (1964 ed., Supp. Ill), the Attorney General is authorized to withhold deportation of any alien who would, if returned to his country, be subject “to persecution on account of . . . political opinion.” Taiwan’s intolerance of criticism is well known. Lei Chen, after a one-day military trial, was sentenced to 10 years for trying to form a non-Communist political party in opposition to the Kuomintang. Military trials of men expressing “radical” ideas are common. The pressures to conform to Kuomintang orthodoxy are so great that no more than 5% of the students who go abroad to study return to Taiwan. These petitioners, who have denounced the Chiang Kai-shek regime as a “police state,” will most assuredly either face a firing squad on their return or receive heavy sentences. Any person critical of the regime is called a “defector.” The list of political victims of Taipei’s intolerance is too long and the secret military trials of dissidents too notorious for me to acquiesce in denial of certiorari here. No. 686, Mise. McIntyre v. United States. C. A. 2d Cir. Certiorari denied. Solicitor General Griswold for the United States. Reported below: 396 F. 2d 859. ORDERS. 1055 393 U. S. January 20, 1969. No. 763. Rosee v. Board of Trade of the City of Chicago et al. C. A. 7th Cir. Motion to dispense with printing portions of appendix denied. Motion to amend petition granted. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Weisl, and John C. Eldridge for respondents Kibby et al. No. 787. Confederated Salish and Kootenai Tribes of the Flathead Reservation, Montana v. United States. Ct. Cl. Certiorari denied. The Chief Justice, Mr. Justice Douglas, and Mr. Justice Brennan are of the opinion that certiorari should be granted. John W. Cragun, Charles A. Hobbs, and Richard A. Baenen for petitioners. Solicitor General Griswold, Assistant Attorney General Martz, Roger P. Marquis, and Edmund B. Clark for the United States. Reported below: 185 Ct. Cl. 421, 401 F. 2d 785. No. 788. Knickerbocker Insurance Co. v. Faison et al. Ct. App. N. Y. Motion of Motor Vehicle Accident Indemnification Corp, for leave to file a brief, as amicus curiae, granted, and brief filed. Certiorari denied. Arnold Davis for petitioner. Jacob D. Fuchs-berg for respondents. Reported below: 22 N. Y. 2d 554, 240 N. E. 2d 34. No. 431, Mise. Gonzales v. California. Sup. Ct. Cal. Certiorari denied. Thomas C. Lynch, Attorney General of California, and Philip C. Griffin, Deputy Attorney General, for respondent. Reported below: 68 Cal. 2d 467, 439 P. 2d 655. No. 522, Mise. Butcher v. Mississippi. Sup. Ct. Miss. Certiorari denied. W. S. Moore for petitioner. Joe T. Patterson, Attorney General of Mississippi, and G. Garland Lyell, Jr., Assistant Attorney General, for respondent. 1056 OCTOBER TERM, 1968. January 20, 1969. 393 U. S. No. 502, Mise. Erb v. California. Ct. App. Cal., 4th App. Dist. Certiorari denied. Thomas C. Lynch, Attorney General of California, William E. James, Assistant Attorney General, and David B. Stanton, Deputy Attorney General, for respondent. Reported below: 259 Cal. App. 2d 159, 66 Cal. Rptr. 274. No. 570, Mise. Kast et al. v. California. App. Dept., Super. Ct. Cal., County of S. F. Certiorari denied. Leigh Athearn for petitioners. Thomas C. Lynch, Attorney General of California, Albert W. Harris, Jr., Assistant Attorney General, and Deraid E. Granberg and James B. Cuneo, Deputy Attorneys General, for respondent. No. 634, Mise. Adams v. Beto, Corrections Director. Ct. Crim. App. Tex. Certiorari denied. William E. Gray for petitioner. Crawford C. Martin, Attorney General of Texas, Nola White, First Assistant Attorney General, and Robert C. Flowers and Lonny F. Zwiener, Assistant Attorneys General, for respondent. Reported below: 430 S. W. 2d 194. No. 745, Mise. Marson v. United States. C. A. 4th Cir. Certiorari denied. Max 0. Truitt, Jr., for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Ronald L. Gainer for the United States. Reported below: 408 F. 2d 644. No. 855, Mise. Sullivan v. Massachusetts. Sup. Jud. Ct. Mass. Certiorari denied. David Berman for petitioner. Elliot L. Richardson, Attorney General of Massachusetts, and Willie J. Davis, Assistant Attorney General, for respondent. Reported below: 354 Mass. 598, 239 N. E. 2d 5. 1057 ORDERS. 393 U. S. January 20, 1969. No. 662, Mise. Jones v. United States. C. A. 8th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, Jerome M. Feit, and Roger A. Pauley for the United States. Reported below: 396 F. 2d 66. No. 799, Mise. Beardsley v. United States. C. A. 8th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Edward Fenig for the United States. No. 834, Mise. Barringer v. United States. C. A. D. C. Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Edward Fenig for the United States. Reported below: 130 U. S. App. D. C. 186, 399 F. 2d 557. No. 858, Mise. Flores v. California. Sup. Ct. Cal. Certiorari denied. Reported below: 68 Cal. 2d 563, 440 P. 2d 233. No. 887, Mise. Robinson v. United States. C. A. 6th Cir. Certiorari denied. Steven B. Duke for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, and Jerome M. Feit for the United States. Reported below: 394 F. 2d 823. No. 894, Mise. Kane v. United States. C. A. 9th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, Jerome M. Feit, and Roger A. Pauley for the United States. Reported below: 399 F. 2d 730. No. 919, Mise. Horman v. New York. Ct. App. N. Y. Certiorari denied. William Cahn for respondent. Reported below: 22 N. Y. 2d 378, 239 N. E. 2d 625. 1058 OCTOBER TERM, 1968. January 20, 1969. 393 U.S. No. 905, Mise. Montgomery et al. v. United States. C. A. D. C. Cir. Certiorari denied. Glenn A. Mitchell for petitioners. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Robert G. Maysack for the United States. No. 923, Mise. Bernier v. Massachusetts. Sup. Jud. Ct. Mass. Certiorari denied. Willie Davis, Assistant Attorney General of Massachusetts, John J. Droney, and Ruth I. Abrams for respondent. Reported below: 354 Mass. 193, 236 N. E. 2d 642. No. 926, Mise. Cunningham v. Follette, Warden. C. A. 2d Cir. Certiorari denied. Leon B. Polsky and Gretchen White Oberman for petitioner. Reported below: 397 F. 2d 143. No. 934, Mise. Phillips v. Rundle, Correctional Superintendent. C. A. 3d Cir. Certiorari denied. No. 940, Mise. Coleman v. Maxwell, Warden. C. A. 6th Cir. Certiorari denied. James R. Willis for petitioner. Reported below: 399 F. 2d 662. No. 949, Mise. Howard v. United States. C. A. 8th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Roger A. Pauley for the United States. Reported below: 396 F. 2d 867. No. 951, Mise. Paroutian v. United States. C. A. 2d Cir. Certiorari denied. Solicitor General Griswold for the United States. Reported below: 395 F. 2d 673. No. 990, Mise. McDonald v. Craven, Warden. C. A. 9th Cir. Certiorari denied. ORDERS. 1059 393 U. S. January 20, 1969. No. 969, Mise. Goodman v. United States. C. A. 5th Cir. Certiorari denied. Solicitor General Griswold for the United States. No. 976, Mise. Murray v. New York. App. Div., Sup. Ct. N. Y., 3d Jud. Dept. Certiorari denied. Reported below: 30 App. Div. 2d 584, 290 N. Y. S. 2d 292. No. 998, Mise. Thompson v. Parker, Warden. C. A. 3d Cir. Certiorari denied. Solicitor General Griswold for respondent. Reported below: 399 F. 2d 774. No. 1020, Mise. Muszalski v. California. Ct. App. Cal., 1st App. Dist. Certiorari denied. Reported below: 260 Cal. App. 2d 611, 67 Cal. Rptr. 378. No. 1032, Mise. Murray v. Oklahoma. Ct. Crim. App. Okla. Certiorari denied. Reported below: 444 P. 2d 236. No. 1035, Mise. Leaver v. Indiana. Sup. Ct. Ind. Certiorari denied. No. 1036, Mise. Super v. Yeager, Principal Keeper. C. A. 3d Cir. Certiorari denied. No. 1047, Mise. McNeill v. State Use Industries, Automobile Registration Plates Department. C. A. 4th Cir. Certiorari denied. No. 798, Mise. Johnson v. United States. C. A. 9th Cir. Certiorari denied. Mr. Justice Marshall took no part in the consideration or decision of this petition. Solicitor General Griswold, Assistant Attorney General Vinson, Jerome M. Feit, and Edward Fenig for the United States. Reported below: 396 F. 2d 779. 1060 OCTOBER TERM, 1968. January 20, 27, 1969. 393 U. S. No. 1128, Mise. Quarles v. Clark, Attorney General, et al. C. A. D. C. Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Edward Fenig for respondents. No. 1130, Mise. Ramirez v. Eyman, Warden, et al. Sup. Ct. Ariz. Certiorari denied. No. 1118, Mise. Wood v. Blackwell, Warden. C. A. 5th Cir. Certiorari denied. Mr. Justice Marshall took no part in the consideration or decision of this petition. Solicitor General Griswold for respondent. Reported below: 402 F. 2d 62. Rehearing Denied. (See also Nos. 478 and 479, ante, p. 407.) No. 442. Swofford et al., dba Pathfinder Co. v. B & W, Inc., ante, p. 935 ; No. 223, Mise. Mendez v. California, ante, p. 1007; No. 711, Mise. Sumrall v. United States, ante, p. 991; No. 778, Mise. Knepfler v. United States, ante, p. 1005; No. 787, Mise. Willard v. Florida, ante, p. 989; and No. 861, Mise. Bennett v. North Carolina, ante, p. 1006. Petitions for rehearing denied. January 27, 1969. Miscellaneous Orders. No. 138. Powell et al. v. McCormack, Speaker of the House of Representatives, et al. C. A. D. C. Cir. Further consideration of respondents’ suggestion of mootness postponed to hearing of case on the merits. [For earlier orders herein, see, e. g., ante, p. 1009.] ORDERS. 1061 393 U. S. January 27, 1969. No. 228. Willingham, Warden, et al. v. Morgan. C. A. 10th Cir. [Certiorari granted, ante, p. 976.] Motion of respondent for leave to proceed further herein in forma pauperis and for assistance of counsel granted. It is ordered that Joseph M. Snee, Esquire, of Washington, D. C., a member of the Bar of this Court, be, and he is hereby, appointed to serve as counsel to brief and argue this case in this Court on behalf of respondent. No. 488. Daniel et al. v. Paul. C. A. 8th Cir. [Certiorari granted, ante, p. 975.] James W. Gall-man, Esquire, of Fayetteville, Arkansas, a member of the Bar of this Court, is invited to brief and argue this case, as amicus curiae, in support of the judgment below. No. 1106, Mise. Irwin v. Downie, Warden, et al. Motion for leave to file petition for writ of habeas corpus denied. Treating the papers submitted as a petition for a writ of certiorari, certiorari denied. No. 1062, Mise. Harris v. Rhay, Penitentiary Superintendent. Motion for leave to file petition for writ of mandamus denied. Probable Jurisdiction Noted. No. 705. Cipriano v. City of Houma et al. Appeal from D. C. E. D. La. Probable jurisdiction noted. Kenneth Watkins for appellant. E. E. Huppenbauer, Jr., for appellees. Reported below: 286 F. Supp. 823. Certiorari Granted. (See also No. 95, ante, p. 478; and No. 752, Mise., ante, p. 482.) No. 820. Phelps v. Missouri-Kansas-Texas Railroad Co. Sup. Ct. Mo. Certiorari granted. John H. Haley, Jr., James T. Williamson, and Thomas J. Conway for petitioner. Howard A. Crawford for respondent. Reported below: 438 S. W. 2d 181. 1062 OCTOBER TERM, 1968. January 27, 1969. 393 U. S. No. 211, Mise. Conway v. California Adult Authority et al. C. A. 9th Cir. Motion for leave to proceed in forma pauperis granted. Certiorari granted and case transferred to appellate docket. Thomas C. Lynch, Attorney General of California, Albert W. Harris, Jr., Assistant Attorney General, and George R. Nock, Deputy Attorney General, for respondents. Certiorari Denied. (See also No. 1106, Mise., supra.) No. 461. Suffin v. Pennsylvania Railroad Co. et al. C. A. 3d Cir. Certiorari denied. Mordecai Rosenfeld, William E. Haudek, and Irving Morris for petitioner. David L. Wilson for Pennsylvania Railroad Co. (now Penn Central Co.), William S. Potter for Pennsylvania Co., and Francis S. Bensel for Norfolk & Western Railway Co., respondents. Solicitor General Griswold filed a memorandum for the United States, as amicus curiae, by invitation of the Court, ante, p. 931. Reported below: 396 F. 2d 75. No. 507. Pyne v. United States. C. A. 7th Cir. Certiorari denied. Edward J. Caliban, Jr., for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Jerome M. Feit, and Roger A. Pauley for the United States. Reported below: 398 F. 2d 464. No. 800. Irwin et al. v. Clark, dba Oilfield Vacuum Service. C. A. 9th Cir. Certiorari denied. Thomas R. Davis for petitioners. Luther Kenneth Say for respondent. Reported below: 400 F. 2d 882. No. 801. Hirschfield et al. v. Barrett, Clerk of Cook County. Sup. Ct. Ill. Certiorari denied. L. Louis Karton and Myer H. Gladstone for petitioners. Reported below: 40 Ill. 2d 224, 239 N. E. 2d 831. ORDERS. 1063 393 U. S. January 27, 1969. No. 611. Moore et al. v. Arkansas. Sup. Ct. Ark. Certiorari denied. Jefferson Greer for petitioners. Joe Purcell, Attorney General of Arkansas, and Don Langston, Deputy Attorney General, for respondent. Reported below: 244 Ark. 1197, 429 S. W. 2d 122. No. 793. Detroit, Toledo & Ironton Railroad Co. v. Lones et al. C. A. 6th Cir. Certiorari denied. Robert B. Gosline for petitioner. Donald P. Traci and Thomas A. Heffernan for respondents. Reported below: 398 F. 2d 914. No. 794. Givens v. New York. Ct. App. N. Y. Certiorari denied. Michael Washor for petitioner. Reported below: 22 N. Y. 2d 897, 241 N. E. 2d 744. No. 795. Alexander et ux. v. Morrison-Knudsen Co., Inc., et al. Sup. Ct. Colo. Certiorari denied. Walter L. Gerash and John S. Carroll for petitioners. Robert A. Schiff for Morrison-Knudsen Co., Inc., M. O. Shivers, Jr., John J. Conway, and John A. Hughes for Colorado-Ute Electric Assn., Inc., and I. Martin Leavitt for Yampa Valley Electric Assn., Inc., respondents. Reported below: ---Colo.----, 444 P. 2d 397. No. 802. Black & Decker Manufacturing Co. v. Porter-Cable Machine Co. et al. C. A. 4th Cir. Certiorari denied. Theodore S. Kenyon, Benjamin C. Howard, and C. Willard Hayes for petitioner. John D. Nies for respondents. Reported below: 402 F. 2d 517. No. 803. First National Bank in Anoka v. Ken-neally, Trustee in Bankruptcy. C. A. 8th Cir. Certiorari denied. Thomas G. Lovett, Jr., for petitioner. Michael Langdon Culhane for respondent. Reported below: 400 F. 2d 838. 1064 OCTOBER TERM, 1968. January 27, 1969. 393 U. S. No. 805. Hicks v. Hardin, Secretary of Agriculture. C. A. 4th Cir. Certiorari denied. Robinson 0. Everett, Irving I. Geller, Elmer A. Ambrogne, and Charles 0. Verrill, Jr., for petitioner. Solicitor General Griswold, Assistant Attorney General Weisl, and Alan S. Rosenthal for respondent. Reported below: 397 F. 2d 193. No. 806. Wayne Knitting Mills et al. v. Russell Hosiery Mills, Inc. C. A. 4th Cir. Certiorari denied. Joseph W. Grier, Jr., and David H. Semmes for petitioners. Thomas B. Van Poole, Charles R. Fenwick, and Welch Jordan for respondent. Reported below: 400 F. 2d 964. No. 807. City of West Allis et al. v. County of Milwaukee. Sup. Ct. Wis. Certiorari denied. Maxwell H. Herriott for petitioners. Robert P. Russell for respondent. Reported below: 39 Wis. 2d 356, 159 N. W. 2d 36. No. 808. International Terminal Operating Co., Inc. v. Alexander et al. C. A. 2d Cir. Certiorari denied. J. Edmund de Castro, Jr., for petitioner. Stuart Goldstein for respondent Alexander. Reported below: 382 F. 2d 963. No. 809. Arnold v. Arnold. C. A. 9th Cir. Certiorari denied. No. 815. Ohio Casualty Insurance Co. v. United States. C. A. 6th Cir. Certiorari denied. Samuel L. Finn for petitioner. Solicitor General Griswold, Assistant Attorney General Weisl, John C. Eldridge, and Norman Knopj for the United States. Reported below: 399 F. 2d 387. ORDERS. 1065 393 U. S. January 27, 1969. No. 810. Myers et al. v. Harris. Sup. Ct. Pa. Certiorari denied. Roland J. Christy for petitioners. Walter Phipps, Jr., for respondent. Reported below: 431 Pa. 293, 245 A. 2d 647. No. 812. Hill v. Oklahoma. Ct. Crim. App. Okla. Certiorari denied. David C. Shapard for petitioner. Reported below: 444 P. 2d 223. No. 816. United States Steel Corp. v. Guy et al. C. A. 3d Cir. Certiorari denied. Gilbert J. Helwig and Steven A. Stepanian II for petitioner. No. 817. Brown et al. v. Commissioner of Internal Revenue. C. A. 6th Cir. Certiorari denied. R. Monroe Schwartz for petitioners. Solicitor General Griswold, Assistant Attorney General Rogovin, Gilbert E. Andrews, and Stuart A. Smith for respondent. Reported below: 398 F. 2d 832. No. 818. Nelson, Warden, et al. v. Coleman. C. A. 9th Cir. Certiorari denied. Thomas C. Lynch, Attorney General of California, Albert W. Harris, Jr., Assistant Attorney General, and Deraid E. Granberg and Gloria F. DeHart, Deputy Attorneys General, for petitioners. Reported below: 401 F. 2d 536. No. 819. Magnesium Casting Co. v. Hoban, Regional Director, National Labor Relations Board. C. A. 1st Cir. Certiorari denied. Vernon C. Stoneman for petitioner. Solicitor General Griswold, Arnold Ordman, Dominick L. Manoli, and Norton J. Come for respondent. Reported below: 401 F. 2d 516. No. 337, Mise. Negron v. New York. App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied. Sybil H. Landau for respondent. 1066 OCTOBER TERM, 1968. January 27, 19G9. 393 U. S. No. 796. Dredge Corp. v. Penny, State Supervisor, Bureau of Land Management, et al. C. A. 9th Cir. Certiorari denied. Mr. Justice Marshall took no part in the consideration or decision of this petition. George W. Nilsson for petitioner. Solicitor General Griswold, Assistant Attorney General Martz, and Roger P. Marquis for respondents Penny et al. Reported below: 398 F. 2d 791. No. 804. Schulter v. Roraff, Judge. Sup. Ct. Wis. Motion to dispense with printing petition granted. Certiorari denied. Robert Friebert for petitioner. Bronson C. La Follette, Attorney General of Wisconsin, William F. Eich, Deputy Attorney General, and Betty R. Brown, Assistant Attorney General, for respondent. Reported below: 39 Wis. 2d 342, 159 N. W. 2d 25. No. 811. Miskunas v. Union Carbide Corp. C. A. 7th Cir. Certiorari denied. The Chief Justice, Mr. Justice Douglas, and Mr. Justice Fortas are of the opinion that certiorari should be granted. Myron J. Hack for petitioner. Harry T. Ice for respondent. Reported below: 399 F. 2d 847. No. 449, Mise. Macias et al. v. Illinois. Sup. Ct. Ill. Certiorari denied. Sam Adam for petitioners. William G. Clark, Attorney General of Illinois, and John J. O’Toole and Donald J. Veverka, Assistant Attorneys General, for respondent. Reported below: 39 Ill. 2d 208, 234 N. E. 2d 783. No. 524, Mise. Cassasa v. California. Ct. App. Cal., 1st App. Dist. Certiorari denied. Thomas C. Lynch, Attorney General of California, Albert W. Harris, Jr., Assistant Attorney General, and Clifford K. Thompson, Jr., Deputy Attorney General, for respondent. ORDERS. 1067 393 U. S. January 27, 1969. No. 292, Mise. Robinson v. New York. Ct. App. N. Y. Certiorari denied. Burton B. Roberts and Daniel J. Sullivan for respondent. Reported below: 21 N. Y. 2d 338, 234 N. E. 2d 687. No. 541, Mise. McAllister v. United States. C. A. 3d Cir. Certiorari denied. Solicitor General Griswold for the United States. Reported below: 395 F. 2d 852. No. 543, Mise. Roots v. United States. C. A. D. C. Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, and Jerome M. Feit for the United States. Reported below: 130 U. S. App. D. C. 203, 399 F. 2d 574. No. 618, Mise. Tyler v. McMann, Warden. C. A. 2d Cir. Certiorari denied. Harry C. Batchelder, Jr., for petitioner. Louis J. Lejkowitz, Attorney General of New York, Samuel A. Hirshowitz, First Assistant Attorney General, and Lillian Z. Cohen, Assistant Attorney General, for respondent. No. 667, Mise. Hale v. United States. C. A. 7th Cir. Certiorari denied. Solicitor General Griswold for the United States. Reported below: 397 F. 2d 427. No. 699, Mise. Stuckey v. United States. C. A. D. C. Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, and Jerome M. Feit for the United States. Reported below: 130 U. S. App. D. C. 203, 399 F. 2d 574. No. 710, Mise. Willock v. Kentucky. Ct. App. Ky. Certiorari denied. David Kaplan for petitioner. John B. Breckinridge, Attorney General of Kentucky, and James H. Barr, Assistant Attorney General, for respondent. Reported below: 435 S. W. 2d 771. 320-583 0 - 69 - 63 1068 OCTOBER TERM, 1968. January 27, 1969. 393 U. S. No. 715, Mise. Argo v. Alabama. Sup. Ct. Ala. Certiorari denied. MacDonald Gallion, Attorney General of Alabama, and John C. Tyson III, Assistant Attorney General, for respondent. No. 793, Mise. Ingenito v. New Jersey. Sup. Ct. N. J. Certiorari denied. A. Morton Shapiro for respondent. No. 797, Mise. Buick v. United States. C. A. 9th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Edward Fenig for the United States. Reported below: 396 F. 2d 912. No. 801, Mise. Corbbins v. United States. C. A. 7th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, Jerome M. Feit, and Roger A. Pauley for the United States. Reported below: 397 F. 2d 790. No. 812, Mise. Harling v. United States. C. A. D. C. Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, and Jerome M. Feit for the United States. Reported below: 130 U. S. App. D. C. 327, 401 F. 2d 392. No. 847, Mise. Bostick v. United States. C. A. 5th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, and Jerome M. Feit for the United States. Reported below: 400 F. 2d 449. No. 859, Mise. McDowell v. United States. C. A. 6th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg for the United States. ORDERS. 1069 393 U. S. January 27, 1969. No. 939, Mise. O’Shea v. United States. C. A. 1st Cir. Certiorari denied. William P. Homans, Jr., for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Roger A. Pauley for the United States. Reported below: 400 F. 2d 78. No. 946, Mise. Chuning v. Kansas. Sup. Ct. Kan. Certiorari denied. Robert C. Londerholm, Attorney General of Kansas, and Edward G. Collister, Jr., Assistant Attorney General, for respondent. Reported below: 201 Kan. 784, 443 P. 2d 248. No. 953, Mise. Langley v. Connecticut. Sup. Ct. Conn. Certiorari denied. Reported below: 156 Conn. 598, 244 A. 2d 366. No. 967, Mise. Wilson et al. v. United States. C. A. 5th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg for the United States. Reported below: 398 F. 2d 331. No. 985, Mise. Wilkes v. LaVallee, Warden. C. A. 2d Cir. Certiorari denied. No. 987, Mise. Gibson v. United States. C. A. 6th Cir. Certiorari denied. James R. Willis for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Jerome M. Feit, and Marshall Tamor Golding for the United States. No. 992, Mise. Kroll v. United States. C. A. 3d Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Roger A. Pauley for the United States. Reported below: 400 F. 2d 923. 1070 OCTOBER TERM, 1968. January 27, 1969. 393 U. S. No. 971, Mise. Lynch v. Landy, Deputy Commissioner, Bureau of Employees’ Compensation, United States Department of Labor, et al. C. A. 9th Cir. Certiorari denied. Solicitor General Griswold for respondents Landy et al. Reported below: 396 F. 2d 440. No. 997, Mise. Ramos v. New Jersey. Sup. Ct. N. J. Certiorari denied. No. 1006, Mise. Spencer v. Arizona et al. C. A. 9th Cir. Certiorari denied. No. 1022, Mise. Horton v. California. Ct. App. Cal., 3d App. Dist. Certiorari denied. No. 1023, Mise. Thompson v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 1026, Mise. DuVall v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. Reported below: 262 Cal. App. 2d 417, 68 Cal. Rptr. 708. No. 1030, Mise. Beverly v. Nelson, Warden. C. A. 9th Cir. Certiorari denied. No. 1034, Mise. Palmer v. Florida. Dist. Ct. App. Fla., 3d Dist. Certiorari denied. Reported below: 214 So. 2d 661. No. 1052, Mise. Boyd v. California. Sup. Ct. Cal. Certiorari denied. No. 1053, Mise. Smith v. Illinois. Sup. Ct. Ill. Certiorari denied. Reported below: 40 Ill. 2d 290, 239 N. E. 2d 782. ORDERS. 1071 393 U. S. January 27, 1969. No. 1054, Mise. Fonseca v. New York. App. Div.. Sup. Ct. N. Y., 3d Jud. Dept. Certiorari denied. No. 1060, Mise. Bostick v. Craven, Warden. Sup. Ct. Cal. Certiorari denied. No. 1070, Mise. Walker v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 1079, Mise. Smith v. Maresca, United States Marshal, et al. C. A. 2d Cir. Certiorari denied. Frederic A. Johnson and Rudolph Lion Zalowitz for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Edward Fenig for respondents. No. 571, Mise. Fitzpatrick v. Patterson, Warden. C. A. 10th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Duke W. Dunbar, Attorney General of Colorado, and James F. Pamp, Assistant Attorney General, for respondent. No. 781, Mise. Nelloms v. United States. C. A. 5th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Howard Moore, Jr., for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, and Jerome M. Feit for the United States. Reported below: 399 F. 2d 295. No. 829, Mise. Sheptin v. Florida. Sup. Ct. Fla. Certiorari denied. The Chief Justice and Mr. Justice Douglas are of the opinion that certiorari should be granted. P. D. Thomson for petitioner. Ellen J. Mor-phonios for respondent. 1072 OCTOBER TERM, 1968. January 27, February 24, 1969. 393 U. S. No. 1061, Mise. Stubblefield v. Beto, Corrections Director. C. A. 5th Cir. Certiorari denied. Reported below: 399 F. 2d 424. No. 1088, Mise. Taylor v. Alabama. Sup. Ct. Ala. Certiorari denied without prejudice to an application for a writ of habeas corpus in the appropriate United States District Court. C. H. Erskine Smith for petitioner. 9 Rehearing Denied. No. 89, Mise. Dvorsky v. United States, ante, p. 983; and No. 723, Mise. Poston v. United States et al., ante, p. 946. Motions for leave to file petitions for rehearing denied. February 24, 1969. Miscellaneous Orders. No. 1635, Mise. Malagon-Ramirez v. United States. C. A. 9th Cir. Treating the papers in this case as a petition for a writ of certiorari and as a motion of counsel to be relieved from perfecting and prosecuting the petition, we take no present action on the petition and refer the motion to the Court of Appeals for the Ninth Circuit for consideration and action in the light of what petitioner’s counsel refers to as paragraph 4 (c) of the “provisions for the representation on appeal of defendants financially unable to obtain representation, adopted by the Judicial Council of the Ninth Circuit, pursuant to the provisions of the Criminal Justice Act of 1964,” which is said to require counsel appointed in the Court of Appeals to file a petition for certiorari “if requested to do so by the defendant.” J. Perry Langjord for petitioner. Reported below: 404 F. 2d 604. ORDERS. 1073 393U.S. February 24, 1969. No. ----. Fukumoto v. United States. C. A. 9th Cir. Application for bail pending appeal presented to Mr. Justice Black, and by him referred to the Court, denied. No. 138. Powell et al. v. McCormack, Speaker of the House of Representatives, et al. C. A. D. C. Cir. Motion of George Meader for leave to file a brief, as amicus curiae, granted. George Meader, pro se, on the motion. [For earlier orders herein, see, e. g., ante, p. 1060.] No. 413. North Carolina et al. v. Pearce. C. A. 4th Cir. [Certiorari granted, ante, p. 922]; and No. 418. Simpson, Warden v. Rice. C. A. 5th Cir. [Certiorari granted, ante, p. 932.] Motion of American Civil Liberties Union et al. for leave to file a brief, as amici curiae, granted. William W. Van Alstyne and Melvin L. Wulf on the motion. No. 463. National Labor Relations Board v. Wyman-Gordon Co. C. A. 1st Cir. [Certiorari granted, ante, p. 932.] Motion of respondent to postpone oral argument denied. Quentin 0. Young on the motion. Solicitor General Griswold for petitioner in opposition. No. 580. Samuels et al. v. Mackell, District Attorney of Queens County, et al. ; and No. 813. Fernandez v. Mackell, District Attorney of Queens County, et al. Appeals from D. C. S. D. N. Y. [Probable jurisdiction noted, ante, p. 975.] Motion of appellee Mackell to require certification of additional record denied. Thomas J. Mackell, pro se, on the motion. Victor Rabinowitz for appellants in No. 580 in opposition. 1074 OCTOBER TERM, 1968. February 24, 1969. 393 U. S. No. 622. Maxwell v. Bishop, Penitentiary Superintendent. C. A. 8th Cir. [Certiorari granted, ante, p. 997.] Motion of the State of California to remove case from summary calendar granted. Thomas C. Lynch, Attorney General of California, Albert W. Harris, Jr., Assistant Attorney General, and Robert R. Granucci, Deputy Attorney General, on the motion. No. 663. Traynor et al., Deputy Commissioners v. Johnson et al. C. A. 4th Cir. [Certiorari granted, ante, p. 976.] Request of petitioners for additional time for oral argument granted and 20 additional minutes allotted for that purpose. Respondents likewise allotted 20 additional minutes for oral argument. No. 894. Weitzen et al. v. Heit et al. C. A. 2d Cir. The Solicitor General is invited to file a brief expressing the views of the United States. No. 269, Mise. In re Disbarment of Rothbard. It having been reported to the Court that Sol Rothbard of Washington, District of Columbia, has been disbarred from the practice of law by the United States Court of Appeals for the District of Columbia Circuit, duly entered on the 18th day of April, 1968, and this Court by order of May 20, 1968 [391 U. S. 911], having suspended the said Sol Rothbard from the practice of law in this Court and directed that a rule issue requiring him to show cause why he should not be disbarred; And it appearing that the said rule was duly issued and served upon the respondent, and that the time within which to file a return to the rule has expired; It Is Ordered that the said Sol Rothbard be, and he is hereby, disbarred from the practice of law in this Court and that his name be stricken from the roll of attorneys admitted to practice before the Bar of this Court. 1075 ORDERS. 393 U.S. February 24, 1969. No. 750. Harrington v. California. Ct. App. Cal., 2d App. Dist. [Certiorari granted, ante, p. 949.] Motion of petitioner for appointment of counsel granted. It is ordered that Roger S. Hanson, Esquire, of Woodland Hills, California, be, and he is hereby, appointed to serve as counsel for petitioner in this case. No. 993, Mise. In re Disbarment of Lichota. Edith Fischer Lichota, of Twinsburg, Ohio, having resigned as a member of the Bar of this Court, it is ordered that her name be stricken from the roll of attorneys admitted to practice in this Court. The rule to show cause heretofore issued [ante, p. 812] is discharged. No. 883, Mise. Bishop v. Ciccone, Warden; No. 1001, Mise. Peterson v. Schneckloth, Conservation Center Superintendent; No. 1175, Mise. Smith v. Rogers, State Hospital Superintendent ; No. 1181, Mise. Wood v. Turner, Warden; No. 1188, Mise. Williams v. California Conservation Center Superintendent; No. 1192, Mise. Furtak v. Mancusi, Warden; No. 1208, Mise. Vinson v. Eyman, Warden, et al.; No. 1260, Mise. McMahon v. Field, Men’s Colony Superintendent ; No. 1295, Mise. Rabon v. Eyman, Warden, et al.; No. 1296, Mise. Jones v. Turner, Warden; No. 1312, Mise. Hunt v. Craven, Warden; No. 1322, Mise. Boone v. Fitzberger, Warden; No. 1325, Mise. Pearson v. Adult Parole Authority of Ohio et al. ; No. 1332, Mise. McGurrin v. Shovlin, State Hospital Superintendent; and No. 1399, Mise. Smith v. Nelson, Warden, et al. Motions for leave to file petitions for writs of habeas corpus denied. 1076 OCTOBER TERM, 1968. February 24, 1969. 393 U. S. No. 1284, Mise. Garrett et al. v. United States. Motion for leave to file petition for writ of habeas corpus denied. Joe Tonahill and Morris Lavine on the motion. No. 1251, Mise. Garner v. New York. Motion for leave to file petition for writ of habeas corpus and other relief denied. No. 1094, Mise. Burkhart v. United States Court of Appeals for the Tenth Circuit. Motion for leave to file petition for writ of mandamus denied. Solicitor General Griswold for the United States in opposition. No. 1157, Mise. Belcher v. Hallows, Chief Justice, Supreme Court of Wisconsin, et al. Motion for leave to file petition for writ of mandamus denied. No. 1187, Mise. McKinney v. United States District Court for the Northern District of California et al. Motion for leave to file petition for writ of mandamus and other relief denied. Probable Jurisdiction Noted. No. 662. DeBacker v. Brainard, Sheriff. Appeal from Sup. Ct. Neb. Probable jurisdiction noted. William G. Line and John F. Kerrigan for appellant. Melvin Kent Kammerlohr, Assistant Attorney General of Nebraska, for appellee. Reported below: 183 Neb. 461, 161 N. W. 2d 508. No. 829. Dutton, Warden v. Evans. Appeal from C. A. 5th Cir. Probable jurisdiction noted. Arthur K. Bolton, Attorney General of Georgia, and Alfred L. Evans, Jr., Marion 0. Gordon, and Mathew Robins, Assistant Attorneys General, for appellant. Robert B. Thompson for appellee. Reported below: 400 F. 2d 826. 1077 ORDERS. 393 U. S. February 24, 1969. No. 899. United States v. Interstate Commerce Commission et al. ; No. 942. Brundage et al. v. United States et al.; No. 999. City of Auburn v. United States et al. ; and No. 1003. Livingston Anti-Merger Committee v. Interstate Commerce Commission et al. Appeals from D. C. D. C. Probable jurisdiction noted. Cases consolidated and a total of four hours allotted for oral argument for these appeals and any other appeals taken from the same judgment as to which jurisdiction may hereafter be noted. Mr. Justice Fortas took no part in the consideration or decision of this matter. Solicitor General Griswold, Assistant Attorney General Zimmerman, Deputy Solicitor General Springer, and Howard E. Shapiro for the United States, appellant, in No. 899; Louis B. Dailey and Harry Tyson Carter for appellants Brundage et al. in No. 942; Robert L. Wald and Joel E. Hoflman for appellant in No. 999; and Valentine B. Deale for appellant in No. 1003. Robert W. Ginnane, Fritz R. Kahn, and Jerome Nelson for appellee Interstate Commerce Commission in all four cases; Alan F. Wohlstetter for appellees 230 Pacific Northwest Shippers in No. 899; Robert Y. Thornton, Attorney General of Oregon, and Richard W. Sabin for appellee Public Utility Commissioner in No. 899; Hugh B. Cox, Ray Garrett, D. Robert Thomas, Lee B. McTurnan, Anthony Kane, Louis E. Torinus, Earl F. Requa, Frank S. Farrell, Eldon Martin, and Richard. J. Flynn for appellees Great Northern Railway Co. et al. in all four cases; and Edwin O. Schiewe, Raymond K. Merrill, Thomas H. Ploss, and Edward H. Foley for appellee Chicago, Milwaukee, St. Paul & Pacific Railroad Co. in No. 899. [For earlier order herein, see ante, p. 994, sub nom. Great Northern Railway Merger Case.} 1078 OCTOBER TERM, 1968. February 24, 1969. 393 U. S. No. 842. Turner et al. v. Fouche et al. Appeal from D. C. S. D. Ga. Probable jurisdiction noted. Jack Greenberg, Michael Meltsner, and Howard Moore, Jr., for appellants. Charles J. Bloch and Wilbur D. Owens, Jr., for Fouche et al., and Arthur K. Bolton, Attorney General, and Alfred L. Evans, Jr., and J. Lee Perry, Assistant Attorneys General, for the State of Georgia, appellees. Reported below: 290 F. Supp. 648. No. 921. Brockington v. Rhodes, Governor of Ohio, et al. Appeal from Sup. Ct. Ohio. Probable jurisdiction noted. Ralph Rudd for appellant. Paul W. Brown, Attorney General of Ohio, Charles S. Lopeman, First Assistant Attorney General, and Julius J. Nemeth, Assistant Attorney General, for Rhodes et al., and John T. Corrigan and John L. Dowling for Cipollone et al., appellees. No. 828, Mise. Cavitt v. Nebraska. Appeal from Sup. Ct. Neb. Motion for leave to proceed in forma pauperis granted. Probable jurisdiction noted and case transferred to appellate docket. Richard A. Huebner for appellant. Clarence A. H. Meyer, Attorney General of Nebraska, and Melvin Kent Kammerlohr, Assistant Attorney General, for appellee. Reported below: 182 Neb. 712, 157 N. W. 2d 171; 183 Neb. 243, 159 N. W. 2d 566. Certiorari Granted. (See also No. 91, ante, p. 527; No. 57, Mise., ante, p. 533; No. 81, Mise., ante, p. 531; No. 110, Mise., ante, p. 533; and No. 153, Mise., ante, p. 532.) No. 130. Sniadach v. Family Finance Corporation of Bay View et al. Sup. Ct. Wis. Certiorari granted. Jack Greenberg, James M. Nabrit III, Leroy D. Clark, and William F. Young, Jr., for petitioner. Byron E. Kopp for respondent Family Finance Corp, of Bay View. Reported below: 37 Wis. 2d 163, 154 N. W. 2d 259. ORDERS. 1079 393 U.S. February 24, 1969. No. 934. Bryson v. United States. C. A. 9th Cir. Certiorari granted. Richard Gladstein and Norman Leonard for petitioner. Solicitor General Griswold, Assistant Attorney General Yeagley, Kevin T. Maroney, and Lee B. Anderson for the United States. Reported below: 403 F. 2d 340. No. 777. First National Bank in Plant City v. Dickinson, Comptroller of Florida, et al.; and No. 932. Camp, Comptroller of the Currency v. Dickinson, Comptroller of Florida, et al. C. A. 5th Cir. Motion of First National Bank of Cornelia, Georgia, et al. for leave to file a brief, as amici curiae, granted. Petitions for writs of certiorari granted. Cases consolidated and a total of one hour allotted for oral argument. Mr. Justice Fortas took no part in the consideration or decision of this motion and these petitions. Robert S. Edwards for petitioner in No. 777, and Solicitor General Griswold, Assistant Attorney General Weisl, John C. Eldridge, and Robert E. Kopp for petitioner in No. 932. Wm. Reece Smith, Jr., and V. Carroll Webb for respondents in both cases. E. Barrett Prettyman, Jr., on the motion in both cases in support of the petitions. Reported below: 400 F. 2d 548. No. 409, Mise. Wade v. Wilson, Warden, et al. C. A. 9th Cir. Motion for leave to proceed in jorma pauperis granted. Certiorari granted and case transferred to appellate docket. Thomas C. Lynch, Attorney-General of California, Albert W. Harris, Assistant Attorney General, and Karl S. Mayer, Deputy Attorney General, for respondents. Reported below: 390 F. 2d 632. Certiorari Denied. (See also No. 431, ante, p. 528; No. 632, ante, p. 529; and No. 859, ante, p. 527.) No. 753. Porter v. South Carolina. Sup. Ct. S. C. Certiorari denied. Betty M. Sloan for petitioner. Reported below: 251 S. C. 393, 162 S. E. 2d 843. 1080 OCTOBER TERM, 1968. February 24, 1969. 393 U. S. No. 77. Holland et al. v. Lucas County Board of Elections et al. Sup. Ct. Ohio. Certiorari denied. Robert L. Carter for petitioners. John A. DeVictor, Jr., for respondents. No. 262. Naples v. Maxwell, Warden. C. A. 6th Cir. Certiorari denied. Dan W. Duffy for petitioner. William B. Saxbe, Attorney General of Ohio, and David L. Kessler and Leo J. Conway, Assistant Attorneys General, for respondent. Reported below: 393 F. 2d 615. No. 372. California v. Sesslin. Sup. Ct. Cal. Certiorari denied. Thomas C. Lynch, Attorney General of California, Doris H. Maier, Assistant Attorney General, and Daniel J. Kremer, Deputy Attorney General, for petitioner. Reported below: 68 Cal. 2d 418, 439 P. 2d 321. No. 432. Perez v. United States. C. A. 7th Cir. Certiorari denied. Max Cohen for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, and Philip R. Monahan for the United States. Reported below: 398 F. 2d 658. No. 562. Benson v. Carter, Probation Officer, et al. C. A. 9th Cir. Certiorari denied. Thomas C. Lynch, Attorney General of California, William E. James, Assistant Attorney General, and Evelle J. Younger for respondents. Reported below: 396 F. 2d 319. No. 835. D. H. Overmyer Warehouse Co., Inc., et al. v. Florida Steel Corp. Dist. Ct. App. Fla., 3d Dist. Certiorari denied. Cotton Howell and Russell Morton Brown for petitioners. Robert C. Ward for respondent. ORDERS. 1081 393 U. S. February 24, 1969. No. 650. Martin v. Washington. Sup. Ct. Wash. Certiorari denied. W. Walters Miller for petitioner. Paul Klasen for respondent. Reported below: 73 Wash. 2d 616, 440 P. 2d 429. No. 673. Brocker v. Brocker. Sup. Ct. Pa. Certiorari denied. Armand I. Robinson for petitioner. John Murrin for respondent. Reported below: 429 Pa. 513, 241 A. 2d 336. No. 778. Kent v. United States. C. A. 7th Cir. Certiorari denied. Julius L. Sherwin and Theodore R. Sherwin for petitioner. Solicitor General Griswold, As-sistant Attorney General Vinson, Beatrice Rosenberg, and Mervyn Hamburg for the United States. Reported below: 397 F. 2d 446. No. 783. D. C. Transit System, Inc. v. Williams et al. C. A. D. C. Cir. Certiorari denied. Harvey M. Spear, Leon G. R. Spoliansky, and Edmund L. Jones for petitioner. Leonard N. Bebchick, pro se, and for Williams et al., and Russell W. Cunningham for Washington Metropolitan Area Transit Commission, respondents. Reported below: ----U. S. App. D. C.----,---F. 2d----. No. 824. Lyons et al. v. Davoren, Secretary of State of Massachusetts, et al. C. A. 1st Cir. Certiorari denied. Elliot L. Richardson, Attorney General of Massachusetts, pro se, Alan J. Dimond, Assistant Attorney General, and Mark L. Cohen, Deputy Assistant Attorney General, for respondents. Reported below: 402 F. 2d 890. No. 826. Mariani v. Foley, U. S. District Judge. C. A. 2d Cir. Certiorari denied. Leonard Litz for petitioner. Solicitor General Griswold for respondent. 1082 OCTOBER TERM, 1968. February 24, 1969. 393 U. S. No. 827. Pines v. Zemurray et al. C. A. 5th Cir. Certiorari denied. Jacob Rassner for petitioner. Reported below: 397 F. 2d 810. No. 828. Sternback v. United States. C. A. 7th Cir. Certiorari denied. Charles A. Bellows for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Mervyn Hamburg for the United States. Reported below: 402 F. 2d 353. No. 833. Loker v. Maryland. Ct. App. Md. Certiorari denied. Frederick Bernays Wiener for petitioner. Reported below: 250 Md. 677, 245 A. 2d 814. No. 840. Hecht v. United States. C. A. 3d Cir. Certiorari denied. Frederick Klaessig for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Edward Fenig for the United States. No. 843. Leach v. United States. C. A. 5th Cir. Certiorari denied. W. S. Moore for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Kirby W. Patterson for the United States. Reported below: 402 F. 2d 268. No. 845. Scott v. Alaska. Sup. Ct. Alaska. Certiorari denied. Joseph H. Shortell for petitioner. Reported below: 445 P. 2d 39. No. 847. Landwer v. Village of North Barrington. App. Ct. Ill., 2d Dist. Certiorari denied. Eva Schwartzman for petitioner. Willard L. King and Gerald C. Snyder for respondent. Reported below: 94 Ill. App. 2d 265, 237 N. E. 2d 350. ORDERS. 1083 393 U. S. February 24, 1969. No. 848. Hall et ux. v. Bleisch et ux. C. A. 5th Cir. Certiorari denied. Royal H. Brin, Jr., for petitioners. Reported below: 400 F. 2d 896. No. 850. Funseth v. Great Northern Railway Co. C. A. 9th Cir. Certiorari denied. Carlton R. Reiter for petitioner. Anthony Kane and Woodrow L. Taylor for respondent. Reported below: 399 F. 2d 918. No. 855. Ullman et al. v. Grainger. C. A. 9th Cir. Certiorari denied. John N. Frolich for petitioners. Arnold AI. Quittner for respondent. Reported below: 396 F. 2d 635. No. 856. Exchange National Bank of Chicago v. Bonhiver, Receiver, et al. C. A. 8th Cir. Certiorari denied. Edgar Bernhard, for petitioner. J. Neil Morton for respondent Bonhiver. No. 858. Moore, dba Moore’s Barbecue Restaurant v. Wooten et al. C. A. 4th Cir. Certiorari denied. Douglas P. Connor for petitioner. Reported below: 400 F. 2d 239. No. 860. LewRon Television, Inc. v. D. H. Over-myer Leasing Co., Inc. C. A. 4th Cir. Certiorari denied. Edward L. Blanton, Jr., for petitioner. Russell Morton Brown for respondent. Reported below: 401 F. 2d 689. No. 863. Raby v. Illinois. Sup. Ct. Ill. Certiorari denied. Leo E. Holt for petitioner. Elmer C. Kissane for respondent. Reported below: 40 Ill. 2d 392, 240 N. E. 2d 595. No. 866. Brunwasser v. Suave et al. C. A. 4th Cir. Certiorari denied. Reported below: 400 F. 2d 600. 320-583 0 - 69 - 64 1084 OCTOBER TERM, 1968. February 24, 1969. 393 U.S. No. 864. City of Highland Park v. Fiore et ux. App. Ct. Ill., 2d Dist. Certiorari denied. Samuel T. Lawton, Jr., for petitioner. Reported below: 93 Ill. App. 2d 24, 235 N. E. 2d 23. No. 865. Byczynski et ux. v. New York Central Development Corp, et al. App. Ct. Ill., 3d Dist. Certiorari denied. John A. Berry and John E. Cassidy for petitioners. D. Robert Thomas for respondents. Reported below: 95 Ill. App. 2d 474, 238 N. E. 2d 414. No. 867. Scherer v. Morrow. C. A. 7th Cir. Certiorari denied. Julius L. Sherwin and Theodore R. Sherwin for petitioner. Solicitor General Griswold, Assistant Attorney General Ruckelshaus, and Alan S. Rosenthal for respondent. Reported below: 401 F. 2d 204. No. 868. Shoffeitt v. United States. C. A. 5th Cir. Certiorari denied. Robert B. Thompson for petitioner. Solicitor General Griswold, Acting Assistant Attorney General Kossack, and Beatrice Roseiiberg for the United States. Reported below: 403 F. 2d 991. No. 869. F. J. Buckner Corp., dba United Engineering Co. v. National Labor Relations Board. C. A. 9th Cir. Certiorari denied. George R. Richter, Jr., for petitioner. Solicitor General Grisivold, Arnold Ordman, Dominick L. Manoli, and Norton J. Come for respondent. Reported below: 401 F. 2d 910. No. 873. Beal v. United States. C. A. 6th Cir. Certiorari denied. William H. Beck for petitioner. Solicitor General Griswold, Assistant Attorney General Rogovin, Joseph M. Howard, and John M. Brant for the United States. Reported below: 404 F. 2d 58. ORDERS. 1085 393 U. S. February 24, 1969. No. 871. Gregory v. Illinois. App. Ct. Ill., 1st Dist. Certiorari denied. Richard F. Watt and John M. Bowlus for petitioner. Elmer C. Kissane for respondent. Reported below: 95 Ill. App. 2d 396, 237 N. E. 2d 720. No. 872. Davis v. United Fruit Co. C. A. 2d Cir. Certiorari denied. James David Ausländer for petitioner. William M. Kimball for respondent. Reported below: 402 F. 2d 328. No. 877. Hughes v. Gengler. C. A. 9th Cir. Certiorari denied. Solicitor General Griswold for respondent. Reported below: 404 F. 2d 229. No. 879. Henzel v. Florida. Dist. Ct. App. Fla., 3d Dist. Certiorari denied. Mr. Justice Fortas took no part in the consideration or decision of this petition. Daniel A. Rezneck for petitioner. Reported below: 212 So. 2d 92. No. 881. Dayton Food Fair Stores, Inc. v. National Labor Relations Board. C. A. 6th Cir. Certiorari denied. Jerome Goldman for petitioner. Solicitor General Griswold, Arnold Ordman, Dominick L. Manoli, and Norton J. Come for respondent. Reported below: 399 F. 2d 153. No. 882. Reddy v. United States. C. A. 1st Cir. Certiorari denied. Eugene X. Giroux for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Jerome M. Feit for the United States. Reported below: 403 F. 2d 26. No. 890. King v. Tennessee. Sup. Ct. Tenn. Certiorari denied. William Earl Badgett for petitioner. Thomas E. Fox, Deputy Attorney General of Tennessee, and Lance D. Evans, Assistant Attorney General, for respondent. 1086 OCTOBER TERM, 1968. February 24, 1969. 393 U. S. No. 884. Shafter et al. v. United States. C. A. 2d Cir. Certiorari denied. Jacob Rassner for petitioners. Solicitor General Griswold, Acting Assistant Attorney General Eardley, Morton Hollander, and Bruno A. Ristau for the United States. Reported below: 400 F. 2d 584. No. 885. Holt v. United States. C. A. 10th Cir. Certiorari denied. Herbert K. Hyde for petitioner. Solicitor General Griswold, Acting Assistant Attorney General Kossack, Beatrice Rosenberg, and Kirby W. Patterson for the United States. Reported below: 404 F. 2d 914. No. 886. United Jewish Appeal of Greater New York, Inc., et al. v. Schaefler, Executor, et al. Ct. App. N. Y. Certiorari denied. Joseph T. Arenson for petitioners. Richard Henry Pershan for respondents Schaefler et al. Reported below: 22 N. Y. 2d 456, 239 N. E. 2d 875. No. 891. Cohen et ux. v. Bredehoeft et al. C. A. 5th Cir. Certiorari denied. Presley E. Werlein, Jr., and Charles A. Easterling for petitioners. Edward A. Cazares for respondents. Reported below: 402 F. 2d 61. No. 903. Bailey’s Bakery, Ltd. v. Continental Baking Co. et al. C. A. 9th Cir. Certiorari denied. Maxwell Keith, Shiro Kashiwa, and David Berger for petitioner. John H. Schajer and Herbert Dym for respondents. Reported below: 401 F. 2d 182. No. 909. Hahn v. Kentucky Alcoholic Beverage Control Board et al. Ct. App. Ky. Certiorari denied. William F. Hopkins for petitioner. Chat Chancellor for respondents. Reported below: 431 S. W. 2d 501. ORDERS. 1087 393 U. S. February 24, 1969. No. 905. Morrison v. Rarick. Sup. Ct. La. Certiorari denied. Bascom D. Talley, Jr., for petitioner. Reported below: 252 La. 872, 214 So. 2d 545. No. 907. Pioneer Motor Service, Inc. v. Pioneer Transfer & Warehouse Co. et al. C. A. 7th Cir. Certiorari denied. Irving Goodman for petitioner. Roy Van Der Kamp for respondents. Reported below: 402 F. 2d 438. No. 910. Drent et al. v. McKean et al. C. A. 5th Cir. Certiorari denied. Bernard D. Fischman for petitioners. Solicitor General Griswold, Assistant Attorney General Ruckelshaus, Morton Hollander, and Robert E. Kopp for respondents. No. 915. Colson v. North Carolina. Sup. Ct. N. C. Certiorari denied. Gerald F. White for petitioner. Robert Morgan, Attorney General of North Carolina, and Bernard A. Harrell, Assistant Attorney General, for respondent. Reported below: 274 N. C. 295, 163 S. E. 2d 376. No. 918. Harleysville Mutual Insurance Co. v. Johnson. Super. Ct. Pa. Certiorari denied. Paul A. Lockrey for petitioner. Reported below: 212 Pa. Super. 89, 239 A. 2d 828. No. 919. Cobb et al. v. Johns et al. C. A. D. C. Cir. Certiorari denied. John M. Bixler, James F. Gordy, and James A. Crooks for petitioners. William J. Grove and John F. Doyle for respondents. Reported below: 131 U. S. App. D. C. 85, 402 F. 2d 636. No. 930. Ellenburg v. Shepherd et al. C. A. 6th Cir. Certiorari denied. Philip M. Carden for petitioner. Herbert R. Silvers for respondents. 1088 OCTOBER TERM, 1968. February 24, 1969. 393 U. S. No. 920. Thomas, Administratrix, et al. v. District of Columbia. C. A. D. C. Cir. Certiorari denied. Henry Lincoln Johnson, Jr., for Thomas, and Philip J. Lesser and I. Irwin Bolotin for Wynn, petitioners. Charles T. Duncan, Hubert B. Pair, Richard W. Barton, and John R. Hess for respondent. Reported below: 130 U. S. App. D. C. 365, 401 F. 2d 430. No. 923. Consumers Products of America, Inc., et al. v. Federal Trade Commission et al. C. A. 3d Cir. Certiorari denied. Theodore R. Mann for petitioners. Solicitor General Griswold, Assistant Attorney General McLaren, Howard E. Shapiro, James Mcl. Henderson, and Charles C. Moore, Jr., for respondent Federal Trade Commission. Reported below: 400 F. 2d 930. No. 926. Wright et al. v. United States. C. A. 5th Cir. Certiorari denied. Joseph H. Davis for petitioners. Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Kirby W. Patterson for the United States. Reported below: 403 F. 2d 43. No. 936. Festa v. City of Portsmouth. Sup. Ct. App. Va. Certiorari denied. Willard J. Moody for petitioner. M. A. Korb, Jr., for respondent. No. 943. Louisville & Jefferson County Air Board v. Shipp et ux. Ct. App. Ky. Certiorari denied. James W. Stites for petitioner. J. W. Jones for respondents. Reported below: 431 S. W. 2d 867. No. 966. Corrigan, Administrator v. E. W. Bohren Transport Co. C. A. 6th Cir. Certiorari denied. C. D. Lambros and Anthony O. Calabrese, Jr., for petitioner. & Burns Weston for respondent. Reported below: 408 F. 2d 301. ORDERS. 1089 393 U. S. February 24, 1969. No. 963. Katz v. State Board of Medical Examiners. Sup. Ct. Fla. Certiorari denied. Milton E. Grusmark for petitioner. William J. Roberts for respondent. Reported below: 213 So. 2d 714. No. 344. Brown v. Texas. Ct. Crim. App. Tex. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Carl E. F. Dally for petitioner. Crawford C. Martin, Attorney General of Texas, Nola White, First Assistant Attorney General, A. J. Carubbi, Jr., Executive Assistant Attorney General, and Robert C. Flowers and Lonny F. Zwiener, Assistant Attorneys General, for respondent. Reported below: 437 S. W. 2d 828. No. 587. Shelton v. Stynchcombe, Sheriff. Sup. Ct. Ga. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Pierre Howard and James L. May son for petitioner. Lewis R. Slaton and Carter Goode for respondent. Reported below: 224 Ga. 451, 162 S. E. 2d 426. No. 822. Boyle v. United States. C. A. 9th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Solicitor General Griswold, Assistant Attorney General Walters, Joseph M. Howard, and John M. Brant for the United States. Reported below: 395 F. 2d 413. No. 922. Burton v. United States. C. A. 9th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. J. B. Tietz for petitioner. Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Marshall Tamor Golding for the United States. Reported below: 402 F. 2d 536. 1090 OCTOBER TERM, 1968. February 24, 1969. 393 U. S. No. 651. Christofferson et al. v. Washington. Sup. Ct. Wash. Certiorari denied. Francis Hoague for petitioners. James E. Kennedy for respondent. Reported below: 74 Wash. 2d 154, 443 P. 2d 815. Mr. Justice Brennan, with whom Mr. Justice Marshall joins, dissenting. The Fourth Amendment, made applicable to the States by the Fourteenth Amendment, commands that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation.” The question presented by this case is whether the Constitution requires that, at or before the time a warrant issues, the judicial officer make a permanent record of the evidentiary basis for its issuance. In this case the entire record of the proceeding on the application for the warrant consisted of the complaint for the warrant, a copy of the warrant, and the return on the warrant. The complaint, considered alone, failed to state sufficient probable cause for the warrant and, on that ground, petitioner made a motion to suppress the evidence seized on its authority. The State resisted the motion on the basis of affidavits of the judge who issued the warrant, of the prosecuting attorney who applied for it, and of two police officers, purporting to set forth what had transpired at the hearing on the application. The finding of probable cause was sustained on the basis that the affidavits supplied the evidentiary basis not provided in the complaint. Federal courts have held that this procedure cannot be countenanced under Fed. Rule Crim. Proc. 41 (c), United States v. Birrell, 242 F. Supp. 191 (1965); Rosencranz v. United States, 356 F. 2d 310 (1966); United States n. Walters, 193 F. Supp. 788 (1961); United States v. Sterling, 369 F. 2d 799, 802 n. 2 (1966). The substantive right created by the requirement of probable cause is hardly accorded full sweep without an effective procedural means of assuring meaningful review of a deter- ORDERS. 1091 393 U.S. February 24, 1969. ruination by the issuing magistrate of the existence of probable cause. Reliance on a record prepared after the fact involves a hazard of impairment of that right. It is for this reason that some States have imposed the requirement of a contemporaneous record. Thus, in Glo-dowski v. State, 196 Wis. 265, 271-272, 220 N. W. 227, 230 (1928), the Wisconsin Supreme Court stated: “It is an anomaly in judicial procedure to attempt to review the judicial act of a magistrate issuing a search warrant upon a record made up wholly or partially by oral testimony taken in the reviewing court long after the search warrant was issued. Judicial action must be reviewed upon the record made at or before the time that the judicial act was performed. The validity of judicial action cannot be made to depend upon the facts recalled by fallible human memory at a time somewhat removed from that when the judicial determination was made. This record of the facts presented to the magistrate need take no particular form. The record may consist of the sworn complaint, of affidavits, or of sworn testimony taken in shorthand and later filed, or of testimony reduced to longhand and filed, or of a combination of all these forms of proof. The form is immaterial. The essential thing is that proof be reduced to permanent form and made a part of the record which may be transmitted to the reviewing court.” It seems to me that there is a substantial constitutional issue presented by the question tendered by petitioner. I would therefore grant the petition. No. 500, Mise. Metze v. New York. Ct. App. N. Y. Certiorari denied. Eleanor Jackson Piel for petitioner. Elliott Golden and Aaron Nussbaum for respondent. 1092 OCTOBER TERM, 1968. February 24, 1969. 393 U. S. No. 931. Chicago, Burlington & Quincy Railroad Co. v. State Tax Commission of Missouri et al. Sup. Ct. Mo. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. William H. Allen for petitioner. John C. Danforth, Attorney General of Missouri, and Louis C. DeFeo, Jr., and Walter W. Nowotny, Jr., Assistant Attorneys General, for respondents. Reported below: 436 S. W. 2d 650. No. 626. Lynch, Attorney General of California, et al. v. Gilmore et al. C. A. 9th Cir. Motion of respondents for leave to proceed in forma pauperis granted. Certiorari denied. Thomas C. Lynch, Attorney General of California, pro se, and Robert R. Granucci and George R. Nock, Deputy Attorneys General, for petitioners. Reported below: 400 F. 2d 228. No. 744. Beto, Corrections Director v. Spencer. C. A. 5th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied. Crawford C. Martin, Attorney General of Texas, Nola White, First Assistant Attorney General, A. J. Ca-rubbi, Jr., Executive Assistant Attorney General, and Robert C. Flowers, Jim Vollers, and Howard M. Fender, Assistant Attorneys General, for petitioner. Anthony G. Amsterdam, Michael D. Matheny, and Jack Greenberg for respondent. Reported below: 398 F. 2d 500. No. 836. Post et al. v. United States. C. A. D. C. Cir. Certiorari denied. Mr. Justice Fortas took no part in the consideration or decision of this petition. Edward Bennett Williams and Raymond W. Bergan for Post et al., and Thom,as R. Dyson, Jr., for Pickett, petitioners. Solicitor General Griswold for the United States. Reported below: ------U. S. App. D. C.------, 407 F. 2d 319. ORDERS. 1093 393U.S. February 24, 1969. No. 862. Peyton, Penitentiary Superintendent v. Gillespie. C. A. 4th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied. Robert Y. Button, Attorney General of Virginia, and Reno S. Harp III, Assistant Attorney General, for petitioner. Henry H. Tiffany for respondent. Reported below: 399 F. 2d 683. No. 797. Sloane et ux. v. Finch, Secretary of Health, Education, and Welfare. C. A. 9th Cir. Motion to dispense with printing petition granted. Certiorari denied. Mr. Justice Marshall took no part in the consideration or decision of this motion and petition. Paul E. Sloane, pro se, and for other petitioner. Solicitor General Griswold, Acting Assistant Attorney General Eardley, and Alan S. Rosenthal for respondent. Reported below: 396 F. 2d 641. No. 832. Western Seed Production Corp. v. Campbell, Judge. Sup. Ct. Ore. Certiorari denied. Mr. Justice Stewart and Mr. Justice White are of the opinion that certiorari should be granted. Robert A. Leedy for petitioner. E. Frederick Velikanje for respondent. Reported below: 250 Ore. 262, 442 P. 2d 215. No. 888. Pacific Far East Line, Inc., et al. v. Pacific Seafarers, Inc., et al. C. A. D. C. Cir. Certiorari denied. Mr. Justice Fortas took no part in the consideration or decision of this petition. Frederick M. Rowe, Edward D. Ransom, and R. Frederic Fisher for petitioners. Robert E. Sher, Abraham J. Harris, and Marvin J. Coles for respondents. Reported below: 131 U. S. App. D. C. 226, 404 F. 2d 804. No. 506, Mise. Raines v. New Jersey. Sup. Ct. N. J. Certiorari denied. 1094 OCTOBER TERM, 1968. February 24, 1969. 393 U. S. No. 912. Imperial Tobacco Co. (of Great Britain and Ireland), Ltd. v. Philip Morris Inc. C. A. 4th Cir. Certiorari denied. Mr. Justice Portas took no part in the consideration or decision of this petition. W. Brown Morton, Jr., for petitioner. Leslie D. Taggart and Lewis T. Booker for respondent. Reported below: 401 F. 2d 179. No. 849. Ingalls et ux. v. United States. C. A. 5th Cir. Certiorari denied. Mr. Justice Marshall took no part in the consideration or decision of this petition. Frank Bainbridge for petitioners. Solicitor General Griswold, Assistant Attorney General Rogovin, Meyer Rothwacks, and Louis M. Kauder for the United States. Reported below: 399 F. 2d 143. No. 853. Batsell v. United States. C. A. 8th Cir. Motion to dispense with printing petition granted. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Edward Fenig for the United States. Reported below: 403 F. 2d 395. No. 875. Armement Deppe, S. A., et al. v. United States. C. A. 5th Cir. Certiorari denied. Mr. Justice Stewart is of the opinion that certiorari should be granted. Leonard G. James and F. Conger Fawcett for petitioners. Solicitor General Griswold, Acting Assistant Attorney General Eardley, and John C. Eldridge for the United States. Reported below: 399 F. 2d 794. No. 284, Mise. Orr v. New York. C. A. 2d Cir. Certiorari denied. Louis J. Lejkowitz, Attorney General of New York, Samuel A. Hirshowitz, First Assistant Attorney General, and Lillian Z. Cohen, Assistant Attorney General, for respondent. ORDERS. 1095 393 U.S. February 24, 1969. No. 927. Granello, aka Burns v. United States. C. A. 2d Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Mr. Justice Brennan and Mr. Justice Marshall took no part in the consideration or decision of this petition. Irving Anolik and Michael P. Direnzo for petitioner. Solicitor General Griswold, Assistant Attorney General Walters, Joseph M. Howard, and John P. Burke for the United States. Reported below: 403 F. 2d 337. No. 941. Cross et al. v. The Kaimana et al. C. A. 9th Cir. Certiorari denied. Mr. Justice Brennan and Mr. Justice Fortas are of the opinion that certiorari should be granted. Richard Ernst and John Paul Jennings for petitioners. John Hays for Pacific Far East Line, Inc., on behalf of S. S. Kaimana et al., and Solicitor General Griswold for the United States on behalf of S. S. Coast Progress, respondents. Reported below: 401 F. 2d 182. No. 490, Mise. Soyka v. United States. C. A. 2d Cir. Certiorari denied. Solicitor General Griswold, As-sistant Attorney General Vinson, Beatrice Rosenberg, and Robert G. Maysack for the United States. Reported below: 394 F. 2d 443 and 452. No. 507, Mise. Tolson v. United States. C. A. 5th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg for the United States. No. 553, Mise. Roach v. Mauldin, Sheriff, et al. C. A. 5th Cir. Certiorari denied. L. Hugh Kemp for petitioner. Arthur K. Bolton, Attorney General of Georgia, and Marion O. Gordon and Mathew Robins, Assistant Attorneys General, for respondents. Reported below: 391 F. 2d 907. 1096 OCTOBER TERM, 1968. February 24, 1969. 393 U. S. No. 625, Mise. Otero v. Florida. Sup. Ct. Fla. Certiorari denied. John W. Watson III for petitioner. Reported below: 211 So. 2d 214. No. 629, Mise. Davis v. Texas. Ct. Crim. App. Tex. Certiorari denied. Emmett Colvin, Jr., for petitioner. Crawjord C. Martin, Attorney General of Texas, Nola White, First Assistant Attorney General, Hawthorne Phillips, Executive Assistant Attorney General, Robert C. Flowers and Gilbert J. Pena, Assistant Attorneys General, and W. V. Geppert for respondent. Reported below: 429 S. W. 2d 895. No. 680, Mise. Velez v. United States. C. A. 5th Cir. Certiorari denied. John W. Watson III for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Edward Fenig for the United States. Reported below: 397 F. 2d 788. No. 721, Mise. Tender et al. v. Maryland. Ct. App. Md. Certiorari denied. Francis B. Burch, Attorney General of Maryland, and Donald Needle, Assistant Attorney General, for respondent. No. 729, Mise. Huson v. Washington. Sup. Ct. Wash. Certiorari denied. Anthony Savage, Jr., for petitioner. James E. Kennedy for respondent. Reported below: 73 Wash. 2d 660, 440 P. 2d 192. No. 733, Mise. Oughton v. United States. C. A. 9th Cir. Certiorari denied. No. 826, Mise. Stidham v. Swenson, Warden. Sup. Ct. Mo. Certiorari denied. Norman H. Anderson, Attorney General of Missouri, and B. J. Jones, Assistant Attorney General, for respondent. ORDERS. 1097 393 U. S. February 24, 1969. No. 790, Mise. Pope v. United States. C. A. 5th Cir, Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Ronald L. Gainer for the United States. Reported below: 398 F. 2d 834. No. 836, Mise. Hulett v. New York. Ct. App. N. Y. Certiorari denied. No. 840, Mise. Macklin v. United States. C. A. D. C. Cir. Certiorari denied. Solicitor General Griswold for the United States. No. 865, Mise. Stephens v. Chairman, U. S. Railroad Retirement Board, et al. C. A. 5th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Weisl, and Alan S. Rosenthal for respondents. Reported below: 395 F. 2d 968. No. 912, Mise. Jackson v. United States. C. A. D. C. Cir. Certiorari denied. No. 936, Mise. Pasta v. United States. C. A. 5th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Paul C. Summitt for the United States. No. 968, Mise. Magee v. New Jersey. Sup. Ct. N. J. Certiorari denied. Peter Murray and Raymond A. Brown for petitioner. Reported below: 52 N. J. 352, 245 A. 2d 339. No. 980, Mise. Parker v. United States. C. A. 9th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg for the United States. Reported below: 400 F. 2d 248. 1098 OCTOBER TERM, 1968. February 24, 1969. 393 U. S. No. 960, Mise. Dirring v. United States. C. A. 1st Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Edward Fenig for the United States. Reported below: 400 F. 2d 578. No. 981, Mise. Kaufman v. United States. C. A. 7th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg for the United States. Reported below: 393 F. 2d 172. No. 986, Mise. Hacker v. District Court of Sedgwick County. Sup. Ct. Kan. Certiorari denied. No. 988, Mise. McKinney v. Mitchell, Attorney General, et al. C. A. D. C. Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Weisl, and Alan S. Rosenthal for respondents. No. 991, Mise. Moore v. United States. C. A. 5th Cir. Certiorari denied. Kirk M. McAlpin and A. Felton Jenkins, Jr., for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Kirby JV. Patterson for the United States. Reported below: 399 F. 2d 318. No. 999, Mise. Da Costa v. United States. C. A. 9th Cir. Certiorari denied. Luke McKissack for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Jerome M. Feit, and Robert G. Maysack for the United States. Reported below: 397 F. 2d 249. No. 1024, Mise. Castillo v. California. Ct. App. Cal., 1st App. Dist. Certiorari denied. ORDERS. 1099 393 U. S. February 24, 1969. No. 1010, Mise. Weems v. United States. C. A. 4th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, Jerome M. Feit, and Edward Fenig for the United States. Reported below: 398 F. 2d 274. No. 1019, Mise. Williams v. United States. C. A. 9th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Paul C. Summitt for the United States. Reported below: 399 F. 2d 492. No. 1027, Mise. Goldberg et al. v. United States. C. A. 2d Cir. Certiorari denied. H. Elliot Wales for Goldberg, and Gilbert S. Rosenthal for Teret, petitioners. Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg for the United States. Reported below: 401 F. 2d 644. No. 1033, Mise. Brown v. United States. C. A. 2d Cir. Certiorari denied. Solicitor General Griswold, As-sistant Attorney General Vinson, Beatrice Rosenberg, and Edward Fenig for the United States. No. 1038, Mise. Crawford v. Alabama. Ct. App. Ala. Certiorari denied. W. L. Longshore for petitioner. MacDonald Gallion, Attorney General of Alabama, and Leslie Hall and Walter S. Turner, Assistant Attorneys General, for respondent. Reported below: 44 Ala. App. 393, 210 So. 2d 685. No. 1051, Mise. Maguire v. United States. C. A. 9th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Robert G. May sack for the United States. Reported below: 396 F. 2d 327. 320-583 0 - 69 - 65 1100 OCTOBER TERM, 1968. February 24, 1969. 393 U. S. No. 1039, Mise. Newfield v. United States. C. A. 9th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Robert G. Maysack for the United States. No. 1040, Mise. Horn v. California. Sup. Ct. Cal. Certiorari denied. No. 1041, Mise. Waller v. New York. App. Div., Sup. Ct. N. Y., 4th Jud. Dept. Certiorari denied. Michael F. Dillon -for respondent. No. 1042, Mise. Tanksley v. Bowman, U. S. District Judge, et al. C. A. 10th Cir. Certiorari denied. No. 1043, Mise. Sharp v. Kansas et al. Sup. Ct. Kan. Certiorari denied. No. 1046, Mise. Bankston v. Pennsylvania. C. A. 3d Cir. Certiorari denied. No. 1050, Mise. Chastain v. California. Ct. App. Cal., 4th App. Dist. Certiorari denied. Reported below: 262 Cal. App. 2d 433, 68 Cal. Rptr. 765. No. 1056, Mise. Nettles v. Illinois. Cir. Ct., Iroquois County, Ill. Certiorari denied. No. 1057, Mise. Theriault v. United States. C. A. 8th Cir. Certiorari denied. Solicitor General Griswold for the United States. Reported below: 401 F. 2d 79. No. 1059, Mise. Cook v. United States. C. A. 4th Cir. Certiorari denied. Robert E. Pembleton for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Jerome M. Feit, and Roger A. Pauley for the United States. Reported below: 400 F. 2d 877. ORDERS. 1101 393U.S. February 24, 1969. No. 1064, Mise. Clemmons v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 1067, Mise. Knight v. Pate, Warden. C. A. 7th Cir. Certiorari denied. No. 1068, Mise. Huskey v. California. Sup. Ct. Cal. Certiorari denied. No. 1073, Mise. Cancel-Miranda et al. v. United States. C. A. D. C. Cir. Certiorari denied. Len W. Holt for petitioners. Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg for the United States. No. 1074, Mise. Brown v. Wainwright, Corrections Director. C. A. 5th Cir. Certiorari denied. No. 1075, Mise. Bogart et ux. v. California et al. C. A. 9th Cir. Certiorari denied. Peter D. Bogart, pro se, and for other petitioner. No. 1076, Mise. Trest v. United States. Ct. Cl. Certiorari denied. Solicitor General Griswold for the United States. No. 1077, Mise. McGurrin v. Shovlin, State Hospital Superintendent. C. A. 3d Cir. Certiorari denied. No. 1082, Mise. Dennis v. Florida. Dist. Ct. App. Fla., 3d Dist. Certiorari denied. No. 1087, Mise. Dikovics v. District Court, Jefferson County, Colorado, et al. C. A. 10th Cir. Certiorari denied. 1102 OCTOBER TERM, 1968. February 24, 1969. 393 U.S. No. 1085, Mise. Gates v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 1089, Mise. Wilson v. Pennsylvania. Sup. Ct. Pa. Certiorari denied. Mitchell A. Kramer for petitioner. Reported below: 431 Pa. 21, 244 A. 2d 734. No. 1090, Mise. Salcido v. California. Ct. App. Cal., 5th App. Dist. Certiorari denied. Reported below: 263 Cal. App. 2d 1, 69 Cal. Rptr. 193. No. 1091, Mise. Dearinger et ux. v. Washington. Sup. Ct. Wash. Certiorari denied. Joseph D. Mladinov for respondent. Reported below: 73 Wash. 2d 563, 439 P. 2d 971. No. 1093, Mise. DeJarnette v. United States et al. C. A. 6th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Edward Fenig for the United States. No. 1096, Mise. West v. United States. C. A. 5th Cir. Certiorari denied. Solicitor General Griswold, As-sistant Attorney General Vinson, and Beatrice Rosenberg for the United States. Reported below: 399 F. 2d 467. No. 1098, Mise. Taylor v. Alabama. Sup. Ct. Ala. Certiorari denied. Fred Blanton, Jr., for petitioner. MacDonald Gallion, Attorney General of Alabama, and David W. Clark and Walter S. Turner, Assistant Attorneys General, for respondent. Reported below: 282 Ala. 567, 213 So. 2d 566. No. 1103, Mise. Madison v. Minnesota. Sup. Ct. Minn. Certiorari denied. Reported below: 281 Minn. 170, 160 N. W. 2d 680. ORDERS. 1103 393 U.S. February 24, 1969. No. 1099, Mise. Bates v. McMann, Warden, et al. C. A. 2d Cir. Certiorari denied. No. 1100, Mise. Lawrence v. Wainwright, Corrections Director. C. A. 5th Cir. Certiorari denied. No. 1109, Mise. Arey et al. v. Brown, Director, Virginia Department of Welfare and Institutions. C. A. 4th Cir. Certiorari denied. No. 1110, Mise. Campbell v. Michigan. Sup. Ct. Mich. Certiorari denied. No. 1111, Mise. McDaniel v. Texas. C. A. 5th Cir. Certiorari denied. No. 1113, Mise. Rocha v. United States. C. A. 5th Cir. Certiorari denied. Solicitor General Griswold, As-sistant Attorney General Vinson, Beatrice Rosenberg, and Robert G. Maysack for the United States. Reported below: 401 F. 2d 529. No. 1114, Mise. Berry v. New York. App. Div., Sup. Ct. N. Y., 4th Jud. Dept. Certiorari denied. No. 1115, Mise. Carter v. United States. C. A. 3d Cir. Certiorari denied. Murray C. Goldman for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Kirby W. Patterson for the United States. Reported below: 401 F. 2d 748. No. 1116, Mise. Williams v. Field, Men’s Colony Superintendent. Sup. Ct. Cal. Certiorari denied. No. 1117, Mise. Gilbert v. LaVallee, Warden. C. A. 2d Cir. Certiorari denied. 1104 OCTOBER TERM, 1968. February 24, 1969. 393 U.S. No. 1121, Mise. Ingram v. Field, Men’s Colony Superintendent. Sup. Ct. Cal. Certiorari denied. No. 1122, Mise. Trigg v. Illinois. Sup. Ct. Ill. Certiorari denied. No. 1123, Mise. Lopez v. California. Sup. Ct. Cal. Certiorari denied. No. 1124, Mise. Perry v. Wade, District Attorney of Dallas County. Ct. Crim. App. Tex. Certiorari denied. No. 1126, Mise. Morales v. California. Ct. App. Cal., 4th App. Dist. Certiorari denied. Julius J. Novack for petitioner. Reported below: 263 Cal. App. 2d 368, 69 Cal. Rptr. 402. No. 1127, Mise. Mercer v. Amarando, Clerk of Quarter Sessions Court, et al. C. A. 3d Cir. Certiorari denied. No. 1134, Mise. Martin v. Maroney, Correctional Superintendent, et al. C. A. 3d Cir. Certiorari denied. No. 1136, Mise. Berube v. United States. C. A. 4th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Jerome M. Feit for the United States. Reported below: 401 F. 2d 773. No. 1143, Mise. Holland v. Sheehy, Reformatory Superintendent, et al. C. A. 4th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Mervyn Hamburg for respondents. ORDERS. 1105 393 U. S. February 24, 1969. No. 1137, Mise. Gadson v. Florida. Dist. Ct. App. Fla., 2d Dist. Certiorari denied. Reported below: 211 So. 2d 857. No. 1139, Mise. Furtak v. Mancusi, Warden. Ct. App. N. Y. Certiorari denied. No. 1141, Mise. Williams v. Dutton, Warden. C. A. 5th Cir. Certiorari denied. James W. Dorsey for petitioner. Arthur K. Bolton, Attorney General of Georgia, and Alfred L. Evans, Jr., and Marion 0. Gordon, Assistant Attorneys General, for respondent. Reported below: 400 F. 2d 797. No. 1142, Mise. Stevenson v. New York. Ct. App. N. Y. Certiorari denied. No. 1144, Mise. Long v. United States. C. A. 5th Cir. Certiorari denied. Solicitor General Griswold, As-sistant Attorney General Vinson, and Beatrice Rosenberg for the United States. No. 1145, Mise. Kennett v. Municipal Court, Los Angeles Judicial District, County of Los Angeles. C. A. 9th Cir. Certiorari denied. No. 1147, Mise. Rapp v. Page, Warden. C. A. 10th Cir. Certiorari denied. No. 1148, Mise. Van Duyne v. Yeager, Principal Keeper, et al. C. A. 3d Cir. Certiorari denied. No. 1150, Mise. Mercuri v. New York. Ct. App. N. Y. Certiorari denied. No. 1154, Mise. Darby v. Maryland. Ct. Sp. App. Md. Certiorari denied. Reported below: 3 Md. App. 407, 239 A. 2d 584. 1106 OCTOBER TERM, 1968. February 24, 1969. 393 U. S. No. 1151, Mise. Whitson v. Field, Men’s Colony Superintendent. Sup. Ct. Cal. Certiorari denied. No. 1152, Mise. Posey v. South Carolina. C. A. 4th Cir. Certiorari denied. No. 1155, Mise. Covin v. New York. App. Div., Sup. Ct. N. Y., 4th Jud. Dept. Certiorari denied. No. 1156, Mise. Gunner v. New York. App. Term, Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied. Frank S. Hogan and Michael R. Juviler for respondent. No. 1160, Mise. Newman v. Warden, Maryland Penitentiary. Ct. Sp. App. Md. Certiorari denied. No. 1163, Mise. Pretlow v. Virginia. C. A. 4th Cir. Certiorari denied. No. 1164, Mise. Ellis et ux. v. Harada et ux. Sup. Ct. Hawaii. Certiorari denied. No. 1165, Mise. Diamond v. Nelson, Warden. C. A. 9th Cir. Certiorari denied. No. 1166, Mise. Konczak v. Pate, Warden. C. A. 7th Cir. Certiorari denied. No. 1169, Mise. Conover v. Herold, State Hospital Director. App. Div., Sup. Ct. N. Y., 3d Jud. Dept. Certiorari denied. No. 1176, Mise. Jaimez v. California. Ct. App. Cal., 4th App. Dist. Certiorari denied. No. 1177, Mise. Haney v. Warden, Maryland Penitentiary. C. A. 4th Cir. Certiorari denied. ORDERS. 1107 393 U. S. February 24, 1969. No. 1178, Mise. Monahan v. New York. App. Div., Sup. Ct. N. Y., 4th Jud. Dept. Certiorari denied. No. 1180, Mise. Elksnis v. United States. C. A. 2d Cir. Certiorari denied. Solicitor General Griswold for the United States. No. 1182, Mise. Simons v. New York. Ct. App. N. Y. Certiorari denied. Reported below: 22 N. Y. 2d 533, 240 N. E. 2d 22. No. 1186, Mise. Thwing v. South Dakota. Cir. Ct. S. D., 4th Jud. Cir. Certiorari denied. No. 1189, Mise. Guenther v. Alabama. Sup. Ct. Ala. Certiorari denied. MacDonald Gallion, Attorney General of Alabama, and David W. Clark and Lloyd G. Hart, Assistant Attorneys General, for respondent. Reported below: 282 Ala. 620, 213 So. 2d 679. No. 1191, Mise. White v. Peyton, Penitentiary Superintendent. C. A. 4th Cir. Certiorari denied. No. 1194, Mise. Stebbins v. State Farm Mutual Automobile Insurance Co. et al. C. A. D. C. Cir. Certiorari denied. Earle K. Shawe and Robert E. Anderson for State Farm Mutual Automobile Insurance Co. et al., and James F. Bromley for Keystone Insurance Co. et al., respondents. No. 1196, Mise. Chesnut et al. v. Utah. Sup. Ct. Utah. Certiorari denied. Reported below: 20 Utah 2d 268, 437 P. 2d 197. No. 1199, Mise. Mull v. United States. C. A. 9th Cir. Certiorari denied. Solicitor General Griswold for the United States. Reported below: 402 F. 2d 571. 1108 OCTOBER TERM, 1968. February 24, 1969. 393 U. S. No. 1197, Mise. Baines et al. v. McGrath, Correction Commissioner. Ct. App. N. Y. Certiorari denied. William M. Kunstler, Michael Meltsner, and Melvyn Zarr for petitioners. No. 1201, Mise. Casias et al. v. Colorado. C. A. 10th Cir. Certiorari denied. Reported below: 398 F. 2d 486. No. 1203, Mise. Pennington v. Georgia. Ct. App. Ga. Certiorari denied. Albert M. Horn for petitioner. Lewis R. Slaton, J. Walter Le Craw, and Carter Goode for respondent. Reported below: 117 Ga. App. 701, 161 S. E. 2d 327. No. 1204, Mise. Stubbs v. New York. App. Div., Sup. Ct. N. Y., 4th Jud. Dept. Certiorari denied. Bruce K. Carpenter for petitioner. No. 1205, Mise. Wallace v. New York. App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied. No. 1206, Mise. Hussar v. California. C. A. 9th Cir. Certiorari denied. No. 1210, Mise. Conlon v. Fitzharris, Training Facility Superintendent. Sup. Ct. Cal. Certiorari denied. No. 1211, Mise. Porter v. Kansas. Sup. Ct. Kan. Certiorari denied. Reported below: 201 Kan. 778, 443 P. 2d 360. No. 1214, Mise. Oatis v. Nelson, Warden. Ct. App. Cal., 2d App. Dist. Certiorari denied. Reported below: 264 Cal. App. 2d 324, 70 Cal. Rptr. 524. ORDERS. 1109 393 U. S. February 24, 1969. No. 1213, Mise. SCHLETTE V. CALIFORNIA ET AL. Slip. Ct. Cal. Certiorari denied. No. 1217, Mise. Hull v. California. Sup. Ct. Cal. Certiorari denied. No. 1219, Mise. Boynton v. Ohio. Sup. Ct. Ohio. Certiorari denied. No. 1220, Mise. Stanley v. United States. Ct. Cl. Certiorari denied. Solicitor General Griswold for the United States. No. 1222, Mise. Major v. Massachusetts. Sup. Jud. Ct. Mass. Certiorari denied. Reported below: 354 Mass. 666, 241 N. E. 2d 822. No. 1223, Mise. Kuk v. Hocker, Warden. Sup. Ct. Nev. Certiorari denied. No. 1227, Mise. Tanner v. United States. C. A. 8th Cir. Certiorari denied. Solicitor General Griswold for the United States. Reported below: 401 F. 2d 281. No. 1228, Mise. Williams v. Alabama. Sup. Ct. Ala. Certiorari denied. No. 1229, Mise. Smith v. Pate, Warden. C. A. 7th Cir. Certiorari denied. No. 1234, Mise. Stevenson v. New York. App, Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied Arnold T. Taub for respondent. No. 1238, Mise. Phillips v. Greene County, Tennessee. C. A. 6th Cir. Certiorari denied. James N. Hardin for respondent. 1110 OCTOBER TERM, 1968. February 24, 1969. 393 U.S. No. 589, Mise. Sullivan v. Virginia. Sup. Ct. App. Va. Certiorari denied. Mr. Justice White, with whom Mr. Justice Brennan joins, dissenting. After denying petitioner’s motion to suppress, the trial court below admitted into evidence a tie clasp, keys, radio, and coins which had been searched for and seized in the home of petitioner’s mother, where they had been left by petitioner. Although the trial judge found invalid the search warrant under which the police purported to conduct their search, he nevertheless held that these items were admissible against petitioner because his mother had consented to the search and, in the alternative, because petitioner lacked standing to challenge the search and seizure. The first ground advanced by the trial court for denying the suppression motion is appropriate for reconsideration in light of the Court’s subsequent decision in Bumper v. North Carolina, 391 U. S. 543 (1968). The second ground plainly is inconsistent with the Court’s decision in United States v. Jeffers, 342 U. S. 48 (1951), where it was held that the Fourth Amendment protects “effects” as well as “houses” and that the defendant “unquestionably had standing to object” to the warrantless seizure of narcotics which he had left in his aunts’ hotel room. I would grant certiorari in this case to consider the apparent conflict between the decision below and the decisions of this Court in Jeffers and Bumper. No. 1253, Mise. Burke v. Langlois, Warden. Sup. Ct. R. I. Certiorari denied. Herbert F. De Simone, Attorney General of Rhode Island, Donald P. Ryan, Assistant Attorney General, and Irving Brodsky and Luc R. La Brosse, Special Assistant Attorneys General, for respondent. Reported below: ------- R. I.-----, 244 A. 2d 593. ORDERS. 1111 393 U.S. February 24, 1969. No. 1298, Mise. Dunson v. United States. C. A. 9th Cir. Certiorari denied. James F. Hewitt for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg for the United States. Reported below: 404 F. 2d 447. No. 1240, Mise. Durso et al. v. Illinois. Sup. Ct. Ill. Certiorari denied. John J. Crown for petitioner Durso. Reported below: 40 Ill. 2d 242, 239 N. E. 2d 842. No. 1277, Mise. Mayock v. Martin, State Hospital Superintendent. Sup. Ct. Conn. Certiorari denied. Joseph T. Sweeney for petitioner. Reported below: 157 Conn. 56, 245 A. 2d 574. No. 590, Mise. Ashby v. Virginia. Sup. Ct. App. Va. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Robert Y. Button, Attorney General of Virginia, R. D. Mcll-waine III, First Assistant Attorney General, and Charles Shepherd Cox, Jr., Assistant Attorney General, for respondent. No. 1084, Mise. Irby et al. v. United States. C. A. D. C. Cir. Certiorari denied. Mr. Justice Marshall took no part in the consideration or decision of this petition. Solicitor General Griswold for the United States. No. 1212, Mise. Bearden v. United States. C. A. 5th Cir. Certiorari denied. Mr. Justice Marshall took no part in the consideration or decision of this petition. Solicitor General Griswold for the United States. Reported below: 403 F. 2d 782. 1112 OCTOBER TERM, 1968. February 24, 1969. 393 U. S. Rehearing Denied. No. 14. Commonwealth Coatings Corp. v. Continental Casualty Co. et al., ante, p. 145; No. 17. United States v. Donruss Co., ante, p. 297; No. 451. Fort v. Illinois, ante, p. 1014; No. 490. Boyd et al. v. Clark, Attorney General, et al., ante, p. 316; No. 572. Clark, Attorney General, et al. v. Gabriel, ante, p. 256; No. 583. Sanner et ux. v. Trustees of the Sheppard & Enoch Pratt Hospital, ante, p. 982; No. 648. Markham Advertising Co., Inc., et al. v. Washington et al., ante, p. 316 ; No. 671. Leonard, Administratrix v. Wharton, Administrator, ante, p. 1028; No. 733. Williams et al. v. Virginia State Board of Elections et al., ante, p. 320; No. 734. Alaska et al. v. International Union of Operating Engineers, Local 302, AFL-CIO, et al., ante, p. 405; No. 737. Napue v. United States, ante, p. 1024; No. 745. Hilliard v. City of Gainesville, ante, p. 321; No. 752. Milton Frank Allen Publications, Inc. v. Georgia Association of Petroleum Retailers, Inc., ante, p. 1025; No. 199, Mise. Levy et al. v. Montgomery County et al., ante, p. 877; No. 803, Mise. Webb v. Comstock, Conservation Center Superintendent, ante, p. 1033; No. 820, Mise. Williams v. United States, ante, p. 1034; No. 835, Mise. Dooner v. Buckman, State Hospital Director, ante, p. 1033 ; and No. 833, Mise. Bumpus v. Massachusetts, ante, p. 1034. Petitions for rehearing denied. ORDERS. 1113 393 U. S. February 24, 1969. No. 873, Mise. Watkins v. Wisconsin, ante, p. 1036; No. 889, Mise. Paulekas v. Clark, Attorney General, et al., ante, p. 1037; No. 961, Mise. Anderten v. Erickson, Warden, ante, p. 1041; No. 1008, Mise. Schiavoni, Administrator v. Honus Wagner Co., ante, p. 1042; and No. 1047, Mise. McNeill v. State Use Industries, Automobile Registration Plates Department, ante, p. 1059. Petitions for rehearing denied. No. 740, Mise. Beltowski v. Minnesota, ante, pp. 988, 1045. Motion for leave to file second petition for rehearing denied. No. 798, Mise. Johnson v. United States, ante, p. 1059; and No. 884, Mise. Cachoian v. United States, ante, p. 1044. Petitions for rehearing denied. Mr. Justice Marshall took no part in the consideration or decision of these petitions. Assignment Orders. An order of The Chief Justice designating and assigning Mr. Justice Reed (retired) to perform judicial duties in the United States Court of Claims on February 4, 1969, and for such further time as may be required to complete unfinished business, pursuant to 28 U. S. C. § 294 (a), is ordered entered on the minutes of this Court, pursuant to 28 U. S. C. § 295. An order of The Chief Justice designating and assigning Mr. Justice Clark (retired) to perform judicial duties in the United States Court of Appeals for the Second Circuit beginning February 18, 1969, and ending February 20, 1969, and for such further time as may be required to complete unfinished business, pursuant to 28 U. S. C. § 294 (a), is ordered entered on the'minutes of this Court, pursuant to 28 U. S. C. § 295. 1114 OCTOBER TERM, 1968. February 28, March 3, 1969. February 28, 1969. 393 U.S. Dismissal Under Rule 60. No. 1343, Mise. Haven v. United States. C. A. 9th Cir. Petition for writ of certiorari dismissed pursuant to Rule 60 of the Rules of this Court. Solicitor General Griswold for the United States. Reported below: 403 F. 2d 384. March 3, 1969. Miscellaneous Orders. No. 436. Rodrigue et al. v. Aetna Casualty & Surety Co. et al. C. A. 5th Cir. [Certiorari granted, ante, p. 932.] Motion for leave to file petitioners’ reply brief after argument granted. Philip E. Henderson on the motion. No. 1452, Mise. Fox v. Brown, Secretary of the Air Force, et al. C. A. 2d Cir. Application for stay pending review on certiorari presented to Mr. Justice Douglas, and by him referred to the Court, denied. Moses M. Falk for applicant. Solicitor General Griswold in opposition. Reported below: 402 F. 2d 837. No. 901, Mise. Watson v. Schneckloth, Conservation Center Superintendent. Motion for leave to file petition for writ of habeas corpus denied. Thomas C. Lynch, Attorney General of California, Doris H. Maier, Assistant Attorney General, and Arnold O. Overoye, Deputy Attorney General, in opposition. No. 1247, Mise. Magee v. Schade et al.; and No. 1257, Mise. Foster v. Cummings, U. S. Circuit Judge, et al. Motions for leave to file petitions for writs of mandamus denied. Solicitor General Griswold in opposition in both cases. ORDERS. 1115 393 U. S. March 3, 1969. No. 1336, Mise. Delagarde v. Krueger, Warden; No. 1374, Mise. Shefton v. Warden, Maryland Penitentiary ; No. 1384, Mise. Carter v. Mitchell, Attorney General, et al.; and No. 1397, Mise. Barnes v. Texas et al. Motions for leave to file petitions for writs of habeas corpus denied. Probable Jurisdiction Noted. No. 908. Carter et al. v. Jury Commission of Greene County et al. Appeal from D. C. N. D. Ala. Probable jurisdiction noted and case set for oral argument immediately following No. 842 [ante, p. 1078.] Jack Greenberg, Norman C. Amaker, and Orzell Billingsley, Jr., for appellants. MacDonald Gallion, Attorney General of Alabama, and Robert P. Bradley, Assistant Attorney General, for appellees. Reported below: 298 F. Supp. 181. No. 938. Hadley et al. v. Junior College District of Metropolitan Kansas City et al. Appeal from Sup. Ct. Mo. Probable jurisdiction noted. Irving Achtenberg for appellants. William J. Burrell and Heywood H. Davis for Junior College District of Metropolitan Kansas City et al., and John C. Danforth, pro se, and Louis C. DeFeo, Jr., Assistant Attorney General, for the Attorney General of Missouri, appellees. Reported below: 432 S. W. 2d 328. Certiorari Granted. No. 709, Mise. Ashe v. Swenson, Warden. C. A. 8th Cir. Motion for leave to proceed in forma pauperis granted. Certiorari granted and case transferred to appellate docket. Norman H. Anderson, Attorney General of Missouri, and Maxim N. Bach, Assistant Attorney General, for respondent. Reported below: 399 F. 2d 40. 320-583 0 - 69 - 66 1116 OCTOBER TERM, 1968. March 3, 1969. 393 U. S. No. 798. United States v. Montgomery County Board of Education et al.; and No. 997. Carr et al. v. Montgomery County Board of Education et al. C. A. 5th Cir. Certiorari granted. Cases consolidated and a total of two hours allotted for oral argument. Solicitor General Griswold, Assistant Attorney General Pollak, and Nathan Lewin for the United States in No. 798, and Fred D. Gray, Jack Greenberg, James M. Nabrit III, and Melvyn Zarr for petitioners in No. 997. Vaughan Hill Robison and Joseph D. Phelps for respondents in both cases. Reported below: 400 F. 2d 1, 402 F. 2d 782. No. 900. Detroit & Toledo Shore Line Railroad Co. v. United Transportation Union. C. A. 6th Cir. Motion to substitute United Transportation Union in place of Brotherhood of Locomotive Firemen & Enginemen as the party respondent granted. Certiorari granted. Francis M. Shea, Ralph J. Moore, Jr., David W. Miller, James A. Wilcox, and John M. Curphey for petitioner. Harold C. Heiss and Richard R. Lyman for respondent. Reported below: 401 F. 2d 368. No. 925. National Labor Relations Board v. J. H. Rutter-Rex Manufacturing Co., Inc., et al. C. A. 5th Cir. Certiorari granted. Solicitor General Gris-> wold, Arnold Ordman, Dominick L. Manoli, Norton J. Come, and Allison W. Brown, Jr., for petitioner. Peter H. Beer for respondent J. H. Rutter-Rex Manufacturing Co., Inc. Reported below: 399 F. 2d 356. Certiorari Denied. No. 913. Sarisohn v. Appellate Division of the Supreme Court, Second Department. Ct. App. N. Y. Certiorari denied. Frederic Block for petitioner. Solomon A. Klein for respondent. 1117 ORDERS. 393 U. S. March 3, 1969. No. 948. Von Carstanjen v. United States. Ct. Cl. Certiorari denied. Robert C. Lea, Jr., for petitioner. Solicitor General Griswold for the United States. No. 951. Muse v. United States. C. A. 8th Cir. Certiorari denied. Morris A. Shenker for petitioner. Solicitor General Griswold, Assistant Attorney General Walters, Joseph M. Howard, and John B. Brant for the United States. Reported below: 405 F. 2d 40. No. 952. J. H. Rutter-Rex Manufacturing Co., Inc. v. National Labor Relations Board et al. C. A. 5th Cir. Certiorari denied. Peter H. Beer for petitioner. Solicitor General Griswold and Arnold Ordman for respondent National Labor Relations Board. Reported below: 399 F. 2d 356. No. 957. Cunard Steamship Co., Ltd. v. Burns et al. C. A. 2d Cir. Certiorari denied. Thomas V. Kinyham for petitioner. Chester A. Hahn for Burns, and Sidney A. Schwartz for John T. Clark & Son, respondents. Reported below: 404 F. 2d 60. No. 960. Kazubowski v. Kazubowski. App. Ct. Ill., 3d Dist. Certiorari denied. Frank J. Delany and Ray E. Dougherty for petitioner. Paul A. Cushman for respondent. Reported below: 93 Ill. App. 2d 126, 235 N. E. 2d 664. No. 962. Patat et al. v. Day Companies, Inc. C. A. 5th Cir. Certiorari denied. Hosea Alexander Stephens for petitioners. James D. Maddox for respondent. Reported below: 403 F. 2d 792. No. 965. McKenzie v. United States. Ct. Cl. Certiorari denied. Solicitor General Griswold for the United States. 1118 OCTOBER TERM, 1968. March 3, 1969. 393 U. S. No. 964. Inter National Bank of Miami v. Brock, Trustee, et al. C. A. 5th Cir. Certiorari denied. Sam I. Silver for petitioner. Irving M. Wolff for respondents. Reported below: 400 F. 2d 833. No. 1053. Faircloth et vir v. Hester. C. A. 5th Cir. Certiorari denied. Albert W. Stubbs and Jesse G. Bowles for respondent. Reported below: 405 F. 2d 620. No. 780. Franklin Life Insurance Co. v. United States. C. A. 7th Cir. Certiorari denied. Mr. Justice Fortas took no part in the consideration or decision of this petition. Louis F. Gillespie, Frederick H. Stone, Dennis G. Lyons, and George B. Gillespie for petitioner. Solicitor General Griswold, Assistant Attorney General Walters, Gilbert E. Andrews, and Thomas L. Stapleton for the United States. Fred C. Scribner, Jr., and Thomas C. Thompson, Jr., for American Life Convention, as amicus curiae, in support of the petition. Reported below: 399 F. 2d 757. No. 896. Kalerak et al. v. Hickel, Secretary of the Interior, et al. C. A. 9th Cir. Certiorari denied. Mr. Justice Marshall took no part in the consideration or decision of this petition. George Kaufmann for petitioners. Solicitor General Griswold, Acting Assistant Attorney General Taylor, and Roger P. Marquis for Hickel, and G. Kent Edwards, Attorney General of Alaska, and Robert L. Hartig, Assistant Attorney General, for the State of Alaska, respondents. Reported below: 396 F. 2d 746. No. 947. Buettner et al. v. Virginia. Sup. Ct. App. Va. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Mark P. Friedlander, Mark P. Friedlander, Jr., Blaine P. Friedlander, and Harry P. Friedlander for petitioners. William B. Moore for respondent. ORDERS. 1119 393 U. S. March 3, 1969. No. 851. Gefen v. United States. C. A. 5th Cir. Certiorari denied. Mr. Justice Black and Mr. Justice Douglas are of the opinion that certiorari should be granted. Joseph M. Glickstein, Jr., for petitioner. Solicitor General Griswold, Assistant Attorney General Walters, Loring W. Post, and Robert I. Waxman for the United States. Reported below: 400 F. 2d 476. No. 949. Kaiser Industries Corp, et al. v. McLouth Steel Corp. C. A. 6th Cir. Motion of Government of Austria for leave to file a brief, as amicus curiae, granted. Certiorari denied. William H. Webb, John A. Dienner, John M. Webb, W. Brown Morton, Jr., and George E. Brand, Jr., for petitioners. William B. Cudlip, John Vaughan Groner, and Ronald F. Ball for respondent. David Ginsburg for Government of Austria, as amicus curiae, in support of the petition. Reported below: 400 F. 2d 36. No. 726, Mise. Smith v. Beto, Corrections Director. C. A. 5th Cir. Certiorari denied. Crawjord C. Martin, Attorney General of Texas, Nola White, First Assistant Attorney General, Robert C. Flowers and Howard M. Fender, Assistant Attorneys General, and Hawthorne Phillips for respondent. Reported below: 395 F. 2d 747. No. 940. Kenney v. American Can Co. C. A. 9th Cir. Certiorari and other relief denied. Reported below: 402 F. 2d 478. No. 688, Mise. Hanger et al. v. United States. C. A. 8th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, and Jerome M. Feit for the United States. Reported below: 398 F. 2d 91. 1120 OCTOBER TERM, 1968. March 3, 1969. 393 U. S. No. 968. Stanek v. Civil Service Commission of City of Pittsburgh et al. Allegheny County Ct. (now Common Pleas Ct.). Certiorari denied. Robert E. Kline for petitioner. Robert E. Dauer for respondents. No. 753, Mise. Haynes v. United States. C. A. 2d Cir. Certiorari denied. James W. Sherman for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Ronald L. Gainer for the United States. Reported below: 398 F. 2d 980. No. 773, Mise. Gafford v. Alaska. Sup. Ct. Alaska. Certiorari denied. Reported below: 440 P. 2d 405. No. 831, Mise. Bullard v. Sheehy, Reformatory Superintendent. C. A. 4th Cir. Certiorari denied. No. 978, Mise. Guido v. United States. C. A. 7th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Vinson, Jerome M. Feit, and Kirby W. Patterson for the United States. Reported below: 400 F. 2d 73. No. 1080, Mise. Robinson v. United States. C. A. 2d Cir. Certiorari denied. Frederic A. Johnson for petitioner. Solicitor General Griswold, Acting Assistant Attorney General Kossack, Beatrice Rosenberg, and Edward Fenig for the United States. No. 1171, Mise. Fuller v. United States. C. A. D. C. Cir. Certiorari denied. Ezekiel G. Stoddard and A. Alvis Layne for petitioner. Solicitor General Griswold, Acting Assistant Attorney General Kossack, Beatrice Rosenberg, and Paul C. Summitt for the United States. Reported below: ------U. S. App. D. C.------, 407 F. 2d 1199. 1121 ORDERS. 393 U. S. March 3, 1969. No. 1153, Mise. Bonicamp v. United States. C. A. 10th Cir. Certiorari denied. Solicitor General Griswold for the United States. No. 1195, Mise. Glaziou et al. v. United States. C. A. 2d Cir. Certiorari denied. Leon B. Polsky and Phylis Skloot Bamberger for petitioners. Solicitor General Griswold for the United States. Reported below: 402 F. 2d 8. No. 1225, Mise. Byes v. United States. C. A. 8th Cir. Certiorari denied. Solicitor General Griswold for the United States. Reported below: 402 F. 2d 492. No. 1232, Mise. Brown v. Illinois. Sup. Ct. Ill. Certiorari denied. Reported below: 41 Ill. 2d 230, 242 N. E. 2d 242. No. 1235, Mise. White v. Arizona ex rel. Eyman, Warden. C. A. 9th Cir. Certiorari denied. No. 1236, Mise. Linzy v. California. Sup. Ct. Cal. Certiorari denied. No. 1245, Mise. Posner v. Reistertown Federal Savings & Loan Assn. Ct. App. Md. Certiorari denied. No. 1256, Mise. Campbell v. United States. Ct. Cl. Certiorari denied. Solicitor General Griswold for the United States. No. 1289, Mise. Clifton v. United States. C. A. 9th Cir. Certiorari denied. Solicitor General Griswold, Assistant Attorney General Martz, S. Billingsley Hill, and Jacques B. Gelin for the United States. Reported below: 401 F. 2d 896. 1122 OCTOBER TERM, 1968. March 3, 1969. 393 U. S. No. 1268, Mise. Cannon v. New York. App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied. Leon B. Polsky for petitioner. No. 1275, Mise. Miller v. Thorn, Executrix. C. A. D. C. Cir. Certiorari denied. Charles William Freeman for petitioner. No. 1278, Mise. Greer v. Wisconsin. Sup. Ct. Wis. Certiorari denied. No. 1279, Mise. Silver v. Rhay, Penitentiary Superintendent. C. A. 9th Cir. Certiorari denied. No. 1280, Mise. Furtak v. New York. Ct. App. N. Y. Certiorari denied. No. 1286, Mise. Rucker v. United States. C. A. D. C. Cir. Certiorari denied. Solicitor General Griswold for the United States. No. 1288, Mise. Mace v. Missouri. Sup. Ct. Mo. Certiorari denied. No. 1292, Mise. Mayberry v. New Jersey. Sup. Ct. N. J. Certiorari denied. Martin J. Queenan for respondent. Reported below: 52 N. J. 493, 246 A. 2d 452. No. 1294, Mise. Brown v. Virginia. C. A. 4th Cir. Certiorari denied. No. 1297, Mise. Myrick v. Peyton, Penitentiary Superintendent. C. A. 4th Cir. Certiorari denied. No. 1304, Mise. Sullivan v. Texas. Ct. Crim. App. Tex. Certiorari denied. Reported below: 433 S. W. 2d 904. ORDERS. 1123 393 U.S. March 3, 1969. No. 1306, Mise. Williams v. Illinois. Sup. Ct. Ill. Certiorari denied. Reported below: 40 Ill. 2d 522, 240 N. E. 2d 645. No. 1318, Mise. Marter v. Georgia. Sup. Ct. Ga. Certiorari denied. Arthur K. Bolton, Attorney General of Georgia, and Marion 0. Gordon and Mathew Robins, Assistant Attorneys General, for respondent. Reported below: 224 Ga. 569, 163 S. E. 2d 702. No. 1333, Mise. Beale v. Virginia. C. A. 4th Cir. Certiorari denied. No. 1335, Mise. Furtak v. Mancusi, Warden. County Ct., Wyoming County, N. Y. Certiorari denied. No. 1369, Mise. Furtak v. Mancusi, Warden. C. A. 2d Cir. Certiorari denied. No. 480, Mise. Wallace v. Georgia. Sup. Ct. Ga. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Albert M. Horn for petitioner. Arthur K. Bolton, Attorney General of Georgia, Marion O. Gordon, Assistant Attorney General, and William R. Childers, Jr., Deputy Assistant Attorney General, for respondent. Reported below: 224 Ga. 255, 161 S. E. 2d 288. No. 994, Mise. Brent v. White, Warden. C. A. 5th Cir. Certiorari denied. The Chief Justice and Mr. Justice Douglas are of the opinion that certiorari should be granted on the basis of the dissents in Schmerber n. California, 384 U. S. 757. Jack Greenberg, James M. Nabrit III, and Anthony G. Amsterdam for petitioner. Jack P. F. Gremillion and Ralph L. Roy for respondent. Reported below: 398 F. 2d 503. 1124 OCTOBER TERM, 1968. March 3, 1969. 393 U.S. Rehearing Denied. No. 13. Baltimore & Ohio Railroad Co. et al. v. Aberdeen & Rockfish Railroad Co. et al., ante, p. 87; No. 667. Garner et ux. v. Commissioner of Internal Revenue, ante, p. 1027; No. 725. Patriarca et al. v. United States, ante, p. 1022; No. 726. Sutton v. Adams, Secretary of State of Florida, et al., ante, p. 404; No. 758. John Langenbacher Co., Inc. v. National Labor Relations Board, ante, p. 1049; No. 763. Rosee v. Board of Trade of the City of Chicago et al., ante, p. 1055; No. 773. Valenti v. Rockefeller, Governor of New York, et al., ante, p. 405; No. 790. Provision Salesmen & Distributors Union, Local 627, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO v. United States et al., ante, p. 480; No. 745, Mise. Marson v. United States, ante, p. 1056; No. 782, Mise. Hill v. United States, ante, p. 1033; No. 887, Mise. Robinson v. United States, ante, p. 1057; No. 998, Mise. Thompson v. Parker, Warden, ante, p. 1059; and No. 1062, Mise. Harris v. Rhay, Penitentiary Superintendent, ante, p. 1061. Petitions for rehearing denied. No. 741. Dickinson, Comptroller of Florida v. First National Bank of Homestead et al., ante, p. 409. Petition for rehearing denied. Mr. Justice Fortas took no part in the consideration or decision of this petition. INDEX ABSENCE FROM JURISDICTION. See Constitutional Law, V, 1; Witnesses. ABSTENTION. See Jurisdiction, 1; Procedure, 2. ACADEMIC FREEDOM. See Constitutional Law, III, 2. ACCOMPLICE TESTIMONY. See Courts-Martial; Judicial Review, 1. ACCUMULATED EARNINGS. See Taxes, 1. ADMINISTRATIVE PROCEDURE. See also Federal Power Commission; Federal Trade Commission, 1-2; Interstate Commerce Commission, 1-2; Judicial Review, 3; Jurisdiction, 2; National Labor Relations Act; Procedure, 3; Securities and Exchange Commission, 1-3. 1. Federal Trade Commission—Unfair methods of competition.— The FTC’s determinations of ‘‘unfair methods of competition” under § 5 of the Federal Trade Commission Act are entitled to great weight. FTC v. Texaco, p. 223. 2. National Labor Relations Act—NLRB’s authority to order payment of fringe benefits.—NLRB’s authority under the Act to remedy unfair labor practice which occurred when respondent refused to sign collective bargaining agreement negotiated on his behalf included power to require payment of fringe benefits under NLRB’s remedial authority to take “affirmative action including reinstatement of employees with or without back pay,” which is not “affected by any other means of adjustment . . . established by agreement, law, or otherwise . . . .” NLRB v. Strong, p. 357. ADMIRALTY. See Constitutional Law, VI; Procedure, 11. AFFIDAVITS. See Constitutional Law, IV, 1. AGENCY FOR INTERNATIONAL DEVELOPMENT. See Anti- trust Acts, 1; Mootness, 2. AKRON CITY CHARTER. See Constitutional Law, II, 4; Mootness, 1. ALABAMA. See Interstate Commerce; Taxes, 2. ALASKA. See Federal Communications Act; Procedure, 1. ALIBI DEFENSE. See Constitutional Law, I, 1; Procedure, 9. 1125 1126 INDEX. AMERICAN INDEPENDENT PARTY. See Constitutional Law, II, 3. ANTI-EVOLUTION LAW. See Constitutional Law, III, 2. ANTITRUST ACTS. See also Administrative Procedure, 1; Federal Trade Commission, 1-2; Mootness, 2. 1. Sherman Act—Exchange oj price data—Price stabilization.— Reciprocal exchange of price information was concerted action sufficient to establish combination or conspiracy ingredient of Sherman Act, and resulting price stabilization had an anticompetitive effect in the corrugated container industry, chilling vigor of price competition. United States v. Container Corp., p. 333. 2. Sherman Act — Webb-Pomerene Act exemption — Foreign trade.—The antitrust exemption of the Webb-Pomerene Act, which was enacted to “extend our foreign trade” without significantly injuring American consumers, does not insulate transactions initiated, controlled, and financed by the United States Government, merely because a foreign government is the nominal “purchaser.” U. S. v. Phosphate Export Assn., p. 199. APARTMENTS. See Constitutional Law, I, 2-3; Public Housing. APPEALS. See Constitutional Law, I, 1; II, 2; Jurisdiction, 1; Procedure, 2, 9. APPROVAL REQUIREMENTS. See Jurisdiction, 3; Procedure, 10, 12-13; Three-Judge Courts; Voting Rights Act of 1965, 1-3. ARBITRATION. Possible bias—Disclosure by arbitrator—Business connections.— Arbitrators should disclose to the parties any dealings which might, create an impression of possible bias, and since business connection between arbitrator and prime contractor was not disclosed here, the award can be vacated under § 10 of the United States Arbitration Act, which authorizes vacation of an award “procured by . . . undue means” or “where there was evident partiality . . . in the arbitrators.” Commonwealth Corp. v. Cont’l Casualtv. p. 145. ARIZONA. See Securities and Exchange Commission, 1-3. ARKANSAS. See Constitutional Law, II, 5; Railroads. ARMBANDS. See Constitutional Law, III, 4-5. ARMED FORCES. See Courts-Martial; Judicial Review, 2, 4; Selective Service Act, 1-3. ARRESTS. See Constitutional Law, IV, 2-3. INDEX. 1127 ASSISTANCE TO PRISONERS. See Habeas Corpus, 2; Prisoners. ASSISTANCE TO VOTERS. See Jurisdiction, 3; Procedure, 10, 12-13; Three-Judge Courts; Voting Rights Act of 1965, 1-3. ASSOCIATIONS. See Antitrust Acts, 2; Mootness, 2. AT-LARGE ELECTIONS. See Jurisdiction, 3; Procedure, 10, 12-13; Three-Judge Courts; Voting Rights Act of 1965, 1-3. ATTORNEY GENERAL. See Jurisdiction, 3; Procedure, 10, 12-13; Three-Judge Courts; Voting Rights Act of 1965, 1-3. ATTORNEYS. See Constitutional Law, I, 4—5; Procedure, 6-7. AUTOMOBILE ACCESSORIES. See Administrative Procedure, 1; Federal Trade Commission, 1-2. AVERAGE COSTS. See Interstate Commerce Commission, 1-2. AWARDS. See Arbitration; Courts; Damages; Procedure, 5. BACK-PAY SUIT. See Courts-Martial; Judicial Review, 1. BALLOTS. See Constitutional Law, II, 3; Jurisdiction, 3; Procedure, 10, 12-13; Three-Judge Courts; Voting Rights Act of 1965, 1-3. BATTERIES. See Administrative Procedure, 1; Federal Trade Commission, 1-2. BETTING. See Constitutional Law, IV, 2-3. BIAS. See Arbitration. BLACK ARMBANDS. See Constitutional Law, III, 4-5. BLACKMAIL. See Extortion. BOOKMAKING. See Constitutional Law, IV, 1. BOOKS. See Constitutional Law, III, 2. BURDEN OF PROOF. See Constitutional Law, I, 1; Procedure, 9. BUSES. See District of Columbia; Secretary of the Interior; Transportation. BUSINESS CONNECTIONS. See Arbitration. CALIFORNIA. See Constitutional Law, II, 2; VI, 1. CANCELLATION OF LEASE. See Constitutional Law, I, 2-3; Public Housing. CANDIDATES. See Constitutional Law, II, 3; Jurisdiction, 3; Procedure, 10, 12-13; Three-Judge Courts; Voting Rights Act of 1965, 1-3. 1128 INDEX. CARMEN HELPERS. See Jurisdiction, 2; Procedure, 3. CARRIERS. See Jurisdiction, 2; Procedure, 3. CERTIFICATES OF CONVENIENCE AND NECESSITY. See District of Columbia; Secretary of the Interior; Transportation. CHARTER AMENDMENT. See Constitutional Law, II, 4; Mootness, 1. CHURCH PROPERTY. See Constitutional Law, III, 1. CIRCULAR. See Constitutional Law, I, 2-3; Public Housing. CITY CHARTER. See Constitutional Law, II, 4; Mootness, 1. CIVIL RIGHTS ACT OF 1866. See Constitutional Law, II, 4; Mootness, 1. CIVIL RIGHTS ACT OF 1968. See Constitutional Law, II, 4; Mootness, 1. CLASSIFICATION. See Judicial Review, 2, 4; Selective Service Act, 1-3. COERCION. See Administrative Procedure, 1; Federal Trade Commission, 1-2; Habeas Corpus, 1, 3; Procedure, 4. COLLATERAL ATTACK. See Courts-Martial; Judicial Review, 1. COLLECTIVE BARGAINING AGREEMENT. See Administrative Procedure, 2; Jurisdiction, 2; National Labor Relations Act; Procedure, 3. COMMERCE. See Administrative Procedure, 1 ; Federal Trade Commission, 1-2; Interstate Commerce Commission, 1-2. COMMERCE CLAUSE. See Constitutional Law, II, 5; Interstate Commerce; Railroads; Taxes, 2. COMMISSIONERS. See Constitutional Law, IV, 1. COMMISSIONS. See Administrative Procedure, 1 ; Federal Trade Commission, 1-2. COMMUNICATIONS ACT. See Federal Communications Act; Procedure, 1. COMPENSATION LEVELS. See Administrative Procedure, 2; National Labor Relations Act. COMPETITION. See Administrative Procedure, 1; Antitrust Acts, 1-2; District of Columbia; Federal Trade Commission, 1-2; Mootness, 2; Secretary of the Interior; Transportation. CONCENTRATED PHOSPHATES. See Antitrust Acts, 2; Mootness, 2. INDEX. 1129 CONCERTED ACTION. See Antitrust Acts, 1. CONCESSIONAIRES. See District of Columbia; Secretary of the Interior; Transportation. CONFESSIONS. See Habeas Corpus, 1, 3; Procedure, 4. CONFIDENTIAL INFORMANTS. See Constitutional Law, IV, 1. CONFLICT OF INTEREST. See Arbitration. CONFRONTATION. See Constitutional Law, V, 1; Witnesses. CONSCIENTIOUS OBJECTORS. See Judicial Review, 4; Selective Service Act, 3. CONSPIRACY. See Antitrust Acts, 1. CONSTITUTIONAL CHALLENGE. See Courts-Martial; Judicial Review, 1. CONSTITUTIONAL LAW. See also Corporations; Injunctions; Interstate Commerce; Jurisdiction, 3; Mootness, 1, 3; Procedure, 10, 12-13; Public Housing; Railroads; Taxes, 2; Three-Judge Courts; Voting Rights Act of 1965, 1-3; Witnesses. I. Due Process. 1. Alibi defense—Burden of proof.—In view of holding by Court of Appeals in another case that the Iowa rule shifting to the defendant the burden of proving an alibi defense in a criminal trial violated due process requirements, this case is vacated and remanded for reconsideration. Johnson v. Bennett, p. 253. 2. Eviction from public housing—Hearings.—It would be premature to decide, as petitioner urges, that this Court establish guidelines to insure that she is given not only the reasons for her eviction but also a hearing comporting with due process requirements. Thorpe v. Housing Authority, p. 268. 3. Procedure before eviction—Notice and hearing.—Authorities of federally assisted public housing projects must follow the requirements of the Department of Housing and Urban Development’s circular providing for notice to tenants of the reasons for eviction and an opportunity for explanation or reply before evicting any tenant residing in such projects on the date of this decision, and such procedure does not involve impairment of contractual obligations in violation of the Due Process Clause of the Fifth Amendment. Thorpe v. Housing Authority, p. 268. 4. Right to counsel—Revocation of probation and deferred sentencing—Retroactivity.—Decision in Mempa v. Rhay, 389 U. S. 128, holding that the Sixth Amendment, as applied through the Fourteenth, requires that counsel be afforded felony defendants in 1130 INDEX. CONSTITUTIONAL LAW—Continued. proceeding for revocation of probation and imposition of deferred sentencing, should be applied retroactively. McConnell v. Rhay, p. 2. 5. Right to counsel at probable-cause hearing—Retroactivity.— Petitioner’s plea of guilty to murder at probable-cause hearing when he had no counsel should not have been admitted at his trial, where he had counsel and denied guilt, as White v. Maryland, 373 U. S. 59, applies retroactively. Arsenault v. Massachusetts, p. 5. II. Equal Protection of the Laws. 1. Foreign nonprofit corporation—Tax exemption.—When a foreign corporation is permitted to enter a State it is entitled to equal protection with domestic corporations, and New Jersey cannot deny appellant, a Pennsylvania nonprofit corporation operating a television station, an opportunity equivalent to that of a domestic corporation to show that it meets the requirements for a nonprofit corporation under local law. WHYY v. Glassboro, p. 117. 2. Indigent prisoner—Transcripts of hearings.—Under California’s system of no appeal but repeated hearings on habeas corpus petitions, where transcripts of evidentiary hearings before lower court are readily available to judicial and prosecuting officials of the State, and where no suggestion is made that there is any adequate substitute therefor, they may not be furnished to those who can afford them and denied to those who are paupers. Gardner v. California, p. 367. 3. Political parties—Position on Ohio ballots—Presidential election.—State laws enacted to regulate the selection of presidential electors must meet the equal protection requirements of the Fourteenth Amendment, and Ohio’s restrictive election laws violate those requirements because they give the two old, established parties a decided advantage over new political parties. Williams v. Rhodes, p. 23. 4. Racial classification — Housing discrimination.—Akron’s City Charter amendment contains an explicitly racial classification treating racial housing matters differently from other racial and housing matters and places special burdens on minorities within the governmental process by making it more difficult to secure legislation on their behalf. Racial classifications “bear a heavier burden of justification” than other classifications, and Akron has not justified its discrimination against minorities, which constitutes a denial of equal protection of the laws. Hunter v. Erickson, p. 385. 5. Railroads—Commerce and Due Process Clauses.—Mileage classification of Arkansas full-crew laws is permissible under Commerce INDEX. 1131 CONSTITUTIONAL LAW—Continued. and Equal Protection Clauses; and the full-crew laws do not violate Equal Protection Clause by singling out railroads from other forms of transportation, and appellees’ contention that the statutes are “unduly oppressive” under the Due Process Clause affords no basis for their invalidation apart from any effect on interstate commerce. Firemen v. Chicago, R. I. & P. R. Co., p. 129. III. First Amendment. 1. Church property dispute — Ecclesiastical questions. — Civil courts cannot, consistently with First Amendment principles, determine ecclesiastical questions in resolving property disputes; and since the departure-from-doctrine element of Georgia’s implied trust theory requires civil courts to weigh the significance and meaning of religious doctrines, it can play no role in judicial proceedings. Presbyterian Church v. Hull Church, p. 440. 2. Establishment of religion—Arkansas’ anti-evolution statute.— Arkansas’ anti-evolution statute, making it unlawful to teach or to use a textbook that teaches “that mankind ascended or descended from a lower order of animals,” violates the Fourteenth Amendment, which embraces the First Amendment’s prohibition of state laws respecting an establishment of religion. Epperson v. Arkansas, p. 97. 3. Restraining order—Ex parte orders.—The 10-day restraining order must be set aside, because, where principles guaranteed by the First Amendment are involved, there is no place for such ex parte order, issued without formal or informal notice to petitioners, where no showing is made that it is impossible to serve or notify opposing parties and to give them an opportunity to participate in an adversary proceeding. Carroll v. Princess Anne, p. 175. 4. Student protests—Black armbands.—In wearing armbands, the students were quiet and passive. They were not disruptive and did not impinge on the rights of others. In these circumstances, their conduct was within the protection of the Free Speech Clause of the First Amendment and the Due Process Clause of the Fourteenth. Tinker v. Des Moines School Dist., p. 503. 5. Teachers and students—School discipline.—First Amendment rights are available to teachers and students, subject to application in light of the special characteristics of the school environment. A prohibition against expression of opinion, without any evidence that the rule is necessary to avoid substantial interference with school discipline or the rights of others, is not permissible under the First and Fourteenth Amendments. Tinker v. Des Moines School Dist., p. 503. 320-583 0 - 69 - 67 1132 INDEX. CONSTITUTIONAL LAW—Continued. IV. Search and Seizure. 1. Affidavit to support warrant—Corroboration of informant’s tip.—Informant’s tip, an essential part of the affidavit, was inadequate since it did not set forth any reason to support conclusion that informant was “reliable” and did not sufficiently state underlying circumstances from which informant concluded that petitioner ran a bookmaking operation, and the tip’s reliability was not sufficiently enhanced by the FBI’s corroboration of certain limited aspects of the informant’s report through independent sources. Spinelli v. United States, p. 410. 2. Warrantless search—Incident to arrest.—Entry was not justified as incidental to petitioner’s arrest, as police did not have probable cause to believe that crime was being committed. Even where search warrant is obtained police must show more than mere assertion by an unidentified informer, and at least as much is needed to support warrantless search. Recznik v. City of Lorain, p. 166. 3. Warrantless search—Public places.—Petitioner’s rights were infringed by entry of police onto his premises, as there was no support for finding the apartment was a “public establishment,” and the fact that large number of persons congregate in a private home does not transform it into a public place. Recznik v. City of Lorain, p. 166. V. Sixth Amendment. 1. Confrontation of witnesses—Retroactivity.—The holding in Barber v. Page, 390 U. S. 719, that absence of witness from the jurisdiction would not justify use at trial of preliminary hearing testimony unless State had made good-faith effort to secure witness’ presence, should be given retroactive application. Berger v. California, p. 314. 2. Speedy state trial—Federal prisoner.—Under the Sixth Amendment as made applicable to the States by the Fourteenth the State of Texas, on demand of federal prisoner who was indicted on Texas criminal charge, was required to make a diligent, good-faith effort to bring him to trial in state court. Smith v. Hooey, p. 374. VI. Trial by Jury. Seventh Amendment — Reasonableness of conduct. — Court of Appeals should not have reversed jury’s verdict for petitioner, stevedoring company, on ground that as matter of law it had not taken reasonable action to avoid injury to employee, as under the Seventh Amendment the issue as to reasonableness of petitioner’s conduct should have been left to the jury. International Co. v. Nederl. Amerik, p. 74. INDEX. 1133 CONSULTANTS. See Arbitration. CONTAINER INDUSTRY. See Antitrust Acts, 1. CONTRACTORS. See Arbitration. CONTRACTS. See Administrative Procedure, 2; Antitrust Acts, 2; Constitutional Law, I, 2-3; Mootness, 2; National Labor Relations Act; Public Housing. CORPORATIONS. See also Constitutional Law, II, 1; Taxes, 1. Foreign nonprofit corporation—Tax exemption—Equal protection of the laws.—When a foreign corporation is permitted to enter a State it is entitled to equal protection with domestic corporations, and New Jersey cannot deny appellant, a Pennsylvania nonprofit corporation operating a television station, an opportunity equivalent to that of a domestic corporation to show that it meets the requirements for a nonprofit corporation under local law. WHYY v. Glassboro, p. 117. CORROBORATION. See Constitutional Law, IV, 1. CORRUGATED CONTAINERS. See Antitrust Acts, 1. COST OF SERVICE. See Federal Power Commission; Judicial Review, 3. COSTS. See Interstate Commerce Commission, 1-2. COUNSEL. See Constitutional Law, I, 4—5; Procedure, 6-7. COUNTY SUPERVISORS. See Jurisdiction, 3; Procedure, 10, 12-13; Three-Judge Courts; Voting Rights Act of 1965, 1-3. COURT OF APPEALS. See Constitutional Law, VI; Federal Power Commission; Judicial Review, 3; Jurisdiction, 1; Procedure, 2. COURT OF CLAIMS. See Courts-Martial; Judicial Review, 1. COURTS. See also Constitutional Law, III, 1; Damages; Jurisdiction, 1; Procedure, 2, 5. Jury award—Trial court’s discretion — Federal Employers’ Liability Act.—This Court makes its own independent appraisal, and concludes that there was no abuse of the trial court’s discretion in allowing the award, which the Court of Appeals thought excessive, to stand. Grunenthal v. Long Island R. Co., p. 156. COURTS-MARTIAL. See also Judicial Review, 1. Collateral attack—Back-pay suit—Constitutional challenge.—Even if it is assumed, arguendo, despite Article 76 of the Uniform Code of Military Justice, that collateral attack on a court-martial judgment may be made in the Court of Claims through a back-pay suit alleging 1134 INDEX. COURTS-MARTIAL—Continued. a “constitutional” defect in the military decision, the claims herein, which involve a rule of evidence concerning accomplice testimony, and the possible application of the Jencks Act, do not on their facts rise to the constitutional level. United States v. Augenblick, p. 348. CRIMINAL LAW. See Constitutional Law, I, 1, 4-5; II, 2; IV, 1-3; V, 2; Courts-Martial; Extortion; Federal Communications Act; Habeas Corpus, 1-3; Judicial Review, 1; Procedure, 1, 4, 6-9. CRIMINAL PROSECUTION. See Constitutional Law, V, 2; Procedure, 8. CROSS-EXAMINATION. See Constitutional Law, I, 5; V, 1; Procedure, 7; Witnesses. CURRICULUMS. See Constitutional Law, III, 2. DAMAGES. See also Constitutional Law, VI; Courts; Procedure, 5. Jury award—Federal Employers’ Liability Act—Trial court’s discretion.—This Court makes its own independent appraisal, and concludes that there was no abuse of the trial court’s discretion in allowing the award, which the Court of Appeals thought excessive, to stand. Grunenthal v. Long Island R. Co., p. 156. DARWINIAN THEORY. See Constitutional Law, III, 2. D. C. TRANSIT SYSTEM. See District of Columbia; Secretary of the Interior; Transportation. DECLARATORY JUDGMENTS. See Jurisdiction, 3; Procedure, 10, 12-13; Three-Judge Courts; Voting Rights Act of 1965, 1-3. DECREES. See Administrative Procedure, 2; National Labor Relations Act. DEFERRED SENTENCES. See Constitutional Law, I, 4; Procedure, 6. DELINQUENCY. See Judicial Review, 2; Selective Service Act, 1-2. DEMONSTRATIONS. See Constitutional Law, III, 4-5. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT. See Constitutional Law, I, 2-3; Public Housing. DES MOINES. See Constitutional Law, III, 4-5. DICE GAME. See Constitutional Law, IV, 2-3. INDEX. 1135 DIRECTIVES. See Constitutional Law, I, 2-3; Public Housing. DISCIPLINE. See Constitutional Law, III, 4—5; Habeas Corpus, 2; Prisoners. DISCLOSURE. See Arbitration. DISCRETION. See Courts; Damages; Federal Power Commission; Judicial Review, 3-4; Procedure, 5; Selective Service Act, 3. DISCRIMINATION. See Constitutional Law, II, 4; Interstate Commerce; Jurisdiction, 2; Mootness, 1; Procedure, 3; Railroads; Taxes, 2. DISSOLUTION ORDER. See Jurisdiction, 1; Procedure, 2. DISTRICT COURTS. See Jurisdiction, 1, 3; Procedure, 2, 10, 12-13; Three-Judge Courts; Voting Rights Act of 1965, 1-3. DISTRICT OF COLUMBIA. See also Secretary of the Interior; Transportation. Bus service on the Mall—Jurisdiction.—When Congress established the Washington Metropolitan Area Transit Commission it did not intend to create dual regulatory jurisdiction by divesting the Secretary of the Interior of his long-standing “exclusive charge and control” over the Mall. í). C. Transit System’s franchise does not protect it against competition from petitioner’s leisurely sightseeing service on the Mall outside WMATC jurisdiction. Shuttle Corp. v. Transit Comm’n, p. 186. DIVINITY STUDENTS. See Judicial Review, 2; Selective Service Act, 1-2. DIVISIONS. See Interstate Commerce Commission, 1-2. DOCTRINAL DISPUTES. See Constitutional Law, III, 1. DOMINANT MOTIVE. See Taxes, 1. DRAFT BOARDS. See Judicial Review, 2, 4; Selective Service Act, 1-3. DUE PROCESS. See Constitutional Law, I; Procedure, 6-7, 9; Public Housing; Railroads. DURHAM. See Constitutional Law, I, 2-3; Public Housing. DUTY TO DISCLOSE. See Arbitration. EARNINGS. See Taxes, 1. ECCLESIASTICAL QUESTIONS. See Constitutional Law, III, 1. ECONOMIC POWER. See Administrative Procedure, 1; Federal Trade Commission, 1-2. 1136 INDEX. ELECTIONS. See Constitutional Law, II, 3; Jurisdiction, 3; Procedure, 10, 12-13; Three-Judge Courts; Voting Rights Act of 1965, 1-3. EMPLOYER AND EMPLOYEES. See Constitutional Law, II, 5; Jurisdiction, 2; Procedure, 3, 5; Railroads. EMPLOYER BARGAINING ASSOCIATION. See Administrative Procedure, 2; National Labor Relations Act. ENGINEERING CONSULTANTS. See Arbitration. EQUAL PROTECTION OF THE LAWS. See Constitutional Law, II; Corporations; Jurisdiction, 3; Mootness, 1; Procedure, 10, 12-13; Railroads; Three-Judge Courts; Voting Rights Act of 1965, 1-3. ESTABLISHMENT OF RELIGION. See Constitutional Law, III, 1. EVICTION. See Constitutional Law, I, 2-3; Public Housing. EVIDENCE. See Administrative Procedure, 1; Constitutional Law, IV, 1-3; V, 1; Courts; Courts-Martial; Damages; Federal Communications Act; Federal Trade Commission, 1-2; Judicial Review, 1; Procedure, 1; Witnesses. EVIDENTIARY HEARINGS. See Constitutional Law, II, 2; Habeas Corpus, 1, 3; Procedure, 4. EVOLUTION. See Constitutional Law, III, 2. EXCESSIVE AWARDS. See Courts; Damages; Procedure, 5. EXCHANGE OF PRICE DATA. See Antitrust Acts, 1. EXCHANGE OF SHARES. See Securities and Exchange Commission, 1-3. EXEMPTIONS. See Antitrust Acts, 2; Constitutional Law, II, 1; Corporations; Judicial Review, 2; Mootness, 2; Selective Service Act, 1-2. EXHAUSTION OF REMEDIES. See Jurisdiction, 2; Procedure, 3 EX PARTE ORDERS. See Constitutional Law, III, 3; Injunctions. EXPERTISE. See Interstate Commerce Commission, 1-2. EXPORTS. See Antitrust Acts, 2; Mootness, 2. EXTORTION. State “extortion” statutes—“Blackmail” laws—18 U. S. C. § 1952.— In light of the congressional purpose to assist local law enforcement officials in combating interstate activities of organized crime which INDEX. 1137 EXTORTION—Continued. violate state laws and not merely to eliminate only those acts which a State has denominated extortion, the extortionate acts for which appellees were indicted, which were prohibited by Pennsylvania law, fall within the generic term “extortion” as used in 18 U. S. C. § 1952. United States v. Nardello, p. 286. FAIR HOUSING ORDINANCE. See Constitutional Law, II, 4; Mootness, 1. FEDERAL BUREAU OF INVESTIGATION. See Constitutional Law, IV, 1. FEDERAL COMMUNICATIONS ACT. See also Procedure, 1. State criminal trials—Admissibility of evidence—Non-retroactiv-ity.—This Court’s decision holding inadmissible in state criminal trials evidence violative of § 605 of the Act is to be applied only to trials in which such evidence is sought to be introduced after the date of that decision (Lee v. Florida, 392 U. S. 378). Fuller v. Alaska, p. 80. FEDERAL EMPLOYERS’ LIABILITY ACT. See Courts; Damages; Procedure, 5. FEDERALLY ASSISTED HOUSING. See Constitutional Law, I, 2-3; Public Housing. FEDERAL POWER COMMISSION. See also Judicial Review, 3. Judicial review—Court of Appeals—Remand.—Court of Appeals, after this Court’s remand to determine whether it was significant in applying FPC’s tax component formula that respondent had both jurisdictional and nonjurisdictional income, should not have held the issue sufficiently raised by respondent’s petition for rehearing before the FPC, as the FPC did not disclose the basis for its order and thus the cases were not in proper posture for judicial review. FPC v. United Gas Pipe Line Co., p. 71. FEDERAL PRISONERS. See Constitutional Law, V, 2; Procedure, 8. FEDERAL-STATE RELATIONS. See Constitutional Law, I, 2-3; II, 5; V, 2; Extortion; Federal Communications Act; Interstate Commerce; Jurisdiction, 3; Procedure, 1, 8, 10, 12-13; Public Housing; Railroads; Securities and Exchange Commission, 1-3; Taxes, 2; Three-Judge Courts; Voting Rights Act of 1965, 1-3. FEDERAL TRADE COMMISSION. See also Administrative Procedure, 1. 1. Automobile accessories — Sales-commission plan — Economic power.—Sales-commission system for marketing tires, batteries, and 1138 INDEX. FEDERAL TRADE COMMISSION—Continued. accessories (TBA) through service stations is inherently coercive, and despite the absence here of the kind of overtly coercive acts shown in Atlantic Refining Co. v. FTC, 381 U. S. 357, Texaco exerted its dominant economic power over its dealers. FTC v. Texaco, p. 223. 2. Sales-commission plan—Automobile accessories—Competition.— The FTC correctly determined that the Texaco-Goodrich arrangement adversely affected competition in marketing TBA, the TBA manufacturer having purchased the oil company’s economic power and used it as a partial substitute for competitive merit in gaining a major share of the substantial TBA market. FTC v. Texaco, p. 223. FIFTEENTH AMENDMENT. See Voting Rights Act of 1965, 1-3. FIFTH AMENDMENT. See Constitutional Law, I, 2-3; Public Housing. FILLING STATIONS. See Administrative Procedure, 1; Fédéral Trade Commission, 1-2. FIRST AMENDMENT. See Constitutional Law, III; Injunctions; Mootness, 3. FOREIGN AID. See Antitrust Acts, 2; Mootness, 2. FOREIGN CORPORATIONS. See Constitutional Law, II, 1 ; Corporations. FOURTEENTH AMENDMENT. See Constitutional Law, I; II; III; IV, 2-3; V; Corporations; Injunctions; Jurisdiction, 3; Mootness, 1, 3; Procedure, 6-8, 10, 12-13; Public Housing; Railroads; Three-Judge Courts; Voting Rights Act of 1965, 1-3 ; Witnesses. FOURTH AMENDMENT. See Constitutional Law, IV. FRANCHISES. See District of Columbia; Secretary of the Interior ; Transportation. FRAUD. See Securities and Exchange Commission, 1-3. FREEDOM OF RELIGION. See Constitutional Law, III, 2. FREEDOM OF SPEECH. See Constitutional Law, III, 3-5; Injunctions; Mootness, 3. FREE TRANSCRIPTS. See Constitutional Law, II, 2. FRINGE BENEFITS. See Administrative Procedure, 2; National Labor Relations Act. INDEX. 1139 FULL-CREW LAWS. See Constitutional Law, II, 5; Railroads. GAMBLING. See Constitutional Law, IV, 1-3. GASOLINE DEALERS. See Administrative Procedure, 1; Federal Trade Commission, 1-2. GENERAL CHURCH. See Constitutional Law, III, 1. GEORGIA. See Constitutional Law, III, 1. GOOD-FAITH EFFORT. See Constitutional Law, V, 1-2; Procedure, 8; Witnesses. GOVERNMENT FINANCING. See Antitrust Acts, 2; Mootness, 2. GUIDED TOURS. See District of Columbia; Secretary of the Interior ; Transportation. GUIDELINES. See Constitutional Law, I, 2-3; Public Housing. HABEAS CORPUS. See also Constitutional Law, I, 1; II, 2; Judicial Review, 4; Procedure, 4, 9; Prisoners; Selective Service Act, 3. 1. Evidentiary hearing—Intervening decision—Abuse of writ.— Petitioner’s failure to demand evidentiary hearing in 1961 followed by such demand after Townsend v. Sain, 372 U. S. 293, was decided constitutes no abuse of the writ or a waiver of claim to a hearing. Smith v. Yeager, p. 122. 2. Prison regulations—“Jail-house lawyers.”—In the absence of some provision by Tennessee for a reasonable alternative to assist illiterate or poorly educated prisoners in preparing petitions for post-conviction relief, the State may not validly enforce a regulation which absolutely forbids inmates from furnishing assistance to other prisoners. Johnson v. Avery, p. 483. 3. Successive proceedings — Res judicata—Waivers. — Essential question in a subsequent habeas corpus proceeding (to which usual principles of res judicata do not apply and regardless of waiver standards in other circumstances) is whether petitioner in prior proceeding “deliberately withheld the newly asserted ground or otherwise abused the writ.” Smith v. Yeager, p. 122. HEARINGS. See Constitutional Law, I, 2-3, 5; II, 2; Habeas Corpus, 1, 3; Procedure, 4, 7; Public Housing. HOMES. See Constitutional Law, II, 4; Mootness, 1. HOMOSEXUALS. See Extortion. HOUSING. See Constitutional Law, I, 2-3; II, 4. Public Housing. 1140 INDEX. HOUSING DISCRIMINATION. See Constitutional Law, II, 4; Mootness, 1. ILLITERATE PRISONERS. See Habeas Corpus, 2; Prisoners. ILLITERATE VOTERS. See Jurisdiction, 3; Procedure, 10, 12-13; Three-Judge Courts; Voting Rights Act of 1965, 1-3. IMPAIRMENT OF CONTRACTS. See Constitutional Law, I, 2-3; Public Housing. IMPLIED TRUST. See Constitutional Law, III, 1. INCOME TAXES. See Federal Power Commission; Judicial Review, 3; Taxes, 1. INDEMNITY. See Constitutional Law, VI; Procedure, 11. INDEPENDENT CANDIDATES. See Jurisdiction, 3; Procedure, 10, 12-13; Three-Judge Courts; Voting Rights Act of 1965, 1-3. INDICTMENTS. See Extortion. INDIGENT PRISONERS. See Constitutional Law, II, 2. INDUCTION. See Judicial Review, 2, 4; Selective Service Act, 1-3. INFORMATION EXCHANGE. See Antitrust Acts, 1. INFORMERS. See Constitutional Law, IV, 1-3. INJUNCTIONS. See also Constitutional Law, III, 3; Mootness, 3. Restraining order—Ex parte orders—First Amendment.—The 10-day restraining order must be set aside because, where principles guaranteed by the First Amendment are involved, there is no place for such ex parte order, issued without formal or informal notice to petitioners, where no showing is made that it is impossible to serve or notify opposing parties and to give them an opportunity to participate in an adversary proceeding. Carroll v. Princess Anne, p. 175. INJURY. See Constitutional Law, VI; Courts; Damages; Procedure, 5, 11. INMATES. See Habeas Corpus, 2; Prisoners. INSTRUCTIONS TO JURY. See Constitutional Law, I, 1; Procedure, 9. INSURANCE COMPANIES. See Securities and Exchange Commission, 1-3. INTERNAL REVENUE CODE. See Taxes, 1. INDEX. 1141 INTERSTATE COMMERCE. See also Taxes, 2. Alabama license tax on photographers—Local activity—Discrimination.—Appellant was engaged in the essentially local activity of taking pictures and could constitutionally be made subject to Alabama license tax on that local activity. The tax does not discriminate against interstate commerce, since it is levied equally on interstate and intrastate transient photographers and on the record here the tax on out-of-state photographers is not so disproportionate to the tax on fixed-location photographers as to come within the condemnation of the Constitution. Dunbar-Stanley Studios v. Alabama, p. 537. INTERSTATE COMMERCE COMMISSION. 1. Expertise—Average territorial costs—Adjustments.—If average territorial costs are shown to be a distortion when applied to particular North-South traffic, reliance on administrative “expertise” is not sufficient, but it must be shown that there is no basic difference, or there must be an adjustment which fairly reflects the difference in costs; and on remand the ICC must make specific findings to adjust average territorial costs with respect to commuter deficits, interchange of cars at border points, and empty freight car return ratios. B. & 0. R. Co. v. Aberdeen & R. R. Co., p. 87. 2. Railroad rate divisions—Costs.—While mathematical precision and exactitude are not required the nature and volume of the traffic must be known and exposed, if costs are to govern railroad rate divisions. B. & 0. R. Co. v. Aberdeen & R. R. Co., p. 87. INTERSTATE COMPACTS. See District of Columbia; Secretary of the Interior; Transportation. INTERSTATE GAMBLING. See Constitutional Law, IV, 1. INTERSTATE RAILROADS. See Constitutional Law, II, 5; Railroads. INTERSTATE TRAVEL. See Extortion. INTRASTATE RAILROADS. See Constitutional Law, II, 5; Railroads. INVESTIGATIONS. See Constitutional Law, IV, 1. IOWA. See Constitutional Law, I, 1; Procedure, 9. “JAIL-HOUSE LAWYERS.” See Habeas Corpus, 2; Prisoners. JENCKS ACT. See Courts-Martial; Judicial Review, 1. JOINT RATES. See Interstate Commerce Commission, 1-2. JUDICIAL ENFORCEMENT. See Administrative Procedure, 2; National Labor Relations Act. 1142 INDEX. JUDICIAL REVIEW. See also Courts; Courts-Martial; Damages; Federal Power Commission; Jurisdiction, 2; Procedure, 1, 3, 5; Selective Service Act, 1-3. 1. Collateral attack on court-martial—Back-pay suit—Constitutional challenge.—Even if it is assumed, arguendo, despite Article 76 of the Uniform Code of Military Justice, that collateral attack on a court-martial judgment may be made in the Court of Claims through a back-pay suit alleging a “constitutional” defect in the military decision, the claims herein, which involve a rule of evidence concerning accomplice testimony, and the possible application of the Jencks Act, do not on their facts rise to the constitutional level. United States v. Augenblick, p. 348. 2. Draft registrants—Pre-induction review—Exemption for theological students.—Pre-induction judicial review is not precluded in this case, as §10 (b)(3) of the Military Selective Service Act of 1967 cannot be construed to impair the clear mandate of § 6 (g) of the Selective Service Act governing the exemption for theological students. Oestereich v. Selective Service Bd., p. 233. 3. Federal Power Commission—Court of Appeals—Remand.— Court of Appeals, after this Court’s remand to determine whether it was significant in applying FPC’s tax component formula that respondent had both jurisdictional and nonjurisdictional income, should not have held the issue sufficiently raised by respondent’s petition for rehearing before the FPC, as the FPC did not disclose the basis for its order and thus the cases were not in proper posture for judicial review. FPC v. United Gas Pipe Line Co., p. 71. 4. Pre-induction review—Conscientious objectors—Draft Board discretion.—The draft Board had exercised its statutory discretion, evaluating the evidence regarding appellee’s claim to classification as a conscientious objector, and had rejected that claim. Congress may constitutionally require that a registrant’s challenges to such decisions be deferred until after induction, when remedy of habeas corpus would be available, or until defense of criminal prosecution, should he refuse to submit to induction. Clark v. Gabriel, p. 256. JURIES. See Constitutional Law, VI; Procedure, 5, 11. JURISDICTION. See also Constitutional Law, II, 3; III, 1; District of Columbia; Federal Power Commission; Judicial Review, 3; Procedure, 10, 12-13; Secretary of the Interior; Three-Judge Courts; Transportation; Voting Rights Act of 1965, 1-3. 1. Court of Appeals—Three-judge court—Appeals.—Where three-judge court dissolved itself for want of jurisdiction and single district judge then dismissed the case on ground of abstention and incorpo- INDEX. 1143 JURISDICTION—Continued. rated the three-judge court’s dissolution order in his opinion by reference, jurisdiction of the appeal from both judgments is in Court of Appeals and not the Supreme Court. Mengelkoch v. Welfare Comm’n, p. 83. 2. Federal courts—Dispute between employees and union and management acting together—Railway Labor Act.—Federal courts have jurisdiction over this action which essentially involves dispute between some employees, on the one hand, and union and management together, on the other, and not dispute between employees and a carrier concerning meaning of collective bargaining agreement’s terms, over which Railroad Adjustment Board would have exclusive jurisdiction under the Railway Labor Act. Glover v. St. Louis-S. F. R. Co., p. 324. 3. Voting Rights Act of 1965—District courts—Private litigants.— Restriction of § 14 (b) of the Act, which provides that “[n]o court other than the District Court for the District of Columbia . . . shall have jurisdiction to issue any declaratory judgment pursuant to [§ 5] or any . . . order . . . against the enforcement of any provision of this subchapter,” does not apply to suits by private litigants seeking declaratory judgment that new state enactment is subject to § 5’s approval requirements, and these actions may be brought in local district courts. Allen v. State Board of Elections, p. 544. JURY VERDICT. See Courts; Damages; Procedure, 5. KOREA. See Antitrust Acts, 2; Mootness, 2. LABOR. See Administrative Procedure, 2; Constitutional Law, II, 5; Jurisdiction, 2; National Labor Relations Act; Procedure, 3, 5; Railroads. LABOR UNIONS. See Jurisdiction, 2; Procedure, 3. LANDLORDS. See Constitutional Law, I, 2-3; Public Housing. LAW ENFORCEMENT. See Extortion. LEASES. See Administrative Procedure, 1; Constitutional Law, I, 2-3; Federal Trade Commission, 1-2; Public Housing. LICENSE TAXES. See Interstate Commerce; Taxes, 2. LOCAL ACTIVITY. See Interstate Commerce; Taxes, 2. LOCAL CHURCHES. See Constitutional Law, III, 1. LONG-SHOREMEN. See Constitutional Law, VI; Procedure, 11. MALL. See District of Columbia; Secretary of the Interior; Transportation. 1144 INDEX. MARYLAND. See Constitutional Law, HI, 3; Injunctions; Mootness, 3. MASSACHUSETTS. See Constitutional Law, I, 5; Procedure, 7. MASS TRANSIT SERVICES. See District of Columbia; Secretary of the Interior; Transportation. McCARRAN-FERGUSON ACT. See Securities and Exchange Commission, 1-3. MERGERS. See Securities and Exchange Commission, 1-3. MILEAGE CLASSIFICATION. See Constitutional Law, II, 5; Railroads. MILITARY JUSTICE. See Courts-Martial; Judicial Review, 1. MILITARY SELECTIVE SERVICE ACT OF 1967. See Judicial Review, 2, 4; Selective Service Act, 1-3. MINIBUSES. See District of Columbia; Secretary of the Interior; Transportation. MINIMUM TRAIN CREWS. See Constitutional Law, II, 5; Railroads. MISREPRESENTATIONS. See Securities and Exchange Commission, 1-3. MISSISSIPPI. See Jurisdiction, 3; Procedure, 10, 12-13; Three-Judge Courts; Voting Rights Act of 1965, 1-3. MOOTNESS. See also Antitrust Acts, 2; Constitutional Law, II, 4; III, 3; Injunctions. 1. Akron fair housing ordinance—Civil Rights Acts—State statute.—The case is not moot. Neither the Civil Rights Act of 1968 (which specifically preserves local fair housing laws), nor the 1866 Civil Rights Act, was intended to pre-empt local housing ordinances; the Ohio Act of October 30, 1965 (which concerns “commercial” housing), does not apply to this case; and the Akron ordinance provides an enforcement mechanism unmatched by either state or federal legislation. Hunter v. Erickson, p. 385. 2. Antitrust liability—Dissolution of association—Export trade.— Case is not moot, as Government sought relief not only against the association but also against its members; the Agency for International Development regulation does not apply to all contracts on which former members of the association might bid; and appellees’ statement that it would be uneconomical to engage in further joint operations, standing alone, does not satisfy the stringent test for mootness. U. S. v. Phosphate Export Assn., p. 199. INDEX. 1145 MOOTNESS—Continued. 3. Restraining order—National States Rights Party—Public rallies.—Case is not moot, as the Maryland Court of Appeals’ approval of the 10-day restraining order continues to play a role in the response of local officials to efforts of petitioners (members of “white supremacist” National States Rights Party) to continue their activities in the county. Carroll v. Princess Anne, p. 175. MOTIVES. See Taxes, 1. MURDER. See Constitutional Law, I, 1, 5; Procedure, 7, 9. NATIONAL LABOR RELATIONS ACT. See also Administrative Procedure, 2. NLRB’s authority—Payment of fringe benefits—Judicial enforcement of decree.—NLRB’s authority under the Act to remedy unfair labor practice which occurred when respondent refused to sign collective bargaining agreement negotiated on his behalf included power to require payment of fringe benefits under NLRB’s remedial authority to take “affirmative action including reinstatement of employees with or without back pay,” which is not “affected by any other means of adjustment . . . established by agreement, law, or otherwise . . . .” NLRB v. Strong, p. 357. NATIONAL PARK LANDS. See District of Columbia; Secretary of the Interior; Transportation. NATIONAL STATES RIGHTS PARTY. See Constitutional Law, III, 3; Injunctions; Mootness, 3. NATURAL GAS. See Federal Power Commission; Judicial Review, 3. NEGROES. See Constitutional Law, II, 4; Jurisdiction, 2; Mootness, 1; Procedure, 3. NEW JERSEY. See Constitutional Law, II, 1; Corporations. NONCOMMERCIAL STATIONS. See Constitutional Law, II, 1; Corporations. NONCOMPETITIVE PRICING. See Antitrust Acts, 2; Mootness, 2. NONPROFIT CORPORATIONS. See Constitutional Law, II, 1; Corporations. NORTH-SOUTH TRAFFIC. See Interstate Commerce Commission, 1-2. NOTICE. See Constitutional Law, I, 2-3; III, 3; Injunctions; Public Housing. OHIO. See Constitutional Law, II, 3. 1146 INDEX. ORDINANCES. See Constitutional Law, II, 4; Mootness, 1. ORGANIZED CRIME. See Extortion. PAINTING CONTRACT. See Arbitration. PARKS. See District of Columbia; Secretary of the Interior; Transportation. PARTIALITY. See Arbitration. PAUPERS. See Constitutional Law, II, 2. PENNSYLVANIA. See Constitutional Law, II, 1; Extortion; Corporations. PETITIONS. See Constitutional Law, II, 3; Habeas Corpus, 2; Prisoners. PETROLEUM COMPANIES. See Administrative Procedure, 1; Federal Trade Commission, 1-2. PHOSPHATES. See Antitrust Acts, 2; Mootness, 2. PHOTOGRAPHERS. See Interstate Commerce; Taxes, 2. PIPELINES. See Federal Power Commission; Judicial Review, 3. PLEAS. See Constitutional Law, I, 5; Procedure, 7. POLICE OFFICERS. See Constitutional Law, IV, 2-3. POLITICAL PARTIES. See Constitutional Law, II, 3. POST-CONVICTION RELIEF. See Constitutional Law, I, 5; Habeas Corpus, 1-3; Prisoners; Procedure, 4, 7. PRACTICE OF LAW. See Habeas Corpus, 2; Prisoners. PRE-EMPTION. See Constitutional Law, II, 5; Railroads; Securities and Exchange Commission, 1-3. PRE-INDUCTION JUDICIAL REVIEW. See Judicial Review, 2, 4; Selective Service Act, 1-3. PRELIMINARY HEARING TESTIMONY. See Constitutional Law, V, 1 ; Witnesses. PREMATURITY. See Constitutional Law, I, 2-3 ; Public Housing. PRESBYTERIAN CHURCHES. See Constitutional Law, III, 1. PRESIDENTIAL ELECTIONS. See Constitutional Law, II, 3. PRICE DATA. See Antitrust Acts, 1. PRICE-FIXING AGREEMENT. See Antitrust Acts, 1. PRIME CONTRACTORS. See Arbitration. PRINCESS ANNE. See Constitutional Law, III, 3; Injunctions; Mootness, 3. INDEX. 1147 PRISONERS. See also Constitutional Law, II, 2; Habeas Corpus, 2. Post-conviction relief—Prison regulations—“Jail-house lawyers.”— In the absence of some provision by Tennessee for a reasonable alternative to assist illiterate or poorly educated prisoners in preparing petitions for post-conviction relief, the State may not validly enforce a regulation which absolutely forbids inmates from furnishing assistance to other prisoners. Johnson v. Avery, p. 483. PRISON “WRIT WRITERS.” See Habeas Corpus, 2; Prisoners. PRIVATE HOMES. See Constitutional Law, IV, 2-3. PRIVATE LITIGANTS. See Jurisdiction, 3; Procedure, 10, 12-13; Three-Judge Courts; Voting Rights Act of 1965, 1-3. PRIVILEGE TAXES. See Interstate Commerce; Taxes, 2. PROBABLE CAUSE. See Constitutional Law, IV, 2-3. PROBABLE-CAUSE HEARINGS. See Constitutional Law, I, 5; Procedure, 7. PROBATION. See Constitutional Law, I, 4; Procedure, 6. PROCEDURE. See also Constitutional Law, I, 1, 4-5; II, 2; V, 2; Courts; Courts-Martial; Damages; Federal Communications Act; Federal Power Commission; Habeas Corpus, 1, 3; Judicial Review, 1-4; Jurisdiction, 1-3; Prisoners; Public Housing; Selective Service Act, 1-3; Three-Judge Courts; Voting Rights Act of 1965, 1-3. 1. Admissibility of evidence—Federal Communications Act—Nonretroactivity.—This Court’s decision holding inadmissible in state criminal trials evidence violative of § 605 of the Act is to be applied only to trials in which such evidence is sought to be introduced after the date of that decision (Lee v. Florida, 392 U. S. 378). Fuller v. Alaska, p. 80. 2. Appeal from three-judge court—Jurisdiction—Court of Appeals.—Where three-judge court dissolved itself for want of jurisdiction and single district judge then dismissed the case on ground of abstention and incorporated the three-judge court’s dissolution order in his opinion by reference, jurisdiction of the appeal from both judgments is in Court of Appeals and not the Supreme Court. Mengelkoch v. Welfare Comm’n, p. 83. 3. Exhaustion of remedies—Futility of remedies—No bar to judicial review.—In this case where resort to contractual or administrative remedies would be wholly fruitless, petitioners’ failure to exhaust such remedies constitutes no bar to judicial review of their claims. Glover v. St. Louis-S. F. R. Co., p. 324. 320-583 0 - 69 - 68 1148 INDEX. PROCEDURE—Continued. 4. Habeas corpus—Evidentiary hearing—Intervening decision.— Petitioner’s failure to demand evidentiary hearing in 1961 followed by such demand after Townsend v. Sain, 372 U. S. 293, was decided constitutes no abuse of the writ or a waiver of claim to a hearing. Smith v. Yeager, p. 122. 5. Jury award—Trial court’s discretion—Federal Employers’ Liability Act.—This Court makes its own independent appraisal, and concludes that there was no abuse of the trial court’s discretion in allowing the award, which the Court of Appeals thought excessive, to stand. Grunenthal v. Long Island R. Co., p. 156. 6. Right to counsel—Revocation of probation and deferred sentencing—Retroactivity.—Decision in Mempa v. Rhay, 389 U. S. 128, holding that the Sixth Amendment, as applied through the Fourteenth, requires that counsel be afforded felony defendants in proceeding for revocation of probation and imposition of deferred sentencing, should be applied retroactively. McConnell v. Rhay, p. 2. 7. Right to counsel at probable-cause hearing—Retroactivity.— Petitioner’s plea of guilty to murder at probable-cause hearing when he had no counsel should not have been admitted at his trial, where he had counsel and denied guilt, as White v. Maryland, 373 U. S. 59, applies retroactively. Arsenault v. Massachusetts, p. 5. 8. State criminal procedure—Trial of federal prisoner.—Under the Sixth Amendment as made applicable to the States by the Fourteenth the State of Texas, on demand of federal prisoner who was indicted on Texas criminal charge, was required to make a diligent, good-faith effort to bring him to trial in state court. Smith v. Hooey, p. 374. 9. State criminal trial—Intervening decision.—In view of holding by Court of Appeals in another case that the Iowa rule shifting to the defendant the burden of proving an alibi defense in a criminal trial violated due process requirements, this case is vacated and remanded for reconsideration. Johnson v. Bennett, p. 253. 10. Supreme Court—Voting Rights Act of 1965—Not argued below.—Since the Virginia legislation was generally attacked as inconsistent with the Voting Rights Act of 1965, and there is no factual dispute, the Court may, in the interests of judicial economy, determine the applicability of § 5 of the Act, even though that section was not argued below. Allen v. State Board of Elections, p. 544. 11. Trial by jury—Seventh Amendment—Reasonableness of conduct.—Court of Appeals should not have reversed jury’s verdict for petitioner, stevedoring company, on ground that as matter of law it INDEX. 1149 PROCEDURE—Continued. had not taken reasonable action to avoid injury to employee, as under the Seventh Amendment the issue as to reasonableness of petitioner’s conduct should have been left to the jury. International Co. v. NederL Amerik, p. 74. 12. Voting Rights Act of 1965—Prospective effect of decision.—In view of complexity of issues of first impression, lack of deliberate defiance of the Act from States’ failure to submit these enactments for approval, and fact that discriminatory purpose or effect of statutes, if any, has not been judicially determined, decision has prospective effect only. States remain subject to § 5 until they obtain from District Court for District of Columbia declaratory judgment that for at least five years they have not used “tests or devices” proscribed by § 4. Allen v. State Board of Elections, p. 544. 13. Voting Rights Act of 1965—Three-judge courts.—In light of the extraordinary nature of the Act and its effect on federal-state relationships, and the unique approval requirements of § 5, which also provides that “[a]ny action under this section shall be heard and determined by a court of three judges,” disputes involving the coverage of § 5 should be determined by three-judge courts. Allen v. State Board of Elections, p. 544. PROMOTIONS. See Jurisdiction, 2; Procedure, 3. PROPERTY. See Constitutional Law, II, 4; Mootness, 1. PROPERTY DISPUTES. See Constitutional Law, III, 1. PROSECUTION. See Judicial Review, 4; Selective Service Act, 3. PROSECUTORS. See Constitutional Law, II, 2. PROSPECTIVITY. See Jurisdiction, 3; Procedure, 10, 12-13; Three-Judge Courts; Voting Rights Act of 1965, 1-3. PROTESTS. See Constitutional Law, III, 4-5. PROXIES. See Securities and Exchange Commission, 1-3. PUBLIC HOUSING. See also Constitutional Law, I, 2-3. Eviction of tenant—Directive to local housing authorities—Procedure.—Authorities of federally assisted public housing projects must follow the requirements of the Department of Housing and Urban Development’s circular providing for notice to tenants of the reasons for eviction and an opportunity for explanation or reply before evicting any tenant residing in such projects on the date of this decision. Thorpe v. Housing Authority, p. 268. PUBLIC OFFICIALS. See Extortion. PUBLIC PLACES. See Constitutional Law, IV, 2-3. 1150 INDEX. PUBLIC RALLIES. See Constitutional Law, III, 3; Injunctions; Mootness, 3. PUBLIC SCHOOL CURRICULUMS. See Constitutional Law, III, 2. PUBLIC SCHOOLS. See Constitutional Law, III, 4-5. PUERTO RICO. See Arbitration. PUPILS. See Constitutional Law, III, 4-5. PURCHASES. See Securities and Exchange Commission, 1-3. QUALIFICATIONS FOR VOTING. See Jurisdiction, 3; Procedure, 10, 12-13; Three-Judge Courts; Voting Rights Act of 1965, 1-3. RACIAL DISCRIMINATION. See Constitutional Law, II, 4; Mootness, 1. RAILROAD ADJUSTMENT BOARD. See Jurisdiction, 2; Procedure, 3. RAILROAD EMPLOYEES. See Jurisdiction, 2; Procedure, 3. RAILROADS. See also Constitutional Law, II, 5; Interstate Commerce Commission, 1-2. Full-crew laws—Legislative judgment—Railroad sajety.—Whether full-crew laws are necessary to railroad safety is for legislative determination. Here the District Court erred in rejecting the legislative judgment that such laws promote railroad safety and that cost of additional crewmen is justified by the safety such laws might achieve. Firemen v. Chicago, R. I. & P. R. Co., p. 129. RAILWAY LABOR ACT. See Jurisdiction, 2; Procedure, 3. RALLIES. See Constitutional Law, III, 3; Injunctions; Mootness, 3. RATE DIVISIONS. See Interstate Commerce Commission, 1-2. REAL PROPERTY. See Constitutional Law, II, 4; Mootness, 1. REASONABLENESS. See Constitutional Law, VI; Procedure, 11. RECIPROCITY. See Antitrust Acts, 1. REFUSAL TO SIGN CONTRACT. See Administrative Procedure, 2; National Labor Relations Act. REGISTRATION CERTIFICATES. See Judicial Review, 2; Selective Service Act, 1-2. REGULATIONS. See Antitrust Acts, 2; Constitutional Law, III, 4-5 ; Habeas Corpus, 2; Mootness, 2; Prisoners. REGULATORY JURISDICTION. See District of Columbia; Secretary of the Interior; Transportation. INDEX. 1151 RELIGION. See Constitutional Law, III, 2. RELIGIOUS DISCRIMINATION. See Constitutional Law, II, 4; Mootness, 1. RELIGIOUS DOCTRINES. See Constitutional Law, III, 1. REMEDIES. See Administrative Procedure, 2; Jurisdiction, 2; National Labor Relations Act; Procedure, 3; Securities and Exchange Commission, 1-3. RENTS. See Constitutional Law, I, 2-3; Public Housing. RES JUDICATA. See Habeas Corpus, 1, 3; Procedure, 4. RESTRAINING ORDERS. See Constitutional Law, III, 3; Injunctions; Mootness, 3. RETROACTIVITY. See Constitutional Law, I, 4-5; Federal Communications Act; Procedure, 1, 6-7; Witnesses. REVOCATION OF PROBATION. See Constitutional Law, I, 4; Procedure, 6. RIGHT TO COUNSEL. See Constitutional Law, I, 4-5; Procedure, 6-7. RIGHT TO VOTE. See Jurisdiction, 3; Procedure, 10, 12-13; Three-Judge Courts; Voting Rights Act of 1965, 1-3. SAFETY. See Constitutional Law, II, 5; Railroads. SALES. See Antitrust Acts, 2; Mootness, 2. SALES COMMISSIONS. See Administrative Procedure, 1; Federal Trade Commission, 1-2. SCHOOL BOOKS. See Constitutional Law, III, 2. SCHOOLS. See Constitutional Law, III, 4-5. SCHOOL TEACHERS. See Constitutional Law, III, 2, 4-5. SCIENTIFIC THEORY. See Constitutional Law, III, 2. SEARCH AND SEIZURE. See Constitutional Law, IV. SECRETARY OF THE INTERIOR. See also District of Columbia ; Transportation. Jurisdiction—Bus service on the Mall—District of Columbia.— When Congress established the Washington Metropolitan Area Transit Commission it did not intend to create dual regulatory jurisdiction by divesting the Secretary of the Interior of his longstanding “exclusive charge and control” over the Mall. D. C. Transit System’s franchise does not protect it against competition from petitioner’s leisurely sightseeing service on the Mall outside WMATC jurisdiction. Shuttle Corp. v. Transit Comm’n, p. 186. 1152 INDEX. SECURITIES AND EXCHANGE COMMISSION. 1. Arizona’s regulation of insurance companies—McCarran-Fer-guson Act—Federal securities regulation.—Arizona’s statutory regulation insofar as it applies to the relationship between insurance companies and their stockholders does not come within the scope of the McCarran-Ferguson Act and does not render the federal securities laws inapplicable. SEC v. National Securities, Inc., p. 453. 2. McCarran-Ferguson Act — Fraudulent misrepresentations — Remedies.—The Act does not bar the remedies, including return to the status quo ante, which the SEC is seeking, as the complaint is based on fraudulent misrepresentations and not on the illegality of the merger; any “impairment” of the state insurance laws is very indirect; and the paramount federal interest in protecting shareholders is compatible with the paramount state interest in protecting policyholders. SEC v. National Securities, Inc., p. 453. 3. Securities Exchange Act—Exchange of shares—“Purchases.”— Deception alleged here has affected stockholders’ decisions in a way not unlike that involved in typical cash sale or share exchange and in light of the broad antifraud purposes of § 10 (b) of the Act and SEC Rule 10b-5, which apply “in connection with the purchase or sale of any security,” exchanges of old stock for shares in the new merged company are “purchases” within the meaning of that statutory language. SEC v. National Securities, Inc., p. 453. SECURITIES EXCHANGE ACT. See Securities and Exchange Commission. SELECTIVE SERVICE ACT. See also Judicial Review, 2, 4. 1. Draft registrants—Theological students—Deprivation of exemption.—There is no legislative authority to deny an unequivocal statutory exemption to a registrant who has qualified for one because of conduct unrelated to merits of granting or continuing the exemption, and delinquency proceedings cannot be used for that purpose. Oestereich v. Selective Service Bd., p. 233. 2. Draft registrants—Theological students—Pre-induction judicial review.—Pre-induction judicial review is not precluded in this case, as § 10 (b) (3) of the Military Selective Sendee Act of 1967 cannot be construed to impair the clear mandate of § 6 (g) of the Selective Service Act governing the exemption for theological students. Oestereich v. Selective Service Bd., p. 233. 3. Pre-induction judicial review—Conscientious objectors—Draft Board discretion.—The draft Board had exercised its statutory discretion evaluating the evidence regarding appellee’s claim to classification as a conscientious objector, and had rejected that claim. INDEX. 1153 SELECTIVE SERVICE ACT—Continued. Congress may constitutionally require that a registrant’s challenges to such decisions be deferred until after induction, when remedy of habeas corpus would be available, or until defense of criminal prosecution, should he refuse to submit to induction. Clark v. Gabriel, p. 256. SENTENCES. See Constitutional Law, I, 4; Procedure, 6. SERVICE STATIONS. See Administrative Procedure, 1; Federal Trade Commission, 1-2. SEVENTH AMENDMENT. See Constitutional Law, VI; Procedure, 11. “SHAKE DOWN.’’ See Extortion. SHERMAN ACT. See Antitrust Acts, 2; Mootness, 2. SHIPOWNER. See Constitutional Law, VI; Procedure, 11. SIGHTSEEING SERVICES. See District of Columbia; Secretary of the Interior; Transportation. SIXTH AMENDMENT. See Constitutional Law, V; Procedure, 8; Witnesses. SOCIALIST LABOR PARTY. See Constitutional Law, II, 3. SOMERSET COUNTY. See Constitutional Law, III, 3; Injunctions; Mootness, 3. SOUTHEASTERN UNITED STATES. See Antitrust Acts, 1. SOVEREIGNTY. See Constitutional Law, V, 2; Procedure, 8. SPEEDY TRIAL. See Constitutional Law, V, 2; Procedure, 8. STABILIZATION OF PRICES. See Antitrust Acts, 1. STATE CRIMINAL TRIALS. See Constitutional Law, V, 2; Procedure, 8. STATE INSURANCE REGULATION. See Securities and Exchange Commission, 1-3. STATE STATUTES. See Jurisdiction, 3; Procedure, 10, 12-13; Three-Judge Courts; Voting Rights Act of 1965, 1-3. STATE TAXES. See Interstate Commerce; Taxes, 2. STATUTORY EXEMPTIONS. See Judicial Review, 2; Selective Service Act, 1-2. STEVEDORES. See Constitutional Law, VI; Procedure, 11. STOCKHOLDERS. See Securities and Exchange Commission, 1-3; Taxes, 1. 1154 INDEX. STUDENTS. See Constitutional Law, III, 4-5. SUBCONTRACTORS. See Arbitration. SUBMISSIONS. See Voting Rights Act of 1965, 1-3. SUPERINTENDENTS OF EDUCATION. See Jurisdiction, 3; Procedure, 10, 12-13; Three-Judge Courts; Voting Rights Act of 1965, 1-3. SUPREME COURT. See also Jurisdiction, 1; Procedure, 2. 1. Assignment of Mr. Justice Reed (retired) to United States Court of Claims, p. 1113. 2. Assignment of Mr. Justice Clark (retired) to United States Court of Appeals for the Second Circuit, p. 1113. SURVEILLANCE. See Constitutional Law, IV, 1. TAX AVOIDANCE. See Taxes, 1. TAXES. See also Corporations; Federal Power Commission; Interstate Commerce; Judicial Review, 3. 1. Accumulated earnings tax—Tax avoidance—Dominant motive.— Tax imposed on accumulated earnings of a corporation “formed or availed of for the purpose of avoiding the income tax with respect to shareholders” applies if such tax avoidance was one of the purposes of an unreasonable accumulation of corporate earnings even though it was not the dominant, controlling, or impelling motive for the accumulation. United States v. Donruss Co., p. 297. 2. License tax on photographers—Interstate commerce—Discrimination.—Appellant was engaged in the essentially local activity of taking pictures and could constitutionally be made subject to Alabama license tax on that local activity. The tax does not discriminate against interstate commerce, since it is levied equally on interstate and intrastate transient photographers and on the record here the tax on out-of-state photographers is not so disproportionate to the tax on fixed-location photographers as to come within the condemnation of the Constitution. Dunbar-Stanley Studios v. Alabama, p. 537. TEACHERS. See Constitutional Law, III, 2, 4-5. TELEGRAMS. See Federal Communications Act; Procedure, 1. TELEPHONES. See Constitutional Law, IV, 1. TELEVISION STATIONS. See Constitutional Law, II, 1; Corporations. TENANTS. See Constitutional Law, I, 2-3; Public Housing. TENNESSEE. See Habeas Corpus, 2; Prisoners. INDEX. 1155 TERRITORIAL COSTS. See Interstate Commerce Commission, 1-2. TESTIMONY. See Constitutional Law, V, 1; Witnesses. TESTS OR DEVICES. See Jurisdiction, 3; Procedure, 10, 12-13; Three-Judge Courts; Voting Rights Act of 1965, 1-3. TEXAS. See Constitutional Law, V, 2; Procedure, 8. TEXTBOOKS. See Constitutional Law, III, 2. THEOLOGICAL STUDENTS. See Judicial Review, 2; Selective Service Act, 1-2. THREE-JUDGE COURTS. See also Jurisdiction, 1, 3; Procedure, 2, 10, 12-13; Voting Rights Act of 1965, 1-3. Voting Rights Act of 1965—Procedure.—In light of the extraordinary nature of the Act and its effect on federal-state relationships, and the unique approval requirements of § 5, which also provides that “[a]ny action under this section shall be heard and determined by a court of three judges,” disputes involving the coverage of § 5 should be determined by three-judge courts. Allen v. State Board of Elections, p. 544. TIPS. See Constitutional Law, IV, 1-3. TIRES. See Administrative Procedure, 1; Federal Trade Commission, 1-2. TOURS. See District of Columbia; Secretary of the Interior; Transportation. TRAIN CREWS. See Constitutional Law, II, 5; Railroads. TRANSCRIPTS OF HEARINGS. See Constitutional Law, II, 2. TRANSIENT PHOTOGRAPHERS. See Interstate Commerce; Taxes, 2. TRANSIT SYSTEMS. See District of Columbia; Secretary of the Interior; Transportation. TRANSPORTATION. See also Constitutional Law, II, 5; District of Columbia; Interstate Commerce Commission, 1-2; Railroads; Secretary of the Interior. Bus service on the Mall—District of Columbia—Jurisdiction.— When Congress established the Washington Metropolitan Area Transit Commission it did not intend to create dual regulatory jurisdiction by divesting the Secretary of the Interior of his longstanding “exclusive charge and control” over the Mall. D. C. Transit System’s franchise does not protect it against competition from petitioner’s leisurely sightseeing sendee on the Mall outside WMATC jurisdiction. Shuttle Corp. v. Transit Comm’n p. 186. 1156 INDEX. TRAVEL ACT. See Extortion. TRIAL BY JURY. See Constitutional Law, VI; Procedure, 11. TRIALS. See Constitutional Law, I, 1; V, 2; Procedure, 8-9. TRUST OF CHURCH PROPERTY. See Constitutional Law, III, 1. UNAVAILABILITY OF WITNESSES. See Constitutional Law, V, 1; Witnesses. UNFAIR COMPETITION. See Administrative Procedure, 1; Federal Trade Commission. UNFAIR LABOR PRACTICES. See Administrative Procedure, 2; National Labor Relations Act. UNIDENTIFIED INFORMERS. See Constitutional Law, IV, 2-3. UNIFORM CODE OF MILITARY JUSTICE. See Courts- Martial; Judicial Review, 1. UNIONS. See Administrative Procedure, 2; Jurisdiction, 2; National Labor Relations Act; Procedure, 3. UNITED STATES ARBITRATION ACT. See Arbitration. UNITED STATES COMMISSIONERS. See Constitutional Law, IV, 1. UNREASONABLE ACCUMULATIONS. See Taxes, 1. VENTILATING SYSTEM. See Constitutional Law, VI; Procedure, 11. VIETNAM. See Constitutional Law, III, 4-5; Judicial Review, 2; Selective Service Act, 1-2. VIRGINIA. See Jurisdiction, 3; Procedure, 10, 12-13; Three-Judge Courts; Voting Rights Act of 1965, 1-3. VOTING. See Constitutional Law, II, 3. VOTING RIGHTS ACT OF 1965. See also Jurisdiction, 3; Procedure, 10, 12-13; Three-Judge Courts. 1. Approval requirements—State statutes and regulations.—State statutes involved here are subject to § 5’s approval requirements as the Act, which gives a broad interpretation to the right to vote and recognizes that voting includes “all actions necessary to make a vote effective,” was aimed at the subtle as well as the obvious state regulations which have the effect of denying citizens their right to vote because of race. Allen v. State Board of Elections, p. 544. 2. Approval requirements — Submission to Attorney General.— The Act requires that the State must in some unambiguous and recordable manner submit any legislation or regulation to the Attor- INDEX. 1157 VOTING RIGHTS ACT OF 1965—Continued. ney General with a request for his consideration, and there is no “submission” when the Attorney General merely becomes aware of the legislation or when briefs are served on him. Allen v. State Board of Elections, p. 544. 3. Denial of right to vote—Private litigants.—Private litigants may invoke the jurisdiction of the district courts to obtain relief under § 5, to insure the Act’s guarantee that no person shall be denied the right to vote for failure to comply with an unapproved new enactment subject to that section. Allen v. State Board of Elections, p. 544. WAGERING. See Constitutional Law, IV, 1. WAIVERS. See Habeas Corpus, 1, 3; Procedure, 4. WAR. See Judicial Review, 2; Selective Service Act, 1-2. WARRANTLESS SEARCH. See Constitutional Law, IV, 2-3. WARRANTS. See Constitutional Law, IV, 1. WASHINGTON METROPOLITAN AREA TRANSIT COMMIS- SION. See District of Columbia; Secretary of the Interior; Transportation. WEBB-POMERENE ACT. See Antitrust Acts, 2; Mootness, 2. WHITE SUPREMACISTS. See Constitutional Law, III, 3; Injunctions; Mootness, 3. WITNESSES. See also Constitutional Law, V, 1. Absence from jurisdiction—Good-faith effort to secure—Retroactivity.—The holding in Barber v. Page, 390 U. S. 719, that absence of witness from the jurisdiction would not justify use at trial of preliminary hearing testimony unless State had made goodfaith effort to secure witness’ presence, should be given retroactive application. Berger v. California, p. 314. WORDS. 1. “Business of insurance.” McCarran-Ferguson Act, §2(b), 15 U. S. C. §1012 (b). SEC v. National Securities, Inc., p. 453. 2. “Extortion.” 18 U. S. C. § 1952. United States v. Nardello, p. 286. 3. “Purchase and sale of any security.” Securities Exchange Act, § 10 (b), 15 U. S. C. § 78j (b). SEC v. National Securities, Inc., p. 453. WRITE-IN VOTES. See Jurisdiction, 3; Procedure, 10, 12-13; Three-Judge Courts; Voting Rights Act of 1965, 1-3. U. S. GOVERNMENT PRINTING OFFICE : 1969 O - 320-583 3L5.U 93762 v^393 U.S. Supreme Court United States reports MAHONEY LIBRARY COLLEGE OF SAINT ELIZABETH CONVENT STATION, N. J.