MAHO 3ARY COLLEGE OF ELIZABETH CONVENT STATION, N. J. DISCARDED APR 1 9 2UU6 ft UNITED STATES REPORTS VOLUME 402 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1970 April 15 Through June 4, 1971 HENRY PUTZEL, jr. REPORTER OF DECISIONS UNITED STATES GOVERNMENT PRINTING OFFICE WASHINGTON : 1972 For sale by the Superintendent of Documents, U.S. Government Printing Office Washington, D.C. 20402 - Price $7.25 (Buckram) JUSTICES OF THE SUPREME COURT DURING THE TIME OF THESE REPORTS WARREN E. BURGER, Chief Justice. HUGO L. BLACK, Associate Justice. WILLIAM 0. DOUGLAS, Associate Justice. JOHN M. HARLAN, Associate Justice. WILLIAM J. BRENNAN, Jr., Associate Justice. POTTER STEWART, Associate Justice. BYRON R. WHITE, Associate Justice. THURGOOD MARSHALL, Associate Justice. HARRY A. BLACKMUN, Associate Justice. RETIRED EARL WARREN, Chief Justice. STANLEY REED, Associate Justice. TOM C. CLARK, Associate Justice. OFFICERS OF THE COURT JOHN N. MITCHELL, Attorney General. ERWIN N. GRISWOLD, Solicitor General. E. ROBERT SEAVER, Clerk. HENRY PUTZEL, jr., Reporter of Decisions. T. PERRY LIPPITT, Marshal. HENRY CHARLES HALLAM, Jr., Librarian. hi 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, Warren E. Burger, Chief Justice. For the First Circuit, William J. Brennan, Jr., 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, Warren E. Burger, 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, Harry A. Blackmun, Associate Justice. For the Ninth Circuit, William 0. Douglas, Associate Justice. For the Tenth Circuit, Byron R. White, Associate Justice. June 9, 1970. (For next previous allotment, see 396 U. S., p. iv.) IV TABLE OF CASES BEPOBTED Note: All undesignated references herein to the United States Code are to the 1964 edition. Cases reported before page 901 are those decided with opinions of the Court or decisions per curiam. Cases reported on page 901 et seq. are those in which orders were entered. The page numbers are the same as they will be in the bound volume, thus making the permanent citations available upon publication of this preliminary print. Page Abodeely v. Iowa............................................. 936 Adams; Associated Press v................................ 901 Adcox v. California.......................................... 977 Adler v. United States....................................... 944 Aero Engineering Corp. v. Labor Board........................ 974 Aetna Life Insurance Co. v. Lester........................... 909 Affiliated Ute Citizens of Utah v. United States............. 905 Aguirre v. California........................................ 923 Air Traffic Controllers Organization v. United States...... 915 Airwick Industries v. Carlstadt Sewerage Authority......... 967 Alabama; Sparks v............................................ 909 Alameda Conservation Assn.; Leslie Salt Co. v................ 908 Alaska; Delahay v.... ... i.............................. 901 Alexander v. Michigan Parole Board........................... 980 Alexander v. Pasadena City Board of Education................ 943 Alexander v. Perini......................................... 914 Alexander v. Swank.......................................... 1007 Allen; Board of Public Instruction of Broward County v.... 952 Allen v. Tennessee........................................... 975 Allen v. VanCantfort........................................ 1008 Allied Chemical Workers v. Pittsburgh Plate Glass Co.... 993,1007 Almendarez v. Texas..................................... 974 Alonzo v. United States................................... 1009 Amalgamated. For labor union, see name of trade. American Electric, Inc. v. Oldenkott......................... 975 American Export Industries v. Fluor Corp..................... 945 v VI TABLE OF CASES REPORTED Page Amity Fabrics, Inc. v. United States........................ 974 A. M. Kidder & Co.; Clement A. Evans & Co. v................ 988 Anderson v. California..................................... 1011 Anderson; Fanale v.......................i............. 966 Anderson v. Kentucky........................................ 993 Andrews v. United States.................................... 995 Ardle v. United States...................................... 947 Argersinger v. Hamlin....................................... 928 Arizona; Holmes v...................................... 971 Arizona; Reynolds v......................................... 910 Arizona Highway Dept.; Perez v.......................... 637 Arkansas; Mississippi v................................. 926,939 Armed Forces Induction Center at Houston; Steiner v....... 1009 Armour & Co.; United States v............................... 673 Armstrong Equipment Co. v. Clark Equipment Co............... 909 Arriaga v. California....................................... 975 Ashmore; Porter v........................................... 981 Associated Press v. Adams................................... 901 Association. For labor union, see name of trade. Astrup v. Immigration and Naturalization Service............ 509 Atkins; Schmutz Mfg. Co. v.................................. 932 Atlanta District Attorney; Hughes v......................... 914 Atlantic Coast Line R. Co. v. United States................. 975 Atlas Engine Works v. Labor Board........................... 909 Attorney General; Gooch v................................... 995 Attorney General; Schoop v.................................. 988 Attorney General; Sostre v.................................. 911 Attorney General of Georgia v. Doe.......................... 936 Attorney General of Georgia; Doe v.......................... 941 Attorney General of Pennsylvania; Kontos v.................. 975 Auburndale Freezer Corp.; Steelworkers v................... 1013 Austin v. United States.................................. 1012 Babbitz; McCann v........................................ 903 Bagel Bakers Council of Greater New York v. Labor Board.. 908 Bale v. Parsons............................................. 990 Balistrieri v. United States................................ 953 Banco Nacional de Cuba; First National City Bank v........ 940 Bankers Life & Casualty Co.; Supt. of Ins. of N. Y. v..... 993 Banks v. United States...................................... 984 Barnett v. Illinois......................................... 929 Barney v. United States..................................... 989 Barresi; McDaniel v.......................................... 39 Bartlett; Boston & Providence Railroad Develop. Group v.. 989 TABLE OF CASES REPORTED VII Page Bass; United States v....................................... 927 Batten; Edgerton v.......................................... 981 Baum v. United States....................................... 907 Bay County Board of Public Instruction v. Youngblood..... 943 Bean v. Illinois........................................... 1009 Becker v. Nebraska......................................... 981 Bell v. Burson.............................................. 535 Bellamy v. United States.................................... 929 Bellefontaine; Foreman v............................... 901,1013 Bender v. United States..................................... 982 Benedict v. Peoria County.................................. 929 Benjamin; Vernitron Corp, v............................ 987 Benoit v. United States..................................... 990 Berend v. J. F. Pritchard & Co.............................. 990 Bergenthal v. Wisconsin..................................... 972 Bering v. Commissioner...................................... 974 Berzanskis v. Daley......................................... 999 Beto v. Marion.............................................. 906 Beverly v. Scotland Urban Enterprises............... 936,954,960 Beverly Hills National Bank; Cia. de Nav. Almirante v.... 996 Bigsby v. United States..................................... 986 Birns v. Perini............................................. 950 Bissett-Berman Corp.; Dekar Industries, Inc. v.......... 904,945 Black v. Russell............................................ 947 Black v. United States...................................... 975 Blackwell; Singal v........................................ 924 Blackwell; Theriault v.................................... 953 Blanche Ely P. T. A. v. Bd. of Pub. Instr, of Broward County. 952 Blanton v. Smith............................................ 910 Blassick v. United States................................... 985 Blassingame v. United States................................ 945 Blonder-Tongue Laboratories v. Univ, of Ill. Foundation.. 313 Bloss v. Michigan........................................... 938 Blue Diamond Coal Co.; Mine Workers v....................... 930 B-M-G Investment Co.; Continental/Moss-Gordin v.......... 989 Boag v. Craven.............................................. 998 Board of Education of Chicago v. King....................... 908 Board of Education of Little Rock School District v. Clark.. 952 Board of Elections for the District of Columbia; Hobson v.. 988 Board of Jr. College Dist.; Cook County Teachers v....... 998 Board of Pub. Instr, of Bay County v. Youngblood.... t.... 943 Board of Pub. Instr, of Broward County v. Allen............. 952 Board of Pub. Instr, of Broward County; Ely P. T. A. v.... 952 VIII TABLE OF CASES REPORTED Page Board of Pub. Instr, of Manatee County v. Harvest....... 943 Board of Pub. Instr, of Pinellas County v. Bradley...... 943 Board of School Comm’rs of Mobile County; Davis v....... 33 Boddie; Wyman v.......................... i. 991 Boilermakers v. Hardeman................................ 967 Bolettieri v. United States.............................. 945 Bolton v. Doe............................................. 936 Bolton; Doe v............................................. 941 Booker v. Tennessee..................................... 996 Book Mart v. Foster..................................... 941 Booth v. Warden........................................... 909 Borman v. United States................................... 913 Bostic v. United States................................. 547 Boston & Providence Railroad Development Group v. Bartlett. 989 Bourbeau v. Lancaster............................. 954,960,964 Bournett v. Twomey........................................ 913 Bowen v. Kropp............................................ 947 Bradley; Board of Public Instr, of Pinellas County v.... 943 Brady v. Ohio............................................. 989 Brantley; Smith v......................................... 975 Branzburg v. Hayes........................................ 942 Braxton v. Perini......................................... 931 Brierley; Brown v......................................... 997 Brierley; Ray v.......................................... 1008 Britt v. Tennessee........................................ 946 Brocato v. United States................................. 1010 Brooks v. Brown........................................... 971 Broom v. Texas............................................ 933 Brossard v. United States................................. 981 Brotherhood. For labor union, see name of trade. Broward County Bd. of Pub. Instr, v. Allen................ 952 Broward County Bd. of Pub. Instr.; Blanche Ely P. T. A. v.. 952 Brown v. Brierley......................................... 997 Brown; Brooks v........................................... 971 Brown v. Buchkoe.................................... 904 Brown v. Hendrick...................................... 976 Brown v. La Vallee.................................... 990 Brown v. Peterson...................................... 948 Brown v. United States.................................... 907 Bryan; Edwards v.......................................... 915 Bryant v. United States.............................. 932,1013 Bucci Detective Agency; Smith v........................... 977 Buchkoe; Brown v.......................................... 904 TABLE OF CASES REPORTED IX Page Buchkoe; Winegarw............................................... 975 Burke v. Erickson.............................................. 1011 Burke v. Hahn................................................... 933 Burns; La Vallee v............................................. 1012 Burson; Bell v.................................................. 535 Burton v. New York.............................................. 991 Burwell v. Cardwell............................................. 933 Bustos v. California..................................... 910,1013 Byers; California v........................................... 424 Cady; Driver v................................................ 996 Cady; Humphrey v.............................................. 927 Cady; Morales v............................................ 931,1013 Cahn v. United States........................................... 944 Cain v. United States........................................... 905 Calarco v. United States........................................ 934 Caldwell v. Craighead........................................... 953 Caldwell; United States v....................................... 942 California; Adcox v............................................. 977 California; Aguirre v........................................... 923 California; Anderson v......................................... 1011 California; Arriaga v........................................... 975 California; Bustos v....................................... 910,1013 Cailfomia v. Byers.............................................. 424 California; Castillo v.......................................... 984 California; Chambers v........................................ 999 California; Chatfield v......................................... 951 California; Davis v........................................ 932,986 California; De La Rosa v...................................... 946 California; Donovan v........................................... 983 California; Groze v............................................. 952 California; Harrington v........................................ 923 California; Howell v............................................ 932 California; Jordan v............................................ 913 California; Locklear v.......................................... 984 California; Mason v............................................. 913 California; McGautha v........................................- 183 California; Nichols v........................................... 910 California; Peterson v.......................................... 948 California; Raguse v............................................ 976 California; Ramos v............................................. 977 California; Reyes v............................................ 1010 California; Sandoval v.......................................... 909 California; Teran v............................................. 981 X TABLE OF CASES REPORTED Page California; Verdugo v....................................... 985 California; Zitzer v........................................ 984 California Adult Authority; Davis v....................... 928 California Dept, of Human Resources Development v. Java.. 121 California Motor Transport Co. v. Trucking Unlimited...... 1008 California Superior Court; Eldon Industries v............... 995 Campbell v. Florida........................................ 936 Campbell; Perez v........................................... 637 Campbell v. United States................................... 975 Canel Lodge No. 700 v. United Aircraft Corp................. 908 Cantrell v. Gaffney......................................... 923 Cantrell v. Kansas.......................................... 924 Capobianco; Laird v......................................... 969 Cardwell; Burwell v......................................... 933 Cardwell; Scott v........................................... 911 Carlstadt Sewerage Authority; Airwick Industries v........ 967 Carpenter v. United States................................. 1008 Carrizoza-Islas v. United States............................ 931 Carter; Kaufman v................................... 954,960,964 Carter v. Miller............................................ 972 Carter v. Stanton........................................... 994 Carter v. United States..................................... 912 Cascade Car Wash v. Cascade Car Wash....................... 1009 Cascade Car Wash v. Laurent Watch Co................... 1009 Castillo v. California...................................... 984 Castro v. United States..................................... 977 Cataldo v. United States.................................... 934 C. Buck LeCraw & Co.; Meltzer v............................. 954 Central Baptist Church of Miami; Diffenderfer v........... 903,970 Certain Space in Chimes Building v. United States........... 908 Chacon v. Nelson........................................ 941,1013 Chambers v. California................................... 999 Chambers v. United States................................ 944 Chandler; Tracy v......................................... 997 Chapman v. Collins....................................... 931 Chapman v. United States................................. 912 Charles River Civic Television v. Federal Com. Comm’n.... 1007 Charlotte-Mecklenburg Board of Education; Moore v......... 47 Charlotte-Mecklenburg Board of Education v. Swann...... 1 Charlotte-Mecklenburg Board of Education; Swann v......... 1 Chas. Pfizer & Co.; United States v......................... 942 Chatfield v. California..................................... 951 Chemical Cleaning, Inc. v. Dow Chemical Co.................. 945 Cherry; United States v..................................... 971 TABLE OF CASES REPORTED XI Page Chesapeake & Ohio R. Co.; Koserkoff v....................... 934 Chevron Oil Co. v. Huson.................................... 942 Chicago; Greene v........................................... 996 Chicago; Lynd v............................................. 923 Chicago Board of Education v. King.......................... 908 Chicago, B. & Q. R. Co.; Chicago, R. I. & P. R. Co. v..... 996 Chicago Great Western R. Co.; Noe v........................ 1009 Chicago Housing Authority v. Gautreaux...................... 922 Chicago in Trust for Use of Schools; National Bank v...... 908 Chicago Joint Board v. Chicago Tribune Co................... 973 Chicago & N. W. R. Co. v. Transportation Union.............. 570 Chicago, R. I. & P. R. Co. v. Chicago, B. & Q. R. Co...... 996 Chicago, R. I. & P. R. Co. v. National Mediation Board.... 944 Chicago Tribune Co.; Clothing Workers v..................... 973 Chief Judge, U. S. Court of Appeals; Brooks v............... 971 Chien Woo; Rosenberg v....................................... 49 Chimes Bldg. v. United States................................ 908 Chipley, In re............................................. 1005 Chropowicki v. Lee........................................... 935 Ciccone; Harper v............................................ 911 Cimino v. Illinois........................................... 932 Cincinnati; Coates v......................................... 611 Cincinnati Board of Education; Deal v...................... 962 Circuit Court of Hillsborough; Hill v....................... 910 City. See also name of city. City Rent and Rehabilitation Adm. of N. Y.; Davenport v.. 934 Clairol, Inc. v. Director of Division of Taxation........... 902 Clark; Board of Education of Little Rock School District v. 952 Clark v. Ellenbogen......................................... 935 Clark Equipment Co.; Armstrong Equipment Co. v............ 909 Clement A. Evans & Co. v. A. M. Kidder & Co................. 988 Clermont v. United States................................... 997 Clothing Workers v. Chicago Tribune Co..................... 973 Clowes; Eldon Industries v................................. 995 Coakley v. Reising.......................................... 906 Coates v. Cincinnati........................................ 611 Cobb v. United States....................................... 937 Cochran v. United States.................................... 939 Col-An Entertainment Corp. v. Harper........................ 941 Colby v. Kropp.............................................. 931 Collins; Chapman v.......................................... 931 Colon v. New York........................................... 905 Colson v. Morton............................................ 990 Commissioner; Bering v...................................... 974 XII TABLE OF CASES REPORTED Page Commissioner; Rose v..................................... 907 Commissioner of Education of New York v. Lee............. 935 Commissioner of Internal Revenue. See Commissioner...... 907 Commissioner of Pub. Welfare of Mass.; ITT Lamp Div. v.. 933 Commissioner of Revenue of New Mexico; EVCO v........... 969 Commissioner of Social Services of New York v. Boddie.... 991 Commissioner of Social Services of New York v. Rosado.... 991 Commonwealth. See name of Commonwealth. Compania de Nav. Almirante v. Beverly Hills Nat. Bank.... 996 Connecticut; Duffen v.................................... 914 Connecticut; Oliver v.................................... 946 Connor v. Johnson........................................ 690 Connor; Picard v................................... 942,993 Consolidated Carriers Corp. v. United States......901,10T3 Consolidation Coal Co. v. South-East Coal Co............. 983 Construction & Gen. Laborers’ Union v. Jordan Co........ 905 Conte; Murphy v................................... iM ; 910 Continental Casualty Co.; Mather Construction Co. v..... 907 Continental/Moss-Gordin v. B-M-G Investment Co.......... 989 Cook v. United States Steel Corp......................... 987 Cook County College Teachers v. Bd. of Jr. College Dist. 998 Cook County School District 151 v. United States......... 943 Cookmeyer v. Louisiana Dept, of Highways................ 1005 Corbett v. Dade County School Board...................... 953 Corcino v. Government of the Virgin Islands.............. 976 Corrado v. Providence Redevelopment Agency............... 947 Corrections Commissioner. See name of Commissioner. Cortese; Epps v........................................ 994 Costen v. Hirschbach Motor Line.......................... 909 Cothran v. San Jose Water Works.......................... 975 County. See name of county. Court of Appeals. See U. S. Court of Appeals. Cox v. May............................................... 948 Cox v. Pennington........................................ 948 Cox Enterprises; Southland Inc. v........................ 990 Craighead; Caldwell v.................................... 953 Crampton v. Ohio..................................7. 183 Craven; Boag v.i*....., 998 Craven; Howard v......................................... 966 Craven; Molina v......................................... 980 Craven; Schlette v....................................... 998 Creamer; Kontos v........................................ 975 Crisp v. United States................................... 947 TABLE OF CASES REPORTED XIII Page Daddano v. United States.................................. 905 Dade County School Board; Corbett v....................... 953 Dade County School Board v. Pate.......................... 953 Daley; Berzanskis v....................................... 999 Danaher; Fried v902 Daniels v. United States.................................. 951 Daut v. United States..................................... 945 Davenport v. City Rent and Rehabilitation Adm. of N. Y.. 934 Davenport v. United States................................ 973 David v. United States.................................... 983 Davidson; Parisi v........................................ 942 Davis v. Board of School Comm’rs of Mobile County...... 33 Davis v. California................................... 932,986 Davis v. California Adult Authority....................... 928 Davis v. Gaffney.......................................... 947 Davis v. Members of Selective Service Bd. No. 30.......... 999 Davis; Pennsylvania v..................................... 999 Davis v. Pope............................................ 1008 Deal v. Cincinnati Board of Education..................... 962 Dean v. United States..................................... 937 Decker v. United States................................... 937 Dekar Industries, Inc. v. Bissett-Berman Corp......... 904,945 Delahay v. Alaska......................................... 901 De La Rosa v. California.................................. 946 DeLegge v. United States.................................. 905 DeLutro v. United States.................................. 983 Deming v. United States.................................. 949 Democratic Organization of Cook County v. Shakman...... 909 Department of Labor and Industries; G & M Empl. Serv. v.. 968 Department of Public Aid of Illinois; Alexander v........ 1007 Department of Public Aid of Illinois; Townsend v......... 1007 DeSapio v. United States.............................. 928,999 DeStafano v. United States................................ 972 DeVore v. United States................................... 950 Dewey v. Reynolds Metals Co........................... 689,904 Diamond; Homart Development Co. v............... A... 988 Diffenderfer v. Central Baptist Church of Miami........ 903,970 Dill v. Greyhound Corp................................ 952 Dillon v. United States................................... 982 DiLorenzo v. United States................................ 950 DiPiazza v. United States................................. 949 Director of Division of Taxation; Clairol, Inc. v......... 902 Director of Immigration. See Immigration Director. XLV TABLE OF CASES REPORTED Page Director of Internal Revenue. See Commissioner. Director of penal or correctional institution. See name of director. District Attorney for Atlanta; Hughes v..................... 914 District Attorney of Dallas County; Roe v.............. 941 District Attorney of Milwaukee County v. Babbitz....... 903 District Court in and for County of Eagle; United States v.. 940 District Court in and for Water Div. No. 5; United States v. 940 District Court of Montgomery County; Wright v............... 990 District Director of Immigration. See Immigration Director. District 50, Mine Workers; Mine Workers v................... 906 District Judge. See U. S. District Judge. District of Columbia Board of Elections; Hobson v........... 988 Dixon v. Gordon............................................. 928 Doe v. Bolton............................................... 941 Doe; Bolton v............................................... 936 Doe; Unborn Child of Doe v.................................. 936 Donohue v. United States.................................... 949 Donovan v. California....................................... 983 Donovan v. United States................................... 1005 Dorr v. Illinois............................................ 929 Dow Chemical Co.; Chemical Cleaning, Inc. v................. 945 Doyle v. Koelbl............................................. 908 Drew v. United States....................................... 977 Driver v. Cady.............................................. 996 Drobnick v. Foss Park District......................... 907,1013 Drotar v. United States..................................... 939 Drown v. Portsmouth School District......................... 972 Dudley v. Illinois.......................................... 910 Duffen v. Connecticut....................................... 914 Dunn v. New York............................................ 996 Dutton; Jackson v........................................... 947 Eagle County District Court; United States v................ 940 Eason v. United States...................................... 984 Eastern Airlines; Hartford Accident & Indemnity Co. v... 1009 Eaton v. United States...................................... 931 Ebbs v. New York........................................ 1011 Eckels v. Ross............................................. 953 Ector v. Smith............................................ 997 Edgerton v. Batten.......................................... 981 Edmondson v. United States.................................. 931 Edwards v. Bryan........................................... 915 Edwards v. Selective Service Local Board No. Ill............ 952 Edwards v. United States................................... 1012 Ehlert v. United States...................................... 99 TABLE OF CASES REPORTED xv Page Eisenberg v. Wisconsin..................................... 987 Eisenhardt v. United States............................ 928,1005 Elbel v. United States..................................... 929 Eldon Industries v. Clowes................................. 995 Eldon Industries v. Superior Court of California........... 995 Electrical Workers v. Labor Board.......................... 906 Ellenbogen; Clark v........................................ 935 Ellis; State National Bank of Alabama v.................... 973 El Ranco, Inc. v. First National Bank of Nevada............ 906 Elvin v. United States.................................... 995 Emmons v. Taylor........................................... 990 Enty v. Pennsylvania....................................... 913 Epps v. Cortese............................................ 994 Erickson; Burke v......................................... 1011 Escalante v. Zirpoli....................................... 981 Escobedo v. United States.................................. 951 Ethicon, Inc. v. Handgards, Inc........................... 929 Eubank v. Illinois......................................... 972 Euclid; Palmer v........................................... 544 Evans v. United States................................. 987,1010 Evans & Co. v. A. M. Kidder & Co........................... 988 EVCO v. Jones.............................................. 969 EVCO Instructional Designs v. Jones........................ 969 Fairbanks; Fairview Development, Inc. v.................... 901 Fairview Development, Inc. v. Fairbanks.................... 901 Fallon v. Waggonner........................................ 941 Fanale v. Anderson......................................... 966 Farkas v. Texas Instruments, Inc........................... 990 Farr v. United States...................................... 947 Fauls v. United States................................... 1011 Federal Com. Comm’n; Charles River Civic Television v.... 1007 Federal Com. Comm’n; Greater Boston Television Corp. v.. 1007 Federal Com. Comm’n; WHDH, Inc. v......................... 1007 Federal National Mortgage Assn.; McMillan v................ 936 Federal Power Comm’n v. Florida Power Corp................. 515 Federal Power Comm’n v. Florida Power & Light Co.......... 1007 Federman & Co. v. Zerbel................................... 902 Ferguson v. Mancusi....................................... 1011 Ferree v. Frye............................................ 1011 Ferrone v. United States.................................. 1008 Fiduciary Counsel, Inc. v. Hodgson......................... 973 Field; Ney v.......................................... 904,1005 Fincke v. United States.................................... 995 Fiore v. United States..................................... 973 XVI TABLE OF CASES REPORTED Page First National Bank of Nevada; El Ranco, Inc. v.............. 906 First National Bank of Waukegan v. Foss Park District.. 907,1013 First National City Bank v. Banco Nacional de Cuba........ 940 Fitzsimmons v. Perini........................................ 910 Flesch v. United States...................................... 982 Flintkote Co. v. United States............................... 944 Florida; Campbell v..................................... 936 Florida; Goodale v...................................... 998 Florida; Griffith v..................................... 932 Florida; Koran v......................................... 948,949 Florida; Lay v.......................................... 910 Florida; Papa v.... .................................. 996 Florida Power Corp.; Federal Power Comm’n v............ 515 Florida Power Corp.; Gainesville Utilities Dept, v........... 515 Florida Power & Light Co.; Federal Power Comm’n v......... 1007 Florida State Board of Dentistry v. Mack..................... 925 Fluor Corp.; American Export Industries v.................... 945 Fognini v. Illinois........................................ 911 Follette; Provenzano v....................................... 949 Follette; Randazzo v......................................... 984 Follette; Reynolds v......................................... 981 Follette; Wilson v........................................... 997 Foreman v. Bellefontaine........................... 901,1013 Fort Worth Independent School District; Passel v............. 968 Foss Park District; Drobnick v........................ 907,1013 Foster; Book Mart v.......................................... 941 Foster; Mitchum v............................................ 941 Franco- v. Stein Steel & Supply Co........................... 973 Franco v. United States...................................... 915 Frank v. United States....................................... 974 Franke v. United States...................................... 943 Franzese v. United States.............................‘. 995 Frederick v. Schwartz.................................... 937,954 Fried v. Danaher............................................. 902 Frizer v. McMann............................................ 1010 Frye; Ferree v.............................................. 1011 Fuhrman v. United States Steel Corp.......................... 987 Fukumoto v. United States.................................... 977 Gaffney; Cantrell v......................................... 923 Gaffney; Davis v............................................ 947 Gaffney; Hacker v........................................ 914 Gaffney; Hoy v........................................... 1011 Gaffney; Wood v........................................... 1010 Gaines v. United States..................................... 1006 TABLE OF CASES REPORTED XVII Page Gainesville Utilities Dept. v. Florida Power Corp.......... 515 Gaito v. Pennsylvania...................................... 946 Gallagher v. United States................................ 1009 Ganci v. New York.......................................... 924 Garcia v. United States.................................... 925 Garland, In re..................................... 954,960,966 Gautreaux; Chicago Housing Authority v..................... 922 Gaylord v. Wolke........................................... 976 Gehring; Maras v........................................... 925 General Motors Corp.; Washington v...................... 940 General Radio Co. v. Kepco, Inc........................ 1008 Georgia; Gornto v.......................................... 933 Georgia; Spencer v......................................... 991 Georgia Attorney General v. Doe......................... 936 Georgia Attorney General; Doe v............................ 941 Georgia Dept, of Public Safety; Bell v..................... 535 Georgian Hall Motor Lodge v. Gordon........................ 907 Gerstein v. Maryland...................................... 1009 Giannatti v. Los Angeles County............................ 992 Gibbons; Sloatman v.................................... 939,954 Gibson v. New York....................................... 951 Gill v. United States.........-........................... 1011 Gillespie v. United States................................. 938 Gilmer; Williamson v.................................. i. 993 Gilyard v. Illinois........................................ 911 Ginsburg v. Richardson..................................... 976 Glorioso v. Maryland....................................... 972 Glucksman v. United States................................. 929 G & M Employment Service v. Dept, of Labor & Industries.. 968 Goldwyn Productions v. Mulvey.............................. 923 Gonzalez-Parra v. United States........................... 1010 Gooch v. Mitchell.......................................... 995 Goodale v. Florida......................................... 998 Goodwin; Leighty v......................................... 932 Goodyear Tire & Rubber Co.; Sinatra v..................... 906 Gordon; Dixon v............................................ 928 Gordon; Georgian Hall Motor Lodge v........................ 907 Gordon; Messick v.......................................... 907 Gornto v. Georgia.......................................... 933 Gould v. Zelker............................................ 930 Government of the Virgin Islands; Corcino v................ 976 Graham v. United States.................................... 938 Granger v. Mentor.......................................... 907 Granite Falls State Bank v. Schneider..................... 1006 419-882 0 - 72 -2 XVIII TABLE OF CASES REPORTED Page Gray v. Pennsylvania....................................... 967 Gray; Swanney-McDonald, Inc. v......................... 995 Greater Boston Television Corp. v. Federal Com. Comm’n.. 1007 Greater Buffalo Press; United States v...................... 549 Green v. Michigan......................................... 1010 Greene v. Chicago........................................... 996 Greene v. Maxwell........................................... 951 Greyhound Corp.; Dill v..................................... 952 Griffith v. Florida........................................ 932 Griffin v. United States................................... 970 Grijalva v. United States................................. 1012 Grimes v. United States.................................... 989 Group Life & Health Insurance Co. v. United States....... 944 Groze v. California........................................ 952 Guitian v. United States................................... 985 Gulf Finance Corp.; Streule v.............................. 975 Gwynn v. United States.................................... 1011 Hacker v. Gaffney........................................ 914 Haggett v. United States................................... 946 Hahn; Burke v.............................................. 933 Hairston v. Illinois....................................... 972 Haldane v. Ruppe........................................... 906 Hale v. United States...................................... 976 Halpern v. Zelker.......................................... 932 Hamilton v. United States.................................. 985 Hamlin; Argersinger v...................................... 928 Handgards, Inc.; Ethicon, Inc. v........................... 929 Hanon v. United States..................................... 952 Hardeman; Boilermakers v................................... 967 Hardin; Nor-Am Agricultural Products v..................... 935 Harflinger v. United States................................ 973 Hargrove v. Rundle......................................... 912 Harper v. Ciccone.......................................... 911 Harper; Col-An Entertainment Corp, v....................... 941 Harrington v. California................................... 923 Harris v. LaFave.......................................... 904 Harris v. Texas............................................ 940 Harris v. United States................................ 981,986 Hartford Accident & Indemnity Co. v. Eastern Airlines.... 1009 Hartzell Propeller Fan Co. v. Labor Board.................. 945 Harvest; Board of Public Instruction of Manatee County v.. 943 Haslam v. United States................................ 912,976 Hathorne v. Texas.......................................... 914 Hayes; Branzburg v......................................... 942 TABLE OF CASES REPORTED XIX Page Haymarket Co-operative Bank; Pace v.................. i. 945 Haynes; Tippett v........................................ 998 Haynes; Wade v................... i.................... 997 Healy v. Illinois........................................ 905 Heine v. Raus............................................ 914 Heir of Pakarinen; Hietala v............................. 903 Hendrick; Brown v........................................ 976 Hepler v. United States.................................. 911 Hernandez v. United States............................... 976 Hickman v. United States............................. 965,966 Hicks v. North Carolina.................................. 913 Hietala v. Heir of Pakarinen............................. 903 Hill v. Circuit Court of Hillsborough.................... 910 Hillsborough Circuit Court; Hill v........................ 910 Hingle v. Perez.......................................... 929 Hirschbach Motor Line; Costen v.......................... 909 H. L. Fedennan & Co. v. Zerbel........................... 902 Hobson v. Board of Elections for the District of Columbia.. 988 Hodgson; Fiduciary Counsel, Inc. v........................ 973 Hodgson; Klages Coal & Ice Co. v......................... 973 Hodgson v. Minnesota.................................... 968 Hodgson v. Randall...................................... 967 Hodgson; Royal Crown Bottling Co. v..................... 973 Hoffa v. United States.................................. 988 Hohensee v. Scientific Living, Inc...................... 1012 Holman v. United States................................. 913 Holmes v. Arizona....................................... 971 Holmes; United States v.................................. 969 Homart Development Co. v. Diamond....................... 988 Hortencio v. Whitehead................................... 966 Hoskins v. United States................................. 943 Howard v. Craven......................................... 966 Howard Mfg. Co. v. Labor Board........................... 930 Howell v. California..................................... 932 Hoy v. Gaffney.......................................... 1011 Hoyel v. Jackson......................................... 946 Hsu v. United States.............................«....... 982 Hubbard v. Kief el....................................... 930 Hudson v. United States.................................. 965 Hughes v. District Attorney for Atlanta.................. 914 Humble Oil & Refining Co.; Patterson v................... 924 Humble Oil & Refining Co. v. Price....................... 934 Humphrey v. Cady......................................... 927 Huson; Chevron Oil Co. v................................. 942 XX TABLE OF CASES REPORTED Page lachino v. United States............................................. 976 lannone v. Maryland.................................................. 973 Idaho; Polson v................................................... 930 Illinois; Barnett v................................................. 929 Illinois; Bean v.................................................. 1009 Illinois; Cimino v................................................ 932 Illinois; Dorr v................................................... 929 Illinois; Dudley v................................................ 910 Illinois; Eubank v................................................ 972 Illinois; Fognini v................................................ 911 Illinois; Gilyard v................................................ 911 Illinois; Hairston v................................................. 972 Illinois; Healy v....................................;............... 905 Illinois; Johnson v................................................ 976 Illinois; Kirby v.................................................... 995 Illinois; Landgham v................................................. 911 Illinois; Ligue v.................................................... 911 Illinois v. Milwaukee................................................ 940 Illinois; Mitchell v................................................ 1010 Illinois; Nemke v.................................................... 924 Illinois; Palmer v................................................... 931 Illinois; Pardo v.................................................... 992 Illinois; Price v................................................. 902 Illinois; Rush v..................................................... 911 Illinois; Smith v.......................................... 945,1009,1011 Illinois; Stovall v.................................................. 997 Illinois; Swartz v................................................... 911 Illinois; Thomas v................................................... 996 Illinois Central R. Co.; Transportation Union v................ 915 Illinois Dept, of Public Aid; Alexander v...................... 1007 Illinois Dept, of Public Aid; Townsend v...................... 1007 Immigration and Naturalization Service. See also Immigra- tion Director. Immigration and Naturalization Service; Astrup v..................... 509 Immigration and Naturalization Service; Li v......................... 947 Immigration Director v. Yee Chien Woo................................. 49 Indiana; Maxwell v................................................... 930 Indiana; Stallings v................................................. 997 In re. See name of party. Interboro Contractors v. Labor Board............................. 915 Internal Revenue Service. See Commissioner. International. For labor union, see name of trade. International Metal Specialties v. Labor Board....................... 907 International Minerals & Chemical Corp.; United States v.. 558 TABLE OF CASES REPORTED XXI Page International Telephone & Telegraph Corp. v. Minter....... 933 Iowa; Abodeely v............................................ 936 lozzi v. United States...................................... 943 Ippolito v. United States................................... 953 ITT Lamp Division v. Minter................................ 933 Jack v. United States....................................... 933 Jack & Jill Stores; Labor Board v........................... 928 Jackson v. Dutton........................................... 947 Jackson; Hoyel v............................................ 946 Jackson v. Warden......................................... 992 Jackson County; Keene v.................................. 995 Jackson Municipal Separate School District v. Singleton..... 944 Jacobs v. United States................................. 924,950 James v. Valtierra.......................................... 137 Jamieson; Tate v.......................................... 974 Java; California Dept, of Human Resources Development v.. 121 Jewett v. United States..................................... 947 J. F. Pritchard & Co.; Berend v............................. 990 Jiminez-Lopez v. United States............................ 1010 John A. Zerbel & Co.; H. L. Fedennan & Co. v................ 902 Johnson; Connor v........................................... 690 Johnson v. Illinois..................................... 976 Joiner; Freeman v.......................................... 1005 Jones; EVCO v............................................... 969 Jones v. Patuxent Institution Director...................... 998 Jones v. United States.................................. 950,985 Jordan v. California........................................ 913 Jordan Co.; Construction & Gen. Laborers’ Union v......... 905 Kansas; Cantrell v.......................................... 924 Karnes v. United States................................... 1008 Kastigar v. United States................................... 971 Kaufman v. Carter................................... 954,960,964 Keefe; Organization for a Better Austin v.................. 415 Kee Ming Hsu v. United States............................... 982 Keene v. Jackson County..................................... 995 Keith v. United States...................................... 985 Keim v. Patterson........................................... 934 Kember v. United States..................................... 923 Kentucky; Anderson v..................................r... 993 Kepco, Inc.; General Radio Co. v......................... 1008 Kerr v. Ohio................................................ 970 Kerr v. State Public Welfare Comm’n........................ 950 Keyes v. School District No. 1.............................. 182 Kidder & Co.; Clement A. Evans & Co. v» 988 XXII TABLE OF CASES REPORTED Page Kief el; Hubbard v....................................... 930 Kimball v. United States................................... 996 King; Board of Education of Chicago v...................... 908 King v. North Carolina..................................... 998 King v. United States...................................... 976 Kirby v. Illinois.......................................... 995 Kirkland v. Protective Com. of TMT Trailer Ferry......... 907 Kitchens v. McCulloch..................................... 931 Klages Coal & Ice Co. v. Hodgson........................... 973 Klein v. New York.......................................... 975 Klein v. United States..................................... 944 Kleppe; Silk v............................................ 1012 Knight v. United States.................................... 976 Koelbl; Doyle v............................................ 908 Kohl v. Perini............................................. 941 Kollar v. Tucson........................................... 967 Kontos v. Creamer.......................................... 975 Koran v. Florida....................................... 948,949 Koran v. United States..................................... 948 Koserkoff v. Chesapeake & Ohio R. Co....................... 934 Kostamo v. Northern City National Bank................ 902,1013 Kroll v. United States..................................... 944 Kropp; Bowen v............................................. 947 Kropp; Colby v............................................. 931 Kuebel; Schilb v........................................... 928 Kuhn v. United States.................................... 951 Labine v. Vincent.......................................... 990 Labor Board; Aero Engineering Corp, v...................... 974 Labor Board; Atlas Engine Works v........................ 909 Labor Board; Bagel Bakers Council of Greater New York v.. 908 Labor Board; Electrical Workers v.......................... 906 Labor Board; Hartzell Propeller Fan Co. v.................. 945 Labor Board; Howard Mfg. Co. v............................. 930 Labor Board; Interboro Contractors v.................... 915 Labor Board; International Metal Specialties v............. 907 Labor Board v. Jack & Jill Stores.......................... 928 Labor Board; Magnesium Casting Co. v....... f........... 925 Labor Board; Mid-South Towing Co. v.................... 974 Labor Board v. Nash-Finch Co............................... 928 Labor Board v. Natural Gas Utility Dist. of Hawkins County. 600 Labor Board; Noll Motors v................................. 906 Labor Board v. Pittsburgh Plate Glass Co.............. 993,1007 Labor Board; Stanley Air Tools v........................... 908 Labor Board; Tex Tan Welhausen Co. v....................... 973 TABLE OF CASES REPORTED XXIII Page Laborers’ Union of North America v. Jordan................. 905 Labor Union. See name of trade. LaFave; Harris v......................................... 904 Laird v. Capobianco...................................... 969 Lamp v. United States Steel Corp........................... 987 Lancaster; Bourbeau v.............................. 954,960,964 Landgham v. Illinois..................................... 911 Lane v. Texas.............................................. 935 Larsen; Negre v.......................................... 934 Lash; Willoughby v....................................... 998 Lashley v. Maryland...................................... 991 Lauchli v. United States................................. 938 Laughlin v. U. S. Court of Appeals.................... 904,1013 Laurent Watch Co.; Cascade Car Wash v.................... 1009 LaVallee; Brown v.......................................... 990 La Vallee v. Burns....................................... 1012 LaVallee v. Miller......................................... 914 Lawrence v. Woods.......................................... 983 Lay v. Florida............................................. 910 Lazarus; Shevin v.......................................... 990 Leach v. United States..................................... 986 LeCraw & Co.; Meltzer v................................ 954 Lee; Chropowicki v......................................... 935 Lee; Commissioner of Education of New York v............... 935 Lee; Nyquist v........................................... 935 Lego v. Twomey............................................. 928 Leighty v. Goodwin......................................... 932 Leitchfield Mfg. Co. v. United States...................... 967 Lennox; Swarb v............................................ 903 Leonard; Morris v.......................................... 974 Leslie Salt Co. y. Alameda Conservation Assn............... 908 Lester; Aetna Life Insurance Co. v...................... 909 Levy v. United States...................................... 925 Lewis v. Smith........................................... 913 Li v. Immigration and Naturalization Service............... 947 Ligue v. Illinois.......................................... 911 Liguori; United States v................................... 948 Lind v. Richardson......................................... 948 Lindsey v. Normet...................................... 941,954 Lipscomb v. United States.................................. 966 Littlepage v. United States........................... 915,1013 Little Rock School District Board of Education v. Clark.... 952 Local. For labor union, see name of trade. Lo Cicero v. New York...................................... 997 XXIV TABLE OF CASES REPORTED Page Locklear v. California................................... 984 Lockridge v. Superior Court of Los Angeles County....... 910 Lodge. For labor union, see name of trade. Lombardozzi v. United States........................... 908 Lopez v. Ohio............................................ 913 Lopez v. United States............................... 961,965 Los Angeles County; Giannatti v.......................... 992 Los Angeles County Superior Court; Lockridge v........... 910 Los Angeles Police Dept. v. Robinson..................... 944 Louisiana; Shirley v..................................... 925 Louisiana Dept, of Highways; Cookmeyer v................ 1005 Lowe v. Young........................................... 1006 Lucas v. New York........................................ 977 Lucia; United States v.................................. 943 Luros; United States v.................................. 363 Lykes Bros. Steamship Co.; Wheeler v.................... 922 Lynd v. Chicago.......................................... 923 Mac. See also Me. Machinists & Aerospace Workers v. United Aircraft Corp.... 908 Mack; Florida State Board of Dentistry v................. 925 MacLeod v. United States............................. 907,990 Maggard v. Wainwright.................................... 946 Magnesium Casting Co. v. Labor Board..................... 925 Makarewicz v. Scafati.................................... 980 Mallory v. Ohio.......................................... 951 Malone v. Pennsylvania................................... 910 Manarite v. United States................................ 972 Manatee County Board of Public Instruction v. Harvest.... 943 Mancusi; Ferguson v................................. 1011 Mancusi; Muhammad v..................................... 911 Mancusi; Scott v........................................ 909 Manzanares v. Warden..................................... 977 Maras v. Gehring....................................... 925 Marchese v. United States........................... 949,1012 Maret v. United States..................................... 989 Marion; Beto v............................................. 906 Marion County Dept, of Public Welfare; Carter v.......... 994 Martin v. Washington..................................... 912 Martinez v. Patterson.................................... 934 Martinez v. United States...............■................ 951 Marxuach v. Puerto Rico Secretary of Justice............. 977 Maryland; Gerstein v......................... j......... 1009 Maryland; Glorioso v....................................... 972 Maryland; lannone v........................................ 973 TABLE OF CASES REPORTED XXV Page Maryland; Lashley v...................................... 991 Maryland; Parker v...................................... 984 Mason v. California...................................... 913 Mather Construction Co. v. Continental Casualty Co..... 907 Maxwell; Greene v........................................ 951 Maxwell v. Indiana....................................... 930 Maxwell; Sosa v......................................... 951 Maxwell v. United States............................... 1010 May; Cox v.............................................. 948 Mayfield v. Ohio......................................... 910 Mayor of Philadelphia v. Pennsylvania ex rel. Jamieson. 974 Me. See also Mac. McAfee v. United States.................................. 905 McBride v. Pennsylvania................................. 946 McCann v. Babbitz....................................... 903 McClanahan v. Morauer & Hartzell, Inc.................. 1008 McCulloch; Kitchens v.................................... 931 McDaniel v. Barresi...................................... 39 McGautha v. California.................................. 183 McGee v. United States................................... 479 McGregor v. Watts....................................... 980 McKenzie v. Patuxent Institution Director............... 923 McKenzie v. Texas....................................... 971 McKinney v. Patuxent Institution Director............... 914 McKinney v. United States............................... 982 McKinney v. U. S. Court of Appeals...................... 994 McKown v. Pierce......................................... 929 McMann; Frizer v..................................... 1010 McMann v. Owen........................................... 906 McMann; Williams v....................................... 914 McMillan v. Federal National Mortgage Assn............... 936 McPherson v. United States............................... 997 McTyre v. Pearson........................................ 947 Meadows; United States v................................. 948 Mehciz v. United States.................................. 974 Meltzer v. C. Buck LeCraw & Co........................... 954 Members of Selective Service Bd. No. 30; Davis v......... 999 Mentor; Granger v........................................ 907 Messick v. Gordon........................................ 907 Metzger; Sparks v........................................ 996 Michigan; Bloss v........................................ 938 Michigan; Green v...................................... 1010 Michigan; Stafford v..................................... 968 XXVI TABLE OF CASES REPORTED Page Michigan Parole Board; Alexander v........................ 980 Middlewest Motor Freight Bureau v. United States........ 999 Mid-South Towing Co. v. Labor Board....................... 974 Millang v. United States.................................. 981 Millard v. Omaha.......................................... 925 Miller; Carter v.......................................... 972 Miller; LaVallee v........................................ 914 Miller v. United States................................... 939 Milwaukee; Illinois v..................................... 940 Milwaukee County District Attorney v. Babbitz............. 903 Mine Workers v. Blue Diamond Coal Co...................... 930 Mine Workers v. District 50, Mine Workers................. 906 Mine Workers v. South-East Coal Co........................ 983 Ming Hsu v. United States................................. 982 Minnesota; Hodgson v...................................... 968 Minnesota; Stark v........................................ 930 Minter; ITT Lamp Division v............................... 933 Mississippi v. Arkansas............................... 926,939 Missouri Pacific R. Co. v. United States.........,........ 944 Mitchell; Gooch v......................................... 995 Mitchell v. Illinois................................... 1010 Mitchell; Pinto v......................................... 961 Mitchell; Schoop v...................................... 988 Mitchell; Sostre v...................................... 911 Mitchell v. United States............................... 946 Mitchell; United States v............................... 904 Mitchum v. Foster....................................... 941 Mobile County Board of School Comm’rs; Davis v.......... 33 Molina v. Craven.......................................... 980 Montgomery County District Court; Wright v................ 990 Mooney v. United States.....................«............ 1005 Moore v. Charlotte-Mecklenburg Board of Education....... 47 Moore v. United States.................................... 906 Morales v. Cady...................................... 931,1013 Morauer & Hartzell, Inc.; McClanahan v................... 1008 More v. United States.................................... 1012 Morelli v. New York....................................... 905 Morris v. Leonard......................................... 974 Morrison v. North Carolina.................................914 Morton; Colson v.......................................... 990 Morton v. Quaker Action Group............................. 926 Mos v. United States...................................... 913 Muhammad v. Mancusi....................................... 911 Mulvey; Samuel Goldwyn Productions v...................... 923 Murphy v. Conte........................................... 910 TABLE OF CASES REPORTED XXVII Page Murphy v. Tennessee....................................... 945 Murray v. New Jersey...................................... 998 Murray v. Page............................................ 934 Nash-Finch Co.; Labor Board v............................. 928 National Bank of Albany Park v. Chicago................... 908 National Labor Relations Board. See Labor Board. National Mediation Board; Chicago, R. I. & P. R. Co. v.... 944 Natural Gas Utility Dist. of Hawkins County; Labor Board v. 600 Nebraska; Becker v........................................ 981 Negre v. Larsen........................................... 934 Negron v. Wallace......................................... 998 Neil; Williams v......................................... 998 Nelson; Chacon v...................................... 941,1013 Nelson v. O’Neil.......................................... 622 Nelson; Szijarto v........................................ 941 Nelson v. United States.................................. 1006 Nelson v. Warden.......................................... 997 Nemitz; Norfolk & Western R. Co. v........................ 994 Nemke v. Illinois....................................... 924 Nevada; Van Sickle v...................................... 925 Newark Superintendent of Schools; Porcelli v.............. 944 New Hampshire; Petkus v................................... 932 New Jersey; Murray v...................................... 998 New Jersey; Norman v..................................... 1009 New Jersey; Young v....................................... 929 New Mexico Comm’r of Revenue; EVCO v...................... 969 New York; Burton v.................................. 991 New York; Colon v................................... 905 New York; Dunn v.................................... 996 New York; Ebbs v....................................i. 1011 New York; Ganci v................................... 924 New York; Gibson v.................................. 951 New York; Klein v................................... 975 New York; Lo Cicero v............................... 997 New York; Lucas v..................................i... 977 New York; Morelli v....................................... 905 New York; Pelicie v....................................... 998 New York; Radich v........................................ 989 New York; Rose v.......................................... 913 New York; Santobello v.................................... 994 New York; Stevenson v..................................... 946 New York; Vasquez v....................................... 968 New York; Vermont v....................................... 940 New York; Williams v...................................... 947 XXVIII TABLE OF CASES REPORTED Page New York City Rent and Rehab. Adm.; Davenport v.......... 934 New York Comm’r of Education v. Lee............................. 935 New York Comm’r of Social Services v. Boddie.................... 991 New York Comm’r of Social Services v. Rosado.................... 991 New York State Dept, of Labor; Torres v......................... 968 New York Supt. of Ins. v. Bankers Life & Cas. Co................ 993 Ney v. Field.......................................... 904,1005 Nichols v. California........................................... 910 Nix v. United States............................................ 999 Noe v. Chicago Great Western R. Co............................. 1009 Noll Motors v. Labor Board...................................... 906 Nolte v. United States.......................................... 914 Nolynn Baptist Assn. v. Oak Grove Church........................ 925 Nor-Am Agricultural Products v. Hardin.......................... 935 Nordeste v. United States....................................... 912 Norfolk & Western R. Co. v. Nemitz.............................. 994 Noriega v. United States........................................ 908 Norman v. New Jersey........................................... 1009 Norman v. United States......................................... 987 Normet; Lindsey v........................................... 941,954 Northampton County; Tilli v..................................... 934 North Carolina; Hicks v........................................ 913 North Carolina; King v......................................... 998 North Carolina; Morrison v.................................... 914 North Carolina; Swaney v.................................... 1006 North Carolina State Board of Education v. Swann......... 43 Northern City National Bank; Kostamo v..................... 902,1013 Nyquist v. Lee.................................................. 935 Oak Grove Separate Baptist Church; Nolynn Baptist Assn, v. 925 Officer in Command, Houston Induction Center; Steiner v.. 1009 Ohio; Brady v............................................. 989 Ohio; Crampton v.......................................... 183 Ohio; Kerr v.............................................. 970 Ohio; Lopez v............................................. 913 Ohio; Mallory v........................................... 951 Ohio; Mayfield v.......................................... 910 Ohio; Westfall v........................................ 931 Oldenkott; American Electric, Inc. v...................... 975 Oliva v. United States.......................................... 986 Oliver v. Connecticut........................................... 946 Omaha; Millard v................................................ 925 119 Cartons Obscene Magazines; United States v.................. 969 O’Neil; Nelson v................................................ 622 Oregon; Tuck v.................................................. 982 TABLE OF CASES REPORTED XXIX Page Organization for a Better Austin v. Keefe................... 415 Orito v. United States...................................... 987 Owen; McMann v.............................................. 906 Pace v. Haymarket Co-operative Bank......................... 945 Page; Murray v.............................................. 934 Page; Ward v................................................ 904 Paige v. United States.................................... 977 Pakarinen Heir; Hietala v................................. 903 Palmer v. Euclid.......................................... 544 Palmer v. Illinois........................................ 931 Papa v. Florida............................................. 996 Pape; Time, Inc. v........................................ 970 Pappas, In re............................................... 942 Pardo v. Illinois......................................... 992 Parisi v. Davidson.....;.................................... 942 Parker v. Maryland.......................................... 984 Parker v. United States..................................... 930 Parsons; Bale v........................................... 990 Pasadena City Board of Education; Alexander v............... 943 Passel v. Fort Worth Independent School District............ 968 Paszek v. United States................................... 911 Pate; Dade County School Board v............................ 953 Pate; Tanner v.............................................. 913 Patterson v. Humble Oil & Refining Co....................... 924 Patterson; Keim v........................................... 934 Patterson; Martinez v....................................... 934 Patuxent Institution Director; Jones v.................... 998 Patuxent Institution Director; McKenzie v................... 923 Patuxent Institution Director; McKinney v................... 914 Peacock v. Retail Credit Co................................. 925 Pearson; McTyre v........................................... 947 Pelicie v. New York......................................... 998 Pennington; Cox v........................................... 948 Pennsylvania v. Davis....................................... 999 Pennsylvania; Enty v........................................ 913 Pennsylvania; Gaito v....................................... 946 Pennsylvania; Gray v........................................ 967 Pennsylvania; Malone v...................................... 910 Pennsylvania; McBride v..................................... 946 Pennsylvania; Phillips v................................... 1011 Pennsylvania Attorney General; Kontos v..................... 975 Pennsylvania ex ret. Jamieson; Tate v..................... 974 Peoria County; Benedict v................................... 929 Perales; Richardson v....................................... 389 XXX TABLE OF CASES REPORTED Page Perez v. Campbell............................................ 637 Perez; Hingle v.............................................. 929 Perez v. United States....................................... 146 Perini; Alexander ........................................... 914 Perini; Birns v............................................ • • 950 Perini; Braxton ............................................. 931 Perini; Fitzsimmons v...................................... 910 Perini; Kohl .............................................. 941 Perini; Sanders ............................................. 977 Peterson; Brown v............................................ 948 Peterson v. California....................................... 948 Petkus v. New Hampshire...................................... 932 Pfizer & Co.; United States v............................ 942 Philadelphia Mayor v. Pennsylvania ex rel. Jamieson........ 974 Phillips v. Pennsylvania.................................... 1011 Phillips v. United States.................................... 931 Picard v. Connor......................................... 942,993 Pierce; McKown v............................................. 929 Pieters v. United States..................................... 972 Pinellas County Board of Public Instruction v. Bradley..... 943 Pino v. United States........................................ 989 Pinto v. Mitchell............................................ 961 Pipefitters v. United States................................. 994 Pittsburgh Plate Glass Co.; Allied Chemical Workers v.. 993,1007 Pittsburgh Plate Glass Co.; Labor Board v............... 993,1007 Platt v. United States........................................ 913 Polese v. United States...................................... 966 Polson v. Idaho.............................................. 930 Pope; Davis v............................................... 1008 Porcelli v. Titus............................................ 944 Porter v. Ashmore............................................ 981 Portsmouth School District; Drown v..................... 972 Posner v. United States...................................... 982 Potter v. United States...................................... 930 Powers v. United States..................................... 1011 Price; Humble Oil & Refining Co. v....................... 934 Price v. Illinois............................................ 902 Prionas v. United States..................................... 977 Pritchard & Co.; Berend v.................................... 990 Professional Air Traffic Controllers v. United States...... 915 Protective Com. of TMT Trailer Ferry; Kirkland v........... 907 Provenzano v. Follette....................................... 949 Providence Redevelopment Agency; Corrado v................... 947 Pruett v. Texas.................................... 902,939,1007 TABLE OF CASES REPORTED XXXI Page Puerto Rico Secretary of Justice; Marxuach v.............. 977 Quaker Action Group; Morton v........................... 926 Radich v. New York........................................ 989 Ragan v. Richardson....................................... 986 Raguse v. California.................................... 976 Ramos v. California..................................... 977 Randall; Hodgson v...................................... 967 Randazzo v. Follette.................................... 984 Raus; Heine v........................................... 914 Ray v. Brierley......................................... 1008 Raymond v. United States................................ 907 Redd v. United States................................... 977 Reeb v. United States................................... 912 Reese v. Smith.......................................... 904 Regan; Ruderer v........................................ 1008 Reidel; United States v................................. 351 Reising; Coakley v...................................... 906 Resor; Turpin v......................................... 970 Retail Credit Co.; Peacock v............................ 925 Reyes v. California..................................... 1010 Reynolds v. Arizona..................................... 910 Reynolds v. Follette.................................... 981 Reynolds Metals Co.; Dewey v.......................... 689,904 Richardson; Ginsburg v.................................... 976 Richardson; Lind v........................................ 948 Richardson v. Perales..................................... 389 Richardson; Ragan v....................................... 986 Riley v. United States................................... 943 Ritchie; Triangle Improvement Council v................... 497 Rivera v. United States................................... 947 Robbins v. United States.................................. 985 Roberts v. State Real Estate Comm’n....................... 905 Robinson; Los Angeles Police Dept, v..................... 944 Robinson v. United States................................. 910 Robley v. United States................................... 972 Rodgers v. United States.................................. 947 Roe v. Wade............................................... 941 Rogers; Silverman v....................................... 983 Romontio v. United States................................. 903 Rosado; Wyman v........................................... 991 Rose v. Commissioner...................................... 907 Rose v. New York.......................................... 913 Rosenberg v. Yee Chien Woo................................. 49 Ross; Eckels v............................................ 953 XXXII TABLE OF CASES REPORTED Page Roviaro v. United States.................................... 950 Royal Crown Bottling Co. v. Hodgson......................... 973 Ruderer v. Regan......................................... 1008 Rundle; Hargrove v....................................... 912 Ruppe; Haldane v............................i......... 906 Rush v. Illinois............................................ 911 Russell; Black v........................................... 947 Ryan; United States v....................................... 530 Sammons v. United States.................................... 945 Samuel Goldwyn Productions v. Mulvey........................ 923 Sanchez v. United States.................................... 945 Sanders v. Perini........................................... 977 Sandoval v. California...................................... 909 San Jose Water Works; Cothran v............................. 975 Santobello v. New York...................................... 994 Sarkis v. United States..................................... 946 Scafati; Makarewicz v...................................;.. 980 Scan Imports; United States v............................... 969 Schilb v. Kuebel........................................... 928 Schlanger v. Seamans........................................ 990 Schlette v. Craven.......................................... 998 Schmutz Mfg. Co. v. Atkins.................................. 932 Schneider; Granite Falls State Bank v..................... 1006 School District No. 1; Keyes v.............................. 182 School District 151 of Cook County v. United States........ 943 Schoop v. Mitchell.......................................... 988 Schwartz; Frederick v................................... 937,954 Scientific Living, Inc.; Hohensee v........................ 1012 Scotland Urban Enterprises; Beverly v............... 936,954,960 Scott v. Cardwell.......................................... 911 Scott v. Mancusi........................................... 909 Scott v. Texas............................................ 1012 Scott v. United States................................ 937,1011 Seamans; Schlanger v........................................ 990 S&E Contractors v. United States............................ 971 Secretary of Agriculture; Nor-Am Agricultural Products v.. 935 Secretary of Air Force; Schlanger v......................... 990 Secretary of Army; Turpin v................................. 970 Secretary of Defense v. Capobianco.......................... 969 Secretary of Health, Education, and Welfare; Ginsburg v.... 976 Secretary of Health, Education, and Welfare; Lind v....... 948 Secretary of Health, Education, and Welfare v. Perales.... 389 Secretary of Health, Education, and Welfare; Ragan v...... 986 Secretary of Interior; Colson v............................. 990 TABLE OF CASES REPORTED XXXIII Page Secretary of Interior v. Quaker Action Group............. 926 Secretary of Justice of Puerto Rico; Marxuach v.......... 977 Secretary of Labor; Fiduciary Counsel, Inc. v............ 973 Secretary of Labor; Klages Coal & Ice Co. v............. 973 Secretary of Labor; Royal Crown Bottling Co. v.......... 973 Secretary of Social and Health Serv. of Wash.; Tarver v.... 1000 Secretary of State; Silverman v.......................... 983 Selective Service Local Board No. Ill; Edwards v.......... 952 Selective Service Local Board No. 30; Davis v............ 999 Seyfried v. United States................................. 912 Shaffer v. Valtierra...................................... 137 Shakman; Democratic Organization of Cook County v....... 909 Shaw v. United States..................................... 909 Shelton v. United States.................................. 933 Sherwood v. United States................................. 909 Shevin v. Lazarus......................................... 990 Shirley v. Louisiana...................................... 925 Shopa v. United States.................................... 996 Silk v. Kleppe.......................................... 1012 Silverman v. Rogers....................................... 983 Silverman v. United States................................ 953 Simpson v. Wainwright................................... 1011 Sinatra v. Goodyear Tire & Rubber Co...................... 906 Singal v. Blackwell...................................... 924 Singleton; Jackson Municipal Separate School District v.... 944 Singleton v. United States............................... 952 Skinner v. United States................................. 997 Slaughter; Spillers v.................................... 971 Sloatman v. Gibbons.................................. 939,954 Smith; Blanton v......................................... 910 Smith v. Brantley........................................ 975 Smith v. Bucci Detective Agency.......................... 977 Smith; Ector v........................................... 997 Smith v. Illinois.............................. 945,1009,1011 Smith; Lewis v......................................... 913 Smith; Reese v........................................... 904 Smith; Tarver v.........................i1000 Smith; Trull v........................................... 904 Smith v. United States........................... 915,975,976 Smith v. Wingo......................................... 971 Sosa v. Maxwell.......................................... 951 Sostre v. Mitchell....................................... 911 South-East Coal Co.; Consolidation Coal Co. v............ 983 South-East Coal Co.; Mine Workers v...................... 983 419-882 0 - 72 -3 XXXIV TABLE OF CASES REPORTED Page Southern Ute Tribe or Band of Indians; United States v.... 159 Southland Inc. v. Cox Enterprises........................... 990 Soyka v. United States................................... 984 Sparks v. Alabama......................................... 909 Sparks v. Metzger.......................................... 996 Spencer v. Georgia.......................................... 991 Spieler v. United States.................................... 950 Spigner v. United States.................................... 925 Spillers v. Slaughter....................................... 971 Stafford v. Michigan........................................ 968 Stallings v. Indiana........................................ 997 Stanley Air Tools v. Labor Board............................ 908 Stanley Works v. Labor Board................................ 908 Stanton; Carter v........................................... 994 Stark v. Minnesota.......................................... 930 State. See also name of State. State National Bank of Alabama v. Ellis..................... 973 State Public Welfare Comm’n; Kerr v..................... 950 State Real Estate Comm’n; Roberts v..................... 905 State Road Comm’n of W. Va.; Triangle Imp. Council v.... 497 Stead v. United States...................................... 934 Steelworkers v. Auburndale Freezer Corp.................... 1013 Steiner v. Armed Forces Induction Center at Houston........ 1009 Stein Steel & Supply Co.; Franco v......................... 973 Stevenson v. New York....................................... 946 Stone v. United States...................................... 977 Stovall v. Illinois......................................... 997 Streule v. Gulf Finance Corp................................ 975 Stribling v. United States.................................. 973 Sullivan v. United States............................... 912,949 Superintendent of Ins. of N. Y. v. Bankers Life & Cas. Co.. 993 Superintendent of penal or correctional institution. See name of superintendent. Superintendent of Schools v. Barresi......................... 39 Superintendent of Schools of Newark; Porcelli v............. 944 Superior Court of California; Eldon Industries v............ 995 Superior Court of Los Angeles County; Lockridge v.......... 910 Sutton v. United States..................................... 988 Swaney v. North Carolina................................... 1006 Swank; Alexander v......................................... 1007 Swank; Townsend v.......................................... 1007 Swann v. Charlotte-Mecklenburg Board of Education.......... 1 Swann; Charlotte-Mecklenburg Board of Education v.......... 1 Swann; North Carolina State Board of Education v........... 43 TABLE OF CASES REPORTED XXXV Page Swanney-McDonald, Inc. v. Gray............................. 995 Swarb v. Lennox............................................ 903 Swartz v. Illinois........................................ 911 Swierenga v. United States................................. 972 Szijarto v. Nelson......................................... 941 Taft v. United States...................................... 996 Tanner v. Pate............................................. 913 Tanner v. United States.................................... 912 Tarver v. Smith........................................... 1000 Tate v. Pennsylvania ex rel. Jamieson...................... 974 Tate v. United States...................................... 930 Taxation Division Director; Clairol, Inc. v................ 902 Taylor; Emmons v........................................... 990 Taylor v. United States.................................... 915 Teller v. United States.................................... 949 Tennessee; Allen v......................................... 975 Tennessee; Booker v........................................ 996 Tennessee; Britt v......................................... 946 Tennessee; Murphy v........................................ 945 Tennessee; Wauford v....................................... 946 Teran v. California........................................ 981 Texas; Almendarez v. 974 Texas; Broom v............................................. 933 Texas; Harris v............................................ 940 Texas; Hathome v........................................... 914 Texas; Lane v.............................................. 935 Texas; McKenzie v.......................................... 971 Texas; Pruett v................................... 902,939,1007 Texas; Scott v............................................ 1012 Texas Instruments, Inc.; Farkas v.......................... 990 Tex Tan Welhausen Co. v. Labor Board....................... 973 Theriault v. Blackwell..................................... 953 Thirty-seven (37) Photographs; United States v............. 363 Thomas v. Illinois......................................... 996 Thomas v. United States.................................... 984 Tiktin v. United States.................................... 950 Tilli v. Northampton County................................ 934 Time, Inc. v. Pape......................................... 970 Timmons v. United States................................... 914 Tippett v. Haynes.......................................... 998 Titus; Porcelli v.......................................... 944 TMT Trailer Ferry Stockholders; Kirkland v................. 907 Toliver v. United States.................................. 1013 Topco Associates, Inc.; United States v.................... 905 XXXVI TABLE OF CASES REPORTED Page Torres v. New York State Dept, of Labor...................... 968 Townsend v. Swank.......................................... 1007 Tracy v. Chandler............................................. 997 Tracy v. United States........................................ 966 Transportation Union; Chicago & N. W. R. Co. v............. 570 Transportation Union v. Illinois Central R. Co............... 915 Triangle Improvement Council v. Ritchie...................... 497 Trucking Unlimited; California Motor Transport Co. v....... 1008 Trull v. Smith............................................... 904 Tuck v. Oregon............................................... 982 Tucker; United States v...................................... 942 Tucson; Kollar v............................................. 967 Turner v. United States..................................... 982 Turpin v. Resor.............................................. 970 Twomey; Bournett v.................................... 913 Twomey; Lego v............................................... 928 2,606.84 Acres of Land in Tarrant County v. United States.. 916 Unborn Child of Doe v. Doe................................... 936 Unicom Enterprises; United States v..................... 970 Union. For labor union, see name of trade. United. For labor union, see name of trade. United Aircraft Corp.; Canel Lodge No. 700 v.............. 908 United Aircraft Corp.;Machinists & Aerospace Workers v... 908 United States; Adler v....................................... 944 United States; Affiliated Ute Citizens of Utah v............. 905 United States; Air Traffic Controllers Organization v...... 915 United States; Alonzo v..................................... 1009 United States; Amity Fabrics, Inc. v......................... 974 United States; Andrews v..................................... 995 United States; Ardle v....................................... 947 United States v. Armour & Co................................. 673 United States; Atlantic Coast Line R. Co. v.................. 975 United States; Austin v..................................... 1012 United States; Balistrieri v................................. 953 United States; Banks v....................................... 984 United States; Barney v...................................... 989 United States v. Bass........................................ 927 United States; Baum v....................................... 907 United States; Bellamy v....................................” 929 United States; Bender v.................................... 982 United States; Benoit v.................................... 990 United States; Bigsby v.................................... 986 United States; Black v.................................... 975 United States; Blassick v................................... 985 TABLE OF CASES REPORTED XXXVII Page United States; Blassingame v................................. 945 United States; Bolettieri v.................................. 945 United States; Borman v.................................... 913 United States; Bostic v...................................... 547 United States; Brocato v.................................... 1010 United States; Brossard v................................... 981 United States; Brown v....................................... 907 United States; Bryant v................................... 932,1013 United States; Cahn v........................................ 944 United States; Cain v........................................ 905 United States; Calarco v..................................... 934 United States v. Caldwell..................................... 942 United States; Campbell v...................................... 975 United States; Carpenter v.................................... 1008 United States; Carrizoza-Islas v............................. 931 United States; Carter v........................................ 912 United States; Castro v........................................ 977 United States; Cataldo v....................................... 934 United States; Certain Space in Chimes Building v............ 908 United States; Chambers v................................. 944 United States; Chapman v.................................. 912 United States v. Chas. Pfizer & Co............................. 942 United States v. Cherry........................................ 971 United States; Chimes Bldg, v.................................. 908 United States; Clermont v...................................... 997 United States; Cobb v.......................................... 937 United States; Cochran v....................................... 939 United States; Consolidated Carriers Corp, v.............. 901,1013 United States; Crisp v......................................... 947 United States; Daddano v.................................. 905 United States; Daniels v....................................... 951 United States; Daut v.......................................... 945 United States; Davenport v..................................... 973 United States; David v......................................... 983 United States; Dean v.......................................... 937 United States; Decker v........................................ 937 United States; DeLegge v..................................... 905 United States; DeLutro v..................................... 983 United States; Deming v...................................... 949 United States; DeSapio v................................. 928,999 United States; DeStafano v................................. 972 United States; DeVore v...................................... 950 United States; Dillon v...................................... 982 United States; DiLorenzo v............................... 950 XXXVIII TABLE OF CASES REPORTED Page United States; DiPiazza v........................................ 949 United States v. District Court in and for County of Eagle.. 940 United States v. District Court in and for Water Div. No. 5.. 940 United States; Donohue v.......................................... 949 United States; Donovan v......................................... 1005 United States; Drew v................................................ 977 United States; Drotar v.............................................. 939 United States; Eason v............................................... 984 United States; Eaton v............................................... 931 United States; Edmondson v....................................... 931 United States; Edwards v........................................ 1012 United States; Ehlert v.......................................... 99 United States; Eisenhardt v.............................. 928,1005 United States; Elbel v..........,.................................... 929 United States; Elvin v.............................................. 995 United States; Escobedo v......................................... 951 United States; Evans v................................. 987,1010 United States; Farr v.............................................. 947 United States; Fauls v............................................ 1011 United States; Ferrone v.......................................... 1008 United States; Fincke v............................................ 995 United States; Fiore v............................................. 973 United States; Flesch v.............................................. 982 United States; Flintkote Co. v....................................... 944 United States; Franco v.............................................. 915 United States; Frank v...................... 1........... 974 United States; Franke v.............................................. 943 United States; Franzese v............................................ 995 United States; Fukumoto v............................................ 977 United States; Gaines v............................................. 1006 United States; Gallagher v.......................................... 1009 United States; Garcia v.............................................. 925 United States; Gill v............................................... 1011 United States; Gillespie v........................................... 938 United States; Glucksman v........................................... 929 United States; Gonzalez-Parra v......................... 1010 United States; Graham v.............................................. 938 United States v. Greater Buffalo Press............................... 549 United States; Griffin v............................................ 970 United States; Grijalva v......................................... 1012 United States; Grimes v............................................ 989 United States; Group Life & Health Insurance Co. v.......... 944 United States; Guitian v........................................... 985 United States; Gwynn v............................................. 10H TABLE OF CASES REPORTED XXXIX Page United States; Haggett v................................... 946 United States; Hale v...................................... 976 United States; Hamilton v.................................. 985 United States; Hanon v..................................... 952 United States; Harflinger v............................... 973 United States; Harris v.................................... 981,986 United States; Haslam v.................................... 912,976 United States; Hepler v.................................... 911 United States; Hernandez v............................ 976 United States; Hickman v............................ 965,966 United States; Hoffa v..................................... 988 United States; Holman v.................................... 913 United States v. Holmes.................................... 969 United States; Hoskins v................................... 943 United States; Hudson v.................................... 965 United States; lachino v..................................... 976 United States v. International Minerals & Chemical Corp.... 558 United States; lozzi v....................................... 943 United States; Ippolito v.................................... 953 United States; Jack v........................................ 933 United States; Jacobs v.................................. 924,950 United States; Jewett v........................................ 947 United States; Jiminez-Lopez v............................. 1010 United States; Jones v................................... 950,985 United States; Karnes v..................................... 1008 United States; Kastigar v.................................... 971 United States; Kee Ming Hsu v................................ 982 United States; Keith v\...................................... 985 United States; Kember v...................................... 923 United States; Kimball v..................................... 996 United States; King v........................................ 976 United States; Klein v....................................... 944 United States; Knight v...................................... 976 United States; Koran v....................................... 948 United States; Kroll v....................................... 944 United States; Kuhn v........................................ 951 United States; Lauchli v..................................... 938 United States; Leach v....................................... 986 United States; Leitchfield Mfg. Co. v........................ 967 United States; Levy v.................................. 925 United States v. Liguori....................................... 948 United States; Lipscomb v.................................... 966 United States; Littlepage v............................. 915,1013 United States; Lombardozzi v............................... 908 xl TABLE OF CASES REPORTED Page United States; Lopez v.................................... 961,965 United States v. Lucia....................................... 943 United States v. Luros........................................ 363 United States; MacLeod v................... i......... 907,990 United States; Manarite v..................................... 972 United States; Marchese v............................ 949,1012 United States; Maret v........................................ 989 United States; Martinez v..................................... 951 United States; Maxwell v.................................... 1010 United States; McAfee v..................................... 905 United States; McGee v...................................... 479 United States; McKinney v................................... 982 United States; McPherson v................................ 997 United States v. Meadows...................................... 948 United States; Mehciz v............................... 974 United States; Middlewest Motor Freight Bureau v............ 999 United States; Millang v.............................. 981 United States; Miller v............................... 939 United States; Missouri Pacific R. Co. v...................... 944 United States; Mitchell v............................ 946 United States v. Mitchell..................................... 904 United States; Mooney v............................ 1005 United States; Moore v................................. 906 United States; More v............................... 1012 United States; Mos v................................ 913 United States; Nelson v.................................... 1006 United States; Nix v........................................ 999 United States; Nolte v...................................... 914 United States; Nordeste v................................... 912 United States; Noriega v.................................... 908 United States; Norman v..................................... 987 United States; Oliva v....................................... 986 United States v. 119 Cartons Obscene Magazines................ 969 United States; Orito v........................................ 987 United States; Paige v........................................ 977 United States; Parker v.................................... 930 United States; Paszek v.................................... 911 United States; Perez v........................................ 146 United States; Phillips v.................................... 931 United States; Pieters v..................................... 972 United States; Pino v........................................ 989 United States; Pipefitters v................................ 994 United States; Platt v....................................... 913 United States; Polese v...................................... 966 United States; Posner v...................................... 982 TABLE OF CASES REPORTED XLI Page United States; Potter v........................................ 930 United States; Powers v....................................... 1011 United States; Prionas v....................................... 977 United States; Professional Air Traffic Controllers v........ 915 United States; Raymond v....................................... 907 United States; Redd v.......................................... 977 United States; Reeb v.......................................... 912 United States v. Reidel........................................ 351 United States; Riley v........................................ 943 United States; Rivera v........................................ 947 United States; Robbins v....................................... 985 United States; Robinson v...................................... 910 United States; Robley v........................................ 972 United States; Rodgers v....................................... 947 United States; Romontio v...................................... 903 United States; Roviaro v....................................... 950 United States v. Ryan.......................................... 530 United States; Sammons v....................................... 945 United States; Sanchez v....................................... 945 United States; Sarkis v........................................ 946 United States v. Scan Imports................................. 969 United States; School District 151 of Cook County v.......... 943 United States; Scott v.................................... 937,1011 United States; S&E Contractors v........................ 971 United States; Seyfried v...................................... 912 United States; Shaw v.......................................... 909 United States; Shelton v....................................... 933 United States; Sherwood v...................................... 909 United States; Shopa v......................................... 996 United States; Silverman v..................................... 953 United States; Singleton v..................................... 952 United States; Skinner v997 United States; Smith v................................. 915,975,976 United States v. Southern Ute Tribe or Band of Indians....... 159 United States; Soyka v............................... t.. 984 United States; Spieler v....................................... 950 United States; Spigner v....................................... 925 United States; Stead v......................................... 934 United States; Stone v......................................... 977 United States; Stribling v.................................... 973 United States; Sullivan v.................................. 912,949 United States; Sutton v........................................ 988 United States; Swierenga v..................................... 972 United States; Taft v.......................................... 996 XLII TABLE OF CASES REPORTED Page United States; Tanner v.......................................... 912 United States; Tate v............................................ 930 United States; Taylor v.......................................... 915 United States; Teller v.......................................... 949 United States v. Thirty-seven (37) Photographs................... 363 United States; Thomas v........................................ 984 United States; Tiktin v........................................ 950 United States; Timmons v.................................... 914 United States; Toliver v...................................... 1013 United States v. Topco Associates, Inc........................... 905 United States; Tracy v........................................... 966 United States v. Tucker.......................................... 942 United States; Turner v.......................................... 982 United States; 2,606.84 Acres of Land in Tarrant County v.. 916 United States v. Unicorn Enterprises............................. 970 United States v. Various Articles of “Obscene” Merchandise.. 971 United States; Verdugo v.................................. 961 United States; Vermeulen v................................. 911 United States; Virga v..................................... 930 United States; Viviano v.................................. 983 United States v. Vuitch...................................... 62 United States; Wahlquist v............................ 1010 United States; Walker v................................ 985 United States; Wallace v................................. 943 United States; Walters v............................... 910 United States; Washington v.................................. 978 United States; Weber v.......................... 932,939,1008 United States; Webster v................................... 986 United States; Weiser v................................... 949 United States; Wenzel v................................... 981 United States v. White................................... 990 United States; Whitehead v974 United States; Wild v.................................. 986 United States; Williams v..................... 912,931,985,987 United States; Wilson v............................. 912,929,930 United States; Wright v................................ 949 United States; Yoder v................................. 966 United States; Young v.......................................966 United States; Zenchak v............................... 912 United States v. Zizzo...................................... 938 U. S. Circuit Judges; Tracy v............................... 997 U. S. Court of Appeals; Laughlin v...................... 904,1013 U. S. Court of Appeals; McKinney v.......................... 994 U. S. Court of Appeals Chief Judge; Brooks v................ 971 TABLE OF CASES REPORTED XLIII Page U. S. District Judge; Dixon v.................... 928 U. S. District Judge; Escalante v.................. 981 U. S. District Judge; Leighty v.................... 932 U. S. District Judge; Ruderer v................. 1008 U. S. ex rel. See name of real party in interest. United States Steel Corp.; Cook v......................... 987 United States Steel Corp.; Fuhrman v...................... 987 United States Steel Corp.; Lamp v......................... 987 University of Illinois Foundation; Blonder-Tongue Labs. v.. 313 University of Illinois Foundation v. Winegard Co.......... 990 Ute Citizens of Utah v. United States..................... 905 Valtierra; James v........................................ 137 Valtierra; Shaffer v:..................................... 137 VanCantfort; Allen v...................................... 1008 Van Sickle v. Nevada.......................,.............. 925 Various Articles of “Obscene” Merchandise; United States v. 971 Vasquez v. New York....................................... 968 Verdugo v. California..................................... 985 Verdugo v. United States.................................. 961 Vermeulen v. United States................................ 911 Vermont v. New York....................................... 940 Vernitron Corp. v. Benjamin............................... 987 Vincent; Labine v......................................... 990 Virga v. United States.................................... 930 Virgin Islands; Corcino v................................. 976 Viviano v. United States.................................. 983 Vuitch; United States v................................... 62 Wade v. Haynes............................................ 997 Wade; Roe v............................................... 941 Waggonner; Fallon v....................................... 941 Wahlquist v. United States............................... 1010 Wainwright; Maggard v..................................... 946 Wainwright; Simpson v.................................... 1011 Walker v. United States................................... 985 Wallace; Negron v......................................... 998 Wallace v. United States.................................. 943 Walters v. United States.................................. 910 Ward v. Page.............................................. 904 Warden. See also name of warden. Warden; Booth v........................................... 909 Warden; Jackson v............................ ....... 992 Warden; Manzanares v...................................... 977 Warden; Nelson v.......................................... 997 Washington v. General Motors Corp........................ 940 XLIV TABLE OF CASES REPORTED Page Washington; Martin v..................................... 912 Washington v. United States.............................. 978 Washington Social and Health Services; Tarver v......... 1000 Water Division No. 5 District Court; United States v.... 940 Watts; McGregor v........................................ 980 Wauford v. Tennessee..................................... 946 Weber v. United States.......................... 932,939,1008 Webster v. United States................................. 986 Weiser v. United States.................................. 949 Welhausen Co. v. Labor Board............................. 973 Wenzel v. United States.................................. 981 Westfall v. Ohio......................................... 931 West Virginia Road Comm’n; Triangle Imp. Council v...... 497 WHDH, Inc. v. Federal Com. Comm’n....................... 1007 Wheeler v. Lykes Bros. Steamship Co...................... 922 White; United States v................................... 990 Whitehead; Hortencio v................................... 966 Whitehead v. United States............................... 974 Wild v. United States.................................... 986 Williams v. McMann...................................... 914 Williams v. Neil........................................ 998 Williams v. New York.................................... 947 Williams v. United States................... 912,931,985,987 Williamson v. Gilmer..................................... 993 Willoughby v. Lash....................................... 998 Wilson v. Follette....................................... 997 Wilson v. United States.......................... 912,929,930 Winegar v. Buchkoe....................................... 975 Winegard Co.; University of Illinois Foundation v........ 990 Wingo; Smith v........................................... 971 Wisconsin; Bergenthal v.................................. 972 Wisconsin; Eisenberg v................................... 987 Wisconsin v. Yoder....................................... 994 Wolke; Gaylord v......................................... 976 Woo; Rosenberg v.......................................... 49 Wood v. Gaffney......................................... 1010 Woods; Lawrence v........................................ 983 Wright v. District Court of Montgomery County............ 990 Wright v. United States.................................. 949 Wyman v. Boddie.......................................... 991 Wyman v. Rosado.......................................... 991 Yee Chien Woo; Rosenberg v................................ 49 Yoder v. United States................................... 966 Yoder; Wisconsin v...................................... 994 TABLE OF CASES REPORTED XLV Page Young; Lowe v............................................. 1006 Young v. New Jersey........................................ 929 Young v. United States..................................... 966 Youngblood; Board of Public Instruction of Bay County v.. 943 Zelker; Gould v............................................ 930 Zelker; Halpern v.......................................... 932 Zenchak v. United States................................... 912 Zerbel; H. L. Federman & Co. v......................... 902 Zerbel & Co.; H. L. Federman & Co. v....................... 902 Zirpoli; Escalante v....................................... 981 Zitzer v. California....................................... 984 Zizzo; United States v..................................... 938 Page TABLE OF CASES CITED Page Accardi v. Shaughnessy, 347 U. S. 260 278 Adkins v. Children’s Hospital, 261 U. S. 525 255 Adriaanse v. United States, 184 F. 2d 968 326 Aghnides v. Holden, 226 F. 2d 949 318 Agrashell, Inc. v. Bernard Sirotta Co., 281 F. Supp. 704 318 Alberts v. California, 354 U. S. 476 354 Albertson v. SACB, 382 U. S. 70 429-431,460,469,470 Aldridge v. Celebrezze, 339 F. 2d 190 406 Alexander v. Holmes County Bd. of Ed., 396 U. S. 19 14,31 Alexander v. United States, 201 U. S. 117 533 Allegheny County v. Frank Mashuda Co., 360 U. S. 185 261 American Newspaper Publishers v. NLRB, 193 F. 2d 782 578 American Power & Light v. SEC, 329 U. S. 90 279 American Trucking Assns. v. United States, 344 U. S. 298 277 Anderson, In re, 69 Cal. 2d 613 191,299,304 Andres v. United States, 333 U. S. 740 199,201 A. & P. Tea Co. v. Supermarket Corp., 340 U. S. 147 343 Aptheker v. Secretary of State, 378 U. S. 500 379 A Quantity of Books v. Kansas, 378 U. S. 205 309 Arizona v. California, 373 U. S. 546 272 Armstrong v. Manzo, 380 U. S. 545 542 Ashbrook v. State, 49 Ohio App. 298 219, 228, 234, 288, 292 Ashwander v. TV A, 297 U. S. 288 369 Association. For labor union, see name of trade. Atkinson v. White, 60 Me. 396 322 Atlanta Motel v. United States, 379 U. S. 241 153 Bachellar v. Maryland, 397 U. S. 564 259 Baggett v. Bullitt, 377 U. S. 360 257 Bagley v. State, 247 Ark. 113 196 Bahler v. Fletcher, 474 P. 2d 329 326 Baker Mfg. Co. v. Whitewater Mfg. Co., 430 F. 2d 1008 335 Bantam Books v. Sullivan, 372 U. S. 58 419 Barber v. Page, 390 U. S. 719 627 Barrett Line v. United States, 326 U. S. 179 279 Beckman v. Mall, 317 U. S. 597 151 Beckman Instruments v. Technical Dev. Corp., 433 F. 2d 55 345 Bender v. Wickard, 319 U. S. 731 151 Ber v. Celebrezze, 332 F. 2d 293 405 Berner v. British Commonwealth Airlines, 346 F. 2d 532 333 Bernhard v. Bank of America, 19 Cal. 2d 807 323-329 Bigelow v. Old Dominion Copper, 225 U. S. Ill 321 XLVII XLVIII TABLE OF CASES CITED Page Blount v. Rizzi, 400 U. S. 410 359, 367-369, 375, 383, 386 Board of Ed. v. Barnette, 319 U. S. 624 113,114 Boddie v. Connecticut, 401 U. S. 371 256, 476, 937, 939, 954-961 Bolling v. Sharpe, 347 U. S. 497 253 Bouie v. Columbia, 378 U. S. 347 253,254,546 Bowles v. Seminole Rock & Sand, 325 U. S. 410 105 Boyce Motor Lines v. United States, 342 U. S. 337 559-562,566 Boyd v. United States, 116 U. S. 616 449,450 Boykin v. Alabama, 395 U. S. 238 255,256,269 Boys Markets v. Retail Clerks, 398 U. S. 235 327,584 Brady v. United States, 397 U. S. 742 212 Brasher v. Celebrezze, 340 F. 2d 413 406 Breard v. Alexandria, 341 U. S. 622 377 Breaux v. Finch, 421 F. 2d 687 406 Brewer v. School Bd., 397 F. 2d 37 21 Bridges v. Gardner, 368 F. 2d 86 406 Bristol v. Moser, 55 Ariz. 185 669 Brobston v. Darby Borough, 290 Pa. 331 322 Brookhart v. Janis, 384 U. S. 1 627 Brotherhood. For labor union, see name of trade. Brown v. Bd. of Ed., 347 U. S. 483 5,6,12,15- 18, 21, 22, 27, 31, 46 Brown v. Bd. of Ed., 349 U. S. 294 12,13,15,21,27 Brown v. Mississippi, 297 U. S. 278 243 Brown v. United States, 356 U. S. 148 215 Page Brown v. Walker, 161 U. S. 591 215,439,470 Browning v. Hooper, 269 U. S. 396 254,256,272 Brown Shoe v. United States, 370 U. S. 294 553 Brulotte v. Thys Co., 379 U. S. 29 344 Bruszewski v. United States, 181 F. 2d 419 325 Bruton v. United States, 391 U. S. 123 625- 628, 630, 631, 633-635 Burnette v. Davis, 382 U. S. 42 694 Burns v. Richardson, 384 U. S. 73 694 Butler v. Michigan, 352 U. S. 380 382 Buttfield v. Stranahan, 192 U. S. 470 276 Byers v. Justice Court, 71 Cal. 2d 1039 437,438,451,468 Cafeteria Workers v. Mc- Elroy, 367 U. S. 886 309 Calder v. Bull, 3 Dall. 386 253 California v. Green, 399 U. S. 149 626-628 California Dept, of Human Resources v. Java, 402 U. S. 121 968 Calton v. Utah, 130 U. S. 83 200 Camacho v. Gardner, 104 Ariz. 555 644 Cantwell v. Connecticut, 310 U. S. 296 77,615 Carbice Corp. v. American Patents, 283 U. S. 27 344 Carroll v. Princess Anne, 393 U. S. 175 270,419 Carroll v. United States, 354 U. S. 394 67,83, 84,89,94, 533 Carter v. Carter Coal, 298 U. S. 238 272 Cauefield v. Fidelity & Cas. Co., 378 F. 2d 876 326 Ceballos v. Shaughnessy, 352 U. S. 599 511 Celebrezze v. Sutton, 338 F. 2d 417 406 Celebrezze v. Warren, 339 F. 2d 833 406 TABLE OF CASES CITED XLIX Page Cephas v. United States, 117 U. S. App. D. C. 15 216 Chambers v. Florida, 309 U. S. 227 244 Chaplinsky v. New Hampshire, 315 U. S. 568 613 Chapman v. California, 386 U. S. 18 625 Chimel v. California, 395 U. S. 752 923 Chrysler Corp. v. United States, 316 U. S. 556 675,686 Citizen Pub. Co. v. United States, 394 U. S. 131 555 Citizens to Preserve Over-ton Park v. Volpe, 401 U. S. 402 119 City. See name of city. Cleveland v. Anderson, 13 Ohio App. 2d 83 615 Cline v. Frink Dairy, 274 U. S. 445 272 Cobbledick v. United States, 309 U. S. 323 532,533 Coca Cola v. Pepsi-Cola, 36 Del. 124 322 Cochran v. Celebrezze, 325 F. 2d 137 405 Cohen v. Perales, 412 F. 2d 44; 416 F. 2d 1250 398 Colorado Anti-Discrimination Comm’n v. Continental Air Lines, 372 U. S. 714 649 Commonwealth. See also name of Commonwealth. Commonwealth v. Tilghman, 4 S. & R. 127 262 Communist Party v. SACB, 367 U. S. 1 276 Compco Corp. v. Day-Brite Lighting, 376 U. S. 234 343,345 Connally v. General Constr. Co., 269 U. S. 385 257,614 Consolidated Edison v. NLRB, 305 U. S. 197 401,407,413 Consolo v. FMC, 383 U. S. 607 401 Construction Laborers v. Curry, 371 U. S. 542 418,421 Page Consumers Digest v. Consumer Magazine, 92 Ill. App. 2d 54 421 Continental Baking v. Woodring, 286 U. S. 352 539 Cooper v. Aaron, 358 U. S. 1 253 Cooper v. Pate, 378 U. S. 546 657 Corrections Commissioner. See name of commissioner. Counselman v. Hitchcock, 142 U. S. 547 449,469,476 County. See name of county. Covey v. Somers, 351 U. S. 141 256 Cox v. Louisiana, 379 U. S. 536 615 Cox v. Louisiana, 379 U. S. 559 620 Cox v. New Hampshire, 312 U. S. 569 258 Crowell v. Benson, 285 U. S. 22 369 Cummings v. Missouri, 4 Wall. 277 253 Cuno Corp. v. Automatic Devices, 314 U. S. 84 343 Currin v. Wallace, 306 U. S. 1 256 Cuthrell v. Celebrezze, 330 F. 2d 48 405 Davis v. Bd. of School Comm’rs, 402 U. S. 33 19,27,29 Davis v. Bd. of School Comm’rs, 414 F. 2d 609 35 Davis v. McKinnon & Mooney, 266 F. 2d 870 326 Davis v. United States, 374 F. 2d 1 101 Delaware Indians v. Cherokee Nation, 193 U. S. 127 174 Delli Paoli v. United States, 352 U. S. 232 631 Dempsey v. Tynan, 143 Conn. 202 646 Dennis v. United States, 341 U. S. 494 258,388 Desmond v. Kramer, 96 N. J. Super. 96 327 419-882 0 - 72 -4 L TABLE OF CASES CITED Page Detroit & T. S. L. R. Co. v. Transportation Union, 396 U. S. 142 576,581,588,595 DeWitt, Inc. v. Hall, 19 N. Y. 2d 141 327 DiBella v. United States, 369 U. S. 121 533 Dickinson v. United States, 346 U. S. 389 488 Director of penal or correctional institution. See name of director. Dodsworth v. Celebrezze, 349 F. 2d 312 406 Doe v. Dept, of Transportation, 412 F. 2d 674 408 Doe v. General Hospital of D. C., 313 F. Supp. 1170 71 Doe v. General Hospital of D. C., 140 U. S. App. D. C. 149 and 153 72 Doe v. Scott, 321 F. Supp. 1385 76 Dole Valve v. Perfection Bar Equip., 318 F. Supp. 122 347 Dombrowski v. Pfister, 380 U. S. 479 257, 259, 375, 378, 620 Donato v. Fishburn, 90 Ariz. 210 669 Douglas v. Alabama, 380 U. S. 415 625,627 Douglas v. California, 372 U. S. 353 144,145,959,960 Draper v. Washington, 372 U. S. 487 958 Dreyer v. Illinois, 187 U. S. 71 254,272 Duisen v. State, 441 S. W. 2d 688 196 Duncan v. Louisiana, 391 U. S. 145 235 Dupkunis v. Celebrezze, 323 F. 2d 380 405 Durham v. United States, 214 F. 2d 862 565 Durham v. United States, 401 U. S. 481 962 Dvson v. Stein, 401 U. S. 200 79 Eagle, Star & British Dominions Ins. v. Heller, 149 Va. 82 322,327 Page Edwards v. South Carolina, 372 U. S. 229 615 Ehlert v. United States, 402 U. S. 99 969 Eisel v. Columbia Packing, 181 F. Supp. 298 326,333 Elgin, J. & E. R. Co. v. Burley, 325 U. S. 711 575 Ellis v. Bd. of Pub. Instruction, 423 F. 2d 203 27 Ellis v. Crockett, 51 Haw. 45 326 Ellis v. United States, 356 U. S. 674 959 Embree v. Kansas City Road Dist., 240 U. S. 242 272 Emspak v. United States, 349 U. S. 190 438 Erie R. Co. v. Tompkins, 304 U. S. 64 321,324 Ernst, In re, 294 F. 2d 556 196 Escobedo v. Dept, of Motor Vehicles, 35 Cal. 2d 870 645 Escobedo v. Illinois, 378 U. S. 478 924 Estep v. United States, 327 U. S. 114 483,486 Ethyl Gasoline v. United States, 309 U. S. 436 344 Eubank v. Richmond, 226 U. S. 137 254,256,272 Ewing v. Mytinger & Casselberry, 339 U. S. 594 542 Ex parte. See name of party. Fahey v. Mallonee, 332 U. S. 245 277,542 Falbo v. United States, 320 U. S. 549 483 Farmer v. Killingsworth, 102 Ariz. 44 644 FCC v. RCA Communications, 346 U. S. 86 253,256,279 FPC v. Tuscarora Indians, 362 U. S. 99 514 Ferguson v. Georgia, 365 U. S. 570 220 Ferguson v. Moore-McCormack Lines, 352 U. S. 521 497,508 Ferguson v. Skrupa, 372 U. S. 726 255 TABLE OF CASES CITED LI Page Fernandez v. Mackell, 401 U. S. 66 903,935 Field v. Clark, 143 U. S. 649 272 First Nat. Bk. v. Reeves, 27 Ariz. 508 669 First Suburban Water Dist. v. McCanless, 177 Tenn. 128 602,607 Fitzpatrick v. United States, 178 U. S. 304 215 Flake v. Gardner, 399 F. 2d 532 406 Flemming v. Nestor, 363 U. S. 603 401 Fletcher v. Peck, 6 Cranch 87 286 Florida ex rel. Thomas v. Culver, 253 F. 2d 507 196 Florida Lime Growers v. Jacobsen, 362 U. S. 73 90,93 Florida Lime Growers v. Paul, 373 U. S. 132 649 Fortson v. Dorsey, 379 U.*S. 433 694 Free v. Bland, 369 U. S. 663 649 Freedman v. Maryland, 380 U. S. 51 309, 359, 367-371, 374, 377, 378, 382, 383, 386 Frost & Frost Trucking v. Railroad Comm’n, 271 U. S. 583 539 Gable v. Jenkins, 397 U. S. 592 355 Garner v. Louisiana, 368 U. S. 157 268 Garner v. Teamsters, 346 U. S. 485 307 Garrity v. New Jersey, 385 U. S. 493 240,469 Gault, In re, 387 U. S. 1 256 General Com. of Adjustment v. M-K-T R. Co., 320 U. S. 323 577,578 General Trading v. State Tax Comm’n, 322 U. S. 335 369,644 Giaccio v. Pennsylvania, 382 U. S. 399 207, 258, 262-265, 272, 310 Page Gibbons v. Ogden, 9 Wheat. 1 150,649 Gibson v. United States, 194 U. S. 182 665 Gibson v. United States, 329 U. S. 338 483 Gideon v. Wainwright, 372 U. S. 335 235,256,540,959 Gillaspie v. Dept, of Pub. Safety, 152 Tex. 459 646 Gillette v. United States, 401 U. S. 437 112,113,256,490 Ginzburg v. United States, 383 U. S. 463 79,379 Girouard v. United States, 328 U. S. 61 327 Goldberg v. Kelly, 397 U. S. 254 124,135, 136, 255, 256, 269, 309, 402, 406, 407, 539-542 Goldsmith v. Bd. of Tax Appeals, 270 U. S. 117 539 Gomillion v. Lightfoot, 364 U. S. 339 141 Good Health Dairy v. Emery, 275 N. Y. 14 322 Graham v. John Deere Co., 383 U. S. 1 314,331-333 Graham v. Locomotive Fire- men, 338 U. S. 232 582,595 Graves v. Associated Transport, 344 F. 2d 894 326 Green v. County School Bd., 391 U. S. 430 7,13-15,18,21, 25, 27, 31, 38, 41, 46 Green v. Gardner, 391 F. 2d 606 406 Green v. United States, 365 U. S. 301 217-219,236 Gregory v. Chicago, 394 U. S. Ill 614 Griffin v. California, 380 U. S. 609 207,210 Griffin v. Illinois, 351 U. S. 12 958,961 Griffin v. School Bd., 377 U. S. 218 14 Griswold v. Connecticut, 381 U. S. 479 73,78,255,265 Grosso v. United States, 290 U. S. 62 429-431,437,438, 449, 452-462, 477, 978 LII TABLE OF CASES CITED Page Gunn v. University Com., 399 U. S. 383 936 Hamilton v. State, 39 Ohio App. 153 228 Hampton & Co. v. United States, 276 U. S. 394 273 Hannah v. Larche, 363 U. S. 420 401 Hansberry v. Lee, 311 U. S. 32 329 Harper v. Virginia Bd. of Elections, 383 U. S. 663 145,226 Harries v. Air King Prods., 183 F. 2d 158 331 Harrington v. California, 395 U. S. 250 627 Harris v. Zion’s Savings Bk., 317 U. S. 447 648 Harrisburg, The, 119 U. S. 199 321 Hastings v. Thurston, 100 Ariz. 302 644 Haynes v. United States, 390 U. S. 85 369, 429-431, 438, 453, 460, 937, 938 Hebert v. Louisiana, 272 U. S. 312 242 Hecht Co. v. Bowles, 321 U. S. 321 15 Heimke v. Munoz, 106 Ariz. 26 648 Heiser v. Woodruff, 327 U. S. 726 324 Helvering v. Davis, 301 U.S. 619 1003 Helvering v. Hallock, 309 U. S. 106 328 Herndon v. Lowry, 301 U. S. 242 77 Hess v. Pawloski, 274 U. S. 352 539 Hill v. Florida, 325 U. S. 538 649 Hill v. United States, 368 U. S. 424 219,220,237 Hines v. Davidowitz, 312 U. S. 52 649,650 Hoffman v. United States, 341 U. S. 479 432,435-442 Holt v. United States, 218 U. S. 245 432 Page Home Owners Sav. & Loan v. Northwestern Fire & Marine Ins., 354 Mass. 448 326 Hoppe v. State, 29 Ohio App. 467 228,247 Housing Authority v. Superior Court, 35 Cal. 2d 550 138 Howell v. State, 102 Ohio St. 411 233,234,292 Howell v. Vito’s Trucking, 20 Mich. App. 140 327 Hughes v. United States, 342 U. S. 353 682,686 Hull, Ex parte, 312 U. S. 546 255 Hunter v. Erickson, 393 U. S. 385 140,141 Hunter v. State, 222 Tenn. 672 196 Hurtado v. California, 110 U. S. 516 243,253,254 Hutcheson v. United States, 369 U. S. 599 476 Immigration Service v. Stan-isic, 395 U. S. 62 105 Industrial Workers v. Galveston Wharves, 400 F. 2d 320 573 In re. See name of party. International. For labor union, see name of trade. IBM v. United States, 298 U. S. 131 344 International Salt v. United States, 332 U. S. 392 344 International Shoe v. FTC, 280 U. S. 291 555 International Shoe v. Pinkus, 278 U. S. 261 660 Ivanhoe Irrig. Dist. v. Mc- Cracken, 357 U. S. 275 1003 Jackman v. Rosenbaum Co., 260 U. S. 22 203 Jackson v. Bishop, 404 F. 2d 571 ‘ 992 Jackson v. Denno, 378 U. S. 368 232,255,256,266,268 Jenkins v. Atlantic C. L. R. Co., 89 S. C. 408 322 Jenkins v. Mayflower Ins. Exch., 93 Ariz. 287 644 TABLE OF CASES CITED LIU Page Johns v. State, 42 Ohio App. 412 228 Johnson v. Avery, 393 U. S. 483 255 Johnson v. Commonwealth, 208 Va. 481 196 Jones v. Lemond, 396 U. S. 1227 111,115 Jordan v. De George, 341 U. S. 223 79 Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495 77 Justice v. Gardner, 360 F. 2d 998 406 Katz v. United States, 389 U. S. 347 965 Katzenbach v. McClung, 379 U. S. 294 153 Kat zinger Co. v. Chicago Mfg. Co., 329 U. S. 394 343,345 Kay v. United States, 303 U. S.1 258 Keene v. United States, 266 F. 2d 378 101 Kelly v. Wyman, 294 F. Supp. 893 541 Keokuk & W. R. Co. v. Missouri, 152 U. S. 301 321 Kerotest Mfg. Co. v. C-O- Two Co., 342 U. S. 180 329, 344 Kesler v. Dept, of Pub. Safety, 369 U. S. 153 98, 638, 643, 644, 647, 650-654, 658, 661, 664-671 Keyishian v. Regents, 385 U. S. 589 619 King v. Smith, 392 U. S. 309 135 Klopfer v. North Carolina, 386 U. S. 213 235 Konigsberg v. State Bar. 366 U. S. 36 463 Kraly v. National Distillers, 319 F. Supp. 1349 345 Kunz v. New York, 340 U. S. 290 619 Kurlan v. Comm’r, 343 F. 2d 625 326 Labine v. Vincent, 401 U. S. 532 476 Labor Board. See NLRB. Page Labor union. See name of trade. Lambert v. California, 355 U. S. 225 565 Lanzetta v. New Jersey, 306 U. S. 451 71,75,257,616 Lapenieks v. Immigration Service, 389 F. 2d 343 513 Lear, Inc. v. Adkins, 395 U. S. 653 334,345,346,349 Leary v. United States, 395 U. S. 6 70, 438, 453, 460, 937, 939 Lee v. England, 206 F. Supp. 957 665 Lee v. State, 32 Ohio St. 113 289 Leeper v. Texas, 139 U. S. 462 296 Levy v. Louisiana, 391 U. S. 68 78 Lewis v. Roberts, 267 U. S. 467 639,648,655,665 Lewis v. United States, 348 U. S. 419 437 Liberty Mutual Ins. v. George Colon & Co., 260 N. Y. 305 322 Lichter v. United States, 334 U. S. 742 253,280,286 Litchfield v. Goodnow, 123 U. S. 549 321 Lober v. Moore, 135 U. S. App. D. C. 146 325 Local. For labor union, see name of trade. Local Loan Co. v. Hunt, 292 U. S. 234 648,660 Locomotive Engineers v. B. & O. R. Co., 372 U. S. 284 573 Locomotive Firemen v. Chi- cago, B. & Q. R. Co., 225 F. Supp. 11 573 Londoner v. Denver,. 210 U. S. 373 539 Lonergan v. Crucible Steel, 37 Ill. 2d 599 421 Long v. District Court of Iowa, 385 U. S. 192 958 Long v. United States, 59 F. 2d 602 405 LIV TABLE OF CASES CITED Page Louisiana v. United States, 380 U. S. 145 256,267,272 Louisiana Power v. Thibo- daux, 360 U. S. 25 261 Lovell v. Griffin, 303 U. S. 444 256,267,419 Loving v. Virginia, 388 U. S. 1 78,265 Lucas v. Velikanje, 2 Wash. App. 888 327 Luck v. United States, 121 U. S. App. D. C. 151 215 Lustik v. Rankila, 269 Minn. 515 327 Lynch v. Chicago Transit, 62 IB. App. 2d 220 327 Mac. See also Me. MacGregor v. Westinghouse, 329 U. S. 402 345 Machinists v. Street, 367 U. S. 740 575, 576, 581, 588, 598 Mackey v. United States, 401 U. S. 667 478, 630, 632, 923, 924, 938 Malloy v. Hogan, 378 U. S. 1 210,436,439,449,459 Marbury v. Madison, 1 Cranch 137 250 Marchetti v. United States, 390 U. S. 39 429-431, 437, 438, 449, 452-462, 469, 470, 477, 978, 979 Marcus v. Search Warrant, 367 U. S. 717 309,359 Martin v. Finch, 415 F. 2d 793 406 Martin v. Struthers, 319 U. S. 141 419 Maryland v. Capital Air- lines, 267 F. Supp. 298 326 Maryland v. Wirtz, 392 U. S. 183 154 Mathews v. New York Racing Assn., 193 F. Supp. 293 326 Maxwell v. Bishop, 398 F. 2d 138 196 Maxwell v. Bishop, 393 U. S. 997; 395 U. S. 918 185 Maxwell v. Bishop, 398 U. S. 262 185,196 Mayberry v. Pennsylvania, 400 U. S. 455 266 Page Me. See also Mac. McCants v. State, 282 Ala. 397 196 McCarthy v. Arndstein, 266 U. S. 34 437,450,469,476 McDonald v. Bd. of Election, 394 U. S. 802 145 McDowell v. Davis, 104 Ariz. 69 648 McFarland v. American Sugar, 241 U. S. 79 253 McKart v. United States, 395 U. S. 185 483-487,495,496 McKinley v. United States, 249 U. S. 397 256 McMann v. Richardson, 397 U. S. 759 212,213 McMillin v. Gardner, 384 F. 2d 596 406 McMullen v. Celebrezze, 335 F. 2d 811 406 McNabb v. United States, 318 U. S. 332 250 Medley, In re, 134 U. S. 160 253 Mefford v. Gardner, 383 F. 2d 748 408 Melson v. Sard, 131 U. S. App. D. C. 102 239,240 Mempa v. Rhay, 389 U. S. 128 211,219,237 Mercoid v. Mid-Continent Investment, 320 U. S. 661 343 Meyer v. Nebraska, 262 U. S. 390 78 Michelson v. United States, 335 U. S. 469 213,215,230 Miller v. Anckaitis, 436 F. 2d 115 653 Miller v. Schoene, 276 U. S. 272 272 Miller v. State, 224 Ga. 627 196 Mills v. Alabama, 384 U. S. 214 98,418,421 Miracle v. Celebrezze, 351 F. 2d 361 405 Miranda v. Arizona, 384 U. S. 436 255,449,450,924 Missouri v. Lewis, 101 U. S. 22 296 Molinaro v. New Jersey, 396 U. S. 365 968 Monroe v. Bd. of Comm’rs, 391 U. S. 450 7 TABLE OF CASES CITED LV Page Moon v. Celebrezze, 340 F. 2d 926 406 Moore v. Dempsey, 261 U. S. 86 242 Moore v. Missouri, 159 U. S. 673 296 Moore v. United States, 360 F. 2d 353 327 Moragne v. States Marine Lines, 398 U. S. 375 321 Morissette v. United States, 342 U. S. 246 564,565 Mortensen v. Knight, 81 Ariz. 325 669 Morton Salt v. Suppiger Co., 314 U. S. 488 344 Motion Picture Patents v. Universal Film, 243 U. S. 502 344 Mulford v. Smith, 307 U. S. 38 279 Mullane v. Central Hanover Bk., 339 U. S. 306 256,541,542 Mulloy v. United States, 398 U. S. 410 484 Murchison, In re, 349 U. S. 133 255,256,266,409 Murphy v. Waterfront Comm’n, 378 U. S. 52 214, 215, 437, 442, 450 Muskrat v. United States, 219 U. S. 346 48 Musser v. Utah, 333 U. S. 95 258 Myers v. United States, 272 U. S. 52 272 Nash v. Florida Industrial Comm’n, 389 U. S. 235 131,649 Nash v. United States, 229 U. S. 373 76 NAACP v. Button, 371 U. S. 415 383 NBC v. United States, 319 U. S. 190 276 NLRB v. American Nat. Ins. Co., 343 U. S. 395 583 NLRB v. Columbia Enamel- ing & Stamping, 306 U. S. 292 401 NLRB v. Gissel Packing, 395 U. S. 575 279 Page NLRB v. Gullett Gin Co., 340 U. S. 361 136 NLRB v. Hearst Publications, 322 U. S. Ill 605 NLRB v. Insurance Agents, 361 U. S. 477 575,583,597,598 NLRB v. Pittsburgh S. S. Co., 337 U. S. 656 321 NLRB v. Randolph Electric, 343 F. 2d 60 603,605 NLRB v. Reed & Prince Co., 205 F. 2d 131 578,579 Near v. Minnesota, 283 U.S. 697 254,418 Negre v. Larsen, 401 U. S. 437 112 Nestor Johnson Mfg. Co. v. Goldblatt, 371 Ill. 570 421 New Lamp Chimney Co. v. Ansonia Brass & Copper, 91 U. S. 656 660 New State Ice v. Liebmann, 285 U. S. 262 312 New York Central Securities v. United States, 287 U. S. 12 278 New York Underwriters v. Superior Court, 104 Ariz. 544 644 Nickerson v. Kutschera, 390 F. 2d 812 318 Nickerson v. Kutschera, 419 F. 2d 983 318,339 Nickerson v. Pep Boys, 247 F. Supp. 221 318 Niemotko v. Maryland, 340 U. S. 268 256,259,283 North Carolina v. Alford, 400 U. S. 25 269,307 North Carolina v. Pearce, 395 U. S. 711 255,256,265,286 North Carolina Bd. of Ed. v. Swann, 402 U. S. 43 47 Nyyssonen v. Bendix Corp., 342 F. 2d 531 331 Oestereich v. Selective Service Bd., 393 U. S. 233 483 Offutt v. United States, 348 U. S. 11 409 Olmstead v. United States, 277 U. S. 438 452,474 LVI TABLE OF CASES CITED Page Opp Cotton Mills v. Administrator, 312 U. S. 126 539,542 Page v. Celebrezze, 311 F. 2d 757 406 Palko v. Connecticut, 302 U. S. 319 203 Panama Refining v. Ryan, 293 U. S. 388 253 Parke-Davis & Co. v. H. K. Mulford Co., 189 F. 95 331 Parker v. North Carolina, 397 U. S. 790 212 Pat Perusse Realty v. Lingo, 249 Md. 33 326 Pease v. Peck, 18 How. 595 261 Peckham v. United States, 96 U. S. App. D. C. 312 69 Pennington v. Snow, 471 P. 2d 370 326 Pennsylvania v. Ashe, 302 U. S. 51 246 Pennsylvania R. Co. v. NLRB, 261 U. S. 72 593 People v. Anderson, 64 Cal. 2d 633 303 People v. Aranda, 63 Cal. 2d 518 632 People v. Bandhauer, 66 Cal. 2d 524 300 People v. Bandhauer, 1 Cal. 3d 609 303 People v. Belous, 71 Cal. 2d 954 76 People v. Fitzpatrick, 61 Mise. 2d 1043 196 People v. Floyd, 1 Cal. 3d 694 300 People v. Friend, 47 Cal. 2d 749 303 People v. Garner, 57 Cal. 2d 135 300 People v. Golston, 58 Cal. 2d 535 298 People v. Green, 47 Cal. 2d 209 304 People v. Harrison, 59 Cal. 2d 622 302 People v. Hill, 66 Cal. 2d 536 299,304 People v. Hillery, 65 Cal. 2d 795 303 Page People v. Hines, 61 Cal. 2d 164 299,308 People v. Jones, 52 Cal. 2d 636 299 People v. Ketchel, 59 Cal. 2d 503 305 People v. Kidd, 56 Cal. 2d 759 299,300,305 People v. King, 1 Cal. 3d 791 298 People v. Langdon, 52 Cal. 2d 425 299 People v. Lookadoo, 66 Cal. 2d 307 191 People v. Love, 53 Cal. 2d 843 300 People v. Love, 56 Cal. 2d 720 299,300,304 People v. McGautha, 70 Cal. 2d 770 302 People v. Moore, 53 Cal. 2d 451 304 People v. Morse, 60 Cal. 2d 631 299,307 People v. Moya, 53 Cal. 2d 819 300 People v. Nothaus, 147 Colo. 210 645 People v. Ohio Cas. Ins., 232 F. 2d 474 326 People v. Polk, 63 Cal. 2d 443 303 People v. Purvis, 60 Cal. 2d 323 299 People v. Roberts, 40 Cal. 2d 483 632 People v. Sosa, 251 Cal. App. 2d 9 299 People v. Terry, 61 Cal. 2d 137 300,303 People v. Washington, 71 Cal. 2d 1061 303 People v. Welch, 58 Cal. 2d 271 299,300 Perales v. Secretary, 288 F. Supp. 313 398 Perkins v. Lukens Steel, 310" U. S. 113 278 Perlman v. United States, 247 U. S. 7 532-534 Permian Basin Area Rate Cases, 390 U. S. 747 528 TABLE OF CASES CITED LVII Page Phelps Dodge Corp. v. NLRB, 313 U. S. 177 279 Phillips v. Celebrezze, 330 F. 2d 687 406 Picard v. United Aircraft, 128 F. 2d 632 334,339 Piccirillo v. New York, 400 U. S. 548 442,478 Piedmont Aviation v. Air Line Pilots, 416 F. 2d 633 573,587 Pierce v. Gardner, 388 F. 2d 846 406 Pointer v. Texas, 380 U. S. 400 235,625 Pope v. Atlantic C. L. R. Co., 345 U. S. 379 421 Pope Mfg. Co. v. Gormully, 144 U. S. 224 345 Poresky, Ex parte, 290 U. S. 30 539 Poulos v. New Hampshire, 345 U. S. 395 259 Precision Instrument v. Automotive Maintenance Machinery, 324 U. S. 806 343 Provident Tradesmens Bk. v. Lumbermens Mutual Cas. Co., 411 F. 2d 88 325 Public Workers v. Mitchell, 330 U. S. 75 963,988 Queen v. Boyes, 1 B. & S. 311 470 Radio Comm’n v. Nelson Bros., 289 U. S. 266 278 Railroad Telegraphers v. Chicago & N. W. R. Co., 362 U. S. 330 575,582,595 Railroad Trainmen v. Akron & B. B. R. Co., 128 U. S. App. D. C. 59 573 Railroad Trainmen v. At- lantic C. L. R. Co., 127 U. S. App. D. C. 298 573 Railroad Trainmen v. Chi- cago R. & I. R. Co., 353 U. S. 30 582,598 Railroad Trainmen v. How- ard, 343 U. S. 768 578,582,595 Railroad Trainmen v. Jacksonville Terminal, 394 U. S. 369 574,579,583 Page Railway Clerks v. Non-Con-tract Employees, 380 U. S. 650 576 Raley v. Ohio, 360 U. S. 423 458,459,466,477 Raney v. Bd. of Ed., 391 U. S. 443 7 Rathbun v. United States, 355 U. S. 107 965 Ratliff v. Celebrezze, 338 F. 2d 978 405 Ray v. Pierson, 386 U. S. 547 962 Red Lion Broadcasting v. FCC, 395 U. S. 367 276,279 Redrup v. New York, 386 U. S. 767 360,380,938 Reitz v. Mealey, 314 U. S. 33 638,643,644,647, 650-654, 660, 664-671 Rescue Army v. Municipal Court, 331 U. S. 549 468 Roberts v. La Vallee, 389 U, S. 40 958 Roberts v. Russell, 392 U. S. 293 625,627,631-634 Robinson v. California, 370 U. S. 660 255 Rochin v. California, 342 U. S. 165 225 Rockefeller v. Catholic Medical Center, 397 U. S. 820. 95 Roe v. Wade, 314 F. Supp. 1217 75', 76 Rogers v. United States, 340 U. S. 367 439 Rosado v. Wyman, 397 U. S. 397 135,1003 Rosenberg v. United States, 346 U. S. 273 285 Rosenblum v. Griffin, 89 N. H. 314 646 Roth v. United States, 354 U. S. 476 353-361, 376, 379, 380 Rowan v. Post Office Dept., 397 U. S. 728 420 Ruth v. Rhodes, 66 Ariz. 129 669 St. Johnsbury Trucking v. United States, 220 F. 2d 393 562,566 St. Paul v. Hoffmann, 223 Minn. 76 646 lvhi TABLE OF CASES CITED Page Samuels v. Mackell, 401 U. S. 66 903,935 Sanders v. Yuba County, 247 Cal. App. 2d 748 992 Sanderson v. Balfour, 109 N. H. 213 326 Sandoval v. Chenoweth, 102 Ariz. 241 644 Sanks v. Georgia, 401 U. S. 144 502 Scales v. United States, 367 U. S. 203 565 Schacht v. United States, 398 U. S. 58 259 Schaffer Transp. Co. v. United States, 355 U. S. 83 527 Schechter Poultry v. United States, 295 U. S. 495 253 Schecter v. Killingsworth, 93 Ariz. 273 644,654,667 Schine Theatres v. United States, 334 U. S. 110 556 Schmerber v. California, 384 U. S. 757 432,435,448-450 Schneider v. Rusk, 377 U. S. 163 253 Schneider v. Smith, 390 U. S. 17 369 Schneider v. State, 308 U. S. 147 419,615 Schroeder v. New York, 371 U. S. 208 235 Scott v. Commanding Of- ficer, 431 F. 2d 1132 101 Scott v. United States, 135 U. S. App. D. C. 377 240 Scott Paper v. Marcalus Co., 326 U. S. 249 344,345 Screws v. United States, 325 U. S. 91 98 Scruggs v. Haynes, 252 Cal. App. 2d 256 992 Seaboard World Airlines v. Transport Workers, 425 F. 2d 1086 573 Seattle Trust v. Roberge, 278 U. S. 116 254,255,272 Sears, Roebuck v. Stiffel Co., 376 U. S. 225 343,345,649 SEC v. Chenery Corp., 318 U. S. 80 279,527 Segura v. Patterson, 402 F. 2d 249 196 Page Seguros Tepeyac v. Jernigan, 410 F. 2d 718 325 Shapiro v. Thompson, 394 U. S. 618 92,93,253,255,539 Shapiro v. United States, 335 U. S. 1 428,440 Shelton v. State, 102 Ohio St. 376 219,233 Shen v. Esperdy, 428 F. 2d 293 52,54 Sherbert v. Verner, 374 U. S. 398 539 Shomberg v. United States, 348 U. S. 540 512 Shuttlesworth v. Birmingham, 382 U. S. 87 260 Sicurella v. United States, 348 U. S. 385 279 Silber v. United States, 370 U. S. 717 321 Silsby v. State, 119 Ohio St. 314 228,289 Silverthorne Lumber v. United States, 251 U. S. 385 979 Simmons v. United States, 390 U. S. 377 211,212,238,239 Sims v. Eyman, 405 F. 2d 439 196 Skinner v. Oklahoma, 316 U. S. 535 78,204 Slochower v. Bd. of Ed., 350 U. S. 551 539 Smith v. California, 361 U. S. 147 257,379,380 Sniadach v. Family Finance Corp., 395 U. S. 337 236,539,542,1003 Sola Electric v. Jefferson Electric, 317 U. S. 173 345,649 Spalding v. New York ex rel. Backus, 4 How. 21 662 Specht v. Patterson, 386 U. S. 605 211, 218, 237, 247, 268 Speiser v. Randall, 357 U. S. 513 309,539 Spencer v. Texas, 385 U. S. 554 209,210, 213, 215, 221, 230, 231 Spevack v. Klein, 385 U. S. 511 255,449,469 TABLE OF CASES CITED LIX Page Sprague v. Ticonic Nat. Bk., 307 U. S. 161 959 Stancavage v. Celebrezze, 323 F. 2d 373 405 Standard Oil v. United States, 337 U. S. 293 553 Stanley v. Georgia, 394 U. S. 557 309,354-360, 367, 375, 376, 379-382 Stark v. Wickard, 321 U. S. 288 575 State. See also name of State. State v. Ames, 50 Ohio Law Abs. 311 233 State v. Austin, 71 Ohio St. 317 227 State v. Caldwell, 135 Ohio St. 424 233,234,289,292 State v. Carter, 21 Ohio St. 2d 212 295 State v. Ellis, 98 Ohio St. 21 288 State v. Ferguson, 175 Ohio St. 390 233,289,293 State v. Ferranto, 112 Ohio St. 667 288 State v. Frohner, 150 Ohio St. 53 228 State v. Hector, 19 Ohio St. 2d 167 228 State v. Henley, 15 Ohio St. 2d 86 290,293 State v. Johnson, 34 N. J. 212 196 State v. Kelbach, 23 Utah 2d 231 196 State v. Klumpp, 15 Ohio Op. 2d 461 195,233,289 State v. Latham, 190 Kan. 411 196 State v. Lucear, 93 Ohio App. 281 233,234 State v. Meyer, 163 Ohio St. 279 290,293 State v. Murdock, 172 Ohio St. 221 228 State v. Pollard, 21 Ohio St. 2d 171 228 State v. Reed, 85 Ohio App. 36 289 State v. Roseboro, 276 N. C. 185 196 Page State v. Smith, 123 Ohio St. 237 288 State v. Smith, 74 Wash. 2d 744 196 State v. Stewart, 176 Ohio St. 156 289 State v. Walters, 145 Conn. 60 196 State v. Williams, 85 Ohio App. 236 228 Steele v. Louisville & N. R. Co., 323 U. S. 192 594 Stellwagen v. Clum, 245 U. S. 605 648 Stone v. Farmers’ Bank, 174 U. S. 409 321 Street v. New York, 394 U. S. 576 615 Sullivan v. Cheatham, 264 Ala. 71 645 Sunshine Anthracite Coal v. Adkins, 310 U. S. 381 278 Superintendent of penal or correctional institution. See name of superintendent. Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1 35,37, 41, 42, 44-46, 182, 953 Sweezy v. New Hampshire, 354 U. S. 234 254,272 Swift v. Director of Selective Serv. (CADC 1971) 101 Swift & Co. v. United States, 276 U. S. 311 676 Swift & Co. v. Wickham, 382 U. S. Ill 90,650,662,667 Switchmen v. Nat. Mediation Bd., 320 U. S. 297 580 Tate v. Short, 401 U. S. 395 657 Teague v. Customs Comm’r, 394 U. S. 977 962,963 Technograph Printed Circuits v. Packard Bell Electronics, 290 F. Supp.308 318 Technograph Printed Circuits v. United States, 178 Ct. Cl. 543 318,331 Tehan v. Shott, 382 U. S. 406 450 LX TABLE OF CASES CITED Page Teitelbaum Furs v. Dominion Ins., 58 Cal. 2d 601 327,333 Teitel Film v. Cusack, 390 U. S. 139 367-369,374,386 Terminal Assn. v. Railroad Trainmen, 318 U. S. 1 596 Terminiello v. Chicago, 337 U. S. 1 615 Texas & N. 0. R. Co. v. Railway Clerks, 281 U. S. 548 578,588 Textile Workers v. Lincoln Mills, 353 U. S. 448 582 Thomas v. Culver, 253 F. 2d 507 196 Thomas v. United States, 368 F. 2d 941 240 Thompson v. Louisville, 362 U. S. 199 259 Thornhill v. Alabama, 310 U S 88 77, 259, 382, 419, 616 Thorpe v. Housing Author- ity, 393 U. S. 268 105 Tidewater Patent Dev. Co. v. Kitchen, 371 F. 2d 1004 318,347 Times Film Corp. v. Chi- cago, 365 U. S. 43 612 Toledo v. Sims, 14 Ohio Op. 2d 66 616 Tot v. United States, 319 U. S. 463 70 Town. See name of town. Townsend v. Burke, 334 U. S. 736 211,236,247 Triplett v. Lowell, 297 U. S. 638 317- 322, 327, 330, 332, 334, 338, 342, 345, 347-350 Trop v. Dulles, 356 U. S. 86 202 Tumey v. Ohio, 273 U. S. 510 266 Tunstall v. Locomotive Fire- men, 323 U. S. 210 595 Turner v. State, 21 Ohio Law Abs. 276 195,233 Turner v. United States, 396 U. S. 398 388 Udall v. Tailman, 380 U. S. 1 105 Page Union. For labor union, see name of trade. Union Pacific R. Co. v. Price, 360 U. S. 601 588 United. For labor union, see name of trade. United Air Lines v. Wiener, 335 F. 2d 379 326 United States v. Al-Majied Muhammad, 364 F. 2d 223 101 United States v. Aluminum Co., 247 F. Supp. 308 557 United States v. Armour & Co., 398 U. S. 268 673,683 United States v. Atlantic Refining, 360 U. S. 19 682,686 United States v. Balint, 258 U. S. 250 564,565,569 United States v. Bell Telephone, 128 U. S. 315 343 United States v. Blue, 384 U. S. 251 73,532,533 United States v. Bd. of Pub. Instruction, 395 F. 2d 66 21 United States v. Borden Co., 308 U. S. 188 73 United States v. Branker, 418 F. 2d 378 239 United States v. Brown, 381 U. S. 437 253 United States v. Burr, 25 F. Cas. 38 440,441,459,463 United States v. Burroughs, 289 U. S. 159 65,87-92 United States v. Calderon, 348 U. S. 160 216 United States v. Chicago Express, 235 F. 2d 785 566 United States v. Cohen Grocery, 255 U. S. 81 616 United States v. Cramp & Sons, 206 U. S. 118 174 United States v. Darby, 312 U. S. 100 151,152 United States v. Dotter- weich, 320 U. S. 277 569 United States v. Du Pont, 353 U. S. 586 556 United States v. Felin & Co., 334 U. S. 624 181 TABLE OF CASES CITED LXI Page United States v. 56 Cartons of Magazines, 253 F. Supp. 498 373 United States v. Freed, 401 U. S. 601 560,564,565 United States v. Freeman, 388 F. 2d 246 114 United States v. Gearey, 368 F. 2d 144 101,102 United States v. Grimaud, 220 U. S. 506 276 United States v. Gypsum Co., 333 U. S. 364 344 United States v. Haley, 358 U. S. 644 151 United States v. Harriss, 347 U. S. 612 545,546,619 United States v. Hoeliger, 273 F. 2d 760 513 United States v. Howard, 352 U. S. 212 277 United States v. Jackson, 390 U. S. 570 209,238,239 United States v. Johnson, 315 F. 2d 714 237 United States v. Jom, 400 U. S. 470 98 United States v. Kahriger, 345 U. S. 22 437,438 United States v. Menasche, 348 U. S. 528 512 United States v. Montgomery County Bd. of Ed., 395 U. S. 225 19,20 United States v. Murdock, 290 U. S. 389 564 United States v. National Dairy, 372 U. S. 29 74,257,619, 620 United States v. Nordlof, 440 F. 2d 840 101 United States v. Ohio, 385 U. S. 9 151 United States v. Omaha Indians, 253 U. S. 275 181 United States v. One Carton of Film, 247 F. Supp. 450 372 United States v. 1,000 Copies of Magazine, 254 F. Supp. 595 373 United States v. 127.295 Copies of Magazines, 295 F. Supp. 1186 373 Page United States v. Palumbo, 401 F. 2d 270 215 United States v. Penn Mfg. Co., 337 U. S. 198 181 United States v. Petrillo, 332 U. S. 1 73 United States v. Phillipsburg Nat. Bk., 399 U. S. 350 553 United States v. Raines, 362 U. S. 17 619 United States v. Reidel, 402 U. S. 351 375-380 United States v. Reliable Sales, 376 F. 2d 803 373 United States v. Richardson, 204 F. 2d 552 917 United States v. Robel, 389 U. S. 258 382,619 United States v. Rock Royal Co-op, 307 U. S. 533 256,276 United States v. Rumely, 345 U. S. 41 97,369 United States v. Seeger, 380 U. S. 163 112 United States v. 77 Cartons of Magazines, 300 F. Supp. 851 372 United States v. Shannon, 342 U. S. 288 508 United States v. Sisson, 399 U. S. 267 84 United States v. Stoppel- man, 406 F. 2d 127 101 United States v. Sullivan, 274 U. S. 259 428-430, 434, 439, 441, 461, 462, 470-472 United States v. Sweet, 399 U. S. 517 67,91-94 United States v. Swift & Co., 189 F. Supp. 885 676 United States v. Swift & Co., 270 U. S. 124 181 United States v. Swift & Co., 286 U. S. 106 676,686 United States v. Taylor, 351 F. 2d 228 101 United States v. Ten Erotic Paintings, 311 F. Supp. 884 372 United States v. 35 MM Film, 311 F. Supp. 108 372 LXII TABLE OF CASES CITED Page United States v. 392 Copies of Magazine, 253 F. Supp. 485 373 United States v. 37 Photographs, 402 U. S. 363 969 United States v. United Air Lines, 216 F. Supp. 709 326,330 United States v. U. S. Coin & Currency, 401 U. S. 715 477, 937-939, 978, 979 United States v. Ventresca, 380 U. S. 102 980 United States v. Vuitch, 402 U. S. 62 258 United States v. Wade, 388 U. S. 218 225,255, 432, 433, 436, 463, 473 United States v. Waters, 175 F. 2d 340 94 United States v. Weller, 401 U. S. 254 82,94 United States v. Wexler, 8 F. 2d 880 322 United States v. White, 401 U. S. 745 965 United States v. Wrightwood Dairy, 315 U. S. 110 151 United States v. Wunderlich, 342 U. S. 98 278 U. S. ex rel. See name of real party in interest. Universal Camera v. NLRB, 340 U. S. 474 401,527 University of Ill. Foundation v. Winegard Co., 271 F. Supp. 412 315,316 Ute Indians v. United States, 117 Ct. Cl. 433 160 Virginian R. Co. v. System Federation, 300 U. S. 515 575, 578, 579, 582, 583, 588, 593, 594, 598 Waley v. Johnston, 316 U. S. 101 269 Walker v. Birmingham, 388 U. S. 307 532 Walker Process Equip, v. Food Machinery, 382 U. S. 172 344 Walz v. Tax Comm’n, 397 U. S. 664 203 Page Ward v. Winstead, 400 U. S. 1019 963 Warden. See name of warden. Wayman v. Southard, 10 Wheat. 1 271,272,277 Welsh v. United States, 398 U. S. 333 103, 107, 112, 113, 490 West Coast Hotel v. Parrish, 300 U. S. 379 255 Westfall v. United States, 274 U. S. 256 154 Westinghouse v. Formica Co., 266 U. S. 342 345 West Va. Bd. of Ed. v. Barnette, 319 U. S. 624 360 White v. Zutell, 263 F. 2d 613 405 Whiteley v. Warden, 401 U. S. 560 933 Wickard v. Filbum, 317 U. S. Ill 151 Wilke & Holzheiser v. Dept, of Alcoholic Bev. Control, 65 Cal. 2d 349 305 Williams v. Florida, 399 U. S. 78 213,216 Williams v. New York, 337 U. S. 241 217,218,246 Williams v. Oklahoma City, 395 U. S. 458 959 Williams v. United States, 78 U. S. App. D. C. 147 69 Williams v. United States, 341 U. S. 97 618 Williams v. United States, 401 U. S. 646 924 Williams v. U. S. Fidelity & Guaranty, 236 U. S. 549 648,660 Willner v. Com. on Character, 373 U. S. 96 541 Wilson v. State, 225 So. 2d 321 196 Winship, In re, 397 U. S. 358 308,310 Winston v. United States, 172 U. S. 303 200 Winters v. New York, 333 U. S. 507 77,258 Wisconsin v. Constantineau, 400 U. S. 433 542 TABLE OF CASES CITED LXIII Page Witherspoon v. Illinois, 391 U. S. 510 185,201,247,248,302 Witmer v. United States, 348 U. S. 375 484,486,490 Wright v. Georgia, 373 U. S. 284 546 Yakus v. United States, 321 U. S. 414 273 Yick Wo v. Hopkins, 118 U. S. 356 252,257,259,272 Page Youngblood v. Bd. of Pub. Instruction, 430 F. 2d 625 41 Younger v. Harris, 401 U. S. 37 259,903,935 Zavelo v. Reeves, 227 U. S. 625 662 Zdanok v. Glidden Co., 327 F. 2d 944 323,326,330,333 Zywicke v. Brogli, 24 Wis. 2d 685 666 TABLE OF STATUTES CITED (A) Statutes of the United States Page 1874, Apr. 29, c. 136, 18 Stat. 36.................... 159 1880, June 15, c. 223, 21 Stat. 199................... 159 1882, July 28, c. 357, 22 Stat. 178................... 159 1888, May 1, c. 213, 25 Stat. 113, §4..................... 159 1890, July 2, c. 647, 26 Stat. 209, as amended, §1 ................ 549 §2 ........................ 313 §5 ........................ 673 1891, Mar. 3, c. 517, 26 Stat. 1895, Feb. 20," c. '113,' 28 Stat. 677................... 159 1897, Jan. 15, c. 29, 29 Stat. 487, §1..................... 183 1898, July 1, c. 541, 30 Stat. 544, as amended, §§ 1, 17............ 637 1901, Mar. 3, c. 854, 31 Stat. 1189, §935................... 62 1903, Feb. 11, c. 544, 32 Stat. 823, §2................549 1907, Mar. 2, c. 2564, 34 Stat. 1246................... 62 1909, Mar. 3, c. 263, 35 Stat. 781 ........................ 159 1914, Oct. 15, c. 323, 38 Stat. 730, as amended, §4 ................ 313 §7 .................... 549,673 1917, Feb. 5, c. 29, 39 Stat. 874, as amended, §19 ................ 509 Mar. 1, c. 144, 39 Stat. 948, as amended, § 3. 916 1919, Oct. 28, c. 85, 41 Stat. 305 424. 1920, Feb. 28^ c. 91, 41 Stat. 456 ........................ 570 Page 1920, June 10, c. 285,41 Stat. 1063, as amended, §§ 202, 205, 206, 313 .................... 515 1921, Nov. 23, c. 136, 42 Stat. 227, §223.... 424 1925, Feb. 28, c. 368, 43 Stat. 1053, §§301-319...................... 62 1926, May 20, c. 347, 44 Stat. 577, as amended, §§ 1, 2, 5, 6, 10............. 570 1927, Mar. 4, c. 509, 44 Stat. 1424 ..................... 389 1930, June 17, c. 497, 46 Stat. 590, §§ 305, 602, 604, 652 ............. 363 1932, Mar. 23, c. 90, 47 Stat. 70, §§ 4, 7, 8.... 570 1934, June 18, c. 576, 48 Stat. 984................. 159 June 19, c. 652, 48 Stat. 1064 ............... 965 June 21, c. 691, 48 Stat. 1185................ 570 1935, May 3, c. 89, 49 Stat. 166, §3.......... 637 July 5, c. 372, 49 Stat. 449, as amended, §2 ............... 600 §8 570,600 §10 ............389 Aug. 14, c. 531, 49 Stat. 620, as amended, §§205, 216................. 389 §218 600 §§221,223.................. 389 §§301-303, 901- 905 .......... 121 Aug. 26, c. 687, 49 Stat. 803, § 213.. 515 419-882 0 - 72 -5 LXV LXVI TABLE OF STATUTES CITED Page 1936, June 19, c. 592, 49 Stat. 1526, §3.... 611 June 30, c. 881,49 Stat. 2036, as amended, §10 ....................... 183 1937, Sept. 1, c. 896, 50 Stat. 888 ....................... 137 1938, June 22, c. 575,52 Stat. 840, §1............ 637 June 28, c. 776, 52 Stat. 1209 ...................... 159 1940, June 28, c. 439, 54 Stat. 670, as amended, §20 ................ 509 1941, Aug. 18, c. 377, 55 Stat. 638, §2............ 916 1942, Apr. 28, c. 247,56 Stat. 226, §403......... 183 May 9, c. 295, 56 Stat. 271 ................ 62 1945, Mar. 2, c. 19, 59 Stat. 10, §2............ 916 1946, Aug. 13, c. 959, 60 Stat. 1049, §§ 2, 12..... 159 1947, June 23, c. 120, 61 Stat. 136, §101.... 600 1948, June 24, c. 625, 62 Stat. 604, §4 ............. 99,509 §§ 6, 10, 12.... 99,479 June 25, c. 647, 62 Stat. 1009.................. 49 July 1, c. 783, 62 Stat. 1206 ..................... 509 1949, May 24, c. 139, 63 Stat. 89, §58............ 62 1950, Sept. 23, c. 1024, 64 Stat. 987, as amended, § 3........ 183 Dec. 29, c. 1184, 64 Stat. 1125................. 549 1951, June 19, c. 144, 65 Stat. 75, §1............... 509 1952, June 27, c. 477, 66 Stat. 163, as amended, § 203 ...................... 49 §§ 315, 316, 318, 405 ........... 509 June 30, c. 530, 66 Stat. 296, §301.... 183 1953, Aug. 7, c. 336, 67 Stat. 400, §2............ 49 Page 1954, May 11, c. 199, 68 Stat. 81..................... 183 May 25, c. 222, 68 Stat. 120, §48 ........... 637 Sept. 1, c. 1206, 68 Stat. 1052, § 106... 389 Sept. 3, c. 1264, 68 Stat. 1248, §202... 916 1957, Sept. 11, Pub. L. 85- 316, 71 Stat. 639, §15 49 1960, July 14, Pub. L. 86- 648, 74 Stat. 504, §1 49 1963, Aug. 28, Pub. L. 88- 108, 77 Stat. 132.. 570 1964, July 2, Pub. L. 88- 352, 78 Stat. 241, §201 et seq........... 146 §§401, 407.................. 1,39 1965, July 27, Pub. L. 89- 92, 79 Stat. 282.... 183 Aug. 6, Pub. L. 89-110, 79 Stat. 437, §5 .................... 690 Oct. 3, Pub. L. 89-236, 79 Stat. 911, §3 ..................... 49 1966, Oct. 15, Pub. L. 89- 670, 80 Stat. 931, §6 558 1967, June 30, Pub. L. 90- 40, 81 Stat. 100, § 1 99,479 1968, Jan. 2, Pub. L. 90- 248, 81 Stat. 821, § 158 .............. 389 May 29, Pub. L. 90-321, 82 Stat. 146, Tit. II................ 146 Aug. 23, Pub. L. 90-495, 82 Stat. 815, §§30, 37............... 497 1970, Jan. 1, Pub. L. 91- 190, 83 Stat. 852.. 916 1971, Jan. 2, Pub. L. 91- 644, 84 Stat. 1880, §14 62 Jan. 2, Pub. L. 91-646, 84 Stat. 1894, §§ 101, 202-205, 210, 220 ................... 497 TABLE OF STATUTES CITED LXVII Page U. S. Code. Title 5 (Supp. V), § 551 et seq............... 183 §556 ................. 389 Title 8 (1946 ed., Supp. V), § 155............ 509 Title 8, §§ 1101, 1426, 1427, 1429........... 509 Title 8 (Supp. V), §1153 ................. 49 Title 11, §§ 1, 35...... 637 Title 15, §1 549 §2 313 §5 673 § 13a ............... 611 §15 ........... 313 §18 ....... 549,673 §29 ........... 549 Title 16, §§824a, 824d, 824e, 825Z........... 515 Title 18, §32 ................. 146 §242 ................ 611 §659 ................ 146 §834 ................ 558 §§ 1111, 1112, 1151- 1165 .................. 62 § 1201 .......... 146,183 § 1461 .............. 351 §§2312-2315 .......... 146 §3731 .... 62,351,558 Title 18 (Supp. V), §891 et seq........ 146 Title 19, §§ 1305, 1602, 1604, 1652............ 363 Title 23, § 133....... 497 Title 23 (Supp. V), §§502,505,506,511. 497 Title 25, §§70a, 70k... 159 Title 26, §103 600 §7203 ............... 183 §7602 ............... 978 Title 28 (1940 ed.), § 225 .............. 62 Title 28, §§294, 295... 925,1005 § 1252 ......... 415 § 1253 .. 43,47,62,415 § 1257 ..... 415,611 § 1292 ..... 415,530 §§ 1331, 1337..... 570 Page U. S. Code—Continued. Title 28—Continued. § 1651 .......... 673 § 1732 .................. 389 §2101 ................... 962 §§2201, 2202.............. 313 §2281 ................ 47,637 § 2282 ................... 62 Title 29, §§ 104, 107, 108.... 570 § 152 ................... 600 § 158 ............... 570,600 Title 33, §§ 701, 701b-8, 701m................ 916 Title 35, §§ 101-103, 282, 285, 288 ...... 313 Title 41, §§ 43a, 321, 322 ................ 183 Title 42, §405 ................ 389 §418 .................... 600 §421 .................... 389 §§ 501 - 503, 1 101-1105 ......... 121 § 1401 et seq..... 137 §§ 2000c, 2000c-6.. 1,39 Title 42 (Supp. V), §§416, 423.......... 389 § 1973c ................. 690 §4331 et seq..............916 Title 45, §§151, 152, 155, 156, 160....... 570 Title 49 (Supp. V), § 1655 ............. 558 Title 50, §782........... 183 Title 50 (Supp. V), §782 ............... 183 Title 50 App. (1946 ed., Supp. Ill), §454... 509 Title 50 App. (1952 ed.), §454.......... 509 Title 50 App., § 454 ............ 99 §456 .................... 479 § 460 ...................... 99 Title 50 App. (Supp. V), §456................ 99,479 §460 .................... 479 §462 ................. 99,479 Administrative Procedure Act ................... 183,389 All Writs Act............ 673 Bankruptcy Act........... 637 Business Records Act......389 LXVIII TABLE OF STATUTES CITED Page Page Circuit Court of Appeals Act ..................... 62 Civil Rights Act of 1964... 1, 39,146 Clayton Act...... 313,549,673 Consumer Credit Protection Act ....................... 146 Criminal Appeals Act...... 62, 351,558 Declaratory Judgment Act. 313 Department of Transporta- tion Act................. 558 Displaced Persons Act of 1948 ...................... 49 Expediting Act.......... 549 Fair Share Refugee Act.. 49 Federal-Aid Highway Act of 1968 ................... 497 Federal Communications Act .................... 965 Federal Corrupt Practices Act ........................ 62 Federal Kidnaping Act.... 183 Federal Power Act......... 515 Immigration Act of 1917... 509 Immigration and Nationality Act.............. 49,509 Indian Claims Commission Act .................... 159 Internal Revenue Code of 1954, § 103 ................... 600 §7203 ................... 183 § 7602 .................. 978 Judicial Code.... 43,47,62,313, 389, 415, 530, 570, 611, 637, 673, 925, 962,1005 Jurisdictional Acts of 1909, 1938 .................... 159 Labor Management Rela- tions Act, 1947........... 600 Longshoremen’s and Harbor Workers’ Compensation Act ..................... 389 Military Selective Service Act of 1967............ 99,479 National Environmental Pol- icy Act of 1969........... 916 National Labor Relations Act ............. 389,570,600 National Prohibition Act... 424 Norris-LaGuardia Act...... 570 Omnibus Crime Control Act of 1970.................... 62 Patent Code................. 313 Railway Labor Act......... 570 Refugee Relief Act of 1953. 49 Renegotiation Act of 1942.. 183 Revenue Act of 1921....... 424 Selective Service Act of 1948 .............. 99,479,509 Sherman Act......... 313,549,673 Social Security Act. 121,389,600 Tariff Act of 1930.. 363 Transportation Act, 1920... 570 Uniform Relocation Assist- ance and Real Property Acquisition Policies Act of 1970................... 497 United States Housing Act of 1937.................. 137 Universal Military Training and Service Act............ 509 Voting Rights Act of 1965. 690 (B) Constitutions and Statutes of the States and the District of Columbia Alabama. Code, Tit. 36, § 74.... 637 Alaska. Stat. §§28.20.010, 28.-20.350 ................ 637 Arizona. Rev. Stat. Ann. §§ 25-211, 25-214, 25-215, 28-1101, 28-1102, 28-1141 to 28-1144, 28-1161 to 28-1165, 28-1167 to 28-1178, 28-1222, 33-1124.......... 637 Arizona—Continued. Motor Vehicle Safety Responsibility Act, Arts. 1-4.............. 637 Arkansas. Stat. Ann. §75-1457... 637 California. Const. (1849), Art. VIII. 137 Const., Art. I, §7........ 183 Const., Arts. IV, §§ 1, 24; XI, §2; XIII, §40; XVIII; XXX- IV, §1..................... 137 TABLE OF STATUTES CITED LXIX Page California—Continued. Amendatory Acts 1873- 1874, c. 508, p. 457.. 183 Laws 1965, c. 872......... 424 Evidence Code.............. 622 Govt. Code §§ 815.2, 844.6 ............... 992 Health & Safety Code §§33701 et seq., 34240 ............... 137 Penal Code §§ 190.1, 1181, 1239, 4500.... 183 Unemp. Ins. Code §§ 976-978,1025-1032, 1251 et seq., 1281, 1327, 1328, 1334—1338, 1380, 2739........... 121 Vehicle Code §§ 1-42275 ............... 424 Vehicle Code § 16372.. 637 Colorado. Rev. Stat. Ann. § 13—7— 25 .................. 637 Rev. Stat. Ann. §§ 39- 19-1 to 39-19-10... 183 Sex Offenders Act.......... 183 Connecticut. Gen. Stat. Rev. § 14-131 ................. 637 Gen. Stat. Rev. § 53a-46 .................. 183 Delaware. Code Ann., Tit. 21, §2943 ............... 637 District of Columbia. Code (1901), §935.... 62 Code Ann. §§22-201, 23-105 ............... 62 Code Ann. §40-464... 637 Motor Vehicle Safety Responsibility Act... 637 Owners’ Financial Responsibility Act..... 637 Florida. Stat. §324.131............ 637 Georgia. Laws 1970, No. 1333, p. 949............... 183 Code Ann. § 92A-601 et seq............... 535 Code Ann. §92A-605.. 637 Motor Vehicle Safety Responsibility Act... 535, 637 Page Hawaii. Rev. Stat. §287-17.... 637 Idaho. Code §49-1514............. 637 Illinois. Const., Art. 6, §5........ 415 Ann. Stat., c. 95%, §7-310 .............. 637 Indiana. Ann. Stat. §47-1049.. 637 Iowa. Code §321A.14............ 637 Kansas. Stat. Ann. §8-744.... 637 Kentucky. Rev. Stat. § 187.420... 637 Louisiana. Rev. Stat. Ann. §32: 893 ................. 637 Maine. Rev. Stat. Ann., Tit. 29, §783........... 637 Maryland. Ann. Code, Art. 66A, §24 ................. 363 Ann. Code, Art. 66%, §7-315 .............. 637 Massachusetts. Gen. Laws Ann., c. 90, § 22A...................... 637 Michigan. Comp. Laws §257.513. 637 Minnesota. Stat. § 170.33............ 637 Mississippi. Code Ann. §8285-14.. 637 Missouri. Rev. Stat. §303.110... 637 Montana. Rev. Codes Ann. § 53- 431 ....................... 637 Nebraska. Rev. Stat. §60-519.... 637 Nevada. Rev. Stat. §485.303... 637 New Hampshire. Rev. Stat. Ann. § 268:9. 637 New Jersey. Stat. Ann. § 39:6-35... 637 New Mexico. Stat. Ann. §§ 40A-29- 2.1, 40A-29-2.2..... 183 Stat. Ann. § 64-24-78.. 637 LXX TABLE OF STATUTES CITED Page New York. Penal Law §65.00........... 183 Penal Law § 125.05.... 62 Penal Law §§ 125.30, 125.35 ................ 183 Veh. & Traf. Law § 337. 637 North Carolina. Gen. Stat. §20-279.14 . 637 Gen. Stat. § 115-176.1. 43 Gen. Stat. §115-186... 1 North Dakota. Cent. Code §39-16.1-04 ................. 637 Ohio. Laws 1898, p. 223........ 183 Rev. Code Ann. §§ 2901.01, 2945.06, 2945.40, 2947.05, 2947.06 ............ 183 Rev. Code Ann. §4509.43 ................. 637 Oklahoma. Stat. Ann., Tit. 47, § 7-315 ................ 637 Oregon. Rev. Stat. §486.211... 637 Pennsylvania. Laws 1794, c. 1777.... 183 Act of Mar. 20, 1797, 3 Smith’s Laws 281... 183 Stat. Ann., Tit. 18, §§4406, 4701, 4716.. 183 Stat. Ann., Tit. 75, §1414 ................ 637 Rhode Island. Gen. Laws Ann. § 31-32-15 ................ 637 Page South Carolina. Code Ann. §46-748... 637 South Dakota. Comp. Laws Ann. § 32-35-58 .............. 637 Tennessee. Laws 1837-1838, c. 29. 183 Code Ann. §§ 6-2601 to 6-2627, 8-2701, 8-2708 to 8-2710...... 600 Code Ann. §59-1236.. 637 Utility District Law of 1937 ............. 600 Texas. Code Crim. Proc., Art. 37.07 .............. 183 Rev. Civ. Stat. Ann., Art. 6701h, § 14.... 637 Utah. Code Ann. § 41-12-15.. 637 Motor Vehicle Safety Responsibility Act... 637 Vermont. Stat. Ann., Tit. 23, §802 ................. 637 Virginia. Code Ann. §46.1-444.. 637 Washington. Rev. Code §46.29.380.. 637 Rev. Code §§ 74.04.055, 74.23.005, 74.23.900. 1000 West Virginia. Code Ann. § 17D-4-6.. 637 Wisconsin. Stat. §344.26.............. 637 Wyoming. Stat. Ann. §31-299... 637 1863, Oct. 7, 13 Stat. 673 (Treaty with the Tabe-guache Band of Utah Indians) ................ 159 (D) Forei England. Magna Carta............. 183 6 Edw. 1, c. 9......... 183 23 Hen. 8, c. 1, §§ 3, 4.. 183 1868, Mar. 2, 15 Stat. 619 (Treaty with the Ute Indians) ............... 159 Statutes England—Continued. 1 Edw. 6, c. 12, § 10... 183 59 Geo. 3, c. 46.......... 183 Statute of Gloucester.. 183 (C) Treaties CASES ADJUDGED IN THE SUPBEME COUBT OF THE UNITED STATES AT OCTOBER TERM, 1970 SWANN et al. v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 281. Argued October 12, 1970—Decided April 20, 1971* The Charlotte-Mecklenburg school system, which includes the city of Charlotte, North Carolina, had more than 84,000 students in 107 schools in the 1968-1969 school year. Approximately 29% (24,000) of the pupils were Negro, about 14,000 of whom attended 21 schools that were at least 99% Negro. This resulted from a desegregation plan approved by the District Court in 1965, at the commencement of this litigation. In 1968 petitioner Swann moved for further relief based on Green v. County School Board, 391 U. S. 430, which required school boards to “come forward with a plan that promises realistically to work . . . now . . . until it is clear that state-imposed segregation has been completely removed.” The District Court ordered the school board in April 1969 to provide a plan for faculty and student desegregation. Finding the board’s submission unsatisfactory, the District Court appointed an expert to submit a desegregation plan. In February 1970, the expert and the board presented plans, and the court adopted the board’s plan, as modified, for the junior and senior high schools, and the expert’s proposed plan for the elementary schools. The Court of Appeals affirmed the District Court’s order as to faculty desegregation and the secondary school plans, *Together with No. 349, Charlotte-Mecklenburg Board of Education et al. v. Swann et al., also on certiorari to the same court. 1 2 OCTOBER TERM, 1970 Syllabus 402 U. S. but vacated the order respecting elementary schools, fearing that the provisions for pairing and grouping of elementary schools would unreasonably burden the pupils and the board. The case was remanded to the District Court for reconsideration and submission of further plans. This Court granted certiorari and directed reinstatement of the District Court’s order pending further proceedings in that court. On remand the District Court received two new plans, and ordered the board to adopt a plan, or the expert’s plan would remain in effect. After the board “acquiesced” in the expert’s plan, the District Court directed that it remain in effect. Held: 1. Today’s objective is to eliminate from the public schools all vestiges of state-imposed segregation that was held violative of equal protection guarantees by Brown v. Board of Education, 347 U. S. 483, in 1954. P. 15. 2. In default by the school authorities of their affirmative obligation to proffer acceptable remedies, the district courts have broad power to fashion remedies that will assure unitary school systems. P. 16. 3. Title IV of the Civil Rights Act of 1964 does not restrict or withdraw from the federal courts their historic equitable remedial powers. The proviso in 42 U. S. C. § 2000c-6 was designed simply to foreclose any interpretation of the Act as expanding the existing powers of the federal courts to enforce the Equal Protection Clause. Pp. 16-18. 4. Policy and practice with regard to faculty, staff, transportation, extracurricular activities, and facilities are among the most important indicia of a segregated system, and the first remedial responsibility of school authorities is to eliminate invidious racial distinctions in those respects. Normal administrative practice should then produce schools of like quality, facilities, and staffs. Pp. 18-19. 5. The Constitution does not prohibit district courts from using their equity power to order assignment of teachers to achieve a particular degree of faculty desegregation. United States v. Montgomery County Board of Education, 395 U. S. 225, was properly followed by the lower courts in this case. Pp. 19-20. 6. In devising remedies to eliminate legally imposed segregation, local authorities and district courts must see to it that future school construction and abandonment are not used and do not serve to perpetuate or re-establish a dual system. Pp. 20-21. SWANN v. BOARD OF EDUCATION 3 Syllabus 7. Four problem areas exist on the issue of student assignment: (1) Racial quotas. The constitutional command to desegregate schools does not mean that every school in the community must always reflect the racial composition of the system as a whole; here the District Court’s very limited use of the racial ratio—not as an inflexible requirement, but as a starting point in shaping a remedy—was within its equitable discretion. Pp. 22-25. (2) One-race schools. While the existence of a small number of one-race, or virtually one-race, schools does not in itself denote a system that still practices segregation by law, the court should scrutinize such schools and require the school authorities to satisfy the court that the racial composition does not result from present or past discriminatory action on their part. Pp. 25-26. An optional majority-to-minority transfer provision has long been recognized as a useful part of a desegregation plan, and to be effective such arrangement must provide the transferring student free transportation and available space in the school to which he desires to move. Pp. 26-27. (3) Attendance zones. The remedial altering of attendance zones is not, as an interim corrective measure, beyond the remedial powers of a district court. A student assignment plan is not acceptable merely because it appears to be neutral, for such a plan may fail to counteract the continuing effects of past school segregation. The pairing and grouping of noncontiguous zones is a permissible tool; judicial steps going beyond contiguous zones should be examined in light of the objectives to be sought. No rigid rules can be laid down to govern conditions in different localities. Pp. 27-29. (4) Transportation. The District Court’s conclusion that assignment of children to the school nearest their home serving their grade would not effectively dismantle the dual school system is supported by the record, and the remedial technique of requiring bus transportation as a tool of school desegregation was within that court’s power to provide equitable relief. An objection to transportation of students may have validity when the time or distance of travel is so great as to risk either the health of the children or significantly impinge on the educational process; limits on travel time will vary with many factors, but probably with none more than the age of the students. Pp. 29-31. 4 OCTOBER TERM, 1970 Syllabus 402 U. S. 8. Neither school authorities nor district courts are constitutionally required to make year-by-year adjustments of the racial composition of student bodies once a unitary system has been achieved. Pp. 31-32. 431 F. 2d 138, affirmed as to those parts in which it affirmed the District Court’s judgment. The District Court’s order of August 7,1970, is also affirmed. Burger, C. J., delivered the opinion for a unanimous Court. Julius LeVonne Chambers and James M. Nabrit III argued the cause for petitioners in No. 281 and respondents in No. 349. With them on the briefs were Jack Greenberg, Norman J. Chachkin, C. 0. Pearson, and Anthony G. Amsterdam. William J. Wagonner and Benjamin S. Horack argued the cause and filed briefs for respondents in No. 281 and petitioners in No. 349. Solicitor General Griswold argued the cause for the United States as amicus curiae in both cases. With him on the brief was Assistant Attorney General Leonard. Briefs of amici curiae in No. 281 were filed by Earl Faircloth, Attorney General, Robert J. Kelly, Deputy Attorney General, Ronald W. Sabo, Assistant Attorney General, and Rivers Buford for the State of Florida; by Andrew P. Miller, Attorney General, William G. Broaddus and Theodore J. Markow, Assistant Attorneys General, Lewis F. Powell, Jr., John W. Riely, and Guy K. Tower for the Commonwealth of Virginia; by Claude R. Kirk, Jr., pro se, and Gerald Mager for Claude R. Kirk, Jr., Governor of Florida; by W. F. Womble for the Winston-Salem/Forsyth County Board of Education; by Raymond B. Witt, Jr., and Eugene N. Collins for the Chattanooga Board of Education; by Kenneth W. Cleary for the School Board of Manatee County, Florida; by W. Crosby Few and John M. Allison for the School Board of Hillsborough County, Florida; by Sam J. Ervin, SWANN v. BOARD OF EDUCATION 5 1 Opinion of the Court Jr., Charles R. Jonas, and Ernest F. Hollings for the Classroom Teachers Association of the Charlotte-Mecklenburg School System, Inc.; by Mark Wells White, Jr., for Mrs. H. W. Cullen et al., members of the Board of Education of the Houston Independent School District; by Jack Petree for the Board of Education of Memphis City Schools; by Sherwood W. Wise for the Jackson Chamber of Commerce, Inc., et al.; by Stephen J. Pollak, Benjamin W. Boley, and David Rubin for the National Education Association; by William L. Taylor, Richard B. Sobol, and Joseph L. Rauh, Jr., for the United Negro College Fund, Inc., et al.; by Owen H. Page for Concerned Citizens Association, Inc.; by Charles S. Conley, Floyd B. McKissick, and Charles S. Scott for the Congress of Racial Equality; by the Tennessee Federation for Constitutional Government et al.; by William C. Cramer, pro se, and Richard B. Peet, joined by Albert W. Watson et al., for William C. Cramer; by Charles E. Bennett, pro se, James C. Rinaman, Jr., and Yardley D. Buckman for Charles E. Bennett; by Calvin H. Childress and M. T. Bohannon, Jr., for David E. Allgood et al.; by William B. Spong, Jr., and by Newton Collier Estes. Mr. Chief Justice Burger delivered the opinion of the Court. We granted certiorari in this case to review important issues as to the duties of school authorities and the scope of powers of federal courts under this Court’s mandates to eliminate racially separate public schools established and maintained by state action. Brown v. Board of Education, 347 U. S. 483 (1954) (Brown I). This case and those argued with it1 arose in States having a long history of maintaining two sets of schools in a 1 McDaniel n. Barresi, No. 420, post, p. 39; Davis v. Board of School Commissioners of Mobile County, No. 436, post, p. 33; Moore v. Charlotte-Mecklenburg Board of Education, No. 444, post, 6 OCTOBER TERM, 1970 Opinion of the Court 402U.S. single school system deliberately operated to carry out a governmental policy to separate pupils in schools solely on the basis of race. That was what Brown v. Board of Education was all about. These cases present us with the problem of defining in more precise terms than heretofore the scope of the duty of school authorities and district courts in implementing Brown I and the mandate to eliminate dual systems and establish unitary systems at once. Meanwhile district courts and courts of appeals have struggled in hundreds of cases with a multitude and variety of problems under this Court’s general directive. Understandably, in an area of evolving remedies, those courts had to improvise and experiment without detailed or specific guidelines. This Court, in Brown I, appropriately dealt with the large constitutional principles; other federal courts had to grapple with the flinty, intractable realities of day-to-day implementation of those constitutional commands. Their efforts, of necessity, embraced a process of “trial and error,” and our effort to formulate guidelines must take into account their experience. I The Charlotte-Mecklenburg school system, the 43d largest in the Nation, encompasses the city of Charlotte and surrounding Mecklenburg County, North Carolina. The area is large—550 square miles—spanning roughly 22 miles east-west and 36 miles north-south. During the 1968-1969 school year the system served more than 84,000 pupils in 107 schools. Approximately 71% of the pupils were found to be white and 29% Negro. As of p. 47; North Carolina State Board of Education v. Swann, No. 498, post, p. 43. For purposes of this opinion the cross-petitions in Nos. 281 and 349 are treated as a single case and will be referred-to as “this case.” SWANN v. BOARD OF EDUCATION 7 1 Opinion of the Court June 1969 there were approximately 24,000 Negro students in the system, of whom 21,000 attended schools within the city of Charlotte. Two-thirds of those 21,000—approximately 14,000 Negro students—attended 21 schools which were either totally Negro or more than 99% Negro. This situation came about under a desegregation plan approved by the District Court at the commencement of the present litigation in 1965, 243 F. Supp. 667 (WDNC), aff’d, 369 F. 2d 29 (CA4 1966), based upon geographic zoning with a free-transfer provision. The present proceedings were initiated in September 1968 by petitioner Swann’s motion for further relief based on Green v. County School Board, 391 U. S. 430 (1968), and its companion cases.2 All parties now agree that in 1969 the system fell short of achieving the unitary school system that those cases require. The District Court held numerous hearings and received voluminous evidence. In addition to finding certain actions of the school board to be discriminatory, the court also found that residential patterns in the city and county resulted in part from federal, state, and local government action other than school board decisions. School board action based on these patterns, for example, by locating schools in Negro residential areas and fixing the size of the schools to accommodate the needs of immediate neighborhoods, resulted in segregated education. These findings were subsequently accepted by the Court of Appeals. In April 1969 the District Court ordered the school board to come forward with a plan for both faculty and student desegregation. Proposed plans were accepted by the court in June and August 1969 on an interim basis 2 Raney v. Board of Education, 391 U. S. 443 (1968), and Monroe v. Board of Commissioners, 391 U. S. 450 (1968). 8 OCTOBER TERM, 1970 Opinion of the Court 402U.S. only, and the board was ordered to file a third plan by November 1969. In November the board moved for an extension of time until February 1970, but when that was denied the board submitted a partially completed plan. In December 1969 the District Court held that the board’s submission was unacceptable and appointed an expert in education administration, Dr. John Finger, to prepare a desegregation plan. Thereafter in February 1970, the District Court was presented with two alternative pupil assignment plans—the finalized “board plan” and the “Finger plan.” The Board Plan. As finally submitted, the school board plan closed seven schools and reassigned their pupils. It restructured school attendance zones to achieve greater racial balance but maintained existing grade structures and rejected techniques such as pairing and clustering as part of a desegregation effort. The plan created a single athletic league, eliminated the previously racial basis of the school bus system, provided racially mixed faculties and administrative staffs, and modified its free-transfer plan into an optional majority-to-minority transfer system. The board plan proposed substantial assignment of Negroes to nine of the system’s 10 high schools, producing 17% to 36% Negro population in each. The projected Negro attendance at the 10th school, Independence, was 2%. The proposed attendance zones for the high schools were typically shaped like wedges of a pie, extending outward from the center of the city to the suburban and rural areas of the county in order to afford residents of the center city area access to outlying schools. As for junior high schools, the board plan rezoned the 21 school areas so that in 20 the Negro attendance would range from 0% to 38%. The other school, located in the heart of the Negro residential area, was left with an enrollment of 90% Negro. SWANN v. BOARD OF EDUCATION 9 1 Opinion of the Court The board plan with respect to elementary schools relied entirely upon gerrymandering of geographic zones. More than half of the Negro elementary pupils were left in nine schools that were 86% to 100% Negro; approximately half of the white elementary pupils were assigned to schools 86% to 100% white. The Finger Plan. The plan submitted by the court-appointed expert, Dr. Finger, adopted the school board zoning plan for senior high schools with one modification: it required that an additional 300 Negro students be transported from the Negro residential area of the city to the nearly all-white Independence High School. The Finger plan for the junior high schools employed much of the rezoning plan of the board, combined with the creation of nine “satellite” zones.3 Under the satellite plan, inner-city Negro students were assigned by attendance zones to nine outlying predominately white junior high schools, thereby substantially desegregating every junior high school in the system. The Finger plan departed from the board plan chiefly in its handling of the system’s 76 elementary schools. Rather than relying solely upon geographic zoning, Dr. Finger proposed use of zoning, pairing, and grouping techniques, with the result that student bodies throughout the system would range from 9% to 38% Negro.4 The District Court described the plan thus: “Like the board plan, the Finger plan does as much by rezoning school attendance lines as can reasonably 3 A “satellite zone” is an area which is not contiguous with the main attendance zone surrounding the school. 4 In its opinion and order of December 1, 1969, later incorporated in the order appointing Dr. Finger as consultant, the District Court stated: “Fixed ratios of pupils in particular schools will not be set. If the board in one of its three tries had presented a plan for desegregation, the court would have sought ways to approve varia 10 OCTOBER TERM, 1970 Opinion of the Court 402 U. S. be accomplished. However, unlike the board plan, it does not stop there. It goes further and desegregates all the rest of the elementary schools by the technique of grouping two or three outlying schools with one black inner city school; by transporting black students from grades one through four to the outlying white schools; and by transporting white students from the fifth and sixth grades from the outlying white schools to the inner city black school.” Under the Finger plan, nine inner-city Negro schools were grouped in this manner with 24 suburban white schools. On February 5, 1970, the District Court adopted, the board plan, as modified by Dr. Finger, for the junior and senior high schools. The court rejected the board elementary school plan and adopted the Finger plan as presented. Implementation was partially stayed by the Court of Appeals for the Fourth Circuit on March 5, and this Court declined to disturb the Fourth Circuit’s order, 397 U. S. 978 (1970). On appeal the Court of Appeals affirmed the District Court’s order as to faculty desegregation and the secondary school plans, but vacated the order respecting elementary schools. While agreeing that the District Court properly disapproved the board plan concerning these schools, the Court of Appeals feared that the pairing and grouping of elementary schools would place an unreasonable burden on the board and the system’s pupils. The case was remanded to the District Court for reconsideration and submission of further plans. 431 F. 2d tions in pupil ratios. In default of any such plan from the school board, the court will start with the thought . . . that efforts should be made to reach a 71-29 ratio in the various schools so that there will be no basis for contending that one school is racially different from the others, but to understand that variations from that norm may be unavoidable.” 306 F. Supp. 1299, 1312. SWANN v. BOARD OF EDUCATION 11 1 Opinion of the Court 138. This Court granted certiorari, 399 U. S. 926, and directed reinstatement of the District Court’s order pending further proceedings in that court. On remand the District Court received two new plans for the elementary schools: a plan prepared by the United States Department of Health, Education, and Welfare (the HEW plan) based on contiguous grouping and zoning of schools, and a plan prepared by four members of the nine-member school board (the minority plan) achieving substantially the same results as the Finger plan but apparently with slightly less transportation. A majority of the school board declined to amend its proposal. After a lengthy evidentiary hearing the District Court concluded that its own plan (the Finger plan), the minority plan, and an earlier draft of the Finger plan were all reasonable and acceptable. It directed the board to adopt one of the three or in the alternative to come forward with a new, equally effective plan of its own; the court ordered that the Finger plan would remain in effect in the event the school board declined to adopt a new plan. On August 7, the board indicated it would “acquiesce” in the Finger plan, reiterating its view that the plan was unreasonable. The District Court, by order dated August 7, 1970, directed that the Finger plan remain in effect. II Nearly 17 years ago this Court held, in explicit terms, that state-imposed segregation by race in public schools denies equal protection of the laws. At no time has the Court deviated in the slightest degree from that holding or its constitutional underpinnings. None of the parties before us challenges the Court’s decision of May 17, 1954, that “in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal. Therefore, 419-882 0 - 72 -6 12 OCTOBER TERM, 1970 Opinion of the Court 402 U. S. we hold that the plaintiffs and others similarly situated . . . are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. . . . “Because these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity.” Brown v. Board of Education, supra, at 495. None of the parties before us questions the Court’s 1955 holding in Brown II, that “School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles. Because of their proximity to local conditions and the possible need for further hearings, the courts which originally heard these cases can best perform this judicial appraisal. Accordingly, we believe it appropriate to remand the cases to those courts. “In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs. These cases call for the exercise of these traditional attributes of equity power. At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis. To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision. Courts of SWANN v. BOARD OF EDUCATION 13 1 Opinion of the Court equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.” Brown v. Board of Education, 349 U. S. 294, 299-300 (1955). Over the 16 years since Brown II, many difficulties were encountered in implementation of the basic constitutional requirement that the State not discriminate between public school children on the basis of their race. Nothing in our national experience prior to 1955 prepared anyone for dealing with changes and adjustments of the magnitude and complexity encountered since then. Deliberate resistance of some to the Court’s mandates has impeded the good-faith efforts of others to bring school systems into compliance. The detail and nature of these dilatory tactics have been noted frequently by this Court and other courts. By the time the Court considered Green v. County School Board, 391 U. S. 430, in 1968, very little progress had been made in many areas where dual school systems had historically been maintained by operation of state laws. In Green, the Court was confronted with a record of a freedom-of-choice program that the District Court had found to operate in fact to preserve a dual system more than a decade after Brown II. While acknowledging that a freedom-of-choice concept could be a valid remedial measure in some circumstances, its failure to be effective in Green required that: “The burden on a school board today is to come forward with a plan that promises realistically to work . . . now . . . until it is clear that state-imposed segregation has been completely removed.” Green, supra, at 439. 14 OCTOBER TERM, 1970 Opinion of the Court 402 IT. S. This was plain language, yet the 1969 Term of Court brought fresh evidence of the dilatory tactics of many school authorities. Alexander v. Holmes County Board of Education, 396 U. S. 19, restated the basic obligation asserted in Griffin N. School Board, 377 U. S. 218, 234 (1964), and Green, supra, that the remedy must be implemented forthwith. The problems encountered by the district courts and courts of appeals make plain that we should now try to amplify guidelines, however incomplete and imperfect, for the assistance of school authorities and courts.5 The failure of local authorities to meet their constitutional obligations aggravated the massive problem of converting from the state-enforced discrimination of racially separate school systems. This process has been rendered more difficult by changes since 1954 in the structure and patterns of communities, the growth of student population,6 movement of families, and other changes, some of which had marked impact on school planning, sometimes neutralizing or negating remedial action before it was fully implemented. Rural areas accustomed for half a century to the consolidated school systems implemented by bus transportation could make adjustments more readily than metropolitan areas with dense and shifting population, numerous schools, congested and complex traffic patterns. 5 The necessity for this is suggested by the situation in the Fifth Circuit where 166 appeals in school desegregation cases were heard between December 2, 1969, and September 24, 1970. 6 Elementary public school population (grades 1-6) grew from 17,447,000 in 1954 to 23,103,000 in 1969; secondary school population (beyond grade 6) grew from 11,183,000 in 1954 to 20,775,000 in 1969. Digest of Educational Statistics, Table 3, Office of Education Pub. 10024-64; Digest of Educational Statistics, Table 28, Office of Education Pub. 10024r-70. SWANN v. BOARD OF EDUCATION 15 1 Opinion of the Court III The objective today remains to eliminate from the public schools all vestiges of state-imposed segregation. Segregation was the evil struck down by Brown I as contrary to the equal protection guarantees of the Constitution. That was the violation sought to be corrected by the remedial measures of Brown II. That was the basis for the holding in Green that school authorities are “clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.” 391 U. S., at 437-438. If school authorities fail in their affirmative obligations under these holdings, judicial authority may be invoked. Once a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies. “The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims.” Hecht Co. v. Bowles, 321 U. S. 321, 329-330 (1944), cited in Brown II, supra, at 300. This allocation of responsibility once made, the Court attempted from time to time to provide some guidelines for the exercise of the district judge’s discretion and for the reviewing function of the courts of appeals. However, a school desegregation case does not differ fundamentally from other cases involving the framing of 16 OCTOBER TERM, 1970 Opinion of the Court 402 U. S. equitable remedies to repair the denial of a constitutional right. The task is to correct, by a balancing of the individual and collective interests, the condition that offends the Constitution. In seeking to define even in broad and general terms how far this remedial power extends it is important to remember that judicial powers may be exercised only on the basis of a constitutional violation. Remedial judicial authority does not put judges automatically in the shoes of school authorities whose powers are plenary. Judicial authority enters only when local authority defaults. School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities; absent a finding of a constitutional violation, however, that would not be within the authority of a federal court. As with any equity case, the nature of the violation determines the scope of the remedy. In default by the school authorities of their obligation to proffer acceptable remedies, a district court has broad power to fashion a remedy that will assure a unitary school system. The school authorities argue that the equity powers of federal district courts have been limited by Title IV of the Civil Rights Act of 1964, 42 U. S. C. § 2000c. The language and the history of Title IV show that it was enacted not to limit but to define the role of the Federal Government in the implementation of the Brown I decision. It authorizes the Commissioner of Education to provide technical assistance to local boards in the preparation of desegregation plans, to arrange “training insti- SWANN v. BOARD OF EDUCATION 17 1 Opinion of the Court tutes” for school personnel involved in desegregation efforts, and to make grants directly to schools to ease the transition to unitary systems. It also authorizes the Attorney General, in specified circumstances, to initiate federal desegregation suits. Section 2000c (b) defines “desegregation” as it is used in Title IV: “ ‘Desegregation’ means the assignment of students to public schools and within such schools without regard to their race, color, religion, or national origin, but ‘desegregation’ shall not mean the assignment of students to public schools in order to overcome racial imbalance.” Section 2000c-6, authorizing the Attorney General to institute federal suits, contains the following proviso: “nothing herein shall empower any official or court of the United States to issue any order seeking to achieve a racial balance in any school by requiring the transportation of pupils or students from one school to another or one school district to another in order to achieve such racial balance, or otherwise enlarge the existing power of the court to insure compliance with constitutional standards.” On their face, the sections quoted purport only to insure that the provisions of Title IV of the Civil Rights Act of 1964 will not be read as granting new powers. The proviso in § 2000c-6 is in terms designed to foreclose any interpretation of the Act as expanding the existing powers of federal courts to enforce the Equal Protection Clause. There is no suggestion of an intention to restrict those powers or withdraw from courts their historic equitable remedial powers. The legislative history of Title IV indicates that Congress was concerned that the Act might be read as creating a right of action under the Fourteenth Amendment in the situation of so-called “de facto segregation,” where racial imbalance exists in the 18 OCTOBER TERM, 1970 Opinion of the Court 402U.S. schools but with no showing that this was brought about by discriminatory action of state authorities. In short, there is nothing in the Act that provides us material assistance in answering the question of remedy for state-imposed segregation in violation of Brown I. The basis of our decision must be the prohibition of the Fourteenth Amendment that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” IV We turn now to the problem of defining with more particularity the responsibilities of school authorities in desegregating a state-enforced dual school system in light of the Equal Protection Clause. Although the several related cases before us are primarily concerned with problems of student assignment, it may be helpful to begin with a brief discussion of other aspects of the process. In Green, we pointed out that existing policy and practice with regard to faculty, staff, transportation, extracurricular activities, and facilities were among the most important indicia of a segregated system. 391 U. S., at 435. Independent of student assignment, where it is possible to identify a “white school” or a “Negro school” simply by reference to the racial composition of teachers and staff, the quality of school buildings and equipment, or the organization of sports activities, a prima facie case of violation of substantive constitutional rights under the Equal Protection Clause is shown. When a system has been dual in these respects, the first remedial responsibility of school authorities is to eliminate invidious racial distinctions. With respect to such matters as transportation, supporting personnel, and extracurricular activities, no more than this may be necessary. Similar corrective action must be taken with regard to the maintenance of buildings and the distribution of equipment. In these areas, normal administra- SWANN v. BOARD OF EDUCATION 19 1 Opinion of the Court tive practice should produce schools of like quality, facilities, and staffs. Something more must be said, however, as to faculty assignment and new school construction. In the companion Davis case, post, p. 33, the Mobile school board has argued that the Constitution requires that teachers be assigned on a “color blind” basis. It also argues that the Constitution prohibits district courts from using their equity power to order assignment of teachers to achieve a particular degree of faculty desegregation. We reject that contention. In United States v. Montgomery County Board of Education, 395 U. S. 225 (1969), the District Court set as a goal a plan of faculty assignment in each school with a ratio of white to Negro faculty members substantially the same throughout the system. This order was predicated on the District Court finding that: “The evidence does not reflect any real administrative problems involved in immediately desegregating the substitute teachers, the student teachers, the night school faculties, and in the evolvement of a really legally adequate program for the substantial desegregation of the faculties of all schools in the system commencing with the school year 1968-69.” Quoted at 395 U. S., at 232. The District Court in Montgomery then proceeded to set an initial ratio for the whole system of at least two Negro teachers out of each 12 in any given school. The Court of Appeals modified the order by eliminating what it regarded as “fixed mathematical” ratios of faculty and substituted an initial requirement of “substantially or approximately” a five-to-one ratio. With respect to the future, the Court of Appeals held that the numerical ratio should be eliminated and that compliance should not be tested solely by the achievement of specified proportions. Id., at 234. 20 OCTOBER TERM, 1970 Opinion of the Court 402 U. S. We reversed the Court of Appeals and restored the District Court’s order in its entirety, holding that the order of the District Judge “was adopted in the spirit of this Court’s opinion in Green ... in that his plan ‘promises realistically to work, and promises realistically to work now.’ The modifications ordered by the panel of the Court of Appeals, while of course not intended to do so, would, we think, take from the order some of its capacity to expedite, by means of specific commands, the day when a completely unified, unitary, nondis-criminatory school system becomes a reality instead of a hope. ... We also believe that under all the circumstances of this case we follow the original plan outlined in Brown II ... by accepting the more specific and expeditious order of [District] Judge Johnson . . . .” 395 U. S., at 235-236 (emphasis in original). The principles of Montgomery have been properly followed by the District Court and the Court of Appeals in this case. The construction of new schools and the closing of old ones are two of the most important functions of local school authorities and also two of the most complex. They must decide questions of location and capacity in light of population growth, finances, land values, site availability, through an almost endless list of factors to be considered. The result of this will be a decision which, when combined with one technique or another of student assignment, will determine the racial composition of the student body in each school in the system. Over the long run, the consequences of the choices will be far reaching. People gravitate toward school facilities, just as schools are located in response to the needs of people. The location of schools may thus influence SWANN v. BOARD OF EDUCATION 21 1 Opinion of the Court the patterns of residential development of a metropolitan area and have important impact on composition of inner-city neighborhoods. In the past, choices in this respect have been used as a potent weapon for creating or maintaining a state-segregated school system. In addition to the classic pattern of building schools specifically intended for Negro or white students, school authorities have sometimes, since Brown, closed schools which appeared likely to become racially mixed through changes in neighborhood residential patterns. This was sometimes accompanied by building new schools in the areas of white suburban expansion farthest from Negro population centers in order to maintain the separation of the races with a minimum departure from the formal principles of “neighborhood zoning.” Such a policy does more than simply influence the short-run composition of the student body of a new school. It may well promote segregated residential patterns which, when combined with “neighborhood zoning,” further lock the school system into the mold of separation of the races. Upon a proper showing a district court may consider this in fashioning a remedy. In ascertaining the existence of legally imposed school segregation, the existence of a pattern of school construction and abandonment is thus a factor of great weight. In devising remedies where legally imposed segregation has been established, it is the responsibility of local authorities and district courts to see to it that future school construction and abandonment are not used and do not serve to perpetuate or re-establish the dual system. When necessary, district courts should retain jurisdiction to assure that these responsibilities are carried out. Cf. United States v. Board of Public Instruction, 395 F. 2d 66 (CA5 1968); Brewer n. School Board, 397 F. 2d 37 (CA4 1968). 22 OCTOBER TERM, 1970 Opinion of the Court 402U.S. V The central issue in this case is that of student assignment, and there are essentially four problem areas: (1) to what extent racial balance or racial quotas may be used as an implement in a remedial order to correct a previously segregated system; (2) whether every all-Negro and all-white school must be eliminated as an indispensable part of a remedial process of desegregation; (3) what the limits are, if any, on the rearrangement of school districts and attendance zones, as a remedial measure; and (4) what the limits are, if any, on the use of transportation facilities to correct state-enforced racial school segregation. (1) Racial Balances or Racial Quotas. The constant theme and thrust of every holding from Brown I to date is that state-enforced separation of races in public schools is discrimination that violates the Equal Protection Clause. The remedy commanded was to dismantle dual school systems. We are concerned in these cases with the elimination of the discrimination inherent in the dual school systems, not with myriad factors of human existence which can cause discrimination in a multitude of ways on racial, religious, or ethnic grounds. The target of the cases from Brown I to the present was the dual school system. The elimination of racial discrimination in public schools is a large task and one that should not be retarded by efforts to achieve broader purposes lying beyond the jurisdiction of school authorities. One vehicle can carry only a limited amount of baggage. It would not serve the important objective of Brown I to seek to use school desegregation cases for purposes beyond their scope, although desegregation of schools ultimately will have SWANN v. BOARD OF EDUCATION 23 1 Opinion of the Court impact on other forms of discrimination. We do not reach in this case the question whether a showing that school segregation is a consequence of other types of state action, without any discriminatory action by the school authorities, is a constitutional violation requiring remedial action by a school desegregation decree. This case does not present that question and we therefore do not decide it. Our objective in dealing with the issues presented by these cases is to see that school authorities exclude no pupil of a racial minority from any school, directly or indirectly, on account of race; it does not and cannot embrace all the problems of racial prejudice, even when those problems contribute to disproportionate racial concentrations in some schools. In this case it is urged that the District Court has imposed a racial balance requirement of 71%-29% on individual schools. The fact that no such objective was actually achieved—and would appear to be impossible— tends to blunt that claim, yet in the opinion and order of the District Court of December 1, 1969, we find that court directing “that efforts should be made to reach a 71-29 ratio in the various schools so that there will be no basis for contending that one school is racially different from the others . . . , [t]hat no school [should] be operated with an all-black or predominantly black student body, [and] [t]hat pupils of all grades [should] be assigned in such a way that as nearly as practicable the various schools at various grade levels have about the same proportion of black and white students.” The District Judge went on to acknowledge that variation “from that norm may be unavoidable.” This contains intimations that the “norm” is a fixed mathematical 24 OCTOBER TERM, 1970 Opinion of the Court 402 U. S. racial balance reflecting the pupil constituency of the system. If we were to read the holding of the District Court to require, as a matter of substantive constitutional right, any particular degree of racial balance or mixing, that approach would be disapproved and we would be obliged to reverse. The constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole. As the voluminous record in this case shows,7 the predicate for the District Court’s use of the 71%-29% ratio was twofold: first, its express finding, approved by the Court of Appeals and not challenged here, that a dual school system had been maintained by the school authorities at least until 1969; second, its finding, also approved by the Court of Appeals, that the school board had totally defaulted in its acknowledged duty to come forward with an acceptable plan of its own, notwithstanding the patient efforts of the District Judge who, on at least three occasions, urged the board to submit plans.8 As the statement of facts shows, these findings are abun- 7 It must be remembered that the District Court entered nearly a score of orders and numerous sets of findings, and for the most part each was accompanied by a memorandum opinion. Considering the pressure under which the court was obliged to operate we would not expect that all inconsistencies and apparent inconsistencies could be avoided. Our review, of course, is on the orders of February 5, 1970, as amended, and August 7, 1970. 8 The final board plan left 10 schools 86% to 100% Negro and yet categorically rejected the techniques of pairing and clustering as part of the desegregation effort. As discussed below, the Charlotte board was under an obligation to exercise every reasonable effort to remedy the violation, once it was identified, and the suggested techniques are permissible remedial devices. Additionally, as noted by the District Court and Court of Appeals, the board plan did not assign white students to any school unless the student population of that school was at least 60% white. This was an arbitrary limitation negating reasonable remedial steps. SWANN v. BOARD OF EDUCATION 25 1 Opinion of the Court dantly supported by the record. It was because of this total failure of the school board that the District Court was obliged to turn to other qualified sources, and Dr. Finger was designated to assist the District Court to do what the board should have done. We see therefore that the use made of mathematical ratios was no more than a starting point in the process of shaping a remedy, rather than an inflexible requirement. From that starting point the District Court proceeded to frame a decree that was within its discretionary powers, as an equitable remedy for the particular circumstances.9 As we said in Green, a school authority’s remedial plan or a district court’s remedial decree is to be judged by its effectiveness. Awareness of the racial composition of the whole school system is likely to be a useful starting point in shaping a remedy to correct past constitutional violations. In sum, the very limited use made of mathematical ratios was within the equitable remedial discretion of the District Court. (2) One-race Schools. The record in this case reveals the familiar phenomenon that in metropolitan areas minority groups are often found concentrated in one part of the city. In some circumstances certain schools may remain all or largely of one race until new schools can be provided or neighborhood patterns change. Schools all or predominately 9 In its August 3, 1970, memorandum holding that the District Court plan was “reasonable” under the standard laid down by the Fourth Circuit on appeal, the District Court explained the approach taken as follows: “This court has not ruled, and does not rule that 'racial balance’ is required under the Constitution; nor that all black schools in all cities are unlawful; nor that all school boards must bus children or violate the Constitution; nor that the particular order entered in this case would be correct in other circumstances not before this court.” (Emphasis in original.) 26 OCTOBER TERM, 1970 Opinion of the Court 402 U. S. of one race in a district of mixed population will require close scrutiny to determine that school assignments are not part of state-enforced segregation. In light of the above, it should be clear that the existence of some small number of one-race, or virtually one-race, schools within a district is not in and of itself the mark of a system that still practices segregation by law. The district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation and will thus necessarily be concerned with the elimination of one-race schools. No per se rule can adequately embrace all the difficulties of reconciling the competing interests involved; but in a system with a history of segregation the need for remedial criteria of sufficient specificity to assure a school authority’s compliance with its constitutional duty warrants a presumption against schools that are substantially disproportionate in their racial composition. Where the school authority’s proposed plan for conversion from a dual to a unitary system contemplates the continued existence of some schools that are all or predominately of one race, they have the burden of showing that such school assignments are genuinely nondiscriminatory. The court should scrutinize such schools, and the burden upon the school authorities will be to satisfy the court that their racial composition is not the result of present or past discriminatory action on their part. An optional majority-to-minority transfer provision has long been recognized as a useful part of every desegregation plan. Provision for optional transfer of those in the majority racial group of a particular school to other schools where they will be in the minority is an indispensable remedy for those students willing to transfer to other schools in order to lessen the impact on them of the state-imposed stigma of segregation. In order to be effective, such a transfer arrangement must grant SWANN v. BOARD OF EDUCATION 27 1 Opinion of the Court the transferring student free transportation and space must be made available in the school to which he desires to move. Cf. Ellis v. Board of Public Instruction, 423 F. 2d 203, 206 (CA5 1970). The court orders in this and the companion Davis case now provide such an option. (3) Remedial Altering of Attendance Zones. The maps submitted in these cases graphically demonstrate that one of the principal tools employed by school planners and by courts to break up the dual school system has been a frank—and sometimes drastic—gerrymandering of school districts and attendance zones. An additional step was pairing, “clustering,” or “grouping” of schools with attendance assignments made deliberately to accomplish the transfer of Negro students out of formerly segregated Negro schools and transfer of white students to formerly all-Negro schools. More often than not, these zones are neither compact10 nor contiguous; indeed they may be on opposite ends of the city. As an interim corrective measure, this cannot be said to be beyond the broad remedial powers of a court. 10 The reliance of school authorities on the reference to the “revision of . . . attendance areas into compact units,” Brown II, at 300 (emphasis supplied), is misplaced. The enumeration in that opinion of considerations to be taken into account by district courts was patently intended to be suggestive rather than exhaustive. The decision in Brown II to remand the cases decided in Brown I to local courts for the framing of specific decrees was premised on a recognition that this Court could not at that time foresee the particular means which would be required to implement the constitutional principles announced. We said in Green, supra, at 439: “The obligation of the district courts, as it always has been, is to assess the effectiveness of a proposed plan in achieving desegregation. There is no universal answer to complex problems of desegregation; there is obviously no one plan that will do the job in every case. The matter must be assessed in light of the circumstances present and the options available in each instance.” 419-882 0 - 72 -7 28 OCTOBER TERM, 1970 Opinion of the Court 402U.S. Absent a constitutional violation there would be no basis for judicially ordering assignment of students on a racial basis. All things being equal, with no history of discrimination, it might well be desirable to assign pupils to schools nearest their homes. But all things are not equal in a system that has been deliberately constructed and maintained to enforce racial segregation. The remedy for such segregation may be administratively awkward, inconvenient, and even bizarre in some situations and may impose burdens on some; but all awkwardness and inconvenience cannot be avoided in the interim period when remedial adjustments are being made to eliminate the dual school systems. No fixed or even substantially fixed guidelines can be established as to how far a court can go, but it must be recognized that there are limits. The objective is to dismantle the dual school system. “Racially neutral” assignment plans proposed by school authorities to a district court may be inadequate; such plans may fail to counteract the continuing effects of past school segregation resulting from discriminatory location of school sites or distortion of school size in order to achieve or maintain an artificial racial separation. When school authorities present a district court with a “loaded game board,” affirmative action in the form of remedial altering of attendance zones is proper to achieve truly non-discriminatory assignments. In short, an assignment plan is not acceptable simply because it appears to be neutral. In this area, we must of necessity rely to a large extent, as this Court has for more than 16 years, on the informed judgment of the district courts in the first instance and on courts of appeals. We hold that the pairing and grouping of noncontiguous school zones is a permissible tool and such action is to be considered in light of the objectives sought. Ju- SWANN v. BOARD OF EDUCATION 29 1 Opinion of the Court dicial steps in shaping such zones going beyond combinations of contiguous areas should be examined in light of what is said in subdivisions (1), (2), and (3) of this opinion concerning the objectives to be sought. Maps do not tell the whole story since noncontiguous school zones may be more accessible to each other in terms of the critical travel time, because of traffic patterns and good highways, than schools geographically closer together. Conditions in different localities will vary so widely that no rigid rules can be laid down to govern all situations. (4) Transportation of Students. The scope of permissible transportation of students as an implement of a remedial decree has never been defined by this Court and by the very nature of the problem it cannot be defined with precision. No rigid guidelines as to student transportation can be given for application to the infinite variety of problems presented in thousands of situations. Bus transportation has been an integral part of the public education system for years, and was perhaps the single most important factor in the transition from the one-room schoolhouse to the consolidated school. Eighteen million of the Nation’s public school children, approximately 39%, were transported to their schools by bus in 1969-1970 in all parts of the country. The importance of bus transportation as a normal and accepted tool of educational policy is readily discernible in this and the companion case, Davis, supra.11 The 11 During 1967-1968, for example, the Mobile board used 207 buses to transport 22,094 students daily for an average round trip of 31 miles. During 1966-1967, 7,116 students in the metropolitan area were bused daily. In Charlotte-Mecklenburg, the system as a whole, without regard to desegregation plans, planned to bus approximately 23,000 students this year, for an average daily round trip of 15 miles. More elementary school children than high school children were to be bused, and four- and five-year-olds travel the longest routes in the system. 30 OCTOBER TERM, 1970 Opinion of the Court 402 U. S. Charlotte school authorities did not purport to assign students on the basis of geographically drawn zones until 1965 and then they allowed almost unlimited transfer privileges. The District Court’s conclusion that assignment of children to the school nearest their home serving their grade would not produce an effective dismantling of the dual system is supported by the record. Thus the remedial techniques used in the District Court’s order were within that court’s power to provide equitable relief; implementation of the decree is well within the capacity of the school authority. The decree provided that the buses used to implement the plan would operate on direct routes. Students would be picked up at schools near their homes and transported to the schools they were to attend. The trips for elementary school pupils average about seven miles and the District Court found that they would take “not over 35 minutes at the most.” 12 This system compares favorably with the transportation plan previously operated in Charlotte under which each day 23,600 students on all grade levels were transported an average of 15 miles one way for an average trip requiring over an hour. In these circumstances, we find no basis for holding that the local school authorities may not be required to employ bus transportation as one tool of school desegregation. Desegregation plans cannot be limited to the walk-in school. An objection to transportation of students may have validity when the time or distance of travel is so great as to either risk the health of the children or significantly 12 The District Court found that the school system would have to employ 138 more buses than it had previously operated. But 105 of those buses were already available and the others could easily be obtained. Additionally, it should be noted that North Carolina requires provision of transportation for all students who are assigned to schools more than one and one-half miles from their homes. N. C. Gen. Stat. § 115-186 (b) (1966). SWANN v. BOARD OF EDUCATION 31 1 Opinion of the Court impinge on the educational process. District courts must weigh the soundness of any transportation plan in light of what is said in subdivisions (1), (2), and (3) above. It hardly needs stating that the limits on time of travel will vary with many factors, but probably with none more than the age of the students. The reconciliation of competing values in a desegregation case is, of course, a difficult task with many sensitive facets but fundamentally no more so than remedial measures courts of equity have traditionally employed. VI The Court of Appeals, searching for a term to define the equitable remedial power of the district courts, used the term “reasonableness.” In Green, supra, this Court used the term “feasible” and by implication, “workable,” “effective,” and “realistic” in the mandate to develop “a plan that promises realistically to work, and ... to work now.” On the facts of this case, we are unable to conclude that the order of the District Court is not reasonable, feasible and workable. However, in seeking to define the scope of remedial power or the limits on remedial power of courts in an area as sensitive as we deal with here, words are poor instruments to convey the sense of basic fairness inherent in equity. Substance, not semantics, must govern, and we have sought to suggest the nature of limitations without frustrating the appropriate scope of equity. At some point, these school authorities and others like them should have achieved full compliance with this Court’s decision in Brown I. The systems would then be “unitary” in the sense required by our decisions in Green and Alexander. It does not follow that the communities served by such systems will remain demographically stable, for in a growing, mobile society, few will do so. Neither 32 OCTOBER TERM, 1970 Opinion of the Court 402U.S. school authorities nor district courts are constitutionally required to make year-by-year adjustments of the racial composition of student bodies once the affirmative duty to desegregate has been accomplished and racial discrimination through official action is eliminated from the system. This does not mean that federal courts are without power to deal with future problems; but in the absence of a showing that either the school authorities or some other agency of the State has deliberately attempted to fix or alter demographic patterns to affect the racial composition of the schools, further intervention by a district court should not be necessary. For the reasons herein set forth, the judgment of the Court of Appeals is affirmed as to those parts in which it affirmed the judgment of the District Court. The order of the District Court, dated August 7, 1970, is also affirmed. It is so ordered. DAVIS v. SCHOOL COMM’RS OF MOBILE COUNTY 33 Syllabus DAVIS et al. v. BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 436. Argued October 13-14, 1970—Decided April 20, 1971 East of the major highway that divides the metropolitan area of Mobile, Ala., live 94% of the area’s Negro students, and the schools there are 65% Negro and 35% white. West of the highway the schools are 12% Negro and 88% white. The Court of Appeals approved a desegregation plan which, like the District Court’s plan, insofar as those areas were concerned, treated the western section as isolated from the eastern, with unified geographic zones and providing no transportation of students for desegregation purposes. Though some reduction in the number of all-Negro schools was achieved for the 1970-1971 school year, nine elementary schools in the eastern section (attended by 64% of all Negro elementary school pupils in the metropolitan area) were over 90% Negro, and over half of the Negro junior and senior high school students went to all-Negro or nearly all-Negro schools. With regard to the faculty and staff ratio in each of Mobile County’s schools, the Court of Appeals directed the District Court to require the school board to establish “substantially the same” ratio as that for the whole district. Held: 1. The Court of Appeals decision dealing with the faculty and staff ratio is affirmed. Swann v. Charlotte-Mecklenburg Board of Education, ante, p. 1, at 19-20. P. 35. 2. The Court of Appeals erred in treating the eastern part of metropolitan Mobile in isolation from the rest of the school system, and in not adequately considering the possible use of all available techniques to achieve the maximum amount of practicable desegregation. P. 38. 430 F. 2d 883 and 889, affirmed in part and reversed and remanded in part. Burger, C. J., delivered the opinion for a unanimous Court. Jack Greenberg argued the cause for petitioners. With him on the briefs were James M. Nabrit III, Michael 34 OCTOBER TERM, 1970 Opinion of the Court 402U.S. Davidson, Norman J. Chachkin, and Anthony G. Amsterdam. Abram L. Philips, Jr., argued the cause for respondents Board of School Commissioners of Mobile County et al. With him on the brief were George F. Wood, John J. Sparkman, James B. Allen, and Jack Edwards. Samuel L. Stockman argued the cause for respondents Mobile County Council Parent-Teacher Associations et al. With him on the brief were W. A. Kimbrough, Jr., and John W. Adams, Jr. Solicitor General Griswold argued the cause for the United States as amicus curiae. With him on the brief was Assistant Attorney General Leonard. Briefs of amici curiae were filed by Albert P. Brewer, Governor, MacDonald Gallion, Attorney General, and Joseph D. Phelps, Special Assistant Attorney General, for the State of Alabama; by A. F. Summer, Attorney General, and Semmes Luckett, Special Assistant Attorney General, for the State of Mississippi; by Robert V. Light and Herschel H. Friday for the Little Rock School District et al., and by William L. Taylor, Richard B. Sobol, and Joseph L. Rauh, Jr., for the United Negro College Fund, Inc., et al. Mr. Chief Justice Burger delivered the opinion of the Court. Petitioners in this case challenge as inadequate a school desegregation plan for Mobile County, Alabama. The county is large and populous, embracing 1,248 square miles and the city of Mobile. The school system had 73,500 pupils in 91 schools at the beginning of the 1969 academic year; approximately 58% of the pupils were white and 42% Negro. During the 1967-1968 school year, the system transported 22,000 pupils daily in over DAVIS v. SCHOOL COMM’RS OF MOBILE COUNTY 35 33 Opinion of the Court 200 school buses, both in the rural areas of the county and in the outlying areas of metropolitan Mobile. The present desegregation plan evolved from one developed by the District Court in response to the decision of the Court of Appeals for the Fifth Circuit in Davis v. Board of School Comm’rs, 414 F. 2d 609 (CA5 1969), that an earlier desegregation plan formulated by the District Court on the basis of unified geographic zones was “constitutionally insufficient and unacceptable, and such zones must be redrawn.” The Court of Appeals held that that earlier plan had “ignored the unequivocal directive to make a conscious effort in locating attendance zones to desegregate and eliminate past segregation.” Id., at 610. The District Court responded with a new zoning plan which left 18,623, or 60%, of the system’s 30,800 Negro children in 19 all-Negro or nearly all-Negro schools. On appeal, the Court of Appeals reviewed all aspects of desegregation in Mobile County. Additional information was requested regarding earlier desegregation plans for the rural parts of the county, and those plans were approved. They are not before us now. The Court of Appeals concluded that with respect to faculty and staff desegregation the board had “almost totally failed to comply” with earlier orders, and directed the District Court to require the board to establish a faculty and staff ratio in each school “substantially the same” as that for the entire district. 430 F. 2d 883, 886. We affirm that part of the Court of Appeals’ opinion for the reasons given in Swann v. Charlotte-Mecklenburg Board of Education, ante, p. 1, at 19-20. Regarding junior and senior high schools, the Court of Appeals reversed the District Court and directed implementation of a plan that was intended to eliminate the seven all-Negro schools remaining under the District 36 OCTOBER TERM, 1970 Opinion of the Court 402U.S. Court’s scheme. This was to be achieved through pairing and adjusting grade structures within metropolitan Mobile, without bus transportation or split zoning. The Court of Appeals then turned to the difficult problem of desegregating the elementary schools of metropolitan Mobile. The metropolitan area is divided by a major north-south highway. About 94% of the Negro students in the metropolitan area live on the east side of the highway between it and the Mobile River. The schools on that side of the highway are 65% Negro and 35% white. On the west side of the highway, however, the schools are 12% Negro and 88% white. Under the District Court’s elementary school plan for the metropolitan area, the eastern and western sections were treated as distinct, without either interlocking zones or transportation across the highway. Not surprisingly, it was easy to desegregate the western section, but in the east the District Court left 12 all-Negro or nearly all-Negro elementary schools, serving over 90% of all the Negro elementary students in the metropolitan area. The Court of Appeals rejected this solution in favor of a modified version of a plan submitted by the Department of Justice. As further modified after a second appeal, this plan reduced the number of all-Negro or nearly all-Negro elementary schools from 12 to six schools, projected to serve 5,310 students, or about 50% of the Negro elementary students in the metropolitan area. Like the District Court’s plan, the Court of Appeals’ plan was based on treating the western section in isolation from the eastern. There were unified geographic zones, and no transportation of students for purposes of desegregation. The reduction in the number of all-Negro schools was achieved through pairing, rezoning, and adjusting grade structures within the eastern section. With yet further modifications not material DAVIS v. SCHOOL COMM’RS OF MOBILE COUNTY 37 33 Opinion of the Court here, this plan went into effect at the beginning of the 1970-1971 school year. The enrollment figures for the 1970-1971 school year show that the projections on which the Court of Appeals based its plan for metropolitan Mobile were inaccurate. Under the Court of Appeals’ plan as actually implemented, nine elementary schools in the eastern section of metropolitan Mobile were over 90% Negro as of September 21, 1970 (instead of six as projected), and they housed 7,651 students, or 64% of all the Negro elementary school pupils in the metropolitan area. Moreover, the enrollment figures indicate that 6,746 Negro junior and senior high school students in metropolitan Mobile, or over half, were then attending allNegro or nearly all-Negro schools, rather than none as projected by the Court of Appeals. These figures are derived from a report of the school board to the District Court; they were brought to our attention in a supplemental brief for petitioners filed on October 10, 1970, and have not been challenged by respondents. As we have held, “neighborhood school zoning,” whether based strictly on home-to-school distance or on “unified geographic zones,” is not the only constitutionally permissible remedy; nor is it per se adequate to meet the remedial responsibilities of local boards. Having once found a violation, the district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation. A district court may and should consider the use of all available techniques including restructuring of attendance zones and both contiguous and noncontiguous attendance zones. See Swann, supra, at 22-31. The measure of any desegregation plan is its effectiveness. 38 402 U. S. OCTOBER TERM, 1970 Opinion of the Court On the record before us, it is clear that the Court of Appeals felt constrained to treat the eastern part of metropolitan Mobile in isolation from the rest of the school system, and that inadequate consideration was given to the possible use of bus transportation and split zoning. For these reasons, we reverse the judgment of the Court of Appeals as to the parts dealing with student assignment, and remand the case for the development of a decree “that promises realistically to work, and promises realistically to work now.” Green v. County School Board, 391 U. S. 430, 439 (1968). It is so ordered. McDaniel v. barresi 39 Syllabus McDANIEL, SUPERINTENDENT OF SCHOOLS, ET AL. V. BARRESI ET AL. CERTIORARI TO THE SUPREME COURT OF GEORGIA No. 420. Argued October 13, 1970—Decided April 20, 1971 The Board of Education of Clarke County, Ga. (with a two-to-one white-Negro elementary school system ratio), devised a student assignment plan for desegregating elementary schools which establishes geographic zones drawn to promote desegregation and also provides that pupils in heavily concentrated Negro “pockets” walk or go by bus to schools in other attendance zones. The resulting Negro elementary enrollment ranges from 20% to 40% in all but two schools, where it is 50%. Respondent parents sued to enjoin the plan’s operation. The state trial court denied an injunction. The Georgia Supreme Court reversed, holding that the plan violated (1) equal protection because it “[treated] students differently because of their race,” and (2) the Civil Rights Act of 1964, because Title IV prohibits a school board from requiring busing to achieve a racial balance. Held: 1. In compliance with its duty to convert to a unitary system, the school board properly took race into account in fixing the attendance lines. P. 41. 2. Title IV, a direction to federal officials, does not restrict state officials in assigning students within their systems. Pp. 41-42. 226 Ga. 456,175 S. E. 2d 649, reversed. Burger, C. J., delivered the opinion for a unanimous Court. Eugene A. Epting argued the cause and filed a brief for petitioners. E. Freeman Leverett argued the cause and filed a brief for respondents. Briefs of amici curiae were filed by Solicitor General Griswold and Assistant Attorney General Leonard for the United States, and by Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, and Alfred L. Evans, Jr., and J. Lee Perry, Assistant Attorneys General, for the State of Georgia. 40 OCTOBER TERM, 1970 Opinion of the Court 402 U. S. Mr. Chief Justice Burger delivered the opinion of the Court. We granted certiorari in this case to review a state court order enjoining the operation of a school desegregation plan. The action was brought in the Superior Court of Clarke County, Georgia, by parents of children attending public elementary schools in that county. Named as defendants were the Superintendent of Education and members of the Clarke County Board of Education. The trial court denied respondents’ request for an injunction, but on appeal the Supreme Court of Georgia reversed, 226 Ga. 456, 175 S. E. 2d 649 (1970). This Court then granted certiorari, 400 U. S. 804 (1970). Beginning in 1963, the Clarke County Board of Education began a voluntary program to desegregate its public schools. The student-assignment plan presently at issue, involving only elementary schools, has been in effect since the start of the 1969 academic year. The plan, adopted by the Board of Education and approved by the Department of Health, Education, and Welfare,1 relies primarily upon geographic attendance zones drawn to achieve greater racial balance. Additionally, the pupils in five heavily Negro “pockets” either walk or are transported by bus to schools located in other attendance zones.2 As a consequence the Negro enrollment of each 1 It may well be that the Board of Education adopted the present student-assignment plan because of urgings of federal officials and fear of losing federal financial assistance. The state trial court, however, made no findings on these matters. No federal officials are parties in this case. 2 Where the distance between the student’s residence and his assigned school is more than miles, free transportation is provided. There is no challenge here to the feasibility of the transportation provisions of the plan. The annual transportation expenses of the present plan are reported in the record to be $11,070 less than the school system spent on transportation during the 1968-1969 school year under dual operation. McDaniel v. barresi 41 39 Opinion of the Court elementary school in the system varies generally between 20% and 40%, although two schools have a 50% Negro enrollment. The white-Negro ratio of elementary pupils in the system is approximately two to one. Respondents contend in this action that the board’s desegregation plan violates the Fourteenth Amendment of the Federal Constitution and Title IV of the Civil Rights Act of 1964. The Supreme Court of Georgia upheld both contentions, concluding first that the plan violated the Equal Protection Clause “by treating students differently because of their race.” The court concluded also that Title IV prohibited the board from “requiring the transportation of pupils or students from one school to another ... in order to achieve such racial balance . . . .” We reject these contentions. The Clarke County Board of Education, as part of its affirmative duty to disestablish the dual school system, properly took into account the race of its elementary school children in drawing attendance lines. To have done otherwise would have severely hampered the board’s ability to deal effectively with the task at hand. School boards that operated dual school systems are “clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.” Green v. County School Board, 391 U. S. 430, 437-438 (1968). In this remedial process, steps will almost invariably require that students be assigned “differently because of their race.” See Swann n. Charlotte-Mecklenburg Board of Education, ante, p. 1; Youngblood n. Board of Public Instruction, 430 F. 2d 625, 630 (CA5 1970). Any other approach would freeze the status quo that is the very target of all desegregation processes. Nor is the board’s plan barred by Title IV of the Civil Rights Act of 1964. The sections relied upon by respondents (42 U. S. C. §§ 2000c (b), 2000c-6) are di- 42 OCTOBER TERM, 1970 402 U. 8. Opinion of the Court rected only at federal officials and are designed simply to foreclose any interpretation of the Act as expanding the powers of federal officials to enforce the Equal Protection Clause. Swann, supra, at 17. Title IV clearly does not restrict state school authorities in the exercise of their discretionary powers to assign students within their school systems. Reversed. BOARD OF EDUCATION v. SWANN 43 Opinion of the Court NORTH CAROLINA STATE BOARD OF EDUCATION ET AL. V. SWANN ET AL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA No. 498. Argued October 13, 1970—Decided April 20, 1971 North Carolina’s Anti-Busing Law, which flatly forbids assignment of any student on account of race or for the purpose of creating a racial balance or ratio in the schools and which prohibits busing for such purposes, held invalid as preventing implementation of desegregation plans required by the Fourteenth Amendment. Pp. 45—46. 312 F. Supp. 503, affirmed. Burger, C. J., delivered the opinion for a unanimous Court. Andrew A. Vanore, Jr., Assistant Attorney General of North Carolina, argued the cause for appellants. With him on the brief were Robert B. Morgan, Attorney General, and Ralph Moody, Deputy Attorney General. James M. Nabrit III argued the cause for appellees. With him on the brief were Jack Greenberg, Norman J. Chachkin, J. LeVonne Chambers, C. 0. Pearson, and Anthony G. Amsterdam. Solicitor General Griswold and Assistant Attorney General Leonard filed a brief for the United States as amicus curiae. Mr. Chief Justice Burger delivered the opinion of the Court. This case is here on direct appeal pursuant to 28 U. S. C. § 1253 from the judgment of a three-judge court in the United States District Court for the Western District of North Carolina. The District Court declared unconstitutional a portion of the North Carolina General 419-882 0 - 72 -8 44 OCTOBER TERM, 1970 Opinion of the Court 402 U. S. Statutes known as the Anti-Busing Law,1 and granted an injunction against its enforcement.2 The proceeding before the three-judge court was an ancillary proceeding connected with the school desegregation case heretofore discussed, Swann n. Charlotte-Mecklenburg Board of Education, ante, p. 1. The instant appeal was taken by the North Carolina State Board of Education and four state officials. We granted the Charlotte-Mecklenburg school board’s motion to join in the appeal, 400 U. S. 804 (1970). When the litigation in the Swann case recommenced in the spring of 1969, the District Court specifically directed that the school board consider altering attendance areas, pairing or consolidation of schools, bus transportation of students, and any other method which would effectuate a racially unitary system. That litigation was actively prosecuted. The board submitted a series of proposals, all rejected by the District Court as inadequate. In the midst of this litigation over the remedy to implement the District Court’s order, the North Carolina Legislature enacted the anti-busing bill, set forth in relevant part in footnote 1. Following enactment of the anti-busing statute the plaintiffs in the Swann case obtained leave to file a sup- 1 So far as here relevant, N. C. Gen. Stat. § 115-176.1 (Supp. 1969) reads as follows: “No student shall be assigned or compelled to attend any school on account of race, creed, color or national origin, or for the purpose of creating a balance or ratio of race, religion or national origins. Involuntary bussing of students in contravention of this article is prohibited, and public funds shall not be used for any such bussing.” 2 312 F. Supp 503 (1970). The opinion as printed grants only declaratory relief. However, the District Court amended its original opinion by withdrawing Part V and entering an order dated June 22, 1970, which enjoined all parties “from enforcing, or seeking the enforcement of,” the portion of the statute found unconstitutional. BOARD OF EDUCATION v. SWANN 45 43 Opinion of the Court piemental complaint which sought injunctive and declaratory relief against the statute. They sought to convene a three-judge court, but no action was taken on the requests at that time because the school board thought that the anti-busing law did not interfere with the school board’s proposed plan to transport about 4,000 Negro children to white suburban schools. 306 F. Supp 1291 (WDNC 1969). Other parties were added as defendants by order of the District Court dated February 25. In addition, certain persons who had brought a suit in state court to enjoin or impede the order of the federal court, the attorneys for those litigants, and state judges who at various times entered injunctions against the school authorities and blocked compliance with orders of the District Court were also joined; a three-judge court was then convened. We observed in Swann, supra, at 16, that school authorities have wide discretion in formulating school policy, and that as a matter of educational policy school authorities may well conclude that some kind of racial balance in the schools is desirable quite apart from any constitutional requirements. However, if a state-imposed limitation on a school authority’s discretion operates to inhibit or obstruct the operation of a unitary school system or impede the disestablishing of a dual school system, it must fall; state policy must give way when it operates to hinder vindication of federal constitutional guarantees. The legislation before us flatly forbids assignment of any student on account of race or for the purpose of creating a racial balance or ratio in the schools. The prohibition is absolute, and it would inescapably operate to obstruct the remedies granted by the District Court in the Swann case. But more important the statute exploits an apparently neutral form to control school assignment plans by directing that they be “color blind”; that requirement, against the background of segregation, 46 OCTOBER TERM, 1970 Opinion of the Court 402 U. S. would render illusory the promise of Brown v. Board of Education, 347 U. S. 483 (1954). Just as the race of students must be considered in determining whether a constitutional violation has occurred, so also must race be considered in formulating a remedy. To forbid, at this stage, all assignments made on the basis of race would deprive school authorities of the one tool absolutely essential to fulfillment of their constitutional obligation to eliminate existing dual school systems. Similarly, the flat prohibition against assignment of students for the purpose of creating a racial balance must inevitably conflict with the duty of school authorities to disestablish dual school systems. As we have held in Swann, the Constitution does not compel any particular degree of racial balance or mixing, but when past and continuing constitutional violations are found, some ratios are likely to be useful starting points in shaping a remedy. An absolute prohibition against use of such a device—even as a starting point—contravenes the implicit command of Green n. County School Board, 391 U. S. 430 (1968), that all reasonable methods be available to formulate an effective remedy. We likewise conclude that an absolute prohibition against transportation of students assigned on the basis of race, “or for the purpose of creating a balance or ratio,” will similarly hamper the ability of local authorities to effectively remedy constitutional violations. As noted in Swann, supra, at 29, bus transportation has long been an integral part of all public educational systems, and it is unlikely that a truly effective remedy could be devised without continued reliance upon it. The remainder of the order of the District Court is affirmed for the reasons stated in its opinion, 312 F. Supp. 503. Affirmed. MOORE v. BOARD OF EDUCATION 47 Per Curiam MOORE ET AL. v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA No. 444. Argued October 13, 1970—Decided April 20, 1971 Since both parties in this action challenging a school desegregation plan seek the same result, viz., a holding that North Carolina’s Anti-Busing Law is constitutional, there is no Art. Ill case or controversy. Additionally, on the facts of this case, no direct appeal to this Court lies under 28 U. S. C. § 1253. 312 F. Supp. 503, appeal dismissed for lack of jurisdiction. Whitejord 8. Blakeney argued the cause for appellants. With him on the brief was William H. Booe. William J. Waggoner argued the cause for appellees. With him on the brief was Benjamin S. Horack. Solicitor General Griswold and Assistant Attorney General Leonard filed a brief for the United States as amicus curiae. Per Curiam. Appellants seek review of the decision of the United States District Court for the Western District of North Carolina declaring a portion of the North Carolina antibusing statute unconstitutional, and enjoining its enforcement. It is a companion case to No. 498, North Carolina State Board of Education v. Swann, ante, p. 43. We postponed decision on the question of jurisdiction, 400 U. S. 803 (1970), and after hearing on the merits we now dismiss the appeal for lack of jurisdiction. At the hearing both parties argued to the three-judge court that the anti-busing law was constitutional and urged that the order of the District Court adopting the Finger plan should be set aside. We are thus confronted 48 OCTOBER TERM, 1970 Per Curiam 402U.S. with the anomaly that both litigants desire precisely the same result, namely a holding that the anti-busing statute is constitutional. There is, therefore, no case or controversy within the meaning of Art. Ill of the Constitution. Muskrat v. United States, 219 U. S. 346 (1911). Additionally, since neither party sought an injunction to restrain a state officer from enforcing a state statute alleged to be unconstitutional, 28 U. S. C. § 2281, this is not an appeal from “any civil action, suit or proceeding required ... to be heard ... by a district court of three judges,” 28 U. S. C. § 1253, and hence no direct appeal to this Court is available. Dismissed. ROSENBERG v. YEE CHIEN WOO 49 Syllabus ROSENBERG, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE v. YEE CHIEN WOO CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 156. Argued February 23, 1971—Decided April 21, 1971 In 1953, respondent fled mainland China, of which he was a national, going to Hong Kong, where he resided with his family until 1960, when he came to the United States as a business visitor. He remained in this country, though he kept his business in Hong Kong for several years. His temporary permit having expired, the Immigration and Naturalization Service (INS) in 1966 began deportation proceedings. Respondent then sought classification as a refugee under § 203 (a) (7) of the Immigration and Nationality Act of 1952, which provides that aliens may apply in any nonCommunist country for conditional entry into the United States if (i) they have fled from any Communist country because of persecution or fear of persecution for reasons of race, religion, or political opinion, (ii) are remaining away from that country for those reasons, and (iii) are not nationals of the country in which they apply for conditional entry. The INS Director denied respondent’s application on the ground that § 203 (a)(7) requires that “physical presence in the United States [be] a consequence of an alien’s flight in search of a refuge” and that such presence must be “reasonably proximate to the flight and not one following a flight remote in point of time or intervening residence in a third country reasonably constituting a termination of the original flight in search of refuge.” Without deciding whether resettlement would have barred respondent’s claim, the District Court reversed the INS determination, on the ground that respondent had never firmly resettled in Hong Kong. The Court of Appeals affirmed on the basis that the relevant factor was not the “firmly resettled” issue but that under § 203 (a) (7) (iii) respondent was a national of Communist China, from which he was a refugee, and not a national of Hong Kong. Held: Whether a refugee has already “firmly resettled” in another country is relevant to determining the availability to him of the asylum provision of §203 (a)(7), since Congress did not intend to grant asylum to a refugee who 50 OCTOBER TERM, 1970 Opinion of the Court 402U.S. has found permanent shelter in another country, and the § 203 (a) (7) (iii) nationality requirement is no substitute for the “resettlement” concept. Pp. 52-58. 419 F. 2d 252, reversed and remanded. Black, J., delivered the opinion of the Court, in which Burger, C. J., and Harlan, White, and Blackmun, JJ., joined. Stewart, J., filed a dissenting opinion, in which Douglas, Brennan, and Marshall, JJ., joined, post, p. 58. Charles Gordon argued the cause for petitioner. With him on the briefs were Solicitor General Griswold, As-sistant Attorney General Wilson, Jerome M. Feit, Beatrice Rosenberg, Paul C. Summitt, and George W. Masterton. Gordon G. Dale argued the cause and filed a brief for respondent. Mr. Justice Black delivered the opinion of the Court. Respondent, Yee Chien Woo, is a native of mainland China, a Communist country, who fled that country in 1953 and sought refuge in Hong Kong. He lived in Hong Kong until 1959 when he came to the United States as a visitor to sell merchandise through a concession at a trade fair in Portland, Oregon. After a short stay, he returned to Hong Kong only to come back to the United States in 1960 to participate in the San Diego Fair and International Trade Mart to promote his Hong Kong business. Thereafter he remained in the United States although he continued to maintain his clothing business in Hong Kong until 1965. In 1965 respondent’s wife and son obtained temporary visitor’s permits and joined him in this country. By 1966 all three had overstayed their permits and were no longer authorized to remain in this country. After the Immigration and Naturalization Service began deportation proceedings, Yee Chien Woo applied for an immigrant visa claiming a “preference” ROSENBERG v. YEE CHIEN WOO 51 49 Opinion of the Court as an alien who had fled a Communist country fearing persecution as defined in § 203 (a)(7) of the Immigration and Nationality Act of 1952, as amended, 79 Stat. 913, 8 U. S. C. § 1153 (a)(7) (1964 ed., Supp. V). The District Director of the Immigration and Naturalization Service denied respondent’s application because “the applicant’s presence in the United States ... was not and is not now a physical presence which was a consequence of his flight in search of refuge from the Chinese mainland.” (Emphasis added.) On appeal within the Immigration and Naturalization Service, the decision of the District Director was affirmed by the Regional Commissioner on the ground that “Congress did not intend that an alien, though formerly a refugee, who had established roots or acquired a residence in a country other than the one from which he fled would again be considered a refugee for the purpose of gaining entry into and or subsequently acquiring status as a resident in this, the third country.” Respondent then sought review in the United States District Court for the Southern District of California which reversed the District Director’s determination. That court, without ever deciding whether resettlement would have barred respondent’s claim, found as a matter of fact that he had never firmly resettled in Hong Kong.1 The Immigration and Naturalization Service appealed to the United States Court of Appeals for the Ninth Circuit. That court affirmed the District Court because in its view whether Yee Chien Woo was “firmly resettled” in Hong Kong was “irrelevant” to 1 “Without expressing any opinion as to why Congress chose to omit the ‘firmly resettled’ provision in the amendments to the Refugee Relief Act of 1953, this court finds that plaintiff was never ‘firmly resettled’ and still qualifies as a refugee under the terms of section 203 (a)(7). Accordingly, the District Director erred in denying plaintiff’s application.” 295 F. Supp. 1370, 1372 (1968). 52 OCTOBER TERM, 1970 Opinion of the Court 402 U. S. consideration of his application for an immigration quota. It stated: “Whether appellee was firmly resettled in Hong Kong is not, then, relevant. What is relevant is that he is not a national of Hong Kong (or the United Kingdom); that he is a national of no country but Communist China and as a refugee from that country remains stateless.” 419 F. 2d 252, 254 (1969). The Court of Appeals for the Second Circuit in a case decided after the Ninth Circuit decision below faced the issue of the relevancy of resettlement and expressly declined to follow the Ninth Circuit interpretation of the statute.2 Shen n. Esperdy, 428 F. 2d 293 (1970). We granted certiorari in this case to resolve the conflict. 400 U. S. 864 (1970). Since 1947 the United States has had a congressionally enacted immigration and naturalization policy which granted immigration preferences to “displaced persons,” “refugees,” or persons who fled certain areas of the world because of “persecution or fear of persecution on account of race, religion, or political opinion.” Although the language through which Congress has implemented this policy since 1947 has changed slightly from time to time, the basic policy has remained constant—to provide a haven for homeless refugees and to fulfill American responsibilities in connection with the International Refugee Organization of the United Nations. This policy is currently embodied in the “Seventh Preference” of § 203 2 The Second Circuit dealt at length with the Ninth Circuit’s opinion in this case, concluding: “In so far as Yee Chien Woo v. Rosenberg holds that the concept of firm resettlement is irrelevant to applications made under section 203 (a) (7) of the Act, we must disagree with the Ninth Circuit.” 428 F. 2d 293, 298 (1970). ROSENBERG v. YEE CHIEN WOO 53 49 Opinion of the Court (a) of the Immigration and Nationality Act of 1952, 8 U. S. C. § 1153 (a) (1964 ed., Supp. V), which provides in pertinent part: “(a) Aliens who are subject to the numerical limitations specified in section 201 (a) shall be allotted visas or their conditional entry authorized, as the case may be, as follows: “(7) [A]liens who satisfy an Immigration and Naturalization Service officer at an examination in any non-Communist or non-Communist-dominated country, (A) that (i) because of persecution or fear of persecution on account of race, religion, or political opinion they have fled (I) from any Communist or Communist-dominated country or area, . . . and (ii) are unable or unwilling to return to such country or area on account of race, religion, or political opinion, and (iii) are not nationals of the countries or areas in which their application for conditional entry is made . . . .” The Ninth Circuit supported its conclusion that the “firmly resettled” concept was irrelevant under § 203 (a) (7) upon two bases. First, the court noted that the “firmly resettled” language was first introduced in the Displaced Persons Act of 1948, 62 Stat. 1009, and was then expressly stated in the Refugee Relief Act of 1953, 67 Stat. 400, both of which are predecessors of the present legislation.3 However, when the Refugee Relief Act of 3 The Displaced Persons Act of 1948 defined a “displaced person” by reference to the Constitution of the International Refugee Organization (IRO) and to persons who were of concern to that organization. Persons ceased to be of concern to the IRO when they acquired a new nationality or by their firm establishment. S. Rep. No. 950, 80th Cong., 2d Sess., 68. The Refugee Refief Act of 1953 provided: “ ‘Refugee’ means any person in a country or area which is neither Communist nor Com- 54 OCTOBER TERM, 1970 Opinion of the Court 402 U. S. 1953 was extended in 1957, the “firmly resettled” language was dropped in favor of a formula defining an eligible refugee as “any alien who, because of persecution or fear of persecution on account of race, religion, or political opinion has fled or shall flee” from certain areas. 71 Stat. 643. The 1957 Act was then followed by the Fair Share Refugee Act of 1960, 74 Stat. 504, which defined “refugee” as one “not a national of the area in which the application is made, and (3) [who] is within the mandate of the United Nations High Commissioner for Refugees.” Finally, the present legislation was added to the Immigration and Nationality Act in 1965. From the 1957 abandonment of the words “firmly resettled” the Court of Appeals determined that Congress had purposely rejected “resettlement” as a test for eligibility for refugee status. Second, the Ninth Circuit gave particular significance to the statutory requirement that refugees “are not nationals of the countries or areas in which their application for conditional entry is made.” Thus, in the court’s view, Congress intended to substitute the “not nationals” requirement for the not “firmly resettled” requirement. For substantially the reasons stated by the Second Circuit in Shen v. Esperdy, 428 F. 2d 293 (1970), we find no congressional intent to depart from the established concept of “firm resettlement” and we do not give the “not nationals” requirement of § 203 (a) (7) (A) (iii) as broad a construction as did the court below. While Congress did not carry the words “firmly resettled” over into the 1957, 1960, and 1965 Acts from the munist-dominated, who because of persecution, fear of persecution, natural calamity or military operations is out of his usual place of abode and unable to return thereto, who has not been firmly resettled, and who is in urgent need of assistance for the essentials of life or for transportation.” Refugee Relief Act of 1953, §2 (a), 67 Stat. 400. ROSENBERG v. YEE CHIEN WOO 55 49 Opinion of the Court earlier legislation, Congress did introduce a new requirement into the 1957 Act—the requirement of “flight.” The 1957 Act, as well as the present law, speaks of persons who have “fled” to avoid persecution.4 Both the terms “firmly resettled” and “fled” are closely related to the central theme of all 23 years of refugee legislation—the creation of a haven for the world’s homeless people. This theme is clearly underlined by the very titles of the Acts over the years from the Displaced Persons Act in 1948 through the Refugee Relief Act and the Fair Share Refugee Act of 1960. Respondent’s reliance on the Fair Share Refugee Act of 1960 to show that Congress abandoned the “firmly resettled” concept is particularly misplaced because Congress envisioned that legislation not only as the means through which this country would fulfill its obligations to refugees, but also as an incentive to 4 The 1957 amendments to the Refugee Relief Act of 1953 did not mark any great change in American refugee policy. Congress was primarily concerned with distributing 18,656 visas that were originally authorized under the 1953 Act but remained unissued when that Act expired on January 1, 1957. The Senate report on the bill states the congressional intent: “It is the intention of the committee that the distribution of this remainder will be made in a fair and equitable manner, without any prescribed numerical limitations for any particular group, according to the showing of hardship, persecution, and the welfare of the United States.” S. Rep. No. 1057, 85th Cong., 1st Sess., 6. Indeed, after the 1957 Act became law the Immigration and Naturalization Service promulgated and uniformly administered regulations which specifically referred to the resettlement requirement. “§ 44.1 Definitions. “(f) ‘Refugee’ means any person in a country or area which is neither Communist nor Communist-dominated, who because of persecution, fear of persecution, natural calamity or military operations is out of his usual place of abode and unable to return thereto, who has not been firmly resettled and who is in urgent need of assistance for the essentials of life or for transportation.” 22 CFR § 44.1 (1958), 22 Fed. Reg. 10826 (Dec. 27, 1957). 56 OCTOBER TERM, 1970 Opinion of the Court 402 U. S. other nations to do likewise.5 Far from encouraging resettled refugees to leave one secure haven for another, the Act established United States quotas as a percentage— 25%—of the refugees absorbed by all other cooperating nations. The Fair Share Refugee Act, like its successor and predecessors, was enacted to help alleviate the suffering of homeless persons and the political instability associated with their plight. It was never intended to open the United States to refugees who had found shelter in another nation and had begun to build new lives. Nor could Congress have intended to make refugees in flight from persecution compete with all of the world’s resettled refugees for the 10,200 entries and permits afforded each year under § 203 (a)(7). Such an interpretation would subvert the lofty goals embodied in the whole pattern of our refugee legislation. In short, we hold that the “resettlement” concept is not irrelevant. It is one of the factors which the Immigration and Naturalization Service must take into account to determine whether a refugee seeks asylum in this country as a consequence of his flight to avoid persecution. The District Director applied the correct legal 5 Careful study of the Fair Share Refugee Act demonstrates that resettlement was relevant even under that legislation. In order to qualify as a refugee under the Fair Share Refugee Act, the alien had to be “within the mandate of the United Nations High Commissioner for Refugees.” Specifically excluded from the Commissioner’s competence was a person who “is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country . . . .” Statute of the Office of the United Nations High Commissioner for Refugees, c. II, par. 7 (b), contained in G. A. Res. 428 (V), December 14, 1950. It appears that under this statute, Yee Chien Woo probably would not have fallen within the Commissioner’s mandate because although he was not a Hong Kong (or British) national, he possessed valid Hong Kong identity papers enabling him to return and live there. ROSENBERG v. YEE CHIEN WOO 57 49 Opinion of the Court standard when he determined that § 203 (a)(7) requires that “physical presence in the United States [be] a consequence of an alien’s flight in search of refuge,” and further that “the physical presence must be one which is reasonably proximate to the flight and not one following a flight remote in point of time or interrupted by intervening residence in a third country reasonably constituting a termination of the original flight in search of refuge.”6 Finally, we hold that the requirement of § 203 (a)(7) (A) (iii) that refugees not be “nationals of the countries or areas in which their application for conditional entry is made” is not a substitute for the “resettlement” concept. In the first place that section is not even applicable to respondent. He was applying for an immigrant visa, not a conditional entry permit to which part (A) (iii) of subsection 7 is expressly limited. He had already been granted entry to the United States as a business visitor. Second, even if the provision were applicable, the country 6 The legal standard employed by the District Director and approved here today does not exclude from refugee status those who have fled from persecution and who make their flight in successive stages. Certainly many refugees make their escape to freedom from persecution in successive stages and come to this country only after stops along the way. Such stops do not necessarily mean that the refugee’s aim to reach these shores has in any sense been abandoned. However, there are many refugees who have firmly resettled in other countries and who either never aimed to reach these shores or have long since abandoned that aim. In the words of the District Director, the presence of such persons in this country is not “one which is reasonably proximate to the flight” or is “remote in point of time or interrupted by intervening residence in a third country.” Such persons are not entitled to refugee status under § 203 (a)(7). In this very case, the District Court found that Yee Chien Woo was not firmly resettled even though he had lived in Hong Kong for six years after his initial flight. We do not express an opinion on that finding but merely remand the case to the Court of Appeals for review in accord with the proper legal standard. 58 OCTOBER TERM, 1970 Stewart, J., dissenting 402 U.S. “in which” respondent’s application was made was the United States and he was certainly not a national of this country. Had he been a national he of course would have been entitled to remain here. Section 203 (a) (7) (A) (iii) applies only to applications for conditional entry into this country made to Immigration and Naturalization officers authorized to accept such applications at points outside the United States. Because it was under the erroneous impression that resettlement was irrelevant to refugee status under § 203 (a) (7), the Court of Appeals failed to review the District Court’s finding that respondent had never firmly resettled in Hong Kong. The District Director is, of course, entitled to review of that determination under the legal test set out in this opinion and the appropriate standards for judicial review. Consequently, the judgment below is reversed and the case is remanded to the Ninth Circuit for further proceedings not inconsistent with this opinion. Reversed and remanded. Mr. Justice Stewart, with whom Mr. Justice Douglas, Mr. Justice Brennan, and Mr. Justice Marshall join, dissenting. On March 8, 1966, the respondent, who fled mainland China for Hong Kong in 1953 and has resided in the United States since May 22, 1960, filed with the Immigration and Naturalization Service an application for adjustment of status pursuant to §203 (a)(7) of the Immigration and Nationality Act, as amended, 8 U. S. C. § 1153 (a)(7) (1964 ed., Supp. V). By the terms of § 203 (a)(7) applicants for adjustment of status are required to show: 1. that they “have been continuously physically present in the United States for a period of at least two years prior to application for adjustment of status;” 2. that “because of persecution or fear of persecution ROSENBERG v. YEE CHIEN WOO 59 49 Stewart, J., dissenting on account of race, religion, or political opinion they have fled (I) from any Communist or Communist-dominated country or area ... ;” 3. that they “are unable or unwilling to return to such country or area on account of race, religion, or political opinion;” 4. that they “are not nationals of the countries or areas in which their application for conditional entry is made . . . .” The District Director denied the respondent’s application for adjustment of status because of “intervening residence in a third country reasonably constituting a termination of the original flight in search of refuge.” An administrative appeal was certified to the Regional Commissioner who held that § 203 (a)(7) does not apply “to aliens who although they had fled from their own country were later resettled in another country.” Section 203 (a)(7) contains no requirement that an applicant shall not have “resettled” prior to his application for conditional entry or adjustment of status. A requirement that an applicant shall not have “firmly resettled” did appear in an earlier version of the law but was eliminated by the 1957 amendments to the Refugee Relief Act of 1953. The requirement was not reintroduced in any of the subsequent enactments. To the contrary, cognizant House and Senate committees rejected a proposal of the Department of State that contained a requirement that a refugee alien must be one who “has not been firmly resettled . . . .” S. Rep. No. 1651, 86th Cong., 2d Sess., 19; H. R. Rep. No. 1433, 86th Cong., 2d Sess., 12. Senator Kennedy, who, as Chairman of the Subcommittee on Immigration and Naturalization of the Senate Judiciary Committee, presided over Senate hearings on the present § 203 (a)(7), stated that refugees “[a]s defined in this bill” “must be currently settled in countries other than their home 419-882 0 - 72 -9 60 OCTOBER TERM, 1970 Stewart, J., dissenting 402 U. S. lands.” Ill Cong. Rec. 24227. This statement is flatly inconsistent with the proposition that the persons described in § 203 (a)(7) cannot have resettled in another country following their original flight. In the face of the unambiguous language of § 203 (a) (7) and this clear legislative history, the Court today holds that a requirement of firm resettlement may properly be read back into the statute so as not to subvert what it considers to be the “central theme” of refugee legislation—“the creation of a haven for the world’s homeless people.” I have no doubt that in enacting refugee legislation Congress intended to provide a haven for the homeless. But the Court offers no reason to believe that Congress did not also intend to help those others who have fled their homeland because of oppression, have found a temporary refuge elsewhere, and now desire to immigrate to the United States. Congress may well have concluded that such people should be preferred to immigrants who have not suffered such hardship. The clear language of §203 (a)(7) demonstrates to me that this was exactly what Congress intended to accomplish. Whether the Attorney General has discretion concerning the order in which §203 (a) (7) applications are processed is a different issue and one that is not before us. The Attorney General has not sought to invoke whatever discretion he may have to process the applications of the homeless before turning to those whose plight may be thought less pressing.1 Indeed it appears 1 Section 203 (c), 8 U. S. C. § 1153 (c) (1964 ed., Supp. V), which provides that visas shall be issued to eligible immigrants in the order in which a petition in behalf of each such immigrant is filed with the Attorney General, does not by its terms apply to visas issued pursuant to §203 (a)(7). And Senator Kennedy stated that under § 203 (a) (7) “the cases of greatest need can be processed at once.” Ill Cong. Rec. 24227. ROSENBERG v. YEE CHIEN WOO 61 49 Stewart, J., dissenting that in many years a number of the visas annually available for § 203 (a)(7) applicants have gone unused.2 The only issue before the Court is whether a refugee is totally barred from any consideration under § 203 (a) (7) by virtue of resettlement following flight. In view of the language of the statute and its legislative history, I cannot but conclude that under §203 (a)(7) the respondent was eligible for the adjustment of status that he sought. For these reasons I dissent. 2 1969 Annual Report, Immigration and Naturalization Service 38. 62 OCTOBER TERM, 1970 Syllabus 402 U.S. UNITED STATES v. VUITCH APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA No. 84. Argued January 12, 1971—Decided April 21, 1971 Appellee physician’s indictments for producing and attempting to produce abortions in violation of D. C. Code § 22-201 was dismissed by the District Court on the ground of unconstitutional vagueness. That court held that the word “health” was overly vague, and, relying on Williams v. United States, 78 U. S. App. D. C. 147, 138 F. 2d 81, held that once an abortion is proved, the burden is on the doctor to persuade the jury that it was necessary to preserve the mother’s life or health. The Government appealed to this Court under the Criminal Appeals Act, 18 U. S. C. § 3731. Held: 1. Although the abortion statute applies only to the District of Columbia, this Court has jurisdiction of the appeal under § 3731, which provides for direct appeals from district court judgments “in all criminal cases . . . dismissing any indictment where such decision is based upon the invalidity ... of the statute upon which the indictment ... is founded.” Once the appeal is properly here, this Court should not refuse to consider it because it might have been taken to the Court of Appeals. Pp. 64-67. 2. The statute is not unconstitutionally vague. Pp. 67-73. (a) Under § 22-201 the burden is on the prosecution to plead and prove that an abortion was not “necessary for the preservation of the mother’s life or health.” Pp. 69-71. (b) The word “health” in the statute, in accord with general usage and modern understanding, and a recent interpretation of § 22-201 by the federal courts, includes psychological as well as physical well-being, and as thus construed is not overly vague. Pp. 71-72. 305 F. Supp. 1032, reversed and remanded. Black, J., delivered the opinion of the Court, in Part I of which Burger, C. J., and Douglas, Stewart, and White, JJ., joined, and in Part II of which Burger, C. J., and Harlan, White, and Black-mun, JJ., joined. White, J., filed a concurring opinion, post, p. 73. Douglas, J., filed an opinion dissenting in part, post, p. 74. UNITED STATES v. VUITCH 63 62 Opinion of the Court Harlan, J., filed an opinion dissenting as to jurisdiction, in which Brennan, Marshall, and Blackmun, JJ., joined, post, p. 81. Stewart, J., filed an opinion dissenting in part, post, p. 96. Blackmun, J., filed a separate opinion, post, p. 97. Samuel Huntington argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General Wilson, Jerome M. Feit, and Roger A. Pauley. Joseph L. Nellis and Norman Dor sen argued the cause for appellee. With Mr. Nellis on the brief was Joseph Sitnick. Briefs of amici curiae were filed by David W. Louisell for Dr. Bart Heffernan; by Alfred L. Scanlan, Thomas J. Ford, and Gary R. Alexander for Dr. William F. Colliton, Jr., et al.; by Robert E. Dunne for Robert L. Sassone; by Marilyn G. Rose for the National Legal Program on Health Problems of the Poor; by Sylvia S. Ellison for Human Rights for Women, Inc.; by Lola Boswell for the Joint Washington Office for Social Concern et al.; and by Ralph Temple, Melvin L. Wulf, and Norma G. Zarky for the American Civil Liberties Union et al. Mr. Justice Black delivered the opinion of the Court.* Appellee Milan Vuitch, a licensed physician, was indicted in the United States District Court for the District of Columbia for producing and attempting to produce abortions in violation of D. C. Code Ann. § 22-201 (1967). Before trial, the district judge granted Vuitch’s motion to dismiss the indictments on the ground that the District of Columbia abortion law was unconstitutionally vague. 305 F. Supp. 1032 (DC 1969). The United States ap * The Chief Justice, Mr. Justice Douglas, Mr. Justice Stewart, and Mr. Justice White join in Part I of this opinion. The Chief Justice, Mr. Justice Harlan, Mr. Justice White, and Mr. Justice Blackmun join in Part II of this opinion. 64 OCTOBER TERM, 1970 Opinion of the Court 402 U. S. pealed to this Court under the Criminal Appeals Act, 18 U. S. C. § 3731. We postponed decision on jurisdiction to the hearing on the merits, 397 U. S. 1061, and requested the parties to brief and argue specified questions on that issue. 399 U. S. 923. We hold that we have jurisdiction and that the statute is not unconstitutionally vague. We reverse. I The first question is whether we have jurisdiction under the Criminal Appeals Act to entertain this direct appeal from the United States District Court for the District of Columbia. That Act1 gives us jurisdiction over direct appeals from district court judgments “in all criminal cases . . . dismissing any indictment . . . where such decision ... is based upon the invalidity ... of the statute upon which the indictment ... is founded.” 18 U. S. C. § 3731. The decision appealed from is a dismissal of indictments on the ground that the District of Columbia abortion law, on which the indictments were based, is unconstitutionally vague. This abortion statute, D. C. Code Ann. § 22-201, is an Act of Congress applicable only in the District of Columbia and we suggested that the parties argue whether a decision holding unconstitutional such a statute is appealable directly to this Court under the Criminal Appeals Act. The literal wording of the Act plainly includes this statute, even though it applies only to the District. A piece of legislation so limited is nevertheless a “statute” in the sense 1 The Act states in pertinent part: “An appeal may be taken by and on behalf of the United States from the district courts direct to the Supreme Court of the United States in all criminal cases in the following instances: “From a decision or judgment setting aside, or dismissing any indictment or information, or any count thereof, where such decision or judgment is based upon the invalidity or construction of the statute upon which the indictment or information is founded.” 18 U. S. C. §3731. UNITED STATES v. VUITCH 65 62 Opinion of the Court that it was duly enacted into law by both Houses of Congress and was signed by the President. And the Criminal Appeals Act contains no language that purports to limit or qualify the term “statute.” On the contrary, the Act authorizes Government appeals from district courts to the Supreme Court in “all criminal cases” where a district court judgment dismissing an indictment is based upon the invalidity of the statute on which the indictment is founded. An examination of the legislative history of the Criminal Appeals Act and its amendments suggests no reason why we should depart from the Act’s literal meaning and exclude District of Columbia (hereafter sometimes D. C.) statutes from its coverage. The committee reports and floor debates contain no discussion indicating that the term “statute” does not include statutes applicable only to the District of Columbia.2 We therefore conclude that we have jurisdiction over this appeal under the Criminal Appeals Act. Our Brother Harlan has argued in dissent that we do not have jurisdiction over this direct appeal. He suggests that such a result is supported by the decision in United States v. Burroughs, 289 U. S. 159 (1933), the policy underlying the Criminal Appeals Act, and the canon of construction that statutes governing direct appeals to this Court should be strictly construed. It is difficult to see how the Burroughs decision lends much force to his argument, since that case held only that the term “district court” in the Criminal Appeals Act did not include the then-existing Supreme Court of the District of Columbia. Id., at 163-164. The dissent goes on to suggest the Act should be construed in light of the 2 See H. R. Conf. Rep. No. 8113, 59th Cong., 2d Sess.; H. R. Rep. No. 2119, 59th Cong., 1st Sess.; H. R. Rep. No. 45 and S. Rep. No. 868, 77th Cong., 1st Sess.; H. R. Conf. Rep. No. 2052, 77th Cong., 2d Sess. 66 OCTOBER TERM, 1970 Opinion of the Court 402U.S. congressional purpose of avoiding “inconsistent enforcement of criminal laws.” Post, at 92. This purpose would not be served by our refusing to decide this case now after it has been orally argued. In the last several years, abortion laws have been repeatedly attacked as unconstitutionally vague in both state and federal courts with widely varying results. A number of these cases are now pending on our docket. A refusal to accept jurisdiction here would only compound confusion for doctors, their patients, and law enforcement officials. As this case makes abundantly clear, a ruling on the validity of a statute applicable only to the District can contribute to great disparities and confusion in the enforcement of criminal laws. Finally, my Brother Harlan’s dissent also appears to rely on the fact that this Court has never accepted jurisdiction over a direct appeal under the Criminal Appeals Act involving the validity of a District of Columbia statute. Post, at 93. Since this Court has never either accepted or rejected jurisdiction of such an appeal, it is difficult to see how the complete absence of precedent in this Court lends any weight whatever to his argument. Neither previous cases nor the purpose behind the Criminal Appeals Act provides any satisfactory reason why the term “statute” should not include those statutes applicable only in the District of Columbia. One other procedural problem remains. We asked the parties to brief the question whether the Government could have appealed this case to the Court of Appeals for the District of Columbia Circuit under D. C. Code Ann. § 23-105 (Supp. 1970), and, if so, whether we should refuse to entertain the appeal here as a matter of sound judicial administration. That D. C. Code provision states: “In all criminal prosecutions the United States ... shall have the same right of appeal that is given to the defendant . . . UNITED STATES v. VUITCH 67 62 Opinion of the Court The relationship between the Criminal Appeals Act and this Code section was considered in Carroll v. United States, 354 U. S. 394, 411 (1957), where the Court concluded: “[C]riminal appeals by the Government in the District of Columbia are not limited to the categories set forth in 18 U. S. C. § 3731 [the Criminal Appeals Act], although as to cases of the type covered by that special jurisdictional statute, its explicit directions will prevail over the general terms of [D. C. Code Ann. §23-105 (Supp. 1970)].” Since we have concluded above that this appeal is covered by the Criminal Appeals Act, it would seem to follow from Carroll that the Act’s provisions control and no appeal could have been taken to the Court of Appeals. Although Carroll seems to be dispositive, it has been suggested that it may now be limited by United States v. Sweet, 399 U. S. 517 (1970), which contains some language suggesting that the Government may be empowered to take an appeal to the Court of Appeals under § 23-105 even when a direct appeal would be proper here under the Criminal Appeals Act. Id., at 518. We do not elaborate upon that suggestion. We only hold that once an appeal is properly here under the Criminal Appeals Act, we should not refuse to consider it because it might have been taken to another court. II We turn now to the merits. Appellee Milan Vuitch was indicted for producing and attempting to produce abortions in violation of D. C. Code Ann. § 22-201. That Act provides in part: “Whoever, by means of any instrument, medicine, drug or other means whatever, procures or produces, or attempts to procure or produce an abortion or 68 OCTOBER TERM, 1970 Opinion of the Court 402U.S. miscarriage on any woman, unless the same were done as necessary for the preservation of the mother’s life or health and under the direction of a competent licensed practitioner of medicine, shall be imprisoned in the penitentiary not less than one year or not more than ten years . . . .” Without waiting for trial, the District Judge dismissed the indictments on the ground that the abortion statute was unconstitutionally vague. In his view, set out substantially in full below,3 the statute was vague for two principal reasons: 1. The fact that once an abortion was proved a physician “is presumed guilty and remains so unless a jury 3 The District Judge stated: “It is suggested that these words [‘as necessary for the preservation of the mother’s life or health’] are not precise; that, as interpreted, they improperly limit the physician in carrying out his professional responsibilities; and that they interfere with a woman’s right to avoid childbirth for any reason. The word ‘health’ is not defined and in fact remains so vague in its interpretation and the practice under the act that there is no indication whether it includes varying degrees of mental as well as physical health. While the law generally has been careful not to interfere with medical judgment of competent physicians in treatment of individual patients, the physician in this instance is placed in a particularly unconscionable position under the conflicting and inadequate interpretations of the D. C. abortion statute now prevailing. The Court of Appeals established by such early cases as Peckham v. United States, 96 U. S. App. D. C. 312, 226 F. 2d 34 (1955), cert, denied 350 U. S. 912, 76 S. Ct. 195, 100 L. Ed. 800, and Williams v. United States, 78 U. S. App. D. C. 147, 138 F. 2d 81, 153 A. L. R. 1213 (1943), that upon the Government establishing that a physician committed an abortion, the burden shifted to the physician to justify his acts. In other words, he is presumed guilty and remains so unless a jury can be persuaded that his acts were necessary for the preservation of the woman’s life or health. These holdings, which may well offend the Fifth Amendment of the Constitution, as interpreted in recent decisions such as Leary v. United States, 395 U. S. 6, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969), and United States v. Gainey, 380 U. S. 63, 85 S. Ct. 754, 13 UNITED STATES v. VUITCH 69 62 Opinion of the Court can be persuaded that his acts were necessary for the preservation of the woman’s life or health.” 2. The presence of the “ambivalent and uncertain word ‘health.’ ” In concluding that the statute places the burden of persuasion on the defendant once the fact of an abortion has been proved,4 the court relied on Williams v. United States, 78 U. S. App. D. C. 147, 138 F. 2d 81 (1943). There the Court of Appeals for the District of Columbia Circuit held that the prosecution was not required to prove as part of its case in chief that the operation was not necessary to preserve life or health. Id., at 147, 149, 138 F. 2d, at 81, 83. The court indicated that once the prosecution established that an abortion had been performed the defendant was required “to come forward with evidence which with or without other evidence is sufficient to create a reasonable doubt of guilt.” Id., at 150, 138 F. 2d, at 84. The District Court here appears to have read Williams as holding that once an abortion is proved, the burden of persuading the jury that it was legal (i. e., necessary to the preservation of the mother’s life or health) is cast upon the physician. Whether or not this is a correct reading of Williams, we L. Ed. 2d 658 (1965), also emphasize the lack of necessary precision in this criminal statute. The jury’s acceptance or nonacceptance of an individual doctor’s interpretation of the ambivalent and uncertain word ‘health’ should not determine whether he stands convicted of a felony, facing ten years’ imprisonment. His professional judgment made in good faith should not be challenged. There is no clear standard to guide either the doctor, the jury or the Court. No body of medical knowledge delineates what degree of mental or physical health or combination of the two is required to make an abortion conducted by a competent physician legal or illegal under the Code. . . .” 305 F. Supp. 1032, 1034. 4 The trial court also cited Peckham v. United States, 96 U. S. App. D. C. 312, 226 F. 2d 34 (1955), as dealing with the D. C. abortion law. However, the opinion in that case does not discuss the burden of proof under the statute. 70 OCTOBER TERM, 1970 Opinion of the Court 402 U. S. believe it is an erroneous interpretation of the statute. Certainly a statute that outlawed only a limited category of abortions but “presumed” guilt whenever the mere fact of abortion was established, would at the very least present serious constitutional problems under this Court’s previous decisions interpreting the Fifth Amendment. Tot v. United States, 319 U. S. 463 (1943); Leary v. United States, 395 U. S. 6, 36 (1969). But of course statutes should be construed whenever possible so as to uphold their constitutionality. The statute does not outlaw all abortions, but only those which are not performed under the direction of a competent, licensed physician, and those not necessary to preserve the mother’s life or health. It is a general guide to the interpretation of criminal statutes that when an exception is incorporated in the enacting clause of a statute, the burden is on the prosecution to plead and prove that the defendant is not within the exception. When Congress passed the District of Columbia abortion law in 1901 and amended it in 1953, it expressly authorized physicians to perform such abortions as are necessary to preserve the mother’s “life or health.” Because abortions were authorized only in more restrictive circumstances under previous D. C. law, the change must represent a judgment by Congress that it is desirable that women be able to obtain abortions needed for the preservation of their lives or health.5 It would be highly anomalous for a legislature to authorize abortions necessary for life or health and then to demand that a doctor, upon pain of one to ten years’ imprisonment, bear the burden of' proving that an abortion he performed fell within that category. Placing such a burden of proof 5 Before 1901 the existing statute allowed abortion only “for the purpose of preserving the life of any woman pregnant . . . W. Abert & B. Lovejoy, The Compiled Statutes in Force in the District of Columbia, c. XVI, § 15, p. 159 (1894). UNITED STATES v. VUITCH 71 62 Opinion of the Court on a doctor would be peculiarly inconsistent with society’s notions of the responsibilities of the medical profession. Generally, doctors are encouraged by society’s expectations, by the strictures of malpractice law and by their own professional standards to give their patients such treatment as is necessary to preserve their health. We are unable to believe that Congress intended that a physician be required to prove his innocence. We therefore hold that under D. C. Code Ann. § 22-201, the burden is on the prosecution to plead and prove that an abortion was not “necessary for the preservation of the mother’s life or health.” There remains the contention that the word “health” is so imprecise and has so uncertain a meaning that it fails to inform a defendant of the charge against him and therefore the statute offends the Due Process Clause of the Constitution. See, e. g., Lanzetta v. New Jersey, 306 U. S. 451 (1939). We hold that it does not. The trial court apparently felt that the term was vague because there “is no indication whether it includes varying degrees of mental as well as physical health.” 305 F. Supp., at 1034. It is true that the legislative history of the statute gives no guidance as to whether “health” refers to both a patient’s mental and physical state. The term “health” was introduced into the law in 1901 when the statute was enacted in substantially its present form. The House Report6 on the bill contains no discussion of the term “health” and there was no Senate report. Nor have we found any District of Columbia cases prior to this District Court decision that shed any light on the question. Since that decision, however, the issue has been considered in Doe v. General Hospital of the District of Columbia, 313 F. Supp. 1170 (DC 1970). There District Judge Waddy construed the statute to 6 H. R. Rep. No. 1017, 56th Cong., 1st Sess. 72 OCTOBER TERM, 1970 Opinion of the Court 402U.S. permit abortions “for mental health reasons whether or not the patient had a previous history of mental defects.” Id., at 1174-1175. The same construction was followed by the United States Court of Appeals for the District of Columbia Circuit in further proceedings in the same case. 140 U. S. App. D. C. 149 and 153, 434 F. 2d 423 and 427 (1970). We see no reason why this interpretation of the statute should not be followed. Certainly this construction accords with the general usage and modern understanding of the word “health,” which includes psychological as well as physical well-being. Indeed Webster’s Dictionary, in accord with that common usage, properly defines health as the “[s]tate of being .. . sound in body [or] mind.” Viewed in this light, the term “health” presents no problem of vagueness. Indeed, whether a particular operation is necessary for a patient’s physical or mental health is a judgment that physicians are obviously called upon to make routinely whenever surgery is considered.7 We therefore hold that properly construed the District of Columbia abortion law is not unconstitutionally vague, and that the trial court erred in dismissing the indictments on that ground. Appellee has suggested that there are other reasons why the dismissal of the indictments should be affirmed. Essentially, these arguments 7 Our Brother Douglas appears to fear that juries might convict doctors in any abortion case simply because some jurors believe all abortions are evil. Of course such a danger exists in all criminal cases, not merely those involving abortions. But there are well-established methods defendants may use to protect themselves against such jury prejudice: continuances, changes of venue, challenges to prospective jurors on voir dire, and motions to set aside verdicts which may have been produced by prejudice. And of course a court should always set aside a jury verdict of guilt when there is not evidence from which a jury could find a defendant guilty beyond a reasonable doubt. UNITED STATES v. VUITCH 73 62 White, J., concurring are based on this Court’s decision in Griswold v. Connecticut, 381 U. S. 479 (1965). Although there was some reference to these arguments in the opinion of the court below, we read it as holding simply that the statute was void for vagueness because it failed in that court’s language to “give that certainty which due process of law considers essential in a criminal statute.” 305 F. Supp., at 1034. Since that question of vagueness was the only issue passed upon by the District Court it is the only issue we reach here. United States v. Borden Co., 308 U. S. 188 (1939); United States v. Petrillo, 332 U. S. 1 (1947); United States v. Blue, 384 U. S. 251, 256 (1966). The judgment is reversed and the case remanded for further proceedings not inconsistent with this opinion. Reversed. Mr. Justice White, concurring. I join the Court’s opinion and judgment. As to the facial vagueness argument, I have these few additional words. This case comes to us unilluminated by facts or record. The District Court’s holding that the District of Columbia statute is unconstitutionally vague on its face because it proscribes all abortions except those necessary for the preservation of the mother’s life or health was a judgment that the average person could not understand which abortions were permitted and which were prohibited. But surely the statute puts everyone on adequate notice that the health of the mother, whatever that phrase means, is the governing standard. It should also be absolutely clear that a doctor is not free to perform an abortion on request without considering whether the patient’s health requires it. No one of average intelligence could believe that under this statute abortions not dictated by health considerations are legal. 74 OCTOBER TERM, 1970 Opinion of Douglas, J. 402 U. S. Thus even if the “health” standard were unconstitutionally vague, which I agree is not the case, the statute is not void on its face since it reaches a class of cases in which the meaning of “health” is irrelevant and no possible vagueness problem could arise. We do not, of course, know whether this is one of those cases. Until we do facial vagueness claims must fail. Cf. United States n. National Dairy Corp., 372 U. S. 29 (1963). Mr. Justice Douglas, dissenting in part. While I agree with Part I of the Court’s opinion that we have jurisdiction over this appeal, I do not think the statute meets the requirements of procedural due process. The District of Columbia Code makes it a felony for a physician to perform an abortion “unless the same were done as necessary for the preservation of the mother’s life or health.” D. C. Code Ann. § 22-201 (1967). I agree with the Court that a physician—within the limits of his own expertise—would be able to say that an abortion at a particular time performed on a designated patient would or would not be necessary for the “preservation” of her “life or health.” That judgment, however, is highly subjective, dependent on the training and insight of the particular physician and his standard as to what is “necessary” for the “preservation” of the mother’s “life or health.” The answers may well differ, physician to physician. Those trained in conventional obstetrics may have one answer; those with deeper psychiatric insight may have another. Each answer is clear to the particular physician. If we could read the Act as making that determination conclusive, not subject to review by judge and by jury, the case would be simple, as Mr. Justice Stewart points out. But that does such violence to the statutory scheme that I believe it is beyond the range of judicial UNITED STATES v. VUITCH 75 62 Opinion of Douglas, J. interpretation so to read the Act. If it is to be revised in that manner, Congress should do it. Hence I read the Act, as did the District Court, as requiring submission to court and jury of the physician’s decision. What will the jury say? The prejudices of jurors are customarily taken care of by challenges for cause and by peremptory challenges. But vagueness of criminal statutes introduces another element that is uncontrollable. Are the concepts so vague that possible offenders have no safe guidelines for their own action? Are the concepts so vague that jurors can give them a gloss and meaning drawn from their own predilections and prejudices? Is the statutory standard so easy to manipulate that although physicians can make goodfaith decisions based on the standard, juries can nonetheless make felons out of them? The Court said in Lanzetta v. New Jersey, 306 U. S. 451, 453, that a “statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process.” A three-judge court in evaluating a Texas statutory standard as to whether an abortion was attempted “for the purpose of saving the life of the mother” said: “How likely must death be? Must death be certain if the abortion is not performed? Is it enough that the woman could not undergo birth without an ascertainably higher possibility of death than would normally be the case? What if the woman threatened suicide if the abortion was not performed? How imminent must death be if the abortion is not performed? Is it sufficient if having the child will shorten the life of the woman by a number of years?” Roe v. Wade, 314 F. Supp. 1217, 1223. 419-882 0 - 72 - 10 76 OCTOBER TERM, 1970 Opinion of Douglas, J. 402 U. S. The Roe case was followed by a three-judge court in Doe v. Scott, 321 F. Supp. 1385, which struck down an Illinois statute which sanctioned an abortion “necessary for the preservation of the woman’s life.” And see People v. Belous, 71 Cal. 2d 954, 458 P. 2d 194. A doctor may well remove an appendix far in advance of rupture in order to prevent a risk that may never materialize. May he act in a similar way under this abortion statute? May he perform abortions on unmarried women who want to avoid the “stigma” of having an illegitimate child? Is bearing a “stigma” a “health” factor? Only in isolated cases? Or is it such whenever the woman is unmarried? Is any unwanted pregnancy a “health” factor because it is a source of anxiety? Is an abortion “necessary” in the statutory sense if the doctor thought that an additional child in a family would unduly tax the mother’s physical well-being by reason of the additional work which would be forced upon her? Would a doctor be violating the law if he performed an abortion because the added expense of another child in the family would drain its resources, leaving an anxious mother with an insufficient budget to buy nutritious food? Is the fate of an unwanted child or the plight of the family into which it is born relevant to the factor of the mother’s “health”? Mr. Justice Holmes, in holding that “unreasonable” restraint of trade was an adequate constitutional standard of criminality, said in Nash v. United States, 229 U. S. 373, 377, that “the law is full of instances where a man’s fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree. If his judgment is wrong, not only may he UNITED STATES v. VUITCH 77 62 Opinion of Douglas, J. incur a fine or a short imprisonment, as here; he may incur the penalty of death.” He wrote in a context of economic regulations which are restrained by few, if any, constitutional guarantees. Where, however, constitutional guarantees are implicated, the standards of certainty are more exacting. Winters v. New York, 333 U. S. 507, 514, 519, held void for vagueness a state statute which as construed made it a crime to print stories of crime “so massed as to incite to crime,” since such a regulatory scheme trenched on First Amendment rights of the press. The standard of “sacrilegious” can be used in such an accordion-like way as to infringe on religious rights protected by the First Amendment. Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 505. The requirement of a “narrowly drawn” statute when the regulation touches a protected constitutional right (Cantwell v. Connecticut, 310 U. S. 296, 311; Thornhill v. Alabama, 310 U. S. 88, 100) is only another facet of the void-for-vagueness problem. What the Court held in Herndon v. Lowry, 301 U. S. 242, is extremely relevant here. The ban of publications made to incite insurrection was held to suffer the vice of vagueness: “The statute, as construed and applied in the appellant’s trial, does not furnish a sufficiently ascertainable standard of guilt. “Every person who attacks existing conditions, who agitates for a change in the form of government, must take the risk that if a jury should be of opinion he ought to have foreseen that his utterances might contribute in any measure to some future forcible resistance to the existing government he may be convicted of the offense of inciting insurrection. . . . The law, as thus construed, licenses the jury to ere- 78 OCTOBER TERM, 1970 Opinion of Douglas, J. 402 U. S. ate its own standard in each case.” Id., at 261, 262, 263. (Italics added.) If these requirements of certainty are not imposed then the triers of fact have “a power to invade imperceptibly (and thus unreviewably) a realm of constitutionally protected personal liberties.” Note, The Void-For-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67, 104 (1960). Abortion touches intimate affairs of the family, of marriage, of sex, which in Griswold v. Connecticut, 381 U. S. 479, we held to involve rights associated with several express constitutional rights and which are summed up in “the right of privacy.” They include the right to procreate (Skinner v. Oklahoma, 316 U. S. 535), the right to marry across the color line (Loving v. Virginia, 388 U. S. 1), the intimate familial relations between children and parents (Meyer v. Nebraska, 262 U. S. 390; Levy v. Louisiana, 391 U. S. 68, 71-72). There is a compelling personal interest in marital privacy and in the limitation of family size. And on the other side is the belief of many that the fetus, once formed, is a member of the human family and that mere personal inconvenience cannot justify the fetus’ destruction. This is not to say that government is powerless to legislate on abortions. Yet the laws enacted must not trench on constitutional guarantees which they can easily do unless closely confined. Abortion statutes deal with conduct which is heavily weighted with religious teachings and ethical concepts.1 1 “There remains the moral issue of abortion as murder. We submit that this is insoluble, a matter of religious philosophy and religious principle and not a matter of fact. We suggest that those who believe abortion is murder need not avail themselves of it. On the other hand, we do not believe that such conviction should limit the freedom of those not bound by identical religious conviction. Although the moral issue hangs like a threatening cloud over any UNITED STATES v. VUITCH 79 62 Opinion of Douglas, J. Mr. Justice Jackson once spoke of the “treacherous grounds we tread when we undertake to translate ethical concepts into legal ones, case by case.” Jordan v. De George, 341 U. S. 223, 242 (dissenting opinion). The difficulty and danger are compounded when religion adds another layer of prejudice.2 The end result is that juries condemn what they personally disapprove. The subject of abortions—like cases involving obscenity 3—is one of the most inflammatory ones to reach open discussion of abortion, the moral issuses are not all one-sided. The psychoanalyst Erik Erikson stated the other side well when he suggested that 'The most deadly of all possible sins is the mutilation of a child’s spirit.’ There can be nothing more destructive to a child’s spirit than being unwanted, and there are few things more disruptive to a woman’s spirit than being forced without love or need into motherhood.” The Right to Abortion: A Psychiatric View 218-219 (Group for the Advancement of Psychiatry, Vol. 7, Pub. No. 75, 1969). 2 Mr. Justice Clark recently wrote: “Throughout history religious belief has wielded a vital influence on society’s attitude regarding abortion. The religious issues involved are perhaps the most frequently debated aspects of abortion. At the center of the ecclesiastical debate is the concept of ‘ensoulment’ or 'person-hood,’ i. e., the time at which the fetus becomes a human organism. The Reverend Joseph F. Donseel of Fordham University admitted that no one can determine with certainty the exact moment at which ‘ensoulment’ occurs, but we must deal with the moral problems of aborting a fetus even if it has not taken place. Many Roman Catholics believe that the soul is a gift of God given at conception. This leads to the conclusion that aborting a pregnancy at any time amounts to the taking of a human life and is therefore against the will of God. Others, including some Catholics, believe that abortion should be legal until the baby is viable, i. e., able to support itself outside the womb. In balancing the evils, the latter conclude that the evil of destroying the fetus is outweighed by the social evils accompanying forced pregnancy and childbirth.” Religion, Morality, and Abortion: A Constitutional Appraisal, 2 Loyola U. L. Rev. (L. A.) 1, 4 (1969). 31 have expressed my views on the vagueness of criminal laws governing obscenity in Dyson v. Stein, 401 U. S. 200, 204 (dissenting opinion) . And see the dissent of Mr. Justice Black in Ginzburg v United States, 383 U. S. 463, 476. 80 OCTOBER TERM, 1970 Opinion of Douglas, J. 402 U. S. the Court. People instantly take sides and the public, from whom juries are drawn, makes up its mind one way or the other before the case is even argued. The interests of the mother and the fetus are opposed. On which side should the State throw its weight? The issue is volatile; and it is resolved by the moral code which an individual has. That means that jurors may give it such meaning as they choose, while physicians are left to operate outside the law. Unless the statutory code of conduct is stable and in very narrow bounds, juries have a wide range and physicians have no reliable guideposts. The words “necessary for the preservation of the mother’s life or health” become free-wheeling concepts, too easily taking on meaning from the juror’s predilections or religious prejudices. I would affirm the dismissal of these indictments and leave to the experts the drafting of abortion laws4 that protect good-faith medical practitioners from the treacheries of the present law. 4 Clark, supra, n. 2, at 10-11. Cf. New York’s new abortion law effective July 1, 1970, N. Y. Penal Law § 125.05, subd. 3 (Supp. 1970-1971): “An abortional act is justifiable when committed upon a female with her consent by a duly licensed physician acting (a) under a reasonable belief that such is necessary to preserve her life, or, (b) within twenty-four weeks from the commencement of her pregnancy, A pregnant female’s commission of an abortional act upon herself is justifiable when she acts upon the advice of a duly licensed physician (1) that such act is necessary to preserve her life, or, (2) within twenty-four weeks from the commencement of her pregnancy. The submission by a female to an abortional act is justifiable when she believes that it is being committed by a duly licensed physician, acting under a reasonable belief that such act is necessary to preserve her life, or, within twenty-four weeks from the commencement of her pregnancy.” And see Hall, The Truth About Abortion in New York, 13 Columbia Forum, Winter 1970, p. 18; Schwartz, The Abortion Laws, 67 Ohio St. Med. J. 33 (1971). UNITED STATES v. VUITCH 81 62 Opinion of Harlan, J. Mr. Justice Harlan, with whom Mr. Justice Brennan, Mr. Justice Marshall, and Mr. Justice Black-mun join, dissenting as to jurisdiction. Appellee Vuitch was indicted in the United States District Court for the District of Columbia for violations of D. C. Code Ann. § 22-201 (1967), the District of Columbia abortion statute. This statute is applicable only within the District of Columbia. On pretrial motion by Vuitch, the indictments were dismissed on the ground that the abortion statute was unconstitutionally vague. The United States appealed directly to this Court under the terms of the Criminal Appeals Act of 1907,18 U. S. C. § 3731, relying on the provision allowing direct appeal “[f]rom a decision or judgment setting aside, or dismissing any indictment or information, or any count thereof, where such decision or judgment is based upon the invalidity or construction of the statute upon which the indictment or information is founded.” 1 It is not con 1 The text of 18 U. S. C. § 3731 was as follows: “An appeal may be taken by and on behalf of the United States from the district courts direct to the Supreme Court of the United States in all criminal cases in the following instances: “From a decision or judgment setting aside, or dismissing any indictment or information, or any count thereof, where such decision or judgment is based upon the invalidity or construction of the statute upon which the indictment or information is founded. “From a decision arresting a judgment of conviction for insuffi-ciency of the indictment or information, where such decision is based upon the invalidity or construction of the statute upon which the indictment or information is founded. “From the decision or judgment sustaining a motion in bar, when the defendant has not been put in jeopardy. “An appeal may be taken by and on behalf of the United States from the district courts to a court of appeals in all criminal cases, in the following instances: “From a decision or judgment setting aside, or dismissing any indictment or information, or any count thereof except where a direct 82 OCTOBER TERM, 1970 Opinion of Harlan, J. 402 U. S. tested that, but for this provision of the Criminal Appeals Act, the Government would have a right of appeal to the Court of Appeals for the District of Columbia Circuit under D. C. Code Ann. §23-105 (Supp. 1970), which provides: “In all criminal prosecutions the United States or the District of Columbia, as the case may be, shall have the same right of appeal that is given to the defendant, including the right to a bill of exceptions: Provided, That if on such appeal it shall be found appeal to the Supreme Court of the United States is provided by this section. “From a decision arresting a judgment of conviction except where a direct appeal to the Supreme Court of the United States is provided by this section. “The appeal in all such cases shall be taken within thirty days after the decision or judgment has been rendered and shall be diligently prosecuted. “Pending the prosecution and determination of the appeal in the foregoing instances, the defendant shall be admitted to bail on his own recognizance. “If an appeal shall be taken, pursuant to this section, to the Supreme Court of the United States which, in the opinion of that Court, should have been taken to a court of appeals, the Supreme Court shall remand the case to the court of appeals, which shall then have jurisdiction to hear and determine the same as if the appeal had been taken to that court in the first instance. “If an appeal shall be taken pursuant to this section to any court of appeals which, in the opinion of such court, should have been taken directly to the Supreme Court of the United States, such court shall certify the case to the Supreme Court of the United States, which shall thereupon have jurisdiction to hear and determine the case to the same extent as if an appeal had been taken directly to that Court.” As noted in United States v. Weller, 401 U. S. 254 (1971), these provisions were amended by § 14 (a) of the Omnibus Crime Control Act of 1970, 84 Stat. 1890. But cases begun in the District Court before the new statute took effect are not affected. See United States v. Weller, supra, at 255 n. 1. UNITED STATES v. VUITCH 83 62 Opinion of Harlan, J. that there was error in the rulings of the court during a trial, a verdict in favor of the defendant shall not be set aside.” The Court today—relying on the generic reference to “statutes” and “all criminal cases” in the text of 18 U. S. C. § 3731 and the absence of an express exclusion of statutes applicable only within the District of Columbia—concludes that 18 U. S. C. § 3731 rather than D. C. Code Ann. § 23-105 provides the proper appellate route for this case. I must disagree. I The historical development of the Government’s right to appeal in criminal cases both in the District of Columbia and throughout the Nation is surveyed in Carroll v. United States, 354 U. S. 394 (1957). Section 23-105 of the D. C. Code was passed in 1901 as § 935 of the Code of 1901. 31 Stat. 1341. Prior to the Criminal Appeals Act of 1907, the Government had no right of appeal in criminal cases outside of the District of Columbia. To remedy this situation, a bill was introduced in the House of Representatives. That bill practically tracked the language of the D. C. statute, and made no provision for direct appeal to this Court. 40 Cong. Rec. 5408. The accompanying House Report described the bill as follows: “The accompanying bill will extend f § 935] of the code of the District of Columbia to all districts in the United States.” H. R. Rep. No. 2119, 59th Cong., 1st Sess., 2 (1906). That bill passed the House, but the Senate Committee on the Judiciary rejected the House approach of simply extending the provisions of the D. C. appeals statute to the rest of the Nation; the Senate Committee instead substituted a more narrowly drawn measure which enumerated specific substantive categories of crim 84 OCTOBER TERM, 1970 Opinion of Harlan, J. 402 U. S. inal cases to be appealable by the Government and allocated jurisdiction over these appeals between the Supreme Court and the then Circuit Courts of Appeals according to the allocation of appellate jurisdiction for civil cases established in the Circuit Court of Appeals Act of 1891. S. Rep. No. 3922, 59th Cong., 1st Sess. (1906). See Carroll v. United States, supra, at 402 n. 11. Even that bill as narrowed could not pass the Senate; it provoked extended debate in which the opponents of the measure focused on the potential for abuse of individual rights arising from repeated court proceedings, delays in appeals, and restraints on personal freedom while the Government prosecuted its appeal. See generally United States v. Sisson, 399 U. S. 267 (1970). The upshot of these debates was that Senator Nelson, the bill’s floor manager in the Senate, agreed to accept a variety of amendments which further narrowed the categories of cases appealable by the Government and made special provision for the defendant’s release on his own recognizance. See 41 Cong. Rec. 2818-2825.2 It is at this point that Senator Clarke of Arkansas offered an amendment limiting the Government’s right to appeal decisions dismissing indictments or arresting judgments for insufficiency of the indictment to instances where the decision was based upon “the invalidity or construction of the statute.” The purpose of that amendment was described by Senator Clarke as follows: “Mr. President, the object of the amendment is to limit the right of appeal upon the part of the General Government to the validity or constitutionality of the statute in which the prosecution is proceeding. It has been enlarged by the addition of another clause, which gives the right of appeal where the 2 The bill had been amended earlier to require the Government to take an appeal within 30 days. 41 Cong. Rec. 2193-2194. UNITED STATES v. VUITCH 85 62 Opinion of Harlan, J. construction by the trial court is such as to decide that there is no offense committed, notwithstanding the validity of the statute, and in other respects the proceeding may remain intact. I think that is a broad enough right to concede to the General Government in the prosecution of persons in the court. “In view of the defects that recent years have disclosed, I do not believe it to be sound policy to go beyond the necessities as they have developed defects in our procedure. A case recently occurring has drawn attention to the fact that if a circuit judge or a district judge holding the circuit should determine that a statute of Congress was invalid, the United States is without means of having that matter submitted to a tribunal that under the Constitution has power to settle that question. I do not believe the remedy ought to be any wider than the mischief that has been disclosed. I do not believe that any additional advantages ought to be given to the General Government in the prosecution of persons arraigned in court, but I do believe the paragraph ought to be perfected in that behalf, so as to provide that there shall be an appeal to the court having authority to give uniformity to the practice which shall prevail in all the courts of the United States, and that they shall be ready to say, and say promptly, what the statute means and whether or not it is a valid statute. “So I think this amendment gives expression to the proposition that the remedy we provide here now should be no wider than the defect that has been disclosed in the preceding criminal procedure; and that is that whenever the validity of a statute has been adversely decided by a trial court, wherever its 86 OCTOBER TERM, 1970 Opinion of Harlan, J. 402U.S. unconstitutionality has been pronounced by a trial court, the Government ought to have the right to promptly submit that to the tribunal having authority to dispose of such questions in order that there may be a uniform enforcement of the law throughout the entire limits of the United States. “This is the purpose I have, Mr. President, and having discussed it with the distinguished Senator from Wisconsin . . . and the distinguished Senator from Minnesota [Mr. Nelson], we agreed that that would probably meet the defect.” 41 Cong. Rec. 2819-2820. See generally 41 Cong. Rec. 2819-2822. The bill as thus amended passed the Senate; the House disagreed to the Senate amendment, but yielded in conference. The bill in conference was amended to provide for direct appeals to the Supreme Court. See H. R. Conf. Rep. No. 8113, 59th Cong., 2d Sess. (1907). No explanation was given in the conference report for the exclusive direct appeal route. I draw from these legislative materials the following relevant propositions: (1) The Congress was definitely advertent to the existence of a Governmental appeal right in criminal cases within the District; (2) the Congress explicitly rejected the simple approach of extending the D. C. provision to the Nation; (3) the particular provision of the Act relied on by the Government as supporting its direct appeal in this case was amended with a view to limiting its reach to a relatively precise defect, i. e., the debilitating effect on the enforcement of criminal laws arising from conflicting judicial interpretations; and (4) the substitution of an exclusive direct appeal to this Court, while not expressly explained, is perfectly compatible with the goal of promptly achieving uniformity in construction of statutes applicable nationwide, while at the same time being wholly unnecessary to the resolu- UNITED STATES v. VUITCH 87 62 Opinion of Harlan, J. tion of conflicting district court constructions of local D. C. statutes, given the existence of a right of appeal to the Court of Appeals for the District of Columbia Circuit. II The question of overlap between the appellate routes available to the Government in criminal cases under the D. C. Code and 18 U. S. C. § 3731 was first dealt with by this Court in United States n. Burroughs, 289 U. S. 159 (1933). In Burroughs the defendants were indicted in the then Supreme Court of the District of Columbia for violation of the Federal Corrupt Practices Act, a statute of nationwide applicability. They successfully demurred on two grounds: one involving the construction of the statute, and the other involving the sufficiency of the indictment as a pleading. The Government took an appeal to the Court of Appeals for the District of Columbia under the D. C. appeals statute. The appellate court certified to this Court the question whether it had jurisdiction over an appeal where a § 3731-type challenge was joined with a challenge to the sufficiency of the indictment as a pleading. The Court disposed of the question by holding that the Criminal Appeals Act is inapplicable to any criminal case appealable under the provisions of the D. C. Code: “The Criminal Appeals Act, in naming the courts from which appeals may be taken to this court, employs the phrase ‘district courts’; not ‘courts of the United States,’ or ‘courts exercising the same jurisdiction as district courts’ We need not, however, determine whether the statute should be construed to embrace criminal cases tried in the Supreme Court of the District if § 935 of the District Code were not in effect. That section deals comprehensively with appeals in criminal cases from all of the courts of first instance of the District and 88 OCTOBER TERM, 1970 Opinion of Harlan, J. 402U.S. confers on the Court of Appeals jurisdiction of appeals by the Government seeking review of the judgments of those courts. The Criminal Appeals Act, on the other hand, affects only certain specified classes of decisions in district courts, contains no repealing clause, and no reference to the courts of the District of Columbia or the territorial courts, upon many of which jurisdiction is conferred by language quite similar to that of the Code of Law of the District. We cannot construe it as impliedly repealing the complete appellate system created for the District of Columbia by § 935 of the Code, in the absence of expression on the part of Congress indicating that purpose. Implied repeals are not favored; and if effect can reasonably be given to both statutes, the presumption is that the earlier is intended to remain in force. . . 289 U. S., at 163-164.3 (Emphasis added.) The holding in Burroughs established a complete separation of the two statutory schemes for Government appeals in criminal cases; the essence of the Court’s rationale was a presumption against implied repeals. In 1942, Congress amended the Criminal Appeals Act to provide for Government appeals to the Courts of Appeals from all decisions dismissing indictments or arresting judgments of convictions except where a right of direct appeal to this Court exists. 56 Stat. 271. The new amendment expressly included the United States Court of Appeals for the District of Columbia Circuit as 3 The Court’s opinion characterizes Burroughs as having “held only that the term 'district court’ in the Criminal Appeals Act did not include the then-existing Supreme Court of the District of Columbia.” Ante, at 65. As I read the italicized portion of the above-quoted passage, that is the precise question that the Burroughs Court concluded it did not have to decide, in light of its holding that the Criminal Appeals Act could not, by implication, effect the repeal of § 935 of the District Code. UNITED STATES v. VUITCH 89 62 Opinion of Harlan, J. one of the intermediate appellate tribunals to which the Government could appeal;4 in addition, the Act added a new provision to the Judicial Code establishing appellate jurisdiction in the then circuit courts of appeals “in criminal cases on appeals taken by the United States in cases where such appeals are permitted by law.” 56 Stat. 272. The latter provision also expressly incorporated the United States Court of Appeals for the District of Columbia Circuit.5 Ibid. The legislative history of the 1942 amendment offers no explication of congressional intent in including the D. C. courts within the Act.6 It is certain that this amendment generates some form of overlap between the two statutory schemes for Governmental appeals in criminal cases. In Carroll v. United States, 354 U. S. 394, 411 (1957), the Court recognized the new situation created by the 1942 amendment: “It may be concluded, then, that even today criminal appeals by the Government in the District of Columbia are not limited to the categories set forth in 18 U. S. C. § 3731, although as to cases of the type covered by that special jurisdictional statute, its explicit directions will prevail over the general terms of [the D. C. statute] . . . .” That, however, leaves open the question which cases come within the categories set forth in 18 U. S. C. § 3731. 4 These explicit references were subsequently omitted by amendment in 1949, 63 Stat. 97, which altered the language of the statute to conform to the changed nomenclature of the federal courts. 5 This last provision was an amendment to 28 U. S. C. § 225 (1940 ed.); see 56 Stat. 272 and Carroll n. United States, supra, at 398 n. 5. 6 The focus was on the decision to accord the Government a right of appeal to the courts of appeals where no direct appeal to this Court lay. See H. R. Rep. No. 45, 77th Cong., 1st Sess. (1941); S. Rep. No. 868, 77th Cong., 1st Sess. (1941). 90 OCTOBER TERM, 1970 Opinion of Harlan, J. 402 U. S. Ill After this Court’s holding in Burroughs, it was clear that if Congress wished to effectuate any displacement of the pre-1907 route for Government appeals of criminal cases within the District of Columbia, some express manifestation of its intent was required. The 1942 amendment followed the Burroughs decision. Since Congress then acted to create some overlap between the two statutes without further limiting the categories of directly appealable criminal cases, it may be argued that we should presume Congress intended, as of 1942, to embrace within the very special appeals procedures of 18 U. S. C. § 3731 criminal cases based upon statutes applicable only within the District. But that presumption from a completely silent legislative record flies in the face of the principle that statutes creating a right of direct appeal to this Court should be narrowly construed. Cf. Swift de Co. n. Wickham, 382 U. S. Ill, 128-129 (1965); Florida Lime Growers v. Jacobsen, 362 U. S. 73, 92-93 (1960) (Frankfurter, J., dissenting). And, in light of the legislative history of the 1907 Act and this Court’s explicit holding in Burroughs that the 1907 Act had no impact on cases appealable under the D. C. provision, it is especially inappropriate to rely on the absence of any further limiting language in the 1942 amendment as a justification for reading the term “statute” as encompassing criminal prosecutions in the District based on local as well as nationwide statutes. The legislative history of the 1907 Act suggests a perfectly plausible reason for interpreting the language “based upon the invalidity or construction of the statute” as excluding D. C. statutes: that language was put in the Act by Senator Clarke with the express intention of limiting the Act’s goal to remedying the precise defect of UNITED STATES v. VUITCH 91 62 Opinion of Harlan, J. inconsistent enforcement of criminal statutes arising from the lack of a Government appeal. The Court of Appeals for the District of Columbia Circuit constitutes a perfectly adequate appellate tribunal for resolving conflicting interpretations given local statutes by judges within the District of Columbia.7 Where, however, the Government brings a prosecution in the District of Columbia based on a statute of nationwide applicability, the Court of Appeals for the District of Columbia Circuit cannot achieve uniformity in the enforcement of the statute. As an original proposition, then, a construction of the relevant provisions of the 1907 Act as excluding criminal cases in the District brought under local statutes but including cases brought under nationwide statutes would have been consistent both with the express purpose of Senator Clarke’s amendment and the canon of strict construction as applied to direct appeals statutes.8 But the 7 The Government suggests a construction of the Criminal Appeals Act excluding D. C. statutes would require the Court to exclude other criminal statutes of only limited territorial application, e. g., 18 U. S. C. §§ 1111-1112 (punishing homicide “[w]ithin the special maritime and territorial jurisdiction of the United States”); 18 U. S. C. §§1151-1165 (regulating offenses within Indian territory). See Brief for the United States 15—16. But I would not construe 18 U. S. C. § 3731 as excluding D. C. criminal cases punishable under D. C. statutes because they are of limited territorial application; rather, the point is that given the existence of a prior right of Government appeal, the risks of disunifonnity which Senator Clarke described the statute as intended to cure do not exist. 8 The Government suggests, in its Supplemental Memorandum for the United States 6-7, that a construction of the 1907 Act excluding statutes applicable only within the District of Columbia from the scope of the first two provisions leads to the “anomalous consequence” that 18 U. S. C. § 3731 would still allow a direct appeal in a D. C. case where the motion-in-bar provision is concerned. E. g., United States v. Sweet, 399 U. S. 517 (1970). The alleged “anomaly” would seem to argue for the conclusion that D. C. cases involving the motion-in-bar provision are not directly appealable 419-882 0 - 72 - 11 92 OCTOBER TERM, 1970 Opinion of Harlan, J. 402 U. S. Court in Burroughs took the position that Congress could not displace the pre-existing appellate route to any extent without indicating an express intent to do so; Burroughs, significantly, involved a prosecution under a statute of nationwide applicability. Subsequently, Congress did expressly indicate an intent to displace the alternative appellate route available within the District. The extent of that displacement, I think, should now be measured by the express goal of the relevant provision of the 1907 Act, as limited by Senator Clarke: avoidance of inconsistent enforcement of criminal laws. That theory of legislative purpose—combined with the Burroughs holding that Congress should be required to affirmatively indicate an intent to displace the prior appellate route— yields an interpretation of the 1907 Act as amended in 1942 which is consistent with the canon of strict construction generally applied to direct appeals statutes.9 here, either. Certainly, the Court’s disposition in Sweet would not foreclose that result. In any event, the purpose Senator Clarke had in mind in offering his limiting amendment with regard to the first two provisions of 18 U. S. C. §3731 was rather clearly expressed; that he failed to address himself to the motion-in-bar provision—which, after all, received very little attention in the prolonged debates on the floor of the Senate—hardly justifies an expansive reading of the other provisions of the Act. 9 The Government relies principally on Shapiro v. Thompson, 394 U. S. 618, 625 n. 4 (1969), as supporting its construction of the generic reference to “statutes” in 18 U. S. C. §3731 to include statutes applicable only within the District of Columbia. Shapiro dealt with 28 U. S. C. § 2282, which requires a three-judge court to hear requests for injunctions against the enforcement of “any Act of Congress” when the ground for the requested relief is the alleged unconstitutionality of the Act. Decisions of such three-judge courts are, under the circumstances set forth in 28 U. S. C. § 1253, directly appealable to this Court. In Shapiro, the Court noted at least one prior instance where the Court had taken jurisdiction over a case involving a statute applicable only within the District and then stated: “Section 2282 requires a three-judge court to hear a UNITED STATES v. VUITCH 93 62 Opinion of Harlan, J. IV I have little doubt that, had the Criminal Appeals Act not been recently amended to dispense with direct appeals to this Court, see n. 1, supra, the interpretation of the Act I have suggested would be adopted by the Court. This Court has never taken jurisdiction over a direct appeal from a dismissal of a prosecution brought in the District of Columbia for violation of a statute applicable within the District. It is worth noting that, given the challenge to the constitutionality of ‘any Act of Congress? We see no reason to make an exception for Acts of Congress pertaining to the District of Columbia.” 394 U. S., at 625 n. 4 (emphasis in original). The Shapiro approach is obviously inappropriate for the present problem. First, despite the Government’s assertion to the contrary, see Brief for the United States 15, the phrase “any Act of Congress” is arguably broader than a generic reference to “statutes.” Indeed, the Shapiro Court explicitly chose to emphasize the presence of the word “any” in the relevant portion of that statute. Second, while an exercise of jurisdiction in a case where jurisdiction is not challenged is of little precedential value, the Court in Shapiro still chose to take note of such a prior case; in the present context, this Court has never taken jurisdiction of a § 3731 appeal involving a statute applicable only within the District. Third, and most importantly, Congress at the time of the three-judge court Acts altered the principles of both original and appellate jurisdiction for the substantive categories of litigation involved; the new procedural routes reflect crucial considerations of comity between sovereigns and among the branches of the Federal Government. See generally Currie, The Three-Judge District Court in Constitutional Litigation, 32 U. Chi. L. Rev. 1 (1964). There is no legislative history supporting the notion that the new procedures were narrowed to alleviate particular defects of inconsistent constitutional interpretation due to the absence of any appellate route for the substantive categories of cases to be included within the Act. In these circumstances, it is fair to conclude that the principle of strict construction applicable to such statutes must yield to the “inert language” of the statute. Cf. Florida Lime Growers v. Jacobsen, 362 U. S. 73, 92 (1960) (Frankfurter, J., dissenting). 94 OCTOBER TERM, 1970 Opinion of Harlan, J. 402 U. S. Court’s adherence to the principles of Carroll v. United States, supra, the rather absurd waste of our judicial resources on cases such as United States v. Waters, 175 F. 2d 340, appeal dismissed on motion of the United States, 335 U. S. 869 (1948), and United States v. Sweet, 399 U. S. 517 (1970), see n. 8, supra, could not even be avoided by the exercise of governmental discretion in choosing appellate routes. In light of Carroll, I cannot believe that a perfectly acceptable reading of congressional purpose underpinning the definition of categories of cases directly appealable under 18 U. S. C. § 3731 which excludes statutes applicable only within the District of Columbia would have been turned down by the Court. Of course, the recent elimination of the direct appeal route removes a great deal of the incentive to continue the stringent standards of construction with respect to this statute that have traditionally prevailed in this Court. Indeed, at this stage of the game, the canon of strict construction produces the ironic result of compelling a relatively greater expenditure of judicial energies in assessing our jurisdiction over the remainder of the criminal cases pending in the district courts of the Nation at the time of the most recent amendment than would be involved in deciding those cases on the merits. Nonetheless, this very Term we have indicated that we intend to adhere to the rules of construction evolved by this Court during the long and tortuous history of this statute. United States v. Weller, 401 U. S. 254 (1971). The only response we are offered to the reading of congressional purpose I have suggested is that the interests of avoiding inconsistent enforcement of criminal laws argues for exercising jurisdiction over this case because similar statutes in other jurisdictions are under attack on vagueness grounds. See the Court’s opinion, at 65-66. Surely those of my Brethren who subscribe to the views UNITED STATES v. VUITCH 95 62 Opinion of Harlan, J. on jurisdiction expressed in the opinion of the Court must recognize that we cannot limit the category of appealable cases under this provision of the Act to prosecutions brought under D. C. statutes which are (a) duplicated in other jurisdictions, and (b) under attack on similar federal question grounds in other jurisdictions. The proffered response is, therefore, not truly a reason for concluding we have jurisdiction over the relevant category of cases; rather, it is a reason for exercising our power in this one case to settle Dr. Vuitch’s vagueness claim in spite of the absence of the jurisdictional prerequisites which legitimize the exercise of that judicial power. V Having concluded that the Government cannot directly appeal the dismissal of the indictments to this Court under the provisions of 18 U. S. C. § 3731, it also follows that we cannot utilize the remand provisions of that statute to reroute the appeal to the Court of Appeals for the District of Columbia Circuit. However, we do have jurisdiction to determine our jurisdiction, and, in the analogous three-judge court situation where an alternative appellate route exists but the statute according this Court direct jurisdiction over the certain appeals includes no remand procedure, this Court has vacated the judgment of the court of original jurisdiction and remanded the case to that court for the entry of a fresh decree from which timely appeal may be taken to the proper appellate tribunal. Rockefeller v. Catholic Medical Center of Brooklyn & Queens, 397 U. S. 820 (1970). The instant case, of course, is a criminal prosecution, and there is a consideration not present in the three-judge court situation: i. e., the additional anxiety caused the defendant by virtue of the Government’s erroneous choice of appellate routes. But, while 18 U. S. C. § 3731 96 OCTOBER TERM, 1970 Opinion of Stewart, J. 402U.S. cannot empower us to transfer the case, that statute is still relevant as an expression of congressional policy to save the Government’s appeal where an erroneous choice of appellate routes is made, even at the expense of additional anxiety to the defendant. Accordingly, I think the proper disposition of this case would be to vacate the judgment of the District Court and remand the case for the entry of a fresh judgment from which the Government could take a timely appeal to the Court of Appeals for the District of Columbia Circuit pursuant to D. C. Code Ann. § 23-105. VI Notwithstanding the views on jurisdiction expressed above, and speaking only for myself, and not for those of my Brethren who agree with my discussion of the jurisdictional issue in this case, I have concluded, substantially for the reasons set forth in Mr. Justice Blackmun’s separate opinion, that I should also reach the merits. Accordingly, I concur in Part II of the Court’s opinion and the judgment of the Court. Mr. Justice Stewart, dissenting in part. I agree that we have jurisdiction of this appeal for the reasons stated in Part I of the Court’s opinion. As to the merits of this controversy, I share at least some of the constitutional doubts about the abortion statute expressed by the District Court. But, as this Court today correctly points out, “statutes should be construed whenever possible so as to uphold their constitutionality.” The statute before us can be so construed, I think, simply by extending the reasoning of the Court’s opinion to its logical conclusion. The statute legalizes any abortion performed “under the direction of a competent licensed practitioner of medicine” if “necessary for the preservation of the mother’s life or health.” Under the statute, therefore, UNITED STATES v. VUITCH 97 62 Opinion of Blackmun, J. the legal practice of medicine in the District of Columbia includes the performing of abortions. For the practice of medicine consists of doing those things which, in the judgment of a physician, are necessary to preserve a patient’s life or health. As the Court says, “whether a particular operation is necessary for a patient’s physical or mental health is a judgment that physicians are obviously called upon to make routinely whenever surgery is considered.” It follows, I think, that when a physician has exercised his judgment in favor of performing an abortion, he has, by hypothesis, not violated the statute. To put it another way, I think the question of whether the performance of an abortion is “necessary for the . . . mother’s life or health” is entrusted under the statute exclusively to those licensed to practice medicine, without the overhanging risk of incurring criminal liability at the hands of a second-guessing lay jury. I would hold, therefore, that “a competent licensed practitioner of medicine” is wholly immune from being charged with the commission of a criminal offense under this law. It is true that the statute can be construed in other ways, as Mr. Justice Douglas has made clear. But I would give it the reading I have indicated “in the candid service of avoiding a serious constitutional doubt.” United States v. Rumely, 345 U. S. 41, 47. Mr. Justice Blackmun. Although I join Mr. Justice Harlan in his conclusion that this case is not properly here by direct appeal under 18 U. S. C. § 3731, a majority, and thus the Court, holds otherwise. The case is therefore here and requires decision. The five Justices constituting the majority, however, are divided on the merits. One feels that D. C. Code Ann. § 22-201 (1967) lacks the requirements of proce 98 OCTOBER TERM, 1970 Opinion of Blackmun, J. 402U.S. dural due process and would affirm the dismissal of the indictments. One would hold that a licensed physician is immune from charge under the statute. Three would hold that, properly construed, the statute is not unconstitutionally vague and that the dismissal of the indictments on that ground was error. Because of the inability of the jurisdictional-issue majority to agree upon the disposition of the case, I feel obligated not to remain silent as to the merits. See Screws v. United States, 325 U. S. 91, 134 (1945) (addendum by Mr. Justice Rutledge); United States v. Jorn, 400 U. S. 470, 487—488 (1971) (statement of Black and Brennan, JJ.); Mills n. Alabama, 384 U. S. 214, 222-223 (1966) (separate opinion of Harlan, J.); Kesler v. Department of Public Safety, 369 U. S. 153, 174, 179 (1962) (Stewart, J., concurring in part, and Warren, C. J., dissenting). Assuming, as I must in the light of the Court’s decision, that the Court does have jurisdiction of the appeal, I join Part II of Mr. Justice Black’s opinion and the judgment of the Court. EHLERT v. UNITED STATES 99 Syllabus EHLERT v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 120. Argued January 13, 1971—Decided April 21, 1971 The refusal of petitioner’s local board to reopen his classification and pass on his conscientious objector claim, made after mailing of his induction notice but before induction, on the basis of a Selective Service regulation that permitted post-induction notice reopening only for a “change in the registrant’s status resulting from circumstances over which the registrant had no control,” held not unreasonable as a limitation on the time within which a local board must act on such a claim, in light of the Government’s assurance that one whose beliefs assertedly crystallize after mailing of an induction notice will have full opportunity to obtain an inservice determination of his claim without having to perform combatant training or service pending such disposition. Pp. 101-107. 422 F. 2d 332, affirmed. Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and Black, Harlan, White, and Blackmun, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 108. Brennan, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 119. Paul N. Halvonik argued the cause for petitioner. With him on the briefs were Stanley J. Friedman, Mortimer H. Herzstein, and Marvin M. Karpatkin. Assistant Attorney General Rehnquist argued the cause for the United States. On the brief were Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Marshall Tamor Golding. Norman Leonard filed a brief for the Lawyers’ Selective Service Panel of San Francisco as amicus curiae urging reversal. 100 OCTOBER TERM, 1970 Opinion of the Court 402 U. S. Mr. Justice Stewart delivered the opinion of the Court. The question in this case is whether a Selective Service local board must reopen the classification of a registrant who claims that his conscientious objection to war in any form crystallized between the mailing of his notice to report for induction and his scheduled induction date. The petitioner before us made no claim to conscientious objector status until after he received his induction notice. Before the induction date, he then wrote to his local board and asked to be allowed to present his claim. He represented that his views had matured only after the induction notice had made immediate the prospect of military service. After Selective Service proceedings not material here, the petitioner’s local board notified him that it had declined to reopen his classification because the crystallization of his conscientious objection did not constitute the “change in the registrant’s status resulting from circumstances over which the registrant had no control” required for post-induction notice reopening under a Selective Service regulation.1 The petitioner then refused to submit to induction, and a grand jury in the United States District Court for the Northern District of California indicted him for violation of the Military Selective Service Act of 1967.2 132 CFR § 1625.2 (1971) provides, in pertinent part: “[T]he classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction ... or an Order to Report for Civilian Work and Statement of Employer . . . unless the local board first specifically finds there has been a change in the registrant’s status resulting from circumstances over which the registrant had no control.” 2 Military Selective Service Act of 1967, § 12 (a), 50 U. S. C. App. §462 (a) (1964 ed., Supp. V), provides in pertinent part: “[A]ny person . . . who . . . refuses . . . service in the armed forces ... or who in any manner shall knowingly fail or neglect or refuse to perform any duty required of him under or in the EHLERT v. UNITED STATES 101 99 Opinion of the Court The petitioner waived trial by jury, and the District Court, holding that ripening of conscientious objector views could not be a circumstance over which a registrant had no control, found the petitioner guilty. The conviction was affirmed by the United States Court of Appeals for the Ninth Circuit, sitting en banc, and we granted certiorari, 397 U. S. 1074, to resolve a conflict among the circuits over the interpretation of the governing Selective Service regulation.3 A regulation explicitly providing that no conscientious objector claim could be considered by a local board unless filed before the mailing of an induction notice would, we think, be perfectly valid, provided that no inductee could be ordered to combatant training or service before a prompt, fair, and proper in-service determination of his claim. The Military Selective Service Act of 1967 confers on the President authority “to prescribe the necessary rules and regulations to carry out the provisions of this title . . . .” 50 U. S. C. App. §460 (b)(1). To read out of the authority delegated by this section the power to make reasonable timeliness rules would render it impossible to require the submission, before mailing execution of this title . . . shall, upon conviction in any district court of the United States of competent jurisdiction, be punished by imprisonment for not more than five years or a fine of not more than $10,000, or by both such fine and imprisonment . . . .” 3 In accord with the position of the Ninth Circuit, see United States v. Al-Majied Muhammad, 364 F. 2d 223, 224 (CA4); Davis v. United States, 374 F. 2d 1, 4 (CA5); United States v. Taylor, 351 F. 2d 228,230 (CA6) (semble). Contra, United States v. Gearey, 368 F. 2d 144, 150 (CA2), 379 F. 2d 915 (after remand), cert, denied, 389 U. S. 959; Scott v. Commanding Officer, 431 F. 2d 1132, 1136 (CA3); United States v. Nordlof, 440 F. 2d 840 (CA7); Keene v. United States, 266 F. 2d 378, 384 (CAIO); Swift v. Director of Selective Service,- U. S. App. D. C.---, 448 F. 2d 1147. See also United States v. Stoppel-man, 406 F. 2d 127, 131 n. 7 (CAI) (dictum), cert, denied, 395 U. S. 981. 102 OCTOBER TERM, 1970 Opinion of the Court 402 U. S. of an induction notice, of a claim matured before that time. The System needs and has the power to make reasonable timeliness rules for the presentation of claims to exemption from service.4 A regulation barring post-induction notice presentation of conscientious objector claims, with the proviso mentioned, would be entirely reasonable as a timeliness rule. Selective Service boards must already handle prenotice claims, and the military has procedures for processing conscientious objector claims that mature in the service. Allocation of the burden of handling claims that first arise in the brief period between notice and induction seems well within the discretion of those concerned with choosing the most feasible means for operating the Selective Service and military systems. Further, requiring in-service presentation of post-notice claims would deprive no registrant of any legal right and would not leave a “no man’s land” time period in which a claim then arising could not be presented in any forum. The only unconditional right conferred by statute upon conscientious objectors is exemption from combatant training and service.5 The Selective Service law, indeed, provides for noncombatant training and service for those objectors to whose induction there is no ob- 4 The power of the Selective Service System to set reasonable time limits for presentation of claims, with the penalty of forfeiture for noncompliance, seems never to have been questioned by any court. See, e. g., United States v. Gearey, 368 F. 2d 144, 149 and n. 9 (CA2). 6 The statute on conscientious objection begins: “Nothing contained in this title . . . shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.” Military Selective Service Act of 1967, §6 (j), 81 Stat. 104, 50 U. S. C. App. §456 (j) (1964 ed., Supp. V). EHLERT v. UNITED STATES 103 99 Opinion of the Court stacle.6 The right to civilian service “in lieu of . . . induction” arises only if a registrant’s “claim is sustained by the local board.” It does not follow, given the power to make reasonable timeliness rules, that a registrant has an unconditional right to present his claim to the local board before induction, any more than he has such a right after induction. Congress seems rather carefully to have confined the unconditional right created by the statute to immunity from combatant training and service. Consequently, requiring those whose conscientious objection has not crystallized until after their induction notices to present their claims after induction would work no deprivation of statutory rights, so long as the claimants were not subjected to combatant training or service until their claims had been acted upon. That those whose views are late in crystallizing can be required to wait, however, does not mean they can be deprived of a full and fair opportunity to present the merits of their conscientious objector claims for consideration under the same substantive criteria that must guide the Selective Service System. See Welsh v. United States, 398 U. S. 333. The very assertion of crystallization just before induction might cast doubt upon the 6 Ibid,.: “Any person claiming exemption from combatant training and service because of such conscientious objections whose claim is sustained by the local board shall, if he is inducted into the armed forces under this title ... be assigned to noncombatant service as defined by the President, or shall, if he is found to be conscientiously opposed to participation in such noncombatant service, in lieu of such induction, be ordered by his local board, subject to such regulations as the President may prescribe, to perform for a period equal to the period prescribed in [Military Selective Service Act of 1967, § 4 (b), 50 U. S. C. App. § 454 (b)] such civilian work contributing to the maintenance of the national health, safety, or interest as the local board pursuant to Presidential regulations may deem appropriate . . . .” 104 OCTOBER TERM, 1970 Opinion of the Court 402 U. S. genuineness of some claims, but there is no reason to suppose that such claims could not be every bit as bona fide and substantial as the claims of those whose conscientious objection ripens before notice or after induction. It would be wholly arbitrary to deny the late crystallizer a full opportunity to obtain a determination on the merits of his claim to exemption from combatant training and service just because his conscientious scruples took shape during a brief period in legal limbo.7 A system in which such persons could present their claims after induction, with the assurance of no combatant training or service before opportunity for a ruling on the merits, would be wholly consistent with the conscientious objector statute.8 The regulation we must interpret in this case does not unambiguously create such a system. Rather, it bars post-notice reopening “unless the local board first specifically finds there has been a change in the registrant’s status resulting from circumstances over which the registrant had no control.” It is clear that the regulation was meant to cover at least such nonvolitional changes as injury to the registrant or death in his family making him the sole surviving son. The Government urges that 7 Since such a “no man’s land” would be intolerable, our decision today simply involves settling in which forum late crystallizers must have an opportunity for a ruling on the merits. Whether they must have such an opportunity at all cannot be open to question. Of course, a claimant who, after induction, declined to utilize available administrative procedures or who failed to observe reasonable and properly publicized time cutoffs might forfeit his claim. 8 There is no reason to suppose that a Selective Service local board, faced with the need to fill its monthly quotas, would be more sensitive in applying the legal standards that govern all conscientious objector claims than would the Army, whose mission is to train inductees as members of military units of maximum effectiveness and morale. EHLERT v. UNITED STATES 105 99 Opinion of the Court the regulation be confined to just such “objectively identifiable” and “extraneous” events and circumstances. The petitioner contends that post-notice crystallization of conscientious objection is both a “circumstance” within the meaning of the regulation and one over which the registrant has no control. We need not take sides in the somewhat theological debates about the nature of “control” over one’s own conscience that the phrasing of this regulation has forced upon so many federal courts. Rather, since the meaning of the language is not free from doubt, we are obligated to regard as controlling a reasonable, consistently applied administrative interpretation if the Government’s be such. Immigration Service v. Stanisic, 395 U. S. 62, 72; Thorpe v. Housing Authority, 393 U. S. 268, 276; Udall v. Tailman, 380 U. S. 1, 16-17; Bowles v. Seminole Rock Ac Sand Co., 325 U. S. 410, 413-414. The Government argues for an interpretation identical in effect with the unambiguous rule hypothecated above, which, we have said, would clearly be a reasonable timeliness rule, consistent with the conscientious objector statute. The Government’s interpretation is a plausible construction of the language of the actual regulation, though admittedly not the only possible one. Given the ambiguity of the language, it is wholly rational to confine it to those “objectively identifiable” and “extraneous” circumstances that are most likely to prove manageable without putting undue burdens on the administration of the Selective Service System. It appears, moreover, that this position has been consistently urged by the Government in litigation when it was not foreclosed by adverse local precedent. There remains for consideration whether the conditions for the validity of such a rule, discussed above, are met in practice. It appears undisputed that when an inductee 106 OCTOBER TERM, 1970 Opinion of the Court 402 U. S. presents a prima facie claim of conscientious objection that complies with timeliness rules for in-service cognizability, he is given duty involving the minimum practicable conflict with his asserted beliefs.9 It is thus evident that armed forces policy substantially meets the requirement of no combat training or service before an opportunity for a ruling on the claim. As for the absence of any no man’s land, the pertinent military regulations are somewhat inconsistent in their phrasing, perhaps because of the sharp division among the courts of appeals. They contain language appearing to recognize the obligation of the service to hear the claims of those whose alleged conscientious objection has crystallized between notice and induction, but they also contain formulations seeming to look the other way.10 9 Department of Defense Directive No. 1300.6, § VI B (May 10, 1968): “With respect to persons who have already served a portion of their obligated service who request discharge or non-combatant service for conscientious objection, the following actions will be taken: “2. Pending decision on the case and to the extent practicable the person will be employed in duties which involve the minimum conflict with his asserted beliefs. . . .” Army Regulation No. 635-20, 16a (July 31, 1970): “[I]ndividuals who have submitted formal applications ... for discharge based on conscientious objection will be retained in their units and assigned duties providing the minimum practicable conflict with their asserted beliefs pending a final decision on their applications. In the case of trainees, this means that they will not be required to train in the study, use, or handling of arms or weapons. . . .” 10 See Army Regulation No. 635-20, 3: “a. Consideration will be given to requests for separation based on bona fide conscientious objection to participation in war, in any form, when such objection develops subsequent to entry into the military service. “b. Federal courts have held that a claim to exemption from EHLERT v. UNITED STATES 107 99 Opinion of the Court We are assured, however, by a letter included in the briefs in this case from the General Counsel of the Department of the Army to the Department of Justice, that present practice allows presentation of such claims, and that there thus exists no possibility that late crystallizers will find themselves without a forum in which to press their claims.11 Our conclusion in this case is based upon that assurance.12 For if, contrary to that assurance, a situation should arise in which neither the local board nor the military had made available a full opportunity to present a prima facie conscientious objection claim for determination under established criteria, see Welsh v. United States, supra, a wholly different case would be presented. Given the prevailing interpretation of the Army regulation, we hold that the Court of Appeals did not misconstrue the Selective Service regulation in holding that military service under Selective Service laws must be interposed prior to notice of induction, and failure to make timely claim for exemption constitutes waiver of the right to claim. . . . Requests for discharge after entering military service will not be favorably considered when— “(1) Based on conscientious objection which existed, but which was not claimed prior to notice of induction, enlistment or appointment.” See also Department of Defense Directive No. 1300.6, § IV B 2. 11 “You also asked whether the Army allows a soldier to file for discharge in instances where his conscientious objector views are fixed after notice of induction but prior to entry into the military service. Present practice grants the soldier the opportunity to file in such cases.” The letter additionally explains the composition and operation of the Army 1-0 Conscientious Objector Review Board, which has the responsibility of ruling on applications for conscientious objector discharges. The Board is composed of a senior officer, an officer in the Judge Advocate General Corps, a chaplain, and a Medical Corps officer. Only two votes are required to approve an application. 12 The same letter from the General Counsel of the Department of the Army reports that the identical interpretation prevailed in 1965, when the petitioner first was ordered to report for induction. 419-882 0 - 72 - 12 108 OCTOBER TERM, 1970 Douglas, J., dissenting 402 U. S. it barred presentation to the local board of a claim that allegedly arose between mailing of a notice of induction and the scheduled induction date. Accordingly the judgment of the Court of Appeals for the Ninth Circuit is Affirmed. Mr. Justice Douglas, dissenting. The rather stuffy judicial notion that an inductee’s realization that he has a “conscientious” objection to war is not a circumstance over which he has “no control” within the meaning of the Regulation1 is belied by experience. Saul of Tarsus would be a good witness: 2 “Now as he journeyed he approached Damascus, and suddenly a light from heaven flashed about him. And he fell to the ground and heard a voice saying to him, ‘Saul, Saul, why do you persecute me?’ And he said, ‘Who are you, Lord?’ And he said, ‘I am Jesus, whom you are persecuting; but rise and enter the city, and you will be told what you are to do.’ ” The stories of sudden conversion are legion in religious history; and there is no reason why the Selective Service boards should not recognize them, deal with them, and, if sincere, act on them even though they come after notice of induction has been received. The Court holds that the proper remedy is in-service processing of these claims. That is to say, the claims that come so late, even though they come prior to induction, are to be processed by military rather than by civilian personnel. This conclusion is not required by the Regulation for, as I have said, sudden conversion is a commonplace in religious experiences. And we deal here with religious, x32 CFR § 1625.2 (1971). 2 9 Acts 3-6 (rev. Standard ed. 1952). EHLERT v. UNITED STATES 109 99 Douglas, J., dissenting ethical, philosophical attitudes that are commonly summarized in capsule form by reference to “conscience.” It is therefore a tour de force for the Court to say that in-service processing by the military is required. Certainly that result is not mandated by the Act.3 Since it is not, we have a choice in construction which really involves a choice of policy. Faced with that choice we should not hesitate to leave these matters to civilian authorities. Chief Justice Stone, before coming to this Bench, served with two other lawyers named by President Wilson to screen conscientious objectors in World War I. One of the three was in the military, the other two were civilians. In the account he wrote, he said:4 “[I]t was the relatively small residue of nonreligious objectors who brought to the Board its real perplexities. While conscience is commonly associated with religious convictions, all experience teaches us that the supreme moral imperative which sometimes actuates men to choose one course of action in preference to another and to adhere to it at all costs may be dissociated from what is commonly recognized as religious experience. The President’s order expressly recognized that scruples against participating in war might be conscientious although not religious. How to detect the presence 3 See § 6 (j) of the Military Selective Service Act of 1967, 81 Stat. 104, 50 U. S. C. App. §456 (j) (1964 ed., Supp. V): “Nothing contained in this title . . . shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form. As used in this subsection, the term ‘religious training and belief’ does not include essentially political, sociological, or philosophical views, or a merely personal moral code.” 4 Stone, The Conscientious Objector, 21 Col. U. Q. 253, 263 (1919). 110 OCTOBER TERM, 1970 Douglas, J., dissenting 402 U. S. of such scruples and to distinguish them from the mere extremist support of more or less novel social or political theories and from mere individualistic resistance to the will of the majority, such as one sometimes sees in the petulant disobedience of an ill-disciplined child, was the difficult task.” The mind of the military has reacted more violently to the conscientious objector than the mind of the priest or other civilian. The story of in-service processing of these claims in World War I is an unpleasant one: “The phrase ‘well-recognized religious sect’ was given the most rigorous interpretation, and any who based conscientious objections on political rather than religious foundations got short shrift. Such objectors were either ‘shot to death by musketry,’ ‘imprisoned for long terms by court martial,’ or subjected to indignities and physical violence ‘by their more patriotic fellows.’ ” 5 Another account6 is substantially the same: “In military camp and prison alike, objectors were often subjected to indignities and to physical cruelty. Some were beaten; others were hung by their fingers to the doors of their cells in such a way that their feet barely touched the floor. In one case, an objector who refused to don the army uniform was kept in a damp cell, where he contracted pneumonia and died. His dead body was then dressed in the uniform that in life he had spurned, and, thus attired, was sent home to his family. A number of objectors among the absolutists went on hunger strikes and had to be fed forcibly.” 5 A. Mason, Harlan Fiske Stone: Pillar of the Law 102 (1956). 6 M. Sibley & P. Jacob, Conscription of Conscience 15 (1952). EHLERT v. UNITED STATES 111 99 Douglas, J., dissenting According to the accounts, the treatment of conscientious objectors in World War II was not as severe as in World War I. But the main disciplinary device was to give the man an order and then court-martial him for failure to obey the order. “Here punishment varied, but common sentences for objectors were five to ten years, although these were not infrequently reduced on review by Washington. Sentences on the whole were much lighter than those imposed by courts-martial during the First World War but more severe, on the average, than those meted out by civil courts during the Second World War. Sentences of general courts-martial were served in the several disciplinary barracks of the Army, but in some instances objectors were first sent to a ‘rehabilitation center,’ where the Army gave prisoners a second chance to ‘reform’; if ‘reformation’ did not take place, they served out their sentences in the disciplinary barracks. Army regulations provided for periodic and automatic clemency reviews, the first during the initial six months of the sentence and subsequent reviews once each year.” 7 (Emphasis added.) I have placed in the Appendix to this dissent a summary of a recent (1969) record in one military center, showing how one conscientious objector in Jones n. Lemond, 396 U. S. 1227, was treated. I do not suggest that every detention center in the Armed Services is like the brig on Treasure Island, San Francisco Bay. Nor do I suggest that every conscientious objector is treated as cruelly as was the plaintiff in the Lemond case. I do suggest however that in my time every conscientious objector was “fair game” to most top sergeants who considered that he had a “yellow streak” and therefore was a coward or was un-American. The conscientious objector never had an easy time asserting First Amendment rights in the Armed Services. 1 Id., at 108. 112 OCTOBER TERM, 1970 Douglas, J., dissenting 402U.S. What might happen to him in the barracks or in the detention center is, of course, not the measure of what would transpire at the hearings. But the military mind is educated in other values; it does not reflect the humanistic, philosophical values most germane to ferreting out First Amendment claims that are genuine. Our decisions on conscientious objection leave considerable latitude for administrative findings. On one hand Gillette v. United States and Negre v. Larsen, 401 U. S. 437, make it clear that objection to a particular war will not qualify for conscientious objector status. On the other hand, both United States v. Seeger, 380 U. S. 163, and Welsh v. United States, 398 U. S. 333, demonstrate that the objector need not be religious and his views may be based on broad humanistic grounds. There are subtleties in these positions for, as noted, “§ 6 (j)’s exclusion of those persons with ‘essentially political, sociological, or philosophical views or a merely personal moral code’ should [not] be read to exclude those who hold strong beliefs about our domestic and foreign affairs or even those whose conscientious objection to participation in all wars is founded to a substantial extent upon considerations of public policy” 398 U. S., at 342 (opinion of Black, J.) (emphasis added). Thus under the Court’s interpretations of § 6 (j) those who do not qualify are those who lack sincerity, do not oppose all wars, or those who rest their beliefs “solely upon considerations of policy, pragmatism, or expediency.” Id., at 342-343. Decision as to whether an individual is entitled to a conscientious objector status under these broad criteria requires great sensitivity on the part of those who have the final say. Ehlert’s claim itself falls somewhere between Gillette and Welsh. In addition it raises claims between pragmatism and a respect for human life and values. His beliefs are not religious in nature. He stated they came EHLERT v. UNITED STATES 113 99 Douglas, J., dissenting from “the intellectual atmosphere of the University of California and its surroundings and the natural workings of an eager-to-know and questioning mind.” In a letter refusing induction he stated his objection was “that the sole purpose of military service in this country today is preparation for a nuclear orgasm which would be totally destructive of human life and values.” On his Form 150 he wrote “that service in the armed forces of this country at this time is work toward the end of the destruction of the human race. I consider that my duty not to work for the destruction of the human race is superior to any duties which may arise from any human relation.” He added he would use force where its use “would not make more probable the destruction of the human race.” While it appears that Ehlert’s claim may be sufficiently close to Gillette to foreclose his claim, other claims in this sensitive area may not be as close to Gillette, yet also may be beyond Welsh. In a choice between civilian and military factfinders dealing in an area of conscience clearly the former are to be preferred. Moreover, proof of a conscientious objector’s claim will usually be much more difficult after induction than before. Military exigencies may take him far from his neighborhood, the only place where he can find the friends and associates who know him. His chances of having a fair hearing are therefore lessened when the hearing on his claim is relegated to in-service procedures. For these reasons I would resolve any ambiguities in the law in favor of pre-induction review of his claim and not relegate him to the regime where military philosophy, rather than the First Amendment, is supreme. Beyond all these arguments is a constitutional one. Induction itself may violate the privileges of conscience engrained in the First Amendment. A compelled act was the heart of the case presented by Board of Education v. Barnette, 319 U. S. 624, when children of Je 114 OCTOBER TERM, 1970 Douglas, J., dissenting 402U.S. hovah’s Witnesses protested the requirement that they salute the flag. We said: “Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men. Nationalism is a relatively recent phenomenon but at other times and places the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort .... Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard. “It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings.” Id., at 640-641. To some conscientious objectors, taking the one step forward is an act violating the conscience, since wearing the uniform in any form is as revolting to them as saluting the flag was to the children in the Barnette case.8 To another conscientious objector the bearing of arms, not acting as orderlies, say, in military hospitals, is the 8 See United States v. Freeman, 388 F. 2d 246, 248-249. EHLERT v. UNITED STATES 115 99 Appendix to opinion of Douglas, J., dissenting act at which he rebels. The sorting and sifting of these claims and all varieties of them are best processed by civilians rather than the military. The present Regulations permit it and I would resolve any ambiguities in favor of the procedure most protective of the rights of conscience involved here. I therefore dissent from affirmance of the judgment below. APPENDIX TO OPINION OF DOUGLAS, J., DISSENTING On September 15, 1969, I entered a stay in the case of Jones n. Lemond, 396 U. S. 1227. Jones was in the United States Navy and his claim to discharge as a conscientious objector arose five months after his enlistment. According to the allegation he had made many attempts over a period of some 37 days to file an application to be discharged as a conscientious objector. He was unable to make a filing or obtain a hearing. He went AWOL on that account and later surrendered himself and with the help of legal advice pressed for processing of his conscientious objector claim. I did not reach the merits of that controversy, but in view of the representations made I restrained the Navy from confining Jones in the brig at Treasure Island, which according to the affidavits presented to me had become a house of horror. “After sitting in the room approximately 45 minutes, I heard Mr. Foreman say, ‘He is an escape risk and is to be sentenced for 5 months—he is not to be allowed to phone anyone.’ Immediately after I heard Mr. Foreman speak, a Marine Sergeant opened the door and said to me ‘empty your pockets, f—er.’ I began to empty my pockets to which the Sergeant said, ‘hurry up, Goddamnit.’ When I had finished emptying my pockets 116 OCTOBER TERM, 1970 Appendix to opinion of Douglas, J., dissenting 402 IT. S. the Sergeant said, ‘up against the wall—spread your arms and legs.’ I spread my arms out against the wall and placed my feet approximately 3% feet apart. The Sergeant kicked my legs several times and said, ‘Move them further.’ I then stretched them as far as possible, so the Sergeant kicked me a couple of more times to make sure they were spread as far as possible. He then frisked me, which involved slapping and shoving me against the wall. When he finished his so-called frisk, he handcuffed my hands behind me and said, ‘Alright, let’s go—one f—k-up and I’ll bust your f—kin head open.’ “I was then taken to the Brig and told to stand in front of the fence with my nose on the canvas. I stood at attention with my nose on the canvas and the Sergeant went into the main control room. “About 5 minutes later the Sergeant came out with another Sergeant. The Sergeant said ‘empty your pockets.’ I took out a pen and chow pass and offered them to the second Sergeant. He said, ‘don’t point at me f—ker, put that s--t in your hat.’ I emptied my pockets and put everything into my hat. The Sergeant said, ‘put it on the ground.’ The Sergeant said to the other Sergeant, ‘he’s still pretty salty—I got him when I picked him up, but he still thinks he’s tough.’ The reply was, ‘don’t worry, he won‘t be so tough, I know what to do with him.’ He said, ‘spread your arms and legs turd.’ I spread out against the canvas. He started kicking me and yelling, ‘spread out a—hole.’ He kept kicking me and yelling until I fell down and then said, ‘what’s wrong with you pussy can’t you stand up—get up.’ I stood up and he said ‘spread out Goddamnit.’ He started kicking me again. When I fell to my knees against the canvas he stopped and said, ‘can’t you stand up squid?’ This time I got up and spread out hands on the canvas before he could say so. He then pushed my face into the canvas, slapped my neck and arms, EHLERT v. UNITED STATES 117 99 Appendix to opinion of Douglas, J., dissenting punched me in the sides, yanked the crotch of my dungarees painfully between my legs, slapped and pinched my legs and said, ‘alright now stand at attention.’ He had now finished frisking me so they both went back into the control room taking with them the contents of my pockets in my hat. “After much verbal harassment, I was taken to my cell. “A couple of hours later I heard the orange badges march in. They live in the Annex in 6' x 6' x 8' cells, 3 men per cell. I heard a Corporal yelling at an orange badge for not running fast enough during the physical exercise period. He then made the orange badge do push-ups until he collapsed. Then I could hear the Corporal hitting the man and the man crying and screaming for him to stop. When the Corporal stopped they took the man back out into the compound to run and that was the last I heard of him. “Dinner was brought to my cell and I ate it on the floor as I did with all the rest of my meals. “Early in the evening a Corporal started harassing a confinee who was locked in the suicide risk cell. Suicide risks have to sit in the cells, which I found to be very cold with my clothes on, in nothing but a pair of underwear. The Corporal kept antagonizing the man until he started screaming and crying. Once the Corporal succeeded in breaking the confinee he started laughing, at which time the other Corporal said, ‘why don’t you kick his ass for making so much noise?’ “The next day I was taken for a haircut. Another confinee cut my hair and while doing so he dropped a clip but couldn’t find it. I told him where it was and he said, ‘don’t let them catch you talking to me, they’ll kick your ass.’ I kept quiet. “After much more harrassment, I went back to my cell and I heard a man coughing and then a Corporal yelling at him to shut up. Two other Corporals joined in harrassing the man and when he couldn’t stop cough- 118 OCTOBER TERM, 1970 Appendix to opinion of Douglas, J., dissenting 402U.S. ing they pulled him out of the cell and made him dive on a cup on the floor pretending it was a grenade. They got several other men out of their cells and had them all diving on the cup with the coughing man on the bottom each time. “It wasn’t long after the grenade drills when the turnkey came to my cell and let me out. He had me fold up my blanket and pick up my locker and pulled me out to the control office. In the office there were 4 or 5 Sergeants and a Staff Sergeant yelling and screaming all types of phrases, such as, ‘you’ll be back, f- -ker and then you’ll really get it.’ I now was told to stand holding my footlocker with my arms extended and they seemed to forget me for a moment. “Then they began talking among themselves and I realized that my lawyer, Don Jelinek and Loren Basham, a member of the Resistance, were outside the Brig in a car and they apparently insisted on remaining there until I was released. The Sergeant said ‘This guy (Jelinek) just pissed me off because he just charged in here and slapped this order down and said “get this man out.” ’ Then the Sergeant said, ‘I have a psychiatrist over here (pointing to the medical building right behind us), who will back me up saying I am not responsible for anything I do.’ He then added, Tn a minute I am going to go out and blow their heads off.’ “Then the Sergeant seemed to gain control of himself. The MP then turned to me and said, ‘Just try and run boy, I would love to blow your head right off.’ “I was then allowed outside the Brig where I saw my Lawyer who spoke to me, but I was afraid to answer him for the fear they would beat or shoot us. “I know they worked me over because of anger because the Military Court of Appeals gave me an order keeping me out of the Brig. Now that a second Court Order has gotten me out of the Brig, I feel they will kill me if I have to go back in again.” EHLERT v. UNITED STATES 119 99 Brennan, J., dissenting Mr. Justice Brennan, with whom Mr. Justice Marshall joins, dissenting. Selective Service Regulation 1625.2, 32 CFR § 1625.2 (1971), relieves a local board of its general obligation to consider a registrant’s claim for deferment whenever the claim is received after the notice to report for induction has been mailed “unless the local board first specifically finds there has been a change in the registrant’s status resulting from circumstances over which the registrant had no control.” The Court of Appeals held that this regulation relieved the local board of the necessity of considering any claim that a registrant’s conscientious objection to war had crystallized after receipt of an induction notice because, in the court’s view, registrants have control over such changes in their beliefs. 422 F. 2d 332 (CA9 1970). The Court here finds it unnecessary to come to grips with this holding and consider whether a conscientious objection claim comes within the terms of this regulation, since it finds the interpretation of the regulation controlled by “a reasonable, consistently applied administrative interpretation.” Ante, at 105. I cannot defer to an interpretation I cannot discover. All of the cases cited by the Court make clear that judicial interpretation of an ambiguous regulation is to be informed by reference to administrative practice in interpreting and applying a regulation, not by reference to positions taken for the purpose of litigation. See cases cited, ante, at 105. Cf. Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402, 419 (1971). The national Selective Service office has apparently made no national administrative interpretation of the regulation. The only other information presently before us indicates that state Selective Service headquarters in North Carolina and California have interpreted the regulation to require local boards to consider “late crystallization” claims and 120 OCTOBER TERM, 1970 Brennan, J., dissenting 402U.S. to consider whether the registrant’s conscientious objection was a change occurring after receipt of his induction notice over which he had no control. Brief for Petitioner 28 n. 53. If anything, this suggests that petitioner’s interpretation should prevail. On this state of the record, however, I hardly think administrative practice can properly form the basis of decision. Moreover, I do not find the regulation to be ambiguous. In the context of a blanket Selective Service regulation applicable to all claims for deferment and exemption, the reference to “circumstances” must be taken to refer to any conditions relevant to eligibility for a deferment or exemption. Since conscientious objection to war is the basis for a deferment, it must constitute a “circumstance” within the plain meaning of the regulation. The question, therefore, is whether that circumstance can be one “over which the registrant had no control.” On that score, I fully agree with the dissent of Judge Merrill below: “One simply cannot order his conscience to be still or make himself believe what he does not believe and I must reject the implication that it is right and proper that one should suffer loss of status for having failed to bring his conscience to heel. “Conscientious objection, in truth, is a contraclip; tion of control. Just as a conviction honestlv tated by conscience cannot be banished at t^e^^l of the holder, so, conversely, a belief conveniently subject to the control of the holder is not conscientiously entertained.” 422 F. 2d, at 339. In sum, I think the regulation means that late-crystal-lization claims asserted prior to induction should be processed by civilian personnel of the local boards, who have been designated by the Congress as the appropriate decisionmakers in these cases, rather than by military personnel during in-service processing. I dissent. CALIFORNIA HUMAN RESOURCES DEPT. v. JAVA 121 Syllabus CALIFORNIA DEPARTMENT OF HUMAN RESOURCES DEVELOPMENT et al. v. JAVA ET AL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA No. 507. Argued February 24, 1971—Decided April 26, 1971 Section 303 (a)(1) of the Social Security Act requires a method of administration “reasonably calculated to insure full payment of unemployment compensation when due.” In light of the intent of Congress to make payments available at the earliest stage of unemployment as is administratively feasible, in order to provide a substitute for wages, the language “when due” must be construed to mean when benefits are allowed as a result of a hearing of which both parties have notice and at which they are permitted to present their respective positions. California’s initial interview provides such a hearing and accordingly enforcement of § 1335 of the California Unemployment Insurance Code, providing for the withholding of insurance benefits upon an employer’s appeal from the initial eligibility determination, must be enjoined because it conflicts with the requirement of § 303 (a)(1) of the Social Security Act. Pp. 124-135. 317 F. Supp. 875, affirmed. Burger, C. J., delivered the opinion for a unanimous Court. Douglas, J., filed a concurring opinion, post, p. 135. Asher Rubin, Deputy Attorney General of California, argued the cause for appellants. With him on the brief was Thomas C. Lynch, Attorney General. Stephen P. Berzon argued the cause for appellees pro hac vice. With him on the brie,f was Kenneth F. Phillips. Briefs of amici curiae urging reversal were filed by Solicitor General Griswold, Assistant Attorney General Gray, Robert V. Zener, and Peter G. Nash for the United States; by Duke W. Dunbar, Attorney General, John P. 122 OCTOBER TERM, 1970 Opinion of the Court 402U.S. Moore, Deputy Attorney General, and Robert L. Harris, Assistant Attorney General, for the State of Colorado; by Robert M. Robson, Attorney General, and R. LaVar Marsh, Assistant Attorney General, for the State of Idaho; by Francis B. Burch, Attorney General, and Louis B. Price, Special Assistant Attorney General, for the State of Maryland, joined by the State of Illinois; by Warren B. Rudman, Attorney General, and William F. Cann, Deputy Attorney General, for the State of New Hampshire, joined by David M. Pack, Attorney General, and Lance D. Evans, Assistant Attorney General, for the State of Tennessee; by Louis J. Lefkowitz, Attorney General, Samuel A. Hirshowitz, First Assistant Attorney General, and Brenda Soloff, Assistant Attorney General, for the State of New York; by Paul W. Brown, Attorney General, and Franklin R. Wright, Assistant Attorney General, for the State of Ohio; and by Willard Z. Carr, Jr., for the Southern California Edison Co. et al. Briefs of amici curiae urging affirmance were filed by C. Lyonel Jones, Ed J. Polk, Don B. Kates, Jr., and Joseph A. Matera for California Rural Legal Assistance et al.; by J. Albert Woll, Laurence Gold, and Thomas E. Harris for American Federation of Labor and Congress of Industrial Organizations; by Stephen I. Schlossberg, John A. Fillion, and Jordan Rossen for the International Union, UAW; and by the Employment Project, Center on Social Welfare Policy and Law. Mr. Chief Justice Burger delivered the opinion of the Court. This case raises the issue of whether a State may, consistent with § 303 (a)(1) of the Social Security Act, suspend or withhold unemployment compensation benefits from a claimant, when an employer takes an appeal from an initial determination of eligibility. Section CALIFORNIA HUMAN RESOURCES DEPT. v. JAVA 123 121 Opinion of the Court 303 (a)(1) of the Social Security Act, 49 Stat. 626, as amended, 42 U. S. C. § 503 (a)(1), provides that benefits must be paid “when due.” In late summer 1969, appellees Judith Java and Carroll Hudson, having been discharged from employment, applied for unemployment insurance benefits under the California Unemployment Insurance Program. Appellees were given an eligibility interview at which the employer did not appear, although such an appearance was permitted. As a result of that interview both employees were ruled eligible for benefits. Payments began immediately. In each case the former employer filed an appeal after learning of the grant of benefits, contending that benefits should be denied because the claimants were discharged for cause. In accordance with the practice of the agency and pursuant to § 1335 of the California Unemployment Insurance Code1 payments automatically stopped. At the subsequent hearings before an Appeals Board Referee, which stage is essentially an appeal from the preliminary determination under 1 Section 1335 of the California Unemployment Insurance Code provides: “If an appeal is filed, benefits with respect to the period prior to the final decision on the appeal shall be paid only after such decision, except that: “(a) If benefits for any week are payable in accordance with a determination by the department irrespective of any decision on the issues set forth in the appeal, such benefits shall be promptly paid regardless of such appeal, or “(b) If a referee affirms a determination allowing benefits, such benefits shall be paid regardless of any appeal which may thereafter be taken, and regardless of any action taken under Section 1336 or otherwise by the director, Appeals Board, or other administrative body or by any court. “If such determination is finally reversed, no employer’s account shall be charged with benefits paid because of that determination.” (Emphasis added.) 419-882 0 - 72 - 13 124 OCTOBER TERM, 1970 Opinion of the Court 402U.S. California Unemployment Insurance Code §§ 1328, 1334, appellee Hudson’s eligibility was affirmed, but appellee Java was ruled ineligible and the initial determination was reversed. Prior to the hearings before the Referee, appellees commenced a class action in the United States District Court on behalf of themselves and other claimants similarly situated. They sought a declaration that § 1335 of the California Unemployment Insurance Code is unconstitutional and inconsistent with the requirements of §303 (a)(1) of the Social Security Act, and an order enjoining the operation of § 1335. A three-judge court was convened, and it concluded that § 1335 is defective on both constitutional and statutory grounds. The District Court held that by not providing for a pretermination hearing, the California procedure constitutes a denial of procedural due process, relying on Goldberg n. Kelly, 397 U. S. 254 (1970). It further held that the application of § 1335, so as to result in a median seven-week delay in payments to claimants who have been found eligible for benefits, constituted a failure to pay unemployment compensation “when due” within the meaning of § 303 (a)(1) of the Social Security Act. The court granted appellees’ motion for a preliminary injunction, ordering the State of California not to suspend unemployment benefits pursuant to § 1335 because an eligibility determination has been appealed. (1) We agree with the conclusion of the District Court that § 1335 of the California Unemployment Insurance Code conflicts with the requirements of §303 (a)(1) of the Social Security Act. This holding makes it unnecessary to reach the constitutional issue involved in Goldberg v. Kelly, supra, on which the District Court relied. CALIFORNIA HUMAN RESOURCES DEPT. v. JAVA 125 121 Opinion of the Court (2) The importance of this case to workers is obvious. Because an understanding and the resolution of the basic issue depends on familiarity with a series of detailed procedures, we set out fully the administrative scheme. All federal-state cooperative unemployment insurance programs are financed in part by grants from the United States pursuant to the Social Security Act, 42 U. S. C. §§ 501-503. No grant may be made to a State for a fiscal year unless the Secretary of Labor certifies the amount to be paid, 42 U. S. C. § 502 (a). The Secretary of Labor may not certify payment of federal funds unless he first finds that the State’s program conforms to federal requirements. In particular, §303 (a)(1) of the Act requires that state methods of administration be found “to be reasonably calculated to insure full payment of unemployment compensation when due.” 2 The California Unemployment Insurance Compensation Program, certified by the Secretary of Labor under § 303 of the Act, provides for payment of insurance benefits, over an extended period of time, to persons who find themselves unemployed through no fault of 2 Section 303 (a)(1) of the Social Security Act, 42 U. S. C. § 503 (a)(1), provides in part: “(a) The Secretary of Labor shall make no certification for payment to any State unless he finds that the law of such State, approved by the Secretary of Labor under the Federal Unemployment Tax Act, includes provision for— “(1) Such methods of administration (including after January 1, 1940, methods relating to the establishment and maintenance of personnel standards on a merit basis, except that the Secretary of Labor shall exercise no authority with respect to the selection, tenure of office, and compensation of any individual employed in accordance with such methods) as are found by the Secretary of Labor to be reasonably calculated to insure full payment of unemployment compensation when due." (Emphasis added.) 126 OCTOBER TERM, 1970 Opinion of the Court 402U.S. their own. Cal. Unemp. Ins. Code § 1251 et seq. In order to be eligible for benefits a claimant is required to have earned a specified amount of wages during his base period. Id., §1281. Benefits are paid from the State Unemployment Fund, which consists of funds collected from private employers, id., § 976 et seq., and money credited to the State’s account in the federal Unemployment Trust Fund pursuant to 42 U. S. C. §§ 501-503, 1101-1105. The amount of money an employer is required to pay into the State Fund is based on benefits paid to terminated employees which are charged to its reserve account and disbursements from the State Unemployment Fund. Cal. Unemp. Ins. Code §§ 1025-1032, 976-978. A claimant, appearing at an unemployment insurance office to assert a claim initially is asked to fill out forms which, taken together, indicate the basis of the claim, the name of the claimant’s previous employer, the reason for his unemployment, his work experience, etc. The claimant is asked to return to the office three weeks later for the purpose of receiving an Eligibility Benefits Rights Interview. The issue most frequently disputed, the claimant’s reason for termination of employment, is answered on Form DE 1101, and the Department immediately sends copies of this form to the affected employer for verification. Meanwhile the employer is asked to furnish, within 10 days, “any facts then known which may affect the claimant’s eligibility for benefits.” Cal. Unemp. Ins. Code §§ 1327, 1030. If the employer challenges eligibility, the claimant may then be asked to complete Form DE 4935, which asks for detailed information about the termination of claimant’s previous job. The interviewer has, according to the Local Office Manual (L. O. M.) used in California, the “responsibility to seek from any source the facts required to make a prompt and proper determination of eligibility.” L. O. M. CALIFORNIA HUMAN RESOURCES DEPT. v. JAVA 127 121 Opinion of the Court § 1400.3 (2). “Whenever information submitted is not clearly adequate to substantiate a decision, the Department has an obligation to seek the necessary information.” L. 0. M. § 1400.5 (l)(a). This clearly contemplates inquiry to the latest employer, among others. The claimant then appears for his interview. At the interview, the eligibility interviewer reviews available documents, makes certain that required forms have been completed, and clarifies or verifies any questionable statements. If there are inconsistent facts or questions as to eligibility, the claimant is asked to explain and offer his version of the facts. The interviewer is instructed to make telephone contact with other parties, including the latest employer, at the time of the interview, if possible. L. O. M. § 1404.4 (20). Interested persons, including the employer, are allowed to confirm, contradict, explain, or present any relevant evidence. L. O. M. § 1404.4 (21). The eligibility interviewer must then consider all the evidence and make a determination as to eligibility. Normally, the determination is made at the conclusion of the interview. L. 0. M. § 1404.6 (2). However, if necessary to obtain information by mail from any source, the determination may be placed in suspense for 10 days after the date of interview, or, if no response is received, no later than claimant’s next report day. L. 0. M. § 1400.3 (2) (a). From the foregoing it can be seen that the interview for the determination of eligibility is the critical point in the California procedure.3 In the Department’s own terms, it is “the point at which any issue affecting the claimant’s eligibility is decided and fulfills the Department’s legal obligation to insure that . . . [b]enefits 3 Of the 226,066 claimants ruled ineligible in 1968, only 2,602 (1%) were found ineligible by a state referee upon an employer’s appeal. 128 OCTOBER TERM, 1970 Opinion of the Court 402U.S. are paid promptly if claimant is eligible” L. 0. M. § 1400.1 (1) (emphasis added). If the initial determination is favorable to the claimant,4 payments begin immediately, and for 95-98% of the claims, former employers do not appear or seek a hearing;5 no further problem arises as to initial eligibility. The Department sends out a notice to the employer informing him that the claimant has been found eligible, and that the employer may appeal within 10 days. Cal. Unemp. Ins. Code § 1328. The 10-day period may be extended for “good cause.” Ibid. If the employer appeals, payment of the claimant’s benefits is stopped pending determination on appeal before an Appeals Board Referee. Id., § 1335; see L. O. M. § 1474. The automatic suspension of benefits upon the employer’s appeal, after an initial determination of eligibility, is the aspect of the California procedure challenged here. By that time the claimant may have received one or perhaps two payments. When the employer appeals, a hearing is then scheduled at which both the parties may appear and be represented, call witnesses, and present evidence. “A referee after affording a reasonable opportunity for fair hearing, shall, unless such appeal is withdrawn, affirm, reverse, or modify any determination which is appealed . . . .” Cal. Unemp. Ins. Code § 1334. The appeal affords a de novo consideration. Generally, processing of the employer’s appeal takes between six and seven weeks, between the date of filing the appeal and the date of mailing the decision or dismissal.6 If upon appeal the Referee finds the claimant eligible, 4 Of 667,993 determinations on eligibility in 1968, 441,927 were favorable to the claimant. 5 In 1968 there were only 5,526 decisions on appeals filed by employers. 6 In 1968 the period was 49 days; in 1969 it was 40.5 days. CALIFORNIA HUMAN RESOURCES DEPT. v. JAVA 129 121 Opinion of the Court payments are reinstated at once and continue even if the employer exercises his right to appeal further to the Appeals Board. Cal. Unemp. Ins. Code § 1335 (b). Meanwhile as much as seven to 10 weeks may have elapsed. The record indicates that employers are successful in less than 50% of their appeals from initial determinations of eligibility.7 The Referee’s decision is final unless within 10 days further appeal is initiated to the Appeals Board. Cal. Unemp. Ins. Code §§ 1334, 1336. The Appeals Board must render a decision within 60 days after the filing of an appeal to it, unless it requires the taking of further evidence. Id., § 1337. If the claimant is successful on appeal, he receives a lump sum payment for weeks of unemployment prior to the Referee’s decision. Id., § 1338. If the employer is successful on appeal, his reserve account is immediately credited with all monies that have been paid his former employee. He has no responsibility for recoupment. Id., §§ 1335, 1380.8 (3) The dispositive issue is the determination of whether § 1335 of the California Unemployment Insurance Code violates the command of 42 U. S. C. § 503 (a)(1) that state unemployment compensation programs must “be 7 Of 4,159 appeals filed by an employer between January 1, 1969, and September 30, 1969, 2,023 resulted in decisions favorable to the employer. (During the same period there were 14,768 appeals filed by claimants, 4,838 of which were successful.) In 1968 there were 5,526 decisions on appeals filed by employers, resulting in 2,602 decisions favorable to the employer, and 2,924 favorable to the claimant. 8 Counsel informed the Court that recoupment is effected by the Department as to approximately 65% of the amounts erroneously paid; this is generally accomplished by way of offset against benefits subsequently granted in a later unemployment claim. The Department may also file a civil action for recovery. See Cal. Unemp. Ins. Code § 2739. 130 OCTOBER TERM, 1970 Opinion of the Court 402U.S. reasonably calculated to insure full payment of unemployment compensation when due.” The purpose of the federal statutory scheme must be examined in order to reconcile the apparent conflict between the provision of the California statute and § 303 (a)(1) of the Social Security Act. It is true, as appellants argue, that the unemployment compensation insurance program was not based on need in the sense underlying the various welfare programs that had their genesis in the same period of economic stress a generation ago. A kind of “need” is present in the statutory scheme for insurance, however, to the extent that any “salary replacement” insurance fulfills a need caused by lost employment. The objective of Congress was to provide a substitute for wages lost during a period of unemployment not the fault of the employee. Probably no program could be devised to make insurance payments available precisely on the nearest payday following the termination, but to the extent that this was administratively feasible this must be regarded as what Congress was trying to accomplish. The circumstances surrounding the enactment of the statute confirm this. The Social Security Act received its impetus from the Report of the Committee on Economic Security,* which was established by executive order of President Franklin D. Roosevelt to study the whole problem of financial insecurity due to unemployment, old age, disability, and health. In its report, transmitted to Congress by the President on January 17, 1935, the Committee recommended a program of unemployment insurance compen- 9 Report of the Committee on Economic Security, Hearings on S. 1130 before the Senate Committee on Finance, 74th Cong., 1st Sess., 1311 (1935); see generally Larson & Murray, The Development of Unemployment Insurance in the United States, 8 Vand. L. Rev. 181 (1955); Witte, Development of Unemployment Compensation, 55 Yale L. J. 21, 29-34 (1945). CALIFORNIA HUMAN RESOURCES DEPT. v. JAVA 131 121 Opinion of the Court sation as a “first line of defense for ... [a worker] ordinarily steadily employed ... for a limited period during which there is expectation that he will soon be reemployed. This should be a contractual right not dependent on any means test. ... It will carry workers over most, if not all, periods of unemployment in normal times without resort to any other form of assistance.” 10 Estimates of possible amounts and duration of unemployment benefits were made by the actuarial staff of the Committee. On the basis of 1922-1933 statistics, it was estimated that 12 weeks of benefits could be paid with a two-week waiting period at a 4% employer contribution rate.11 The longest waiting period entering into the estimates was four weeks, indicating an intent that payments should begin promptly after the expiration of a short waiting period. Other evidence in the legislative history of the Act and the commentary upon it supports the conclusion that “when due” was intended to mean at the earliest stage of unemployment that such payments were administratively feasible after giving both the worker and the employer an opportunity to be heard. The purpose of the Act was to give prompt if only partial replacement of wages to the unemployed, to enable workers “to tide themselves over, until they get back to their old work or find other employment, without having to resort to relief.”12 Unemployment benefits provide cash to a newly unemployed worker “at a time when otherwise he would have nothing to spend,” 13 serving to maintain the 10 Report of the Committee on Economic Security, supra, n. 9, at 1321-1322. See Note, Charity versus Social Insurance in Unemployment Compensation Laws, 73 Yale L. J. 357 (1963). 11 Hearings, supra, n. 9, at 1321,1319. 12H. R. Rep. No. 615, 74th Cong., 1st Sess., 7 (1935). 13 Statement of the Secretary of Labor, Hearings, supra, n. 9, at 119. Cf. Nash v. Florida Industrial Comm’n, 389 U. S. 235, 239 (1967). 132 OCTOBER TERM, 1970 Opinion of the Court 402U.S. recipient at subsistence levels without the necessity of his turning to welfare or private charity. Further, providing for “security during the period following unemployment” 14 was thought to be a means of assisting a worker to find substantially equivalent employment. The Federal Relief Administrator testified that the Act “covers a great many thousands of people who are thrown out of work suddenly. It is essential that they be permitted to look for a job. They should not be doing anything else but looking for a job.” 15 Finally, Congress viewed unemployment insurance payments as a means of exerting an influence upon the stabilization of industry. “Their only distinguishing feature is that they will be specially earmarked for the use of the unemployed at the very times when it is best for business that they should be so used.” 16 Early payment of insurance benefits serves to prevent a decline in the purchasing power of the unemployed, which in turn serves to aid industries producing goods and services. The following extract from the testimony of the Secretary of Labor, in support of the Act, describes the stabilization mechanism contemplated: “I think that the importance of providing purchasing power for these people, even though temporary, is of very great significance in the beginning of a depression. I really believe that putting purchasing power in the form of unemployment-insurance benefits in the hands of the people at the moment when the depression begins and when the first groups begin to be laid off is bound to have a beneficial effect. 14 See S. Rep. No. 628, 74th Cong., 1st Sess., 12 (1935). 15 Statement of Federal Relief Administrator and Member of the Committee on Economic Security, Hearings on H. R. 4120 before the House Committee on Ways and Means, 74th Cong., 1st Sess., 214 (1935). 16 Statement of Sen. Robert F. Wagner, Hearings, supra, n. 9, at 3. CALIFORNIA HUMAN RESOURCES DEPT. v. JAVA 133 121 Opinion of the Court Not only will you stabilize their purchases, but through stabilization of their purchases you will keep other industries from going downward, and immediately you spread work by that very device.” 17 We conclude that the word “due” in § 303 (a)(1), when construed in light of the purposes of the Act, means the time when payments are first administratively allowed as a result of a hearing of which both parties have notice and are permitted to present their respective positions; any other construction would fail to meet the objective of early substitute compensation during unemployment. Paying compensation to an unemployed worker promptly after an initial determination of eligibility accomplishes the congressional purposes of avoiding resort to welfare and stabilizing consumer demands; delaying compensation until months have elapsed defeats these purposes. It seems clear therefore that the California procedure, which suspends payments for a median period of seven weeks pending appeal, after an initial determination of eligibility has been made, is not “reasonably calculated to insure full payment of unemployment compensation when due.” 18 (4) We are not persuaded by appellants’ suggestion that the initial determination is clouded with sufficient uncertainty as to warrant withholding benefits until the appeal is decided to protect the interests of the State or of employers. The California procedure for initial determinations is effective in insuring that benefits are limited to legally eligible claimants. From 95%-98%> of ineligible 17 Statement of the Secretary of Labor, Hearings, supra, n. 15, at 182. See Clague, The Economics of Unemployment Compensation, 55 Yale L. J. 53, 69 (1945). 18 It was uncontested in argument before the District Court that the average period of unemployment in California is approximately nine weeks. 134 OCTOBER TERM, 1970 Opinion of the Court 402 U. S. claimants are screened out at this stage. The primary inquiry at the preliminary interview is to examine the claimant’s basic eligibility under the California statute. It is an occasion when the claims of both the employer and the employee can be heard, however. The regulations contemplate that the interviewer shall make inquiries of the employer informally. This may not always flush out objections based on discharge for cause, as this case illustrates. Nonetheless, if the employer has notice of the time and place of the preliminary interview, as was the case here, it is his responsibility to present sufficient data to make clear his objections to the claim for benefits and put the interviewer in a position to broaden the inquiry if necessary. Any procedure or regulation that fails to give notice to the employer would, of course, be violative of the statutory scheme as we construe it. Although the eligibility interview is informal and does not contemplate taking evidence in the traditional judicial sense, it has adversary characteristics and the minimum obligation of an employer is to inform the interviewer and the claimant of any disqualifying factors. So informed, the interviewer can direct the initial inquiry to identifying a frivolous or dilatory contention by either party. It would frustrate one of the Act’s basic purposes— providing a “substitute” for wages—to permit an employer to ignore the initial interview or fail to assert and document a claimed defense, and then effectuate cessation of payments by asserting a defense to the claim by way of appeal. If the employer fails to present any evidence, he has in effect defaulted, and neither he nor the State can with justification complain if, on a prima facie showing, benefits are allowed. If the employer’s defenses are not accepted and the claim is allowed, that also constitutes a determination that the benefits are “due.” CALIFORNIA HUMAN RESOURCES DEPT. v. JAVA 135 121 Douglas, J., concurring As we have noted, this construction of the statutory scheme vindicates the congressional objective; California’s approach tends to frustrate it. Our reading of the statute imposes no hardship on either the State or the employer19 and gives effect to the congressional objective of getting money into the pocket of the unemployed worker at the earliest point that is administratively feasible. That is what the Unemployment Insurance program was all about. For the reasons stated enforcement of § 1335 must be enjoined because it is inconsistent with § 303 (a)(1) of the Social Security Act. See King v. Smith, 392 U. S. 309, 333 (1968); Rosado v. Wyman, 397 U. S. 397, 420-421 (1970). Affirmed. Mr. Justice Douglas, concurring. While I agree with the opinion of the Court, I add a few words. The argument of California in this case is surprisingly disingenuous. First it seeks to distinguish Goldberg v. Kelly, 397 U. S. 254, on the ground that “welfare is based on need; unemployment insurance is not.” But that simply is not true, for the history makes clear that the thrust of the scheme for unemployment benefits was to take care of the need of displaced workers, pending a search for other employment. Second, California argues that delay in payment of benefits until the employer’s appeal is ended is necessary in terms of due process because “it is 19 For example, an employer’s reserve account is not charged if a claimant is ruled ineligible because of voluntary termination or discharge for cause, unless the employer fails to furnish the information required. Cal. Unemp. Ins. Code §§ 1032, 1030. In disposing of the prayer for a permanent injunction, it may be appropriate to join the Secretary of Labor as a party in order that complete relief may be accorded. 136 OCTOBER TERM, 1970 Douglas, J., concurring 402 U. S. the employer’s money which is used to pay the claimant,” his account being “charged” and his experience rating “adversely affected” each time an employee is paid benefits. It is true that the amount of taxes contributed by each employer to the unemployment fund varies directly with the number of his former employees who qualify for unemployment benefits. Under the California scheme, however, an employer’s account is not finally charged with benefit payments until after he has exhausted all appeals in the administrative chain and also obtained judicial review. If he wins at any appellate level, he is not charged with any benefits paid to his former employee pending his appeal. Cal. Unemp. Ins. Code §§ 1335, 1380. He has no responsibility for recoupment. Thus, regardless of whether benefits to his former employees are suspended pending his appeal, an employer is assured of a complete opportunity to be heard before effective action is taken against him. Therefore here, as in Goldberg, the requirements of procedural due process protect the payment of benefits owing the displaced employee and the employer has notice and hearing before his account is charged. Whether due process would require the latter is a question we do not reach.* *Cf. Labor Board n. Gullett Gin Co., 340 U. S. 361. Though that case involved a question whether the Labor Board must deduct un-ernployment insurance payments from back-pay awards, we said: “Payments of unemployment compensation were not made to the employees by respondent but by the state out of state funds derived from taxation. True, these taxes were paid by employers, and thus to some extent respondent helped to create the fund. However, the payments to the employees were not made to discharge any liability or obligation of respondent, but to carry out a policy of social betterment for the benefit of the entire state.” Id., at 364. (Italics added.) JAMES v. VALTIERRA 137 Syllabus JAMES et al. v. VALTIERRA et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA No. 154. Argued March 3-4, 1971—Decided April 26, 1971* Appellees, who are eligible for low-cost public housing, challenged the requirement of Art. XXXIV of the California Constitution that no low-rent housing project be developed, constructed, or acquired by any state public body without the approval of a majority of those voting at a community election, as violative of the Supremacy, Privileges and Immunities, and Equal Protection Clauses of the United States Constitution. A three-judge District Court enjoined the enforcement of the referendum provision on the ground that it denied appellees equal protection of the laws, relying chiefly on Hunter v. Erickson, 393 U. S. 385. Held: The California procedure for mandatory referendums, which is not limited to proposals involving low-cost public housing, ensures democratic decisionmaking, and does not violate the Equal Protection Clause. Hunter v. Erickson, supra, distinguished. Pp. 140-143. 313 F. Supp. 1, reversed and remanded. Black, J., delivered the opinion of the Court, in which Burger, C. J., and Harlan, Stewart, and White, JJ., joined. Marshall, J., filed a dissenting opinion, in which Brennan and Blackmun, JJ., joined, post, p. 143. Douglas, J., took no part in the consideration or decision of the cases. Donald C. Atkinson argued the cause and filed a brief for appellants in No. 154. Moses Lasky argued the cause for appellant in No. 226. With him on the briefs was Malcolm T. Dungan. Archibald Cox argued the cause for appellees in both cases. On the brief were Lois P. Sheinfeld and Anthony G. Amsterdam. Warren Christopher and Donald M. Wessling filed a brief for appellee Housing Authority of the city of San Jose in both cases. *Together with No. 226, Shaffer n. Valtierra et al., also on appeal from the same court, argued March 4, 1971. 138 OCTOBER TERM, 1970 Opinion of the Court 402 U. S. Briefs of amici curiae urging affirmance in both cases were filed by Solicitor General Griswold, Assistant Attorney General Leonard, and Lawrence G. Wallace for the United States, and by Louis J. Lefkowitz, Attorney General, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and George D. Zuckerman, Dominick J. Tuminaro, and Lloyd G. Milliken, Assistant Attorneys General, for the Attorney General of the State of New York. Mr. Justice Black delivered the opinion of the Court. These cases raise but a single issue. It grows out of the United States Housing Act of 1937, 50 Stat. 888, as amended, 42 U. S. C. § 1401 et seq., which established a federal housing agency authorized to make loans and grants to state agencies for slum clearance and low-rent housing projects. In response, the California Legislature created in each county and city a public housing authority to take advantage of the financing made available by the federal Housing Act. See Cal. Health & Safety Code § 34240. At the time the federal legislation was passed the California Constitution had for many years reserved to the State’s people the power to initiate legislation and to reject or approve by referendum any Act passed by the state legislature. Cal. Const., Art. IV, § 1. The same section reserved to the electors of counties and cities the power of initiative and referendum over acts of local government bodies. In 1950, however, the State Supreme Court held that local authorities’ decisions on seeking federal aid for public housing projects were “executive” and “administrative,” not “legislative,” and therefore the state constitution’s referendum provisions did not apply to these actions.1 Within six months of 1 Housing Authority n. Superior Court, 35 Cal. 2d 550, 557-^58, 219 P. 2d 457, 460-461 (1950). JAMES v. VALTIERRA 139 137 Opinion of the Court that decision the California voters adopted Article XXXIV of the state constitution to bring public housing decisions under the State’s referendum policy. The Article provided that no low-rent housing project should be developed, constructed, or acquired in any manner by a state public body until the project was approved by a majority of those voting at a community election.2 The present suits were brought by citizens of San Jose, California, and San Mateo County, localities where housing authorities could not apply for federal funds because low-cost housing proposals had been defeated in referendums. The plaintiffs, who are eligible for low-cost public housing, sought a declaration that Article XXXIV was unconstitutional because its referendum requirement violated: (1) the Supremacy Clause of the United States Constitution; (2) the Privileges and Immunities Clause; and (3) the Equal Protection Clause. A three-judge court held that Article XXXIV denied the plaintiffs 2 “Section 1. No low rent housing project shall hereafter be developed, constructed, or acquired in any manner by any state public body until, a majority of the qualified electors of the city, town or county, as the case may be, in which it is proposed to develop, construct, or acquire the same, voting upon such issue, approve such project by voting in favor thereof at an election to be held for that purpose, or at any general or special election. “For the purposes of this article the term ‘low rent housing project’ shall mean any development composed of urban or rural dwellings, apartments or other living accommodations for persons of low income, financed in whole or in part by the Federal Government or a state public body or to which the Federal Government or a state public body extends assistance by supplying all or part of the labor, by guaranteeing the payment of liens, or otherwise. . . . “For the purposes of this article only ‘persons of low income’ shall mean persons or families who lack the amount of income which is necessary (as determined by the state public body developing, constructing, or acquiring the housing project) to enable them, without financial assistance, to live in decent, safe and sanitary dwellings, without overcrowding.” 419-882 0 - 72 - 14 140 OCTOBER TERM, 1970 Opinion of the Court 402 U. S. equal protection of the laws and it enjoined its enforcement. 313 F. Supp. 1 (ND Cal. 1970). Two appeals were taken from the judgment, one by the San Jose City Council, and the other by a single member of the council. We noted probable jurisdiction of both appeals. 398 U. S. 949 (1970); 399 U. S. 925 (1970). For the reasons that follow, we reverse. The three-judge court found the Supremacy Clause argument unpersuasive, and we agree. By the Housing Act of 1937 the Federal Government has offered aid to state and local governments for the creation of low-rent public housing. However, the federal legislation does not purport to require that local governments accept this or to outlaw local referendums on whether the aid should be accepted. We also find the privileges and immunities argument without merit. While the District Court cited several cases of this Court, its chief reliance plainly rested on Hunter v. Erickson, 393 U. S. 385 (1969). The first paragraph in the District Court’s decision stated simply: “We hold Article XXXIV to be unconstitutional. See Hunter v. Erickson . . . .” The court below erred in relying on Hunter to invalidate Article XXXIV. Unlike the case before us, Hunter rested on the conclusion that Akron’s referendum law denied equal protection by placing “special burdens on racial minorities within the governmental process.” Id., at 391. In Hunter the citizens of Akron had amended the city charter to require that any ordinance regulating real estate on the basis of race, color, religion, or national origin could not take effect without approval by a majority of those voting in a city election. The Court held that the amendment created a classification based upon race because it required that laws dealing with racial housing matters could take effect only if they survived a mandatory referendum while JAMES v. VALTIERRA 141 137 Opinion of the Court other housing ordinances took effect without any such special election. The opinion noted: “Because the core of the Fourteenth Amendment is the prevention of meaningful and unjustified official distinctions based on race, [citing a group of racial discrimination cases] racial classifications are ‘constitutionally suspect’. . . and subject to the ‘most rigid scrutiny.’. . . They ‘bear a far heavier burden of justification’ than other classifications.” Id., at 391-392. The Court concluded that Akron had advanced no sufficient reasons to justify this racial classification and hence that it was unconstitutional under the Fourteenth Amendment. Unlike the Akron referendum provision, it cannot be said that California’s Article XXXIV rests on “distinctions based on race.” Id., at 391. The Article requires referendum approval for any low-rent public housing project, not only for projects which will be occupied by a racial minority. And the record here would not support any claim that a law seemingly neutral on its face is in fact aimed at a racial minority. Cf. Gomillion v. Lightfoot, 364 U. S. 339 (1960). The present case could be affirmed only by extending Hunter, and this we decline to do. California’s entire history demonstrates the repeated use of referendums to give citizens a voice on questions of public policy. A referendum provision was included in the first state constitution, Cal. Const, of 1849, Art. VIII, and referendums have been a commonplace occurrence in the State’s active political life.3 Provisions for referendums demonstrate devotion to democracy, not to bias, discrimination, or prejudice. Nonetheless, appellees 3 See, e. g., W. Crouch, The Initiative and Referendum in California (1950). 142 OCTOBER TERM, 1970 Opinion of the Court 402 U. S. contend that Article XXXIV denies them equal protection because it demands a mandatory referendum while many other referendums only take place upon citizen initiative. They suggest that the mandatory nature of the Article XXXIV referendum constitutes unconstitutional discrimination because it hampers persons desiring public housing from achieving their objective when no such roadblock faces other groups seeking to influence other public decisions to their advantage. But of course a lawmaking procedure that “disadvantages” a particular group does not always deny equal protection. Under any such holding, presumably a State would not be able to require referendums on any subject unless referendums were required on all, because they would always disadvantage some group. And this Court would be required to analyze governmental structures to determine whether a gubernatorial veto provision or a filibuster rule is likely to “disadvantage” any of the diverse and shifting groups that make up the American people. Furthermore, an examination of California law reveals that persons advocating low-income housing have not been singled out for mandatory referendums while no other group must face that obstacle. Mandatory referendums are required for approval of state constitutional amendments, for the issuance of general obligation long-term bonds by local governments, and for certain municipal territorial annexations. See Cal. Const., Art. XVIII; Art. XIII, §40; Art. XI, § 2 (b). California statute books contain much legislation first enacted by voter initiative, and no such law can be repealed or amended except by referendum. Cal. Const., Art. IV, § 24 (c). Some California cities have wisely provided that their public parks may not be alienated without mandatory referendums, see, e. g., San Jose Charter § 1700. The people of California have also decided by their JAMES v. VALTIERRA 143 137 Marshall, J., dissenting own vote to require referendum approval of low-rent public housing projects. This procedure ensures that all the people of a community will have a voice in a decision which may lead to large expenditures of local governmental funds for increased public services and to lower tax revenues.4 It gives them a voice in decisions that will affect the future development of their own community. This procedure for democratic decisionmaking does not violate the constitutional command that no State shall deny to any person “the equal protection of the laws.” The judgment of the three-judge court is reversed and the cases are remanded for dismissal of the complaint. Reversed and remanded. Mr. Justice Douglas took no part in the consideration or decision of these cases. Mr. Justice Marshall, whom Mr. Justice Brennan and Mr. Justice Blackmun join, dissenting. By its very terms, the mandatory prior referendum provision of Art. XXXIV applies solely to “any development composed of urban or rural dwellings, apartments or other living accommodations for 4 Public low-rent housing projects are financed through bonds issued by the local housing authority. To be sure, the Federal Government contracts to make contributions sufficient to cover interest and principal, but the local government body must agree to provide all municipal services for the units and to waive all taxes on the property. The local services to be provided include schools, police, and fire protection, sewers, streets, drains, and lighting. Some of the cost is defrayed by the local governing body’s receipt of 10% of the housing project rentals, but of course the rentals are set artificially low. Both appellants and appellees agree that the building of federally financed low-cost housing entails costs to the local community. Appellant Shaffer’s Brief 34-35. Appellees’ Brief 47. See also 42 U. S. C. §§ 1401-1430. 144 OCTOBER TERM, 1970 Marshall, J., dissenting 402 U. S. persons of low income, financed in whole or in part by the Federal Government or a state public body or to which the Federal Government or a state public body extends assistance by supplying all or part of the labor, by guaranteeing the payment of liens, or otherwise.” Persons of low income are defined as “persons or families who lack the amount of income which is necessary ... to enable them, without financial assistance, to live in decent, safe and sanitary dwellings, without overcrowding.” The article explicitly singles out low-income persons to bear its burden. Publicly assisted housing developments designed to accommodate the aged, veterans, state employees, persons of moderate income, or any class of citizens other than the poor, need not be approved by prior referenda.* In my view, Art. XXXIV on its face constitutes invidious discrimination which the Equal Protection Clause of the Fourteenth Amendment plainly prohibits. “The States, of course, are prohibited by the Equal Protection Clause from discriminating between ‘rich’ and ‘poor’ as such in the formulation and application of their laws.” Douglas v. California, 372 U. S. 353, 361 (1963) (Harlan, J., dissenting). Article XXXIV is neither “a law of general applicability that may affect the poor more harshly than it does the rich,” ibid., nor an “effort to redress economic imbalances,” ibid. It is rather an explicit California law authorizes the formation of Renewal Area Agencies whose purposes include the construction of “low-income, middle-income and normal-market housing,” Cal. Health & Safety Code § 33701 et seq. Only low-income housing programs are subject to the mandatory referendum provision of Art. XXXIV even though all of the agencies’ programs may receive substantial governmental assistance. JAMES v. VALTIERRA 145 137 Marshall, J., dissenting classification on the basis of poverty—a suspect classification which demands exacting judicial scrutiny, see McDonald v. Board of Election, 394 U. S. 802, 807 (1969); Harper v. Virginia Board of Elections, 383 U. S. 663 (1966); Douglas v. California, supra. The Court, however, chooses to subject the article to no scrutiny whatsoever and treats the provision as if it contained a totally benign, technical economic classification. Both the appellees and the Solicitor General of the United States as amicus curiae have strenuously argued, and the court below found, that Art. XXXIV, by imposing a substantial burden solely on the poor, violates the Fourteenth Amendment. Yet after observing that the article does not discriminate on the basis of race, the Court’s only response to the real question in these cases is the unresponsive assertion that “referendums demonstrate devotion to democracy, not to bias, discrimination, or prejudice.” It is far too late in the day to contend that the Fourteenth Amendment prohibits only racial discrimination ; and to me, singling out the poor to bear a burden not placed on any other class of citizens tramples the values that the Fourteenth Amendment was designed to protect. I respectfully dissent. 146 OCTOBER TERM, 1970 Opinion of the Court 402U.S. PEREZ v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 600. Argued March 22, 1971—Decided April 26, 1971 Petitioner was convicted of “loan sharking” activities, i. e., unlawfully using extortionate means in collecting and attempting to collect an extension of credit, in violation of Title II of the Consumer Credit Protection Act, and his conviction was affirmed on appeal. He challenges the constitutionality of the statute on the ground that Congress has no power to control the local activity of loan sharking. Held: Title II of the Consumer Credit Protection Act is within Congress’ power under the Commerce Clause to control activities affecting interstate commerce and Congress’ findings are adequate to support its conclusion that loan sharks who use extortionate means to collect payments on loans are in a class largely controlled by organized crime with a substantially adverse effect on interstate commerce. Pp. 149-157. 426 F. 2d 1073, affirmed. Douglas, J., delivered the opinion of the Court, in which Burger, C. J., and Black, Harlan, Brennan, White, Marshall, and Blackmun, JJ., joined. Stewart, J., filed a dissenting opinion, post, p. 157. Albert J. Krieger argued the cause for petitioner. With him on the briefs was Joel M. Finkelstein. Solicitor General Griswold argued the cause for the United States. With him on the brief were Assistant Attorney General Wilson, Beatrice Rosenberg, and Marshall Tamor Golding. Mr. Justice Douglas delivered the opinion of the Court. The question in this case is whether Title II of the Consumer Credit Protection Act, 82 Stat. 159, 18 U. S. C. §891 et seq. (1964 ed., Supp. V), as construed and applied to petitioner, is a permissible exercise by Congress of its powers under the Commerce Clause of the Consti- PEREZ v. UNITED STATES 147 146 Opinion of the Court tution. Petitioner’s conviction after trial by jury and his sentence were affirmed by the Court of Appeals, one judge dissenting. 426 F. 2d 1073. We granted the petition for a writ of certiorari because of the importance of the question presented. 400 U. S. 915. We affirm that judgment. Petitioner is one of the species commonly known as “loan sharks” which Congress found are in large part under the control of “organized crime.”1 “Extortionate credit transactions” are defined as those characterized by the use or threat of the use of “violence or other criminal means” in enforcement.2 There was ample evidence showing petitioner was a “loan shark” who used the threat of violence as a method of collection. He loaned 1 Section 201 (a) of Title II contains the following findings by Congress: “(1) Organized crime is interstate and international in character. Its activities involve many billions of dollars each year. It is directly responsible for murders, willful injuries to person and property, corruption of officials, and terrorization of countless citizens. A substantial part of the income of organized crime is generated by extortionate credit transactions. “(2) Extortionate credit transactions are characterized by the use, or the express or implicit threat of the use, of violence or other criminal means to cause harm to person, reputation, or property as a means of enforcing repayment. Among the factors which have rendered past efforts at prosecution almost wholly ineffective has been the existence of exclusionary rules of evidence stricter than necessary for the protection of constitutional rights. “(3) Extortionate credit transactions are carried on to a substantial extent in interstate and foreign commerce and through the means and instrumentalities of such commerce. Even where extortionate credit transactions are purely intrastate in character, they nevertheless directly affect interstate and foreign commerce.” 2Section 891 of 18 U. S. C. (1964 ed., Supp. V) provides in part: “(6) An extortionate extension of credit is any extension of credit with respect to which it is the understanding of the creditor and the debtor at the time it is made that delay in making repayment or failure to make repayment could result in the use of violence or 148 OCTOBER TERM, 1970 Opinion of the Court 402 U. S. money to one Miranda, owner of a new butcher shop, making a $1,000 advance to be repaid in installments of $105 per week for 14 weeks. After paying at this rate for six or eight weeks, petitioner increased the weekly payment to $130. In two months Miranda asked for an additional loan of $2,000 which was made, the agreement being that Miranda was to pay $205 a week. In a few weeks petitioner increased the weekly payment to $330. When Miranda objected, petitioner told him about a customer who refused to pay and ended up in a hospital. So Miranda paid. In a few months petitioner increased his demands to $500 weekly which Miranda paid, only to be advised that at the end of the week petitioner would need $1,000. Miranda made that payment by not paying his suppliers; but, faced with a $1,000 payment the next week, he sold his butcher shop. Petitioner pursued Miranda, first making threats to Miranda’s wife and then telling Miranda he could have him castrated. When Miranda did not make more payments, petitioner said he was turning over his collections to people who would not be nice but who would put him in the hospital if he did not pay. Negotiations went on, Miranda finally saying he could only pay $25 a week. Petitioner said that was not enough, that Miranda should steal or sell drugs if necessary to get the money to pay the loan, and that if he went to jail it would be better than going to a hospital with a broken back or legs. He added, “I could have sent you to the hospital, you and your family, any moment I want with my people.” Petitioner’s arrest followed. Miranda, his wife, and an employee gave the evidence against petitioner who did other criminal means to cause harm to the person, reputation, or property of any person. “(7) An extortionate means is any means which involves the use, or an express or implicit threat of use, of violence or other criminal means to cause harm to the person, reputation, or property of any person.” PEREZ v. UNITED STATES 149 146 Opinion of the Court not testify or call any witnesses. Petitioner’s attack was on the constitutionality of the Act, starting with a motion to dismiss the indictment. The constitutional question is a substantial one. Two “loan shark” amendments to the bill that became this Act were proposed in the House—one by Congressman Poff of Virginia, 114 Cong. Rec. 1605-1606 and another one by Congressman McDade of Pennsylvania. Id., at 1609-1610. The House debates include a long article from the New York Times Magazine for January 28, 1968, on the connection between the “loan shark” and organized crime. Id., at 1428-1431. The gruesome and stirring episodes related have the following as a prelude: “The loan shark, then, is the indispensable ‘moneymover’ of the underworld. He takes ‘black’ money tainted by its derivation from the gambling or narcotics rackets and turns it ‘white’ by funneling it into channels of legitimate trade. In so doing, he exacts usurious interest that doubles the black-white money in no time; and, by his special decrees, by his imposition of impossible penalties, he greases the way for the underworld takeover of entire businesses.” Id., at 1429. There were objections on constitutional grounds. Congressman Eckhardt of Texas said: “Should it become law, the amendment would take a long stride by the Federal Government toward occupying the field of general criminal law and toward exercising a general Federal police power; and it would permit prosecution in Federal as well as State courts of a typically State offense. “I believe that Alexander Hamilton, though a federalist, would be astonished that such a deep entrenchment on the rights of the States in performing 150 OCTOBER TERM, 1970 Opinion of the Court 402U.S. their most fundamental function should come from the more conservative quarter of the House.” Id., at 1610. Senator Proxmire presented to the Senate the Conference Report approving essentially the “loan shark” provision suggested by Congressman McDade, saying: “Once again these provisions raised serious questions of Federal-State responsibilities. Nonetheless, because of the importance of the problem, the Senate conferees agreed to the House provision. Organized crime operates on a national scale. One of the principal sources of revenue of organized crime comes from loan sharking. If we are to win the battle against organized crime we must strike at their source of revenue and give the Justice Department additional tools to deal with the problem. The problem simply cannot be solved by the States alone. We must bring into play the full resources of the Federal Government.” Id., at 14490. The Commerce Clause reaches, in the main, three categories of problems. First, the use of channels of interstate or foreign commerce which Congress deems are being misused, as, for example, the shipment of stolen goods (18 U. S. C. §§ 2312-2315) or of persons who have been kidnaped (18 U. S. C. § 1201). Second, protection of the instrumentalities of interstate commerce, as, for example, the destruction of an aircraft (18 U. S. C. § 32), or persons or things in commerce, as, for example, thefts from interstate shipments (18 U. S. C. §659). Third, those activities affecting commerce. It is with this last category that we are here concerned. Chief Justice Marshall in Gibbons v. Ogden, 9 Wheat. 1, 195, said: “The genius and character of the whole government seem to be, that its action is to be applied to all the external concerns of the nation, and to PEREZ v. UNITED STATES 151 146 Opinion of the Court those internal concerns which affect the States generally; but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government. The completely internal commerce of a State, then, may be considered as reserved for the State itself.” Decisions which followed departed from that view; but by the time of United States v. Darby, 312 U. S. 100, and Wickard v. Filburn, 317 U. S. Ill, the broader view of the Commerce Clause announced by Chief Justice Marshall had been restored. Chief Justice Stone wrote for a unanimous Court in 1942 that Congress could provide for the regulation of the price of intrastate milk, the sale of which, in competition with interstate milk, affects the price structure and federal regulation of the latter. United States v. Wrightwood Dairy Co., 315 U. S. 110. The commerce power, he said, “extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce.” Id., at 119. Wickard v. Filburn, 317 U. S. Ill, soon followed in which a unanimous Court held that wheat grown wholly for home consumption was constitutionally within the scope of federal regulation of wheat production because, though never marketed interstate, it supplied the need of the grower which otherwise would be satisfied by his purchases in the open market.3 We said: “[E]ven if appellee’s activity be local and though it may not be regarded as commerce, it may still, 3 That decision has been followed: Beckman v. Mall, 317 U. S. 597; Bender v. Wickard, 319 U. S. 731; United States v. Haley, 358 U. S. 644; United States v. Ohio, 385 U. S. 9. 152 OCTOBER TERM, 1970 Opinion of the Court 402U.S. whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect.’ ” 317 U. S., at 125. In United States v. Darby, 312 U. S. 100, the decision sustaining an Act of Congress which prohibited the employment of workers in the production of goods “for interstate commerce” at other than prescribed wages and hours, a class of activities was held properly regulated by Congress without proof that the particular intrastate activity against which a sanction was laid had an effect on commerce. A unanimous Court said: “Congress has sometimes left it to the courts to determine whether the intrastate activities have the prohibited effect on the commerce, as in the Sherman Act. It has sometimes left it to an administrative board or agency to determine whether the activities sought to be regulated or prohibited have such effect, as in the case of the Interstate Commerce Act, and the National Labor Relations Act, or whether they come within the statutory definition of the prohibited Act, as in the Federal Trade Commission Act. And sometimes Congress itself has said that a particular activity affects the commerce, as it did in the present Act, the Safety Appliance Act and the Railway Labor Act. In passing on the validity of legislation of the class last mentioned the only function of courts is to determine whether the particular activity regulated or prohibited, is within the reach of the federal power.” (Italics added.) Id., at 120-121. That case is particularly relevant here because it involved a criminal prosecution, a unanimous Court hold PEREZ v. UNITED STATES 153 146 Opinion of the Court ing that the Act was “sufficiently definite to meet constitutional demands.” Id., at 125. Petitioner is clearly a member of the class which engages in “extortionate credit transactions” as defined by Congress4 and the description of that class has the required definiteness. It was the “class of activities” test which we employed in Atlanta Motel v. United States, 379 U. S. 241, to sustain an Act of Congress requiring hotel or motel accommodations for Negro guests. The Act declared that “ ‘any inn, hotel, motel, or other establishment which provides lodging to transient guests’ affects commerce per se.” Id., at 247. That exercise of power under the Commerce Clause was sustained. “[O]ur people have become increasingly mobile with millions of people of all races traveling from State to State; . . . Negroes in particular have been the subject of discrimination in transient accommodations, having to travel great distances to secure the same; . . . often they have been unable to obtain accommodations and have had to call upon friends to put them up overnight . . . and . . . these conditions had become so acute as to require the listing of available lodging for Negroes in a special guidebook. . . .” Id., at 252-253. In a companion case, Katzenbach v. McClung, 379 U. S. 294, we ruled on the constitutionality of the restaurant provision of the same Civil Rights Act which regulated the restaurant “if ... it serves or offers to serve interstate travelers or a substantial portion of the food which it serves . . . has moved in commerce.” Id., at 298. Apart from the effect on the flow of food in commerce to restaurants, we spoke of the restrictive 4 See n. 2, supra. 154 OCTOBER TERM, 1970 Opinion of the Court 402U.S. effect of the exclusion of Negroes from restaurants on interstate travel by Negroes. “[T]here was an impressive array of testimony that discrimination in restaurants had a direct and highly restrictive effect upon interstate travel by Negroes. This resulted, it was said, because discriminatory practices prevent Negroes from buying prepared food served on the premises while on a trip, except in isolated and unkempt restaurants and under most unsatisfactory and often unpleasant conditions. This obviously discourages travel and obstructs interstate commerce for one can hardly travel without eating. Likewise, it was said, that discrimination deterred professional, as well as skilled, people from moving into areas where such practices occurred and thereby caused industry to be reluctant to establish there.” Id., at 300. In emphasis of our position that it was the class of activities regulated that was the measure, we acknowledged that Congress appropriately considered the “total incidence” of the practice on commerce. Id., at 301. Where the class of activities is regulated and that class is within the reach of federal power, the courts have no power “to excise, as trivial, individual instances” of the class. Maryland v. Wirtz, 392 U. S. 183, 193. Extortionate credit transactions, though purely intrastate, may in the judgment of Congress affect interstate commerce. In an analogous situation, Mr. Justice Holmes, speaking for a unanimous Court, said: “[W]hen it is necessary in order to prevent an evil to make the law embrace more than the precise thing to be prevented it may do so.” Westfall v. United States, 274 U. S. 256, 259. In that case an officer of a state bank which was a men^ber of* the Federal Reserve System PEREZ v. UNITED STATES 155 146 Opinion of the Court issued a fraudulent certificate of deposit and paid it from the funds of the state bank. It was argued that there was no loss to the Reserve Bank. Mr. Justice Holmes replied, “But every fraud like the one before us weakens the member bank and therefore weakens the System.” Id., at 259. In the setting of the present case there is a tie-in between local loan sharks and interstate crime. The findings by Congress are quite adequate on that ground. The McDade Amendment in the House, as already noted, was the one ultimately adopted. As stated by Congressman McDade it grew out of a “profound study of organized crime, its ramifications and its implications” undertaken by some 22 Congressmen in 1966-1967. 114 Cong. Rec. 14391. The results of that study were included in a report, The Urban Poor and Organized Crime, submitted to the House on August 29, 1967, which revealed that “organized crime takes over $350 million a year from America’s poor through loan-sharking alone.” See 113 Cong. Rec. 24460-24464. Congressman McDade also relied on The Challenge of Crime in a Free Society, A Report by the President’s Commission on Law Enforcement and Administration of Justice (February 1967) which stated that loan sharking was “the second largest source of revenue for organized crime,” id., at 189, and is one way by which the underworld obtains control of legitimate businesses. Id., at 190. The Congress also knew about New York’s Report, An Investigation of the Loan Shark Racket (1965). See 114 Cong. Rec. 1428-1431. That report shows the loan shark racket is controlled by organized criminal syndicates, either directly or in partnership with independent operators; that in most instances the racket is organized into three echelons, with the top underworld “bosses” providing the money to their principal “lieutenants,” 419-882 0 - 72 - 15 156 OCTOBER TERM, 1970 Opinion of the Court 402U.S. who in turn distribute the money to the “operators” who make the actual individual loans; that loan sharks serve as a source of funds to bookmakers, narcotics dealers, and other racketeers; that victims of the racket include all classes, rich and poor, businessmen and laborers; that the victims are often coerced into the commission of criminal acts in order to repay their loans; that through loan sharking the organized underworld has obtained control of legitimate businesses, including securities brokerages and banks which are then exploited; and that “[e]ven where extortionate credit transactions are purely intrastate in character, they nevertheless directly affect interstate and foreign commerce.” 5 Shortly before the Conference bill was adopted by Congress a Senate Committee had held hearings on loan sharking and that testimony was made available to members of the House. See 114 Cong. Rec. 14390. The essence of all these reports and hearings was summarized and embodied in formal congressional findings. They supplied Congress with the knowledge that the loan shark racket provides organized crime with its second most lucrative source of revenue, exacts millions from the pockets of people, coerces its victims into the commission of crimes against property, and causes the takeover by racketeers of legitimate businesses. See generally 114 Cong. Rec. 14391, 14392, 14395, 14396. We have mentioned in detail the economic, financial, and social setting of the problem as revealed to Congress. We do so not to infer that Congress need make particularized findings in order to legislate. We relate the history of the Act in detail to answer the impassioned plea of petitioner that all that is involved in loan 5 See n. 1, supra. PEREZ v. UNITED STATES 157 146 Stewart, J., dissenting sharking is a traditionally local activity. It appears, instead, that loan sharking in its national setting is one way organized interstate crime holds its guns to the heads of the poor and the rich alike and syphons funds from numerous localities to finance its national operations. Affirmed. Mr. Justice Stewart, dissenting. Congress surely has power under the Commerce Clause to enact criminal laws to protect the instrumentalities of interstate commerce, to prohibit the misuse of the channels or facilities of interstate commerce, and to prohibit or regulate those intrastate activities that have a demonstrably substantial effect on interstate commerce. But under the statute before us a man can be convicted without any proof of interstate movement, of the use of the facilities of interstate commerce, or of facts showing that his conduct affected interstate commerce. I think the Framers of the Constitution never intended that the National Government might define as a crime and prosecute such wholly local activity through the enactment of federal criminal laws. In order to sustain this law we would, in my view, have to be able at the least to say that Congress could rationally have concluded that loan sharking is an activity with interstate attributes that distinguish it in some substantial respect from other local crime. But it is not enough to say that loan sharking is a national problem, for all crime is a national problem. It is not enough to say that some loan sharking has interstate characteristics, for any crime may have an interstate setting. And the circumstance that loan sharking has an adverse impact on interstate business is riot a distinguishing attribute, for interstate business suffers from 158 OCTOBER TERM, 1970 Stewart, J., dissenting 402U.S. almost all criminal activity, be it shoplifting or violence in the streets. Because I am unable to discern any rational distinction between loan sharking and other local crime, I cannot escape the conclusion that this statute was beyond the power of Congress to enact. The definition and prosecution of local, intrastate crime are reserved to the States under the Ninth and Tenth Amendments. UNITED STATES v. SOUTHERN UTE INDIANS 159 Opinion of the Court UNITED STATES v. SOUTHERN UTE TRIBE OR BAND OF INDIANS CERTIORARI TO THE UNITED STATES COURT OF CLAIMS No. 515. Argued March 1, 1971—Decided April 26, 1971 Respondent’s claims for compensation and accounting are barred by res judicata since they relate to land “formerly owned or claimed by [the Confederated Bands of Utes] in western Colorado, ceded to [the United States] by the Act of June 15, 1880” and thus were subject to a final settlement reduced to a consent judgment, to which respondent was a party, made in 1950. Pp. 161-174. 191 Ct. Cl. 1, 423 F. 2d 346, reversed. Brennan, J., delivered the opinion of the Court, in which Burger, C. J., and Black, Harlan, Stewart, White, Marshall, and Blackmun, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 174. Lawrence G. Wallace argued the cause for the United States. On the briefs were Solicitor General Griswold, Assistant Attorney General Kashiwa, Peter L. Strauss, and Edmund B. Clark. Glen A. Wilkinson argued the cause for respondent. With him on the brief was Richard A. Baenen. Mr. Justice Brennan delivered the opinion of the Court. In 1951 the Southern Ute Tribe or Band of Indians, a part of the Confederated Bands of Utes, brought this claim before the Indian Claims Commission.1 The claim asserted that the United States had violated its fiduciary-duty to respondent by (1) disposing of 220,000 acres of land as “free homesteads” although obligated by 21 Stat. 1The claim was filed pursuant to the Indian Claims Commission Act, 25 U. S. C. § 70a. See also 25 U. S. C. § 70k. 160 OCTOBER TERM, 1970 Opinion of the Court 402U.S. 203-204 (1880) and 28 Stat. 678 (1895) to sell the acreage for the respondent’s benefit; and (2) by failing to account for the proceeds of 82,000 acres of land, which proceeds were, under the same Acts, to be held for the respondent’s benefit. The Government’s basic defense was res judicata by reason of Court of Claims consent judgments entered in 1950 between the United States and the Confederated Bands of Utes, including the respondent.2 Confederated Bands of Ute Indians v. United States, 117 Ct. Cl. 433 (1950). The Indian Claims Commission rejected the defense, 17 Ind. Cl. Comm. 28 (1966); but the Court of Claims, in an unpublished order, App. 57-58, remanded for the taking of additional evidence. On remand the Commission again rejected the defense, 21 Ind. Cl. Comm. 268 (1969), and the Court of Claims affirmed, two judges dissenting. 191 Ct. Cl. 1, 423 F. 2d 346 (1970). We granted certiorari. 400 U. S. 915 (1970). We reverse. The consent judgment entered in the Court of Claims gave effect to a settlement agreement which recited a stipulation of the parties that: “[A] judgment . . . shall be entered in this cause as full settlement and payment for the complete extinguishment of plaintiffs’ right, title, interest, estate, claims and demands of whatsoever nature in and to the land and property in western Colorado ceded by plaintiffs to defendant by the Act of June 15, 1880 (21 Stat. 199), which (a) the United States sold 2 The 1950 cases were brought under the Jurisdictional Act of 1938, 52 Stat. 1209. The settlement reduced to consent judgment principally relied upon by the Government is that in Case No. 46640, 117 Ct. Cl. 433, 436 (1950). Related stipulations are reported at 117 Ct. Cl., at 434, 438, 440. The aggregate amount of the settlements exceeded $31 million. The United States also unsuccessfully asserted below defenses of failure to state a claim and failure to join all necessary parties. Those questions are not before us. UNITED STATES v. SOUTHERN UTE INDIANS 161 159 Opinion of the Court for cash . . . (b) disposed of as free homesteads . . . and (c) set aside for public purposes [between 1910 and 1938]. . . . There is filed herewith and made a part of this stipulation Schedule 1, which contains the legal descriptions of [lands] . . . disposed of by defendant as free homesteads and the remaining . . . acres ... set aside by the defendant for public purposes. . . . However, the judgment to be entered in this case is res judicata, not only as to the land described in Schedule 1, but . . . also as to any land formerly owned or claimed by the plaintiffs in western Colorado, ceded to defendant by the Act of June 15, 1880 . . . .” 117 Ct. CL, at 436-437 (emphasis added). The lands involved in the present suit were not included in Schedule 1; rather, the Government relies upon the clause that the consent judgment was “res judicata . . . also as to any land . . . ceded to defendant by the Act of June 15, 1880 . . . .” Both the Indian Claims Commission and the Court of Claims rejected the Government’s res judicata defense on the ground that the claim concerning the lands involved in this action was not compromised by the 1950 settlement because those lands were not among the lands “ceded to defendant by the Act of June 15, 1880.” Decision of this case turns, then, upon the proper interpretation of the agreement, embodied in the Act of 1880, between the United States and the Ute Indians as it relates to the settlement agreement, reduced to judgment in 1950, between the same parties. The determination of that interpretation requires a somewhat lengthy factual recitation. In the latter half of the 19th century, what is now the Confederated Bands of Utes, composed of the Uncom-pahgre Utes, the White River Utes, and the Southern 162 OCTOBER TERM, 1970 Opinion of the Court 402U.S. Utes, exchanged their aboriginal lands in New Mexico, Utah, and Colorado for a reservation of approximately 15.7 million acres lying wholly within Colorado. 13 Stat. 673 (1864); 15 Stat. 619 (1868). Although the acreage was undivided, the White River Utes lived in the northern portion of the reservation, the Uncompahgre Utes inhabited the central part, and the Southern Utes occupied the southern region. The reservation, however, survived little longer than a decade in this form. In 1874 the Utes approved the Brunot Cession of 3.7 million acres of the east-central portion of the reservation after valuable mineral deposits had been discovered there. 18 Stat. 36 (1874).3 The result of the cession was almost to sever the reservation, leaving the Southern Utes wedged between the southern boundary line of the Brunot Cession and the New Mexico border, at the southernmost part of the reservation on a strip of land 15 miles wide and 110 miles long. This strip, which includes the lands at issue here, is referred to by the parties as Royce Area 617, and the remainder of the reservation after the Brunot Cession is referred to as Royce Area 616.4 Within eight years, only the Southern Utes remained in Colorado: the White River Utes and the Uncompahgre Utes departed for Utah before 1882 as a consequence of the massacre in 1879 of Indian Agent Meeker and others at White River station. The public outcry over this incident led to negotiations with the Confederated Bands which produced the Act of 1880. 3 The United States admits that the stated consideration was not promptly paid. Brief for Petitioner 5. See also J. Dunn, Massacres of the Mountains 583-587 (1958). 4 These derive from a map of Indian land cessions, Pl. CXVI, drawn by Charles Royce in connection with a published study, Indian Land Cessions, 18th Ann. Rep., Bur. of Amer. Ethnology, pt. 2 (1896-1897). UNITED STATES v. SOUTHERN UTE INDIANS 163 159 Opinion of the Court The central feature of the Act of 1880 was the termination of tribal ownership in the reservation lands, and the limitation of Indian ownership to such lands as might be allotted in severalty to individual Indians. The purposes of that provision were to destroy the tribal structure and to change the nomadic ways of the Utes by forcibly converting them from a pastoral to an agricultural people. See 10 Cong. Rec. 2059, 2066 (1880). The Act recited that it was enacted to accept “the agreement submitted by the confederated bands of Ute Indians in Colorado, for the sale of their reservation in said State . . . .” 21 Stat. 199 (1880). Thus, it was provided that the Confederated Bands “cede to the United States all the territory of the present Ute Reservation in Colorado, except as hereinafter provided for their settlement.” 21 Stat. 200 (1880). The settlement provisions stipulated that the White River Utes would leave Colorado “and settle upon agricultural lands on the Uintah Reservation in Utah,” ibid., and that “ [t]he Un-compahgre Utes agree to remove to and settle upon agricultural lands on Grand River, near the mouth of the Gunnison River, in Colorado,” ibid., or if insufficient agricultural land was found there, go to Utah (which they soon did). The Southern Utes were to “remove to and settle upon the unoccupied agricultural lands on the La Plata River, in Colorado; and if there should not be a sufficiency of such lands on the La Plata River and in its vicinity in Colorado, then upon such other unoccupied agricultural lands as may be found on the La Plata River or in its vicinity in New Mexico.” Ibid. Finally, it was provided that “all the lands not so allotted, the title to which is, by the said agreement of the confederated bands of the Ute Indians, and this acceptance by the United States, released and conveyed to the United States, shall be held and deemed to be public lands of the United 164 OCTOBER TERM, 1970 Opinion of the Court 402 U. S. States and subject to disposal,” but only for the financial benefit of the Utes. 21 Stat. 203-204 (1880). The plain wording of the Act cedes to the United States all of the nonallotted acreage of the reservation, including that in the 15-mile strip (Royce Area 617) occupied by the Southern Utes. The Court of Claims’ opinion acknowledges this, stating that: “The most significant aspects to be gleaned from this [ 1880] Act ... is that the Confederated Bands (Southern Utes included) seemed to cede their entire Colorado reservation—Royce Area 616 and 617—and moreover promised to accept allotments in severalty in various sectors within and beyond reservation boundaries. As sole consideration for these promises, the Bands were to receive shares in the proceeds of unallotted land sales remaining after certain Government reimbursements. The Southern Utes were apportioned a one-third share and like their confederates understood that such monies would be held by defendant in trust for their benefit.” 191 Ct. Cl., at 10, 423 F. 2d, at 350 (1970) (emphasis in original). Thus, if inquiry were to end with the wording of the 1880 Act, the consent judgment barred respondent’s claim. The Commission and the Court of Claims did not, however, end their inquiry with the wording of the Act of 1880. Both of those tribunals considered the conduct of the United States in relation to respondent tribe in the years subsequent to passage of the Act of 1880. Even so, the basis of their rejection of the res judicata defense does not emerge from their opinions with complete clarity. The Court of Claims read the Commission’s first opinion, 17 Ind. Cl. Comm. 28 (1966), as holding that the Southern Utes expressly withheld the southern strip from the lands ceded by the 1880 Act: “The Commission found that the Act of 1880 ‘reserved’ Royce Area 617 for the Southern UNITED STATES v. SOUTHERN UTE INDIANS 165 159 Opinion of the Court Utes.” 191 Ct. Cl., at 10, 423 F. 2d, at 350. Some language at that point of the opinion suggested that the Court of Claims was in agreement with that view—“the following sequence of events . . . support the conclusion that plaintiffs at any rate did not cede their reservation (Royce Area 617) under the agreement of 1880.” Ibid. However, the opinion later turns the decision on a different theory: “The more tenable theory, in our estimation, is that Congress recognized that by its protracted acquiescence in the Southern Ute occupation, Government rights to the land had somehow lapsed, or the agreement not being executed for so long a time, was rescinded and dead. It may be that the obligation to deal justly and honorably with the Indian wards did not allow insistence on full implementation of the apparent terms of the 1880 agreement. On the other hand, the Southern Utes obviously did not see themselves as mere squatters. The Congress therefore decided that if the land was going to be acquired free and clear new consideration was necessary. Hence we find section 5 of the 1895 agreement to be an explicit waiver of the Government’s rights created in the 1880 agreement, whatever they were. It follows then that the Southern Ute lands in controversy were ceded in 1895 not 1880.” Id., at 19-20, 423 F. 2d, at 356. This reasoning implies that the holding that the lands in suit were not ceded in 1880 rests upon application of the doctrines of estoppel, or waiver, or a compound of those doctrines. We disagree that the history relied on supports any of those bases for decision, even assuming (and we have serious doubts) that the plain words of the Act of 1880 can thus be varied to except the lands in suit from the phrase “any land . . . ceded” in the consent 166 OCTOBER TERM, 1970 Opinion of the Court 402U.S. judgment. We turn, then, seriatim to the events relied upon below. Even before 1880 the Southern Utes had experienced hardship in living on the southern strip. Essentially, they were a pastoral people and the strip was so narrow that it was difficult to keep their animals within it. In addition, the white population to the north and south of the strip was increasing and the resulting lines of commerce cut across the strip. “The Indian Bureau, realizing that this strip, by reason of its narrowness and of its remoteness from the other portion of the reservation, was entirely unsuited to the use of the Indians, suggested that negotiations be entered into with them for the cession of that strip. In accordance with this,. in 1878, Congress passed an act authorizing such negotiations (U. S. Stat. L., vol. 20, p. 48), and under this authority a commission . . . was appointed, and during the same year they negotiated an agreement with the Indians whereby they agreed to exchange this strip for another reservation.” S. Rep. No. 279, 53d Cong., 2d Sess., 1 (1894). But before the bill was acted upon by Congress, the Meeker Massacre occurred.5 The outcry following that incident caused Congress to adopt the solution in the Act of 1880 affecting all of the Ute tribes. Contrary to the apparent view of the Commission and Court of Claims, this segment of history does not show an inten- 5 While apparently the “massacre” involved only the White River Utes, all Utes were blamed. See exchange of correspondence during the uprising among the Indian agents, Secretary of the Interior, Governor of Colorado, and others printed in S. Exec. Doc. No. 31, 46th Cong., 2d Sess. (1880). See also J. Dunn, Massacres of the Mountains (1958), and U. S. Army, Military Division of the Missouri (Gen. P. Sheridan, Commanding), Record of Engagements with Hostile Indians 88-91 (1882). UNITED STATES v. SOUTHERN UTE INDIANS 167 159 Opinion of the Court tion to treat the Southern Utes differently from the other Utes; rather, it demonstrates a congressional decision to treat the Southern Utes as the White River and Uncom-pahgre Utes were being treated, save that the White River Utes were being completely banished from Colorado. The Act of 1880 provided that “a commission shall be sent to superintend the removal and settlement of the Utes, and to see that they are well provided with agricultural and pastoral lands sufficient for their future support . . . ” 21 Stat. 201 (1880). The Commission visited the Southern Utes to carry out that mandate and in 1881 its chairman reported to Congress: “During my stay on the reservation I took occasion ... to talk to the leading men ... on the subject of their location in severalty. In these conversations I called their attention to the fact that the work the surveyors were doing was the preliminary step to such location [in severalty] . . . . I did not find one who desired a house, or would agree to dwell in one if built for him on his own land. It will take time and careful management to induce these Indians to abandon their present [way of living] and adopt the new mode of life contemplated by the agreement. “In the mean time, and while the change is going on, they must be protected from annoyance. . . . To prevent intrusion and guarantee proper order and protection, I can see no other way than to so modify the [1880] agreement ... as to maintain the exterior lines of the strip of land one hundred miles long and fifteen wide, and preserve all the land within these lines for an indefinite period as an Indian reservation .... Then the land selected, and upon which the Indians are to be located, can be kept free 168 OCTOBER TERM, 1970 Opinion of the Court 402 U. S. from intruders.” H. R. Exec. Doc. No. 1, pt. 5, Vol. 2, 47th Cong., 1st Sess., 393 (1882). But Congress did not create the recommended reservation. Instead, Congress took action consistent with adherence to the plan of the Act of 1880. There had been great pressure to open Royce Areas 616 and 617 to homesteading after the Act of 1880 had resulted in the removal of the Uncompahgre and White River Utes. The Southern Utes were, however, still occupying the southern strip, Royce Area 617. The apparent result was the Act of July 28, 1882, 22 Stat. 178, which declared that all of the northern portions of the reservation formerly occupied by the Uncompahgre and White River Utes, Royce Area 616, were now public lands to be disposed of for the benefit of the Utes in accordance with the Act of 1880. Section 2 of that statute provided that the Secretary of the Interior “shall, at the earliest practicable day, ascertain and establish the line between” the two Royce Areas. 22 Stat. 178 (1882). We find nothing in the legislative history of that statute to support a finding that it evidenced a congressional conclusion that the southern strip had not been ceded by the Act of 1880. On the contrary, the thrust of the legislative history is that the line was drawn to assure that there would be no interference with the land in Royce Area 617 available for allotment to the Southern Utes under the Act of 1880. H. R. Rep. No. 799, 53d Cong., 2d Sess., 2 (1894); S. Rep. No. 279, 53d Cong., 2d Sess., 2, 3-4 (1894).6 6 The Court of Claims found proof that “the Interior Department at least was already viewing the Southern Ute territory as a permanent reservation not ceded under the terms of the 1880 cession,” 191 Ct. CL, at 13, 423 F. 2d, at 352, in a description of the line in an 1882 letter to the district land offices. We find nothing in the letter to that effect, and in any event, it could hardly be the basis for disregarding the congressionally expressed design. UNITED STATES v. SOUTHERN UTE INDIANS 169 159 Opinion of the Court The Court of Claims also found support for its conclusion in what was said to a congressional committee by a Ute spokesman for the Southern Utes at a meeting in the District of Columbia in 1886. The spokesman stated that the delegation had come “to see if we cannot exchange our reservation for another. . . . The present reservation is narrow and long, and we want to go west and see if we can’t sell it.” S. Rep. No. 836, 49th Cong., 1st Sess., 1 (1886). The Court of Claims viewed this as demonstrating that “the Southern Utes were still in possession of their part of their old reservation under claim of right.” 191 Ct. Cl., at 14, 423 F. 2d, at 353. We do not doubt that the Southern Utes regarded the lands they occupied as “our reservation,” but we fail to see howr this nullifies the conveyance of the strip made by the Act of 1880. On the contrary, there is cogent evidence that the United States totally rejected the Indians’ claim that the strip was “our reservation.” After two bills to effectuate the removal of the Southern Utes failed to pass, Congress enacted 25 Stat. 133 (1888) empowering “[t]he Secretary of the Interior ... to appoint a commission . . . with authority to negotiate with the band of Ute Indians of southern Colorado for such modification of their treaty and other rights, and such exchange of their reservation, as may be deemed desirable by said Indians and the Secretary of the Interior . . . .” Ibid. Despite the reference to “their reservation,” the premise of this statute was obviously that amelioration of the plight of the Southern Utes would require “modification of their treaty and other rights” as they had been fixed in the Act of 1880. Even the Court of Claims thought the Act of 1888 little support for the respondents’ contention: “Although the language of this act tends to favor plaintiffs’ position it is by no means conclusive. It 170 OCTOBER TERM, 1970 Opinion of the Court 402 U. S. merely authorized the establishment of a commission to engage the Southern Utes in negotiations for the purpose of persuading them to do belatedly what the Uncompahgre and White River Utes had done some years earlier, namely, to vacate their reservation and move elsewhere. A reasonable explanation for the act’s exclusive terms is that the Southern Utes were the only band of the confederation as to whom the 1880 agreement was still executory.” 191 Ct. Cl., at 15, 423 F. 2d, at 353-354. The Commission formed pursuant to the Act of 1888 did succeed in negotiating an agreement with the Southern Utes, under which the Southern Utes would have been moved to a reservation in San Juan County, Utah. The Court of Claims observed that in such case “[p]resumably, their evacuated reservation lands would then be sold in accordance with the Act of 1880 and the proceeds would be held for the collective benefit of the Confederated Bands in the prescribed proportions, that is, the consideration visualized in the 1880 agreement as accruing to the Southern Utes would still accrue.” 191 Ct. CL, at 16,423 F. 2d, at 354. In other words, the treatment of the Southern Utes would be precisely that accorded the Uncompahgre and White River Utes when they left Colorado. But this event only serves to furnish still more proof that the Government remained firm in its position that the strip was ceded by the Act of 1880. This is confirmed by the congressional reaction when the agreement was submitted for approval—nothing happened for six years and the agreement was again introduced in 1894. The opinion of the Court of Claims depicts the situation: “Conceding the ‘anomalous position [of the Southern Utes] of having ceded their reservation and yet remaining on it’, the Senate Committee on Indian Affairs favored ratification (Sen. Rep. No. 279, 53d UNITED STATES v. SOUTHERN UTE INDIANS 171 159 Opinion of the Court Cong., 2d Sess. 2-3 (1894)). Its House counterpart, although concurring in the view that the Southern Utes presented an anomalous situation, did not assent to ratification (H. R. Rep. No. 799, 53d Cong., 2d Sess. 2-3 (1894)). It believed that the proposed reservation was too large for the Southern Utes and hence would encourage their nomadic ways. Therefore, instead, the House Committee recommended enactment of a pending bill which was eventually passed as the Act of February 20,1895 (28 Stat. 677). The stated purpose of this Act was to annul the agreement of 1888 and enforce the treaty of 1880 which sought to settle the Indians in severalty.” 191 Ct. Cl., at 16, 423 F. 2d, at 354. This recital refutes, rather than supports, the notion that the United States followed a pattern or course of conduct after 1880 that regarded the Southern Utes rather than the United States as the owners of Royce Area 617. Finally, we cannot agree with the Court of Claims that § 5 of the Act of 1895 is “an explicit waiver of the Government’s rights created in the 1880 agreement, whatever they were.” 191 Ct. CL, at 19-20, 423 F. 2d, at 356. The Act of 1895, in addition to annulling the 1888 agreement, expressly confirmed the Act of 1880 and directed the Secretary of the Interior to proceed with allotments in severalty to the Southern Utes “in accordance with the provisions of the Act of [1880].” 28 Stat. 677 (1895). It went on to settle the grievances of those Southern Utes who wanted their own reservation rather than allotments in severalty by providing that “there shall be ... set apart and reserved all that portion of their present reservation lying west of” a defined line in the strip. Id., at 678. We do not see how the United States could have “set apart and reserved” a portion of the strip for a reservation unless the strip belonged to it. The remainder of the strip to the east of the new reservation 419-882 0 - 72 - 16 172 OCTOBER TERM, 1970 Opinion of the Court 402U.S. was to be available for allotments in severalty to individual Southern Utes and the land not allotted was to “be and become a part of the public domain” to be sold for the benefit of said Utes. Ibid. Section 5 allocated the proceeds from sales of the land opened to public settlement. We look in vain for anything in that section to support the conclusion of the Court of Claims that it contains an “explicit waiver” by the United States of its rights under the Act of 1880 and that “[i]t follows then that the Southern Ute lands in controversy were ceded in 1895 not 1880.” 191 Ct. Cl., at 20, 423 F. 2d, at 356. The Senate Report recommending passage of the Act of 1895 belies that conclusion. The report repeats, once again, the previously stated position of the Congress that “[o]n March 6, 1880, [the Utes] . . . ceded the whole of their reservation in Colorado to the United States, except such lands, if any, as might be allotted to them in severalty.” S. Rep. No. 279, supra, at 2. We discern nothing in § 5 save some revision of the formula for allocation of the proceeds of the sales of the unallotted lands in the portion of the strip east of the reservation.7 We find ab- 7 Section 5 of the Act of 1895 provides in pertinent part: “That out of the moneys first realized from the sale of said lands so opened up to public settlement there shall be paid to said Indians the sum of fifty thousand dollars, as follows: Five thousand dollars annually for ten years ... to be equally divided among all of said Indians per capita, irrespective of age or sex; also the sum of twenty thousand dollars of said proceeds shall be paid to the Secretary of the Interior, who shall invest the same in sheep and divide the said sheep among the said Indians per capita equally, irrespective of age or sex; [certain allotments also made to specific chiefs and headmen] . . . that the balance of the money realized from the sale of lands, after deducting expenses of sale and survey, shall be held in the Treasury of the United States in trust for the sole use and benefit of said Southern Ute Indians. That nothing herein provided shall in any manner be construed to change or interfere with the rights of said Indians under any other existing treaty regarding any annuities or trust funds or the interest thereon.” 28 Stat. 678 (1895). UNITED STATES v. SOUTHERN UTE INDIANS 173 159 Opinion of the Court solutely no language that the Southern Utes made any cession thereby, and, indeed, we are convinced that the wording is consistent only with the fact that they had no land to cede.8 The Act of 1895 simply resolved the impasse over the allotments in severalty which had existed for 15 years because of the Southern Utes’ reluctance to accept them. The United States created a new reservation for them, while still permitting allotments to those Southern Utes willing and qualified to engage in farming. This plan was clearly constructed in reliance 8 The Court of Claims also seems to have placed some reliance upon the following words in an order of the Acting Secretary of the Interior in 1938 which restored to the Southern Utes that portion of Royce Area 617 yet undisposed of: “[P]ursuant to the provisions of the Act of February 20, 1895 (28 Stat. L., 677), the Southern Ute Band of Indians in Colorado ceded to the United States a large area of their reservation in the State of Colorado established expressly for their benefit under the treaty of June 15, 1880 (21 Stat. L., 199),” S. Doc. No. 194, 76th Cong., 3d Sess., 659 (1941) (compiled by C. Kappler). The Court of Claims suggested that these words demonstrated that “[petitioner’s] officials . . . not only concede that the lands were ceded in 1895, but they also enlighten us as to the status it retrospectively applied to the 1880 agreement.” 191 Ct. Cl., at 20, 423 F. 2d, at 356. As we have said in this opinion, we find no creation of a reservation for the Southern Utes in the Act of 1880, nor can we find any words of cession in the Act of 1895. In addition, rather than attaching the significance suggested by the Court of Claims, the quoted words are more properly to be treated as careless draftsmanship: the time of cession, whether 1880 or 1895, was of absolutely no consequence to the act of restoration of undisposed lands in 1938. Finally, the quoted words do not support the application here of the principle that courts should give weight to a consistent reading of an ambiguous document by the agency charged with its enforcement. As our opinion shows, we do not find either the Act of 1880 or that of 1895 ambiguous. Moreover, what consistency the parties have shown in the enforcement of those acts, cuts against the contention of the respondent. 174 OCTOBER TERM, 1970 Douglas, J., dissenting 402 U. S. upon, not in derogation of, the cession made under the Act of 1880. We therefore hold that the claim in this case is res judicata under the 1950 consent judgment enforcing the settlement agreement “as to any land . . . ceded to defendant by the Act of June 15, 1880.”9 Reversed. Mr. Justice Douglas, dissenting. Though the facts of this case are complex, they present but one major question, whether the lands in question were “ceded to defendant by the Act of June 15, 1880,” and included in a consent judgment entered by the Court of Claims in 1950. More precisely, what was the status of these lands (Royce Area 617) between 1880 and 1895? Were they ceded in 1880, yet not released by the Indians until 1895? How can it be said that Royce Area 617 was ceded in 1880 yet retained until 1895, since, as the Court of Claims stated, “the Southern Utes were allowed to remain on their surveyed reservation for 15 years after the purported cession, and the right to remove them without their further consent was not asserted or exercised.” 191 Ct. Cl. 1, 19, 423 F. 2d 346, 356. 9 The Court of Claims’ unreported order remanded the case to the Commission “for the hearing of additional evidence and the making of findings of fact with respect to the intention of the parties to the stipulation upon which a final judgment was entered in Court of Claims Case No. 46640 (117 Ct. Cl. 436) on July 13, 1950.” App. 57. The Commission’s supplemental findings after the hearing on remand are reported in 21 Ind. Cl. Comm. 268. We question the propriety of the remand, see Delaware Indians n. Cherokee Nation, 193 U. S. 127, 140-141 (1904); United States n. William Cramp & Sons Ship & Engine Building Co., 206 U. S. 118, 128 (1907), but do not decide the question since it does not appear that the decision of the Court of Claims turned on any evidence of the intention of the parties to the stipulation. UNITED STATES v. SOUTHERN UTE INDIANS 175 159 Douglas, J., dissenting Twice the facts have been considered, once by the Indian Claims Commission and once by the Court of Claims. And both have resolved the question presented in favor of the respondent, Southern Utes. That result below is amply supported by the record. As of 1880, the Confederated Bands of Ute Indians occupied a reservation of 12,000,000 acres in western Colorado. The White River Utes and the Uncompahgre Utes occupied the northern portion (Royce Area 616), and the Southern Utes occupied an almost separated southern section (Royce Area 617). In 1880, the Utes entered into a treaty with the United States. It provided that the chiefs would persuade their people “to cede to the United States all the territory of the present Ute Reservation in Colorado, except as hereinafter provided for their settlement. “The Southern Utes agree to remove to and settle upon the unoccupied agricultural lands on the La Plata River, in Colorado; and if there should not be a sufficiency of such lands on the La Plata River and in its vicinity in Colorado, then upon such other unoccupied agricultural lands as may be found on the La Plata River or in its vicinity in New Mexico.” Act of June 15, 1880, 21 Stat. 200. The cession of the territory was on the express condition: “That the Government of the United States cause the lands so set apart to be properly surveyed and to be divided among the said Indians in severalty . . . .” Id., at 200-201. The Secretary of the Interior was authorized to have the land surveyed for allotment. Commissioners were to make the allotments, “and all the lands not so allotted, the title to which is, by the said agreement of the confederated bands 176 OCTOBER TERM, 1970 Douglas, J., dissenting 402U.S. of the Ute Indians, and this acceptance by the United States, released and conveyed to the United States, shall be held and deemed to be public lands of the United States . . . Id., at 203. The Ute Commission was formed. In 1881 it reported to Congress. The Uncompahgre and White River Utes had been moved, but the Southern Utes were still on their reservation. The Chairman of the Commission had decided that it would be unwise to move them.1 The allotments, a condition of the cession, were not made. In 1882, Congress declared Royce Area 616 to be public land (22 Stat. 178). It provided that a line be established between Royce Area 616 and Royce Area 617. § 2. The Secretary of the Interior ordered the line to be drawn “[c]ommencing at the southwest corner of the Ute ceded lands; thence extending the south boundary 1 It has been suggested that the Indians refused to take the allotments or were stalling. This appears inconsistent with the report of Mr. Manypenny, the Chairman of the Ute Commission. The white settlers were dissatisfied on learning that the Indians might be allowed to settle in certain valleys which the settlers desired. The allotment, and sale of the residue to whites, would leave the Indians in “close proximity to the white settlements [and] will subject the Utes ... to constant annoyance by evil-disposed persons.” The Indians had to be protected from this. “To prevent intrusion and guarantee proper order and protection, I can see no other way than to so modify the [1880] agreement, so far as these Indians are concerned, as to maintain the exterior lines of the strip of land one hundred miles long and fifteen wide, and preserve all the land within these lines for an indefinite period as an Indian reservation, and let the United States laws in relation to Indian reservations have full force therein. Then the land selected, and upon which the Indians are to be located, can be kept free from intruders.” (H. R. Exec. Doc. No. 1, pt. 5, Vol. 2, 47th Cong., 1st Sess., 383, 393 (1881)). He did indicate that the Indians did not want to live in houses, but not that they would not accept the allotments. UNITED STATES v. SOUTHERN UTE INDIANS 177 159 Douglas, J., dissenting of the Ute ceded lands to the western boundary of the State of Colorado.” 2 (Emphasis supplied.) As of this time it appears that neither the Southern Utes nor officials of the United States thought that Royce Area 617 had been ceded by the Act of 1880. The Southern Utes still considered it their reservation3 and the Commissioner of Indian Affairs apparently felt likewise4—all of which is inconsistent with the theory that there had been a cession of it in 1880. In 1888, Congress authorized the Secretary of the Interior to appoint a commission to negotiate with the Southern Utes. They agreed to settle in Utah, but Congress would not approve the agreement. Congress then passed the Act of 1895, 28 Stat. 677: “That within six months after the passage of this Act the Secretary of the Interior shall cause allotment of land, in severalty, to be made to such of the Southern Ute Indians in Colorado as may elect and be considered by him qualified to take the same out 2 “From this description it would seem that the Interior Department at least was already viewing the Southern Ute territory as a permanent reservation not ceded under the terms of the 1880 cession. Specifically, the letter states that the survey line commence at, not in, the southwest comer of the ceded Ute land. Adhering to defendant’s contention that all lands were ceded in 1880, a literal interpretation of this letter would lead to an anomalous result. If the starting point was placed at the southwestern corner of Ute ceded land, the point would coincide with the converging point of the New Mexico, Colorado and Utah borders. The line could not extend to the western boundary of Colorado because it would start there.” 191 Ct. Cl., at 13, 423 F. 2d, at 352. 3 The Southern Utes came to Washington in 1886 to negotiate for an exchange of their reservation for one to the west. See S. Rep. No. 836, 49th Cong., 1st Sess., 1-2 (1886). 4 On April 5, 1886, he reported to the Secretary of the Interior, “[W]e are bound by solemn treaty stipulations with these Indians to prevent white people from entering upon or crossing said reservation.” Id., at 3. 178 OCTOBER TERM, 1970 Douglas, J., dissenting 402 U. S. of the agricultural lands embraced in their present reservation in Colorado, such allotments to be made in accordance with the provisions of the Act of [1880] . . . and the amendments thereto . . . .” §2. “That at the expiration of six months from the passage of this Act the President . . . shall issue his proclamation declaring the lands embraced within the present reservation of said Indians except such portions as may have been allotted or reserved under the provisions of the preceding sections of this Act, open to occupancy and settlement.” § 4, 28 Stat. 678. (Emphasis supplied.) The money realized from the sale of the lands set aside was to be held for the sole benefit of the Southern Ute Indians. Section 6 declared that the provisions of the Act were not to take effect until accepted by a majority of the male adult Indians. A majority did accept. Some of the Southern Utes took allotments in severalty. The Weeminuche Utes, now the Ute Mountain Utes, elected, however, to settle on a tract at the west end of their “present reservation.” § 3. A substantial amount of land in Royce Area 617 was settled by whites, and disposed of by the United States Government. The subject of the present suit before the Indian Claims Commission includes, inter alia, the proceeds from land sold and damages for land given away in violation of the Act of 1895. In 1934, Congress allowed restoration of all land in Royce Area 617 not disposed of under the Act of 1895. (48 Stat. 984.) The Secretary of the Interior restored all such land to the tribal sovereignty of the Southern Utes. That order began: “[P]ursuant to the provisions of the Act of February 20, 1895 . . . the Southern Ute Band of Indians in Colorado ceded to the United States a large area of UNITED STATES v. SOUTHERN UTE INDIANS 179 159 Douglas, J., dissenting their reservation in the State of Colorado established expressly for their benefit under the treaty of June 15, 1880 . . . ” (Order of Restoration, September 14, 1938, S. Doc. No. 194, 76th Cong., 3d Sess., 659 (1941) (compiled by C. Kappler).) (Emphasis supplied.) The Confederated Bands have sued the United States in the past for damages arising out of breaches of the 1880 treaty. One such suit was settled in 1950, and judgment was entered pursuant to a stipulation of the parties. A schedule of all land covered by the judgment was included, but omissions were provided for: “So far as the parties with diligence have been able to determine these descriptions represent all the land so disposed of and set aside. However, the judgment to be entered in this case is res judicata, not only as to the land described in Schedule 1, but, whether included therein or not, also as to any land formerly owned or claimed by the plaintiffs in western Colorado, ceded to defendant by the Act of June 15, 1880 . . . ” 117 Ct. Cl. 433, 437. None of the land in Royce Area 617 (360 sections or 21.8% of the total area which had been wrongly disposed of) was therefore included. The Indian Claims Commission found that the United States had acknowledged by its actions that the Southern Ute Reservation was not ceded by the 1880 Agreement. Therefore, any accounting which included Southern Ute lands in Case No. 30360, 45 Ct. Cl. 440 (1910), was erroneous and beyond the jurisdiction of the Court of Claims to enter. The Court of Claims remanded this case to the Commission for a determination of the intention of the parties in entering into the 1950 stipulation. Plaintiffs produced evidence that they never intended Royce Area 617 to be covered. The broad language of the stipulation was to insure that minor omissions were covered. 180 OCTOBER TERM, 1970 Douglas, J., dissenting 402 U. S. “Diligence” would not have permitted the exclusion of 360 sections of land. The Government refused to produce any documents which might have disclosed the intent of its signatories, claiming this was the “work product.” The Commission found no intent to include land in Royce Area 617 in the stipulation. . The Court of Claims found that the language of the Act of 1880 appeared to be inconsistent with the findings of the Commission, but that the events from 1880 to 1895 supported its conclusion, i. e., the decision to postpone issuing allotments and to preserve the reservation, the separation of Royce Area 617 by the Act of 1882, the description of the dividing line by the Secretary of the Interior, the negotiations with the Southern Utes to move, the belief by the Commissioner of Indian Affairs of a duty to keep white people off the “reservation,” 5 the Act of 1888, and the Act of 1895 providing additional compensation for the Southern Utes6 and requiring their approval.7 The evidence weighed “substantially in favor of the Commission’s interpretation.” The Government’s conduct, the Court of Claims said, evidenced a recognition that “by its protracted acquiescence in the Southern Ute occupation, Government rights to the land had somehow lapsed, or the agreement not being executed for so long a time, was rescinded and dead.” 191 Ct. Cl., at 19, 423 F. 2d, at 356. “Hence we find section 5 of the 1895 agreement to be an explicit waiver of the Government’s rights 5 N. 4, supra. 6 The treaty of 1880 required that the proceeds from sales of all land ceded under that agreement had to be credited to the benefit of all Utes. To credit the money received only to the account of Southern Utes would have been a violation of the treaty if the land had been ceded in 1880. 7 If the land had been ceded under the 1880 agreement, acceptance of the Act of 1895 was completely unnecessary. UNITED STATES v. SOUTHERN UTE INDIANS 181 159 Douglas, J., dissenting created in the 1880 agreement, whatever they were. It follows then that the Southern Ute lands in controversy were ceded in 1895 not 1880.” 191 Ct. Cl., at 19-20, 423 F. 2d, at 356. This holding was supported also by the language employed by the Secretary of the Interior in the Restoration of 1938.8 Since the Southern Ute land was not ceded in 1880, any claims involving that land were beyond the mandate of the Jurisdictional Act of 1909, 35 Stat. 781, and improvi-dently heard in 1910. Likewise the 1950 judgment was no bar. Neither party had intended it to apply to Royce Area 617. If the intention of the parties was irrelevant, the stipulation on its face would not apply to “areas not effectively ceded.” 191 Ct. Cl., at 22, 423 F. 2d, at 358. This Court now reviews those findings and reverses. In doing so it simply remarshals the evidence for the new result, ignoring the limits of this Court’s appellate jurisdiction over the Court of Claims. The question present is either a question of fact or, at best, a mixed question of law and fact and the determination of the Court of Claims is binding on this Court if it is supported by substantial evidence. United States v. Swift & Co., 270 U. S. 124, 138; United States v. Omaha Tribe of Indians, 253 U. S. 275, 281. The result below is clearly supported. It is not the function of this Court to conduct a trial de novo on the issues. United States v. Felin & Co., 334 U. S. 624, 650 (Jackson, J., dissenting); United States v. Penn Mfg. Co., 337 U. S. 198, 207 n. 4. I would affirm the judgment of the Court of Claims. 8 “Thus, defendant’s officials do not only concede that the lands were ceded in 1895, but they also enlighten us as to the status it retrospectively applied to the 1880 agreement. Such a statement by an executive agency bearing on the meaning of a treaty must be accorded great weight.” 191 Ct. CL, at 20, 423 F. 2d, at 356. 182 OCTOBER TERM, 1970 Per Curiam KEYES v. SCHOOL DISTRICT NO. 1 ON MOTION TO VACATE STAY Decided April 26, 1971 Court of Appeals’ stay of District Court’s desegregation order pending issuance of this Court’s decisions in Swann v. Board of Education, ante, p. 1, and related cases, vacated now that the opinions in those cases have been issued. Vacated. Per Curiam. The sole basis for the Tenth Circuit’s action in granting the stay of the District Court’s order in this case was the view “that it would be unfair to the School District to compel it to take further steps in the implementation of the total plan until [the Tenth Circuit] and the party litigants have the benefit of the United States Supreme Court decisions in the Swann and combined desegregation cases . . . .” The decisions in those cases having now been announced, it is proper to vacate the stay and remit the matter to the Court of Appeals freed of its earlier speculation as to the bearing of our decision in Swann and related cases. We, of course, intimate no views upon the merits of the underlying issues. McGAUTHA v. CALIFORNIA 183 Syllabus McGAUTHA v. CALIFORNIA CERTIORARI TO THE SUPREME COURT OF CALIFORNIA No. 203. Argued November 9, 1970—Decided May 3, 1971* Petitioner in No. 203 was convicted of first-degree murder in California, and was sentenced to death. The penalty was left to the jury’s absolute discretion, and punishment was determined in a separate proceeding following the trial on the issue of guilt. Petitioner in No. 204 was convicted of first-degree murder, and was sentenced to death in Ohio, where the jury, which also had absolute penalty discretion, determined guilt and penalty after a single trial and in a single verdict. Certiorari was granted to consider whether petitioners’ rights were infringed by permitting the death penalty without standards to govern its imposition, and in No. 204, to consider the constitutionality of a single guilt and punishment proceeding. Held: 1. In light of history, experience, and the limitations of human knowledge in establishing definitive standards, it is impossible to say that leaving to the untrammeled discretion of the jury the power to pronounce life or death in capital cases violates any provision of the Constitution. Pp. 196-208. 2. The Constitution does not prohibit the States from considering that the compassionate purposes of jury sentencing in capital cases are better served by having the issues of guilt and punishment resolved in a single trial than by focusing the jury’s attention solely on punishment after guilt has been determined. Pp. 208-222. (a) Petitioner in No. 204 has failed to show that his unitary trial violated the Constitution by forcing “the making of difficult judgments” in his decision whether to remain silent on the issue of guilt at the cost of surrendering his chance to plead his case on the punishment issue. Simmons v. United States, 390 U. S. 377, distinguished. Pp. 210-213. (b) The policies of the privilege against self-incrimination are not offended when a defendant in a capital case yields to the pressure to testify on the issue of punishment at the risk of damaging his case on guilt. Pp. 213-217. *Together with No. 204, Crampton v. Ohio, on certiorari to the Supreme Court of Ohio. 184 OCTOBER TERM, 1970 Syllabus 402 U. S. (c) Ohio does provide for the common-law ritual of allocution, but the State need not provide petitioner an opportunity to speak to the jury free from any adverse consequences on the issue of guilt. Pp. 217-220. No. 203, 70 Cal. 2d 770, 452 P. 2d 650; and No. 204, 18 Ohio St. 2d 182, 248 N. E. 2d 614, affirmed. Harlan, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, and Blackmun, JJ., joined. Black, J., filed a separate opinion, post, p. 225. Douglas, J., filed an opinion dissenting in No. 204, in which Brennan and Marshall, JJ., joined, post, p. 226. Brennan, J., filed a dissenting opinion, in which Douglas and Marshall, JJ., joined, post, p. 248. Herman F. Selvin, by appointment of the Court, 400 U. S. 885, argued the cause and filed briefs for petitioner in No. 203. John J. Callahan, by appointment of the Court, 399 U. S. 924, argued the cause for petitioner in No. 204. With him on the brief were Dan H. McCullough, William T. Burgess, William D. Driscoll, and Gerald S. Lubitsky. Ronald M. George, Deputy Attorney General of California, argued the cause for respondent in No. 203. With him on the brief were Thomas C. Lynch, Attorney General, and William E. James, Assistant Attorney General. Melvin L. Resnick argued the cause for respondent in No. 204. With him on the brief were Harry Friberg and Alice L. Robie Resnick. Solicitor General Griswold argued the cause for the United States as amicus curiae urging affirmance in both cases. With him on the brief was Philip A. Lacovara. Jack Greenberg, James M. Nabrit III, Michael Melts-ner, and Anthony G. Amsterdam filed a brief for the NAACP Legal Defense and Educational Fund, Inc., et al. as amici curiae in both cases. Luke McKissack filed a brief as amicus curiae in No. 203. Briefs of amici curiae in No. 204 were filed by Richard F. Stevens for the Attor- McGAUTHA v. CALIFORNIA 185 183 Opinion of the Court ney General of Ohio; by Elmer Gertz and Willard J. Lassers for the American Civil Liberties Union, Illinois Division, et al.; and by Messrs. Lassers, Gertz, Alex Elson, and Marvin Braiterman for the American Friends Service Committee et al. Mr. Justice Harlan delivered the opinion of the Court. Petitioners McGautha and Crampton were convicted of murder in the first degree in the courts of California and Ohio respectively and sentenced to death pursuant to the statutes of those States. In each case the decision whether the defendant should live or die was left to the absolute discretion of the jury. In McGautha’s case the jury, in accordance with California law, determined punishment in a separate proceeding following the trial on the issue of guilt. In Crampton’s case, in accordance with Ohio law, the jury determined guilt and punishment after a single trial and in a single verdict. We granted certiorari in the McGautha case limited to the question whether petitioner’s constitutional rights were infringed by permitting the jury to impose the death penalty without any governing standards. 398 U. S. 936 (1970). We granted certiorari in the Crampton case limited to that same question and to the further question whether the jury’s imposition of the death sentence in the same proceeding and verdict as determined the issue of guilt was constitutionally permissible. Ibid.1 For the reasons 1 The same two questions were included in our grant of certiorari in Maxwell v. Bishop, 393 U. S. 997 (1968), two Terms ago. After twice hearing argument in that case, see 395 U. S. 918 (1969), we remanded the case to the District Court for consideration of possible violations of the rule of Witherspoon v. Illinois, 391 U. S. 510 (1968). 398 U. S. 262 (1970). In taking that course we at the same time granted certiorari in the McGautha and Crampton cases to consider the two questions thus pretermitted in Maxwell. See id., at 267 n. 4. 186 OCTOBER TERM, 1970 Opinion of the Court 402 U. S. that follow, we find no constitutional infirmity in the conviction of either petitioner, and we affirm in both cases. I It will put the constitutional issues in clearer focus to begin by setting out the course which each trial took. A. McGautha’s Guilt Trial McGautha and his codefendant Wilkinson were charged with committing two armed robberies and a murder on February 14, 1967.2 In accordance with California procedure in capital cases, the trial was in two stages, a guilt stage and a punishment stage.3 At the guilt trial the 2 The information also alleged that McGautha had four prior felony convictions: felonious theft, robbery, murder without malice, and robbery by assault. The most recent of these convictions occurred in 1952. In a proceeding in chambers McGautha admitted the convictions, and the jury did not learn of them at the guilt stage of the trial. 3 Cal. Penal Code § 190.1 (1970) provides: “The guilt or innocence of every person charged with an offense for which the penalty is in the alternative death or imprisonment for life shall first be determined, without a finding as to penalty. If such person has been found guilty of an offense punishable by life imprisonment or death, and has been found sane on any plea of not guilty by reason of insanity, there shall thereupon be further proceedings on the issue of penalty, and the trier of fact shall fix the penalty. Evidence may be presented at the further proceedings on the issue of penalty, of the circumstances surrounding the crime, of the defendant’s background and history, and of any facts in aggravation or mitigation of the penalty. The determination of the penalty of life imprisonment or death shall be in the discretion of the court or jury trying the issue of fact on the evidence presented, and the penalty fixed shall be expressly stated in the decision or verdict. The death penalty shall not be imposed, however, upon any person who was under the age of 18 years at the time of the commission of the crime. The burden of proof as to the age of said person shall be upon the defendant. “If the defendant was convicted by the court sitting without a jury, the trier of fact shall be the court. If the defendant was McGAUTHA v. CALIFORNIA 187 183 Opinion of the Court evidence tended to show that the defendants, armed with pistols, entered the market of Mrs. Pon Lock early in the afternoon of the murder. While Wilkinson kept a customer under guard, McGautha trained his gun on Mrs. Lock and took almost $300. Roughly three hours later, McGautha and Wilkinson held up another store, this one owned by Mrs. Benjamin Smetana and operated by her with her husband’s assistance. While one defendant forcibly restrained a customer, the other struck Mrs. Smetana on the head. A shot was fired, fatally wounding Mr. Smetana. Wilkinson’s former girl friend testified that shortly after the robbery McGautha told her he had shot a man and showed her an empty cartridge in the cylinder of his gun. Other evidence at the guilt stage was inconclusive on the issue as to who fired the fatal shot. The jury found both defendants guilty of two counts of armed robbery and one count of first-degree murder as charged. B. McGautha’s Penalty Trial At the penalty trial, which took place on the following day but before the same jury, the State waived its opening, presented evidence of McGautha’s prior felony convictions and sentences, see n. 2, supra, and then rested. Wilkinson testified in his own behalf, relating his unhappy childhood in Mississippi as the son of a white convicted by a plea of guilty, the trier of fact shall be a jury unless a jury is waived. If the defendant was convicted by a jury, the trier of fact shall be the same jury unless, for good cause shown, the court discharges that jury in which case a new jury shall be drawn to determine the issue of penalty. “In any case in which defendant has been found guilty by a jury, and the same or another jury, trying the issue of penalty, is unable to reach a unanimous verdict on the issue of penalty, the court shall dismiss the jury and either impose the punishment for life in lieu of ordering a new trial on the issue of penalty, or order a new jury impaneled to try the issue of penalty, but the issue of guilt shall not be retried by such jury.” 419-882 0 - 72 - 17 188 OCTOBER TERM, 1970 Opinion of the Court . 402 U. S. father and a Negro mother, his honorable discharge from the Army on the score of his low intelligence, his regular attendance at church, and his good record for holding jobs and supporting his mother and siblings up to the time he was shot in the back in an unprovoked assault by a street gang. Thereafter, he testified, he had difficulty obtaining or holding employment. About a year later he fell in with McGautha and his companions, and when they found themselves short of funds, one of the group suggested that they “knock over somebody.” This was the first time, Wilkinson said, that he had ever had any thoughts of committing a robbery. He admitted participating in the two robberies but said he had not known that the stores were to be held up until McGautha drew his gun. He testified that it had been McGautha who struck Mrs. Smetana and shot Mr. Smetana. Wilkinson called several witnesses in his behalf. An undercover narcotics agent testified that he had seen the murder weapon in McGautha’s possession and had seen McGautha demonstrating his quick draw. A minister with whom Wilkinson had boarded testified to Wilkinson’s church attendance and good reputation. He also stated that before trial Wilkinson had expressed his horror at what had happened and requested the minister’s prayers on his behalf. A former fellow employee testified that Wilkinson had a good reputation and was honest and peaceable. McGautha also testified in his own behalf at the penalty hearing. He admitted that the murder weapon was his, but testified that he and Wilkinson had traded guns, and that it was Wilkinson who had struck Mrs. Smetana and killed her husband. McGautha testified that he came from a broken home and that he had been wounded during World War II. He related his employment record, medical condition, and remorse. He admitted his criminal record, see n. 2, supra, but testified that he had McGAUTHA v. CALIFORNIA 189 183 Opinion of the Court been a mere accomplice in two of those robberies and that his prior conviction for murder had resulted from a slaying in self-defense. McGautha also admitted to a 1964 guilty plea to a charge of carrying a concealed weapon. He called no witnesses in his behalf. The jury was instructed in the following language: “in this part of the trial the law does not forbid you from being influenced by pity for the defendants and you may be governed by mere sentiment and sympathy for the defendants in arriving at a proper penalty in this case; however, the law does forbid you from being governed by mere conjecture, prejudice, public opinion or public feeling. “The defendants in this case have been found guilty of the offense of murder in the first degree, and it is now your duty to determine which of the penalties provided by law should be imposed on each defendant for that offense. Now, in arriving at this determination you should consider all of the evidence received here in court presented by the People and defendants throughout the trial before this jury. You may also consider all of the evidence of the circumstances surrounding the crime, of each defendant’s background and history, and of the facts in aggravation or mitigation of the penalty which have been received here in court. However, it is not essential to your decision that you find mitigating circumstances on the one hand or evidence in aggravation of the offense on the other hand. “. . . Notwithstanding facts, if any, proved in mitigation or aggravation, in determining which punishment shall be inflicted, you are entirely free to act according to your own judgment, conscience, 190 OCTOBER TERM, 1970 Opinion of the Court 402 U. S. and absolute discretion. That verdict must express the individual opinion of each juror. “Now, beyond prescribing the two alternative penalties, the law itself provides no standard for the guidance of the jury in the selection of the penalty, but, rather, commits the whole matter of determining. which of the two penalties shall be fixed to the judgment, conscience, and absolute discretion of the jury. In the determination of that matter, if the jury does agree, it must be unanimous as to which of the two penalties is imposed.” App. 221-223.4 4 The penalty jury interrupted its deliberations to ask whether a sentence of life imprisonment meant that there was no possibility of parole. The trial judge responded as follows: “A sentence of life imprisonment means that the prisoner may be paroled at some time during his lifetime or that he may spend the remainder of his natural life in prison. An agency known as the Adult Authority is empowered by statute to determine if and when a prisoner is to be paroled, and under the statute no prisoner can be paroled unless the Adult Authority is of the opinion that the prisoner when released will assume a proper place in society and that his release is not contrary to the welfare of society. A prisoner released on parole may remain on parole for the balance of his life and if he violates the terms of the parole he may be returned to prison to serve the life sentence. “So that you will have no misunderstandings relating to a sentence of life imprisonment, you have been informed as to the general scheme of our parole system. You are now instructed, however, that the matter of parole is not to be considered by you in determining the punishment for either defendant, and you may not speculate as to if, or when, parole would or would not be granted. It is not your function to decide now whether these men will be suitable for parole at some future date. So far as you are concerned, you are to decide only whether these men shall suffer the death penalty or whether they shall be permitted to remain alive. If upon consideration of the evidence you believe that life imprisonment is the proper sentence, you must assume that those officials charged with the operation of our parole system will perform their duty in a correct and responsible manner, and that they will not parole a defendant unless he can be safely released into society. It McGAUTHA v. CALIFORNIA 191 183 Opinion of the Court Deliberations began in the early afternoon of August 24,1967. In response to jury requests the testimony of Mrs. Smetana and of three other witnesses was reread. Late in the afternoon of August 25 the jury returned verdicts fixing Wilkinson’s punishment at life imprisonment and McGautha’s punishment at death. The trial judge ordered a probation report on Mc-Gautha. Having received it, he overruled McGautha’s motions for a new trial or for a modification of the penalty verdict, and pronounced the death sentence.5 McGautha’s conviction was unanimously affirmed by the California Supreme Court. 70 Cal. 2d 770, 452 P. 2d 650 (1969). His contention that standardless jury sentencing is unconstitutional was rejected on the authority of an earlier case, In re Anderson, 69 Cal. 2d 613, 447 P. 2d 117 (1968), in which that court had divided narrowly on the issue. C. Crampton’s Trial Petitioner Crampton was indicted for the murder of his wife, Wilma Jean, purposely and with premeditated malice. He pleaded not guilty and not guilty by reason of insanity.6 In accordance with the Ohio practice which would be a violation of your duty as jurors if you were to fix the penalty at death because of a doubt that the Adult Authority will properly carry out its responsibilities.” App. 224-225. 6 Under California law the trial judge has power to reduce the penalty to life if he concludes that the jury’s verdict is not supported by the weight of the evidence. Cal. Penal Code §1181 (7). See In re Anderson, 69 Cal. 2d 613, 623, 447 P. 2d 117, 124 (1968). The California Supreme Court, to which appeal is automatic in capital cases, Cal. Penal Code § 1239 (b), has no such power. People v. Lookadoo, 66 Cal. 2d 307, 327, 425 P. 2d 208, 221 (1967). 6 Pursuant to Ohio law, Ohio Rev. Code Ann. §2945.40 (1954), Crampton was committed to a state mental hospital for a month of observation. After a hearing on the psychiatric report the trial court determined that Crampton was competent to stand trial. 192 OCTOBER TERM, 1970 Opinion of the Court 402U.S. he challenges, his guilt and punishment were determined in a single unitary proceeding. At trial the State’s case was as follows. The Cramptons had been married about four months at the time of the murder. Two months before the slaying Crampton was allowed to leave the state mental hospital, where he was undergoing observation and treatment for alcoholism and drug addiction, to attend the funeral of his wife’s father. On this occasion he stole a knife from the house of his late father-in-law and ran away. He called the house several times and talked to his wife, greatly upsetting her. When she pleaded with him to return to the hospital and stated that she would have to call the police, he threatened to kill her if she did. Wilma and her brother nevertheless did notify the authorities, who picked Crampton up later the same evening. There was testimony of other threats Crampton had made on his wife’s life, and it was revealed that about 10 days before the murder Mrs. Crampton’s fear of her husband had caused her to request and receive police protection. The State’s main witness to the facts surrounding the murder was one William Collins, a convicted felon who had first met Crampton when they, along with Crampton’s brother Jack, were in the State Prison in Michigan. On January 14, 1967, three days before the murder, Collins and Crampton met at Jack Crampton’s house in Pontiac, Michigan. During those three days Collins and Crampton roamed the upper Midwest, committing a series of petty thefts and obtaining amphetamines, to which both were addicted, by theft and forged prescriptions. About nine o’clock on the evening of January 16, Crampton called his wife from St. Joseph, Michigan; after the call he told Collins that he had to get back to Toledo, where his wife was, as fast as possible. They arrived in the early morning hours of January 17. After McGAUTHA v. CALIFORNIA 193 183 Opinion of the Court Crampton had stopped by his wife’s home and sent Collins to the door with a purported message for her, the two went to the home of Crampton’s mother-in-law, which Crampton knew to be empty, to obtain some guns. They broke in and stole a rifle, ammunition, and some handguns, including the .45 automatic which was later identified as the murder weapon. Crampton kept this gun with him. He indicated to Collins that he believed his wife was having an affair. He fired the .45 in the air, with a remark to the effect that “a slug of that type would do quite a bit of damage,” and said that if he found his wife with the man he suspected he would kill them both. That evening Crampton called his wife’s home and learned that she was present. He quickly drove out to the house, and told Collins, “Leave me off right here in front of the house and you take the car and go back to the parking lot and if I’m not there by six o’clock in the morning you’re on your own.” About 11:20 that evening Crampton was arrested for driving a stolen car. The murder weapon was found between the seats of the car. Mrs. Crampton’s body was found the next morning. She had been shot in the face at close range while she was using the toilet. A .45-caliber shell casing was near the body. A jacket which Crampton had stolen a few days earlier was found in the living room. The coroner, who examined the body at 11:30 p. m. on January 18, testified that in his opinion death had occurred 24 hours earlier, plus or minus four hours. The defense called Crampton’s mother as a witness. She testified about Crampton’s background, including a serious concussion received at age nine, his good grades in junior high school, his stepfather’s jealousy of him, his leaving home at age 14 to live with various relatives, his enlistment in the Navy at age 17, his marriage to a girl named Sandra, the birth of a son, a divorce, then a 194 OCTOBER TERM, 1970 Opinion of the Court 402 U. S. remarriage to Sandra and another divorce shortly after, and finally his marriage to Wilma. Mrs. Crampton also testified to Crampton’s drug addiction, to his brushes with the law as a youth and as an adult, and to his undesirable discharge from the Navy. Crampton’s attorney also introduced into evidence a series of hospital reports which contained further information on Crampton’s background, including his criminal record, which was substantial, his court-martial conviction and undesirable discharge from the Navy, and the absence of any significant employment record. They also contained his claim that the shooting was accidental; that he had been gathering up guns around the house and had just removed the clip from an automatic when his wife asked to see it; that as he handed it to her it went off accidentally and killed her. All the reports concluded that Crampton was sane in both the legal and the medical senses. He was diagnosed as having a sociopathic personality disorder, along with alcohol and drug addiction. Crampton himself did not testify. The jury was instructed that: “If you find the defendant guilty of murder in the first degree, the punishment is death, unless you recommend mercy, in which event the punishment is imprisonment in the penitentiary during life.” App. 70. The jury was given no other instructions specifically addressed to the decision whether to recommend mercy, but was told in connection with its verdict generally: “You must not be influenced by any consideration of sympathy or prejudice. It is your duty to carefully weigh the evidence, to decide all disputed questions of fact, to apply the instructions of the court to your findings and to render your verdict accordingly. In fulfilling your duty, your efforts must be to arrive at a just verdict. McGAUTHA v. CALIFORNIA 195 183 Opinion of the Court “Consider all the evidence and make your finding with intelligence and impartiality, and without bias, sympathy, or prejudice, so that the State of Ohio and the defendant will feel that their case was fairly and impartially tried.” App. 71-72. The jury deliberated for over four hours and returned a verdict of guilty, with no recommendation for mercy. Sentence was imposed about two weeks later. As Ohio law requires, Ohio Rev. Code Ann. § 2947.05 (1954), Crampton was informed of the verdict and asked whether he had anything to say as to why judgment should not be pronounced against him. He replied: “Please the Court, I don’t believe I received a fair and impartial trial because the jury was prejudiced by my past record and the fact I had been a drug addict, and I just believe I didn’t receive a fair and impartial trial. That’s all I have to say.” This statement was found insufficient to justify not pronouncing sentence upon him, and the court imposed the death sentence.7 Crampton’s appeals through the Ohio courts were unavailing. 18 Ohio St. 2d 182, 248 N. E. 2d 614 (1969). II Before proceeding to a consideration of the issues before us, it is important to recognize and underscore the nature of our responsibilities in judging them. Our function is not to impose on the States, ex cathedra, what might seem to us a better system for dealing with capital cases. Rather, it is to decide whether the Federal Constitution proscribes the present procedures of these two 7 Under Ohio law, a jury’s death verdict may not be reduced as excessive by either the trial or the appellate court. Turner v. State, 21 Ohio Law Abs. 276, 279-280 (Ct. App. 1936); State n. Klumpp, 15 Ohio Op. 2d 461, 468, 175 N. E. 2d 767, 775-776 (Ct. App.), appeal dismissed, 171 Ohio St. 62, 167 N. E. 2d 778 (1960). 196 OCTOBER TERM, 1970 Opinion of the Court 402U.S. States in such cases. In assessing the validity of the conclusions reached in this opinion, that basic factor should be kept constantly in mind. Ill We consider first McGautha’s and Crampton’s common claim: that the absence of standards to guide the jury’s discretion on the punishment issue is constitutionally intolerable. To fit their arguments within a constitutional frame of reference petitioners contend that to leave the jury completely at large to impose or withhold the death penalty as it sees fit is fundamentally lawless and therefore violates the basic command of the Fourteenth Amendment that no State shall deprive a person of his life without due process of law. Despite the undeniable surface appeal of the proposition, we conclude that the courts below correctly rejected it.8 8 The lower courts thus placed themselves in accord with all other American jurisdictions which have considered the issue. See, e. g., In re Ernst, 294 F. 2d 556 (CA3 1961); Florida ex rel. Thomas v. Culver, 253 F. 2d 507 (CA5 1958); Maxwell v. Bishop, 398 F. 2d 138 (CA8 1968), vacated on other grounds, 398 U. S. 262 (1970); Sims v. Eyman, 405 F. 2d 439 (CA9 1969); Segura v. Patterson, 402 F. 2d 249 (CAIO 1968); McCants v. State, 282 Ala. 397, 211 So. 2d 877 (1968); Bagley v. State, 247 Ark. 113, 444 S. W. 2d 567 (1969); State v. Walters, 145 Conn. 60, 138 A. 2d 786, appeal dismissed, 358 U. S. 46 (1958); Wilson v. State, 225 So. 2d 321 (Fla. 1969); Miller v. State, 224 Ga. 627, 163 S. E. 2d 730 (1968); State n. Latham, 190 Kan. 411, 375 P. 2d 788 (1962); Duisen v. State, 441 S. W. 2d 688 (Mo. 1969); State v. Johnson, 34 N. J. 212, 168 A. 2d 1, appeal dismissed, 368 U. S. 145 (1961); People v. Fitzpatrick, 61 Mise. 2d 1043, 308 N. Y. S. 2d 18 (1970); State v. Roseboro, 276 N. C. 185, 171 S. E. 2d 886 (1970); Hunter v. State, 222 Tenn. 672, 440 S. W. 2d 1 (1969); State v. Kelbach, 23 Utah 2d 231, 461 P. 2d 297 (1969); Johnson v. Commonwealth, 208 Ya. 481, 158 S. E. 2d 725 (1968); State v. Smith, 74 Wash. 2d 744, 446 P. 2d 571 (1968). McGAUTHA v. CALIFORNIA 197 183 Opinion of the Court A In order to see petitioners’ claim in perspective, it is useful to call to mind the salient features of the history of capital punishment for homicides under the common law in England, and subsequent statutory developments in this country. This history reveals continual efforts, uniformly unsuccessful, to identify before the fact those homicides for which the slayer should die. Thus, the laws of Alfred, echoing Exodus 21: 12-13, provided: “Let the man who slayeth another wilfully perish by death. Let him who slayeth another of necessity or unwillingly, or unwilfully, as God may have sent him into his hands, and for whom he has not lain in wait be worthy of his life and of lawful bot if he seek an asylum.” Quoted in 3 J. Stephen, History of the Criminal Law of England 24 (1883). In the 13th century, Bracton set it down that a man was responsible for all homicides except those which happened by pure accident or inevitable necessity, although he did not explain the consequences of such responsibility. Id., at 35. The Statute of Gloucester, 6 Edw. 1, c. 9 (1278), provided that in cases of self-defense or misadventure the jury should neither convict nor acquit, but should find the fact specially, so that the King could decide whether to pardon the accused. It appears that in time such pardons—which may not have prevented forfeiture of goods—came to issue as of course. 3 Stephen, supra, at 36-42. During all this time there was no clear distinction in terminology or consequences among the various kinds of criminal homicide. All were prima facie capital, but all were subject to the benefit of clergy, which after 1350 came to be available to almost any man who could read. Although originally those entitled to benefit of clergy were simply delivered to the bishop for ecclesiastical proceedings, with the possibility of degradation from orders, 198 OCTOBER TERM, 1970 Opinion of the Court 402U.S. incarceration, and corporal punishment for those found guilty, during the 15th and 16th centuries the maximum penalty for clergyable offenses became branding on the thumb, imprisonment for not more than one year, and forfeiture of goods. 1 Stephen, supra, at 459-464. By the statutes of 23 Hen. 8, c. 1, §§ 3, 4 (1531), and 1 Edw. 6, c. 12, § 10 (1547), benefit of clergy was taken away in all cases of “murder of malice prepensed.” 1 Stephen, supra, at 464^465; 3 id., at 44. During the next century and a half, however, “malice prepense” or “malice aforethought” came to be divorced from actual ill will and inferred without more from the act of killing. Correspondingly, manslaughter, which was initially restricted to cases of “chance medley,” came to include homicides where the existence of adequate provocation rebutted the inference of malice. 3 id., at 46-73. The growth of the law continued in this country, where there was rebellion against the common-law rule imposing a mandatory death sentence on all convicted murderers. Thus, in 1794, Pennsylvania attempted to reduce the rigors of the law by abolishing capital punishment except for “murder of the first degree,” defined to include all “willful, deliberate and premeditated” killings, for which the death penalty remained mandatory. Pa. Laws 1794, c. 1777. This reform was soon copied by Virginia and thereafter by many other States. This new legislative criterion for isolating crimes appropriately punishable by death soon proved as unsuccessful as the concept of “malice aforethought.” Within a year the distinction between the degrees of murder was practically obliterated in Pennsylvania. See Keedy, History of the Pennsylvania Statute Creating Degrees of Murder, 97 U. Pa. L. Rev. 759, 773-777 (1949). Other States had similar experiences. Wechsler & Michael, A Rationale of the Law of Homicide: I, 37 Col. L. Rev. 701, McGautha v. California 199 183 Opinion of the Court 707-709 (1937). The result was characterized in this way by Chief Judge Cardozo, as he then was: “What we have is merely a privilege offered to the jury to find the lesser degree when the suddenness of the intent, the vehemence of the passion, seems to call irresistibly for the exercise of mercy. I have no objection to giving them this dispensing power, but it should be given to them directly and not in a mystifying cloud of words.” What Medicine Can Do For Law, in Law and Literature 70, 100 (1931).9 At the same time, jurors on occasion took the law into their own hands in cases which were “willful, deliberate, and premeditated” in any view of that phrase, but which nevertheless were clearly inappropriate for the death penalty. In such cases they simply refused to convict of the capital offense. See Report of the Royal Commission on Capital Punishment, 1949-1953, Cmd. 8932, UU 27-29 (1953); Andres n. United States, 333 U. S. 740, 753 (1948) (Frankfurter, J., concurring); cf. H. Kalven & H. Zeisel, The American Jury 306-312 (1966). In order to meet the problem of jury nullification, legislatures did not try, as before, to refine further the definition of capital homicides. Instead they adopted the method of forthrightly granting juries the discretion which they had been exercising in fact. See Knowlton, Problems of Jury Discretion in Capital Cases, 101 U. Pa. L. Rev. 1099, 1102 and n. 18 (1953); Note, The Two-Trial System in Capital Cases, 39 N. Y. U. L. Rev. 50, 9 In context the emphasis is on the confusing distinction between degrees of murder, not the desirability of juries’ sentencing discretion. It may also be noted that the former New York definitions of firstand second-degree murder were somewhat unusual. See Wechsler & Michael, 37 Col. L. Rev., at 704 n. 13, 709 n. 26. 200 OCTOBER TERM, 1970 Opinion of the Court 402 U. S. 52 (1964). Tennessee was the first State to give juries sentencing discretion in capital cases,10 Tenn. Laws 1837-1838, c. 29, but other States followed suit, as did the Federal Government in 1897.11 Act of Jan. 15, 1897, c. 29, § 1, 29 Stat. 487. Shortly thereafter, in Winston v. United States, 172 U. S. 303 (1899), this Court dealt with the federal statute for the first time.12 The Court reversed a murder conviction in which the trial judge instructed the jury that it should not return a recommendation of mercy unless it found the existence of mitigating circumstances. The Court found this instruction to interfere with the scheme of the Act to commit the whole question of capital punishment “to the judgment and the consciences of the jury.” Id., at 313. “How far considerations of age, sex, ignorance, illness or intoxication, of human passion or weakness, of sympathy or clemency, or the irrevocable 10 The practice of jury sentencing arose in this country during the colonial period for cases not involving capital punishment. It has been suggested that this was a “reaction to harsh penalties imposed by judges appointed and controlled by the Crown” and a result of “the early distrust of governmental power.” President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts 26 (1967). 11 California and Ohio, the two States involved in these cases, abolished mandatory death penalties in favor of jury discretion in 1874 and 1898. Act of Mar. 28, 1874, c. 508, Cal. Amendatory Acts 1873-1874, p. 457; Ohio Laws 1898, p. 223. Except for four States that entirely abolished capital punishment in the middle of the last century, every American jurisdiction has at some time authorized jury sentencing in capital cases. None of these statutes have provided standards for the choice between death and life imprisonment. See Brief for the United States as Amicus Curiae 128-137. 12 See also Colton v. Utah, 130 U. S. 83 (1889), in which the Court reversed a conviction under the statutes of Utah Territory iii which the jury had not been informed of its right under the territorial code to recommend a sentence of imprisonment for life at hard labor instead of death. McGAUTHA v. CALIFORNIA 201 183 Opinion of the Court ness of an executed sentence of death, or an apprehension that explanatory facts may exist which have not been brought to light, or any other consideration whatever, should be allowed weight in deciding the question whether the accused should or should not be capitally punished, is committed by the act of Congress to the sound discretion of the jury, and of the jury alone.” Ibid. This Court subsequently had occasion to pass on the correctness of instructions to the jury with respect to recommendations of mercy in Andres v. United States, 333 U. S. 740 (1948). The Court approved, as consistent with the governing statute, an instruction that: “This power [to recommend mercy] is conferred solely upon you and in this connection the Court can not extend or prescribe to you any definite rule defining the exercise of this power, but commits the entire matter of its exercise to your judgment.” Id., at 743 n. 4. The case was reversed, however, on the ground that other instructions on the power to recommend mercy might have been interpreted by the jury as requiring them to return an unqualified verdict of guilty unless they unanimously agreed that mercy should be extended. The Court determined that the proper construction was to require a unanimous decision to withhold mercy as well, on the ground among others that the latter construction was “more consonant with the general humanitarian purpose of the statute.” Id., at 749. The only other significant discussion of standardless jury sentencing in capital cases in our decisions is found in Witherspoon v. Illinois, 391 U. S. 510 (1968). In reaching its conclusion that persons with conscientious scruples against the death penalty could not be automatically excluded from sentencing juries in capital cases, the Court relied heavily 202 OCTOBER TERM, 1970 Opinion of the Court 402 U. S. on the fact that such juries “do little more—and must do nothing less—than express the conscience of the community on the ultimate question of life or death.” Id., at 519 (footnote omitted). The Court noted that “one of the most important functions any jury can perform in making such a selection is to maintain a link between contemporary community values and the penal system— a link without which the determination of punishment could hardly reflect ‘the evolving standards of decency that mark the progress of a maturing society.’ ” Id., at 519 n. 15. The inner quotation is from the opinion of Mr. Chief Justice Warren for four members of the Court in Trop v. Dulles, 356 U. S. 86, 101 (1958). In recent years academic and professional sources have suggested that jury sentencing discretion should be controlled by standards of some sort. The American Law Institute first published such a recommendation in 1959.13 Several States have enacted new criminal codes 13 Model Penal Code §201.6 (Tent. Draft No. 9, 1959). The criteria were revised and approved by the Institute in 1962 and now appear in § 210.6 of the Proposed Official Draft of the Model Penal Code. As revised they appear in the Appendix to this opinion. More recently the National Commission on Reform of Federal Criminal Laws published a Study Draft of a New Federal Criminal Code (1970). Section 3605 contained standards virtually identical to those of the Model Penal Code. The statement of the Chairman of the Commission, submitting the Study Draft for public comment, described it as “something more than a staff report and less than a commitment by the Commission or any of its members to every aspect of the Draft.” Study Draft xx. The primary differences between the procedural provisions for capital sentencing in the Model Penal Code and those in the Study Draft are that the Code provides that the court and jury “shall” take the criteria into account, while the Study Draft provided that they “may” do so; and the Model Penal Code forbids imposition of the death penalty where no aggravating circumstances are found, while the Study Draft showed this only as an alternative provision. The latter feature is affected by the fact that only a very few murders were McGAUTHA v. CALIFORNIA 203 183 Opinion of the Court in the intervening 12 years, some adopting features of the Model Penal Code.14 Other States have modified their laws with respect to murder and the death penalty in other ways?5 None of these States have followed the Model Penal Code and adopted statutory criteria for imposition of the death penalty. In recent years, challenges to standardless jury sentencing have been presented to many state and federal appellate courts. No court has held the challenge good. See n. 8, supra. As petitioners recognize, it requires a strong showing to upset this settled practice of the Nation on constitutional grounds. See Walz v. Tax Commission, 397 U. S. 664, 678 (1970); Jackman v. Rosenbaum Co., 260 U. S. 22, 31 (1922); cf. Palko v. Connecticut, 302 U. S. 319, 325 (1937). B Petitioners seek to avoid the impact of this history by the observation that jury sentencing discretion in capital cases was introduced as a mechanism for dispensing mercy—a means for dealing with the rare case in which the death penalty was thought to be unjustified. Now, they assert, the death penalty is imposed on far fewer than half the defendants found guilty of capital crimes. The state and federal legislatures which provide for jury discretion in capital sentencing have, it is said, implicitly to be made capital. See id., at 307. In its Final Report (1971), the Commission recommended abolition of the death penalty for federal crimes. An alternate version, said to represent a “substantial body of opinion in the Commission,” id., comment to provisional § 3601, provided for retention of capital punishment for murder and treason with procedural provisions which did not significantly differ from those in the Study Draft. 14 See, e. g., N. Y. Penal Law §65.00 (1967) (criteria for judges in deciding on probation). 15 E. g., N. M. Stat. Ann. §§ 40A-29-2.1, 40A-29-2.2 (Supp. 1969), reducing the class of capital crimes. 419-882 0 - 72 - 18 204 OCTOBER TERM, 1970 Opinion of the Court 402U.S. determined that some—indeed, the greater portion—of those guilty of capital crimes should be permitted to live. But having made that determination, petitioners argue, they have stopped short—the legislatures have not only failed to provide a rational basis for distinguishing the one group from the other, cf. Skinner v. Oklahoma, 316 IT. S. 535 (1942), but they have failed even to suggest any basis at all. Whatever the merits of providing such a mechanism to take account of the unforeseeable case calling for mercy, as was the original purpose, petitioners contend the mechanism is constitutionally intolerable as a means of selecting the extraordinary cases calling for the death penalty, which is its present-day function. In our view, such force as this argument has derives largely from its generality. Those who have come to grips with the hard task of actually attempting to draft means of channeling capital sentencing discretion have confirmed the lesson taught by the history recounted above. To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability. Thus the British Home Office, which before the recent abolition of capital punishment in that country had the responsibility for selecting the cases from England and Wales which should receive the benefit of the Royal Prerogative of Mercy, observed: “The difficulty of defining by any statutory provision the types of murder which ought or ought not to be punished by death may be illustrated by reference to the many diverse considerations to which the Home Secretary has regard in deciding whether to recommend clemency. No simple formula can take account of the innumerable degrees of culpability, McGAUTHA v. CALIFORNIA 205 183 Opinion of the Court and no formula which fails to do so can claim to be just or satisfy public opinion.” 1-2 Royal Commission on Capital Punishment, Minutes of Evidence 13 (1949). The Royal Commission accepted this view, and although it recommended a change in British practice to provide for discretionary power in the jury to find “extenuating circumstances,” that term was to be left undefined; “[t]he decision of the jury would be within their unfettered discretion and in no sense governed by the principles of law.” Report of the Royal Commission on Capital Punishment, 1949-1953, Cmd. 8932, U 553 (b). The Commission went on to say, in substantial confirmation of the views of the Home Office: “No formula is possible that would provide a reasonable criterion for the infinite variety of circumstances that may affect the gravity of the crime of murder. Discretionary judgment on the facts of each case is the only way in which they can be equitably distinguished. This conclusion is borne out by American experience: there the experiment of degrees of murder, introduced long ago, has had to be supplemented by giving to the courts a discretion that in effect supersedes it.” Id., at U 595. The draftsmen of the Model Penal Code expressly agreed with the conclusion of the Royal Commission that “the factors which determine whether the sentence of death is the appropriate penalty in particular cases are too complex to be compressed within the limits of a simple formula . . . .” Report fl 498, quoted in Model Penal Code, § 201.6, Comment 3, p. 71 (Tent. Draft No. 9, 1959). The draftsmen did think, however, “that it is within the realm of possibility to point to the main circumstances of aggravation and of mitigation that should be weighed and weighed against each other when they are 206 OCTOBER TERM, 1970 Opinion of the Court 402 U. S. presented in a concrete case.” Ibid. The circumstances the draftsmen selected, set out in the Appendix to this opinion, were not intended to be exclusive. The Code provides simply that the sentencing authority should “take into account the aggravating and mitigating circumstances enumerated . . . and any other facts that it deems relevant,” and that the court should so instruct when the issue was submitted to the jury. Id., at § 210.6 (2) (Proposed Official Draft, 1962).16 The Final Report of the National Commission on Reform of Federal Criminal Laws (1971) recommended entire abolition of the death penalty in federal cases. In a provisional chapter, prepared for the contingency that Congress might decide to retain the death penalty, the Report contains a set of criteria virtually identical with the aggravating and mitigating circumstances listed by the Model Penal Code. With respect to the use to be made of the criteria, the Report provides that: “[i]n deciding whether a sentence of death should be imposed, the court and the jury, if any, may consider the mitigating and aggravating circumstances set forth in the subsections below.” Id., at provisional §3604 (1) (emphasis added). 16 The Model Penal Code provides that the jury should not fix punishment at death unless it found at least one of the aggravating circumstances and no sufficiently substantial mitigating circumstances. Model Penal Code § 210.6 (2) (Proposed Official Draft, 1962). As the reporter’s comment recognized, there is no fundamental distinction between this procedure and a redefinition of the class of potentially capital murders. Model Penal Code §201.6, Comment 3, pp. 71-72 (Tent. Draft No. 9, 1959). As we understand these petitioners’ contentions, they seek standards for guiding the sentencing authority’s discretion, not a greater strictness in the definition of the class of cases in which the discretion exists. If we are mistaken in this, and petitioners contend that Ohio’s and California’s definitions of first-degree murder are too broad, we consider their position constitutionally untenable. McGAUTHA v. CALIFORNIA 207 183 Opinion of the Court It is apparent that such criteria do not purport to provide more than the most minimal control over the sentencing authority’s exercise of discretion. They do not purport to give an exhaustive list of the relevant considerations or the way in which they may be affected by the presence or absence of other circumstances. They do not even undertake to exclude constitutionally impermissible considerations.17 And, of course, they provide no protection against the jury determined to decide on whimsy or caprice. In short, they do no more than suggest some subjects for the jury to consider during its deliberations, and they bear witness to the intractable nature of the problem of “standards” which the history of capital punishment has from the beginning reflected. Thus, they indeed Caution against this Court’s undertaking to establish such standards itself, or to pronounce at large that standards in this realm are constitutionally required. In light of history, experience, and the present limitations of human knowledge, we find it quite impossible to say that committing to the untrammeled discretion of the jury the power to pronounce life or death in capital cases is offensive to anything in the Constitution.18 The 17 The issue whether a defendant is entitled to an instruction that certain factors such as race are not to be taken into consideration is not before us, as the juries were told not to base their decisions on “prejudice,” and no more specific instructions were requested. Cf. Griffin v. California, 380 U. S. 609, 614-615 and n. 6 (1965). 18 Giaccio v. Pennsylvania, 382 U. S. 399 (1966), does not point to a contrary result. In Giaccio the Court held invalid on its face a Pennsylvania statute which authorized criminal juries to assess costs against defendants whose conduct, although not amounting to the crime with which they were charged, was nevertheless found to be “reprehensible.” The Court concluded that the statute was no more sound than one which simply made it a crime to engage 208 OCTOBER TERM, 1970 Opinion of the Court 402 U. S. States are entitled to assume that jurors confronted with the truly awesome responsibility of decreeing death for a fellow human will act with due regard for the consequences of their decision and will consider a variety of factors, many of which will have been suggested by the evidence or by the arguments of defense counsel. For a court to attempt to catalog the appropriate factors in this elusive area could inhibit rather than expand the scope of consideration, for no list of circumstances would ever be really complete. The infinite variety of cases and facets to each case would make general standards either meaningless “boiler-plate” or a statement of the obvious that no jury would need. IV As we noted at the outset of this opinion, McGautha’s trial was in two stages, with the jury considering the issue of guilt before the presentation of evidence and argument on the issue of punishment. Such a procedure is required by the laws of California and of five other States.19 Petitioner Crampton, whose guilt and punishment were determined at a single trial, contends in “reprehensible conduct” and consequently that it was unconstitutionally vague. The Court there stated: “In so holding we intend to cast no doubt whatever on the constitutionality of the settled practice of many States to leave to juries finding defendants guilty of a crime the power to fix punishment within legally prescribed limits.” Id., at 405 n. 8. 19 Cal. Penal Code § 190.1 (1970); Conn. Gen. Stat. Rev. § 53a-46 (Supp. 1969); Act of Mar. 27, 1970, No. 1333, Ga. Laws 1970, p. 949; N. Y. Penal Law §§ 125.30 (Supp. 1970-1971), 125.35 (1967); Pa. Stat. Ann., Tit. 18, §4701 (1963); Tex. Code Crim. Proc., Art. 37.07 (2) (b) (Supp. 1970-1971). See also Model Penal Code § 210.6 (2) (Proposed Official Draft, 1962); National Commission on Reform of Federal Criminal Laws, Final Report, provisional §3602 (1971); Report of the Royal Commission on Capital Punishment, 1949-1953, Cmd. 8932, fl 551-595. McGAUTHA v. CALIFORNIA 209 183 Opinion of the Court that a procedure like California’s is compelled by the Constitution as well. This Court has twice had occasion to rule on separate penalty proceedings in the context of a capital case. In United States v. Jackson, 390 U. S. 570 (1968), we held unconstitutional the penalty provisions of the Federal Kidnaping Act, which we construed to mean that a defendant demanding a jury trial risked the death penalty while one pleading guilty or agreeing to a bench trial faced a maximum punishment of life imprisonment. The Government had contended that in order to mitigate this discrimination we should adopt an alternative construction, authorizing the trial judge accepting a guilty plea or jury waiver to convene a special penalty jury empowered to recommend the death sentence. Id., at 572. Our rejection of this contention was not based solely on the fact that it appeared to run counter to the language and legislative history of the Act. “[E]ven on the assumption that the failure of Congress to [provide for the convening of a penalty jury] was wholly inadvertent, it would hardly be the province of the courts to fashion a remedy. Any attempt to do so would be fraught with the gravest difficulties . . . .” Id., at 578-579. We therefore declined “to create from whole cloth a complex and completely novel procedure and to thrust it upon unwilling defendants for the sole purpose of rescuing a statute from a charge of unconstitutionality.” Id., at 580. Jackson, however, did not consider the possibility that such a procedure might be constitutionally required in capital cases. Substantially this result had been sought by the petitioners in Spencer v. Texas, 385 U. S. 554 (1967). Like Crampton, Spencer had been tried in a unitary proceeding before a jury which fixed punishment at death. Also like Crampton, Spencer contended that the Due Process 210 OCTOBER TERM, 1970 Opinion of the Court 402U.S. Clause of the Fourteenth Amendment required a bifurcated trial so that evidence relevant solely to the issue of punishment would not prejudice his case on guilt. We rejected this contention, in the following language: “To say that the two-stage jury trial in the English-Connecticut style is probably the fairest, as some commentators and courts have suggested, and with which we might well agree were the matter before us in a legislative or rule-making context, is a far cry from a constitutional determination that this method of handling the problem is compelled by the Fourteenth Amendment. Two-part jury trials are rare in our jurisprudence; they have never been compelled by this Court as a matter of constitutional law, or even as a matter of federal procedure. With recidivism the major problem that it is, substantial changes in trial procedure in countless local courts around the country would be required were this Court to sustain the contentions made by these petitioners. This we are unwilling to do. To take such a step would be quite beyond the pale of this Court’s proper function in our federal system.” Id., at 567-568 (footnotes omitted). Spencer considered the bifurcation issue in connection with the State’s introduction of evidence of prior crimes; we now consider the issue in connection with a defendant’s choice whether to testify in his own behalf. But even though this case cannot be said to be controlled by Spencer, our opinion there provides a significant guide to decision here. A Crampton’s argument for bifurcation runs as follows. Under Malloy v. Hogan, 378 U. S. 1 (1964), and Griffin v. California, 380 U. S. 609 (1965), he enjoyed a constitutional right not to be compelled to be a witness McGAUTHA v. CALIFORNIA 211 183 Opinion of the Court against himself. Yet under the Ohio single-trial procedure, he could remain silent on the issue of guilt only at the cost of surrendering any chance to plead his case on the issue of punishment. He contends that under the Due Process Clause of the Fourteenth Amendment, as elaborated in, e. g., Townsend y. Burke, 334 U. S. 736 (1948); Specht v. Patterson, 386 U. S. 605 (1967); and Mempa v. Rhay, 389 U. S. 128 (1967), he had a right to be heard on the issue of punishment and a right not to have his sentence fixed without the benefit of all the relevant evidence. Therefore, he argues, the Ohio procedure possesses the flaw we condemned in Simmons v. United States, 390 U. S. 377, 394 (1968); it creates an intolerable tension between constitutional rights. Since this tension can be largely avoided by a bifurcated trial, petitioner contends that there is no legitimate state interest in putting him to the election, and that the single-verdict trial should be held invalid in capital cases. Simmons, however, dealt with a very different situation from the one which confronted petitioner Crampton, and not everything said in that opinion can be carried over to this case without circumspection. In Simmons we held it unconstitutional for the Federal Government to use at trial the defendant’s testimony given on an unsuccessful motion to suppress evidence allegedly seized in violation of the Fourth Amendment. We concluded that to permit such use created an unacceptable risk of deterring the prosecution of marginal Fourth Amendment claims, thus weakening the efficacy of the exclusionary rule as a sanction for unlawful police behavior. This was surely an analytically sufficient basis for decision. However, we went on to observe that the penalty thus imposed on the good-faith assertion of Fourth Amendment rights was “of a kind to which this Court has always been peculiarly 212 OCTOBER TERM, 1970 Opinion of the Court 402 U. S. sensitive,” 390 U. S., at 393, for it involved the incrimination of the defendant out of his own mouth. We found it not a little difficult to support this invocation of the Fifth Amendment privilege. We recognized that “[a]s an abstract matter” the testimony might be voluntary, and that testimony to secure a benefit from the Government is not ipso facto “compelled” within the meaning of the Self-Incrimination Clause. The distinguishing feature in Simmons’ case, we said, was that “the ‘benefit’ to be gained is that afforded by another provision of the Bill of Rights.” Id., at 393-394. Thus the only real basis for holding that Fifth Amendment policies were involved was the colorable Fourth Amendment claim with which we had begun. The insubstantiality of the purely Fifth Amendment interests involved in Simmons was illustrated last Term by the trilogy of cases involving guilty pleas: Brady n. United States, 397 U. S. 742 (1970); McMann n. Richardson, 397 U. S. 759 (1970); Parker v. North Carolina, 397 U. S. 790 (1970). While in Simmons we relieved the defendant of his “waiver” of Fifth Amendment rights made in order to obtain a benefit to which he was ultimately found not constitutionally entitled, in the trilogy we held the defendants bound by “waivers” of rights under the Fifth, Sixth, and Fourteenth Amendments made in order to avoid burdens which, it was ultimately determined, could not constitutionally have been imposed. In terms solely of Fifth Amendment policies, it is apparent that Simmons had a far weaker claim to be relieved of his ill-advised “waiver” than did the defendants in the guilty-plea trilogy. While we have no occasion to question the soundness of the result in Simmons and do not do so, to the extent that its rationale was based on a “tension” between constitutional rights and the policies behind them, the validity of that reasoning must now be regarded as open to question, and it certainly cannot be McGAUTHA v. CALIFORNIA 213 183 Opinion of the Court given the broad thrust which is attributed to it by Crampton in the present case. The criminal process, like the rest of the legal system, is replete with situations requiring “the making of difficult judgments” as to which course to follow. McMann v. Richardson, 397 U. S., at 769. Although a defendant may have a right, even of constitutional dimen-sions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose. The threshold question is whether compelling the election impairs to an appreciable extent any of the policies behind the rights involved. Analysis of this case in such terms leads to the conclusion that petitioner has failed to make out his claim of a constitutional violation in requiring him to undergo a unitary trial. B We turn first to the privilege against compelled selfincrimination. The contention is that where guilt and punishment are to be determined by a jury at a single trial the desire to address the jury on punishment unduly encourages waiver of the defendant’s privilege to remain silent on the issue of guilt, or, to put the matter another way, that the single-verdict procedure unlawfully compels the defendant to become a witness against himself on the issue of guilt by the threat of sentencing him to death without having heard from him. It is not contended, nor could it be successfully, that the mere force of evidence is compulsion of the sort forbidden by the privilege. See Williams v. Florida, 399 U. S. 78, 83-85 (1970). It does no violence to the privilege that a person’s choice to testify in his own behalf may open the door to otherwise inadmissible evidence which is damaging to his case. See Spencer v. Texas, 385 U. S., at 561 and n. 7; cf. Michelson v. United States, 335 U. S. 469 (1948). The narrow question left open is whether it is con 214 OCTOBER TERM, 1970 Opinion of the Court 402 U. S. sistent with the privilege for the State to provide no means whereby a defendant wishing to present evidence or testimony on the issue of punishment may limit the force of his evidence (and the State’s rebuttal) to that issue. We see nothing in the history, policies, or precedents relating to the privilege which requires such means to be available. So far as the history of the privilege is concerned, it suffices to say that it sheds no light whatever on the subject, unless indeed that which is adverse, resulting from the contrast between the dilemma of which petitioner complains and the historical excesses which gave rise to the privilege. See generally 8 J. Wigmore, Evidence § 2250 (McNaughton rev. ed. 1961); L. Levy, Origins of the Fifth Amendment (1968). Inasmuch as at the time of framing of the Fifth Amendment and for many years thereafter the accused in criminal cases was not allowed to testify in his own behalf, nothing approaching Crampton’s dilemma could arise. The policies of the privilege likewise are remote support for the proposition that defendants should be permitted to limit the effects of their evidence to the issue of punishment. The policies behind the privilege are varied, and not all are implicated in any given application of the privilege. See Murphy v. Waterfront Commission, 378 U. S. 52, 55 (1964); see generally 8 J. Wigmore, supra, at § 2251, and sources cited therein, n. 2. It can safely be said, however, that to the extent these policies provide any guide to decision, see McKay, Book Review, 35 N. Y. U. L. Rev. 1097, 1100-1101 (1960), the only one affected to any appreciable degree is that of “cruelty.” It is undeniably hard to require a defendant on trial for his life and desirous of testifying on the issue of punishment to make nice calculations of the effect of his testimony on the jury’s determination of guilt. The issue of cruelty thus arising, however, is less closely akin McGAUTHA v. CALIFORNIA 215 183 Opinion of the Court to “the cruel trilemma of self-accusation, perjury or contempt,” Murphy v. Waterfront Commission, 378 U. S., at 55, than to the fundamental requirements of fairness and decency embodied in the Due Process Clauses. Whichever label is preferred, appraising such considerations is inevitably a matter of judgment as to which individuals may differ; however, a guide to decision is furnished by the clear validity of analogous choices with which criminal defendants and their attorneys are quite routinely faced. It has long been held that a defendant who takes the stand in his own behalf cannot then claim the privilege against cross-examination on matters reasonably related to the subject matter of his direct examination. See, e. g., Brown v. Walker, 161 U. S. 591, 597-598 (1896); Fitzpatrick v. United States, 178 U. S. 304, 314-316 (1900); Brown v. United States, 356 U. S. 148 (1958). It is not thought overly harsh in such situations to require that the determination whether to waive the privilege take into account the matters which may be brought out on cross-examination. It is also generally recognized that a defendant who takes the stand in his own behalf may be impeached by proof of prior convictions or the like. See Spencer v. Texas, 385 U. S., at 561; cf. Michelson v. United States, 335 U. S. 469 (1948); but cf. Luck v. United States, 121 U. S. App. D. C. 151, 348 F. 2d 763 (1965); United States v. Palumbo, 401 F. 2d 270 (CA2 1968). Again, it is not thought inconsistent with the enlightened administration of criminal justice to require the defendant to weigh such pros and cons in deciding whether to testify. Further, a defendant whose motion for acquittal at the close of the Government’s case is denied must decide whether to stand on his motion or put on a defense, with the risk that in so doing he will bolster the Government case enough for it to support a verdict of guilty. 216 OCTOBER TERM, 1970 Opinion of the Court 402U.S. E. g., United States v. Calderon, 348 U. S. 160, 164 and n. 1 (1954); 2 C. Wright, Federal Practice and Procedure §463 (1969); cf. American Bar Association, Project on Standards for Criminal Justice, Trial by Jury 107-108 (Approved Draft, 1968). But see Comment, The Motion for Acquittal: A Neglected Safeguard, 70 Yale L. J. 1151 (1961); cf. Cephus v. United States, 117 U. S. App. D. C. 15, 324 F. 2d 893 (1963). Finally, only last Term in Williams n. Florida, 399 U. S. 78 (1970), we had occasion to consider a Florida “notice-of-alibi” rule which put the petitioner in that case to the choice of either abandoning his alibi defense or giving the State both an opportunity to prepare a rebuttal and leads from which to start. We rejected the contention that the rule unconstitutionally compelled the defendant to incriminate himself. The pressures which might lead the defendant to furnish this arguably “testimonial” and “incriminating” information arose simply from “the force of historical fact beyond both his and the State’s control and the strength of the State’s case built on these facts. Response to that kind of pressure by offering evidence or testimony is not compelled self-incrimination transgressing the Fifth and Fourteenth Amendments.” Id., at 85. We are thus constrained to reject the suggestion that a desire to speak to one’s sentencer unlawfully compels a defendant in a single-verdict capital case to incriminate himself, unless there is something which serves to distinguish sentencing—or at least capital sentencing—from the situations given above. Such a distinguishing factor can only be the peculiar poignancy of the position of a man whose life is at stake, coupled with the imponderables of the decision which the jury is called upon to make. We do not think that the fact that a defendant’s sentence, rather than his guilt, is at issue creates a constitutionally sufficient difference from the sorts of situa- McGAUTHA v. CALIFORNIA 217 183 Opinion of the Court tions we have described. While we recognize the truth of Mr. Justice Frankfurter’s insight in Green n. United States, 365 U. S. 301, 304 (1961) (plurality opinion), as to the peculiar immediacy of a personal plea by the defendant for leniency in sentencing, it is also true that the testimony of an accused denying the case against him has considerably more force than counsel’s argument that the prosecution’s case has not been proved. The relevant differences between sentencing and determination of guilt or innocence are not so great as to call for a difference in constitutional result. Nor does the fact that capital, as opposed to any other, sentencing is in issue seem to us to distinguish this case. See Williams v. New York, 337 U. S. 241, 251-252 (1949). Even in noncapital sentencing the sciences of penology, sociology, and psychology have not advanced to the point that sentencing is wholly a matter of scientific calculation from objectively verifiable facts. We conclude that the policies of the privilege against compelled self-incrimination are not offended when a defendant in a capital case yields to the pressure to testify on the issue of punishment at the risk of damaging his case on guilt. We therefore turn to the converse situation, in which a defendant remains silent on the issue of guilt and thereby loses any opportunity to address the jury personally on punishment. C It is important to identify with particularity the interests which are involved. Petitioner speaks broadly of a right of allocution. This right, of immemorial origin, arose in a context very different from that which confronted petitioner Crampton.20 See generally Barrett, 20 For instance, the accused was not permitted to have the assistance of counsel, was not permitted to testify in his own behalf, was not entitled to put on evidence in his behalf, and had almost no 218 OCTOBER TERM, 1970 Opinion of the Court 402 U. S. Allocution (pts. 1-2), 9 Mo. L. Rev. 115, 232 (1944). It has been preserved in its original form in Ohio and in many other States.21 What petitioner seeks, to be sure for purposes not wholly unrelated to those served by the right of allocution in former times, see Green n. United States, 365 U. S., at 304 (opinion of Frankfurter, J.), is nevertheless a very different procedure occurring in a radically different framework of criminal justice. Leaving aside the term “allocution,” it also appears that petitioner is not claiming the right simply to be heard on the issue of punishment. This Court has not directly determined whether or to what extent the concept of due process of law requires that a criminal defendant wishing to present evidence or argument presumably relevant to the issues involved in sentencing should be permitted to do so.22 Assuming, without de- possibility of review of his conviction. See, e. g., G. Williams, The Proof of Guilt 4-12 (3d ed. 1963); 1 J. Stephen, A History of the Criminal Law of England 308-311, 350 (1883). 21 Ohio Rev. Code Ann. §2947.05 (1954) provides: “Before sentence is pronounced, the defendant must be informed by the court of the verdict of the jury, or the finding of the court, and asked whether he has anything to say as to why judgment should not be pronounced against him.” 22 In Williams n. New York, 337 U. S. 241 (1949), a trial judge had disregarded a jury recommendation of mercy and imposed the death sentence, in part because of a presentence report based on hearsay. The Court held that the Due Process Clause did not require a State to choose between prohibiting the use of such reports and holding an adversary hearing at which the defendant could cross-examine the sources of the information contained therein. In Specht v. Patterson, 386 U. S. 605, 606 (1967), the Court characterized Williams broadly as holding that the Fourteenth Amendment “did not require a judge to have hearings and to give a convicted person an opportunity to participate in those hearings when he came to determine the sentence to be imposed.” The Court stated that it adhered to Williams, but declined to extend it to a separate determination whether a convicted person should be committed to an institution for treatment under the Colorado Sex McGAUTHA v. CALIFORNIA 219 183 Opinion of the Court ciding, that the Constitution does require such an opportunity, there was no denial of such a right in Crampton’s case. The Ohio Constitution guarantees defendants the right to have their counsel argue in summation for mercy as well as for acquittal. Shelton v. State, 102 Ohio St. 376, 131 N. E. 704 (1921). The extent to which evidence going solely to the issue of punishment is admissible under Ohio law is unclear, see Ashbrook v. State, 49 Ohio App. 298, 197 N. E. 214 (1935), but in any event it seems apparent that Ohio judges, as one would expect, take a lenient view of the admissibility of evidence offered by a defendant on trial for his life. As the present case illustrates, an accused can put before the jury a great deal of background evidence with at best a tenuous connection to the issue of guilt. The record in Crampton’s case does not reveal that any evidence offered on the part of the defendant was excluded on the ground that it was relevant solely to the issue of punishment. On the other hand, petitioner is not seeking vindication for his interest in making a personal plea for mercy.23 Offenders Act. Id., at 608. See also Mempa v. Rhay, 389 U. S. 128 (1967). In Green v. United States, 365 U. S. 301, 304 (1961), Mr. Justice Frankfurter, in an opinion for four members of the Court, spoke eloquently of the desirability of permitting a defendant’s personal plea for mercy, but in HUI v. United States, 368 U. S. 424 (1962), the Court held that the failure of a sentencing judge to ask a defendant represented by counsel whether he personally had anything to say, though a violation of Fed. Rule Crim. Proc. 32 (a), was not an error of constitutional dimensions. The Court reserved the issue whether silencing a defendant who wished to speak would rise to that level. Id., at 429. We have not since had occasion to deal with this or related problems at length. 23 It may be noted in passing that petitioner at no point requested an opportunity to address the jury personally on the issue of punishment. Compare the Georgia practice of permitting the defendant to make an unsworn statement on which he is not subject to cross- 419-882 0 - 72 - 19 220 OCTOBER TERM, 1970 Opinion of the Court 402 U. S. Even in a bifurcated trial, the defendant could be restricted to the giving of evidence, with argument to be made by counsel only. Petitioner’s contention therefore comes down to the fact that the Ohio single-verdict trial may deter the defendant from bringing to the jury’s attention evidence peculiarly within his own knowledge, and it may mean that the death verdict will be returned by a jury which never heard the sound of his voice. We do not think that the possibility of the former is sufficiently great to sustain petitioner’s claim that the singleverdict trial may deprive the jury of a rational basis for fixing sentence. Assuming that in this case there was relevant information solely within petitioner’s knowledge, we do not think the Constitution forbids a requirement that such evidence be available to the jury on all issues to which it is relevant or not at all. As to the largely symbolic value represented by the latter interest, Ohio has provided for retention of the ritual of allocution, albeit only in its common-law form, precisely to avoid the possibility that a person might be tried, convicted, and sentenced to death in complete silence. We have held that failure to ensure such personal participation in the criminal process is not necessarily a constitutional flaw in the conviction. Hill v. United States, 368 U. S. 424 (1962). We do not think that Ohio was required to provide an opportunity for petitioner to speak to the jury free from any adverse consequences on the issue of guilt. We therefore reject this branch of petitioner’s argument as well. V Before we conclude this opinion, it is appropriate for us to make a broader observation than the issues raised by examination, and the deprecating view of this opportunity taken by those familiar with it, all discussed in Ferguson v. Georgia, 365 U. S. 570 (1961). McGAUTHA v. CALIFORNIA 221 183 Opinion of the Court these cases strictly call for. It may well be, as the American Law Institute and the National Commission on Reform of Federal Criminal Laws have concluded, that bifurcated trials and criteria for jury sentencing discretion are superior means of dealing with capital cases if the death penalty is to be retained at all. But the Federal Constitution, which marks the limits of our authority in these cases, does not guarantee trial procedures that are the best of all worlds, or that accord with the most enlightened ideas of students of the infant science of criminology, or even those that measure up to the individual predilections of members of this Court. See Spencer v. Texas, 385 U. S. 554 (1967). The Constitution requires no more than that trials be fairly conducted and that guaranteed rights of defendants be scrupulously respected. From a constitutional standpoint we cannot conclude that it is impermissible for a State to consider that the compassionate purposes of jury sentencing in capital cases are better served by having the issues of guilt and punishment determined in a single trial than by focusing the jury’s attention solely on punishment after the issue of guilt has been determined. Certainly the facts of these gruesome murders bespeak no miscarriage of justice. The ability of juries, unassisted by standards, to distinguish between those defendants for whom the death penalty is appropriate punishment and those for whom imprisonment is sufficient is indeed illustrated by the discriminating verdict of the jury in McGautha’s case, finding Wilkinson the less culpable of the two defendants and sparing his life. The procedures which petitioners challenge are those by which most capital trials in this country are conducted, and by which all were conducted until a few years ago. We have determined that these procedures are consistent with the rights to which petitioners were constitutionally entitled, and that their trials were entirely fair. Having 222 OCTOBER TERM, 1970 Appendix to opinion of the Court 402 U. S. reached these conclusions we have performed our task of measuring the States’ process by federal constitutional standards, and accordingly the judgment in each of these cases is Affirmed. APPENDIX TO OPINION OF THE COURT Model Penal Code § 210.6 (Proposed Official Draft, 1962, and changes of July 30, 1962): (1) Death Sentence Excluded. When a defendant is found guilty of murder, the Court shall impose sentence for a felony of the first degree if it is satisfied that: (a) none of the aggravating circumstances enumerated in Subsection (3) of this Section was established by the evidence at the trial or will be established if further proceedings are initiated under Subsection (2) of this Section; or (b) substantial mitigating circumstances, established by the evidence at the trial, call for leniency; or (c) the defendant, with the consent of the prosecuting attorney and the approval of the Court, pleaded guilty to murder as a felony of the first degree; or (d) the defendant was under 18 years of age at the time of the commission of the crime; or (e) the defendant’s physical or mental condition calls for leniency; or (f) although the evidence suffices to sustain the verdict, it does not foreclose all doubt respecting the defendant’s guilt. (2) Determination by Court or by Court and Jury. Unless the Court imposes sentence under Subsection (1) of this Section, it shall conduct a separate proceeding to determine whether the defendant should be sentenced for a felony of the first degree or sentenced to death. The proceeding shall be conducted before the Court alone McGAUTHA v. CALIFORNIA 223 183 Appendix to opinion of the Court if the defendant was convicted by a Court sitting without a jury or upon his plea of guilty or if the prosecuting attorney and the defendant waive a jury with respect to sentence. In other cases it shall be conducted before the Court sitting with the jury which determined the defendant’s guilt or, if the Court for good cause shown discharges that jury, with a new jury empanelled for the purpose. In the proceeding, evidence may be presented as to any matter that the Court deems relevant to sentence, including but not limited to the nature and circumstances of the crime, the defendant’s character, background, history, mental and physical condition and any of the aggravating or mitigating circumstances enumerated in Subsections (3) and (4) of this Section. Any such evidence, not legally privileged, which the court deems to have probative force, may be received, regardless of its admissibility under the exclusionary rules of evidence, provided that the defendant’s counsel is accorded a fair opportunity to rebut such evidence. The prosecuting attorney and the defendant or his counsel shall be permitted to present argument for or against sentence of death. The determination whether sentence of death shall be imposed shall be in the discretion of the Court, except that when the proceeding is conducted before the Court sitting with a jury, the Court shall not impose sentence of death unless it submits to the jury the issue whether the defendant should be sentenced to death or to imprisonment and the jury returns a verdict that the sentence should be death. If the jury is unable to reach a unanimous verdict, the Court shall dismiss the jury and impose sentence for a felony of the first degree. The Court, in exercising its discretion as to sentence, and the jury, in determining upon its verdict, shall take into account the aggravating and mitigating circumstances enumerated in Subsections (3) and (4) and any 224 OCTOBER TERM, 1970 Appendix to opinion of the Court 402 U. S. other facts that it deems relevant, but it shall not impose or recommend sentence of death unless it finds one of the aggravating circumstances enumerated in Subsection (3) and further finds that there are no mitigating circumstances sufficiently substantial to call for leniency. When the issue is submitted to the jury, the Court shall so instruct and also shall inform the jury of the nature of the sentence of imprisonment that may be imposed, including its implication with respect to possible release upon parole, if the jury verdict is against sentence of death. [Alternative version of Subsection (2), providing for determination of sentence by the Court in all cases, omitted.] (3) Aggravating Circumstances. (a) The murder was committed by a convict under sentence of imprisonment. (b) The defendant was previously convicted of another murder or of a felony involving the use or threat of violence to the person. (c) At the time the murder was committed the defendant also committed another murder. (d) The defendant knowingly created a great risk of death to many persons. (e) The murder was committed while the defendant was engaged or was an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary or kidnapping. (f) The murder was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from lawful custody. (g) The murder was committed for pecuniary gain. (h) The murder was especially heinous, atrocious or cruel, manifesting exceptional depravity. McGAUTHA v. CALIFORNIA 225 183 Opinion of Black, J. (4) Mitigating Circumstances. (a) The defendant has no significant history of prior criminal activity. (b) The murder was committed while the defendant was under the influence of extreme mental or emotional disturbance. (c) The victim was a participant in the defendant’s homicidal conduct or consented to the homicidal act. (d) The murder was committed under circumstances which the defendant believed to provide a moral justification or extenuation for his conduct. (e) The defendant was an accomplice in a murder committed by another person and his participation in the homicidal act was relatively minor. (f) The defendant acted under duress or under the domination of another person. (g) At the time of the murder, the capacity of the defendant to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect or intoxication. (h) The youth of the defendant at the time of the crime. Separate opinion of Mr. Justice Black. I concur in the Court’s judgments and in substantially all of its opinion. However, in my view, this Court’s task is not to determine whether the petitioners’ trials were “fairly conducted.” Ante, at 221. The Constitution grants this Court no power to reverse convictions because of our personal beliefs that state criminal procedures are “unfair,” “arbitrary,” “capricious,” “unreasonable,” or “shocking to our conscience.” See, e. g., Rochin v. California, 342 U. S. 165, 174 (1952) (Black, J., concurring); United States v. Wade, 388 U. S. 218, 243 (1967) (Black, J., concurring and dissenting). Our 226 OCTOBER TERM, 1970 Douglas, J., dissenting 402 U. S. responsibility is rather to determine whether petitioners have been denied rights expressly or impliedly guaranteed by the Federal Constitution as written. I agree with the Court’s conclusions that the procedures employed by California and Ohio to determine whether capital punishment shall be imposed do not offend the Due Process Clause of the Fourteenth Amendment. Likewise, I do not believe that petitioners have been deprived of any other right explicitly or impliedly guaranteed by the other provisions of the Bill of Rights. The Eighth Amendment forbids “cruel and unusual punishments.” In my view, these words cannot be read to outlaw capital punishment because that penalty was in common use and authorized by law here and in the countries from which our ancestors came at the time the Amendment was adopted. It is inconceivable to me that the framers intended to end capital punishment by the Amendment. Although some people have urged that this Court should amend the Constitution by interpretation to keep it abreast of modern ideas, I have never believed that lifetime judges in our system have any such legislative power. See Harper v. Virginia Board of Elections, 383 U. S. 663, 670 (1966) (Black, J., dissenting). Mr. Justice Douglas, with whom Mr. Justice Brennan and Mr. Justice Marshall concur, dissenting in No. 204. In my view the unitary trial which Ohio provides in first-degree murder cases does not satisfy the requirements of procedural Due Process under the Fourteenth Amendment. Ohio makes first-degree murder punishable by death “unless the jury trying the accused recommends mercy, in which case the punishment shall be imprisonment for life.” Ohio Rev. Code Ann. § 2901.01. Petitioner McGAUTHA v. CALIFORNIA 227 183 Douglas, J., dissenting was indicted and tried for murder in the first degree for the killing of his wife. His pleas were “not guilty” and “not guilty by reason of insanity.” The court, after a psychiatric examination, concluded that petitioner was sane and set the case for trial before a jury. The issues of guilt, punishment, and insanity were simultaneously tried and submitted to the jury. Petitioner did not testify at the trial. But a psychiatrist testified on his behalf, offering medical records of his case from two state hospitals. His mother testified concerning his childhood, education, and background. On the issue of punishment the jury was charged: “You must not be influenced by any consideration of sympathy or prejudice. It is your duty to carefully weigh the evidence, to decide all disputed questions of fact, to apply the instructions of the court to your findings and to render your verdict accordingly. In fulfilling your duty, your efforts must be to arrive at a just verdict. “Consider all the evidence and make your finding with intelligence and impartiality, and without bias, sympathy, or prejudice, so that the State of Ohio and the defendant will feel that their case was fairly and impartially tried. . . .” (Emphasis added.) He was found guilty of murder in the first degree without a recommendation of mercy and the court sentenced him to death. The Supreme Court of Ohio sustained the single-verdict procedure and the absolute discretion of the jury in the matter of punishment. 18 Ohio St. 2d 182, 248 N. E. 2d 614. On the issue of guilt the State was required to produce evidence to establish it. On the issue of insanity the burden was on petitioner to prove it by a preponderance of the evidence, State n. Austin, 71 Ohio St. 317, 73 228 OCTOBER TERM, 1970 Douglas, J., dissenting 402 U. S. N. E. 218. On the issue of mercy, viz., life imprisonment rather than death, petitioner under Ohio law was banned from offering any specific evidence directed only toward a claim of mercy. Ashbrook n. State, 49 Ohio App. 298, 197 N. E. 214. If a defendant wishes to testify in support of the defense of insanity or in mitigation of what he is charged with doing, he can do so only if he surrenders his right to be free from self-incrimination. Once he takes the stand he can be cross-examined not only as respects the crime charged but also on other misdeeds. In Ohio impeachment covers a wide range of subjects: prior convictions for felonies and statutory misdemeanors,1 pending indictments,2 prior convictions in military service, and dishonorable discharges.3 Once he testifies he can be recalled for cross-examination in the State’s case in rebuttal.4 While the defendant in Ohio has the right of allocution, that right even in first-degree murder cases occurs only after the jury’s verdict has been rendered. Unless there is prejudicial error vitiating the conviction or insufficient evidence5 to convict, the jury’s verdict stands and the judge must enter the verdict. Allocution, though mandatory,6 is thus a ritual only.7 1 State v. Murdock, 172 Ohio St. 221, 174 N. E. 2d 543. And see State v. Pollard, 21 Ohio St. 2d 171, 256 N. E. 2d 620. 2 State v. Hector, 19 Ohio St. 2d 167, 249 N. E. 2d 912. 3 State v. Williams, 85 Ohio App. 236, 88 N. E. 2d 420. Merely taking the stand puts credibility in issue. Hamilton v. State, 39 Ohio App. 153, 177 N. E. 221. 4 Johns v. State, 42 Ohio App. 412, 182 N. E. 356. 5 State v. Frohner, 150 Ohio St. 53, 80 N. E. 2d 868; Hoppe v. State, 29 Ohio App. 467, 163 N. E. 715. 3 Silsby v. State, 119 Ohio St. 314, 164 N. E. 232. 7 “At common law the defendant in a felony case had a right, called ‘allocution,’ to be asked formally whether he had ‘any thing to offer why judgment should not be awarded against him.’ . . . [SJince McGAUTHA v. CALIFORNIA 229 183 Douglas, J., dissenting If the right to be heard were to be meaningful, it would have to accrue before sentencing; yet, except for allocution, any attempt on the part of the accused during the trial to say why the judgment of death should not be pronounced against him entails a surrender of his right against self-incrimination. It therefore seems plain that the single-verdict procedure is a burden on the exer- the common law judge generally had no discretion as to the quantum of punishment in felony cases, the point of his question to the defendant was not to elicit mitigating evidence or a plea for leniency, but to give the defendant a formal opportunity to present one of the strictly defined legal reasons which required the avoidance or delay of sentencing: he was not the person convicted, he had benefit of clergy or a pardon, he was insane, or if a woman, she was pregnant.” Note, Procedural Due Process at Judicial Sentencing for Felony, 81 Harv. L. Rev. 821, 832-833. “The common law right of the defendant to be asked if he wishes to make a statement on his own behalf at the time of sentencing would appear still to be recognized in more than half of the American jurisdictions, although it finds expression in many forms and comes from many sources. In at least one state, the right rises to a constitutional level. See R. I. Const, art. I, § 10; Robalewski v. Superior Court, 197 A. 2d 751 (R. I. 1964). In many more states the right is guaranteed by statute. For a representative sample, see Cal. Penal Code §§ 1200, 1201 (1956); Iowa Code Ann. §789.6 (1950); Kan. Gen. Stat. Ann. §62-1510 (1964); Mo. Rev. Stat. §§546.570, 546.580 (1953); N. Y. Code Crim. Proc. §480 (1958); Okla. Stat. Ann. tit. 22, §970 (1958); Tex. Code Crim. Proc. art. 42.07 (1966); Wash. Rev. Code Ann. § 10.64.040 (1961). See also 48 Iowa L. Rev. 172, 173-74 n. 11 (1962). In a few more jurisdictions, the right is secured by rules of court. See, e. g., N. J. Crim. Prac. Rules, Superior and County Courts, Rule 3:7-10 (d) (1967); Fed. Rule Crim. Proc. 32 (a)(1). See also 39 F. R. D. 192-193 (1966); Hill v. United States, 368 U. S. 424 (1962); Green v. United States, 365 U. S. 301 (1961). In other jurisdictions, case law is the only source of the defendant’s right. See Barrett, Allocution, 9 Mo. L. Rev. 115, 126-40 (1944) .” American Bar Association, Project on Standards for Criminal Justice, Sentencing Alternatives and Procedures 254-255 (Approved Draft, 1968). 230 OCTOBER TERM, 1970 Douglas, J., dissenting 402U.S. cise of the right to be free of compulsion as respects self-incrimination. For he can testify on the issue of insanity or on other matters in extenuation of the crime charged only at the price of surrendering the protection of the Self-Incrimination Clause of the Fifth Amendment made applicable to the States by the Fourteenth. On the question of insanity and punishment the accused should be under no restraints when it comes to putting before the court and the jury all the relevant facts. Yet he cannot have that freedom where these issues are tied to the question of guilt. For on that issue he often dare not speak lest he in substance be tried not for this particular offense but for all the sins he ever committed. Petitioner also had to surrender much of his right to a fair hearing on the issue of punishment to assert his defense of insanity. To support his insanity plea he had to submit his hospital records, both of which contained information about his convictions and imprisonment for prior crimes and about his use of drugs as well. Of course, a defendant’s character witnesses can be examined respecting the defendant’s other crimes. Michelson v. United States, 335 U. S. 469. But that is an effort to weigh the credibility of the proffered testimony as to character. “Thus, while the law gives defendant the option to show as a fact that his reputation reflects a life and habit incompatible with commission of the offense charged, it subjects his proof to tests of credibility designed to prevent him from profiting by a mere parade of partisans.” Id., at 479. It is a far cry, however, to let hospital records tendered on an issue of insanity color a jury’s judgment on the wholly different issue of guilt. The greatest comfort the majority has is this Court’s recent decision in Spencer n. Texas, 385 U. S. 554, holding that a two-stage trial is not required when a State McGAUTHA v. CALIFORNIA 231 183 Douglas, J., dissenting under a habitual-offender statute seeks to introduce on the issue of guilt in a unitary trial evidence of a defendant’s prior convictions. Yet Spencer was a five-to-four decision which meant it barely passed muster as a constitutional procedure. The dissent of Mr. Chief Justice Warren, in which three other Justices joined, will have, I think, endurance beyond the majority view. That dissent, id., at 569 et seq., points out the prejudice to an accused if, prior to a finding of guilt, earlier convictions are admissible in evidence. There is mounting evidence shown in court decisions (id., at 585) and in modern state procedures that that practice does not comport with fairness implicit in due process. Mr. Chief Justice Warren said: “In England, the prejudice which results from proof of prior crimes before a finding of guilt has been recognized for more than a century, and the rule has been that a finding as to prior crimes is made in a separate hearing after the finding of guilt.” Id., at 586. We should not square with due process the practice which receives impetus in Ohio where reports on a man’s insanity contain references to his criminal record which most assuredly prejudice his trial on the issue of guilt.8 8 As Mr. Chief Justice Warren said: “Whether or not a State has recidivist statutes on its books, it is well established that evidence of prior convictions may not be used by the State to show that the accused has a criminal disposition and that the probability that he committed the crime currently charged is increased. While this Court has never held that the use of prior convictions to show nothing more than a disposition to commit crime would violate the Due Process Clause of the Fourteenth Amendment, our decisions exercising supervisory power over criminal trials in federal courts, as well as decisions by courts of appeals and of state courts, suggest that evidence of prior crimes introduced for no purpose other than to show criminal disposition would violate the Due Process Clause.” Spencer v. Texas, 385 U. S., at 572-574. 232 OCTOBER TERM, 1970 Douglas, J., dissenting 402U.S. We have already traveled part of the distance required for reversal in the present case. In Jackson v. Denno, 378 U. S. 368, we held that whether on controverted facts a confession was voluntary must be tried by a State in a separate proceeding. We pointed out the vice in allowing the jury that determines guilt also to determine whether the confession was voluntary. We said: “It is difficult, if not impossible, to prove that a confession which a jury has found to be involuntary has nevertheless influenced the verdict or that its finding of voluntariness, if this is the course it took, was affected by the other evidence showing the confession was true. But the New York procedure poses substantial threats to a defendant’s constitutional rights to have an involuntary confession entirely disregarded and to have the coercion issue fairly and reliably determined.” Id., at 389. Yet the risk of prejudice in Jackson v. Denno seems minor compared with the risk of prejudice in a unitary trial where the issues of guilt, insanity, and punishment are combined, submitted to one jury with evidence of prior convictions coming in under cover of hospital records pertinent to insanity, and certainly likely to be prejudicial on the issue of guilt. I see no way to make this unitary trial fair in the sense of procedural due process unless the issue of insanity is segregated and tried to a separate jury. As noted, evidence as to whether the jury should show mercy to him is excluded from consideration, and the jury is admonished not to show any “sympathy” to the accused. Under Ohio law the determination of whether to grant or withhold mercy is exclusively for the jury and cannot McGAUTHA v. CALIFORNIA 233 183 Douglas, J., dissenting be reviewed by either the trial court9 or an appellate court.10 The first time that specific mention of mercy to the jury is permissible is during closing argument where the defendant is permitted “to argue to the jury the desirability, advisability or wisdom of recommending mercy.” 11 While there was not a specific instruction on mercy in the instant case (beyond the instruction to make findings without bias, sympathy, or prejudice), the Ohio courts have approved instructions “to consider and determine whether or not in view of all the circumstances and facts leading up to, and attending the alleged homicide as disclosed by the evidence, you should or should not make such recommendation [of mercy].” Howell v. State, 102 Ohio St. 411, 413, 131 N. E. 706-707. This instruction means that while the jury may not consider general sociological or environmental data, it may consider any such factors which have specifically been admitted into evidence in the case for other purposes. State v. Caldwell, 135 Ohio St. 424, 21 N. E. 2d 343.12 9 Turner v. State, 21 Ohio Law Abs. 276; State v. Klumpp, 15 Ohio Op. 2d 461,175 N. E. 2d 767. 10 State v. Ames, 50 Ohio Law Abs. 311, 80 N. E. 2d 168. The result is the same if the sentencing decision is based on a guilty plea or a jury waiver. State v. Lucear, 93 Ohio App. 281, 109 N. E. 2d 39; State v. Ferguson, 175 Ohio St. 390, 195 N. E. 2d 794. 11 Shelton v. State, 102 Ohio St. 376, 131 N. E. 704 (syllabus). 12 In Caldwell the jury was initially instructed: “[W]hether you recommend or withhold mercy is a matter solely within your discretion, calling for the exercise of your very best and most profound judgment, not motivated by considerations of sympathy or as a means of escaping a hard or disagreeable duty, but must be considered by you in the light of all the circumstances of the case with respect to the evidence submitted to you and the other circumstances surrounding this defendant.” Following some deliberation the jury returned for special instructions and the following occurred: Court: “You should determine whether or not in your discretion 234 OCTOBER TERM, 1970 Douglas, J., dissenting 402U.S. Ashbrook v. State, supra, holds that evidence “directed specifically toward a claim for mercy” cannot be introduced. Yet Howell, Caldwell, and Ashbrook show that once evidence is admitted for other purposes the jury is free to consider it for any purpose. In Caldwell the objection of the court was to going outside the record for evidence in considering sociological and environmental matters. This background evidence often comes in through character witnesses. In one case a defendant presented 12 witnesses who testified to his reputation as a peaceful and law-abiding citizen of good character.13 And even in the instant case petitioner’s mother testified concerning his childhood, education, and background. mercy should be granted from a consideration of the evidence, the character of the crime and the attending circumstances.” Foreman: “What are extenuating circumstances? Are they something which we can determine in our own judgment alone?” Court: “No, if there are any, you must determine them from the evidence.” Foreman: “Well, then, may we consider sociological matters and environment in determining this question of granting mercy?” Court: “No—they have nothing whatever to do with this case.” At this point defense counsel requested the following instruction: “In determining whether or not in your discretion you shall grant mercy to the defendant, you may consider environmental factors and sociological conditions, and in determining whether or not these factors exist you shall consider all the evidence permitted to go to you in this case, and all reasonable inferences to be derived therefrom. You may also consider, in making up your mind on the question of mercy, the appearance, demeanor and actions of the defendant as you have seen him here in open court.” The Ohio Supreme Court held it was not error to refuse to give this instruction because it was “substantially identical with those contained in the answers of the court to the jury, and its subjectmatter was covered in the general charge. There was no occasion for repetition.” 135 Ohio St., at 425-428, 21 N. E. 2d, at 344-345. 13 State v. Lucear, supra, n. 10. McGAUTHA v. CALIFORNIA 235 183 Douglas, J., dissenting But the right of allocution is at best partial and incomplete when the accused himself is barred from testifying on the question of sentencing, and when the only evidence admissible comes from other people or is introduced for different and more limited purposes. The line between the legislative function and the judicial function is clear. The State can make criminal such conduct as it pleases, save as it is limited by the Constitution itself, as for example by the ban on ex post facto laws in Art. I, § 10, or by the Fourteenth Amendment, as where religious exercises or freedom of speech or of the press is involved. It can punish such conduct by such penalties as it chooses, save as its sanctions run afoul of the ban in Art. I, § 10, against bills of attainder or the prohibition against cruel and unusual punishments contained in the Eighth Amendment. The Court is not concerned with the wisdom of state policies, only with the constitutional barriers to state action. Procedural due process14 is one of those barriers, as revealed over and over again in our decisions. Some of its requirements are explicit in the Bill of Rights—a speedy trial, Klopfer v. North Carolina, 386 U. S. 213; a trial by jury, Duncan n. Louisiana, 391 U. S. 145; the right to counsel, Gideon v. Wainwright, 372 U. S. 335; the right to confrontation, Pointer v. Texas, 380 U. S. 400—all as made applicable to the States by reason of the Fourteenth Amendment. Other requirements of procedural due process are only implied, not expressed; their inclusion or exclusion turns on the basic question of fairness. In that category are notice and the right to be heard. Schroeder v. City of 14 There have been recurring demands that the Due Process Clause be abolished. See Clark, Some Recent Proposals for Constitutional Amendment, 12 Wis. L. Rev. 313, 324-326 (1937).. Others have suggested that due process—apart from the specifics in the Bill of Rights—should mean only such notice, procedures, hearings, or trials 419-882 0 - 72 - 20 236 OCTOBER TERM, 1970 Douglas, J., dissenting 402U.S. New York, 371 U. S. 208; Sniadach n. Family Finance Corp., 395 U. S. 337. It is a phase of that right to be heard that looms large here. Crampton had the constitutional right as a matter of procedural due process to be heard on the issue of punishment. We emphasized in Townsend v. Burke, 334 U. S. 736, 741, how the right to be heard through counsel might be crucial to avoid sentencing on a foundation “extensively and materially false.” But the right to be heard is broader than that; it includes the right to speak for one’s self. As was said in Green n. United States, 365 U. S. 301, 304 (opinion of Frankfurter, J.): “We are not unmindful of the relevant major changes that have evolved in criminal procedure since the seventeenth century—the sharp decrease in the number of crimes which were punishable by death, the right of the defendant to testify on his own behalf, and the right to counsel. But we see as are prescribed by Congress or the States. See Burns, The Death of E Pluribus Unum, 19 DePaul L. Rev. 651, 682 (1970). The critics of the existing regime have been numerous. Mr. Justice Frankfurter once said: “[T]he ultimate justification for nullifying or saying that what Congress did, what the President did, what the legislature of Massachusetts or New York or any other state did was beyond its power, is that provision of the Constitution which protects liberty against infringement without due process of law. There are times, I can assure you—more times than once or twice— when I sit in this chair and wonder whether that isn’t too great a power to give to any nine men, no matter how wise, how well disciplined, how disinterested. It covers the whole gamut of political, social, and economic activities.” Of Law and Life and Other Things That Matter 129 (1965). Yet none of us, I dare say, would conclude that (apart from constitutional specifics) any notice, any procedure, any form of hearings, any type of trial prescribed by any legislature would pass muster under procedural due process. Our present disagreement relates to what is essential for a fair trial, if the conventional, historic standards of procedural due process are to apply. McGAUTHA v. CALIFORNIA 237 183 Douglas, J., dissenting no reason why a procedural rule should be limited to the circumstances under which it arose if reasons for the right it protects remain. None of these modern innovations lessens the need for the defendant, personally, to have the opportunity to present to the court his plea in mitigation. The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.” The right to be heard, explicit in Rule 32 (a) of the Federal Rules of Criminal Procedure, may at times be denied, absent a showing of “aggravating circumstances” or of a claim that the defendant would have anything to say. See Hill v. United States, 368 U. S. 424. But where the opportunity to be heard on the sentence is denied both counsel and the defendant, the denial reaches constitutional proportions. See United States v. Johnson, 315 F. 2d 714, 717. Whether the voice speaking for the defendant be counsel’s voice or the defendant’s, the right to be heard is often vital at the sentencing stage before the law decides the punishment of the person found guilty. Mempa v. Rhay, 389 U. S. 128, 135. The hearing, whether on guilt or punishment, is governed by the requirements of due process. We said in Specht v. Patterson, 386 U. S. 605, 610: “Due process, in other words, requires that he be present with counsel, have an opportunity to be heard, be confronted with witnesses against him, have the right to cross-examine, and to offer evidence of his own.” If one insists, as in Hill, that there be “aggravating circumstances” to raise this right to be heard to a constitutional level, all must agree that no one can ever show more “aggravating” circumstances than the fact 238 OCTOBER TERM, 1970 Douglas, J., dissenting 402U.S. that he stands on the verge of receiving the death sentence. At least then, the right of allocution becomes a constitutional right—the right to speak to the issues touching on sentencing before one’s fate is sealed. Yet where the trial is a unitary one, the right of allocution even in a capital case is theoretical, not real, as the Ohio procedure demonstrates. Petitioner also had the protection of the Self-Incrimination Clause of the Fifth Amendment. To obtain the benefit of the former he would have to surrender the latter. Mr. Justice Harlan, speaking for the Court, said in Simmons v. United States, 390 U. S. 377, 394: “[W]e find it intolerable that one constitutional right should have to be surrendered in order to assert another.” We made that statement in the context of a case where an accused testified on a motion to suppress evidence in order to protect his Fourth Amendment rights but later discovered that the testimony would be used by the prosecution as “a strong piece of evidence against him.” Id., at 391. We held that the protection of his Fourth Amendment rights did not warrant surrender or dilution of his Fifth Amendment rights. In United States v. Jackson, 390 U. S. 570, we held unenforceable a federal statute which made the death penalty applicable only to those who contested their guilt before a j ury. In that case the “undeniable tension” was between Fifth Amendment rights and Sixth Amendment rights. Mr. Justice Stewart speaking for the Court said: “The inevitable effect of any such provision is, of course, to discourage assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth Amendment right to demand a jury trial. If the provision had no other purpose or effect than to chill the assertion of constitutional rights by penalizing those McGAUTHA v. CALIFORNIA 239 183 Douglas, J., dissenting who choose to exercise them, then it would be patently unconstitutional.” Id., at 581. ' That “undeniable tension” between two constitutional rights, which led to that result in Jackson and to a reversal in Simmons, should lead to a reversal here. For the unitary trial or single-verdict trial in practical effect allows the right to be heard on the issue of punishment only by surrendering the protection of the Self-Incrimination Clause of the Fifth Amendment. The Court of Appeals for the Second Circuit indicated in United States v. Branker, 418 F. 2d 378, 380, that Simmons prevented an accused’s testimony at a hearing on his application to proceed in forma pauperis and for appointment of counsel to be used by the prosecution as part of its direct case against him: “The defendant should enjoy his constitutional rights to counsel and to appeal and the means of supporting his assertion of these rights by his own testimony without running the risk that thereby he may be incriminating himself with respect to the charges pending against him.” The same result was reached by the Court of Appeals for the District of Columbia Circuit in Melson v. Sard, 131 U. S. App. D. C. 102, 402 F. 2d 653, which held that a parolee who testifies on a hearing in revocation of his parole may give testimony that may not be used in a subsequent criminal trial in violation of the SelfIncrimination Clause of the Fifth Amendment: “If a parolee is not given the full and free ability to testify in his own behalf and present his case against revocation, his right to a hearing before the Board would be meaningless. Furthermore, his Fifth Amendment rights must not be conditioned ‘by the exaction of a price.’ ” Id., at 104,. 402 F. 2d, at 655. 240 OCTOBER TERM, 1970 Douglas, J., dissenting 402 U. S. The words “by the exaction of a price” are from Garrity v. New Jersey, 385 U. S. 493, 500, where we held that the threat of discharge of a policeman cannot be used to secure incriminatory evidence against him. We said: “There are rights of constitutional stature whose exercise a State may not condition by the exaction of a price. Engaging in interstate commerce is one. . . . Resort to the federal courts in diversity of citizenship cases is another. . . . Assertion of a First Amendment right is still another. . . . The imposition of a burden on the exercise of a Twentyfourth Amendment right is also banned. . . . We now hold the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic.” Ibid. Melson n. Sard involved protection of a statutory right to a hearing. Garrity involved only employment rights. In the same category is Thomas v. United States, 368 F. 2d 941, where the Court of Appeals for the Fifth Circuit held a convicted man may not receive a harsher penalty than he would have received if he had waived his Fifth Amendment right. And the Court of Appeals for the District of Columbia Circuit expressed the same view in Scott v. United States, 135 U. S. App. D. C. 377, 419 F. 2d 264. If exaction of a constitutional right may not be made for assertion of a statutory right (such as the right to a hearing on parole revocation or the right to appeal), it follows a fortiori that the constitutional right to be free from the compulsion of self-incrimination may not be McGAUTHA v. CALIFORNIA 241 183 Douglas, J., dissenting exacted as a condition to the constitutional right to be heard on the issue of punishment. The truth is, as Mr. Justice Brennan points out in his dissent in these cases, that the wooden position of the Court, reflected in today’s decision, cannot be reconciled with the evolving gloss of civilized standards which this Court, long before the time of those who now sit here, has been reading into the protective procedural due process safeguards of the Bill of Rights. It is as though a dam had suddenly been placed across the stream of the law on procedural due process, a stream which has grown larger with the passing years. The Court has history on its side—but history alone. Though nations have been killing men for centuries, felony crimes increase. The vestiges of law enshrined today have roots in barbaric procedures. Barbaric procedures such as ordeal by battle that became imbedded in the law were difficult to dislodge.15 Though torture was used to exact confessions, felonies mounted. Once it was thought that “sanity” was determined by ascertaining whether a person knew the difference between “right” and “wrong.” Once it was a capital offense to steal from the person something “above the value of a shilling.”16 Insight and understanding have increased with the years, though the springs of crime remain in large part unknown. But our own Federal Bureau of Investigation teaches that brains, not muscle, solve crimes. Coerced confessions are not only offensive to civilized standards but not responsive to the modern needs of criminal investigation. Psychiatry has shown that blind faith in rightness and wrongness is no reliable measure of human 15 See 4 W. Blackstone, Commentaries *347-349. Ordeal by battle was finally abolished in 1819 in England. 59 Geo. 3, c. 46. 161 J. Stephen, History of the Criminal Law of England 467 (1883). 242 OCTOBER TERM, 1970 Douglas, J., dissenting 402U.S. responsibility. The convergence of new technology for criminal investigation and of new insight into mental disorders has made many ancient legal procedures seem utterly unfair. Who today would say it was not “cruel and unusual punishment” within the meaning of the Eighth Amendment to impose the death sentence on a man who stole a loaf of bread, or in modern parlance, a sheet of food stamps? Who today would say that trial by battle satisfies the requirements of procedural due process? We need not read procedural due process as designed to satisfy man’s deep-seated sadistic instincts. We need not in deference to those sadistic instincts say we are bound by history from defining procedural due process so as to deny men fair trials. Yet that is what the Court does today. The whole evolution of procedural due process has been in the direction of insisting on fair procedures. As the Court said in Hebert v. Louisiana, 272 U. S. 312, 316-317: “[S]tate action, whether through one agency or another, shall be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions and not infrequently are designated as ‘law of the land.’ Those principles are applicable alike in all the States and do not depend upon or vary with local legislation.” One basic application of that test was made in Moore n. Dempsey, 261 U. S. 86, 91: “[I]f the case is that the whole proceeding is a mask—that counsel, jury and judge were swept to the fatal end by an irresistible wave of public passion, and that the State Courts failed to correct the wrong, neither perfection in the machinery for correction nor the possibility that the trial court and McGAUTHA v. CALIFORNIA 243 183 Douglas, J., dissenting counsel saw no other way of avoiding an immediate outbreak of the mob can prevent this Court from securing to the petitioners their constitutional rights.” To allow a defendant in a state trial to be convicted by confessions “extorted by officers of the State by brutality and violence” was said by Mr. Chief Justice Hughes to be “revolting to the sense of justice” and “a clear denial of due process.” Brown v. Mississippi, 297 U. S. 278, 286. In 1884 the Court in Hurtado n. California, 110 U. S. 516, 529, said that due process was not frozen in content as of one point of time: “[T]o hold that such a characteristic is essential to due process of law, would be to deny every quality of the law but its age, and to render it incapable of progress or improvement. It would be to stamp upon our jurisprudence the unchangeableness attributed to the laws of the Medes and Persians.” The Court went on to point out that though due process has its roots in Magna Carta, the latter contained words that changed with meaning as the centuries passed. Ibid. The Court noted that “[t]his flexibility and capacity for growth and adaptation is the peculiar boast and excellence of the common law.” Id., at 530. And it went on to say that the generalities of our Constitution should be treated in the same way: “The Constitution of the United States was ordained, it is true, by descendants of Englishmen, who inherited the traditions of English law and history; but it was made for an undefined and expanding future, and for a people gathered and to be gathered from many nations and of many tongues. . . . There is nothing in Magna Charta, rightly construed as a broad charter of public right and law, which ought to exclude the best ideas of all systems and of every 244 OCTOBER TERM, 1970 Douglas, J., dissenting 402U.S. age; and as it was the characteristic principle of the common law to draw its inspiration from every fountain of justice, we are not to assume that the sources of its supply have been exhausted. On the contrary, we should expect that the new and various experiences of our own situation and system will mould and shape it into new and not less useful forms.” Id., at 530-531. The Court pointed out that in England Magna Carta served merely as a restraint on the executive and as a guide to the House of Commons, the keeper of the Constitution. In this Nation, however, the Constitution serves a different function. “It necessarily happened, therefore, that as these broad and general maxims of liberty and justice held in our system a different place and performed a different function from their position and office in English constitutional history and law, they would receive and justify a corresponding and more comprehensive interpretation. Applied in England only as guards against executive usurpation and tyranny, here they have become bulwarks also against arbitrary legislation; but, in that application, as it would be incongruous to measure and restrict them by the ancient customary English law, they must be held to guarantee not particular forms of procedure, but the very substance of individual rights to life, liberty, and property.” Id., at 532. In more recent times the issue was forcefully stated by Mr. Justice Black in Chambers n. Florida, 309 U. S. 227, 236-237: “Tyrannical governments had immemorially utilized dictatorial criminal procedure and punishment to make scapegoats of the weak, or of helpless political, religious, or racial minorities and those who differed, McGAUTHA v. CALIFORNIA 245 183 Douglas, J., dissenting who would not conform and who resisted tyranny. . . . [A] liberty loving people won the principle that criminal punishments could not be inflicted save for that which proper legislative action had already by ‘the law of the land’ forbidden when done. But even more was needed. From the popular hatred and abhorrence of illegal confinement, torture and extortion of confessions of violations of the ‘law of the land’ evolved the fundamental idea that no man’s life, liberty or property be forfeited as criminal punishment for violation of that law until there had been a charge fairly made and fairly tried in a public tribunal free of prejudice, passion, excitement, and tyrannical power. Thus, as assurance against ancient evils, our country, in order to preserve ‘the blessings of liberty,’ wrote into its basic law the requirement, among others, that the forfeiture of the lives, liberties or property of people accused of crime can only follow if procedural safeguards of due process have been obeyed.” That is all that is involved in this case. It is a mystery how in this day and age a unitary trial that requires an accused to give up one constitutional guarantee to save another constitutional guarantee can be brought within the rubric of procedural due process. It can be done only by a tour de force by a majority that stops the growth and evolution of procedural due process at a wholly arbitrary line or harkens to the passions of men. What a great regression it is when the end result is to approve a procedure that makes the killing of people charged with crime turn on the whim or caprice of one man or of 12! By standards of a fair trial, the resolution of the question of punishment requires rules and procedures different from those pertaining to guilt. Mr. Justice 246 OCTOBER TERM, 1970 Douglas, J., dissenting 402U.S. Butler, speaking for the Court in Pennsylvania v. Ashe, 302 U. S. 51, 55, said: “For the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender. His past may be taken to indicate his present purposes and tendencies and significantly to suggest the period of restraint and the kind of discipline that ought to be imposed upon him.” Justice17—in the sense of procedural due process—is denied where a State makes inadmissible evidence designed to educate the jury on the character and propensities of the accused. Ohio does just that. We noted in Williams v. New York, 337 U. S. 241, 249-252, that the States have leeway in making available to judges probation reports “to guide them in the intelligent imposition of sentences” without submitting those reports to open court testimony with cross-examination. We said, “The due process clause should not be treated as a device for freezing the evidential procedure of sentencing in the mold of trial procedure.” Id., at 251. But so far as I can ascertain we never have intimated that a State can, consistently with procedural due process, close the door to evidence relevant to the “intelligent imposition of sentences” either by 17 It is commonly overlooked that justice is one of the goals of our people as expressed in the Preamble of the Constitution: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” McGAUTHA v. CALIFORNIA 247 183 Douglas, J., dissenting judges or by juries. Cf. Specht v. Patterson, supra, at 608-609. It is indeed too late to say that, absent a constitutional amendment, procedural due process has no applicability to the determination of the sentence which is imposed. In Townsend v. Burke, supra, at 741, we held a state sentence imposed “on the basis of assumptions” concerning the defendant’s criminal record “which were materially untrue” was “inconsistent with due process of law” whether the result was caused by “carelessness or design.” A fortiori it would seem to follow that a procedure, which is designed to bar an opportunity to present evidence showing why “mercy” should be extended to an accused in a death case, lacks that fairness which is implicit in due process. The unitary trial is certainly not “mercy” oriented. That is, however, not its defect. It has a constitutional infirmity because it is not neutral on the awesome issue of capital punishment. The rules are stacked in favor of death. It is one thing if the legislature decides that the death penalty attaches to defined crimes. It is quite another to leave to judge or jury the discretion to sentence an accused to death or to show mercy under procedures that make the trial death oriented. Then the law becomes a mere pretense, lacking the procedural integrity that would likely result in a fair resolution of the issues. In Ohio, the deficiency in the procedure is compounded by the unreviewability of the failure to grant mercy.18 We stated in Witherspoon n. Illinois, 391 U. S. 510, 521, that “a State may not entrust the determination of whether a man should live or die to a tribunal organized to return a verdict of death.” In that case veniremen had been excluded from a jury for cause “simply because 18 Hoppe v. State, 29 Ohio App. 467, 163 N. E. 715. 248 OCTOBER TERM, 1970 Brennan, J., dissenting 402 U. S. they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” Id., at 522. We concluded that no defendant “can constitutionally be put to death at the hands of a tribunal so selected.” Id., at 522-523. The tribunal selected by Ohio to choose between death and life imprisoment in first-degree murder cases is not palpably “organized to return a verdict of death” in the Witherspoon sense. But the rules governing and restricting its administration of the unitary trial system, place the weights on the side of man’s sadistic drive. The exclusion of evidence relevant to the issue of “mercy” is conspicuous proof of that lopsided procedure; and the hazards to an accused resulting from mingling the issues of guilt, insanity, and punishment in one unitary proceeding are multiplied. Whether this procedure would satisfy due process when dealing with lesser offenses may be debated. But with all deference I see no grounds for debate where the stake is life itself. I would reverse this judgment of conviction. Mr. Justice Brennan, with whom Mr. Justice Douglas and Mr. Justice Marshall join, dissenting. These cases test the viability of principles whose roots draw strength from the very core of the Due Process Clause. The question that petitioners present for our decision is whether the rule of law, basic to our society and binding upon the States by virtue of the Due Process Clause of the Fourteenth Amendment, is fundamentally inconsistent with capital sentencing procedures that are purposely constructed to allow the maximum possible variation from one case to the next, and provide no mechanism to prevent that consciously maximized variation from reflecting merely random or arbitrary choice. The Court does not, however, come to grips with that fundamental question. Instead, the Court misappre- McGAUTHA v. CALIFORNIA 249 183 Brennan, J., dissenting hends petitioners’ argument and deals with the cases as if petitioners contend that due process requires capital sentencing to be carried out under predetermined standards so precise as to be capable of purely mechanical application, entirely eliminating any vestiges of flexibility or discretion in their use. This misapprehended question is then treated in the context of the Court’s assumption that the legislatures of Ohio and California are incompetent to express with clarity the bases upon which they have determined that some persons guilty of some crimes should be killed, while others should live—an assumption that, significantly, finds no support in the arguments made by those States in these cases. With the issue so polarized, the Court is led to conclude that the rule of law and the power of the States to kill are in irreconcilable conflict. This conflict the Court resolves in favor of the States’ power to kill. In my view the Court errs at all points from its premises to its conclusions. Unlike the Court, I do not believe that the legislatures of the 50 States are so devoid of wisdom and the power of rational thought that they are unable to face the problem of capital punishment directly, and to determine for themselves the criteria under which convicted capital felons should be chosen to live or die. We are thus not, in my view, faced by the dilemma perceived by the Court, for cases in this Court have for almost a century and a half approved a multiplicity of imaginative procedures designed by the state and federal legislatures to assure evenhanded treatment and ultimate legislative control regarding matters that the legislatures have deemed either too complex or otherwise inapposite for regulation under predetermined rules capable of automatic application in every case. Finally, even if I shared the Court’s view that the rule of law and the power of the States to kill are in irreconcilable 250 OCTOBER TERM, 1970 Brennan, J., dissenting 402U.S. conflict, I would have no hesitation in concluding that the rule of law must prevail. Except where it incorporates specific substantive constitutional guarantees against state infringement, the Due Process Clause of the Fourteenth Amendment does not limit the power of the States to choose among competing social and economic theories in the ordering of life within their respective jurisdictions. But it does require that, if state power is to be exerted, these choices must be made by a responsible organ of state government. For if they are not, the very best that may be hoped for is that state power will be exercised, not upon the basis of any social choice made by the people of the State, but instead merely on the basis of social choices made at the whim of the particular state official wielding the power. If there is no effective supervision of this process to insure consistency of decision, it can amount to nothing more than government by whim. But ours has been “termed a government of laws, and not of men.” Marbury v. Madison, 1 Cranch 137, 163 (1803). Government by whim is the very antithesis of due process. It is not a mere historical accident that “[t]he history of liberty has largely been the history of observance of procedural safeguards.” McNabb n. United States, 318 U. S. 332, 347 (1943) (Frankfurter, J.). The range of permissible state choice among competing social and economic theories is so broad that almost any arbitrary or otherwise impermissible discrimination among individuals may mask itself as nothing more than such a permissible exercise of choice unless procedures are devised which adequately insure that the relevant choice is actually made. Such procedures may take a variety of forms. The decisionmaker may be provided with a set of guidelines to apply in rendering judgment. His decision may be required to rest upon the presence or absence McGAUTHA v. CALIFORNIA 251 183 Brennan, J., dissenting of specific factors. If the legislature concludes that the range of variation to be dealt with precludes adequate treatment under inflexible, predetermined standards it may adopt more imaginative procedures. The specificity of standards may be relaxed, directing the decisionmaker’s attention to the basic policy determinations underlying the statute without binding his action with regard to matters of important but unforeseen detail. He may be instructed to consider a list of factors—either illustrative or exhaustive—intended to illuminate the question presented without setting a fixed balance. The process may draw upon the genius of the common law, and direct itself toward the refinement of understanding through case-by-case development. In such cases decision may be left almost entirely in the hands of the body to which it is delegated, with ultimate legislative supervision on questions of basic policy afforded by requiring the decisionmakers to explain their actions, and evenhanded treatment enhanced by requiring disputed factual issues to be resolved and providing for some form of subsequent review. Creative legislatures may devise yet other procedures. Depending upon the nature and importance of the issues to be decided, the kind of tribunal rendering judgment, the number and frequency of decisions to be made, and the number of separate tribunals involved in the process, these techniques may be applied singly or in combination. It is of critical importance in the present cases to emphasize that we are not called upon to determine the adequacy or inadequacy of any particular legislative procedure designed to give rationality to the capital sentencing process. For the plain fact is that the legislatures of California and Ohio, whence come these cases, have sought no solution at all. We are not presented with a State’s attempt to provide standards, attacked as 419-882 0 - 72 - 21 252 OCTOBER TERM, 1970 Brennan, J., dissenting 402 U. S. impermissible or inadequate. We are not presented with a legislative attempt to draw wisdom from experience through a process looking toward growth in understanding through the accumulation of a variety of experiences. We are not presented with the slightest attempt to bring the power of reason to bear on the considerations relevant to capital sentencing. We are faced with nothing more than stark legislative abdication. Not once in the history of this Court, until today, have we sustained against a due process challenge such an unguided, unbridled, unreviewable exercise of naked power. Almost a century ago, we found an almost identical California procedure constitutionally inadequate to license a laundry. Yick Wo v. Hopkins, 118 U. S. 356, 366-367, 369-370 (1886). Today we hold it adequate to license a life. I would reverse petitioners’ sentences of death. I “Our scheme of ordered liberty is based, like the common law, on enlightened and uniformly applied legal principle, not on ad hoc notions of what is right or wrong in a particular case.” J. Harlan, Thoughts at a Dedication : Keeping the Judicial Function in Balance, in The Evolution of a Judicial Philosophy 289, 291-292 (D. Shapiro ed., 1969).1 The dangers inherent in any grant of governmental power without procedural safeguards upon its exercise were known to English law long long before the Constitution was established. See, e. g., 8 How. St. Tr. 55-58, n. The principle that our Government shall be of laws and not of men is so strongly woven into our constitutional fabric that it has found recognition in not just one but several provisions of the 1 My Brother Harlan continues: “The stability and flexibility that our constitutional system at once possesses is largely due to our having carried over into constitutional adjudication the commonlaw approach to legal development.” Id., at 292. McGAUTHA v. CALIFORNIA 253 183 Brennan, J., dissenting Constitution.2 And this principle has been central to the decisions of this Court giving content to the Due Process Clause.3 As we said in Hurtado v. California, 110 U. S. 516, 535-536 (1884): “[I]t is not to be supposed that . . . the amendment prescribing due process of law is too vague and 2 The prohibition against bills of attainder, Art. I, § 9, cl. 3 (federal), § 10, cl. 1 (state), protects individuals or groups against being singled out for legislative instead of judicial trial. See United States v. Brown, 381 U. S. 437, 442-446 (1965); id., at 462 (dissent); Cummings v. Missouri, 4 Wall. 277, 322-325 (1867). The prohibition against ex post facto laws, joined in the Constitution to the ban on bills of attainder, prevents legislatures from achieving similar ends by indirection, either by making criminal acts that were innocent when performed, Cummings v. Missouri, supra, at 325-326; Calder v. Bull, 3 Dall. 386, 390 (1798) (Chase, J.), or by increasing the punishment imposed upon admittedly criminal acts that have already been committed. In re Medley, 134 U. S. 160, 166-173 (1890); Calder v. Bull, supra. The constitutional limitation of federal legislative power to the Congress has been applied to require that fundamental policy choices be made, not by private individuals— or even public officers—acting pursuant to an unguided and unsupervised delegation of legislative authority, but by the Nation as a whole acting through Congress. See, e. g., FCC v. RCA Communications, Inc., 346 U. S. 86, 90 (1953); Lichter v. United States, 334 U. S. 742, 766, 769-773, 778 (1948); Schechter Poultry Corp. n. United States, 295 U. S. 495, 529-530, 537-539 (1935); Panama Refining Co. v. Ryan, 293 U. S. 388, 414-430 (1935); id., at 434, 435 (Cardozo, J., dissenting). Finally, the requirement of evenhanded treatment imposed upon the States and their agents by the Equal Protection Clause, see Cooper v. Aaron, 358 U. S. 1, 16-17 (1958); McFarland v. American Sugar Co., 241 U. S. 79, 86-87 (1916) (Holmes, J.), has been applied to the Federal Government as well through the Fifth Amendment’s Due Process Clause. E. g., Shapiro v. Thompson, 394 U. S. 618, 641-642 (1969); Schneider n. Rusk, 377 U. S. 163, 168-169 (1964); Bolling v. Sharpe, 347 U. S. 497 (1954). 3 Thus, although recognizing that the explicit constitutional prohibition against ex post facto laws applies only to legislative action, we held in Bouie v. City of Columbia, 378 U. S. 347, 353-354 (1964), 254 OCTOBER TERM, 1970 Brennan, J., dissenting 402 U. S. indefinite to operate as a practical restraint. . . . Law is something more than mere will exerted as an act of power. It must be not a special rule for a particular person or a particular case, but. . . ‘the general law . . .’ so ‘that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society/ and thus excluding, as not due process of law, acts of attainder, bills of pains and penalties, acts of confiscation . . . and other similar special, partial and arbitrary exertions of power under the forms of legislation. Arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude.” The principal function of the Due Process Clause is to insure that state power is exercised only pursuant to procedures adequate to vindicate individual rights.4 that due process was violated by like action on the part of a state court. Significantly, the dissenting Justices in Bouie took issue only with the Court’s conclusion that the interpretation of the statute in question by the State Supreme Court was not foreshadowed by prior state law. See id., at 366-367. Similarly, although we have held the States not bound, as is the Federal Government, by the doctrine of separation of powers, Dreyer v. Illinois, 187 U. S. 71, 83-84 (1902); Sweezy v. New Hampshire, 354 U. S. 234, 255 (1957), we have nevertheless held that state delegation of legislative authority without guideline or check violates due process. Seattle Trust Co. v. Roberge, 278 U. S. 116, 120-122 (1928); Eubank v. Richmond, 226 U. S. 137, 143-144 (1912); cf. Browning v. Hooper, 269 U. S. 396, 405-406 (1926). See the discussion infra, at 271-273. Finally, in Hurtado v. California, 110 U. S. 516, 535-536 (1884), quoted in the text immediately above, we noted as an example of a clear violation of due process the passage by a legislature of a bill of attainder. Cf. n. 2, supra, and cases cited. 4 We have, of course, applied specific substantive protections of the Bill of Rights to limit state power under the Due Process Clause. E. g., Near v. Minnesota, 283 U. S. 697 (1931) (First Amendment); McGAUTHA v. CALIFORNIA 255 183 Brennan, J., dissenting While we have, on rare occasions, held that due process requires specific procedural devices not explicitly commanded by the Bill of Rights,5 we have generally either indicated one acceptable procedure and left the States free to devise others,6 or else merely ruled upon the validity or invalidity of a particular procedure without attempting to limit or even guide state choice of procedural mechanisms beyond stating the obvious proposition that inadequate mechanisms may not be employed.7 Several principles, however, have until today been consistently employed to guide determinations of the adequacy of any given state procedure. “When the Government exacts . . . much, the importance of fair, even- Robinson n. California, 370 U. S. 660 (1962) (Eighth Amendment); Griswold v. Connecticut, 381 U. S. 479, 481-486 (1965) (First, Third, Fourth, Fifth, and Ninth Amendments). Conversely, we have held at least some aspects of the Fourteenth Amendment’s Equal Protection Clause applicable to limit federal power under the Due Process Clause of the Fifth Amendment. See Shapiro v. Thompson, 394 U. S., at 641-642, and cases cited. Finally, we have, of course, held that due process forbids a State from punishing the assertion of federally guaranteed rights whether procedural or otherwise. North Carolina n. Pearce, 395 U. S. 711, 723-725 (1969); Spevack v. Klein, 385 U. S. 511 (1967); cf. Ex parte Hull, 312 U. S. 546 (1941). But we have long rejected the view, typified by, e. g., Adkins v. Children’s Hospital, 261 U. S. 525 (1923), overruled in West Coast Hotel Co. n. Parrish, 300 U. S. 379 (1937), that the Due Process Clause vests judges with a roving commission to impose their own notions of wise social policy upon the States. Ferguson v. Skrupa, 372 U. S. 726, 730-731 (1963). 5E. g., North Carolina v. Pearce, supra, at 725-726 (1969); Boykin v. Alabama, 395 U. S. 238, 242-244 (1969); see also Goldberg v. Kelly, 397 U. S. 254, 269-271 (1970). 6E. g., United States v. Wade, 388 U. S. 218, 236-239 (1967); Miranda v. Arizona, 384 U. S. 436, 467-473 (1966); Jackson v. Denno, 378 U. S. 368, 377-391 (1964). 7 E. g., Johnson v. Avery, 393 U. S. 483, 488-490 (1969); In re Murchison, 349 U. S. 133 (1955); Seattle Trust Co. n. Roberge, supra. 256 OCTOBER TERM, 1970 Brennan, J., dissenting 402 U. S. handed, and uniform decisionmaking is obviously intensified.” Gillette v. United States, 401 U. S. 437, 455 (1971). Procedures adequate to determine a welfare claim may not suffice to try a felony charge. Compare Goldberg v. Kelly, 397 U. S. 254, 270-271 (1970), with Gideon n. Wainwright, 372 U. S. 335 (1963). Second, even where the only rights to be adjudicated are those created and protected by state law, due process requires that state procedures be adequate to allow all those concerned a fair hearing of their state-law claims. Boddie n. Connecticut, 401 U. S. 371 (1971); Covey v. Town of Somers, 351 U. S. 141 (1956); Mullane v. Central Hanover Trust Co., 339 U. S. 306 (1950). Third, where federally protected rights are involved, due process commands not only that state procedure be adequate to assure a fair hearing of federal claims, In re Gault, 387 U. S. 1 (1967), but also that it provide adequate opportunity for review of those federal claims where such review is otherwise available. Goldberg v. Kelly, 397 U. S., at 271; Boykin v. Alabama, 395 U. S. 238, 242-244 (1969); Jackson v. Denno, 378 U. S. 368, 387 (1964); cf. North Carolina v. Pearce, 395 U. S. 711, 725-726 (1969) ; In re Murchison, 349 U. S. 133, 136 (1955). Finally, and closely related to the previous point, due process requires that procedures for the exercise of state power be structured in such a way that, ultimately at least, fundamental choices among competing state policies are resolved by a responsible organ of state government. Louisiana v. United States, 380 U. S. 145,152-153 (1965) (Black, J.) ; FCC v. RCA Communications, Inc., 346 U. S. 86, 90 (1953); Niemotko v. Maryland, 340 U. S. 268 (1951); United States v. Rock Royal Co-op, 307 U. S. 533, 574, 575 (1939); Currin v. Wallace, 306 U. S. 1, 15 (1939); Lovell v. Griffin, 303 U. S. 444 (1938); Browning v. Hooper, 269 U. S. 396, 405-406 (1926); McKinley n. United States, 249 U. S. 397, 399 (1919); Eubank v. McGAUTHA v. CALIFORNIA 257 183 Brennan, J., dissenting Richmond, 226 U. S. 137, 143-144 (1912); Yick Wo v. Hopkins, 118 U. S., at 366-367, 369-370. The damage that today’s holding, if followed, would do to our constitutional fabric can only be understood from a closer examination of our cases than is contained in the Court’s opinion. I therefore turn to those cases. A Analysis may usefully begin with this Court’s cases applying what has come to be known as the “void-for-vagueness” doctrine. It is sometimes suggested that in holding a statute void for vagueness, this Court is merely applying one of two separate doctrines: first, that a criminal statute must give fair notice of the conduct that it forbids, e. g., Lanzetta v. New Jersey, 306 U. S. 451 (1939); Connally v. General Construction Co., 269 U. S. 385, 391 (1926); and second, that a statute may not constitutionally be enforced if it indiscriminately sweeps within its ambit conduct that may not be the subject of criminal sanctions as well as conduct that may. E. g., Baggett v. Bullitt, 377 U. S. 360 (1964); Dombrowski n. Pfister, 380 U. S. 479, 492-496 (1965). To this is often added the observation that both doctrines apply with particular vigor to state regulation of conduct at or near the boundaries of the First Amendment. See United States v. National Dairy Corp., 372 U. S. 29, 36 (1963); Smith v. California, 361 U. S. 147, 150-152 (1959).8 But unless it be assumed that our decisions in such matters have shown an almost unparalleled inconsistency, these factors may not be taken as more than a partial explanation of the doctrine. 8 For analysis in substantially these terms, see, e. g., Collings, Unconstitutional Uncertainty—An Appraisal, 40 Cornell L. Q. 195 (1955); Freund, The Supreme Court and Civil Liberties, 4 Vand. L. Rev. 533 (1951); Comment, 53 Mich. L. Rev. 264 (1954). 258 OCTOBER TERM, 1970 Brennan, J., dissenting 402 U. S. To begin with, we have never treated claims of unconstitutional statutory vagueness in terms of the statute as written or as construed prior to the time of the conduct in question. Instead, we have invariably dealt with the statute as glossed by the courts below at the time of decision here. E. g., Giaccio v. Pennsylvania, 382 U. S. 399 (1966); Winters v. New York, 333 U. S. 507 (1948) ; Cox v. New Hampshire, 312 U. S. 569 (1941). In Musser n. Utah, 333 U. S. 95 (1948), we even remanded a criminal case to the Utah Supreme Court for a construction of the statute so that its possible vagueness could be analyzed. In dealing with vagueness attacks on federal statutes, we have not hesitated to construe the statute to avoid vagueness problems and, having so construed it, apply it to the case at hand. See United States n. Vuitch, ante, p. 62 (1971); Dennis v. United States, 341 U. S. 494, 502 (1951); Kay v. United States, 303 U. S. 1 (1938). If the vagueness doctrine were fundamentally premised upon a concept of fair notice, such treatment would simply make no sense: a citizen cannot be expected to foresee subsequent construction of a statute by this or any other court. See Freund, The Supreme Court and Civil Liberties, 4 Vand. L. Rev. 533, 540-542 (1951). But if, as I believe, the doctrine of vagueness is premised upon the fundamental notion that due process requires governments to make explicit their choices among competing social policies, see infra, at 259-265, the inconsistency between theory and practice disappears. Of course such a choice, once made, is not irrevocable: statutes may be amended and statutory construction overruled. Nevertheless, an explicit state choice among possible statutory constructions substantially reduces the likelihood that subsequent convictions under the statute will be based on impermissible McGAUTHA v. CALIFORNIA 259 183 Brennan, J., dissenting factors.9 It also renders more effective the available mechanisms for judicial review, by increasing the likelihood that impermissible factors, if relied upon, will be discernible from the record. Thus in Thompson n. Louisville, 362 U. S. 199 (1960), we were faced with the application of a specific vagrancy statute to conduct—dancing in a public bar—that there is no reason to believe could not have been constitutionally prohibited had the State chosen to do so. We were, however, able to examine the record and conclude that there was in fact no evidence that could support a conviction under the statute. Cf. Bachellar v. Maryland, 397 U. S. 564 (1970) (impossible to determine whether verdict rested upon permissible or impermissible grounds). Second, in dealing with statutes that are unconstitutionally overbroad, we have consistently indicated that “once an acceptable limiting construction is obtained, [such a statute] may be applied to conduct occurring prior to the construction, provided such application affords fair warning to the defendants.” Dombrowski v. Pfister, 380 U. S., at 491 n. 7 (citations omitted);10 see, e. g., Poulos v. New Hampshire, 345 U. S. 395 (1953). That is, an unconstitutionally overbroad statute may not be enforced at all until an acceptable construction has been obtained, e. g., Thornhill v. Alabama, 9 A vague statute may be applied one way to one person and a different way to another. Aside from the fact that this in itself would constitute a denial of equal protection, Niemotko v. Maryland, 340 U. S. 268, 272 (1951), cf. H. Black, A Constitutional Faith 31-32 (1969), the reasons underlying different applications to different individuals may in themselves be constitutionally impermissible. Cf. Schacht v. United States, 398 U. S. 58 (1970) (applicability of statute determined by political views); Yick Wo v. Hopkins, 118 U. S. 356 (1886) (application of statute on racial basis). 10 Younger y. Harris, 401 U. S. 37 (1971), and its companions cast no shadow upon the sentence quoted. 260 OCTOBER TERM, 1970 Brennan, J., dissenting 402 U. S. 310 U. S. 88 (1940); but once such a construction has been made, the statute as construed may be applied to conduct occurring prior to the limiting construction. If notice and overbreadth were the only components of the vagueness doctrine, this treatment would, once again, be inexplicable. So far as notice is concerned, one who has engaged in certain conduct prior to the limiting construction of an overbroad statute has obviously not received from that construction any warning that would have enabled him to keep his conduct within the bounds of law. Similarly, if adequate notice has in fact been given by an overbroad statute that certain conduct was criminally punishable, it is hard to see how the doctrine of overbreadth is furthered by forbidding the State, on the one hand, to punish that conduct so long as an acceptable limiting construction has not been obtained, but permitting it to punish the same, prior conduct once the statute has been acceptably construed. Once again, however, our actions are not at all inexplicable if examined in the terms articulated here. Once an acceptable limiting construction has in fact been obtained, there is by that very fact an assurance that a responsible organ of state power has made an explicit choice among possible alternative policies: for it should not be forgotten that the States possess constitutional power to make criminal much conduct that they may not wish to forbid, or may even desire to encourage. If a vague or overbroad statute is applied before it has been acceptably construed, there remains the danger that an individual whose conduct is admittedly clearly within the scope of the statute on its face will be punished for actions which in fact the State does not desire to make generally punishable—conduct which, if engaged in by another person, would not be subject to criminal liability. Shuttlesworth v. Birmingham, 382 U. S. 87, 91-92 (1965). Allowing a vague or overbroad statute to be enforced if, and only if, an acceptable con- McGAUTHA v. CALIFORNIA 261 183 Brennan, J., dissenting struction has been obtained forces the State to make explicit its social choices and prevents discrimination through the application of one policy to one person and another policy to others.11 11A closely related proposition may be derived from a separate line of cases. In Louisiana Power & Light Co. n. City of Thibodaux, 360 U. S. 25 (1959), we upheld abstention by a federal district court in a diversity action from decision whether, under a state statute never construed by the Louisiana courts, cities in the State possessed the power to take local gas and electric companies by eminent domain. The same day, in Allegheny County n. Frank Mashuda Co., 360 U. S. 185 (1959), we upheld the action of another district court in refusing to abstain from decision whether, under state law allowing takings for public but not for private use, Allegheny County possessed the power to take a particular property for a particular use. Are the decisions irreconcilable? As we have often remarked, the basis of diversity jurisdiction is “the supposition that, possibly, the state tribunal [s] might not be impartial between their own citizens and foreigners.” Pease n. Peck, 18 How. 595, 599 (1856). The question of state law presented in Thibodaux was a broad one having substantial ramifications beyond the lawsuit at hand. Any prejudice against the out-of-state company involved in that case could have been given effect in state courts only at the cost of a possibly incorrect decision that would have significant adverse effect upon state citizens as well as the particular outsider involved in the suit. In Mashuda, on the other hand, decision one way or another would have little or no effect beyond the case in question: any possible state bias against out-of-Staters could be given full effect without hampering any significant state policy. Taken together, then, Thibodaux and Mashuda may stand for the proposition that the possibility of bias that stands at the foundation of federal diversity jurisdiction may nevertheless be discounted if that bias could be given effect only through a decision that will have inevitable repercussions on a matter of fundamental state policy. Put another way, Thibodaux and Mashuda may serve to illustrate in another context the principle that necessarily underlies many of this Court’s “vagueness” decisions: the due process requirement that States make explicit their choice among competing views on questions of fundamental state policy serves to enforce the requirement of evenhanded treatment that due process commands. 262 OCTOBER TERM, 1970 Brennan, J., dissenting 402 U. S. Particularly relevant to the present case is our decision in Giaccio v. Pennsylvania, 382 U. S. 399 (1966). That case involved a statute whereby Pennsylvania attempted to mitigate the harshness of its common-law rule requiring criminal defendants to pay the costs of prosecution in all cases12 by committing the matter to the discretion of the jury in cases where the defendant was found not guilty.13 Two members of this Court, concurring in the result, would have held that due process forbade the imposition of costs upon an acquitted defendant. 382 U. S., at 405. We refused, however, to base our decision on that ground. In an opinion by my Brother Black, we said: “We agree with the trial court . . . that the 1860 Act is invalid under the Due Process Clause because of vagueness and the absence of any standards sufficient to enable defendants to protect themselves against arbitrary and discriminatory impositions of costs. “. . . It is established that a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case. This 1860 Pennsylvania Act contains no standards at all ... . Certainly one of the basic purposes of the Due Process Clause has always been to protect a person against having the 12 See Brief for Appellee in Giaccio, No. 47, O. T. 1965, pp. 8-10; Commonwealth v. Tilghman, 4 S. & R. 127 (Pa. Sup. Ct. 1818); Act of March 20, 1797, 3 Smith’s Laws 281 (Pa.). 13 Some standards were provided to guide the jury’s decision. See 382 U. S., at 403-404. See App. 30-32 in Giaccio for the charge given in that case. McGAUTHA v. CALIFORNIA 263 183 Brennan, J., dissenting Government impose burdens upon him except in accordance with the valid laws of the land. Implicit in this constitutional safeguard is the premise that the law must be one that carries an understandable meaning with legal standards that courts must enforce. . . . “. . . The State contends that . . . state court interpretations have provided standards and guides that cure the . . . constitutional deficiencies. We do not agree. ... In this case the trial judge instructed the jury that it might place the costs of prosecution on the appellant, though found not guilty of the crime charged, if the jury found that ‘he has been guilty of some misconduct less than the offense which is charged but nevertheless misconduct of some kind as a result of which he should be required to pay some penalty short of conviction [and] . . . his misconduct has given rise to the prosecution.’ “It may possibly be that the trial court’s charge comes nearer to giving a guide to the jury than those that preceded it, but it still falls short of the kind of legal standard due process requires. . . .” 382 U. S., at 402-404 (emphasis added) (citations omitted).14 Several features of Giaccio are especially pertinent in the present context. First, there were no First Amendment implications in either the conduct charged or that in which Giaccio claimed to have engaged: the State’s evidence was to the effect that Giaccio had wantonly discharged a firearm at another, in violation of Pa. Stat. 14 We did in Giaccio say that “we intend to cast no doubt whatever on the constitutionality of the settled practice of many States” prescribing jury sentencing. 382 U. S., at 405 n. 8. Insofar as jury sentencing in general is concerned, Giaccio is by no means necessarily inconsistent with the practice. See infra, at 311. 264 OCTOBER TERM, 1970 Brennan, J., dissenting 402 U. S. Ann., Tit. 18, §4716 (1963), and Giaccio’s defense was that “the firearm he had discharged was a starter pistol which only fired blanks.” 382 U. S., at 400. Second, we were not presented with a defendant who had been convicted for conduct he could not have known was unlawful. Whether or not Giaccio’s actions fell within § 4716, his conduct was unquestionably punishable under other state laws, e. g., Pa. Stat. Ann., Tit. 18, §4406 (1963). Finally, it is worthy of note that in Giaccio two members of this Court explicitly sought to base the result upon the ground that, as a matter of substantive due process, the States were forbidden to impose the costs of prosecution upon an acquitted defendant. 382 U. S., at 405 (concurring opinions of Stewart and Fortas, JJ.). Yet we refused to place decision on any such ground. We held instead, consistently with our prior decisions, that the procedure for determining Giaccio’s punishment lacked the safeguards against arbitrary action that are required by due process of law.15 151 find little short of bewildering the Court’s treatment of Giaccio. The Court appears to read that case as standing for the proposition that due process forbids a jury to impose punishment upon defendants for conduct which, “although not amounting to the crime with which they were charged, was nevertheless found to be 'reprehensible.’ ” Ante, at 207 n. 18. Of course, the procedures under review permit precisely the same action, without providing even the minimal safeguards found insufficient in Giaccio. See Part III, infra. If there is a difference between Giaccio and the present cases, it is that the procedures now under review apply, not to acquitted defendants, but only to those who have already been found guilty of some crime. But the Court elsewhere in its opinion has concluded that the “relevant differences between sentencing and determination of guilt or innocence are not so great as to call for a difference in constitutional result.” Ante, at 217. I think it is fair to say that nowhere in its treatment of Giaccio does the Court even attempt to explain why the unspecified “relevant differences” that it finds do call for “a difference in constitutional result.” McGAUTHA v. CALIFORNIA 265 183 Brennan, J., dissenting Our decisions applying the Due Process Clause through the doctrine of unconstitutional vagueness, then, lead to the following conclusions. First, the protection against arbitrary and discriminatory action embodied in the Due Process Clause requires that state power be exerted only through mechanisms that assure that fundamental choices among competing state policies be explicitly made by some responsible organ of the State.16 Second, the cases suggest that due process requires as well that state procedures for decision of questions that may have adverse consequences for an individual neither leave room for the deprivation sub silentio of the individual’s federally protected rights nor unduly frustrate the federal judicial review provided for the vindication of those rights. This second point is explicitly made in a not unrelated line of cases, to which I now turn. 16 This same point may be made another way. We have consistently held that the Due Process Clause protects individuals against arbitrary governmental action. Despite sharp conflict among the members of this Court over the standards to be applied in determining whether governmental action is in fact “arbitrary,” see, e. g., Griswold v. Connecticut, 381 U. S. 479, 499 (1965) (Harlan, J., concurring in judgment); id., at 507 (Black, J., dissenting), all members of this Court have agreed that the phrase has some content. E. g., Giaccio n. Pennsylvania, 382 U. S., at 402 (Black, J.) (due process requires defendants to be protected “against arbitrary and discriminatory” punishment). Our vagueness cases suggest that state action is arbitrary and therefore violative of due process not only if it is (a) based upon distinctions which the State is specifically forbidden to make, e. g., Loving v. Virginia, 388 U. S. 1, 12 (1967); or (b) designed to, or has the effect of, punishing an individual for the assertion of federally protected rights, e. g., North Carolina v. Pearce, 395 U. S. 711, 723-725 (1969); id., at 739 (Black, J.), but also if it is (c) based upon a permissible state policy choice which could be, but has never been, explicitly made by any responsible organ of the State. 266 OCTOBER TERM, 1970 Brennan, J., dissenting 402 U. S. B Whether through its own force or only through the application of other, specific constitutional guarantees, the Due Process Clause of the Fourteenth Amendment protects individuals from a narrow class of impermissible exertions of power by the States. As applied to the procedures whereby admittedly permissible state power is exerted, however, the Due Process Clause has consistently been given a wider scope. “[O]ur system of law has always endeavored to prevent even the probability of unfairness.” In re Murchison, 349 U. S. 133, 136 (1955). Thus, we have never suggested that every judge who has been the target of contemptuous, personal attacks by litigants or their attorneys is incapable of rendering a fair decision on the merits of a contempt charge against such persons; but we have consistently held that, excepting only cases of urgent necessity, due process requires that contempt charges in such cases be heard by a different judge. Mayberry v. Pennsylvania, 400 U. S. 455 (1971); In re Murchison, supra. And in Tumey n. Ohio, 273 U. S. 510 (1927), we did not suggest that every judgment rendered by an official who had a financial stake in the outcome was ipso facto the product of bias. Proceeding from a directly contrary assumption,17 we nevertheless held that due process was violated by any “procedure which would offer a possible temptation to the average man . . . not to hold the balance nice, clear and true between the State and the accused.” Id., at 532. In Jackson v. Denno, 378 U. S. 368 (1964), one of the two grounds on which we struck down a New York procedure that required a jury to determine the 17 “There are doubtless mayors who would not allow such a consideration as $12 costs in each case to affect their judgment in it . . . .” 273 U. S., at 532. McGAUTHA v. CALIFORNIA 267 183 Brennan, J., dissenting voluntariness of a confession at the same time that it determined his guilt of the crime charged was that the procedure created an impermissible—and virtually unre-viewable—risk that the jury would not be able to disregard a confession that it felt was both involuntary and true. Id., at 388-391. Similarly, in a long line of cases beginning with Lovell v. Griffin, 303 U. S. 444 (1938), we have repeatedly held that due process is violated by state procedures for the administration of permit systems regulating the public exercise of First Amendment rights if the procedure allows a permit to be denied for impermissible reasons, whether or not an individual can actually demonstrate that he was denied a permit for activity which the State could not lawfully prohibit. And only recently, in Louisiana v. United States, 380 U. S. 145 (1965), we were faced with a state procedure for determining voting qualifications that, in the State’s own words, vested “discretion in the registrars of voters to determine the qualifications of applicants for registration,” but imposed “no definite and objective standards upon registrars of voters for the administration of the interpretation test.” Id., at 152. After quoting, with apparent approval, an 1898 state criticism of a similar procedure on the ground that the “arbitrary power, lodged with the registration officer, practically places his decision beyond the pale of judicial review,” ibid., we noted and accepted the District Court’s finding that “Louisiana . . . provides no effective method whereby arbitrary and capricious action by registrars of voters may be prevented or redressed.” Ibid. We continued: “The applicant facing a registrar in Louisiana thus has been compelled to leave his voting fate to that official’s uncontrolled power to determine whether the applicant’s understanding of the Federal or State Constitution is satisfactory. . . . The cherished 419-882 0 - 72 - 22 268 OCTOBER TERM, 1970 Brennan, J., dissenting 402U.S. right of people in a country like ours to vote cannot be obliterated by the use of laws like this, which leave the voting fate of a citizen to the passing whim or impulse of an individual registrar. Many of our cases have pointed out the invalidity of laws so completely devoid of standards and restraints.” 380 U. S., at 152-153. On that basis we held the Louisiana procedure for determining the qualifications of prospective voters to be a denial of due process. Ibid.13 Diverse as they are, these cases rest upon common ground. They all stand ineluctably for the proposition that due process requires more of the States than that they not exert state power in impermissible ways. Specifically, the rule of these cases is that state procedures are inadequate under the Due Process Clause unless they are designed to control arbitrary action and also to make meaningful the otherwise available mechanism for judicial review. We have elsewhere made this last point explicit. In Specht v. Patterson, 386 U. S. 605 (1967), we held that due process in commitment proceedings, “whether denominated civil or criminal,” id., at 608, requires “findings adequate to make meaningful any appeal that is allowed.” Id., at 610; see Garner v. Louisiana, 368 U. S. 157,173 (1961). And in Jackson v. Denno, supra, the alternative ground on which we struck down a New York procedure for determining the voluntariness of a confession by submitting that question to the jury at the same time as the question of guilt was that the “admixture of reliability and voluntariness in the considerations of the jury would itself entitle a defendant to further proceedings in any case in which the essential 18 We held, as an alternative ground, that the Louisiana procedure as applied had violated the Fifteenth Amendment. 380 U. -S., at 152-153. McGAUTHA v. CALIFORNIA 269 183 Brennan, J., dissenting facts are disputed, for we cannot determine how the jury resolved these issues and will not assume that they were reliably and properly resolved against the accused.” 378 U. S., at 387 (emphasis added). In other words, due process forbids the States to adopt procedures that would defeat the institution of federal judicial review.19 The depth to which these principles are embedded in the concept of due process is evidenced by the fact that we have, on occasion, applied them not merely to rule that a particular state procedure is or is not permissible under the Due Process Clause, but that a particular, specific procedure is required by due process. We have repeatedly held, for example, that a guilty plea and its inevitably attendant waivers of federally guaranteed rights are valid only if they represent a “voluntary and intelligent choice” on the part of the defendant. North Carolina n. Alford, 400 U. S. 25, 31 (1970). The validity of a guilty plea may be tested on federal habeas corpus, where facts outside the record may be pleaded and proved. Waley v. Johnston, 316 U. S. 101 (1942). While recognizing the existence of such a remedy, we held in Boykin v. Alabama, 395 U. S. 238 (1969), that due process requires a record “adequate for any review that may be later sought,” id., at 244, and does not permit protection of the federally guaranteed rights to be relegated to “collateral proceedings that seek to probe murky memories.” Ibid. Accordingly, we held that due process requires a State, in accepting a plea of guilty, to make a contemporaneous record adequate “to show that [the defendant] had intelligently and knowingly pleaded guilty.” Id., at 241. And only last Term, in Goldberg 19 See also 378 U. S., at 392: “If this case were here upon direct review of Jackson’s conviction, we could not proceed with review on the assumption that these disputes had been resolved in favor of the State for as we have held we are . . . unable to tell how the jury resolved these matters . . . .” 270 OCTOBER TERM, 1970 Brennan, J., dissenting 402 U. S. v. Kelly, 397 U. S. 254 (1970), we held that because a decision on the withdrawal of welfare benefits must “rest solely on the legal rules and evidence adduced at the hearing,” id., at 271, due process requires that the decisionmaker “demonstrate compliance with this elementary requirement” by “stat[ing] the reasons for his determination and indicat[ing] the evidence he relied on.” Ibid. C In my view, the cases discussed above establish beyond peradventure the following propositions. First, due process of law requires the States to protect individuals against the arbitrary exercise of state power by assuring that the fundamental policy choices underlying any exercise of state power are explicitly articulated by some responsible organ of state government. Second, due process of law is denied by state procedural mechanisms that allow for the exercise of arbitrary power without providing any means whereby arbitrary action may be reviewed or corrected. Third, where federally protected rights are involved due process of law is denied by state procedures which render inefficacious the federal judicial machinery that has been established for the vindication of those rights. If there is any way in which these propositions must be qualified, it is only that in some circumstances the impossibility of certain procedures may be sufficient to permit state power to be exercised notwithstanding their absence. Cf. Carroll v. President and Commissioners, 393 U. S. 175, 182, 184—185 (1968). But the judgment that a procedural safeguard otherwise required by the Due Process Clause is impossible of application in particular circumstances is not one to be lightly made. This is all the more so when, as in the present cases, the argument of impossibility is not made by the parties before us, but only by this Court. Before we McGautha v. California 271 183 Brennan, J., dissenting conclude that capital sentencing is inevitably a matter of such complexity that it cannot be carried out in consonance with the fundamental requirements of due process, we should at the very least examine the mechanisms developed in not incomparable situations and previously approved by this Court. Therefore, before examining the specific capital sentencing procedures at issue in these cases in light of the Due Process Clause, I am compelled to discuss both the mechanisms available for the control of arbitrary action and the nature of the capital sentencing process. II A legislature that has determined that the State should kill some but not all of the persons whom it has convicted of certain crimes must inevitably determine how the State is to distinguish those who are to be killed from those who are not. Depending ultimately on the legislature’s notion of wise penological policy, that distinction may be hard or easy to make.20 But capital sentencing is not the only difficult question with which legislatures have ever been faced. At least since Way-man v. Southard, 10 Wheat. 1 (1825), we have recognized that the Constitution does not prohibit Congress from dealing with such questions by delegating to others the responsibility for their determination. It is not my purpose to trace in detail either the sources and scope of the delegation doctrine or the extent to which it is applicable to the States through the Due Process Clause. 20 It is essential to bear in mind that the complexity of capital sentencing determinations is a function of the penological policy applied. A State might conclude, for example, that murderers should be sentenced to death if and only if they had committed more than one such crime. Application of such a criterion to the facts of any particular case would then be relatively simple. 272 OCTOBER TERM, 1970 Brennan, J., dissenting 402 U.S. It is sufficient to state that in my view, whatever the sources of the doctrine,21 its application to the States as a matter of due process22 is merely a reflection of the fundamental principles of due process already discussed: in my Brother Harlan’s words, the delegation doctrine “insures that the fundamental policy decisions in our society will be made not by an appointed official but by the body immediately responsible to the people [and] prevents judicial review from becoming merely an exercise at large by providing the courts with some measure against which to judge the official action that has been challenged.” Arizona v. 21 As applied to the Federal Government, the doctrine appears to have roots both in the constitutional requirement of separation of powers—not, of course, applicable itself to the States, Dreyer v. Illinois, 187 U. S., at 83-84; Sweezy n. New Hampshire, 354 U. S., at 255—and in the Due Process Clause of the Fifth Amendment. See, e. g., Wayman v. Southard, 10 Wheat. 1, 13-14 (1825) (argument of counsel) (due process and separation of powers); Field v. Clark, 143 U. S. 649, 692 (1892) (separation of powers); Carter v. Carter Coal Co., 298 U. S. 238, 310-312 (1936) (due process). The two doctrines are not unrelated: in the words of Mr. Justice Brandeis, “The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power.” Myers v. United States, 272 U. S. 52, 293 (1926) (dissent). 22 At least since Yick Wo v. Hopkins, 118 U. S. 356 (1886), we have indicated that due process places limits on the manner and extent to which a state legislature may delegate to others powers which the legislature might admittedly exercise itself. E. g., Eubank v. Richmond, 226 U. S. 137 (1912); Embree v. Kansas City Road District, 240 U. S. 242 (1916); Browning v. Hooper, 269 U. S. 396 (1926); Cline v. Frink Dairy Co., 274 U. S. 445, 457, 465 (1927); Miller v. Schoene, 276 U. S. 272 (1928); Seattle Trust Co. v. Roberge, 278 U. S. 116 (1928); Louisiana v. United States, 380 U. S. 145 (1965); Giaccio v. Pennsylvania, 382 U. S. 399 (1966). See Jaffe, Law Making by Private Groups, 51 Harv. L. Rev. 201 (1937). McGAUTHA v. CALIFORNIA 273 183 Brennan, J., dissenting California, 373 U. S. 546, 626 (1963) (dissenting in part).23 My intention here is merely to provide an admittedly brief sketch of the several mechanisms that Congress has employed to assure that even with regard to the most complex and intractable problems, delegation by Congress of the power to make law has been subject to controls that limit the possibility of arbitrary action and that assure that Congress retains the responsibility for ultimate decision of fundamental questions of national policy. With these mechanisms in mind, I intend briefly to discuss the considerations relevant to the problem of capital sentencing with an eye to the question whether it may responsibly be said that all of these mechanisms are impossible of application by the States to the capital sentencing process. A At the outset, candor compels recognition that our cases regarding the delegation by Congress of lawmaking power do not always say what they seem to mean. Kenneth Culp Davis has been instrumental in pointing out the “unreality”24 of judicial language appearing to direct attention solely to the presence or absence of statutory “standards” 25 or an “intelligible principle” 26 by which delegated authority may be guided. See generally 1 23 The passage quoted is explicitly an exegesis on the separation of powers. The point here is that, as discussed above, precisely the same functions are performed by the Due Process Clause. For a recent and original analysis to precisely the same effect, see K. Davis, Administrative Law Treatise §§2.00 to 2.00-6 (Supp. 1970). 24 1 K. Davis, Administrative Law Treatise §2.03, at 82 (1958). 23 E. g., Yakus v. United States, 321 U. S. 414, 423-424 (1944). 26 The phrase is Mr. Chief Justice Taft’s, from Hampton H CO 04 OS -^iq co io ^cq.c ft” TjT co” 04” co” C b- IQ Cl CO TH 04 HHCOOOCOCOr-H 04 TH o th 10 1Q 00 xb co C4. ■xt1 CO 04 CO b- b-CO CO TH O IQ -7 CO TH H-^ s *Includes deaths from disease, accidents, etc. 1 s > cd O £ £ 75 CD 75 0 3 o 75 0 cd Q JD ’ft a o S cos nl (1970 ed.). cd QD 3 'S p O .O a m 0 c c cd q j5 § o o a o "o 1 "d I H o ft ft cd 01 g Q O di ► o . a| Ts g M s.a © a .a ** So o U. S. Military Casualties ► s co oc C oc stary of Defense. 0 o o Q c cS QQ a O "S >» 75 01 75 H -2 05 5 2 8 a a o d O 01 'Cg 02 rd -H - o bp *Q -h S in q bB o 75 c E- Revolutionary War (1775-War of 1812 (1812-15)... -a CO Th oc H 1 »> £ Civil War (1861-65) Union Forces a CL c c fe c * X a. e4— S c C £ £ c a 3 CD ■a 0 X oc 7 a £ c -1Q TH 1 co th IQ J. Cl o th IQ '—'Cl a cd h> 75 a Th ® C Viet Nam War (1961-69). Source: Office of Secr< +Rounded. .23 ft co” CO po u cd a CD *5 w o p cd .2 2 55 O T® Q g os ftlQ a Q X 55 ® H § 45 ra q CO o _> o CD 42 a 3 (5 e o UNITED STATES v. ARMOUR & CO. 673 Opinion of the Court UNITED STATES v. ARMOUR & CO. et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS No. 759. Argued April 19, 1971—Decided June 1, 1971 The ownership of the majority of the stock of Armour & Co., a meat-packer, by Greyhound Corp., which has retail food subsidiaries and accordingly engages in business that may be forbidden to Armour by the Meat Packers Consent Decree of 1920, in itself and without any evidentiary showing as to the consequences, does not violate the Decree’s prohibition against Armour’s “directly or indirectly . . . engaging in or carrying on” the forbidden business. Pp. 674-683. Affirmed. Marshall, J., delivered the opinion of the Court, in which Burger, C. J., and Harlan and Stewart, JJ., joined. Douglas, J., filed a dissenting opinion, in which Brennan and White, J J., joined, post, p. 683. Black and Blackmun, JJ., took no part in the consideration or decision of this case. Deputy Solicitor General Springer argued the cause for the United States. With him on the brief were Solicitor General Griswold, Deputy Assistant Attorney General Comegys, and Howard E. Shapiro. Edward L. Foote argued the cause for appellee Greyhound Corp. With him on the brief was Robert J. Bernard. Mr. Justice Marshall delivered the opinion of the Court. Here as in United States v. Armour & Co., 398 U. S. 268, we have been asked to determine if the Meat Packers Consent Decree of 1920, which prohibits Armour & Co. from dealing directly or indirectly in certain specified commodities, prohibits a corporation that may deal in some of those specified commodities from acquiring a controlling interest in Armour. When this decree was 674 OCTOBER TERM, 1970 Opinion of the Court 402U.S. here last Term the Government was seeking to prevent General Host, a company engaged in the manufacture and sale of a variety of food products, from acquiring control of Armour. While that case was pending, General Host agreed to sell its interest in Armour to Greyhound Corp., a regulated motor carrier. After the required approval was obtained from the Interstate Commerce Commission, the transaction was consummated. This Court then dismissed the action against General Host as moot. 398 U. S. 268. The Government then proceeded against Greyhound as it had against General Host and filed a petition in the District Court alleging that Greyhound’s engagement in businesses1 forbidden to Armour or any firm in which Armour has a direct or indirect interest, and that Greyhound’s ownership of Armour create a relationship forbidden by the 1920 Consent Decree. The District Court, as it had when General Host’s ownership of Armour was at issue, held that the Consent Decree did not prohibit such acquisitions. The Government appealed. This case does not involve the question whether the acquisition of a majority of Armour stock by Greyhound is illegal under the antitrust laws. If the Government had wished to test that proposition, it could have brought an action to enjoin the acquisition under § 7 of the Clayton Act, 38 Stat. 731, as amended, 15 U. S. C. § 18. Alternatively, if the Government believed that changed conditions warranted further relief against the acquisition, it could have sought modification of the 1 The Government claims that two of Greyhound’s wholly owned subsidiaries are engaged in the retail food business. Prophet Foods Co., an industrial catering company, operates eating facilities in industrial plants, schools, hospitals, nursing homes, and other commercial establishments. In 1968 Prophet’s sales were in excess of $77 million. Post Houses, Inc., operates restaurants in bus stations and at rest and meal stop locations. Post Houses had sales in excess of $33 million in 1968. UNITED STATES v. ARMOUR & CO. 675 673 Opinion of the Court Meat Packers Decree itself.2 It took neither of those steps, but, rather, sought to enjoin the acquisition under the decree as originally written. Thus the case presents only the narrow question whether ownership of a majority of stock in Armour by a company that engages in business forbidden to Armour by the decree, in itself and without any evidentiary showing as to the consequences, violates the prohibition against Armour’s “directly or indirectly . . . engaging in or carrying on” that forbidden business. On February 27, 1920, the United States filed a bill in equity against the Nation’s five largest meatpackers, including Armour, and against their subsidiary corporations and controlling stockholders, charging conspiratorial and individual attempts to monopolize a substantial part of the Nation’s food supply. The bill alleged that the packers, from their initial position of power in the slaughtering and packing business, had acquired control of the Nation’s stockyards, stockyard terminal rail lines, refrigerated rolling stock, and cold storage facilities, and that they had used predatory practices to eliminate competition in the food business. The bill further alleged that the packers, having gained monopoly power in the meat business, were attempting to destroy competition in products which might be substituted for meat. That objective was being pursued through the acquisition of nonmeat food companies and by means of exclusive output contracts with suppliers. The prayer for relief sought, along with other prohibitions against the defendants’ attempts to monopolize, the divestiture of most of their nonpacking operations and the permanent exclusion of them from the substitute food business. 2 See Chrysler Corp. n. United States, 316 U. S. 556 (1942); and see generally Note, Flexibility and Finality in Antitrust Consent Decrees, 80 Harv. L. Rev. 1303 (1967). 676 OCTOBER TERM, 1970 Opinion of the Court 402 U. S. On the same day as the complaint was filed, defendants filed their answer, denying its essential allegations, and both sides filed a stipulation to a consent decree, granting the Government the largest part of the relief it had sought. Paragraph Fourth of the decree enjoined the corporate defendants, including Armour, from “either directly or indirectly, by themselves or through their officers, directors, agents, or servants, engaging in or carrying on, either by concert of action or otherwise . . . the manufacturing, jobbing, selling . . . distributing, or otherwise dealing in” a long list of food and other products sold by grocery stores. Paragraph Fourth further enjoined the corporate defendants from “owning, either directly or indirectly . . . any capital stock or other interests whatsoever” in any business which dealt in these commodities.3 Paragraph Eighteenth of the decree provided that the court should retain jurisdiction of the case “for the purpose of taking such other action or adding to the foot of this decree such other relief, if any, as may become necessary or appropriate for the carrying out and enforcement of this decree.” Since 1920, the decree has withstood a motion to vacate it in its entirety, Swift de Co. v. United States, 276 U. S. 311 (1928), and two attempts on the part of the defendants to have it modified in light of alleged changed circumstances. United States v. Swift & Co., 286 U. S. 106 (1932); United States n. Swift Co., 189 F. Supp. 885, 892 (ND Ill. 1960), aff’d, 367 U. S. 909 (1961). Thus the decree stood at the time this case arose, and still stands, as originally written. The Government does not contend that Greyhound’s acquisition of controlling interest in Armour subjects 3 Paragraph Eighth made identical provisions with respect to certain dairy commodities. UNITED STATES v. ARMOUR & CO. 677 673 Opinion of the Court Greyhound to punishment for contempt since it was not a party to the decree. Nor does the Government contend that Greyhound has acted “in active concert or participation with” a party.4 Instead, the Government argues that Greyhound should have been brought before the District Court, which retained permanent jurisdiction over the decree, pursuant to § 55 of the Sherman Act, and be enjoined from acting to exercise control over or influence the business affairs of Armour, and be required to divest itself of the Armour stock. The contention is that the acquisition violates the decree since it causes Armour to be engaged in activities prohibited by the decree. The claim is that Greyhound is engaged in businesses that the decree prohibits Armour from being engaged in and the decree’s purported purpose of separating the meatpackers from the retail food business is thus circumvented. But while structural separation of this kind may have been the Government’s overall aim, the decree itself, carefully worked out between the parties in exchange for their right to litigate the issues, does not effect a complete separation, but, rather, prohibits particular actions 4 Fed. Rule Civ. Proc. 65 (d) provides: “Every order granting an injunction ... is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.” 5 Section 5 of the Sherman Act, 26 Stat. 210, 15 U. S. C. § 5, provides: “Whenever it shall appear to the court before which any proceeding under section 4 of this title may be pending, that the ends of justice require that other parties should be brought before the court, the court may cause them to be summoned, whether they reside in the district in which the court is held or not; and subpoenas to that end may be served in any district by the marshal thereof.” 678 OCTOBER TERM, 1970 Opinion of the Court 402 U. S. and relationships not including the one here in question. The crucial provision, Paragraph Fourth, forbids the corporate defendants from “engaging in or carrying on” commerce in the enumerated product lines. This language, taken in its natural sense, bars only active conduct on the part of the defendants. Thus Armour could not trade in these products, either under its own corporate form, or through its “officers, directors, agents, or servants.” The entry of Armour into the grocery business through subsidiaries is clearly and Draconically prevented by the separate provision of Paragraph Fourth forbidding the defendant meatpackers from owning “any . . . interests whatsoever” 6 in a firm trading in the enumerated commodities. In the Government’s view these prohibitions also bar Armour from having any ownership relationship with corporations like Greyhound. The Government contends that Armour has an obligation not to engage directly or indirectly in legal or economic association with firms in the retail food business. It refers to the prohibited relationship between Armour and Greyhound. But the decree does not speak in terms of relationships in general, but, rather, prohibits certain behavior, and in doing so prohibits some but not all economic interrelationship between Armour and the retail food business. Armour may not carry on or engage in that business, nor may it acquire any interest in any firm 6 That portion of Paragraph Fourth provides: “[T]he corporation defendants and each of them be, and they are hereby, further perpetually enjoined and restrained from owning, either directly or indirectly, severally or jointly, by themselves or through their officers, directors, agents, or servants any capital stock or other interests whatsoever in any corporation, firm, or association except common carriers, which is in the business, in the United States, of manufacturing, jobbing, selling, transporting, except as common carriers, distributing, or otherwise dealing in any of the above-described products or commodities.” UNITED STATES v. ARMOUR & CO. 679 673 Opinion of the Court in that business, but there is no prohibition against selling any interest to a grocery firm, or more generally against entering into an ownership relationship with such a firm.7 If the parties had agreed to such a prohibition, they could have chosen language that would have established the sort of prohibition that the Government now seeks. If the parties had agreed to prohibit the kind of transaction here involved, that end could also have been accomplished through the provision of the decree running against the stockholders of the defendant meatpackers. Many of the controlling stockholders were defendants in the 1920 action, and the decree prohibits certain conduct on their part in Paragraph Fifth.8 That paragraph prohibits the individual defendants from own 7 The Government contends that Paragraph Fourth prohibits Armour from having “any . . . interests whatsoever” in firms engaged in the prohibited businesses and that Armour as a subsidiary of Greyhound has an “interest” in the other Greyhound subsidiaries that are engaged in the retail food business. But Paragraph Fourth does not prohibit Armour from having any interest; it prohibits Armour from “owning” an interest. See n. 6, supra. Clearly, Armour has nothing approaching an ownership interest in Greyhound or Greyhound’s subsidiaries. 8 Paragraph Fifth provides: “That the individual defendants and each of them, be, and they are hereby, perpetually enjoined and restrained from, in the United States, either directly or indirectly, by themselves or through their agents, servants, or employees, owning voting stock which in the aggregate amounts to 50% or more of the voting stock of any corporation, except common carriers, or any interest in such corporation resulting in a voting power amounting to 50 per cent or more of the total voting power of such corporation, or which interest by any device gives to any such defendant or defendants a voting power of 50 per cent or more in any such corporation, or a half interest or more in any firm or association which corporation, firm, or association may be, in the United States, in the business of manufacturing, jobbing, selling, transporting, distributing, or otherwise dealing in . . . [specified products].” 680 OCTOBER TERM, 1970 Opinion of the Court 402U.S. ing a half interest or more in any firm engaged in the product lines enumerated in Paragraph Fourth. This prohibition, through its negative implications, refutes the Government’s argument that the decree established a complete structural separation between the defendant corporations and the retail food business. For it allows a controlling stockholder of a meatpacker to own a controlling, though not a majority, interest in a grocery firm—say 49% of the common stock, a figure which in all but the most unusual corporate situation would represent de facto control. Perhaps more important, the prohibitions of Paragraph Fifth run only against the named stockholders and not against their successors and assigns. If a “successors and assigns” clause had been included, the Government could argue with some persuasiveness that ownership of a meatpacker by a controlling interest in a retail food firm was prohibited. And the parties were able to use the words “successors and assigns” when they wanted to. Paragraph Third, which prohibits the corporate defendants from using their distribution facilities to handle the commodities named in Paragraph Fourth, expressly runs against the corporations and their “successors and assigns.” In short, we do not find in the decree a structural separation such as the Government claims. On the one hand, the decree leaves gaps inconsistent with so complete a separation; on the other, language that would have been apt either to create a complete separation or to bar with particularity the sort of transaction involved here was not used. Stepping back from this analysis of the terms of the 1920 decree, we are confronted with the Government’s argument that to allow Greyhound to take over Armour would allow the same kind of anticompetitive evils that the 1920 suit was brought to prevent. In its 1920 suit, UNITED STATES v. ARMOUR & CO. 681 673 Opinion of the Court the Government sought to insulate the large meatpackers from the grocery business, both to prevent the destruction of competition in that business, and to prevent consolidation of the packers’ monopoly control of the meat business by controlling commerce in products that might be substitutes for meat. Those purposes, the Government says, are frustrated as much by a retail food company’s acquisition of a meatpacker as they would be by a meatpacker’s entry into the retail food business. This argument would have great force if addressed to a court that had the responsibility for formulating original relief in this case, after the factual and legal issues raised by the pleadings had been litigated. It might be a persuasive argument for modifying the original decree, after full litigation, on a claim that unforeseen circumstances now made additional relief desirable to prevent the evils aimed at by the original complaint.9 Here, however, where we deal with the construction of an existing consent decree, such an argument is out of place. Consent decrees are entered into by parties to a case after careful negotiation has produced agreement on their precise terms. The parties waive their right to litigate the issues involved in the case and thus save themselves the time, expense, and inevitable risk of litigation. Naturally, the agreement reached normally embodies a compromise; in exchange for the saving of cost and elimination of risk, the parties each give up something they might have won had they proceeded with the litigation. Thus the decree itself cannot be said to have a purpose; rather the parties have purposes, generally opposed to each other, and the resultant decree embodies as much of those opposing purposes as the respective parties have the bargaining power and skill 9 See sources cited in n. 2, supra. 682 OCTOBER TERM, 1970 Opinion of the Court 402U.S. to achieve.10 For these reasons, the scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it. Because the defendant has, by the decree, waived his right to litigate the issues raised, a right guaranteed to him by the Due Process Clause, the conditions upon which he has given that waiver must be respected, and the instrument must be construed as it is written, and not as it might have been written had the plaintiff established his factual claims and legal theories in litigation. This Court has recognized these principles before. In Hughes n. United States, 342 U. S. 353 (1952), the Government sought to construe a consent decree that gave the defendant the option of selling his stock or putting it in a voting trust as requiring him to sell the stock within a reasonable time even though he chose the voting trust alternative, because the pro-competitive purpose of the decree would otherwise be frustrated. The Court responded: “It may be true as the Government now contends that Hughes’ large block of ownership in both types of companies endangers the independence of each. Evidence might show that a sale by Hughes is indispensable if competition is to be preserved. However, in section V the parties and the District Court provided their own detailed plan to neutralize the evils from such ownership. Whatever justification there may be now or hereafter for new terms that require a sale of Hughes’ stock, we think there is no fair support for reading that requirement into the language of section V.” 342 U. S., at 357. In United States v. Atlantic Refining Co., 360 U. S. 19 (1959), the Government sought an order limiting the 10 Cf. Note, Flexibility and Finality, n. 2, supra, at 1314-1315. UNITED STATES v. ARMOUR & CO. 683 673 Douglas, J., dissenting dividends payable by common carriers to shipper-owners, under a consent decree that allowed such dividends to be paid according to a stated formula. Noting that the language in which the formula was expressed could “be made to support the United States’ contention,” but characterizing that construction as “strained,” 360 U. S., at 22, the Court stated: “The Government contends that the interpretation it now offers would more nearly effectuate ‘the basic purpose of the Elkins and Interstate Commerce Acts that carriers are to treat all shippers alike.’ This may be true. But it does not warrant our substantially changing the terms of a decree to which the parties consented without any adjudication of the issues.” Id., at 23. And here too, although the relief the Government seeks may be in keeping with the purposes of the antitrust laws, we do not believe that it is supported by the terms of the consent decree under which it is sought. Affirmed. Mr. Justice Black and Mr. Justice Blackmun took no part in the consideration or the decision of this case. Mr. Justice Douglas, with whom Mr. Justice Brennan and Mr. Justice White concur, dissenting. The antitrust decree before us last Term in United States n. Armour & Co., 398 U. S. 268, is here again in a new posture. Under the original decree of 1920 the defendants were required to abandon their interests in a wide variety of food and nonfood lines. They were required to divest themselves of any interest in the businesses of “manufacturing, jobbing, selling, transporting . . . distributing, or otherwise dealing in” some 114 specified food products and some 30 other products. 419-882 0 - 72 - 48 684 OCTOBER TERM, 1970 Douglas, J., dissenting 402U.S. They were enjoined from “owning, either directly or indirectly . . . any capital stock or other interests whatsoever in any corporation . . . which is in the business, in the United States, of manufacturing, jobbing, selling, transporting . . . distributing, or otherwise dealing in any” of the prohibited products. Under the decree the District Court retained jurisdiction “for the purpose of taking such other action or adding to the foot of this decree such other relief, if any, as may become necessary or appropriate for the carrying out and enforcement of this decree.” Armour, one of the parties to the decree, is now the second largest meatpacker in the United States with total assets of almost $700 million and total sales in 1967 of approximately $2,150,000,000. In addition to meatpacking, Armour manufactures, processes, and sells various nonprohibited products. In early 1969 the Government filed a petition in Federal District Court to make General Host Corp., a company engaged in the manufacture and sale of numerous food products, a party to the decree and forbid it from acquiring control of Armour. The District Court held that the decree prohibited Armour from holding any interest in a company handling any of the prohibited products but did not prohibit such a company from acquiring Armour. The Government appealed the decision arguing that acquisition by General Host of a majority of Armour’s stock would be in violation of the decree and General Host should have been made a party to the decree so that an injunction could issue. We noted probable jurisdiction. 396 U. S. 811. In the interim, General Host entered into an agreement to sell its controlling stock interest in Armour to Greyhound, a regulated motor carrier. The Interstate Commerce Commission approved the acquisition. Following UNITED STATES v. ARMOUR & CO. 685 673 Douglas, J., dissenting Greyhound’s acquisition, the Court dismissed the case as moot. 398 U. S. 268. The Government then filed a new petition in the District Court alleging (as it had against General Host) that Greyhound is engaged in businesses forbidden to Armour, or any firm in which Armour has a direct or indirect interest, and therefore Greyhound’s acquisition violates the decree. The petition prayed that Greyhound be brought before the Court under § 5 of the Sherman Act and that an order supplemental to the original decree be entered enjoining Greyhound from acquiring any additional stock or exercising control over or influencing the business affairs of Armour, and requiring Greyhound to divest itself of the Armour stock. The District Court dismissed the Government’s complaint, ruling that since Greyhound was not a party to the original decree, Greyhound may not be enjoined from “committing any acts on the ground that they are prohibited by the decree.” The court also rejected the Government’s argument that acquisition of the Armour stock placed the two companies in a “corporate relationship” which was prohibited by the decree. The court stated “the decree does not speak in terms of corporate relationships; it speaks in terms of the defendants dealing in the specified lines of commerce . . . The Government appealed. The Sherman Act (15 U. S. C. § 5) provides: “Whenever it shall appear to the court before which any proceeding under section 4 of this title may be pending, that the ends of justice require that other parties should be brought before the court, the court may cause them to be summoned, whether they reside in the district in which the court is held or not; and subpoenas to that end may be served in any district by the marshal thereof.” 686 OCTOBER TERM, 1970 Douglas, J., dissenting 402U.S. Under § 5 and the All Writs Act (28 U. S. C. § 1651 (a)) the District Court has ample power to prevent frustration of the original decree. Greyhound may well have devised a plan which would render the original decree nugatory. Under the decree, none of the meatpackers could own a chain of grocery stores. Yet under the interpretation of the District Court a chain of grocery stores could acquire a meatpacking company. I do not view the decree so narrowly. The evil at which the decree is aimed is combining meatpackers with companies in other food product areas. The authorities support the proposition that judges who construe, interpret, and enforce consent decrees look at the evil which the decree was designed to rectify. See Note, Flexibility and Finality in Antitrust Consent Decrees, 80 Harv. L. Rev. 1303, 1315.* My interpretation of the evil at which this decree was aimed is the same as that of Mr. Justice Cardozo, writing for this Court in United States v. Swift & Co., 286 U. S. 106. As we stated in Chrysler Corp. n. United States, 316 U. S. 556, 562, the test for reviewing modifications is “whether the change served to effectuate or to thwart the basic purpose of the original consent decree.” Neither Hughes v. United States, 342 U. S. 353, nor United States v. Atlantic Refining Co., 360 U. S. 19, relied on by the Court, is to the contrary. Hughes involved a Government attempt to require the trustee to sell stock in a voting trust where the consent decree expressly allowed Hughes a choice of selling the stock himself or placing the stock in a voting trust “until Howard R Hughes shall have sold his holdings of stock.” Atlantic *See the cases cited in Note, Requests by the Government for Modification of Consent Decrees, 75 Yale L. J. 657, 667-668, n. 56. UNITED STATES v. ARMOUR & CO. 687 673 Douglas, J., dissenting Refining was a case where for 16 years, right until the eve of the litigation, both parties had construed the decree in one way. Then the Government changed its interpretation not because it would effectuate the purposes of the decree but because it “would more nearly effectuate ‘the basic purpose of the Elkins and Interstate Commerce Acts.’ ” 360 U. S., at 23. The evil at which the present decree is aimed—combining meatpackers with companies in other food product areas—is present whether Armour purchases a company dealing in the various prohibited food lines or whether that company purchases Armour. When any company purchases Armour it acquires not only Armour’s assets and liabilities, but also Armour’s legal disabilities. And one of Armour’s legal disabilities is that Armour cannot be combined with a company in the various food lines set out in the decree. I read the decree to prohibit any combination of the meatpacking company defendants with companies dealing in various food lines. In the District Court the Government offered an affidavit which showed that Greyhound deals in food products through its divisions and wholly owned subsidiaries, which provide industrial catering services, and operates restaurants, cafeterias, and other eating facilities. The affidavit states that in 1969 Greyhound had revenues of about $124 million from food operations which accounted for over 16% of Greyhound’s total revenues that year. Greyhound has contended that it operates no grocery business and only buys raw foodstuffs and sells prepared meals. Thus, Greyhound argues, it can acquire Armour even if it is made a party to the decree because the decree does not prohibit meatpackers from entering the restaurant business. I do not pass on this contention. Rather, 688 OCTOBER TERM, 1970 Douglas, J., dissenting 402 U. S. I would reverse the judgment of the District Court and remand the case to that court for any further proceedings which are necessary to determine if Greyhound’s acquisition of Armour violates the decree. If it does, then the District Court should make Greyhound a party to that decree. DEWEY v. REYNOLDS METALS CO. 689 Per Curiam DEWEY v. REYNOLDS METALS CO. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 835. Argued April 20-21, 1971—Decided June 1, 1971 429 F. 2d 324, affirmed by an equally divided Court. Donald F. Oosterhouse argued the cause and filed a brief for petitioner. William A. Coughlin, Jr., argued the cause for respondent. With him on the brief was Fred R. Edney. Deputy Solicitor General Wallace argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Griswold, Assistant Attorney General Leonard, David L. Rose, Stanley P. Hebert, Julia P. Cooper, and George H. Darden. Briefs of amici curiae urging reversal were filed by Nathan Lewin, Samuel Rabinove, and Sol Rabkin for the National Jewish Commission on Law and Public Affairs et al., and by Paul S. Berger, Joseph B. Robison, and Beverly Coleman for the American Jewish Congress. Milton A. Smith and Jay S. Siegel filed a brief for the Chamber of Commerce of the United States as amicus curiae urging affirmance. Per Curiam. The judgment is affirmed by an equally divided Court. Mr. Justice Harlan took no part in the consideration or decision of this case. 690 OCTOBER TERM, 1970 Per Curiam 402 U. S. CONNOR ET AL. v. JOHNSON et al. ON APPLICATION FOR STAY Decided June 3, 1971 A three-judge District Court invalidated Mississippi apportionment statute as allowing impermissibly large variations among election districts. The court stated that single-member districts “would be ideal,” but in light of a June 4, 1971, deadline for filing notices of candidacy, issued its apportionment plan providing for some multi-member districts, including Hinds County. Applicants, who had quickly submitted four plans calling for singlemember districts in Hinds County, ask for a stay of that judgment and an extension of the filing deadline until the District Court provides single-member districts for Hinds County, or until the Attorney General or the District Court for the District of Columbia approves the District Court’s apportionment plan under § 5 of the Voting Rights Act of 1965. Held: A stay is granted until June 14, 1971. (a) A decree of a district court is not within the reach of § 5 of the Voting Rights Act of 1965. (b) Single-member districts are generally preferable to large multi-member districts in court-fashioned apportionment plans. (c) In view of the availability of 1970 census data and the dispatch with which applicants devised their plans, the District Court is instructed, absent insurmountable difficulties, to devise and put into effect a single-member district plan for Hinds County by June 14, 1971, and to extend appropriately the filing date for candidates from that county. Per Curiam. On May 14, 1971, a three-judge District Court, convened in the Southern District of Mississippi, invalidated the Mississippi Legislature’s latest reapportion-ment statute as allowing impermissibly large variations among House and Senate districts. The parties were requested by the court to submit suggested plans, and the applicants did so on May 17. All four plans suggested by applicants utilized single-member districts ex-- CONNOR v. JOHNSON 691 690 Per Curiam clusively in Hinds County. The following day, May 18, the court issued its own plan, which included single-and multi-member districts in each House; Hinds County was constituted as a multi-member district electing five senators and 12 representatives. The court expressed some reluctance over use of multi-member districts in counties electing four or more senators or representatives, saying: “[I]t would be ideal if [such counties] could be divided into districts, for the election of one member [from] the district.” However, in view of the June 4, 1971, deadline for filing notices of candidacy, the court concluded that: “[W]ith the time left available it is a matter of sheer impossibility to obtain dependable data, population figures, boundary locations, etc. so as fairly and correctly to divide these counties into districts for the election of single members of the Senate or the House in time for the elections of 1971.” The court promised to appoint a special master in January 1972 to investigate the possibility of single-member districts for the general elections of 1975 and 1979. Applicants moved the District Court to stay its order. The motion was denied on May 24. Applicants have now applied to this Court for a stay of the District Court’s order and for an extension of the June 4 filing deadline until the District Court shall have provided single-member districts'in Hinds County, or until the Attorney General or the District Court for the District of Columbia approves the District Court’s apportionment plan under Section 5 of the Voting Rights Act of 1965, 79 Stat. 439, 42 U. S. C. § 1973c (1964 ed., Supp. V). Insofar as applicants ask relief under the Voting Rights Act the motion for stay is denied. A decree Of the United States District Court is not within reach of Section 5 of the Voting Rights Act. However, other reasons lead us to grant the motion to the extent indicated below. 692 OCTOBER TERM, 1970 Per Curiam 402U.S. In failing to devise single-member districts, the court was under the belief that insufficient time remained until June 4, the deadline for the filing of notices of candidacy. Yet at that time June 4 was 17 days away and, according to an uncontradicted statement in the brief supporting this motion, the applicants were able to formulate and offer to the court four single-member district plans for Hinds County in the space of three days. Also according to uncontradicted statements, these plans were based on data which included county maps showing existing political subdivisions, the supervisory districts used by the Census Bureau for the taking of the 1970 census, official 1970 Census Bureau “final population counts,” and “computer print-out from Census Bureau official computer tapes showing total and white/Negro population by census enumeration districts.” Applicants also assert that no other population figures will subsequently become available. The District Court’s judgment was that single-member districting would be “ideal” for Hinds County. We agree that when district courts are forced to fashion apportionment plans, single-member districts are preferable to large multi-member districts as a general matter. Furthermore, given the census information apparently available and the dispatch with which the applicants devised suggested plans for the District Court, it is our view that, on this record, the District Court had ample time to devise single-member districts for Hinds County prior to the June 4 filing deadline. While meeting the June 4 date is no longer possible, there is nothing before us to suggest any insurmountable barrier to devising such a plan by June 14, 1971. Therefore the motion for stay is granted and the judgment below is stayed until June 14. The District Court is instructed, absent insurmountable difficulties, to devise and put into effect a.singlemember district plan for Hinds County by that date. CONNOR v. JOHNSON 693 690 Black, J., dissenting In light of this disposition, the District Court is directed to extend the June 4 filing date for legislative candidates from Hinds County to an appropriate date so that those candidates and the State of Mississippi may act in light of the new districts into which Hinds County will be divided. It is so ordered. The Chief Justice, Mr. Justice Black, and Mr. Justice Harlan dissent and reserve the right to file an opinion to that effect. Mr. Justice Black, with whom The Chief Justice and Mr. Justice Harlan join, dissenting.* I strongly dissent from the stay order of June 3, 1971, more particularly as it relates to a postponement of the Hinds County, Mississippi, election. Under Mississippi law and the decrees of the three-judge court, Hinds County candidates for the state legislature would be elected from the county at large. But this Court—at the eleventh hour—now commands the District Court to change its decree and divide Hinds County into singlemember districts so that each voter there can vote for only one state representative and one state senator. Under Mississippi law, the final filing date for candidates is June 4. This Court’s order now postpones that deadline to “an appropriate date” after June 14. The order compels candidates who had expected to run countywide to change their plans completely and to campaign only in a particular district which is part of the county. The confusion is compounded because the candidates do not yet know where the district lines will be drawn. Any candidate would be dumbfounded by the thought that his old district had suddenly been abolished on the eve *[Note: This opinion was filed June 4, 1971.] 694 OCTOBER TERM, 1970 Black, J., dissenting 402 U. S. of the filing date and he must now run in a new but unspecified district which is still only a dream in the eyes of the United States Supreme Court sitting a thousand miles from Hinds County. This abrupt order by the Court is all the more astounding since this Court has consistently approved multimember districts for state legislatures. Burnette n. Davis, 382 U. S. 42 (1965); Fortson v. Dorsey, 379 U. S. 433 (1965); Burns n. Richardson, 384 U. S. 73 (1966). I do not deny that this Court has the sheer, raw power to impose single-member districts on Hinds County. I do, however, strongly object to this Court’s exercising that power by throwing a monkey wrench into the county election procedure at this late date. Above all else, we should remember that no one of us is a resident of Mississippi or the Judicial Circuit of which Mississippi is a part. The judges who entered this order do reside in that Circuit, they heard the evidence and oral arguments, and examined the statistics. We should not forget they concluded that: “There is no evading the fact that with the time left available it is a matter of sheer impossibility to obtain dependable data, population figures, boundary locations, etc. so as fairly and correctly to divide these counties into districts for the election of single members of the Senate or the House in time for the elections of 1971.” The holding of a county election is a difficult, intricate, and time-consuming process. Orders must be filed, ballots printed, campaigning plans laid, and officials appointed. Many different procedures must be carefully synchronized if the elections are to be efficiently and fairly administered. But today the Court plunges into an unfamiliar arena and creates utter confusion for the voters, candidates, and officials of Hinds County by CONNOR v. JOHNSON 695 690 Black, J., dissenting subjecting them to the judicial branch of Federal Government. Needless to say I completely agree with the holding of the majority that a reapportionment plan formulated and ordered by a federal district court need not be approved by the United States Attorney General or the United States District Court for the District of Columbia. Under our constitutional system it would be strange indeed to construe § 5 of the Voting Rights Act of 1965, 79 Stat. 439, 42 U. S. C. § 1973c (1964 ed., Supp. V), to require that actions of a federal court be stayed and reviewed by the Attorney General or the United States District Court for the District of Columbia. I dissent. Reporter’s Note The next page is purposely numbered 901. The numbers between 695 and 901 were intentionally omitted, in order to make it possible to publish the orders in the current preliminary prints of the United States Reports with permanent page numbers, thus making the official citations immediately available. ORDERS FROM APRIL 15 THROUGH JUNE 1, 1971 April 15, 1971 Dismissal Under Rule 60 No. 710. Associated Press v. Adams et al. Motion for leave to file petition for writ of certiorari dismissed pursuant to Rule 60 of the Rules of this Court. April 19, 1971 Affirmed on Appeal No. 1352. Consolidated Carriers Corp. v. United States et al. Affirmed on appeal from D. C. S. D. N. Y. Reported below: 321 F. Supp. 1098. Appeals Dismissed No. 1347. Fairview Development, Inc. v. City of Fairbanks. Appeal from Sup. Ct. Alaska dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. Reported below: 475 P. 2d 35. No. 1368. Foreman v. City of Bellefontaine et al. Appeal from Ct. App. Ohio, Logan County, dismissed for want of jurisdiction. -Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. No. 1426. Delahay v. Alaska et al. Appeal from Sup. Ct. Alaska dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. Reported below: 476 P. 2d 908. 901 419-882 0 - 72 - 49 902 OCTOBER TERM, 1970 April 19, 1971 402 U.S. No. 6381. Price v. Illinois. Appeal from Sup. Ct. Ill. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted. Reported below: 46 Ill. 2d 209, 263 N. E. 2d 484. No. 1367. Clairol, Inc. v. Director of Division of Taxation. Appeal from Sup. Ct. N. J. Motion of Automobile Manufacturers Assn., Inc., for leave to file a brief as amicus curiae granted. Appeal dismissed for want of substantial federal question. Mr. Justice Harlan is of the opinion that probable jurisdiction should be noted and case set for oral argument. Mr. Justice Brennan took no part in the consideration or decision of this case. Reported below: 57 N. J. 199, 270 A. 2d 702. No. 1390. Pruett v. Texas. Appeal from Ct. Crim. App. Tex. dismissed for want of substantial federal question. Reported below: 463 S. W. 2d 191. No. 1391. H. L. Federman & Co., Inc. v. Zerbel, dba John A. Zerbel & Co. Appeal from Sup. Ct. Wis. dismissed for want of substantial federal question. Reported below: 48 Wis. 2d 54, 179 N. W. 2d 872. No. 1428. Fried et al. v. Danaher, Clerk of Circuit Court, et al. Appeal from Sup. Ct. Ill. dismissed for want of substantial federal question. Reported below: 46 Ill. 2d 469, 263 N. E. 2d 820. No. 962. Kostamo v. Northern City National Bank, Administrator, et al. Appeal from Sup. Ct. Minn, dismissed for want of substantial federal question. Mr. Justice Douglas and Mr. Justice Brennan dissent from dismissal of appeal. Reported below: 287 Minn. 556, 178 N. W. 2d 896. ORDERS 903 402 U.S. April 19, 1971 No. 5925. Hietala v. Heir of Pakarinen. Appeal from Sup. Ct. Minn, dismissed for want of substantial federal question. Mr. Justice Douglas and Mr. Justice Brennan dissent from dismissal of appeal. Mr. Justice Blackmun took no part in the consideration or decision of this case. Reported below: 287 Minn. 330, 178 N. W. 2d 714. Vacated and Remanded on Appeal No. 1353. McCann, District Attorney of Milwaukee County v. Babbitz. Appeal from D. C. E. D. Wis. Judgment vacated and case remanded for reconsideration in light of Younger n. Harris, 401 U. S. 37; and Samuels v. Mackell and Fernandez v. Mackell, 401 U. S. 66. Mr. Justice Douglas dissents from the remand. Reported below: 320 F. Supp. 219. Certiorari Dismissed* No. 5029. Romontio v. United States. C. A. 10th Cir. [Certiorari granted, 400 U. S. 901.] Writ of certiorari dismissed as improvidently granted. Reported below: 400 F. 2d 618. Miscellaneous Orders No. 538. Swarb et al. v. Lennox et al. Appeal from D. C. E. D. Pa. [Probable jurisdiction noted, 401 U. S. 991.] Motion to proceed on original record and motion to dispense with printing appellants’ brief on merits granted. No. 1042. Diffenderfer et al. v. Central Baptist Church of Miami, Florida, Inc., et al. Appeal from D. C. S. D. Fla. [Probable jurisdiction noted, 401 U. S. 934.] Joint motion to dispense with printing appendix record granted. *[Reporter’s Note: This is a new category for summary dispositions. Cf. Reporter’s Note, 398 U. S. 901.] 904 OCTOBER TERM, 1970 402 U.S. April 19, 1971 No. 798. United States et al. v. Mitchell et al. C. A. 5th Cir. [Certiorari granted, 400 U. S. 1008.] Motion of respondent Angello for additional time for oral argument granted and an additional 15 minutes allotted for that purpose. The Solicitor General also granted an additional 15 minutes to argue on behalf of the United States. No. 835. Dewey v. Reynolds Metals Co. C. A. 6th Cir. [Certiorari granted, 400 U. S. 1008.] Motions of National Jewish Commission on Law & Public Affairs et al., Chamber of Commerce of the United States, and American Jewish Congress for leave to file briefs as amici curiae granted. Mr. Justice Harlan took no part in the consideration or decision of these motions. No. 1463. Dekar Industries, Inc., et al. v. Bissett-Berman Corp. C. A. 9th Cir. Motion of respondent to restrict distribution of petition or in the alternative to delete portions thereof denied. Reported below: 434 F. 2d 1304. No. 6303. Trull v. Smith, Warden. Motion for leave to file petition for writ of certiorari denied. No. 6319. Ney v. Field, Men’s Colony Superintendent; No. 6474. Brown v. Buchkoe, Warden; No. 6579. Ward v. Page, Warden; and No. 6663. Reese et al. v. Smith, Warden. Motions for leave to file petitions for writs of habeas corpus denied. No. 6601. Harris v. LaFave; and No. 6665. Laughlin v. United States Court of Appeals for the District of Columbia Circuit. Motions for leave to file petitions for writs of mandamus denied. ORDERS 905 402 U.S. April 19, 1971 Probable Jurisdiction Noted No. 1346. United States v. Topco Associates, Inc. Appeal from D. C. N. D. Ill. Probable jurisdiction noted. Reported below: 319 F. Supp. 1031. Certiorari Granted No. 1331. Affiliated Ute Citizens of Utah et al. v. United States et al. C. A. 10th Cir. Certiorari granted. Reported below: 431 F. 2d 1337 and 1349. Certiorari Denied. (See also Nos. 1347, 1368, 1426, and 6381, supra.) No. 1023. Healy et al. v. Illinois. App. Ct. Ill., 1st Dist. Certiorari denied. Reported below: 126 Ill. App. 2d 189, 261 N. E. 2d 468. No. 1189. DeLegge v. United States; No. 1277. Daddano v. United States; and No. 6532. Cain v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 432 F. 2d 1119. No. 1228. Roberts v. State Real Estate Commission. Sup. Ct. Pa. Certiorari denied. Reported below: 441 Pa. 159, 271 A. 2d 246. No. 1265. Construction & General Laborers’ Local Union No. 246, Laborers’ International Union of North America, AFL-CIO v. Jordan Co. Sup. Ct. Ga. Certiorari denied. Reported below: 226 Ga. 682, 177 S. E. 2d 54. No. 1294. McAfee et al. v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 431 F. 2d 1360. No. 1337. Morelli et al. v. New York; and No. 1399. Colon v. New York. Ct. App. N. Y. Certiorari denied. Reported below: 28 N. Y. 2d 1, 267 N. E. 2d 577. 906 OCTOBER TERM, 1970 April 19, 1971 402 U.S. No. 1296. El Ranco, Inc., et al. v. First National Bank of Nevada, Administrator. C. A. 9th Cir. Certiorari denied. No. 1308. United Mine Workers of America v. District 50, United Mine Workers of America, aka International Union of District 50, United Mine Workers of America. C. A. D. C. Cir. Certiorari denied. Reported below: 140 U. S. App. D. C. 349, 435 F. 2d 421. No. 1338. Beto, Corrections Director v. Marion. C. A. 5th Cir. Certiorari denied. Reported below: 434 F. 2d 29. No. 1339. Haldane v. Ruppe et al. C. A,. 9th Cir. Certiorari denied. Reported below: 435 F. 2d 647. No. 1342. McMann, Warden v. Owen. C. A. 2d Cir. Certiorari denied. Reported below: 435 F. 2d 813. No. 1345. Noll Motors, Inc. v. National Labor Relations Board. C. A. 8th Cir. Certiorari denied. Reported below: 433 F. 2d 853. No. 1357. Local 134, International Brotherhood of Electrical Workers, AFL-CIO, et al. v. National Labor Relations Board. C. A. 7th Cir. Certiorari denied. Reported below: 433 F. 2d 302. No. 1358. Coakley v. Reising et al. Ct. Civ. App. Tex., 13th Sup. Jud. Dist. Certiorari denied. Reported below: 457 S. W. 2d 431. No. 1361. Sinatra v. Goodyear Tire & Rubber Co. et al. C. A. 9th Cir. Certiorari denied. Reported below: 435 F. 2d 711. No. 1369. Moore v. United States. C. A. D. C. Cir. Certiorari denied. Reported below: 140 U. S. App. D. C. 309, 435 F. 2d 113. ORDERS 907 402 U.S. April 19, 1971 No. 1366. Baum v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 435 F. 2d 1197. No. 1372. Brown v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 436 F. 2d 517. No. 1374. Granger et al. v. City of Mentor. Ct. Common Pleas, Lake County, Ohio. Certiorari denied. No. 1377. Rose et ux. v. Commissioner of Internal Revenue. C. A. 5th Cir. Certiorari denied. Reported below: 435 F. 2d 149. No. 1379. International Metal Specialties, Inc. v. National Labor Relations Board. C. A. 2d Cir. Certiorari denied. Reported below: 433 F. 2d 870. No. 1380. Mather Construction Co. et al. v. Continental Casualty Co. et al. C. A. D. C. Cir. Certiorari denied. Reported below: 143 U. S. App. D. C. 234, 443 F. 2d 649. No. 1382. MacLeod v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 436 F. 2d 947. No. 1384. Raymond v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 436 F. 2d 951. No. 1385. Kirkland, Trustee in Bankruptcy v. Protective Committee for Independent Stockholders of TMT Trailer Ferry, Inc., et al. C. A. 5th Cir. Certiorari denied. Reported below: 434 F. 2d 804. No. 1388. Messick, .dba Georgian Hall Motor Lodge, et al. v. Gordon. C. A. 4th Cir. Certiorari denied. No. 1400. Drobnick et al. (First National Bank of Waukegan, Trustee) v. Foss Park District. App. Ct. Ill., 2d Dist. Certiorari denied. Reported below: 125 Ill. App. 2d 276, 260 N. E. 2d 474. 908 OCTOBER TERM, 1970 April 19, 1971 402 U.S. No. 1396. Lombardozzi v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 436 F. 2d 878. No. 1401. Bagel Bakers Council of Greater New York et al. v. National Labor Relations Board. C. A. 2d Cir. Certiorari denied. Reported below: 434 F. 2d 884. No. 1403. Stanley Air Tools, a Division of Stanley Works v. National Labor Relations Board. C. A. 6th Cir. Certiorari denied. Reported below: 432 F. 2d 358. No. 1404. Noriega v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 437 F. 2d 435. No. 1405. Leslie Salt Co. v. Alameda Conservation Assn, et al. C. A. 9th Cir. Certiorari denied. Reported below: 437 F. 2d 1087. No. 1407. Doyle v. Koelbl et al. C. A. 5th Cir. Certiorari denied. Reported below: 434 F. 2d 1014. No. 1408. Board of Education of the City of Chicago v. King et al. C. A. 7th Cir. Certiorari denied. Reported below: 435 F. 2d 295. No. 1410. Certain Space in Property Known as Chimes Building et al. v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 435 F. 2d 872. No. 1411. National Bank of Albany Park in Chicago, Trustee, et al. v. City of Chicago in Trust for Use of Schools. Sup. Ct. Ill. ' Certiorari denied. Reported below: See 127 Ill. App. 2d 51, 261 N. E. 2d 711. No. 1416. Canel Lodge No. 700, International Association of Machinists & Aerospace Workers, AFL-CIO v. United Aircraft Corp. C. A. 2d Cir. Certiorari denied. Reported below: 436 F. 2d 1. ORDERS 909 402 U.S. April 19, 1971 No. 1417. Sherwood et ux. v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 435 F. 2d 867. No. 1418. Sandoval et al. v. California et al. C. A. 9th Cir. Certiorari denied. Reported below: 434 F. 2d 635. No. 1422. Shaw et ux. v. United States. C. A. 2d Cir. Certiorari denied. No. 1427. Aetna Life Insurance Co. v. Lester. C. A. 5th Cir. Certiorari denied. Reported below: 433 F. 2d 884. No. 1437. Armstrong Equipment Co. v. Clark Equipment Co. et al. C. A. 5th Cir. Certiorari denied. Reported below: 434 F. 2d 1039. No. 1458. Costen et vir v. Hirschbach Motor Line et al. Sup. Ct. La. Certiorari denied. Reported below: 256 La. 1158, 241 So. 2d 256. No. 1462. Sparks v. Alabama. Ct. Crim. App. Ala. Certiorari denied. Reported below: 46 Ala. App. 357, 242 So. 2d 403. No. 1466. Democratic Organization of Cook County et al. v. Shakman et al. C. A. 7th Cir. Certiorari denied. No. 1486. Atlas Engine Works, Inc. v. National Labor Relations Board. C. A. 6th Cir. Certiorari denied. Reported below: 435 F. 2d 558. No. 6071. Booth v. Warden, Maryland House of Correction. C. A. 4th Cir. Certiorari denied. No. 6127. Scott v. Mancusi, Warden. C. A. 2d Cir. Certiorari denied. Reported below: 429 F. 2d 104. 910 OCTOBER TERM, 1970 April 19, 1971 402 U.S. No. 6163. Reynolds v. Arizona. C. A. 9th Cir. Certiorari denied. No. 6182. Bustos v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 6231. Malone v. Pennsylvania. Sup. Ct. Pa. Certiorari denied. No. 6261. Dudley v. Illinois. Sup. Ct. Ill. Certiorari denied. Reported below: 46 Ill. 2d 305, 263 N. E. 2d 1. No. 6273. Lay v. Florida. Dist. Ct. App. Fla., 4th Dist. Certiorari denied. No. 6299. Hill v. Circuit Court of Hillsborough. Sup. Ct. Fla. Certiorari denied. No. 6318. Blanton v. Smith, Warden. C. A. 5th Cir. Certiorari denied. No. 6326. Fitzsimmons v. Perini, Correctional Superintendent. C. A. 6th Cir. Certiorari denied. No. 6332. Murphy v. Conte. Sup. Ct. Wash. Certiorari denied. No. 6337. Lockridge et al. v. Superior Court of Los Angeles County. Sup. Ct. Cal. Certiorari denied. Reported below: 3 Cal. 3d 166, 474 P. 2d 683. No. 6339. Nichols v. California. Sup. Ct. Cal. Certiorari denied. Reported below: 3 Cal. 3d 150, 474 P. 2d 673. No. 6347. Walters, aka Robinson v. United States. C. A. 7th Cir. Certiorari denied. No. 6358. Mayfield v. Ohio. Sup. Ct. Ohio. Certiorari denied. Reported below: 24 Ohio St. 2d 36, 263 N. E. 2d 311. ORDERS 911 402 U.S. April 19, 1971 No. 6369. Rush v. Illinois. App. Ct. Ill., 4th Dist. Certiorari denied. No. 6387. Gilyard v. Illinois. App. Ct. Ill., 1st Dist. Certiorari denied. Reported below: 124 Ill. App. 2d 95, 260 N. E. 2d 364. No. 6398. Landgham v. Illinois. App. Ct. Ill., 1st Dist. Certiorari denied. Reported below: 122 Ill. App. 2d 9, 257 N. E. 2d 484. No. 6408. Paszek v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 432 F. 2d 780. No. 6428. Ligue v. Illinois. Sup. Ct. Ill. Certiorari denied. Reported below: See 123 Ill. App. 2d 171, 260 N. E. 2d 20. No. 6437. Scott v. Cardwell, Warden. C. A. 6th Cir. Certiorari denied. No. 6438. Fognini, aka Swartz v. Illinois. Sup. Ct. Ill. Certiorari denied. Reported below: 47 Ill. 2d 150, 265 N. E. 2d 133. No. 6469. Muhammad v. Mancusi, Warden. C. A. 2d Cir. Certiorari denied. Reported below: 432 F. 2d 1046. No. 6497. Harper v. Ciccone, Medical Center Director. C. A. 8th Cir. Certiorari denied. Reported below: 434 F. 2d 247. No. 6506. Sostre v. Mitchell, Attorney General. C. A. D. C. Cir. Certiorari denied. No. 6520. Vermeulen v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 436 F. 2d 72. No. 6526. Hepler v. United States. C. A. 4th Cir. Certiorari denied. 912 OCTOBER TERM, 1970 April 19, 1971 402 U.S. No. 6530. Haslam v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 436 F. 2d 419. No. 6542. Nordeste v. United States. C. A. 9th Cir. Certiorari denied. No. 6546. Reeb v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 433 F. 2d 381. No. 6549. Sullivan v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 435 F. 2d 650. No. 6556. Chapman v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 435 F. 2d 1245. No. 6561. Williams v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 436 F. 2d 1166. No. 6577. Tanner v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 434 F. 2d 260. No. 6581. Zenchak v. United States. C. A. 6th Cir. Certiorari denied. No. 6582. Hargrove v. Rundle, Correctional Superintendent. C. A. 3d Cir. Certiorari denied. No. 6585. Seyfried v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 435 F. 2d 696. No. 6591. Wilson v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 436 F. 2d 122. No. 6595. Martin v. Washington. Sup. Ct. Wash. Certiorari denied. Reported below: See 2 Wash. App. 904, 472 P. 2d 607. No. 6596. Carter v. United States. C. A. D. C. Cir. Certiorari denied. Reported below: 141 U. S. App. D. C. 259, 437 F. 2d 692. ORDERS 913 402 U.S. April 19, 1971 No. 6597. Borman et al. v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 437 F. 2d 44. No. 6599. Platt v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 435 F. 2d 220. No. 6603. Mos v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 435 F. 2d 1259. No. 6605. Tanner v. Pate, Warden, et al. C. A. 7th Cir. Certiorari denied. No. 6606. Holman v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 436 F. 2d 863. No. 6607. Bournett v. Twomey, Warden. C. A. 7th Cir. Certiorari denied. No. 6608. Hicks v. North Carolina. Sup. Ct. N. C. Certiorari denied. Reported below: 277 N. C. 349, 177 S. E. 2d 283. No. 6609. Jordan v. California. Ct. App. Cal., 1st App. Dist. Certiorari denied. No. 6616. Lewis v. Smith, Warden. Sup. Ct. Ga. Certiorari denied. Reported below: 227 Ga. 220, 179 S. E. 2d 745. No. 6618. Rose v. New York. Ct. App. N. Y. Certiorari denied. No. 6620. Lopez v. Ohio. Sup. Ct. Ohio. Certiorari denied. No. 6631. Mason v. California. Sup. Ct. Cal. Certiorari denied. No. 6641. Enty v. Pennsylvania. Sup. Ct. Pa. Certiorari denied. Reported below: 442 Pa. 39, 271 A. 2d 926. 914 OCTOBER TERM, 1970 April 19, 1971 402 U.S. No. 6634. Hacker v. Gaffney, Warden. C. A. 10th Cir. Certiorari denied. No. 6644. Williams v. McMann, Warden. C. A. 2d Cir. Certiorari denied. Reported below: 436 F. 2d 103. No. 6650. Morrison v. North Carolina. C. A. 4th Cir. Certiorari denied. No. 6655. Hughes v. District Attorney for Atlanta, Georgia, et al. C. A. 5th Cir. Certiorari denied. Reported below: 436 F. 2d 568. No. 6669. Alexander v. Perini, Correctional Superintendent. C. A. 6th Cir. Certiorari denied. No. 6670. McKinney v. Patuxent Institution Director. Ct. Sp. App. Md. Certiorari denied. No. 6675. Duffen v. Connecticut. Sup. Ct. Conn. Certiorari denied. Reported below: 160 Conn. 77, 273 A. 2d 863. No. 6678. Hathorne v. Texas. Ct. Crim. App. Tex. Certiorari denied. Reported below: 459 S. W. 2d 826. No. 1248. LaVallee, Correctional Superintendent v. Miller et al. C. A. 2d Cir. Motion of respondent Miller for leave to proceed in forma pauperis granted. Certiorari denied. Reported below: 436 F. 2d 875. No. 1279. Timmons v. United States; and No. 1315. Nolte v. United States. C. A. 9th Cir. Motions to dispense with printing petitions granted. Certiorari denied. Reported below: 432 F. 2d 1011. No. 1281. Heine v. Raus. C. A. 4th Cir. Certiorari denied. Mr. Justice Douglas and Mr. Justice Stewart are of the opinion that certiorari should be granted. Reported below: 432 F. 2d 1007. ORDERS 915 402 U.S. April 19, 1971 No. 1348. Littlepage v. United States. C. A. 5th Cir. Motion to dispense with printing petition granted. Certiorari denied. Reported below: 435 F. 2d 498. No. 1364. Taylor v. United States. C. A. 6th Cir. Motion to dispense with printing petition granted. Certiorari denied. Reported below: 442 F. 2d 1341. No. 1310. Edwards v. Bryan et al. C. A. 8th Cir. Certiorari denied. Mr. Justice Blackmun took no part in the consideration or decision of this petition. Reported below: 435 F. 2d 28. No. 6635. Smith v. United States. C. A. 8th Cir. Certiorari denied. Mr. Justice Blackmun took no part in the consideration or decision of this petition. Reported below: 431 F. 2d 1. No. 1340. Professional Air Traffic Controllers Organization et al. v. United States. C. A. 2d Cir. Certiorari denied. The Chief Justice, Mr. Justice Stewart, and Mr. Justice White are of the opinion that certiorari should be granted. Reported below: 438 F. 2d 79. No. 1350. United Transportation Union v. Illinois Central Railroad Co. C. A. 7th Cir. Certiorari denied. Mr. Justice Brennan and Mr. Justice White are of the opinion that certiorari should be granted. Reported below: 433 F. 2d 566. No. 1351. Interboro Contractors, Inc. v. National Labor Relations Board. C. A. 2d Cir. Certiorari denied. Mr. Justice White is of the opinion that certiorari should be granted. Reported below: 432 F. 2d 854. No. 1356. Franco v. United States. C. A. 6th Cir. Certiorari denied. Mr. Justice Marshall took no part in the consideration or decision of this petition. Reported below: 434 F. 2d 956. 916 OCTOBER TERM, 1970 402 U.S. April 19, 1971 No. 1316. 2,606.84 Acres of Land in Tarrant County, Texas, et al. v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 432 F. 2d 1286. Mr. Justice Douglas, whom Mr. Justice Black joins, dissenting. In 1945 Congress authorized the Benbrook Dam and Reservoir Project on the Clear Fork of the Trinity River near the southwest outskirts of Fort Worth, Texas. The authorization stated in part: “The improvement of the Trinity River and tributaries, Texas, for navigation, flood control, and allied purposes is hereby approved and authorized in accordance with the reports contained in House Document Numbered 403, Seventy-seventh Congress.” § 2, 59 Stat. 18. The project described in House Document 403 called for a gated spillway dam to be located on the Clear Fork at river mile 11.3. The storage capacity of the reservoir in acre feet of water was to be dead storage, 603; conservation storage, 30,603; and controlled (combined conservation and flood control) storage, 208,850. The elevation of the spillway crest was 672 feet and the top of the dam was 702 feet. Approximately 6,200 acres of land would have been required. Projected cost of the land was $483,600 and the entire project was estimated to cost about $5,205,502. The project that was subsequently built bears little resemblance to the one described in House Document 403. It is located 3.7 miles farther upstream at river mile 15. It is an uncontrolled spillway type. The notch crest of the spillway is 710 feet, and the main spillway crest is 724 feet. The top of the dam is 747 feet. The storage capacity in acre feet of water as stated by the Definite Project Report is dead storage, 17,750; conservation storage, 88,250; and controlled storage, 410,013. Over 13,000 ORDERS 917 916 Douglas, J., dissenting acres of land were acquired at a cost of about $2,500,000; total project cost was well over $14,000,000. This case arose when the United States filed a petition for condemnation of petitioners’ land in federal district court. Some 1,207 acres were finally sought. Of this land some lies below the elevation of 697.1 feet (conservation pool elevation,- the maximum water level of the pool below flood stage). That land below elevation 697.1 is not involved in the case here. But some 647 acres lie above that elevation. The Army Corps of Engineers took that land for recreation purposes. Petitioners claim that taking is not authorized by law. Petitioners have consistently contended that the land was taken for recreation purposes and that was not authorized under statutes authorizing the Benbrook Project and that the project, as built, was so radically and materially changed that it had to be resubmitted to Congress for a new authorization. Shortly after the Government filed its condemnation suit, petitioners’ predecessor, Richardson, instituted discovery proceedings. The Secretary of the Army refused to submit and the District Court abated the cause with bare legal title left in the Government and possession restored to Richardson pending the Government’s obedience to the court’s discovery orders. The Court of Appeals for the Fifth Circuit affirmed this action. United States v. Richardson, 204 F. 2d 552 (1953). The Government later submitted to discovery and discovery showed, as General Sturgis, former Chief of the Corps, admitted to a congressional subcommittee, that “it could have been very embarrassing to have justified his [the Secretary’s] certification of the public need of all of this particular taking.” 1 1 Hearings on Army-Interior Reservoir Land Acquisition Policy before a Subcommittee of the House Committee on Government Operations, 85th Cong., 1st Sess., 422 (1957). 419-882 0 - 72 - 50 918 OCTOBER TERM, 1970 Douglas, J., dissenting 402 U. S. As a result of a congressional investigation and discovery in this case certain facts about this case emerged. Petitioners allege that prior to 1953 the Corps had a “field practice” of taking more property than was authorized in order to create land for purely recreational purposes. According to the District Court, 309 F. Supp. 887, almost simultaneously with the 1945 authorization the Corps in the present case began its plans for twice as much land as had been authorized with much of the excess for purely recreational purposes. Maps were prepared showing the locations of the recreational facilities. The final recreational plans for the project were in the form of Appendix VIII E to the Definite Project Report. In preliminary drafts certain proposed expenses were designated as “for recreation,” but in final drafts they were credited to “preparation of master plan.” Similarly, the maps initially showed “recreational areas,” but in final stages the label was changed to “reservoir management.” In addition, Appendix VIII E was stamped “Not for Public Release.” According to the District Court, no other appendix was so classified. Id., at 896. Justification for the excess land was necessary. The District Court found that to accomplish this, the Corps created the Great Storm and used its Great Storm as a basis for its spillway design on the dam as built. It is said that the storm will indeed be great, if it ever comes, dumping some 28.2 inches of rain in the area within a 60-hour period. The likelihood of this happening is said not to be high. Average annual rainfall in the area is 31.3 inches. The greatest storm ever recorded there dropped 12.57 inches in a 57-hour period. The District Court says the Great Storm was invented from a storm near Thrall, Texas, in 1922. Thrall is 130 miles from the Gulf of Mexico and over 150 miles from the Benbrook Project. The Thrall storm dropped an uncertain amount of rain and reports of the amount increased as ORDERS 919 916 Douglas, J., dissenting the years passed. The District Court found that in all probability about 18-19 inches were dropped in a three-day period in Thrall. But even with the Great Storm, recordbreaking though it would be, the District Court found that the Corps could not justify the height of the spillway necessary to obtain the land it wanted for recreational purposes. But one Great Storm deserves another and that, it is said, is what the Corps postulated. The Great Storm was assumed to come right after another big storm had dropped large amounts of rain in the area, thus preventing any opening of the dam gates. Furthermore, none of the spillway design criteria made any allowance for the well-established reservoir management practice of lowering the level of water during potential flood months. And large floods have occurred only during three months of the year in the Fort Worth area. The District Court found that the taking of the land for recreational purpose was lawless. The Court of Appeals for the Fifth Circuit reversed, concluding that recreational development was an “allied purpose” within the meaning of the project authorization and also concluding the modifications were proper and needed no further authorization. 432 F. 2d, at 1291. From the Solicitor General’s brief in opposition there is much we do not know about the Government position. There have been congressional inquiries into the Corps’ actions in taking more land than necessary for projects which it is building. Hearings on Army-Interior Reservoir Land Acquisition Policy before a Subcommittee of the House Committee on Government Operations, 85th Cong., 1st Sess. (1957); Report of the Subcommittee on Deficiencies and Army Civil Functions of the House Committee on Appropriations, Investigation of Corps of Engineers Civil Works Program, 82d Cong., 1st Sess. 920 OCTOBER TERM, 1970 Appendix to opinion of Douglas, J., dissenting 402U.S. (Comm. Print 1951). The Solicitor General does not discuss the effect of these reports on this litigation. Further, there is some relevant statutory material which the Solicitor General does not discuss or cite. Section 701b-8 of 33 U. S. C. states that “[n]o . . . modification not authorized, of a project . . . shall be authorized . . . unless a report for such . . . modification has been previously submitted by the Chief of Engineers . . . in conformity with existing law.” Section 701m authorizes the Corps to make a dam smaller than originally planned, but does not authorize making a dam larger, as happened here. Section 701 requires reports for projects or modifications covering, inter alia, “the extent and character of the area to be affected by the proposed improvement” and “such other uses as may be properly related to or coordinated with the project.” Finally we do not know to what use the land has been put. If there is no development yet, what are the current plans? The National Environmental Policy Act of 1969, 42 U. S. C. § 4331 et seq. (1964 ed., Supp. V), requires environmental impact statements for proposed projects.2 So far as we are advised, no such statement has been filed. The questions raised are of such great public importance that I dissent from a denial of certiorari. APPENDIX TO OPINION OF DOUGLAS, J., DISSENTING The National Environmental Policy Act of 1969, 83 Stat. 852, provides in § 102 the following: Sec. 102. The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted 2 The relevant portions of this Act are set forth in an Appendix to this dissent. ORDERS 921 916 Appendix to opinion of Douglas, J., dissenting and administered in accordance with the policies set forth in this Act, and (2) all agencies of the Federal Government shall— (A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking which may have an impact on man’s environment; (B) identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by title II of this Act, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations; (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on— (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment .and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop 922 OCTOBER TERM, 1970 April 19, 1971 402 U.S. and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of title 5, United States Code, and shall accompany the proposal through the existing agency review processes; (D) study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources; (E) recognize the worldwide and long-range character of environmental problems and, where consistent with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, and programs designed to maximize international cooperation in anticipating and preventing a decline in the quality of mankind’s world environment; (F) make available to States, counties, municipalities, institutions, and individuals, advice and information useful in restoring, maintaining, and enhancing the quality of the environment; (G) initiate and utilize ecological information in the planning and development of resource-oriented projects; and (H) assist the Council on Environmental Quality established by title II of this Act. No. 1359. Wheeler v. Lykes Bros. Steamship Co., Inc., et al. C. A. 5th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 431 F. 2d 570. No. 1386. Chicago Housing Authority et al. v. Gautreaux et al. C. A. 7th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 436 F. 2d 306. ORDERS 923 402 U.S. April 19, 1971 No. 1432. Lynd et al. v. City of Chicago. Sup. Ct. Ill. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 47 Ill. 2d 205, 265 N. E. 2d 116. No. 6087. McKenzie v. Director, Patuxent Institution. C. A. 4th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. No. 6567. Kember v. United States. C. A. 9th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 437 F. 2d 534. No. 1376. Samuel Goldwyn Productions et al. v. Mulvey. C. A. 9th Cir. Certiorari denied. Mr. Justice Douglas took no part in the consideration or decision of this petition. Reported below: 433 F. 2d 1073. No. 6082. Harrington et ux. v. California. Sup. Ct. Cal. Certiorari denied. Mr. Justice Harlan would grant certiorari, vacate judgment below, and remand case in light of Chimel v. California, 395 U. S. 752 (1969), and his separate opinion in Mackey v. United States (and companion cases), 401 U. S. 667, 675. Reported below: 2 Cal. 3d 991, 471 P. 2d 961. No. 6484. Aguirre v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. Mr. Justice Harlan would grant certiorari, vacate judgment below, and remand case in light of Chimel v. California, 395 U. S. 752 (1969), and his separate opinion in Mackey n. United States (and companion cases), 401 U. S. 667, 675. Reported below: 10 Cal. App. 3d 884, 89 Cal. Rptr. 384. No. 6105. Cantrell v. Gaffney, Warden. C. A. 10th Cir. Certiorari denied. Mr. Justice Blackmun took no part in the consideration or decision of this petition. 924 OCTOBER TERM, 1970 April 19, 1971 402 U.S. No. 6512. Cantrell v. Kansas. Sup. Ct. Kan. Certiorari denied. Mr. Justice Blackmun took no part in the consideration or decision of this petition. Reported below: 206 Kan. 323, 478 P. 2d 192. No. 6325. Nemke v. Illinois. Sup. Ct. Ill. Certiorari denied. Mr. Justice Harlan and Mr. Justice Marshall would grant certiorari, vacate judgment below, and remand case in light of Escobedo n. Illinois, 378 U. S. 478 (1964), Miranda n. Arizona, 384 U. S. 436 (1966), and Mr. Justice Harlan’s separate opinion in Mackey v. United States (and companion cases), 401 U. S. 667, 675, and Mr. Justice Marshall’s separate opinion in Williams n. United States (and companion case), 401 U. S. 646, 665. Reported below: 46 Ill. 2d 49, 263 N. E. 2d 97. No. 6698. Ganci v. New York. Ct. App. N. Y. Certiorari denied. Mr. Justice Brennan and Mr. Justice Stewart are of the opinion that certiorari should be granted. Reported below: 27 N. Y. 2d 418, 267 N. E. 2d 263. Rehearing Denied No. 152. Patterson v. Humble Oil & Refining Co. et al., 401 U. S. 922. Petition for rehearing denied. Mr. Justice Harlan took no part in the consideration or decision of this petition. No. 1034. Jacobs v. United States, 401 U. S. 924. Petition for rehearing denied. Mr. Justice Marshall took no part in the consideration or decision of this petition. No. 6276. Singal v. Blackwell, Warden, et al., 401 U. S. 922. Motion for leave to file petition for rehearing denied. ORDERS 925 402 U.S. April 19, 1971 No. 370. Magnesium Casting Co. v. National Labor Relations Board, 401 U. S. 137; No. 964. Van Sickle v. Nevada, 401 U. S. 910; No. 966. Florida State Board of Dentistry v. Mack, 401 U. S. 960; No. 1037. Peacock v. Retail Credit Co., 401 U. S. 938; No. 1130. Nolynn Association of Separate Baptist in Christ of Kentucky et al. v. Oak Grove Separate Baptist Church et al., 401 U. S. 955; No. 1132. City of Millard et al. v. City of Omaha et al., 401 U. S. 951 ; No. 5740. Garcia et ux. v. United States, 400 U. S. 945; No. 5942. Shirley v. Louisiana, 401 U. S. 926; No. 6175. Spigner v. United States, 401 U. S. 918; and No. 6355. Maras v. Gehring, 401 U. S. 946. Petitions for rehearing denied. No. 1211. Levy v. United States, 401 U. S. 962. Petition for rehearing denied. Mr. Justice Douglas and Mr. Justice White took no part in the consideration or decision of this petition. Assignment Order 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 June 1, 1971, and ending June 4, 1971, 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. 926 OCTOBER TERM, 1970 April 21, 26, 1971 402 U. S. April 21, 1971 Miscellaneous Order No. -------. Morton, Secretary of the Interior v. Quaker Action Group et al. Upon consideration of the application of the Solicitor General of the United States for a stay herein and the opposition to such stay on behalf of the respondents presented to The Chief Justice as Circuit Justice for the District of Columbia Circuit at 6 p. m. on April 20, 1971, The Chief Justice entered an order, dated April 20, 1971, vacating the order of the United States Court of Appeals, dated April 19, 1971, which modified the preliminary injunction issued on April 16, 1971, by the United States District Court for the District of Columbia and reinstated the said order of the District Court, dated April 16, 1971, pending further order of the Court; and said matter being referred by The Chief Justice to the Court and the Court having considered the matter, It is ordered (1) that the Order of the United States Court of Appeals for the District of Columbia Circuit, dated April 19, 1971, modifying the preliminary injunction issued by the United States District Court for the District of Columbia on April 16, 1971, is vacated; (2) that the preliminary injunction issued by the United States District Court herein on April 16, 1971, is reinstated with full force and effect. Mr. Justice Douglas took no part in the consideration of this matter. April 26, 1971 Miscellaneous Orders No. 48, Orig. Mississippi v. Arkansas. [Motion to file complaint granted, 400 U. S. 1019.] It is ordered that the Honorable Clifford O’Sullivan, Senior Circuit Judge of the United States Court of Ap ORDERS 927 402 U. S. April 26, 1971 peals for the Sixth Circuit, be, and he is hereby, appointed Special Master in this case. The Special Master shall have authority to fix the time and conditions for 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 approve. It is further ordered that if the position of Special Master in this case becomes vacant during a recess of 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. No. 1285. United States v. Bass. C. A. 2d Cir. [Certiorari granted, 401 U. S. 993.] Motion of respondent for appointment of counsel granted. It is ordered that William E. Hellerstein, Esquire, of New York, New York, a member of the Bar of this Court, be, and he is hereby, appointed to serve as counsel for respondent in this case. No. 5515. Humphrey v. Cady, Warden. C. A. 7th Cir. [Certiorari granted, 401 U. S. 973.] Motion of petitioner for appointment of counsel granted. It is ordered that Irvin B. Charne, Esquire, of Milwaukee, Wisconsin, a member of the Bar of this Court, be, and he is hereby, appointed to serve as counsel for petitioner in this case. 928 OCTOBER TERM, 1970 April 26, 1971 402U.S. No. 1395. DeSapio v. United States. C. A. 2d Cir. Motion of petitioner for leave to copy briefs for respondent in No. 825, October Term, 1970, granted. Mr. Justice White took no part in the consideration or decision of this motion. No. 5798. Argersinger v. Hamlin, Sheriff. Sup. Ct. Fla. [Certiorari granted, 401 U. S. 908.] Motion of National Legal Aid & Defender Assn, to dispense with printing brief as amicus curiae granted. No. 6046. Lego v. Twomey, Warden. C. A. 7th Cir. [Certiorari granted, 401 U. S. 992.] Motion of petitioner for appointment of counsel granted. It is ordered that Nathan Lewin, Esquire, of Washington, D. C., a member of the Bar of this Court, be, and he is hereby, appointed to serve as counsel for petitioner in this case. No. 6464. Eisenhardt v. United States; and No. 6765. Davis v. California Adult Authority et al. Motions for leave to file petitions for writs of habeas corpus denied. No. 6697. Dixon v. Gordon, U. S. District Judge, et al. Motion for leave to file petition for writ of mandamus denied. Probable Jurisdiction Noted No. 1412. Schilb et al. v. Kuebel. Appeal from Sup. Ct. Ill. Probable jurisdiction noted. Reported below: 46 Ill. 2d 538, 264 N. E. 2d 377. Certiorari Granted No. 1420. National Labor Relations Board v. Nash-Finch Co., dba Jack & Jill Stores. C. A. 8th Cir. Certiorari granted. Reported below: 434 F. 2d 971. ORDERS 929 402 U. S. April 26, 1971 Certiorari Denied No. 1307. Bellamy et al. v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 436 F. 2d 542. No. 1343. Glucksman v. United States. C. A. 2d Cir. Certiorari denied. No. 1409. Barnett v. Illinois. App. Ct. Ill., 2d Dist. Certiorari denied. Reported below: 125 Ill. App. 2d 70, 260 N. E. 2d 303. No. 1423. Elbel v. United States. C. A. 10th Cir. Certiorari denied. No. 1430. Benedict et al. v. County of Peoria. Sup. Ct. Ill. Certiorari denied. Reported below: 47 Ill. 2d 166, 265 N. E. 2d 141. No. 1431. Hingle v. Perez et al. C. A. 5th Cir. Certiorari denied. Reported below: 434 F. 2d 1037. No. 1439. Ethicon, Inc. v. Handgards, Inc., et al. C. A. 9th Cir. Certiorari denied. Reported below: 432 F. 2d 438. No. 1440. Wilson v. United States* C. A. 7th Cir. Certiorari denied. Reported below: 438 F. 2d 479. No. 1444. Young v. New Jersey. Sup. Ct. N. J. Certiorari denied. Reported.below: 57 N. J. 240, 271 A. 2d 569. No. 1445. Dorr v. Illinois. Sup. Ct. Ill. Certiorari denied. Reported below: 47 Ill. 2d 458, 265 N. E. 2d 601. No. 1446. McKown et al. v. Pierce et al. Sup. Ct. Tenn. Certiorari denied. Reported below: ---------- Tenn. ----, 461 S. W. 2d 950. 930 OCTOBER TERM, 1970 April 26, 1971 402 U. S. No. 1450. Polson v. Idaho. Sup. Ct. Idaho. Certiorari denied. Reported below: 93 Idaho 912, 478 P. 2d 292. No. 1451. Maxwell v. Indiana. Sup. Ct. Ind. Certiorari denied. Reported below:----Ind.-----, 260 N. E. 2d 787. No. 1464. United Mine Workers of America v. Blue Diamond Coal Co. C. A. 6th Cir. Certiorari denied. Reported below: 436 F. 2d 551. No. 1490. Howard Manufacturing Co., Inc. v. National Labor Relations Board. C. A. 8th Cir. Certiorari denied. Reported below: 436 F. 2d 581. No. 1498. Hubbard v. Kiefel. C. A. 7th Cir. Certiorari denied. No. 6217. Gould v. Zelker, Warden. App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied. No. 6244. Stark v. Minnesota. Sup. Ct. Minn. Certiorari denied. Reported below: 288 Minn. 286, 179 N. W. 2d 597. No. 6600. Virga v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 426 F. 2d 1320. No. 6624. Tate v. United States. C. A. 6th Cir. Certiorari denied. No. 6625.. Potter v. United States. C. A. 9th Cir. Certiorari denied. No. 6627. Wilson v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 436 F. 2d 850^ No. 6628. Parker v. United States. C. A. D. C. Cir. Certiorari denied. Reported below: 142 U. S. App. D. C. 15, 439 F. 2d 525. ORDERS 931 402 U. S. April 26, 1971 No. 6632. Williams v. United States. C. A. 6th Cir. Certiorari denied. No. 6637. Chapman v. Collins, Sheriff, et al. C. A. 8th Cir. Certiorari denied. Reported below: 435 F. 2d 155. No. 6642. Carrizoza-Islas v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 436 F. 2d 422. No. 6643. Williams v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 435 F. 2d 1001. No. 6647. Eaton v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 437 F. 2d 362. No. 6653. Edmondson v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 435 F. 2d 1366. No. 6654. Phillips v. United States. C. A. 7th Cir. Certiorari denied. No. 6671. Morales v. Cady, Warden. C. A. 7th Cir. Certiorari denied. No. 6677. Westfall v. Ohio. Sup. Ct. Ohio. Certiorari denied. No. 6679. Palmer v. Illinois. Sup. Ct. Ill. Certiorari denied. Reported below: 47 Ill. 2d 289, 265 N. E. 2d 627. No. 6683. Braxton v. Perini, Correctional Superintendent. C. A. 6th Cir. Certiorari denied. No. 6691. Kitchens v. McCulloch. C. A. 5th Cir. Certiorari denied. No. 6693. Colby v. Kropp, Warden. C. A. 6th Cir. Certiorari denied. 932 OCTOBER TERM, 1970 April 26, 1971 402U.S. No. 6699. Leighty v. Goodwin, U. S. District Judge, et al. C. A. 9th Cir. Certiorari denied. No. 6700. Bryant v. United States. C. A. D. C. Cir. Certiorari denied. Reported below: 143 U. S. App. D. C. 53, 442 F. 2d 775. No. 6701. Griffith v. Florida. Dist. Ct. App. Fla., 4th Dist. Certiorari denied. Reported below: 239 So. 2d 523. No. 6706. Howell v. California. Ct. App. Cal., 1st App. Dist. Certiorari denied. No. 6708. Halpern v. Zelker, Correctional Superintendent. C. A. 2d Cir. Certiorari denied. No. 6709. Davis v. California. Ct. App. Cal., 3d App. Dist. Certiorari denied. No. 1074. Petkus v. New Hampshire. Sup. Ct. N. H. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 110 N. H. 394, 269 A. 2d 123. No. 1421. Weber v. United States. C. A. 3d Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 437 F. 2d 327. No. 1438. Schmutz Manufacturing Co., Inc. v. Atkins. C. A. 4th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 435 F. 2d 527. No. 6389. Cimino v. Illinois. Sup. Ct. Ill. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 45 Ill. 2d 556, 257 N. E. 2d 97. ORDERS 933 402 U. S. April 26, 1971 No. 6421. Burwell v. Cardwell, Warden. C. A. 6th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. No. 6590. Jack v. United States. C. A. 9th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 435 F. 2d 317. No. 6636. Shelton v. United States. Petition for certiorari before judgment to C. A. 9th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. No. 1127. Burke, Warden v. Hahn. C. A. 7th Cir. Motion to dispense with printing brief for respondent granted. Certiorari denied. Reported below: 430 F. 2d 100. No. 1406. Broom v. Texas. Ct. Crim. App. Tex. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted and judgment reversed in light of this Court’s decision in Whiteley v. Warden, 401 U. S. 560. Reported below: 463 S. W. 2d 220. No. 1424. Gornto v. Georgia. Sup. Ct. Ga. Certiorari denied. Mr. Justice Black and Mr. Justice Douglas are of the opinion that certiorari should be granted and judgment reversed. Reported below: 227 Ga. 46, 178 S. E. 2d 894. No. 1467. ITT Lamp Division of International Telephone & Telegraph Corp. v. Minter, Commissioner of Department of Public Welfare of Massachusetts. C. A. 1st Cir. Motion of Chamber of Commerce of the United States for leave to file a brief as amicus curiae granted. Certiorari denied. Reported below: 435 F. 2d 989. 419-882 0 - 72 - 51 934 OCTOBER TERM, 1970 April 26, 1971 402 U. S. No. 1436. Humble Oil & Refining Co. v. Price et al. C. A. 5th Cir. Certiorari denied. Mr. Justice Harlan took no part in the consideration or decision of this petition. Reported below: 432 F. 2d 165 and 435 F. 2d 772. No. 6195. Martinez v. Patterson, Warden, et al. C. A. 10th Cir. Certiorari denied. Mr. Justice Douglas and Mr. Justice White are of the opinion that certiorari should be granted. Reported below: 429 F. 2d 844. No. 6447. Murray v. Page, Warden. C. A. 10th Cir. Certiorari denied. Mr. Justice Douglas and Mr. Justice White are of the opinion that certiorari should be granted. Reported below: 429 F. 2d 1359. No. 6310. Kelm v. Patterson, Warden. C. A. 10th Cir. Certiorari denied. Mr. Justice Douglas, Mr. Justice White, and Mr. Justice Marshall are of the opinion that certiorari should be granted. Rehearing Denied No. 325. Negre v. Larsen et al., 401 U. S. 437; No. 991. Koserkoff v. Chesapeake & Ohio Railway Co., 401 U. S. 947; No. 1149. Davenport v. City Rent and Rehabilitation Administration of the City of New York et al., 401 U. S. 956; No. 1221. Cataldo v. United States, 401 U. S. 977; No. 6419. Stead v. United States, 401 U. S. 978; and No. 6441. Tilli v. County of Northampton et al., 401 U. S. 978. Petitions for rehearing denied. No. 272. Calarco v. United States, 400 U. S. 824. Motion of petitioner for leave to proceed further herein in forma pauperis granted. Motion for leave to file petition for rehearing denied. ORDERS 935 402 U. S. April 29, May 3,1971 April 29, 1971 Dismissal Under Rule 60 No. 1317. Nor-Am Agricultural Products, Inc., et al. v. Hardin, Secretary of Agriculture, et al. C. A. 7th Cir. Petition for writ of certiorari dismissed pursuant to Rule 60 of the Rules of this Court. Reported below: 435 F. 2d 1133 and 1151. May 3, 1971 Affirmed on Appeal No. 1136. Clark v. Ellenbogen et al. Affirmed on appeal from D. C. W. D. Pa. Younger v. Harris, 401 U. S. 37; Samuels v. Mackell, and Fernandez v. Mackell, 401 U. S. 66. Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted and case set for oral argument. Reported below: 319 F. Supp. 623. No. 1354. Nyquist, Commissioner of Education of New York, et al. v. Lee et al.; and No. 1365. Chropowicki et al. v. Lee et al. Affirmed on appeals from D. C. W. D. N. Y. The Chief Justice, Mr. Justice Black, and Mr. Justice Harlan are of the opinion that probable jurisdiction should be noted and cases set for oral argument. Reported below: 318 F. Supp. 710. Appeals Dismissed No. 1193. Lane v. Texas. Appeal from County Ct. at Law No. 1, Travis County, dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted. 936 OCTOBER TERM, 1970 May 3, 1971 402 U. 8. No. 973. Bolton, Attorney General of Georgia, et al. v. Doe; and No. 6172. Unborn Child of Doe v. Doe et al. Appeals from D. C. N. D. Ga. Motion of appellee in No. 973 for leave to proceed in forma pauperis granted. Appeals dismissed for want of jurisdiction. Gunn v. University Committee, 399 U. S. 383 (1970). Reported below: 319 F. Supp. 1048. No. 1457. McMillan v. Federal National Mortgage Assn. Appeal from App. Dept., Super. Ct. Cal., County of Los Angeles, dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted. No. 1230. Abodeely v. Iowa. Appeal from Sup. Ct. Iowa dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. Reported below: 179 N. W. 2d 347. No. 5208.* Beverly v. Scotland Urban Enterprises, Inc. Appeal from Sup. Ct. La. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. No. 6367. Campbell v. Florida. Appeal from Sup. Ct. Fla. dismissed for want of substantial federal question. Reported below: 240 So. 2d 298. *For separate opinions of Black, J., and Douglas, J., see No. 5048, Meltzer v. LeCraw & Co., infra. ORDERS 937 402 U. S. May 3, 1971 Vacated and Remanded on Appeal No. 5050.* Frederick et al. v. Schwartz et al. Appeal from D. C. Conn. Judgment vacated and case remanded for reconsideration in light of this Court’s decision in Boddie n. Connecticut, 401 U. S. 371. Mr. Justice Douglas is of the opinion that judgment should be reversed. Boddie v. Connecticut, supra. Reported below: 296 F. Supp. 1321. Certiorari Granted—Vacated and Remanded, or Reversed No. 3. Cobb et al. v. United States. C. A. 2d Cir. Certiorari granted, judgment vacated, and case remanded for reconsideration in light of this Court’s decisions in Leary v. United States, 395 U. S. 6 (1969), and United States n. United States Coin & Currency, 401 U. S. 715. Reported below: 396 F. 2d 158. No. 8. Dean et al. v. United States. C. A. 6th Cir. Certiorari granted, judgment vacated, and case remanded for reconsideration in light of this Court’s decision in United States v. United States Coin & Currency, 401 U. S. 715. Reported below: 392 F. 2d 672. No. 455. Scott et al. v. United States. C. A. 6th Cir. Certiorari granted, judgment vacated, and case remanded for reconsideration in light of this Court’s decision in United States v. United States Coin & Currency, 401 U. S. 715. Reported below: 425 F. 2d 817. No. 285. Decker v. United States. C. A. 6th Cir. Certiorari granted, judgment vacated, and case remanded for reconsideration in light of this Court’s decisions in Haynes v. United States, 390 U. S. 85 (1968), and United States v. United States Coin & Currency, 401 U. S. 715. Reported below: 423 F. 2d 726. *For separate opinion of Black, J., see No. 5048, Meltzer v. LeCraw & Co., infra. 938 OCTOBER TERM, 1970 May 3, 1971 402 U. 8. No. 1073. United States v. Zizzo. C. A. 7th Cir. Certiorari granted, judgment vacated, and case remanded for reconsideration in light of this Court’s decision in Mackey v. United States, 401 U. S. 667. Mr. Justice Douglas dissents from this action of the Court. Reported below: 431 F. 2d 913. No. 1150. Bloss v. Michigan. Sup. Ct. Mich. Certiorari granted and judgment reversed. Redrup n. New York, 386 U. S. 767 (1967). The Chief Justice, Mr. Justice Harlan, and Mr. Justice Blackmun would grant petition and set case for oral argument on issue whether seizure of the film without a warrant violated applicable constitutional standards. Reported below: See 18 Mich. App. 410, 171 N. W. 2d 455. No. 5016. Lauchli v. United States. C. A. 7th Cir. Motion for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for reconsideration in light of this Court’s decisions in Haynes v. United States, 390 U. S. 85 (1968), and United States v. United States Coin & Currency, 401 U. S. 715. No. 5052. Gillespie v. United States. C. A. 7th Cir. Motion for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for reconsideration in light of this Court’s decisions in Haynes v. United States, 390 U. S. 85 (1968), and United States v. United States Coin & Currency, 401 U. S. 715. Reported below: 409 F. 2d 511. No. 5040. Graham v. United States. C. A. 6th Cir. Motion for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for reconsideration in light of this Court’s decision in United States v. United States Coin & Currency, 401 U. S. 715. Reported below: 407 F. 2d 1313. ORDERS 939 402 U. S. May 3, 1971 No. 5067.* Sloatman v. Gibbons et al. Sup. Ct. Ariz. Motion for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for reconsideration in light of this Court’s decision in Boddie v. Connecticut, 401 U. S. 371. Mr. Justice Douglas is of the opinion that judgment should be reversed. Boddie v. Connecticut, supra. Reported below: 104 Ariz. 429, 454 P. 2d 574. No. 5111. Drotar v. United States. C. A. 5th Cir. Reported below: 416 F. 2d 914; No. 5927. Weber v. United States. C. A. 9th Cir. Reported below: 429 F. 2d 148; No. 6306. Cochran v. United States. C. A. 9th Cir. Reported below: 432 F. 2d 1356; and No. 6645. Miller v. United States. C. A. 6th Cir. Reported below: 437 F. 2d 1199. Motions for leave to proceed in forma pauperis granted. Certiorari granted, judgments vacated, and cases remanded for reconsideration in light of this Court’s decisions in Leary v. United States, 395 U. S. 6 (1969), and United States v. United States Coin & Currency, 401 U. S. 715. Miscellaneous Orders No. ------. Pruett v. Texas. Ct. Crim. App. Tex. Application for stay denied. Mr. Justice Stewart is of the opinion that the application should be granted. No. 48, Orig. Mississippi v. Arkansas. [Motion for leave to file bill of complaint granted, 400 U. S. 1019.] Application for stay of proceedings in Chancery Court of Chicot County, Arkansas, in Arkansas Land <& Cattle Co. n. Anderson-Tully Co., Civil Action No. 10,177, referred to Special Master for report and recommendation. *For separate opinion of Black, J., see No. 5048, Meltzer v. LeCraw & Co., infra. 940 OCTOBER TERM, 1970 May 3, 1971 402U.S. No. 45, Orig. Washington et al. v. General Motors Corp, et al. Motion for leave to file bill of complaint set for oral argument. One hour allowed for oral argument. Mr. Justice Blackmun took no part in the consideration or decision of this matter. No. 49, Orig. Illinois v. City of Milwaukee, Wisconsin, et al. Motion for leave to file bill of complaint set for oral argument. One hour allowed for oral argument. No. 50, Orig. Vermont v. New York et al. Motion for leave to file bill of complaint set for oral argument. One hour allowed for oral argument. No. 87. United States v. District Court in and for the County of Eagle et al., 401 U. S. 520. Motion of Fort Mojave Tribe of Indians for leave to file suggestion of interest denied. No. 812. United States v. District Court in and for Water Division No. 5 et al., 401 U. S. 527. Motion of Fort Mojave Tribe of Indians for leave to file suggestion of interest denied. No. 846. First National City Bank v. Banco Nacional de Cuba, 400 U. S. 1019. Motion of respondent for waiver of Clerk’s costs denied. Mr. Justice Harlan, Mr. Justice Brennan, Mr. Justice Stewart, and Mr. Justice Blackmun are of the opinion that the motion should be granted. No. 6458. Harris v. Texas. Ct. Crim. App. Tex. Counsel for petitioner directed to file a brief in support of petition on or before May 20, 1971. The Attorney General of Texas is invited to file a responsive brief within 10 days from date of receipt of petitioner’s brief. ORDERS 941 402U.S. May 3, 1971 No. 6459. Chacon v. Nelson, Warden; No. 6495. Kohl v. Perini, Correctional Superintendent, et al. ; and No. 6775. Szijarto v. Nelson, Warden. Motions for leave to file petitions for writs of habeas corpus denied. No. 6913. Fallon v. Waggonner, Sheriff, et al. Motion for leave to file petition for writ of habeas corpus and other relief denied. Probable Jurisdiction Noted or Postponed No. 808. Roe et al. v. Wade, District Attorney of Dallas County. Appeal from D. C. N. D. Tex. Probable jurisdiction postponed to hearing of case on the merits. Reported below: 314 F. Supp. 1217. No. 971. Doe et al. v. Bolton, Attorney General of Georgia, et al. Appeal from D. C. N. D. Ga. Probable jurisdiction postponed to hearing of case on the merits. Reported below: 319 F. Supp. 1048. No. 876. Mitchum, dba Book Mart v. Foster et al. Appeal from D. C. N. D. Fla. Probable jurisdiction noted. Reported below: 315 F. Supp. 1387. No. 1495. Col-An Entertainment Corp, et al. v. Harper et al. Appeal from D. C. N. D. Fla. Probable jurisdiction noted. Reported below: 325 F. Supp. 447. No. 6158.* Lindsey et al. v. Normet et al. Appeal from D. C. Ore. Motion for leave to proceed in forma pauperis granted. Probable jurisdiction noted. *For separate opinion of Black, J., see No. 5048, Meltzer n. LeCraw & Co., infra. 942 OCTOBER TERM, 1970 May 3, 1971 402 U. S. Certiorari Granted No. 661. Chevron Oil Co. v. Huson. C. A. 5th Cir. Certiorari granted. Reported below: 430 F. 2d 27. No. 1114. United States v. Caldwell. C. A. 9th Cir. Certiorari granted. Reported below: 434 F. 2d 1081. No. 1381. Branzburg v. Hayes et al., Judges. Ct. App. Ky. Certiorari granted. Reported below: 461 S. W. 2d 345. No. 1286. United States v. Chas. Pfizer & Co., Inc., et al. C. A. 2d Cir. Certiorari granted. Mr. Justice Stewart, Mr. Justice White, and Mr. Justice Marshall took no part in the consideration or decision of this petition. Reported below: 426 F. 2d 32. No. 1389. United States v. Tucker. C. A. 9th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari granted. Reported below: 431 F. 2d 1292. No. 1454. Picard v. Connor. C. A. 1st Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari granted. Reported below: 434 F. 2d 673. No. 1413. Parisi v. Davidson et al. C. A. 9th Cir. Motion to dispense with printing petition and certiorari granted. Motion to advance oral argument denied. Reported below: 435 F. 2d 299. No. 1434. In re Pappas. Sup. Jud. Ct. Mass. Motion of National Broadcasting Co., Inc., for leave to file a brief as amicus curiae granted. Certiorari granted. Reported below: -----Mass.------, 266 N. E. 2d 297. ORDERS 943 402 U. S. May 3, 1971 Certiorari Denied. (See also Nos. 1193, 1230, 1457, and 5208, supra.) No. 16. Hoskins v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 406 F. 2d 72. No. 23. Franke et al. v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 409 F. 2d 958. No. 37. Wallace et al. v. United States. C. A. D. C. Cir. Certiorari denied. Reported below: 134 U. S. App. D. C. 50, 412 F. 2d 1097. No. 100. lozzi v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 420 F. 2d 512. No. 186. United States v. Lucia. C. A. 5th Cir. Certiorari denied. Reported below: 416 F. 2d 920 and 423 F. 2d 697. No. 424. Alexander et al. v. Pasadena City Board of Education et al. C. A. 9th Cir. Certiorari denied. Reported below: 427 F. 2d 1352. No. 632. Board of Public Instruction of Pinellas County, Florida, et al. v. Bradley et al. C. A. 5th Cir. Certiorari denied. Reported below: 431 F. 2d 1377. No. 745. Board of Public Instruction of Manatee County, Florida, et al. v. Harvest et al. C. A. 5th Cir. Certiorari denied. Reported below: 429 F. 2d 414. No. 775. School District 151 of Cook County, Illinois, et al. v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 432 F. 2d 1147. No. 784. Board of Public Instruction of Bay County, Florida, et al. v. Youngblood et al. C. A. 5th Cir. Certiorari denied. Reported below: 430 F. 2d 625. No. 823. Riley v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 429 F. 2d 983. 944 OCTOBER TERM, 1970 May 3, 1971 402 U. S. No. 839. Jackson Municipal Separate School District et al. v. Singleton et al. C. A. 5th Cir. Certiorari denied. Reported below: 426 F. 2d 1364,430 F. 2d 368, and 432 F. 2d 927. No. 850. PORCELLI ET AL. V. TlTUS, SUPERINTENDENT of Schools of the City of Newark, et al. C. A. 3d Cir. Certiorari denied. Reported below: 431 F. 2d 1254. No. 902. Klein et al. v. United States. C. A. D. C. Cir. Certiorari denied. Reported below: 139 U. S. App. D. C. 368, 433 F. 2d 526. No. 1191. Adler v. United States; No. 1314. Kroll v. United States; and No. 1435. Cahn v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 433 F. 2d 1282. No. 1333. Missouri Pacific Railroad Co. v. United States. Ct. Cl. Certiorari denied. Reported below: 192 Ct. Cl. 318, 427 F. 2d 727. No. 1378. Group Life & Health Insurance Co. v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 434 F. 2d 115. No. 1392. Los Angeles Police Department et al. v. Robinson et al. C. A. 9th Cir. Certiorari denied. Reported below: 435 F. 2d 1310. No. 1433. Flintkote Co. v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 435 F. 2d 556. No. 1443. Chambers et al. v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 434 F. 2d 1312. No. 1461. Chicago, Rock Island & Pacific Railroad Co. v. National Mediation Board et al. C. A. 7th Cir. Certiorari denied. Reported below: 435 F. 2d 339. ORDERS 945 402 U. S. May 3, 1971 No. 1456. Pace v. Haymarket Co-Operative Bank. C. A. 1st Cir. Certiorari denied. No. 1463. Dekar Industries, Inc., et al. v. Bissett-Berman Corp. C. A. 9th Cir. Certiorari denied. Reported below: 434 F. 2d 1304. No. 1471. Sammons v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 433 F. 2d 728. No. 1478. Chemical Cleaning, Inc., et al. v. Dow Chemical Co. C. A. 5th Cir. Certiorari denied. Reported below: 434 F. 2d 1212. No. 1482. Bolettieri v. United States. C. A. 2d Cir. Certiorari denied. No. 1487. Hartzell Propeller Fan Co. v. National Labor Relations Board. C. A. 6th Cir. Certiorari denied. Reported below: 435 F. 2d 562. No. 1500. American Export Industries, Inc. v. Fluor Corp., Ltd. C. A. 2d Cir. Certiorari denied. Reported below: 436 F. 2d 383. No. 5003. Smith v. Illinois. App. Ct. Ill., 1st Dist. Certiorari denied. Reported below: 90 Ill. App. 2d 310, 234 N. E. 2d 31. No. 5005. Murphy v. Tennessee. Sup. Ct. Tenn. Certiorari denied. Reported below: 221 Tenn. 351, 426 S. W. 2d 509. No. 5008. Sanchez v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 400 F. 2d 92. No. 5021. Daut v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 405 F. 2d 312. No. 5562. Blassingame v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 427 F. 2d 329. 946 OCTOBER TERM, 1970 May 3, 1971 402 U. S. No. 5853. Britt v. Tennessee. Ct. Crim. App. Tenn. Certiorari denied. Reported below: ----- Tenn. App.----, 455 S. W. 2d 625. No. 6185. Gaito v. Pennsylvania. Sup. Ct. Pa. Certiorari denied. Reported below: See 217 Pa. Super. 125, 268 A. 2d 461. No. 6280. De La Rosa v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 6427. McBride v. Pennsylvania. Sup. Ct. Pa. Certiorari denied. Reported below: 440 Pa. 81, 269 A. 2d 737. No. 6445. Stevenson v. New York. App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied. No. 6521. Hoyel v. City of Jackson. Ct. App. Tenn. Certiorari denied. Reported below: ----- Tenn. App.----, 465 S. W. 2d 736. No. 6535. Mitchell v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 434 F. 2d 230. No. 6613. Oliver v. Connecticut. Sup. Ct. Conn. Certiorari denied. Reported below: 160 Conn. 85, 273 A. 2d 867. No. 6640. Wauford v. Tennessee. Sup. Ct. Tenn. Certiorari denied. No. 6646. Haggett v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 438 F. 2d 396. No. 6659. Sarkis v. United States. C. A. 6th Cir. Certiorari denied. No. 6711. Maggard v. Wainwright, Corrections Director. C. A. 5th Cir. Certiorari denied. Reported below: 432 F. 2d 941. ORDERS 947 402 U. S. May 3, 1971 No. 6668. Rivera v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 437 F. 2d 879. No. 6682. Ardle v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 435 F. 2d 861. No. 6695. Rodgers v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 436 F. 2d 1380. No. 6713. Jackson v. Dutton, Warden. C. A. 5th Cir. Certiorari denied. Reported below: 435 F. 2d 1284. No. 6714. Li v. Immigration and Naturalization Service et al. C. A. 9th Cir. Certiorari denied. No. 6718. Davis v. Gaffney, Warden. C. A. 10th Cir. Certiorari denied. No. 6719. Black v. Russell, Correctional Superintendent. C. A. 3d Cir. Certiorari denied. Reported below: 435 F. 2d 546. No. 6721. Farr v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 436 F. 2d 975. No. 6722. Crisp v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 435 F. 2d 354. No. 6723. McTyre v. Pearson. C. A. 8th Cir. Certiorari denied. Reported below: 435 F. 2d 333. No. 6724. Bowen v. Kropp, Warden. C. A. 6th Cir. Certiorari denied. No. 6726. Jewett v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 438 F. 2d 495. No. 6728. Corrado et ux. v. Providence Redevelopment Agency. Sup. Ct. R. I. Certiorari denied. Reported below: — R. I. —, 269 A. 2d 551. No. 6737. Williams v. New7 York. App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied. 948 OCTOBER TERM, 1970 May 3, 1971 402 U. S. No. 6729. Brown v. Peterson, Hospital Superintendent. C. A. 8th Cir. Certiorari denied. Reported below: 429 F. 2d 585. No. 6730. Lind v. Richardson, Secretary of Health, Education, and Welfare. C. A. 9th Cir. Certiorari denied. Reported below: 434 F. 2d 1313. No. 6739. Peterson v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 6. Cox, Penitentiary Superintendent v. May. C. A. 4th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied. Reported below: 398 F. 2d 476. No. 94. United States v. Meadows. C. A. 9th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied. Reported below: 420 F. 2d 795. No. 993. United States v. Liguori. C. A. 2d Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied. Reported below: 430 F. 2d 842. No. 17. Cox, Penitentiary Superintendent v. Pennington. C. A. 4th Cir. Motion for leave to dispense with printing respondent’s brief granted. Certiorari denied. Reported below: 405 F. 2d 623. No. 21. Koran v. United States. C. A. 5th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 408 F. 2d 1321. No. 22. Koran v. Florida. Dist. Ct. App. Fla., 3d Dist. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 213 So. 2d 735. ORDERS 949 402U.S. May 3, 1971 No. 32. Sullivan v. United States; and No. 33. Teller v. United States. C. A. 7th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 412 F. 2d 374. No. 34. Marchese v. United States. C. A. 9th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 411 F. 2d 410. No. 38. Donohue v. United States. C. A. D. C. Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 134 U. S. App. D. C. 50, 412 F. 2d 1097. No. 50. Koran v. Florida. Dist. Ct. App. Fla., 4th Dist. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 219 So. 2d 449. No. 64. Provenzano et al. v. Follette, Warden, et al. C. A. 2d Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. No. 67. DiPiazza v. United States; and No. 68. Deming v. United States. C. A. 6th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 415 F. 2d 99 and 111. No. 70. Weiser v. United States. C. A. 2d Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 428 F. 2d 932. No. 943. Wright et al. v. United States. C. A. 2d Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. 419-882 0 - 72 - 52 950 OCTOBER TERM, 1970 May 3, 1971 402 U. S. No. 103. Roviaro v. United States. C. A. 7th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 420 F. 2d 304. No. 126. DeVore v. United States. C. A. 4th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 423 F. 2d 1069. No. 369. Tiktin et al. v. United States. C. A. 6th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 427 F. 2d 1027. No. 496. DiLorenzo v. United States. C. A. 2d Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 429 F. 2d 216. No. 630. Birns v. Perini, Correctional Superintendent. C. A. 6th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 426 F. 2d 1288. No. 917. Jacobs v. United States; and No. 6199. Spieler v. United States. C. A. 2d Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 431 F. 2d 754. No. 920. Jones v. United States. C. A. D. C. Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 140 U. S. App. D. C. 70, 433 F. 2d 1176. No. 1175. Kerr v. State Public Welfare Commission. Ct. App. Ore. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 3 Ore. App. 27, 470 P. 2d 167. ORDERS 951 402 U. S. May 3, 1971 No. 1195. Greene v. Maxwell, Judge; and No. 6414. Sosa v. Maxwell, Judge. Dist. Ct. App. Fla., 2d Dist. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 234 So. 2d 690. No. 5045. Gibson et al. v. New York. Ct. App. N. Y. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 23 N. Y. 2d 618, 246 N. E. 2d 349. No. 5070. Mallory v. Ohio. Sup. Ct. Ohio. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. No. 5071. Daniels v. United States. C. A. 9th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 412 F. 2d 317. No. 5088. Kuhn v. United States. C. A. 6th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 415 F. 2d 111. No. 5102. Chatfield v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 272 Cal. App. 2d 141, 77 Cal. Rptr. 118. No. 5555. Martinez v. United States. C. A. 6th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 428 F. 2d 86. No. 6075. Escobedo v. United States. C. A. 7th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 430 F. 2d 14 and 603. 952 OCTOBER TERM, 1970 May 3, 1971 402U.S. No. 5217. Groze v. California. Ct. App. Cal., 1st App. Dist. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. No. 5820. Singleton v. United States. C. A. 2d Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. No. 6648. Edwards v. Selective Service Local Board No. Ill et al. C. A. 5th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 432 F. 2d 287. No. 358. Hanon et al. v. United States. C. A. 8th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Mr. Justice Blackmun took no part in the consideration or decision of this petition. Reported below: 428 F. 2d 101. No. 409. Board of Education of Little Rock School District et al. v. Clark et al. C. A. 8th Cir. Certiorari denied. Mr. Justice Blackmun took no part in the consideration or decision of this petition. Reported below: 426 F. 2d 1035. [For earlier order herein, see 401 U. S. 971.] No. 1496. Dill v. Greyhound Corp, et al. C. A. 6th Cir. Certiorari denied. Mr. Justice Blackmun took no part in the consideration or decision of this petition. Reported below: 435 F. 2d 231. No. 749. Board of Public Instruction of Broward County, Florida, et al. v. Allen et al. ; and No. 891. Blanche Ely Parent Teachers Assn, et al. v. Board of Public Instruction of Broward County, Florida, et al. C. A. 5th Cir. Certiorari denied. Mr. Justice Black took no part in the consideration or decision of these petitions. Reported below: 432 F. 2d 362. ORDERS 953 402 U. S. May 3, 1971 No. 6621. Theriault v. Blackwell, Warden, et al. C. A. 5th Cir. Certiorari denied. Mr. Justice Black-mun took no part in the consideration or decision of this petition. Reported below: 437 F. 2d 76. No. 936. Dade County School Board et al. v. Pate et al.; and No. 6139. Corbett et al. v. Dade County School Board. C. A. 5th Cir. Certiorari denied. Mr. Justice Black took no part in the consideration or decision of these petitions. Reported below: 430 F. 2d 1175. No. 982. Eckels et al. v. Ross et al. C. A. 5th Cir. Certiorari denied. Mr. Justice Stewart is of the opinion that certiorari should be granted, judgment vacated, and case remanded for reconsideration in light of Swann v. Charlotte-Mecklenburg Board of Education, ante, p. 1, and its companion cases. Reported below: 434 F. 2d 1140. No. 1272. Caldwell et al. v. Craighead et al. C. A. 6th Cir. Certiorari denied. Mr. Justice Douglas, Mr. Justice Brennan, and Mr. Justice Marshall are of the opinion that certiorari should be granted. Reported below: 432 F. 2d 213. No. 1334. Silverman v. United States. C. A. 2d Cir. Certiorari denied. Mr. Justice Douglas took no part in the consideration or decision of this petition. Reported below: 430 F. 2d 106. No. 1449. Ippolito v. United States. C. A. 5th Cir. Motion to dispense with printing petition granted. Certiorari denied. Reported below: 438 F. 2d 417. No. 1455. Balistrieri v. United States. C. A. 7th Cir. Certiorari denied. Mr. Justice Marshall took no part in the consideration or decision of this petition. Reported below: 436 F. 2d 1212. 954 OCTOBER TERM, 1970 May 3, 1971 402 U. S. No. 5048. Meltzer et al. v. C. Buck LeCraw & Co. Sup. Ct. Ga. Certiorari denied. Reported below: 225 Ga. 91, 166 S. E. 2d 88. Mr. Justice Black.* On March 2, 1971, this Court decided Boddie n. Connecticut, 401 U. S. 371, holding that Connecticut could not consistently with the Due Process and Equal Protection Clauses deny access to its divorce courts to indi-gents unable to pay relatively small filing and service of process fees.1 We now have eight other cases pending on appeal or on petition for writ of certiorari in which indigents were denied access to civil courts because of their poverty. One case, Sloatman v. Gibbons, No. 5067, is distinguishable from Boddie only by the fact that Arizona permits an extension of time for an indigent to pay the statutory fee when filing for a divorce. In re Garland, No. 5971, involves the right of a bankrupt to file a petition for discharge in bankruptcy without payment of the $50 statutory fee. Meltzer v. LeCraw & Co., No. 5048, involves a slightly more subtle form of handicap to the indigent seeking judicial resolution of a dispute. In that case a tenant who fights his eviction by resort to *This opinion also applies to No. 5050, Frederick et al. v. Schwartz et al., supra; No. 5208, Beverly v. Scotland Urban Enterprises, Inc., supra; No. 6158, Lindsey et al. n. Normet et al., supra; No. 5971, In re Garland et al., infra; No. 5054, Bourbeau v. Lancaster, infra; No. 5067, Sloatman v. Gibbons et al., supra; and No. 6375, Kaufman x. Carter, infra. XI dissented in Boddie v. Connecticut, 401 U. S. 371, 389 (1971), but now believe that if the decision in that case is to continue to be the law, it cannot and should not be restricted to persons seeking a divorce. It is bound to be expanded to all civil cases. Persons seeking a divorce are no different from other members of society who must resort to the judicial process for resolution of their disputes. Consistent with the Equal Protection Clause of the Constitution, special favors cannot and should not be accorded to divorce litigants. ORDERS 955 954 Opinion of Black, J. the judicial process risks the penalty of a judgment for double the rent due during the litigation if he loses. Two other cases, Frederick n. Schwartz, No. 5050, and Bour-beau v. Lancaster, No. 5054, involve indigents who have lost civil cases—a welfare claim and child guardianship claim—and who cannot afford to pay the fees for docketing an appeal. Beverly n. Scotland Urban Enterprises, Inc., No. 5208, and Lindsey n. Normet, No. 6158, involve indigents who cannot post the penalty bonds required to appeal from adverse judgments in housing-eviction cases. And finally, Kaufman v. Carter, No. 6375, is perhaps the most surprising of all eight cases because in that case an indigent mother was denied court-appointed counsel to defend herself against a state civil suit to declare her an unfit mother and take five of her seven children away from her. The Court has decided to note probable jurisdiction in No. 6158, Lindsey n. Normet. Review will be denied in five of the other cases—Nos. 5048, 5208, 5054, 5971, and 6375—while the judgments in the two remaining cases are to be vacated and the cases remanded for reconsideration in light of the decision in Boddie. I agree with my Brethren that Lindsey n. Normet should be set for argument, but I cannot understand why that case is singled out for special treatment and why distinctions are made between the other cases. For the reasons set out below, I would grant the petitions or note probable jurisdiction in each of the other cases and set them for argument or reverse them outright on the basis of the decision in Boddie. In my view, the decision in Boddie n. Connecticut can safely rest on only one crucial foundation—that the civil courts of the United States and each of the States belong to the people of this country and that no person can be denied access to those courts, either for a trial or an appeal, because he cannot pay a fee, finance a 956 OCTOBER TERM, 1970 Opinion of Black, J. 402 U. S. bond, risk a penalty, or afford to hire an attorney. Some may sincerely believe that the decision in Boddie was far more limited in scope—that is, applies only to divorce cases. Other people might recognize that this constitutional decision will eventually extend to all civil cases but believe that it can only be enforced slowly step by step, so that the country will have time to absorb its full import. But in my judgment Boddie cannot and should not be limited to either its facts or its language, and I believe there can be no doubt that this country can afford to provide court costs and lawyers to Americans who are now barred by their poverty from resort to the law for resolution of their disputes. The opinion in Boddie attempts to draw two distinctions between divorce and other disputes. The Court there stated that access to the judicial process in divorce matters is the “exclusive precondition to the adjustment of a fundamental human relationship.” Supra, at 383. The two elements, then, that require open access to the courts are that the judicial mechanism be the “exclusive” means of resolving the dispute and that the dispute involve “fundamental” subject matter. The first element—the “exclusiveness” of the judicial process as a remedy—is no limitation at all. The States and the Federal Government hold the ultimate power of enforcement in almost every dispute. Every law student learns in the first semester of law school that property, for instance, is “valuable” only because the State will enforce the collection of rights that attach to its ownership. Thus, the State holds the ultimate remedy in almost every property dispute. Similarly, the wrong that gives rise to a right of damages in tort exists only because society’s lawmakers have created a standard of care and a duty to abide by that standard. The alternatives to resort to the judicial process in tort cases are negotiation and settlement, abandonment of recovery, private self- ORDERS 957 954 Opinion of Black, J. help, and perhaps insurance. With the exception of insurance, the alternatives are exactly the same as in a divorce case—negotiate a separation agreement, decide to continue the marriage relationship, or violate the law. Likewise, contracts are valuable only because society will enforce them. Indeed, marriage itself when analyzed in purely legal terms is a contract that cannot be revoked without governmental approval.2 Thus, the judicial process is the exclusive means through which almost any dispute can ultimately be resolved short of brute force. The other distinction between divorce and different kinds of controversies suggested in the Boddie opinion is the degree to which the disputes are regarded as “fundamental.” The extent to which this requirement limits the holding of Boddie is found in the very facts of that decision—the right to seek a divorce is simply not very “fundamental” in the hierarchy of disputes. Marriage is one of the cornerstones of our civilized society. Society generally places a high value on marriage and a low value on the right to divorce. And since Boddie held that the right to a divorce was “fundamental,” I can only conclude that almost every other kind of legally 2 By “exclusive precondition” the Court in Boddie might have been suggesting that divorce is constitutionally different from all other kinds of disputes because even when the two parties to the marriage agree to end their relationship they still must seek judicial approval. But Boddie by its terms is not limited to divorces in which the parties have agreed to terminate their marriage. And the plaintiff in a contested tort case finds resort to the judicial process every bit as necessary as the litigant seeking a contested divorce. Even if “exclusive precondition” meant that the formality of judicial approval was mandatory, the Boddie rationale would go far beyond divorce. Citizens generally must resort to courts for adoptions, to probate a will, to obtain a discharge in bankruptcy, for child custody determinations, to clear title to land in rem, to obtain an adjudication of incompetency, to change a name, and for other matters. It would be extremely arbitrary to limit Boddie to these particular kinds of disputes. 958 OCTOBER TERM, 1970 Opinion of Black, J. 402 U. S. enforceable right is also fundamental to our society. Society generally encourages people to seek recompense when they suffer damages through the fault of others. And I cannot believe that my Brethren would find the rights of a man with both legs cut off by a negligent railroad less “fundamental” than a person’s right to seek a divorce. Even the need to be on the welfare rolls or to file for a discharge in bankruptcy seems to me to be more “fundamental” than a person’s right to seek a divorce. Society provides welfare to ensure the survival of the unfortunate. And bankruptcy is designed to permit a man to make a new start unhampered by overwhelming debts in hopes of achieving a useful life. For this Court to have first provided for governmental assumption of civil court costs in a divorce case seems to me a most unfortunate point of departure. But since that step has now been taken, I would either overrule Boddie at once or extend the benefits of government-paid costs to other civil litigants whose interests are at least as important to an orderly society. In my judgment, the crucial foundation on which Boddie rests also forbids denial of an indigent’s right of appeal in civil cases merely because he is too poor to pay appeal costs. Once the right to unhampered access to the judicial process has been established, that right is diluted unless the indigent litigant has an opportunity to assert and obtain review of the errors committed at trial. Since Boddie rejected distinctions between the civil and the criminal process in determining the permissibility of restrictions upon access to the courts, we need only apply to civil cases our long line of holdings that indigent criminals cannot because of their indigency be denied an appeal or the right to a state-furnished record on appeal. See Griffin v. Illinois, 351 U. S. 12 (1956); Draper v. Washington, 372 U. S. 487 (1963); Long v. District Court of Iowa, 385 U. S. 192 (1966); Roberts v. LaVallee, 389 ORDERS 959 954 Opinion of Black, J. U. S. 40 (1967); Williams v. Oklahoma City, 395 U. S. 458 (1969). See also Douglas v. California, 372 U. S. 353 (1963). Finally, there cannot be meaningful access to the judicial process until every serious litigant is represented by competent counsel. Cf. Gideon v. Wainwright, 372 U. S. 335 (1963); Douglas n. California, supra. Of course, not every litigant would be entitled to appointed counsel no matter how frivolous his claims might be. See Ellis v. United States, 356 U. S. 674 (1958). But the fundamental importance of legal representation in our system of adversary justice is beyond dispute. Since Boddie held that there must be meaningful access to civil courts in divorce cases, I can only conclude that Boddie necessitates the appointment of counsel for indigents in such cases. In fact, this Court has held that attorneys’ fees are part of the costs of litigation and may be taxed as costs. Sprague n. Ticonic National Bank, 307 U. S. 161 (1939). And as with fees and transcripts, I will never agree to limit the advantages of free counsel to divorce cases. See n. 1, supra. The necessity of state-appointed counsel is particularly acute in cases like one of those before us, Kaufman v. Carter, where the State initiates a civil proceeding against an individual to deprive her of the custody of her children. Here the State is employing the judicial mechanism it has created to enforce society’s will upon an individual and take away her children. The case by its very nature resembles a criminal prosecution. The defendant is charged with conduct—failure to care properly for her children— which may be criminal and which in any event is viewed as reprehensible and morally wrong by a majority of society. And the cost of being unsuccessful is dearly high— loss of the companionship of one’s children. Indeed, Boddie held that an indigent was entitled to state-paid court -costs in a divorce contest, and such cases almost always 960 OCTOBER TERM, 1970 Opinion of Douglas, J. 402U.S. involve the custody of children. Certainly, if the State must provide funds for an indigent mother’s court costs for a divorce, the State should also provide her with counsel to protect her rights to something far more important to most mothers and to society—her right to custody of her children. For the reasons expressed above and given in the decision in Boddie I would set each of these cases for argument or reverse them outright and hold that citizens cannot be barred from their courts because they are too poor to afford the required fees and bonds or because they cannot hire the professional legal help essential to turn the wheels of justice. There is simply no fairness or justice in a legal system which pays indigents’ costs to get divorces and does not aid them in other civil cases which are frequently of far greater importance to society. Mr. Justice Douglas.* The facts of these cases are set out by Mr. Justice Black. All of them except No. 6375, Kaufman v. Carter, involve people who are denied access to the judicial process solely because of their indigency. Kaufman presents a distinctly different problem. There the State commenced a civil suit in 1963, declared petitioner an unfit mother and took five of her seven children away from her. The status of the children is reviewed annually as required by state law. She did not initially seek counsel; but in the 1968 review proceedings she did. The State is enforcing its view of proper public policy. That procedure has consequences for the citizen so great that it is hardly an extension to say the rationale of Douglas N. California, 372 U. S. 353, demands that she be provided counsel. I would grant certiorari and reverse in this case. *This opinion also applies to No. 5208, Beverly n. Scotland Urban Enterprises, Inc., supra; No. 5971, In re Garland et al., infra; No. 5054, Bourbeau n. Lancaster, infra; and No. 6375, Kaufman v. Carter, infra. ORDERS 961 402U.S. May 3, 1971 I believe a proper application of the Equal Protection Clause also requires that the access cases be reversed. Courts ought not be a private preserve for the affluent. All of these cases contain an invidious discrimination based on poverty, a suspect legislative classification. See Griffin v. Illinois, 351 U. S. 12; Boddie n. Connecticut, 401 U. S. 371, 383 (Douglas, J., concurring). Today’s decisions underscore the difficulties with the Boddie approach. In Boddie the majority found marriage and its dissolution to be so fundamental as to require allowing indigents access to divorce courts without costs. When indigency is involved I do not think there is a hierarchy of interests. Marriage and its dissolution are of course fundamental. But the parent-child relationship is also of sufficient importance to require appointment of counsel when the State initiates and maintains proceedings to destroy it. Similarly, obtaining a fresh start in life through bankruptcy proceedings or securing adequate housing and the other procedures in these cases seemingly come within the Equal Protection Clause, as suggested by my separate opinion in Boddie. No. 1520. Pinto, Prison Farm Superintendent v. Mitchell. C. A. 3d Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 438 F. 2d 814. No. 5004. Verdugo v. United States. C. A. 9th Cir. Motion for leave to supplement petition granted. Certiorari denied. Reported below: 402 F. 2d 599. No. 5053.* Lopez v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 409 F. 2d 1351. *For dissenting opinion of Douglas, J., see No. 5795, Hudson v. United States, infra. 962 OCTOBER TERM, 1970 May 3, 1971 402 U. S. No. 5210. Deal et al. v. Cincinnati Board of Education et al. C. A. 6th Cir. Certiorari denied. Reported below: 419 F. 2d 1387. Mr. Justice Douglas, dissenting. The court below held in this school segregation case that the “ ‘District Court correctly excluded evidence of alleged racial discrimination in the public and private housing markets.’ ” 419 F. 2d 1387, 1392. I would remand this case so that that evidence can be made part of the record and the lower courts can rule on the issues of de jure and de facto segregation of the races that are presented. It is true that this petition arrived one working day after a time extension granted by Mr. Justice White expired. Unlike some types of cases where the time for filing is prescribed by our rules,1 Congress has stated that “any writ of certiorari intended to bring any judgment or decree in a civil action, suit or proceeding before the Supreme Court for review shall be taken or applied for within ninety days after the entry of such judgment or decree. A justice of the Supreme Court, for good cause shown, may extend the time for applying for a writ of certiorari for a period not exceeding sixty days.” 28 U. S. C. § 2101 (c). (Italics added.) The question here is whether a petition arriving at the Clerk’s Office one day after the statutory period expires is jurisdictionally barred from a determination on the merits. Mr. Justice Black has pointed out that early cases under the predecessor sections to § 2101 (c) “made clear that this Court had power to waive the time requirement of these provisions under appropriate circumstances.” Teague v. Regional Commissioner of Customs, 394 U. S. 977, 982 (dissenting opinion). And in Ray v. 1 See our Rule 22. We can and do waive time requirements under the Rules. See Durham v. United States, 401 U. S. 481. ORDERS 963 962 Douglas, J., dissenting Pierson (No. 94, October Term, 1966), 386 U. S. 547, we decided on the merits a cross-petition for certiorari that was substantially out of time under § 2101(c).2 We offered no explanation.3 Even under the companion sections to § 2101 (c) our practice has not been consistent. We have dismissed for failure to file appeals in the time set by Congress, e. g., Ward v. Winstead, 400 U. S. 1019, while not always dismissing for untimely docketing under our rules even though the time limitations were also set by Congress, e. g., United Public Workers v. Mitchell, 330 U. S. 75, 84-86. Naturally, past inconsistencies are no justification for overturning a congressional bar if one exists. But one does not exist in this case. The statute states a petition “for review shall be taken or applied for” within certain specified times. That phrase is not free from ambiguity. What constitutes applying for review? A majority of the Court apparently feel it is receipt of the petition for certiorari by the Clerk’s Office. Teague, supra. Yet I can see no reason why mailing or other transmission to this Court should not be construed as an application for relief 2 The judgment below in that case was entered on October 25, 1965, but a time extension was granted petitioner Pierson until February 2.4, 1966. Ray’s response in opposition and cross-petition for certiorari was filed on March 25. It was timely as a response, but not as a cross-petition, for a cross-petition must satisfy the requirements of a petition except that the cross-petitioner need not file a certified copy of the record which is already on file. Thus the time requirements are the same for both a petition for certiorari and a cross-petition for certiorari. 3 It has been suggested that the “most tenable theory for entertaining such an out-of-time cross-petition is that the Court may regard its jurisdiction over the whole case as attaching upon the timely filing of a petition by any party, giving the Court discretion to allow any other party at any time thereafter to file an additional petition involving the same judgment.” R. Stern & E. Gressman, Supreme Court Practice 312 (4th ed. 1969). 964 OCTOBER TERM, 1970 May 3, 1971 402 U. S. within the meaning of the time provisions of § 2101 (c). When two potential interpretations of a statute are possible, we should not adopt a technical rule, much like common-law pleading, solely to defeat claims. Petitioners here did not use the mails, but I believe the situation is analogous. The following appears from a motion to proceed in forma pauperis and from an affidavit of counsel for petitioners: Up until two days before the time extension was to expire he was led to believe by a third party that the petition would be printed and filed on time. Then without any advance warning the third party who was in New York and had all of petitioners’ papers called and told counsel that the papers would not be printed or filed. Counsel immediately began to prepare a new petition and sufficient copies from his notes. Then on the day the petition was due he forwarded it prepaid on Piedmont Airlines to Washington and arranged to have someone deliver it to the Court. But the airline lost all the papers. Counsel then made a new set of papers and filed them with the Clerk on the next working day. How can we possibly say that it does injustice to § 2101 (c) to conclude that these efforts for review were not “taken or applied for within ninety days” as extended within the meaning of § 2101 (c) ? I would grant the petition and remand the case for perfection of the record in the manner indicated. No. 5054.* Bourbeau v. Lancaster. Super. Ct. Conn., Fairfield County. Certiorari denied. No. 6375.* Kaufman v. Carter. Ct. App. Cal., 2d App. Dist. Certiorari denied. Reported below: 8 Cal. App. 3d 783, 87 Cal. Rptr. 678. *For separate opinions of Black, J., and Douglas, J., see No. 5048, Meltzer v. LeCraw & Co., supra. ORDERS 965 402 U. S. May 3, 1971 No. 5795. Hudson v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 429 F. 2d 1311. Mr. Justice Douglas, dissenting.* The facts of these three cases are virtually identical. With minor variations in each case an informer placed a telephone call to the petitioner. The informer also consented to a Government agent’s either listening to or recording the conversation without the knowledge of the petitioner. In no case did the Government attempt to obtain a search warrant. Then at the trials the recording of the conversation was either played or the agent testified to the substance of the conversation he overheard. Perhaps the Court denies certiorari because any claim under the Federal Communications Act was eliminated in Rathbun v. United States, 355 U. S. 107. But it is time we re-examined chat decision under the Fourth Amendment, because of the increasing surveillance under which we all live. In Katz v. United States, 389 U. S. 347, 359, we said: “Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures.” Yet in these cases all the episodes were prearranged and, in spite of ample time to obtain warrants, none was sought. I dissent from the doctrine that an individual begins to lose his constitutional rights the minute he answers the telephone. Though I dissented in United States n. White, 401 U. S. 745, 756, the Court emphasized that where there was connivance of one party to the conversation who wears the recording device, the search could not be considered unreasonable. But here a third person, not a party to the *This opinion also applies to No. 5053, Lopez v. United States, supra, and No. 5986, Hickman v. United States, infra. 419-882 0 - 72 - 53 966 OCTOBER TERM, 1970 May 3, 1971 402 U. S. conversation, is the interceptor. Thus does the law grow imperceptibly but surely toward creating in this Nation the totalitarian type of surveillance we profess to abhor. I would grant certiorari and reverse these judgments. No. 5971.* In re Garland et al. C. A. 1st Cir. Certiorari denied. Mr. Justice Brennan is of the opinion that certiorari should be granted. Reported below: 428 F. 2d 1185. No. 5986.+ Hickman v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 426 F. 2d 515. No. 6514. Hortencio v. Whitehead. Sup. Ct. Utah. Certiorari denied. Mr. Justice Black and Mr. Justice Douglas dissent from denial of petition. Reported below: 25 Utah 2d 73, 475 P. 2d 1011. Rehearing Denied No. 5999. Howard v. Craven, Warden, et al., 401 U. S. 983; No. 6052. Fanale v. Anderson et al., 401 U. S. 915; No. 6489. Lipscomb v. United States, 401 U. S. 980; No. 6516. Young v. United States, 401 U. S. 995; No. 6522. Tracy et ux. v. United States et al., 401 U. S. 980; and No. 6598. Yoder v. United States, 401 U. S. 1002. Petitions for rehearing denied. No. 6044. Polese v. United States et al., 400 U. S. 1011. Motion for leave to file petition for rehearing denied. *For separate opinions of Black, J., and Douglas, J., see No. 5048, Meltzer n. LeCraw & Co., supra. + For dissenting opinion of Douglas, J., see No. 5795, Hudson United States, supra. ORDERS 967 402 U. S. May 3, 17, 1971 No. 123. International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers & Helpers, AFL-CIO v. Hardeman, 401 U. S. 233. Motion to dispense with printing petition granted. Petition for rehearing denied. May 17, 1971 Affirmed on Appeal No. 728. Hodgson et al. v. Randall et al. Affirmed on appeal from D. C. Minn. Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted and case set for oral argument. Reported below: 314 F. Supp. 32. No. 1501. Kollar et al. v. City of Tucson et al. Affirmed on appeal from D. C. Ariz. Mr. Justice Douglas and Mr. Justice White are of the opinion that probable jurisdiction should be noted and case set for oral argument. Reported below: 319 F. Supp. 482. No. 1514. Leitchfield Manufacturing Co., Inc., et al. v. United States et al. Affirmed on appeal from D. C. W. D. Ky. Reported below: 318 F. Supp. 1214. Appeals Dismissed No. 1510. Airwick Industries, Inc., et al. v. Carlstadt Sewerage Authority et al. Appeal from Sup. Ct. N. J. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. Reported below: 57 N. J. 107, 270 A. 2d 18. No. 6750. Gray v. Pennsylvania. Appeal from Sup. Ct. Pa. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. Reported below: 441 Pa. 91, 271 A. 2d 486. 968 OCTOBER TERM, 1970 May 17, 1971 402 U.S. No. 729. Hodgson v. Minnesota. Appeal from Sup. Ct. Minn, dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. No. 1273. Stafford v. Michigan. Appeal from Ct. App. Mich, dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. Mr. Justice Black dissents from this action of the Court. No. 1473. G & M Employment Service, Inc., et al. v. Department of Labor and Industries et al. Appeal from Sup. Jud. Ct. Mass, dismissed for want of substantial federal question. Reported below: ------- Mass. ---, 265 N. E. 2d 476. No. 1538. Passel et al. v. Fort Worth Independent School District et al. Appeal from Ct. Civ. App. Tex., 2d Sup. Jud. Dist., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted and case set for oral argument. Reported below: 453 S. W. 2d 888. No. 6054. Vasquez v. New York. Appeal from App. Term, Sup. Ct. N. Y., 1st Jud. Dept., dismissed. Molinaro v. New Jersey, 396 U. S. 365 (1970). Mr. Justice Brennan is of the opinion that probable jurisdiction should be noted and case set for oral argument. Vacated and Remanded on Appeal No. 6778. Torres et al. v. New York State Department of Labor et al. Appeal from D. C. S. D. N. Y. Judgment vacated and case remanded for reconsideration in light of this Court’s decision in California Department of Human Resources v. Java, ante, p. 121. Reported below: 321 F. Supp. 432. ORDERS 969 402 U.S. May 17, 1971 No. 707. United States v. 119 Cartons Containing 30,000 Obscene Magazines (Scan Imports, claimant). Appeal from D. C. C. D. Cal. Judgment vacated and case remanded for reconsideration in light of this Court’s decision in United States v. Thirty-Seven {37} Photographs (Luros, Claimant), ante, p. 363. Mr. Justice Douglas dissents from this action of the Court. Certiorari Granted—Vacated and Remanded No. 111. United States v. Holmes. C. A. 2d Cir. Certiorari granted, judgment vacated, and case remanded for reconsideration in light of this Court’s decision in Ehlert v. United States, ante, p. 99. Mr. Justice Douglas dissents from this action of the Court. Reported below: 426 F. 2d 915. No. 611. Laird, Secretary of Defense, et al. v. Capobianco. C. A. 2d Cir. Certiorari granted, judgment vacated, and case remanded for reconsideration in light of this Court’s decision in Ehlert v. United States, ante, p. 99. Mr. Justice Douglas dissents from this action of the Court. Reported below: 424 F. 2d 1304. No. 928. EVCO, dba EVCO Instructional Designs v. Jones, Commissioner of Bureau of Revenue of New Mexico, et al. Ct. App. N. M. In view of concessions made in brief in opposition filed by the Attorney General of New Mexico, and on examination of the record, certiorari granted, judgment vacated, and case remanded for reconsideration in light of position asserted by the Attorney General in the brief in opposition. The Chief Justice, Mr. Justice Black, Mr. Justice Harlan, and Mr. Justice Stewart are of the opinion that certiorari should be denied. Reported below: 81 N. M. 724, 472 P. 2d 987. 970 OCTOBER TERM, 1970 May 17, 1971 402 U.S. No. 6584. Griffin v. United States. C. A. 6th Cir. Motion for leave to proceed in forma pauperis granted. Pursuant to suggestion of the Solicitor General, certiorari granted, judgment vacated, and case remanded for reconsideration in light of the position asserted by the Solicitor General in the Memorandum for the United States. Reported below: 434 F. 2d 740. Miscellaneous Orders No.-------. Turpin et al. v. Resor, Secretary of the Army, et al. D. C. N. D. Cal. Application for stay presented to Mr. Justice Douglas, and by him referred to the Court, denied. Mr. Justice Douglas is of the opinion that the stay should be granted. No. —. Kerr v. Ohio. Sup. Ct. Ohio. Application for stay presented to Mr. Justice Stewart, and by him referred to the Court, denied. No. 109. Time, Inc. v. Pape, 401 U. S. 279. Motion of respondent to be relieved from payment of costs assessed on reversal of judgment denied. No. 1009. United States v. Unicorn Enterprises, Inc., et al. C. A. 2d Cir. [Certiorari granted, 401 U. S. 907.] Application for suspension of stay of mandate of the United States Court of Appeals for the Second Circuit pending judgment of this Court, presented to Mr. Justice Harlan, and by him referred to the Court, granted. Mr. Justice Brennan took no part in the consideration or decision of this application. No. 1042. Diffenderfer et al. v. Central Baptist Church of Miami, Florida, Inc., et al. Appeal from D. C. S. D. Fla. [Probable jurisdiction noted, 401 U. S. 934.] Motion of Protestants and Other Americans United for Separation of Church and State for leave to file a brief as amicus curiae granted. Reported below: 316 F. Supp. 1116. ORDERS 971 402 U.S. May 17, 1971 No. 1681. Holmes v. Arizona. Ct. App. Ariz. Application for stay presented to Mr. Justice Brennan, and by him referred to the Court, denied. Mr. Justice Douglas is of the opinion that the stay should be granted. Reported below: 13 Ariz. App. 357, 476 P. 2d 878. No. 6623. McKenzie v. Texas. Ct. Crim. App. Tex. Counsel for petitioner is directed to file a brief in support of petition on or before June 3, 1971. The Attorney General of Texas is invited to file a responsive brief within 10 days from date of receipt of petitioner’s brief. Reported below: 450 S. W. 2d 341. No. 6885. Smith v. Wingo, Warden. Motion for leave to file petition for writ of habeas corpus denied. No. 1647. Spillers v. Slaughter et al. Motion for leave to dispense with printing motion for leave to file and petition for writ of mandamus granted. Motion for leave to file petition for writ of mandamus denied. No. 6536. Brooks v. Brown, Chief Judge, U. S. Court of Appeals. Motion for leave to file petition for writ of mandamus denied. Probable Jurisdiction Noted No. 706. United States v. Various Articles of “Obscene” Merchandise (Cherry, claimant). Appeal from D. C. S. D. N. Y. Probable jurisdiction noted. Reported below: 315 F. Supp. 191. Certiorari Granted No. 1398. S&E Contractors, Inc. v. United States. Ct. Cl. Certiorari granted. Reported below: 193 Ct. Cl. 335, 433 F. 2d 1373. No. 1562. Kastigar et al. v. United States. C. A. 9th Cir. Certiorari granted. Reported below: 440 F. 2d 954. 972 OCTOBER TERM, 1970 May 17, 1971 402 U.S. Certiorari Denied. (See also Nos. 729, 1273, 1510, 1538, and 6750, supra.} No. 179. Pieters v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 423 F. 2d 1200. No. 261. Robley v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 423 F. 2d 613. No. 275. SwiERENGA V. UNITED STATES. C. A. 6th Cir. Certiorari denied. Reported below: 425 F. 2d 696. No. 715. DeStafano v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 429 F. 2d 344. No. 1022. Bergenthal v. Wisconsin. Sup. Ct. Wis. Certiorari denied. Reported below: 47 Wis. 2d 668, 178 N. W. 2d 16. No. 1111. Manarite v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 434 F. 2d 1069. No. 1165. Eubank v. Illinois. Sup. Ct. Ill. Certiorari denied. Reported below: 46 Ill. 2d 383, 263 N. E. 2d 869. No. 1209. Hairston v. Illinois. Sup. Ct. Ill. Certiorari denied. Reported below: 46 Ill. 2d 348, 263 N. E. 2d 840. No. 1239. Glorioso v. Maryland. Ct. Sp. App. Md. Certiorari denied. Reported below: 10 Md. App. 81, 267 A. 2d 812. No. 1246. Carter, Warden, et al. v. Miller. C. A. 9th Cir. Certiorari denied. Reported below: 434 F. 2d 824. No. 1397. Drown v. Portsmouth School District et al. C. A. 1st Cir. Certiorari denied. Reported below: 435 F. 2d 1182. ORDERS 973 402 U.S. May 17, 1971 No. 1259. Fiore v. United States. C. A. 1st Cir. Certiorari denied. Reported below: 434 F. 2d 966. No. 1448. Klages Coal & Ice Co., dba Royal Crown Bottling Co. v. Hodgson, Secretary of Labor. C. A. 6th Cir. Certiorari denied. Reported below: 435 F. 2d 377. No. 1453. Harflinger v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 436 F. 2d 928. No. 1459. Stribling v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 437 F. 2d 765. No. 1460. State National Bank of Alabama et al. v. Ellis et al. C. A. 5th Cir. Certiorari denied. Reported below: 434 F. 2d 1182. No. 1465. Franco v. Stein Steel & Supply Co. Sup. Ct. Ga. Certiorari denied. Reported below: 227 Ga. 92, 179 S. E. 2d 88. No. 1472. Fiduciary Counsel, Inc. v. Hodgson, Secretary of Labor. C. A. D. C. Cir. Certiorari denied. No. 1477. Chicago Joint Board, Amalgamated Clothing Workers of America, AFL-CIO v. Chicago Tribune Co. et al. C. A. 7th Cir. Certiorari denied. Reported below: 435 F. 2d 470. No. 1481. Iannone et al. v. Maryland. Ct. Sp. App. Md. Certiorari denied. Reported below: 10 Md. App. 81, 267 A. 2d 812. No. 1485. Tex Tan Welhausen Co. v. National Labor Relations Board et al. C. A. 5th Cir. Certiorari denied. Reported below: 434 F. 2d 405. No. 1489. Davenport et ux. v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 436 F. 2d 395. 974 OCTOBER TERM, 1970 May 17, 1971 402 U.S. No. 1492. Bering et ux. v. Commissioner of Internal Revenue. C. A. 9th Cir. Certiorari denied. Reported below: 437 F. 2d 46. No. 1499. Tate, Mayor of Philadelphia, et al. v. Pennsylvania ex rel. Jamieson, Judge. Sup. Ct. Pa. Certiorari denied. Reported below: 442 Pa. 45, 274 A. 2d 193. No. 1502. Frank et ux. v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 437 F. 2d 452. No. 1505. Mid-South Towing Co. v. National Labor Relations Board. C. A. 8th Cir. Certiorari denied. Reported below: 436 F. 2d 393. No. 1513. Aero Engineering Corp. v. National Labor Relations Board. C. A. 5th Cir. Certiorari denied. Reported below: 433 F. 2d 1311. No. 1515. Amity Fabrics, Inc. v. United States. C. C. P. A. Certiorari denied. Reported below: ------- C. C. P. A. (Cust.)-----------------------------------, 435 F. 2d 569. No. 1517. Mehciz v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 437 F. 2d 145. No. 1519. Whitehead et al. v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 438 F. 2d 123. No. 1524. Morris et al. v. Leonard, Trustee, et al. Ct. Civ. App. Tex., 2d Sup. Jud. Dist. Certiorari denied. Reported below: 457 S. W. 2d 653. No. 1529. Almendarez v. Texas. Ct. Crim. App. Tex. Certiorari denied. Reported below: 460 S. W. 2d 921. ORDERS 975 402 U.S. May 17, 1971 No. 1539. Atlantic Coast Line Railroad Co. et al. v. United States et al. C. A. 2d Cir. Certiorari denied. Reported below: 434 F. 2d 180. No. 1555. American Electric, Inc. v. Oldenkott. Ct. App. Cal., 4th App. Dist. Certiorari denied. Reported below: 14 Cal. App. 3d 198, 92 Cal. Rptr. 127. No. 5187. Arriaga v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied.. No. 5269. Smith v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 423 F. 2d 559. No. 5484. Smith v. Brantley, Warden. C. A. 7th Cir. Certiorari denied. No. 5559. Campbell v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 427 F. 2d 892. No. 5962. Black v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 431 F. 2d 524. No. 6108. Kontos v. Creamer, Attorney General of Pennsylvania, et al. C. A. 3d Cir. Certiorari denied. No. 6317. Streule v. Gulf Finance Corp. C. A. D. C. Cir. Certiorari denied. No. 6342. Klein v. New York. App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied. Reported below: See 27 N. Y. 2d 543, 261 N. E. 2d 261. No. 6451. Winegar v. Buchkoe, Warden. Sup. Ct. Mich. Certiorari denied. No. 6470. Cothran et al. v. San Jose Water Works et al. C. A. 9th Cir. Certiorari denied. No. 6518. Allen v. Tennessee. Ct. Crim. App. Tenn. Certiorari denied. 976 OCTOBER TERM, 1970 May 17, 1971 402 U.S. No. 6467. Brown v. Hendrick, Prisons Superintendent. C. A. 3d Cir. Certiorari denied. Reported below: 431 F. 2d 436. No. 6533. Raguse et al. v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 6554. Johnson v. Illinois. Sup. Ct. Ill. Certiorari denied. Reported below: 47 Ill. 2d 172, 265 N. E. 2d 144. No. 6565. Gaylord v. Wolke, Sheriff. C. A. 7th Cir. Certiorari denied. No. 6664. Hernandez v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 438 F. 2d 676. No. 6685. Hale v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 435 F. 2d 737. No. 6686. Iachino v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 437 F. 2d 92. No. 6687. Knight v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 437 F. 2d 248. No. 6688. Ginsburg v. Richardson, Secretary of Health, Education, and Welfare. C. A. 3d Cir. Certiorari denied. Reported below: 436 F. 2d 1146. No. 6689. Smith v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 436 F. 2d 787. No. 6705. Haslam v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 431 F. 2d 362. No. 6715. King v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 433 F. 2d 937. No. 6745. Corcino v. Government of the Virgin Islands. C. A. 3d Cir. Certiorari denied. Reported below: 438 F. 2d 329. ORDERS 977 402 U.S. May 17, 1971 No. 6716. Castro v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 438 F. 2d 468. No. 6717. Paige v. United States. C. A. 9th Cir. Certiorari denied. No. 6725. Stone v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 435 F. 2d 1402. No. 6738. Redd v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 438 F. 2d 335. No. 6740. Sanders v. Perini, Correctional Superintendent. C. A. 6th Cir. Certiorari denied. No. 6741. Fukumoto v. United States. C. A. 9th Cir. Certiorari denied. No. 6742. Drew et al. v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 436 F. 2d 529. No. 6747. Marxuach v. Puerto Rico Secretary of Justice et al. Sup. Ct. P. R. Certiorari denied. Reported below: ----P. R. R.-----. No. 6748. Lucas v. New York et al. C. A. 2d Cir. Certiorari denied. No. 6749. Adcox v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 6753. Smith v. Bucci Detective Agency et al. C. A. 3d Cir. Certiorari denied. No. 6756. Ramos v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 6761. Manzanares v. Warden, Nevada State Prison. Sup. Ct. Nev. Certiorari denied. No. 6763. Prionas v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 438 F. 2d 1049. 978 OCTOBER TERM, 1970 May 17, 1971 402 U.S. No. 11. Washington et ux. v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 402 F. 2d 3. Mr. Justice Douglas, with whom Mr. Justice Black joins, dissenting. Petitioner Othello Washington was convicted of engaging in the wagering business without payment of the special occupational tax. This took place prior to our decision in Grosso v. United States, 390 U. S. 62, holding unconstitutional against a claim of self-incrimination a conviction under the same statute. In the course of that prosecution a search warrant was obtained and evidence was obtained on the basis of which the present civil suit for excise taxes, fraud penalties, and interest was brought. The central question is whether the evidence obtained by a warrant in the criminal case, which retrospectively contained the constitutional infirmity noted in Grosso, may be used in this civil case. Since, as we held in United States v. Coin & Currency, 401 U. S. 715, our decisions in Grosso and its companion, Marchetti n. United States, 390 U. S. 39, are retroactive, I do not see how evidence obtained by use of a search warrant, issued under the old regime which Grosso and Marchetti put into the discard, can do service for process in this new and wholly different civil proceeding. There are means of discovery provided by the Rules of Civil Procedure* and by a special procedure, 26 U. S. C. § 7602, applicable to civil suits to collect federal taxes. The United States would never dare ask for a search warrant to ferret out the facts necessary for its civil suit. The fact that it obtained evidence by a warrant issued in a procedure incident to an unconstitutional prosecution should not now be turned into a windfall. The Government should turn square corners, not taxpayers alone. *Fed. Rules Civ. Proc. 26-38. ORDERS 979 978 Brennan, J., dissenting In retrospect the warrant should not have issued, though under then-existing law it may have been wholly proper. We should hold the Government to the maxim expressed by Mr. Justice Holmes in Silverthorne Lumber Co. v. United States, 251 U. S. 385, 392: “The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.” I would grant this petition for certiorari. Mr. Justice Brennan, dissenting. The courts below have ordered a sale of petitioner Othello Washington’s farm to satisfy a tax lien. The extent of his liability was determined on the basis of evidence seized by Internal Revenue agents under a search warrant grounded upon the determination that there was probable cause to believe that he was engaged in the wagering business without having registered and paid the required occupational tax. We subsequently held that the Fifth Amendment prohibits the Government from requiring such registration of a gambler who justifiably fears that he will thereby incriminate himself, and who does not waive his privilege against self-incrimination. Marchetti v. United States, 390 U. S. 39 (1968). And we have just this Term held that prohibition applicable whether the failure to register took place before or after Marchetti was decided. United States v. United States Coin & Currency, 401 U. S. 715 (1971). Under these cases, therefore, there is substantial doubt whether the Government could constitutionally punish petitioner for his failure to register.1 By the same token, 1 The Government does not dispute that petitioner’s gambling activities were illegal under state law, and points to nothing in the record that would indicate petitioner would intelligently and knowingly waive his right against self-incrimination. 980 OCTOBER TERM, 1970 May 17, 1971 402 U.S. I think there is a substantial question whether the affidavits supporting the search warrant were sufficient to establish probable cause to believe that petitioner had committed an offense that the Government could constitutionally prohibit. For the affidavits on their face gave reason to believe that petitioner’s gambling activities were in violation of local law,2 and gave no reason to believe that petitioner would waive his right not to incriminate himself of such violations. I may assume that the Government, in showing probable cause to support a search warrant, need not negative any conceivable defense that might be raised by the suspect. Cf. United States v. Ventresca, 380 U. S. 102, 107-109 (1965). But where, as here, the affidavits in support of the warrant indicate the likely existence of an absolute defense to the crime charged that will be unavailing only if explicitly waived by the accused, it is surely not evident that the Fourth Amendment’s requirement of probable cause to believe that an offense has been committed is satisfied. I would grant certiorari and set the case for argument. No. 6768. Molina v. Craven, Warden. C. A. 9th Cir. Certiorari denied. Reported below: 435 F. 2d 554. No. 6769. McGregor v. Watts, Judge. Sup. Ct. Wis. Certiorari denied. No. 6773. Alexander v. Michigan Parole Board. C. A. 6th Cir. Certiorari denied. No. 6798. Makarewicz v. Scafati, Correctional Superintendent. C. A. 1st Cir. s Certiorari denied. Reported below: 438 F. 2d 474. 2 Indeed, the affidavits and the District Court relied upon petitioner’s past arrests on gambling charges to support the finding of probable cause. ORDERS 981 402 U.S. May 17, 1971 No. 6776. Escalante v. Zirpoli, U. S. District Judge. C. A. 9th Cir. Certiorari denied. No. 6780. Becker v. Nebraska. C. A. 8th Cir. Certiorari denied. Reported below: 435 F. 2d 157. No. 6788. Reynolds v. Follette, Correctional Superintendent. C. A. 2d Cir. Certiorari denied. No. 6791. Edgerton v. Batten. C. A. 4th Cir. Certiorari denied. No. 86. Teran et al. v. California. Ct. App. Cal., 1st App. Dist. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 275 Cal. App. 2d 119, 80 Cal. Rptr. 214. No. 110. Porter v. Ashmore et al. C. A. 4th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 421 F. 2d 1186. No. 130. Wenzel v. United States. C. A. 9th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 422 F. 2d 1325. No. 132. Millang v. United States. C. A. 9th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 423 F. 2d 713. No. 141. Brossard v. United States. C. A. 9th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 423 F. 2d 711. No. 142. Harris v. United States. C. A. 9th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. 419-882 0 - 72 - 54 982 OCTOBER TERM, 1970 May 17, 1971 402 U.S. No. 145. Flesch v. United States. C. A. 9th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. No. 149. Dillon v. United States. C. A. 9th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 423 F. 2d 1121. No. 151. Posner v. United States. C. A. 9th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 424 F. 2d 181. No. 173. Kee Ming Hsu v. United States. C. A. 2d Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 424 F. 2d 1286. No. 228. Turner v. United States. C. A. 6th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 426 F. 2d 480. No. 284. Bender v. United States. C. A. 9th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 424 F. 2d 546. No. 411. Tuck v. Oregon. Ct. App. Ore. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 1 Ore. App. 516, 462 P. 2d 175. No. 542. McKinney v. United States. C. A. 6th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 427 F. 2d 449. ORDERS 983 402 U.S. May 17, 1971 No. 1041. David v. United States. C. A. 7th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 432 F. 2d 1293. No. 1234. DeLutro v. United States. C. A. 2d Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 435 F. 2d 255. No. 1242. Lawrence v. Woods, Sheriff, et al. C. A. 7th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 432 F. 2d 1072. No. 1371. Viviano v. United States. C. A. 2d Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 437 F. 2d 295. No. 1479. Consolidation Coal Co. v. South-East Coal Co.; and No. 1483. United Mine Workers of America v. South-East Coal Co. C. A. 6th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 434 F. 2d 767. No. 1516. Silverman et ux. v. Rogers, Secretary of State, et al. C. A. 1st Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 437 F. 2d 102. No. 5081. Donovan v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 272 Cal. App. 2d 413 and 426; 77 Cal. Rptr. 285 and 293. 984 OCTOBER TERM, 1970 May 17, 1971 402 U.S. No. 5062. Zitzer v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. No. 5082. Banks v. United States. C. A. 5th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 413 F. 2d 435. No. 5096. Thomas v. United States. C. A. 2d Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 409 F. 2d 888 and 415 F. 2d 1113. No. 5113. Castillo v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 274 Cal. App. 2d 508, 80 Cal. Rptr. 211. No. 5116. Locklear v. California. Ct. App. Cal., 4th App. Dist. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. No. 5125. Parker v. Maryland. Ct. Sp. App. Md. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 7 Md. App. 167, 254 A. 2d 381. No. 5130. Randazzo v. Follette, Correctional Superintendent. C. A. 2d Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 418 F. 2d 1319. No. 5145. Eason v. United States. C. A. 4th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 420 F. 2d 1384. No. 5199. Soyka v. United States. C. A. 2d Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. ORDERS 985 402 U.S. May 17, 1971 No. 5155. Keith v. United States. C. A. 9th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 421 F. 2d 1295. No. 5159. Jones v. United States. C. A. 4th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 423 F. 2d 636. No. 5186. Blassick v. United States. C. A. 7th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 422 F. 2d 652. No. 5341. Guitian v. United States. C. A. 2d Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. No. 5358. Walker v. United States. C. A. 1st Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 424 F. 2d 1069. No. 5651. Hamilton v. United States. C. A. 2d Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. No. 5664. Robbins v. United States. C. A. 6th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 424 F. 2d 57. No. 5669. Williams v. United States. C. A. 9th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 428 F. 2d 365. No. 5717. Verdugo v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. 986 OCTOBER TERM, 1970 May 17, 1971 402 U.S. No. 5897. Bigsby v. United States. C. A. D. C. Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 140 U. S. App. D. C. 188, 434 F. 2d 462. No. 5918. Leach et al. v. United States. C. A. 8th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 429 F. 2d 956. No. 6037. Harris v. United States. C. A. D. C. Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 140 U. S. App. D. C. 270, 435 F. 2d 74. No. 6090. Oliva v. United States. C. A. 2d Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 432 F. 2d 130.’ No. 6228. Davis v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. No. 6400. Webster et al. v. United States. C. A. 4th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 426 F. 2d 289. No. 6777. Ragan v. Richardson, Secretary of Health, Education, and Welfare. C. A. 6th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 435 F. 2d 239. No. 104. Wild et al. v. United States. C. A. 2d Cir. Certiorari denied. Mr. Justice Black and Mr. Justice Douglas are of the opinion that certiorari should be granted. Reported below: 422 F. 2d 34. ORDERS 987 402 U.S. May 17, 1971 No. 6502. Williams v. United States. C. A. 2d Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. No. 313. Orito v. United States. C. A. 9th Cir. Certiorari denied. Mr. Justice Black and Mr. Justice Douglas are of the opinion that certiorari should be granted. Reported below: 424 F. 2d 276. No. 356. Evans v. United States. C. A. 9th Cir. Certiorari denied. Mr. Justice Black and Mr. Justice Douglas are of the opinion that certiorari should be granted. Reported below: 425 F. 2d 302. No. 1018. Norman v. United States. C. A. 9th Cir. Certiorari denied. Mr. Justice Black and Mr. Justice Douglas are of the opinion that certiorari should be granted. No. 1537. Eisenberg et al. v. Wisconsin. Sup. Ct. Wis. Certiorari denied. Mr. Justice Black and Mr. Justice Douglas are of the opinion that certiorari should be granted. Reported below: 48 Wis. 2d 364, 180 N. W. 2d 529. No. 1370. Lamp, Administratrix v. United States Steel Corp, et al.; No. 1475. Fuhrman, Administratrix, et al. v. United States Steel Corp, et al.; and No. 1497. Cook, Administratrix v. United States Steel Corp, et al. C. A. 6th Cir. Certiorari denied. Mr. Justice Black, Mr. Justice Douglas, and Mr. Justice Brennan are of the opinion that certiorari should be granted. Reported below: 436 F. 2d 1256. No. 1493. Vernitron Corp, et al. v. Benjamin. C. A. 2d Cir. Certiorari denied. Mr. Justice Douglas took no part in the consideration or decision of this petition. Reported below: 440 F. 2d 105. 988 OCTOBER TERM, 1970 May 17, 1971 402 U.S. No. 6051. Sutton v. United States. C. A. D. C. Cir. Certiorari denied. Mr. Justice Black and Mr. Justice Douglas are of the opinion that certiorari should be granted. Reported below: 140 U. S. App. D. C. 188, 434 F. 2d 462. No. 1442. Clement A. Evans & Co., Inc. v. A. M. Kidder & Co., Inc., et al. C. A. 5th Cir. Certiorari denied. Mr. Justice Douglas and Mr. Justice White are of the opinion that certiorari should be granted. Reported below: 434 F. 2d 100. No. 1469. Homart Development Co. v. Diamond et al. Sup. Ct. Cal. Certiorari denied. The Chief Justice and Mr. Justice Blackmun are of the opinion that certiorari should be granted. Reported below: 3 Cal. 3d 653, 91 Cal. Rptr. 501. No. 1484. Schoop et al. v. Mitchell, Attorney General, et al. C. A. D. C. Cir. Certiorari denied. Mr. Justice White took no part in the consideration or decision of this petition. Reported below: —— U. S. App. D. C.-----, 444 F. 2d 863. No. 1491. Hoffa et al. v. United States. C. A. 6th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Mr. Justice Stewart, Mr. Justice White, and Mr. Justice Marshall took no part in the consideration or decision of this petition. Reported below: 437 F. 2d 11. No. 1494. Hobson et al. v. Board of Elections for the District of Columbia et al. C. A. D. C. Cir. Certiorari denied. Mr. Justice Black, with whom Mr. Justice Douglas joins, is of the opinion that certiorari should be granted on the basis of Mr. Justice Black’s dissent in United Public Workers v. Mitchell, 330 U. S. 75, 105 (1947). Reported below: ------U. S. App. D. C. --------------------------------------, 444 F. 2d 874. ORDERS 989 402 U.S. May 17, 1971 No. 1506. Boston & Providence Railroad Development Group v. Bartlett, Trustee, et al. C. A. 1st Cir. Motion to defer consideration of this petition denied. Certiorari denied. Mr. Justice Marshall took no part in the consideration or decision of this motion and petition. Reported below: 435 F. 2d 825. No. 1561. Continental/Moss-Gordin et al. v. B-M-G Investment Co. et al. C. A. 5th Cir. Motion of respondents for damages for delay denied. Certiorari denied. Reported below: 437 F. 2d 892. No. 5849. Pino v. United States. C. A. 2d Cir. Motion for leave to file supplemental petition granted. Certiorari denied. Reported below: 431 F. 2d 1043. No. 6519. Brady v. Ohio. Sup. Ct. Ohio. Motion for leave to amend petition granted. Certiorari denied. No. 6529. Maret v. United States. C. A. 8th Cir. Certiorari denied. Mr. Justice Blackmun took no part in the consideration or decision of this petition. Reported below: 433 F. 2d 1064. No. 6784. Barney v. United States. C. A. 7th Cir. Certiorari denied. Mr. Justice Marshall took no part in the consideration or decision of this petition. No. 6799. Grimes et al. v. United States. C. A. 6th Cir. Certiorari denied. Mr. Justice Stewart is of the opinion that certiorari should be granted. Reported below: 438 F. 2d 391. Rehearing Denied No. 169. Radich v. New York, 401 U. S. 531. Petition for rehearing denied. Mr. Justice Douglas took no part in the consideration or decision of this petition. 990 OCTOBER TERM, 1970 May 17, 1971 402 U.S. No. 13. United States v. White, 401 U. S. 745; No. 43. Shevin et al. v. Lazarus, 401 U. S. 987; No. 975. Colson et al. v. Morton, Secretary of the Interior, 401 U. S. 911; No. 1170. Farkas v. Texas Instruments, Inc., 401 U. S. 974; No. 1251. Southland Incorporated v. Cox Enterprises, Inc., et al., 401 U. S. 993; No. 1284. Balc v. Parsons et al., 401 U. S. 986; No. 5257. Labine, Tutrix v. Vincent, Administrator, 401 U. S. 532; No. 5481. SCHLANGER V. SEAMANS, SECRETARY OF THE Air Force, et al., 401 U. S. 487; No. 5980. Brown v. LaVallee, Warden, 401 U. S. 942; No. 6297. Wright v. District Court of Montgomery County, 401 U. S. 1011; and No. 6517. Benoit v. United States, 401 U. S. 1011. Petitions for rehearing denied. No. 993, October Term, 1968. University of Illinois Foundation v. Winegard Co., 394 U. S. 917. Motion for leave to file petition for rehearing denied. The Chief Justice and Mr. Justice Blackmun took no part in the consideration or decision of this motion. No. 237. Berend v. J. F. Pritchard & Co., 400 U. S. 823. Motion for leave to file petition for rehearing denied. No. 1382. MacLeod v. United States, ante, p. 907. Motion to dispense with printing petition for rehearing granted. Petition for rehearing denied. No. 6200. Emmons v. Taylor et al., 401 U. S. 1010. Petition for rehearing and other relief denied. ORDERS 991 402 U. S. May 20, 24, 1971 May 20, 1971 Miscellaneous Order No. 6945. Spencer v. Georgia. C. A. 5th Cir. Application for stay and/or injunction, referred to the Court by Mr. Justice Brennan, denied. Reported below: 441 F. 2d 397. May 24, 1971 Affirmed on Appeal No. 1262. Wyman, Commissioner of New York Department of Social Services, et al. v. Boddie et al. Appeal from C. A. 2d Cir. Motion of appellees for leave to proceed in forma pauperis granted. Judgment affirmed. [For earlier order herein, see 401 U. S. 990.] No. 1373. Wyman, Commissioner of New York Department of Social Services, et al. v. Rosado et al. Appeal from C. A. 2d Cir. Motion of appellees for leave to proceed in forma pauperis granted. Judgment affirmed. Reported below: 437 F. 2d 619. Appeals Dismissed No. 1328. Lashley et al. v. Maryland. Appeal from Ct. Sp. App. Md. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted and case set for oral argument. Reported below: 10 Md. App. 136, 268 A. 2d 502. No. 6555. Burton v. New York. Appeal from Ct. App. N. Y. It appears that sentences imposed under judgment sought to be reviewed were concurrent and appeal therefore dismissed. Reported below: 27 N. Y. 2d 198, 265 N. E. 2d 66. 992 OCTOBER TERM, 1970 May 24, 1971 402 U. S. No. 1504. Giannatti et al. v. County of Los Angeles. Appeal from Ct. App. Cal., 2d App. Dist., dismissed for want of substantial federal question. Mr. Justice Douglas, with whom Mr. Justice Brennan and Mr. Justice Blackmun concur, dissenting: I would note probable jurisdiction of this appeal and set the case for argument. Under California law a county is liable for damages for intentional assault and battery of a civilian by a member of the police force. Cal. Govt. Code § 815.2 (a) (1966), Scruggs v. Haynes, 252 Cal. App. 2d 256, 60 Cal. Rptr. 355. But the statute exempts any injury to “any prisoner.” Cal. Govt. Code § 844.6 (a)(2) (Supp. 1971). The California courts have sustained the constitutionality of the exemption of prisoners against the claim that it violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Sanders v. County of Yuba, 247 Cal. App. 2d 748, 55 Cal. Rptr. 852. The Sanders case was followed in the present one. While a prisoner loses some civil rights, nevertheless as stated by Judge, now Mr. Justice, Blackmun in Jackson v. Bishop, 404 F. 2d 571, 576, “he continues to be protected by the due process and equal protection clauses which follow him through the prison doors.” The equal protection question is a substantial one which we should decide only after oral argument. No. 6588. Pardo v. Illinois. Appeal from Sup. Ct. Ill. dismissed for want of substantial federal question. Reported below: 47 Ill. 2d 420, 265 N. E. 2d 656. Miscellaneous Orders No. 6911. Jackson v. Warden, Maryland Penitentiary. Motion for leave to file petition for writ of habeas corpus denied. ORDERS 993 402 U. S. May 24, 1971 No. 598, Mise., October Term, 1964. Williamson et al. v. Gilmer et al., 379 U. S. 955. Motion to recall and amend order of this Court of January 18, 1965, denied. The Chief Justice, Mr. Justice Marshall, and Mr. Justice Blackmun took no part in the consideration or decision of this motion. No. 1. Anderson v. Kentucky. Ct. App. Ky. Motion for restraining order presented to Mr. Justice Brennan, and by him referred to the Court, denied. Reported below: 353 S. W. 2d 381. [For earlier orders herein, see, e. g., 371 U. S. 886 and 937.] No. 910. Allied Chemical & Alkali Workers of America, Local Union No. 1 v. Pittsburgh Plate Glass Co., Chemical Division, et al. ; and No. 961. National Labor Relations Board v. Pittsburgh Plate Glass Co., Chemical Division, et al. C. A. 6th Cir. [Certiorari granted, 401 U. S. 907.] Motion of the Solicitor General for additional time for oral argument granted and 15 additional minutes allotted for that purpose. Respondents likewise allotted 15 additional minutes for oral argument. No. 1159. Superintendent of Insurance of New York v. Bankers Life & Casualty Co. et al. C. A. 2d Cir. [Certiorari granted, 401 U. S. 973.] Motion of the Solicitor General for leave to permit the Securities and Exchange Commission to participate in oral argument as amicus curiae in support of petitioner granted, and 15 minutes allowed for this purpose. Respondents allotted 15 additional minutes for oral argument. No. 1454. Picard v. Connor. C. A. 1st Cir. [Certiorari granted, ante, p. 942.] Motion for appointment of counsel granted. It is ordered that James J. Twohig, Esquire, of South Boston, Massachusetts, a member of the Bar of this Court, be, and he is hereby, appointed to serve as counsel for respondent in this case. 994 OCTOBER TERM, 1970 May 24, 1971 402 U. S. No. 6568. McKinney v. United States Court of Appeals for the Ninth Circuit et al. Motion for leave to file petition for writ of mandamus denied. Probable Jurisdiction Noted No. 6744. Carter et al. v. Stanton, Director, Marion County Department of Public Welfare, et al. Appeal from D. C. S. D. Ind. Motion of appellants for leave to proceed in forma pauperis granted. Probable jurisdiction noted. No. 6966. Epps et al. v. Cortese et al. Appeal from D. C. E. D. Pa. Motion of appellants for leave to proceed in forma pauperis granted. Probable jurisdiction noted and case set for oral argument immediately following No. 6060. [Sub nom. Fuentes et al. v. Shevin, Attorney General of Florida, et al., probable jurisdiction noted, 401 U. S. 906.] Reported below: 326 F. Supp. 127. Certiorari Granted No. 1470. Norfolk & Western Railway Co. v. Nemitz et al. C. A. 6th Cir. Certiorari granted. Reported below: 436 F. 2d 841. No. 1480. Santobello v. New York. App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari granted. Reported below: 35 App. Div. 2d 1084, 316 N. Y. S. 2d 194. No. 1536. Wisconsin v. Yoder et al. Sup. Ct. Wis. Certiorari granted. Reported below: 49 Wis. 2d 430, 182 N. W. 2d 539. No. 1289. Pipefitters Local Union No. 562 et al. v. United States. C. A. 8th Cir. Certiorari granted. Mr. Justice Blackmun took no part in the consideration or decision of this petition. Reported below: 434 F. 2d 1116 and 1127. ORDERS 995 402 U. S. May 24, 1971 No. 6401. Kirby v. Illinois. App. Ct. HL, 1st Dist. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted limited to Question 2 presented in the petition which reads as follows: “(2) Whether due process requires that an accused be advised of his right to counsel prior to a pre-indictment showup at a police station several hours after his arrest and forty-eight hours after the alleged crime occurred.” Reported below: 121 Ill. App. 2d 323, 257 N. E. 2d 589. Certiorari Denied. (See also No. 1328, supra.) No. 1414. Gooch et al. v. Mitchell, Attorney General, et al. C. A. 9th Cir. Certiorari denied. Reported below: 433 F. 2d 74. No. 1429. Fincke et al. v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 437 F. 2d 856. No. 1447. Andrews v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 434 F. 2d 978. No. 1518. Keene v. Jackson County et al. Ct. App. Ore. Certiorari denied. Reported below: 3 Ore. App. 551, 474 P. 2d 777. No. 1527. Eldon Industries, Inc., et al. v. Superior Court of California, County of Los Angeles (Clowes, Real Party in Interest). Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 1530. Elvin v. United States. C. A. 2d Cir. Certiorari denied. No. 1535. Franzese v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 438 F. 2d 536. No. 1544. Swanney-McDonald, Inc. v. Gray et al. C. A. 9th Cir. Certiorari denied. Reported below: 436 F. 2d 652. 996 OCTOBER TERM, 1970 May 24, 1971 402 U. S. No. 1566. Chicago, Rock Island & Pacific Railroad Co. et al. v. Chicago, Burlington & Quincy Railroad Co. C. A. 7th Cir. Certiorari denied. Reported below: 437 F. 2d 6. No. 1600. Compania de Navegacione Almirante S. A., Panama v. Beverly Hills National Bank. C. A. 9th Cir. Certiorari denied. Reported below: 437 F. 2d 301. No. 6440. Thomas v. Illinois. App. Ct. Ill., 5th Dist. Certiorari denied. Reported below: 120 Ill. App. 2d 219, 256 N. E. 2d 870. No. 6604. Greene v. City of Chicago. Sup. Ct. Ill. Certiorari denied. Reported below: 47 Ill. 2d 30, 264 N. E. 2d 163. No. 6615. Papa v. Florida. Dist. Ct. App. Fla., 1st Dist. Certiorari denied. Reported below: 236 So. 2d 459. No. 6657. Driver v. Cady, Warden. C. A. 7th Cir. Certiorari denied. No. 6666. Dunn v. New York. App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied. No. 6751. Shopa v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 438 F. 2d 1062. No. 6755. Kimball v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 437 F. 2d 921. No. 6762. Booker v. Tennessee. Sup. Ct. Tenn. Certiorari denied. No. 6771. Taft v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 438 F. 2d 48. No. 6772. Sparks v. Metzger, Sheriff. C. A. 6th Cir. Certiorari denied. ORDERS 997 402 U. S. May 24, 1971 No. 6781. McPherson v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 436 F. 2d 1066. No. 6801. Ector v. Smith, Warden. C. A. 5th Cir. Certiorari denied. Reported below: 438 F. 2d 975. No. 6804. Wilson v. Follette, Correctional Superintendent. C. A. 2d Cir. Certiorari denied. Reported below: 438 F. 2d 1197. No. 6808. Clermont v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 432 F. 2d 1215. No. 6811. Stallings v. Indiana. Sup. Ct. Ind. Certiorari denied. Reported below: ------- Ind. ----, 264 N. E. 2d 618. No. 6812. Lo Cicero v. New York. Ct. App. N. Y. Certiorari denied. Reported below: 28 N. Y. 2d 525, 267 N. E. 2d 885. No. 6814. Wade v. Haynes, Warden. Sup. Ct. App. W. Va. Certiorari denied. No. 6816. Brown v. Brierley, Correctional Superintendent. C. A. 3d Cir. Certiorari denied. Reported below: 438 F. 2d 954. No. 6818. Tracy et ux. v. Chandler et al., U. S. Circuit Judges. C. A. 10th Cir. Certiorari denied. No. 6819. Skinner v. United States. C. A. 1st Cir. Certiorari denied. No. 6820. Stovall v. Illinois. Sup. Ct. Ill. Certiorari denied. Reported below: 47 Ill. 2d 42, 264 N. E. 2d 174. No. 6822. Nelson v. Warden, Kansas State Penitentiary. C. A. 10th Cir. Certiorari denied. Reported below: 436 F. 2d 961. 419-882 0 - 72 - 55 998 OCTOBER TERM, 1970 May 24, 1971 402 U. S. No. 6824. King v. North Carolina. C. A. 4th Cir. Certiorari denied. No. 6826. Tippett v. Haynes, Warden. Sup. Ct. App. W. Va. Certiorari denied. No. 6830. Willoughby v. Lash, Warden. C. A. 7th Cir. Certiorari denied. No. 6833. Negron v. Wallace et al. C. A. 2d Cir. Certiorari denied. Reported below: 436 F. 2d 1139. No. 6834. Boag v. Craven, Warden. C. A. 9th Cir. Certiorari denied. No. 6839. Schlette v. Craven, Warden. C. A. 9th Cir. Certiorari denied. No. 6841. Murray v. New Jersey. Sup. Ct. N. J. Certiorari denied. No. 6846. Jones v. Director, Patuxent Institution. Ct. Sp. App. Md. Certiorari denied. No. 6850. Goodale v. Florida. Dist. Ct. App. Fla., 4th Dist. Certiorari denied. Reported below: See 245 So. 2d 256. No. 6851. Williams v. Neil, Warden. C. A. 6th Cir. Certiorari denied. No. 6854. Pelicie v. New York. App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied. Reported below: 35 App. Div. 2d 780, 784, 315 N. Y. S. 2d 291. No. 1199. Cook County College Teachers Union, Local 1600, et al. v. Board of Junior College District No. 508, County of Cook, et al. App. Ct. HL, 1st Dist. Motion for leave to supplement petition granted. Certiorari denied. Reported below: 126 Ill. App. 2d 418, 262 N. E. 2d 125. ORDERS 999 402 U. S. May 24, 1971 No. 1322. Pennsylvania v. Davis. Sup. Ct. Pa. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied. Reported below: 440 Pa. 123, 270 A. 2d 199. No. 1355. Middlewest Motor Freight Bureau et al. v. United States et al. C. A. 8th Cir. Certiorari denied. Mr. Justice Stewart is of the opinion that certiorari should be granted. Mr. Justice Black-mun took no part in the consideration or decision of this petition. Reported below: 433 F. 2d 212. No. 1395. DeSapio v. United States. C. A. 2d Cir. Certiorari denied. Mr. Justice Douglas and Mr. Justice Stewart are of the opinion that certiorari should be granted. Mr. Justice White took no part in the consideration or decision of this petition. Reported below: 435 F. 2d 272. No. 1531. Davis v. Members of Selective Service Board No. 30 of Dallas, Texas, et al. C. A. 5th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 433 F. 2d 736. No. 1540. Berzanskis v. Daley et al. Sup. Ct. Ill. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 47 Ill. 2d 395, 269 N. E. 2d 716. No. 1543. Nix v. United States. C. A. 9th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 437 F. 2d 746. No. 5157. Chambers et al. v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 276 Cal. App. 2d 89, 80 Cal. Rptr. 672. 1000 OCTOBER TERM, 1970 May 24, 1971 402 U. S. No. 6106. Tarver v. Smith, Secretary of Department of Social and Health Services of Washington. Sup. Ct. Wash. Certiorari denied. Mr. Justice Brennan is of the opinion that certiorari should be granted. Reported below: 78 Wash. 2d 152, 470 P. 2d 172. [For earlier order herein, see 401 U. S. 906.] Mr. Justice Douglas, dissenting. The ability of the Government and private agencies to gather, retain, and catalogue information on anyone for their unfettered use raises problems concerning the privacy and dignity of individuals.1 Public and private agencies are storing more and more data. “If your name is not in the records of at least one credit bureau, it doesn’t mean that you don’t rate. What it does mean is that you are either under twenty-one or dead.” 2 A file may show that an individual was arrested. But will it show the arrest was unconstitutional because it was solely for purposes of investigation? Or that the charges were dropped? Or that a jury acquitted him? Other “facts” may be in a file. Did he vote for Henry Wallace? Was he cited by HUAC? Is he subversive? Did he ever belong to any subversive organizations? Private files amass similar irrelevancies and subjective information. Is he well regarded in his neighborhood as to character and habits? Does he have domestic difficulties? Is he “slow” in paying his bills? 1 Law reviews have been devoting increasing attention to the problem. Recently two total issues have been devoted to the legal problems. See 15 U. C. L. A. L. Rev. 1374 and 31 Law & Contemp. Prob. 251. See also Symposium: Computers, Data Banks, and Individual Privacy, 53 Minn. L. Rev. 211; Note, Privacy and Efficient Government: Proposals for a National Data Center, 82 Harv. L. Rev. 400; Freed, A Legal Structure for a National Medical Data Center, 49 B. U. L. Rev. 79; Miller, Personal Privacy in the Computer Age, 67 Mich. L. Rev. 1091. 2 H. Black, Buy Now, Pay Later 37 (1961). ORDERS 1001 1000 Douglas, J., dissenting The problems of a computerized society 3‘ with large data banks are immense. Who should have access to the files on an individual? For what purposes should access be allowed? Should an individual be informed each time information is passed on to new parties? How long should information be retained? What mechanisms ought there be for correcting factual errors? This case presents the latter issue. A caseworker has prepared a highly critical report on petitioner setting forth in detail factual allegations and accusing petitioner of child neglect. The report recommends that petitioner be permanently deprived of the custody of her children. Custody was temporarily placed in juvenile court because petitioner was hospitalized. Subsequently a hearing in juvenile court was held and petitioner was exonerated and retained custody of her children. But the critical report—which petitioner alleges is false— remains in the files with the Department of Social and Health Services of the State of Washington. Not surprisingly, petitioner would like the allegedly false information removed from those files. But her efforts to obtain a hearing to correct the information have failed. The State says that petitioner’s file is “confidential and privileged” and under current state law the file may be disclosed only “for purposes directly connected with the administration of public assistance and specific investigatory purposes by legislative committees and properly authorized bodies.” Respondent’s Brief 6. Just how many people and agencies this includes is unclear. The only thing perfectly clear from this record is that '3“[T]he computer can also be an agent of oppression, if, for example, its fantastic memory is used to place indelibly on record all the events in a man’s life, all his mistakes and weaknesses, precluding all hope of their effacement, every stimulating possibility of a new chance in life.” R. Prebisch, Change and Development, Latin America’s Great Task 209 (1970). 1002 OCTOBER TERM, 1970 Douglas, J., dissenting 402U.S. petitioner has no rights under state law to a hearing to correct the reports even if they are total lies. And it appears petitioner will never be informed prior to transmittal of her file to the various “authorized” groups. The State contends that petitioner will suffer no harm from having the material in her files. We are told everyone will know the report is only an opinion; the decree of the juvenile court will be included; and the file will be treated confidentially. While, of course, we cannot know if the information is false and cannot tell which and how many uses will be made of the file, it is apparent that petitioner does raise some serious questions concerning its use. Participation “in the new Work-Incentive Programs is initiated by a referral by respondent’s department of, among others, persons who are ‘appropriate for referral.’ R. C. W. 74.22.020; 74.23.040. Those who are referred receive substantial training benefits as well as increased cash benefits. R. C. W. 74.22.050, 060; R. C. W. 74.23.060, 070. Similarly, the availability of sheltered workshop programs depends upon a determination by the respondent’s department that the subject, if a ‘disadvantaged person,’ ‘can reasonably be expected to benefit from, or in his best interests reasonably requires’ such a program. R. C. W. 28A.10.080 (2).” Petition 7 n. 2. The only answer that respondent gives to this is that any “information transmitted to the Employment Security Department under the Work Incentive Program is for the benefit of the recipient.” How petitioner would benefit from the transmission of the allegedly false material we are not told. The Washington State public assistance programs are designed to receive federal assistance whenever federal funds are available. Various provisions in the appropriate title of the Revised Code of Washington dealing with public assistance refer to conformity with and pri ORDERS 1003 1000 Douglas, J., dissenting macy of federal law. E. g., Wash. Rev. Code § 74.04.055 (Supp. 1970) (if more than one construction possible, favor that “most likely to satisfy federal laws”); Wash. Rev. Code § 74.23.005 (Supp. 1970) (“The legislature hereby expresses its intention to comply with the requirements under the federal social security act, as amended, creating a work incentive program” for mothers receiving Aid to Families with Dependent Children); Wash. Rev. Code § 74.23.900 (Supp. 1970) (if any part of the chapter conflicts with federal law it is to that extent inoperative). The record in this case is not clear as to which types of public assistance petitioner is receiving. Prior to the temporary unsuccessful attempt to remove her children from her custody she was receiving AFDC benefits. From the references in the briefs to eligibility for the AFDC Work Incentive Program it would appear that she is now again receiving AFDC benefits. When federal funds are used, then standards are to be shaped and tested federally. Helvering v. Davis, 301 U. S. 619; Ivanhoe Irrig. Dist. v. McCracken, 357 U. S. 275, 295; Rosado v. Wyman, 397 U. S. 397, 427 (concurring opinion). If meanwhile she was denied a fair hearing under state law, an important question of procedural due process is raised under the Fourteenth Amendment. For petitioner’s right to continued assistance—an important property interest—cannot be reduced or terminated without notice and an opportunity to be heard. Cf. Sniadach n. Family Finance Corp., 395 U. S. 337. If petitioner was at the time receiving federal assistance then under HEW Regulations, she was entitled to a fair hearing. The Department’s regulations require that provision be made for granting a fair hearing: “to any individual requesting a hearing because his claim for financial or medical assistance is de 1004 OCTOBER TERM, 1970 Douglas, J., dissenting 402U.S. nied, or is not acted upon with reasonable promptness, or because he is aggrieved by any other agency action affecting receipt, suspension, reduction, or termination of such assistance or by agency policy as it affects his situation.” 45 CFR § 205.10 (a)(3), eff. April 14, 1971 (emphasis added). 36 Fed. Reg. 3034. As the Solicitor General says in his brief, filed at our request: “One may say, quite simply, that the report which petitioner challenges threatens receipt of AFDC payments by threatening to deprive petitioner of her children, on which her receipt of AFDC benefits depends. One of the federal requirements for a state plan for AFDC is that it must: “(16) provide that where the State agency has reason to believe that the home in which a relative and child receiving aid reside is unsuitable for the child because of the neglect, abuse, or exploitation of such child it shall bring such condition to the attention of the appropriate court or law enforcement agencies in the State, providing such data with respect to the situation it may have [42 U. S. C. (Supp. IV) 602 (a) (16)]. “If any question were now to arise as to the suitability of the home for the children, the prior report might well have an effect on referral of the case to the courts and action by the courts, notwithstanding the 1967 decision of the Juvenile Court. Thus, the report retains a constant potential effect on petitioner’s custody of her children and thereby on her receipt of assistance.” We cannot be sure of the exact posture of this case; ORDERS 1005 402 U. S. May 24, 1971 but whether or not the claim at the time was federally funded, a question of national importance is presented. Accordingly, I would grant the petition for certiorari. No. 6527. Freeman v. Joiner et al. Sup. Ct. Pa. Certiorari denied. Mr. Justice Black and Mr. Justice Douglas are of the opinion that certiorari should be granted. No. 6828. Mooney v. United States. C. A. 8th Cir. Certiorari denied. Mr. Justice Blackmun took no part in the consideration or decision of this petition. Rehearing Denied No. 6223. In re Disbarment of Chipley, 401 U. S. 1010; No. 6284. Donovan v. United States et al., 401 U. S. 944; No. 6319. Ney v. Field, Men’s Colony Superintendent, ante, p. 904; No. 6464. Eisenhardt v. United States, ante, p. 928; and No. 6510. CoOKMEYER V. LOUISIANA DEPARTMENT OF Highways, 401 U. S. 980. Petitions for rehearing denied. Assignment Order 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 October 12, 1971, and ending October 15, 1971, and for such additional time in advance thereof to prepare for the trial of cases, or thereafter 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. 1006 OCTOBER TERM, 1970 402 U. S. June 1, 1971 Affirmed on Appeal No. 1394. Granite Falls State Bank v. Schneider, Director of Department of General Administration, et al. Affirmed on appeal from D. C. W. D. Wash. Reported below: 319 F. Supp. 1346. Appeals Dismissed No. 1574. Lowe v. Young. Appeal from Ct. App. Ga. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. Reported below: 123 Ga. App. 121, 179 S. E. 2d 546. No. 6901. Swaney v. North Carolina. Appeal from Sup. Ct. N. C. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. Reported below: 277 N. C. 602, 178 S. E. 2d 399. Certiorari Granted—Vacated and Remanded No. 6662. Nelson v. United States. C. A. 8th Cir. Motion for leave to proceed in forma pauperis granted. Pursuant to suggestion of the Solicitor General, certiorari granted, judgment vacated, and case remanded for reconsideration in light of position asserted by the Solicitor General in the Memorandum for the United States. Application for bail also referred to the United States Court of Appeals for the Eighth Circuit. Reported below: 434 F. 2d 748. No. 6704. Gaines v. United States. C. A. 2d Cir. Motion for leave to proceed in forma pauperis granted. Pursuant to suggestion of the Solicitor General, certiorari granted, judgment vacated, and case remanded for reconsideration in light of position asserted by the Solicitor General in the Memorandum for the United States. Reported below: 436 F. 2d 1069. ORDERS 1007 402 U.S. June 1, 1971 Miscellaneous Orders No. 910. Allied Chemical & Alkali Workers of America, Local Union No. 1 v. Pittsburgh Plate Glass Co., Chemical Division, et al. ; and No. 961. National Labor Relations Board v. Pittsburgh Plate Glass Co., Chemical Division, et al. C. A. 6th Cir. [Certiorari granted, 401 U. S. 907.] Motion of National Council of Senior Citizens to file a brief as amicus curiae granted. No. 958. Federal Power Commission v. Florida Power & Light Co. C. A. 5th Cir. [Certiorari granted, 401 U. S. 907.] Motion of Gainesville Utilities Department et al. for leave to file a brief as amici curiae granted. Mr. Justice Blackmun took no part in the consideration or decision of this motion. No. 1622. WHDH, Inc. v. Federal Communications Commission et al.; No. 1708. Charles River Civic Television, Inc. v. Federal Communications Commission et al.; and No. 1716. Greater Boston Television Corp. v. Federal Communications Commission et al. C. A. D. C. Cir. Motion for expeditious treatment of petitions for writs of certiorari denied. Motion for conditional revocation of stay also denied. The Chief Justice took no part in the consideration or decision of these motions. Reported below:----U. S. App. D. C. —, 444 F. 2d 841. No. 1689. Pruett v. Texas et al. Ct. Crim. App. Tex. Reapplication for stay and other relief denied. Reported below: 465 S. W. 2d 164. No. 5850. Townsend et al. v. Swank, Director, Department of Public Aid of Illinois, et al.; and No. 6000. Alexander et al. v. Swank, Director, Department of Public Aid of Illinois, et al. Appeals from D. C. N. D. Ill. [Probable jurisdiction noted, 401 U. S. 906.] Motion for additional time for argument denied. 1008 OCTOBER TERM, 1970 June 1, 1971 402 U.S. No. 6979. Davis v. Pope, Medical Facility Superintendent ; and No. 7034. Ray v. Brierley, Correctional Superintendent. Motions for leave to file petitions for writs of habeas corpus denied. No. 6848. Ruderer v. Regan, U. S. District Judge. Motion for leave to file petition for writ of mandamus denied. Mr. Justice Blackmun took no part in the consideration or decision of this motion. Certiorari Granted No. 1419. California Motor Transport Co. et al. v. Trucking Unlimited et al. C. A. 9th Cir. Certiorari granted. Reported below: 432 F. 2d 755. No. 6810. McClanahan v. Morauer & Hartzell, Inc., et al. C. A. D. C. Cir. Motion for leave to proceed in forma pauperis and certiorari granted. Reported below: 142 U. S. App. D. C. 40, 439 F. 2d 550. Certiorari Denied. (See also Nos. 1574 and 6901, supra.) No. 1476. Ferrone v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 438 F. 2d 381. No. 1542. Allen v. VanCantfort. C. A. 1st Cir. Certiorari denied. Reported below: 436 F. 2d 625. No. 1545. Karnes v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 437 F. 2d 284. No. 1547. General Radio Co. v. Kepco, Inc. C. A. 2d Cir. Certiorari denied. Reported below: 435 F. 2d 135. No. 1551. Weber v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 437 F. 2d 1218. No. 1553. Carpenter v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 438 F. 2d 526. ORDERS 1009 402 U.S. June 1, 1971 No. 1559. Alonzo v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 439 F. 2d 991. No. 1567. Gallagher v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 437 F. 2d 1191. No. 1568. Bean et al. v. Illinois. App. Ct. Ill., 1st Dist. Certiorari denied. Reported below: 121 Ill. App. 2d 290, 257 N. E. 2d 558. No. 1577. Gerstein v. Maryland. Ct. Sp. App. Md. Certiorari denied. Reported below: 10 Md. App. 322, 270 A. 2d 331. No. 1579. Hartford Accident & Indemnity Co. v. Eastern Airlines, Inc. C. A. 5th Cir. Certiorari denied. Reported below: 437 F. 2d 449. No. 1580. Cascade Car Wash, Inc. v. Laurent Watch Co., Inc., dba Cascade Car Wash. C. A. 9th Cir. Certiorari denied. Reported below: 437 F. 2d 122. No. 1582. Steiner v. Officer in Command, Armed Forces Examining and Induction Center at Houston, Texas, et al. C. A. 5th Cir. Certiorari denied. Reported below: 436 F. 2d 687. No. 1631. Noe v. Chicago Great Western Railway Co. App. Ct. Ill., 1st Dist. Certiorari denied. Reported below: 263 N. E. 2d 889. No. 6563. Norman v. New Jersey. Sup. Ct. N. J. Certiorari denied. Reported below: 57 N. J. 165, 270 A. 2d 409. No. 6592. Smith v. Illinois. Sup. Ct. Ill. Certiorari denied. Reported below: 46 Ill. 2d 424, 263 N. E. 2d 860. 1010 OCTOBER TERM, 1970 June 1, 1971 402 U.S. No. 6593. Reyes v. California. Ct. App. Cal., 1st App. Dist. Certiorari denied. No. 6629. Wood v. Gaffney, Warden. C. A. 10th Cir. Certiorari denied. Reported below: 436 F. 2d 1077. No. 6630. Mitchell v. Illinois. App. Ct. Ill., 1st Dist. Certiorari denied. Reported below: 128 Ill. App. 2d 90, 262 N. E. 2d 798. No. 6651. Green v. Michigan. Sup. Ct. Mich. Certiorari denied. Reported below: 383 Mich. 812. No. 6732. Jiminez-Lopez et al. v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 437 F. 2d 791. No. 6785. Maxwell et al. v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 439 F. 2d 135. No. 6789. Wahlquist v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 438 F. 2d 219. No. 6797. Evans v. United States. C. A. D. C. Cir. Certiorari denied. Reported below: 141 U. S. App. D. C. 321, 438 F. 2d 162. No. 6813. Gonzalez-Parra v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 438 F. 2d 694. No. 6815. Brocato et al. v. United States. C. A. 8th Cir. Certiorari denied. Reported below: 437 F. 2d 1157. No. 6821. Frizer v. McMann, Correctional Superintendent. C. A. 2d Cir. Certiorari denied. Reported below: 437 F. 2d 1309 and 1312. ORDERS 1011 402 U.S. June 1, 1971 No. 6823. Gwynn v. United States. C. A. 2d Cir. Certiorari denied. No. 6825. Fauls v. United States; and No. 6827. Scott v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 437 F. 2d 1318. No. 6843. Ferguson v. Mancusi, Correctional Superintendent. C. A. 2d Cir. Certiorari denied. No. 6844. Ferree v. Frye, Warden. C. A. 7th Cir. Certiorari denied. No. 6845. Ebbs v. New York. Ct. App. N. Y. Certiorari denied. No. 6849. Phillips v. Pennsylvania. Sup. Ct. Pa. Certiorari denied. Reported below: 441 Pa. 343, 271 A. 2d 867. No. 6858. Gill v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 437 F. 2d 733, No. 6859. Powers v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 439 F. 2d 373. No. 6861. Anderson v. California. Sup. Ct. Cal. Certiorari denied. No. 6863. Hoy v. Gaffney, Warden. C. A. 10th Cir. Certiorari denied. No. 6865. Burke v. Erickson, Warden. C. A. 8th Cir. Certiorari denied. Reported below: 438 F. 2d 326. No. 6866. Simpson v. Wainwright, Corrections Director. C. A. 5th Cir. Certiorari denied. Reported below: 439 F. 2d 948. No. 6869. Smith v. Illinois. Sup. Ct. Ill. Certiorari denied. Reported below: 47 Ill. 2d 528, 267 N. E. 2d 669. 1012 OCTOBER TERM, 1970 June 1, 1971 402 U.S. No. 6897. Edwards v. United States. C. A. 4th Cir. Certiorari denied. No. 1468. Scott et al. v. Texas. Sup. Ct. Tex. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 460 S. W. 2d 103. No. 1575. More v. United States. C. A. 9th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 436 F. 2d 938. No. 6794. Grijalva v. United States. C. A. 9th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 436 F. 2d 420. No. 6809. Austin v. United States. C. A. 5th Cir. Certiorari denied. Mr. Justice Douglas is of the opinion that certiorari should be granted. Reported below: 434 F. 2d 1301. No. 1474. Marchese v. United States. C. A. 2d Cir. Motion to dispense with printing petition granted. Certiorari denied. Reported below: 438 F. 2d 452. No. 1546. Hohensee et al. v. Scientific Living, Inc., et al. Sup. Ct. Pa. Motion to dispense with printing petition granted. Certiorari denied. Reported below: 440 Pa. 280, 270 A. 2d 216. No. 1550. Silk v. Kleppe, Administrator of Small Business Administration, et al. C. A. 1st Cir. Motion to dispense with printing petition granted. Certiorari denied. Reported below: 435 F. 2d 1266. No. 1557. LaVallee, Correctional Superintendent v. Burns. C. A. 2d Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied. Reported below: 436 F. 2d 1352. ORDERS 1013 402 U.S. June 1, 1971 No. 1526. United Steelworkers of America, AFL-CIO v. Auburndale Freezer Corp, et al. C. A. 5th Cir. Motion of American Federation of Labor & Congress of Industrial Organizations for leave to file a brief as amicus curiae granted. Certiorari denied. Reported below: 434 F. 2d 1219. Rehearing Denied No. 962. Kostamo v. Northern City National Bank, Administrator, et al., ante, p. 902; No. 1348. Littlepage v. United States, ante, p. 915; No. 1352. Consolidated Carriers Corp. v. United States et al., ante, p. 901; No. 1368. Foreman v. City of Bellefontaine et al., ante, p. 901; No. 1400. Drobnick et al. (First National Bank of Waukegan, Trustee) v. Foss Park District, ante, p. 907; No. 6182. Bustos v. California, ante, p. 910; No. 6459. Chacon v. Nelson, Warden, ante, p. 941; No. 6665. Laughlin v. United States Court of Appeals for the District of Columbia Circuit, ante, p. 904; No. 6671. Morales v. Cady, Warden, ante, p. 931; and No. 6700. Bryant v. United States, ante, p. 932. Petitions for rehearing denied. No. 1021. Toliver v. United States, 401 U. S. 913. Motion for leave to file petition for rehearing denied. 419-882 0 - 72 - 56 INDEX ABANDONMENT OF SCHOOLS. See Civil Rights Act of 1964, 2; Constitutional Law, III, 4; School Desegregation, 1, 6-9. ABORTIONS. See also Jurisdiction, 1. Vagueness—Burden of proof—“Health.”—District of Columbia abortion statute is not unconstitutionally vague, as the burden is on the prosecution to plead and prove that an abortion was not “necessary for the preservation of the mother’s life or health,” and word “health,” in accord with general usage and modern understanding, and a recent interpretation of the statute by the federal courts, includes psychological as well as physical well-being, and as thus construed is not overly vague. United States v. Vuitch, p. 62. ABROAD AT NIGHT. See Constitutional Law, II, 4. ABSOLUTE DISCRETION. See Constitutional Law, II, 2; VI, 2; Juries; Procedure, 1-2. ACCIDENT LIABILITY. See Automobile Accidents, 1, 3; Constitutional Law, II, 1; VIII. ACCIDENT REPORTS. See Automobile Accidents, 1-2; Constitutional Law, VI, 1; VIII. ACIDS. See Criminal Law. ACQUISITIONS. See Antitrust Acts, 4; Meat Packers Consent Decree of 1920. ADMINISTRATIVE PROCEDURE. See also Federal Power Commission; Labor Management Relations Act; Selective Service System; Social Security Act, 1-2. 1. Federal Power Commission—Substantial evidence—Judicial review.—Since there was substantial evidence to support FPC’s finding that benefits will accrue to respondent from the interconnection with small municipally owned utility, the Court of Appeals erred in not deferring to FPC’s expert judgment. Gainesville Utilities v. Florida Power Corp., p. 515. 2. Selective Service System—Noncooperation—Exhaustion of remedies.—Petitioner’s failure to exhaust remedies jeopardized interest of Selective Service System, as administrative agency responsible for classifying registrants, in developing facts and using its expertise to 1015 1016 INDEX ADMINISTRATIVE PROCEDURE—Continued. assess his claims to exempt status, and thus bars his defense that he was erroneously classified. McGee v. United States, p. 479. 3. Social Security Act—Disability benefits—Medical evidence.— Written reports by physicians who have examined claimant for disability benefits under the Act constitute “substantial evidence” supporting nondisability finding within standard of §205 (g), notwithstanding reports’ hearsay character, absence of cross-examination (through claimant’s failure to exercise subpoena rights), and directly opposing testimony by claimant and his medical witness; and procedure followed does not violate due process requirements. Richardson v. Perales, p. 389. ADULTS. See Constitutional Law, IV, 3; Obscenity, 2. ADVERTISEMENTS. See Constitutional Law, IV, 3; Obscenity, 2. ADVISERS. See Administrative Procedure, 3; Social Security Act, 1. AFFECTING COMMERCE. See Constitutional Law, I; Consumers Credit Protection Act. AGE OF STUDENTS. See Civil Rights Act of 1964, 2; Constitutional Law, III, 4; School Desegregation, 1, 6-9. AGREEMENTS. See Aliens; Immigration and Nationality Act, 1; Naturalization; Norris-LaGuardia Act; Railway Labor Act. ALABAMA. See School Desegregation, 3. ALIBI DEFENSES. See Constitutional Law, VII. ALIENS. See also Immigration and Nationality Act, 1; Naturalization. Exemption from military service—Subjection to draft—Naturalization.—Under § 315 of the Immigration and Nationality Act an alien who requests exemption from military service is to be held to his agreement to relinquish claim to naturalization only when he is completely and permanently exempt from service in the armed forces. Astrup v. Immigration Service, p. 509. ALLOCUTION. See Constitutional Law, II, 2; VI, 2; Juries; Procedure, 1-2. AMENDMENT OF PLEADINGS. See Estoppel; Procedure, 3; Res Judicata. ANNOYING CONDUCT. See Constitutional Law, II, 3; IV, 1. ANTENNAS. See Estoppel; Procedure, 3; Res Judicata. INDEX 1017 ANTI-BUSING LAW. See Constitutional Law, HI, 3; Jurisdiction, 2; School Desegregation, 4-5. ANTITRUST ACTS. See also Meat Packers Consent Decree of 1920. 1. Clayton Act—Competition^-Control of 75% of business.—Test of § 7 of the Act, whether the effect of an acquisition “may be substantially to lessen competition,” is met here by Buffalo’s control of 75% of the independent color comic supplement printing business. United States v. Greater Buffalo Press, p. 549. 2. Clayton Act — Failing-company exception — Prospective purchasers.—District Court erred in finding that the acquisition was within the “failing company” exception, as the two requirements, (a) that International’s resources were “so depleted and the prospect of rehabilitation so remote that it faced the grave problem of a business failure,” and (b) that there was no other prospective purchaser, were not satisfied. United States v. Greater Buffalo Press, p. 549. 3. Clayton Act—Line of commerce—Color comic supplement printing business.—Line of commerce here is color comic supplement printing business, which includes the printing of the supplements and their sale. While there may be submarkets within this broad market, “submarkets are not a basis for the disregard of a broader line of commerce that has economic significance.” United States v. Greater Buffalo Press, p. 549. 4. Consent decree—Meat Packers Consent Decree of 1920—Acquisition by Greyhound Corp.—Ownership of majority of stock of Armour & Co., a meatpacker, by Greyhound Corp., which has retail food subsidiaries and accordingly -engages in business that may be forbidden to Armour by the Decree, in. itself and without any evidentiary showing as to consequences, does not violate the Decree’s prohibition against Armour’s “directly or indirectly . . . engaging in or carrying on” the forbidden business. United States v. Armour & Co., p. 673. APPEAL BOARDS. See Administrative Procedure, 2; Selective Service System. APPEALS. See also Abortion; Administrative Procedure, 2-3; Jurisdiction, 1-2; School Desegregation, 5; Selective Service System; Social Security Act, 1-2. Subpoena duces tecum—Finality of order to produce—Documents in Kenya.—District Court’s order denying respondent’s motion to quash grand jury subpoena duces tecum requiring production of records under his control in Kenya was not final and thus not appeal- 1018 INDEX APPEALS—Continued. able; nor was it rendered an appealable temporary injunction by inclusion of provision requiring respondent to seek permission from Kenyan authorities to remove some documents, and if permission was denied, to grant United States agents access to the documents in Kenya. United States v. Ryan, p. 530. APPLICATIONS FOR STAY. See Constitutional Law, III, 1; Voting Rights Act of 1965. APPORTIONMENT. See Constitutional Law, III, 1; Voting Rights Act of 1965. AREA OF EFFECTIVE COMPETITION. See Antitrust Acts, 1-3. ARIZONA. See Automobile Accidents, 1; Constitutional Law, VIII. ARMED FORCES. See Administrative Procedure, 2; Aliens; Immigration and Nationality Act, 1; Naturalization; Selective Service Regulations; Selective Service System. ARMY REGULATIONS. See Selective Service Regulations. ASSIGNMENT OF STUDENTS. See Civil Rights Act of 1964, 1-2; Constitutional Law, III, 3-4; School Desegregation, 1-9. ASYLUM. See Immigration and Nationality Act, 2. ATTENDANCE ZONES. See Civil Rights Act of 1964, 1-2; Constitutional Law, III, 4; School Desegregation, 1-3, 6-9. ATTORNEY GENERAL. See Constitutional Law, III, 1; Voting Rights Act of 1965. AUSTIN NEIGHBORHOOD. See Constitutional Law, V. AUTOMOBILE ACCIDENTS. See also Constitutional Law, II, 1; VI, 1; VIII. 1. Bankruptcy Act—Arizona statute—Supremacy Clause.—Provision that “discharge in bankruptcy following rendering of any such judgment [as result of automobile accident] shall not relieve judgment debtor from any of the requirements of this article,” in Ariz. Rev. Stat., directly conflicts with § 17 of the Bankruptcy Act, which states that discharge in bankruptcy fully discharges all but certain specified judgments, and is thus violative of the Supremacy Clause. Perez v. Campbell, p. 637. 2. Stop-and-report statute — Self-incrimination. — California Supreme Court’s holding that compliance with provision of Cal. Vehicle Code requiring driver of car involved in accident to stop and furnish INDEX 1019 AUTOMOBILE ACCIDENTS—Continued. his name and address would violate privilege against compulsory self-incrimination without a use restriction, is vacated and remanded as there is no conflict between the statute and the privilege. California v. Byers, p. 424. 3. Suspension of license—Uninsured motorists—Procedural due process.—Georgia’s Motor Vehicle Safety Responsibility Act, which provides for suspension of registration and driver’s license of uninsured motorist involved in accident unless he posts security for damages claimed and which excludes consideration of fault or responsibility for accident at pre-suspension hearing, violates due process. Before Georgia can deprive person of his license and registration, it must provide procedure to determine whether there is reasonable possibility of judgment being rendered against him as result of accident. Bell v. Burson, p. 535. BACK SPRAINS. See Administrative Procedure, 3; Social Security Act, 1. BACKUP SERVICE. See Administrative Procedure, 1; Federal Power Commission. BANKRUPTCY ACT. See Automobile Accidents, 1; Constitutional Law, VIII. BENEFITS. See Administrative Procedure, 1; Federal Power Commission. BLOCKBUSTING. See Constitutional Law, V. BOARDS OF EDUCATION. See Civil Rights Act of 1964, 1-2; Constitutional Law, III, 3-4; School Desegregation, 1-9. BORDER SEIZURES. See Constitutional Law, IV, 2; Obscenity, 1. BROKERS. See Constitutional Law, V. BURDEN OF PROOF. See Abortions; Constitutional Law, V; Jurisdiction, 1. BUSINESS VISITORS. See Immigration and Nationality Act, 2. BUSING. See Civil Rights Act of 1964, 1-2; Constitutional Law, III, 3-4; Jurisdiction, 2; School Desegregation, 1-9. CALIFORNIA. See Constitutional Law, II, 2; VI, 2; Juries; Procedure, 1-2. CALIFORNIA CONSTITUTION. See Constitutional Law, III, 2. CALIFORNIA UNEMPLOYMENT INSURANCE CODE. See Social Security Act, 2. 1020 INDEX CALIFORNIA VEHICLE CODE. See Automobile Accidents, 2; Constitutional Law, VI, 1. CANDIDATES. See Constitutional Law, III, 1; Voting Rights Act of 1965. CAPITAL PUNISHMENT. See Constitutional Law, II, 2; VI, 2; Juries; Procedure, 1-2. CARRIERS. See Norris-LaGuardia Act; Railway Labor Act. CASE OR CONTROVERSY. See Jurisdiction, 2; School Desegregation, 5. CENSORSHIP. See Constitutional Law, IV, 2-3; Obscenity, 1-2. CENSUS DATA. See Constitutional Law, III, 1; Voting Rights Act of 1965. CERTIORARI. Improvidently granted—Conspiracy to commit murder—Not charged or convicted of offense.—Writ of certiorari, granted to review Court of Appeals’ affirmance of conviction of conspiracy to commit murder, dismissed as improvidently granted, since, contrary to that court’s opinion and Government’s representation, it now appears that petitioner was not charged with or convicted of that offense. Bostic v. United States, p. 547. - . CESSION OF LAND. See Indian Lands. CHANGE IN STATUS. See Selective Service Regulations. CHARGES. See Administrative Procedure, 1; Federal Power Commission. CHARLOTTE, NORTH CAROLINA. See Civil Rights Act of 1964, 2; Constitutional Law, III, 3-4; Jurisdiction, 2; School Desegregation, 1, 4-9. CHICAGO SUBURBS. See Constitutional Law, V. CHINESE NATIONALS. See Immigration and Nationality Act, 2. CINCINNATI. See Constitutional Law, II, 3; IV, 1. CITIZENSHIP. See Aliens; Immigration and Nationality Act, 1; Naturalization. CIVIL RIGHTS ACT OF 1964. See also Constitutional Law, III, 4; School Desegregation, 1-2, 6-9. 1. Assignment of students—Racial ratios.—Title IV of the Act, a direction to federal officials, does not restrict state officials in assigning students within their systems. McDaniel v. Barresi, p. 39. INDEX 1021 CIVIL RIGHTS ACT OF 1964—Continued. 2. School desegregation—Remedies.—Title IV of the Act does not restrict or withdraw from federal courts their historic equitable remedial powers. Proviso in 42 U. S. C. § 2000c-6 was designed simply to foreclose any interpretation of the Act as expanding existing powers of federal courts to enforce Equal Protection Clause. Swann v. Board of Education, p. 1. CLAIMS FOR DISABILITY BENEFITS. See Administrative Procedure, 3; Social Security Act, 1. CLARKE COUNTY. See Civil Rights Act of 1964, 1; School Desegregation, 2. CLASSIFICATIONS. See Administrative Procedure, 2; Criminal Law; Selective Service Regulations; Selective Service System. CLASS OF ACTIVITIES. See Constitutional Law, I; Consumers Credit Protection Act. CLAYTON ACT. See Antitrust Acts, 1-3. COCONSPIRATORS. See Certiorari. CODEFENDANTS. See Constitutional Law, VII. COERCION. See Constitutional Law, V. COLLATERAL ESTOPPEL. See Estoppel; Procedure, 3; Res Judicata. COLLECTIVE BARGAINING. See Norris-LaGuardia Act; Railway Labor Act. COLORADO. See Indian Lands. COLOR COMIC SUPPLEMENTS. See Antitrust Acts, 1-3. COMBATANT TRAINING. See Selective Service Regulations. COMIC SUPPLEMENTS. See Antitrust Acts, 1-3. COMMERCE. See Antitrust Acts, 1-3. COMMERCE CLAUSE. See Constitutional Law, I; Consumers Credit Protection Act. COMMERCIAL USAGE. See Constitutional Law, IV, 2; Obscenity, 1. COMMUNIST COUNTRIES. See Immigration and Nationality Act, 2. COMPELLED DISCLOSURE. See Automobile Accidents, 2; Constitutional Law, VI, 1. 1022 INDEX COMPENSATION. See Administrative Procedure, 1; Federal Power Commission; Social Security Act, 2. COMPENSATION FOR LAND. See Indian Lands. COMPETITION. See Antitrust Acts, 1-4; Meat Packers Consent Decree of 1920. CONDUCT. See Constitutional Law, II, 3; IV, 1. CONFEDERATED BAND OF UTES. See Indian Lands. CONFESSIONS. See Constitutional Law, VII. CONFRONTATION CLAUSE. See Constitutional Law, VII. CONSCIENTIOUS OBJECTORS. See Administrative Procedure, 2; Selective Service Regulations; Selective Service System. CONSENT DECREES. See Antitrust Acts, 1-4; Meat Packers Consent Decree of 1920. CONSENT JUDGMENTS. See Indian Lands. CONSPIRACY TO COMMIT MURDER. See Certiorari. CONSTITUTIONAL LAW. See also Abortions; Administrative Procedure, 3; Automobile Accidents, 1-3; Civil Rights Act of 1964, 2; Consumers Credit Protection Act; Juries; Jurisdiction, 1-2; Obscenity, 1-2; Procedure, 1-2; School Desegregation, 1, 4-9; Social Security Act, 1; Voting Rights Act of 1965. I. Commerce Clause. Loan sharking—Affecting commerce.—Title II of the Consumers Credit Protection Act is within Congress’ power under the Commerce Clause to control activities affecting interstate commerce and Congress’ findings are adequate to,support its conclusion that loan sharks who use extortionate means to collect payments on loans are in a class largely controlled by organized crime with a substantially adverse effect on interstate commerce. Perez v. United States, p. 146. II. Due Process. 1. Automobile accidents—Suspension of license.—Georgia’s Motor Vehicle Safety Responsibility Act, which provides for suspension of registration and driver’s license of uninsured motorist involved in accident unless he posts security for damages claimed and which excludes consideration of fault or responsibility for accident at presuspension hearing, violates due process. Before Georgia can deprive person of his license and registration, it must provide procedure to determine whether there is reasonable possibility of judgment being rendered against him as result of accident. Bell v. Burson, p. 535. INDEX 1023 CONSTITUTIONAL LAW—Continued. 2. Capital cases—Jury sentencing.—The Constitution does not prohibit States from considering that compassionate purposes of jury sentencing in capital cases are better served by having issues of guilt and punishment resolved in single trial than by focusing jury’s attention solely on punishment after guilt has been determined. McGautha v. California, p. 183. 3. Vagueness—Cincinnati ordinance.—Ordinance making it a criminal offense for “three or more persons to assemble ... on any of the sidewalks . . . and there conduct themselves in a manner annoying to persons passing by,” which has not been narrowed by Ohio Supreme Court construction, is violative on its face of the due process standard of vagueness and the constitutional right of free assembly and association. Coates v. City of Cincinnati, p. 611. 4. Vagueness—Suspicious person ordinance.—Euclid, Ohio’s, suspicious person ordinance is unconstitutionally vague as applied to appellant since it gave insufficient notice that his conduct in parked car or in discharging passenger was enough to show him to be “without visible or lawful business.” Palmer v. City of Euclid, p. 544. III. Equal Protection of the Laws. 1. Apportionment plans—Election districts.—Single-member districts are generally preferable to large multi-member districts in court-fashioned apportionment plans. In view of availability of 1970 census data and the dispatch with which applicants devised their plans, the District Court is instructed, absent insurmountable difficulties, to devise and put into effect a single-member plan for Hinds County, Mississippi, by June 14, 1971, and to extend appropriately the filing date for candidates from that county. Connor v. Johnson, p. 690. 2. California mandatory referendums—Low-cost housing .—California procedure for mandatory referendums, which is not limited to proposals involving low-cost public housing, ensures democratic decisionmaking, and does not violate the Equal Protection Clause. James v. Valtierra, p. 137. 3. North Carolina Anti-Busing Law—Assignment of students.— North Carolina s Anti-Busing Law, which flatly forbids assignment of students on account of race or to create racial balance or ratio in schools and which prohibits busing for such purposes is invalid as preventing implementation of desegregation plans required by the Fourteenth Amendment. North Carolina Bd. of Ed. v. Swann, p. 43. 4. School desegregation Remedies.—Today’s objective is to eliminate from the public schools all vestiges of state-imposed segregation 1024 INDEX CONSTITUTIONAL LAW—Continued. that was held violative of equal protection guarantees by Brown n. Board of Education, 347 U. S. 483, in 1954; and in default by school authorities of their affirmative obligation to proffer acceptable remedies, the district courts have broad power to fashion remedies that will assure unitary school systems. Swann v. Board of Education, p. 1. IV. First Amendment. 1. Freedom of assembly and association—Cincinnati ordinance.— Ordinance making it a criminal offense for “three or more persons to assemble ... on any of the sidewalks . . . and there conduct themselves in a manner annoying to persons passing by,” which has not been narrowed by Ohio Supreme Court construction, is violative of the due process standard of vagueness and the constitutional right of free assembly and association. Coates v. City of Cincinnati, p. 611. 2. Importation of obscene material—Forfeiture proceedings.— Three-judge court’s ruling that 19 U. S. C. § 1305 (a), prohibiting the importation of obsence material and providing for its seizure at any customs office and retention pending judgment of a district court on forfeiture proceedings, is unconstitutional, is reversed and case remanded. United States v. Thirty-seven Photographs, p. 363. 3. Obscenity—Use of mails.—Section 1461 of Title 18, U. S. C., is not unconstitutional as applied to the distribution by mail of obscene materials to willing recipients who state that they are adults. United States v. Reidel, p. 351. V. Freedom of the Press. Distribution of leaflets—Prior restraint.—Respondent real estate broker has not met heavy burden of justifying imposition of prior restraint of petitioners’ peaceful distribution of informational literature critical of respondent’s alleged “blockbusting” activities in Austin area of Chicago. Organization for a Better Austin v. Keefe, p. 415. VI. Self-Incrimination. 1. Cal. Vehicle Code—Stop-and-report statute.—California Supreme Court’s holding that compliance with provision of Cal. Vehicle Code requiring driver of car involved in accident to stop and furnish his name and address would violate privilege against compulsory self-incrimination without a use restriction, is vacated and remanded as there is no conflict between the statute and the privilege. California v. Byers, p. 424. INDEX 1025 CONSTITUTIONAL LAW—Continued. 2. Capital cases—Testimony of defendant.—Policies of privilege against self-incrimination are not offended when defendant in capital case yields to pressure to testify on issue of punishment at risk of damaging his case on guilt. McGautha v. California, p. 183. VII. Sixth Amendment. Confrontation Clause—Codefendants.—Where a codefendant takes the stand in own defense, denies making alleged out-of-court statement implicating defendant, and testifies in defendant’s favor, defendant has been denied no rights protected by the Sixth and Fourteenth Amendments and in circumstances here respondent, who would have encountered greater difficulties if codefendant affirmed statement as his, was denied neither the opportunity nor the benefit of fully and effectively cross-examining codefendant. Nelson v. O’Neil, p. 622. VIII. Supremacy Clause. Automobile accidents—Bankruptcy Act.—Provision that “discharge in bankruptcy following rendering of any such judgment [as result of automobile accident] shall not relieve judgment debtor from any of the requirements of this article,” in Ariz. Rev. Stat., directly conflicts with § 17 of the Bankruptcy Act, which states that discharge in bankruptcy fully discharges all but certain specified judgments, and is thus violative of the Supremacy Clause. Perez v. Campbell, p. 637. CONSTRUCTION OF SCHOOLS. See Civil Rights Act of 1964, 2; Constitutional Law, III, 4; School Desegregation, 1, 6-9. CONSUMERS CREDIT PROTECTION ACT. See also Constitutional Law, I. Loan sharking—Commerce Clause.—Title II of the Act is within Congress’ power under the Commerce Clause to control activities affecting interstate commerce and Congress’ findings are adequate to support its conclusion that loan sharks who use extortionate means to collect payments on loans are in a class largely controlled by organized crime with a substantially adverse effect on interstate commerce. Perez v. United States, p. 146. CONTEMPT. See Appeals. CONTROL OF MEATFACKER. See Antitrust Acts, 4; Meat Packers Consent Decree of 1920. CONVICTIONS. See Certiorari. COPYRIGHTED FEATURES. See Antitrust Acts, 1-3. 1026 INDEX CORPORATE ACQUISITIONS. See Antitrust Acts, 4; Meat Packers Consent Decree of 1920. CORROSIVE LIQUIDS. See Criminal Law. COURT DECREES. See Constitutional Law, III, 1; Voting Rights Act of 1965. COURT OF APPEALS. See Abortions; Certiorari; Jurisdiction, 1. COURT OF CLAIMS. See Indian Lands. COURTS. See Civil Rights Act of 1964, 2; Constitutional Law, III, 4; School Desegregation, 1, 6-9. CREDIT. See Constitutional Law, I; Consumers Credit Protection Act. CRIMINAL APPEALS ACT. See Abortions; Jurisdiction, 1. CRIMINAL LAW. See also Abortions; Administrative Procedure, 2; Automobile Accidents, 2; Certiorari; Constitutional Law, I; II, 2; IV, 3; VI, 1-2; Consumers Credit Protection Act; Juries; Jurisdiction, 1; Obscenity, 2; Procedure, 1-2; Selective Service Regulations; Selective Service System. Shipping corrosive liquids—“Knowingly violates such regulation.”—Statute does not signal an exception to general rule that ignorance of law is no excuse. Word “knowingly” pertains to knowledge of the facts, and where, as here, dangerous products are involved, probability of regulation is so great that anyone who is aware he is in possession of or dealing with them must be presumed to be aware of the regulation. U. S. v. International Minis Corp., p. 558. CRITERIA FOR SENTENCING. See Constitutional Law, II, 2; VI, 2; Juries; Procedure, 1-2. CROSS-EXAMINATION. See Administrative Procedure, 3; Constitutional Law, VII; Social Security Act, 1. CUSTOMS AGENTS. See Constitutional Law, IV, 2; Obscenity, 1. DAMAGES. See Automobile Accidents, 3; Constitutional Law, II, 1. DANGEROUS PRODUCTS. See Criminal Law. DEATH PENALTY. See Constitutional Law, II, 2; VI, 2; Juries; Procedure, 1-2. DECREES. See Constitutional Law, III, 1; Voting Rights Act of 1965. INDEX 1027 DEFERMENTS. See Administrative Procedure, 2; Selective Service System. DEMOCRATIC DECISIONMAKING. See Constitutional Law, III, 2. DEMONSTRATIONS. See Constitutional Law, V. DEPORTATION. See Immigration and Nationality Act, 2. DESEGREGATION PLANS. See Civil Rights Act of 1964, 1-2; Constitutional Law, III, 3-4; Jurisdiction, 2; School Desegregation, 1-9. DIRECT APPEALS. See Jurisdiction, 2; School Desegregation, 5. DIRECT OR INDIRECT INTEREST. See Antitrust Acts, 4; Meat Packers Consent Decree of 1920. DISABILITY BENEFITS. See Administrative Procedure, 3; Social Security Act, 1. DISCHARGE FOR CAUSE. See Social Security Act, 2. DISCHARGE IN BANKRUPTCY. See Automobile Accidents, 1; Constitutional Law, VIII. DISCHARGING PASSENGER. See Constitutional Law, II, 4. DISCRETION. See Constitutional Law, II, 2; VI, 2; Juries; Procedure, 1-2. DISCRIMINATION. See Civil Rights Act of 1964, 1-2; Constitutional Law, III, 3-4; Jurisdiction, 2; School Desegregation, 1-9. DISPLACED PERSONS. See Immigration and Nationality Act, 2. DISTANCE TRAVELED. See Civil Rights Act of 1964, 2; Constitutional Law, III, 4; School Desegregation, 1, 6-9. DISTRIBUTION OF LEAFLETS. See Constitutional Law, V. DISTRICT COURT ORDERS. See Appeals. DISTRICT COURTS. See Civil Rights Act of 1964, 2; Constitutional Law, III, 1, 4; School Desegregation, 1, 6-9; Voting Rights Act of 1965. DISTRICT OF COLUMBIA CODE. See Abortions; Jurisdiction, 1. DIVESTITURE OF STOCK. See Antitrust Acts, 1-3. DOCTORS. See Abortions; Jurisdiction, 1. DOCTORS’ REPORTS. See Administrative Procedure, 3; Social Security Act, 1. 1028 INDEX DOCUMENTS. See Appeals. DRAFT BOARDS. See Administrative Procedure, 2; Selective Service Regulations; Selective Service System. DRAFT LAWS. See Aliens; Immigration and Nationality Act, 1; Naturalization. DRIVERS’ LICENSES. See Automobile Accidents, 3; Constitutional Law, II, 1. DUE PROCESS. See Abortions; Administrative Procedure, 3; Automobile Accidents, 3; Constitutional Law, II; Juries; Jurisdiction, 1; Procedure, 1-2; Social Security Act, 1. ECONOMIC SIGNIFICANCE. See Antitrust Acts, 1-3. ELECTION DISTRICTS. See Constitutional Law, III, 1; Voting Rights Act of 1965. ELECTIONS. See Constitutional Law, III, 2. ELECTRIC UTILITIES. See Administrative Procedure, 1; Federal Power Commission. ELEMENTARY SCHOOLS. See Civil Rights Act of 1964, 1-2; Constitutional Law, III, 3-4; School Desegregation, 1-9. ELIGIBILITY HEARINGS. See Social Security Act, 2. EMPLOYER AND EMPLOYEES. See Labor Management Relations Act; Norris-LaGuardia Act; Railway Labor Act. EMPLOYERS’ APPEALS. See Social Security Act, 2. ENTRY PERMITS. See Immigration and Nationality Act, 2. EQUALITY OF SCHOOLS. See Civil Rights Act of 1964, 2; Constitutional Law, III, 4; School Desegregation, 1, 6-9. EQUAL PROTECTION OF THE LAWS. See Civil Rights Act of 1964, 1-2; Constitutional Law, III; Jurisdiction, 2; School Desegregation, 1-9; Voting Rights Act of 1965. EQUITY POWERS. See Civil Rights Act of 1964, 2; Constitutional Law, III, 4; School Desegregation, 1, 6-9. ESTOPPEL. See also Indian Lands; Procedure, 3; Res Judicata. Patent infringement—Res judicata.—Holding in Triplett v. Lowell, 297 U. S. 638, that determination of patent invalidity is not res judicata against patentee in subsequent litigation against different defendant overruled to extent that it forecloses estoppel plea by one facing charge of infringement of patent that has once been declared invalid. Blonder-Tongue v. University Foundation, p. 313. EUCLID, OHIO. See Constitutional Law, II, 4. INDEX 1029 EVIDENCE. See Administrative Procedure, 3; Automobile Accidents, 2; Constitutional Law, II, 2; VI, 1-2; VII; Estoppel; Juries; Procedure, 1-3; Res Judicata; Social Security Act, 1. EXEMPTION FROM MILITARY SERVICE. See Aliens; Immigration and Nationality Act, 1; Naturalization. EXEMPTIONS. See Administrative Procedure, 2; Aliens; Immigration and Nationality Act, 1; Labor Management Relations Act; Naturalization; Selective Service Regulations; Selective Service System. EXHAUSTION OF REMEDIES. See Administrative Procedure, 2; Selective Service System. EXHORTATION. See Norris-LaGuardia Act; Railway Labor Act. EXPERTISE. See Administrative Procedure, 1-2; Federal Power Commission; Selective Service System. EXPERTS. See Civil Rights Act of 1964, 2; Constitutional Law, III, 4; School Desegregation, 1, 6-9. EXTENSION OF CREDIT. See Constitutional Law, I; Consumers Credit Protection Act. EXTORTIONATE CREDIT TRANSACTIONS. See Constitutional Law, I; Consumers Credit Protection Act. FACULTY DESEGREGATION. See Civil Rights Act of 1964, 2; Constitutional Law, III, 4; School Desegregation, 1, 6-9. FAILING COMPANY. See Antitrust Acts, 1-3. FAIR SHARE ACT OF 1960. See Immigration and Nationality Act, 2. FAIR TRIALS. See Constitutional Law, II, 2; VI, 2; Juries; Procedure, 1-2. FAULT. See Automobile Accidents, 3; Constitutional Law, II, 1. FEAR OF PERSECUTION. See Immigration and Nationality Act, 2. FEDERAL OBSCENITY STATUTE. See Constitutional Law, IV, 3; Obscenity, 2. FEDERAL POWER COMMISSION. See also Administrative Procedure, 1. Electric utilities interconnection—Backup service charge—Judicial review.—Since there was substantial evidence to support FPC’s finding that benefits will accrue to respondent from the interconnection with small municipally owned utility, the Court of Appeals erred in not deferring to FPC’s expert judgment. Gainesville Utilities v. Florida Power Corp., p. 515. 419-882 0 - 72 - 57 1030 INDEX FEDERAL-STATE RELATIONS. See Automobile Accidents, 1; Civil Rights Act of 1964, 2; Constitutional Law, I; III, 4; VIII; Consumers Credit Protection Act; School Desegregation, 1, 6—9; Social Security Act, 2. FIFTH AMENDMENT. See Abortions; Automobile Accidents, 2; Constitutional Law, II, 2; VI, 1-2; Juries; Jurisdiction, 1; Procedure, 1-2. FILING DATES. See Constitutional Law, III, 1; Voting Rights Act of 1965. FINAL ORDERS. See Appeals. FINAL SETTLEMENTS. See Indian Lands. FINANCIAL RESPONSIBILITY. See Automobile Accidents, 1-3; Constitutional Law, II, 1; VI, 1; VIII. FINDINGS. See Administrative Procedure, 1; Federal Power Commission. FIRMLY RESETTLED. See Immigration and Nationality Act, 2. FIRST AMENDMENT. See Constitutional Law, IV-V; Obscenity, 1-2. FLIGHT TO AVOID PERSECUTION. See Immigration and Nationality Act, 2. FOOD BUSINESS. See Antitrust Acts, 4; Meat Packers Consent Decree of 1920. FOREIGN DOCUMENTS. See Appeals. FORFEITURE PROCEEDINGS. See Constitutional Law, IV, 2; Obscenity, 1. FOURTEENTH AMENDMENT. See Automobile Accidents, 3; Civil Rights Act of 1964, 1-2; Constitutional Law, II—III; VI, 2; VII; Juries; Jurisdiction, 2; Procedure, 1-2; School Desegregation, 1-9; Voting Rights Act of 1965. FREEDOM OF ASSEMBLY. See Constitutional Law, II, 3; IV, 1. FREEDOM OF ASSOCIATION. See Constitutional Law, II, 3; IV, 1. FREEDOM OF THE PRESS. See Constitutional Law, IV, 2-3; V; Obscenity, 1-2. GAINESVILLE, FLORIDA. See Administrative Procedure, 1; Federal Power Commission. INDEX 1031 GENERATING CAPACITY. See Administrative Procedure, 1; Federal Power Commission. GEOGRAPHIC ZONES. See School Desegregation, 3. GEORGIA. See Automobile Accidents, 3; Civil Rights Act of 1964, 1; Constitutional Law, II, 1; School Desegregation, 2. GOVERNMENT’S REPRESENTATION. See Certiorari. GRAND JURY SUBPOENAS. See Appeals. GREYHOUND CORP. See Antitrust Acts, 4; Meat Packers Consent Decree of 1920. GROUPING OF ATTENDANCE ZONES. See Civil Rights Act of 1964, 2; Constitutional Law, III, 4; School Desegregation, 1, 6-9. HAZARDOUS MATERIALS. See Criminal Law. HEALTH. See Abortions; Jurisdiction, 1. HEARINGS. See Administrative Procedure, 3; Automobile Accidents, 3; Constitutional Law, II, 1; Social Security Act, 1. HEARSAY. See Administrative Procedure, 3; Constitutional Law, VII; Social Security Act, 1. HINDS COUNTY. See Constitutional Law, III, 1; Voting Rights Act of 1965. HIT-AND-RUN STATUTES. See Automobile Accidents, 2; Constitutional Law, VI, 1. HONG KONG. See Immigration and Nationality Act, 2. HOUSING. See Constitutional Law, III, 2. HYDROFLUOSILICIC ACID. See Criminal Law. IGNORANCE OF THE LAW. See Criminal Law. IMMIGRANT VISAS. See Immigration and Nationality Act, 2. IMMIGRATION AND NATIONALITY ACT. See also Aliens; Naturalization. 1. Aliens—Exemption from military service—Naturalization.— Under § 315 of the Act an alien who requests exemption from military service is to be held to his agreement to relinquish claim to naturalization only when he is completely and permanently exempt from service in the armed forces. Astrup v. Immigration Service, p. 509. 2. Refugees—Asylum—“Firmly resettled.”—Whether a refugee has already “firmly resettled” in another country is relevant to determin- 1032 INDEX IMMIGRATION AND NATIONALITY ACT—Continued. ing the availability to him of the asylum provision of §203 (a)(7), since Congress did not intend to grant asylum to a refugee who has found permanent shelter in another country, and the § 203 (a) (7) (iii) nationality requirement is no substitute for the “resettlement” concept. Rosenberg v. Yee Chien Woo, p. 49. IMPORTATION OF OBSCENE MATERIALS. See Constitu- tional Law, IV, 2; Obscenity, 1. IMPROVIDENTLY GRANTED. See Certiorari. INDIAN CLAIMS COMMISSION. See Indian Lands. INDIAN LANDS. Final settlement—Consent judgment—Res judicata.—Indian tribe’s claims for compensation and accounting are barred by res judicata since they relate to land “formerly owned or claimed by [the Confederated Band of Utes] in western Colorado, ceded to [the United States] by the Act of June 15, 1880,” and were thus subject to a final settlement reduced to a consent judgment, to which respondent tribe was a party, made in 1950. United States v. Southern Ute Indians, p. 159. INDIRECT INTEREST. See Antitrust Acts, 4; Meat Packers Consent Decree of 1920. INDUCTION. See Administrative Procedure, 2; Selective Service System. INDUCTION NOTICE. See Selective Service Regulations. INELIGIBILITY FOR CITIZENSHIP. See Aliens; Immigration and Nationality Act, 1; Naturalization. INFORMATIONAL LITERATURE. See Constitutional Law, V. INFRINGEMENT SUITS. See Estoppel; Procedure, 3; Res Judicata. INJUNCTIONS. See Appeals; Constitutional Law, III, 2; Jurisdiction, 2; Norris-LaGuardia Act; Railway Labor Act; School Desegregation, 5. IN-SERVICE DETERMINATIONS. See Selective Service Regulations. INSPECTION OF DOCUMENTS. See Appeals. INSTRUCTIONS TO JURY. See Constitutional Law, II, 2; VI, 2; Juries; Procedure, 1-2. INTEGRATED NEIGHBORHOODS. See Constitutional Law, V. INTENT. See Criminal Law. INDEX 1033 INTERCONNECTIONS. See Administrative Procedure, 1; Federal Power Commission. INTERSTATE COMMERCE. See Constitutional Law, I; Consumers Credit Protection Act; Criminal Law. INTERVIEWS. See Social Security Act, 2. INTIMIDATION. See Constitutional Law, V. INVALIDITY OF PATENTS. See Estoppel; Procedure, 3; Res Judicata. JOINT TRIALS. See Constitutional Law, VII. JUDGMENTS. See Automobile Accidents, 1; Constitutional Law, VIII; Estoppel; Indian Lands; Procedure, 3; Res Judicata. JUDICIAL DETERMINATIONS. See Constitutional Law, IV, 2; Obscenity, 1. JUDICIAL REVIEW. See Administrative Procedure, 1; Federal Power Commission. JURIES. See also Constitutional Law, II, 2; VI, 2; Procedure, 1-2. Capital cases—Sentencing discretion.—In light of history, experience, and limitations of human knowledge in establishing definitive standards, it is impossible to say that leaving to the untrammeled discretion of the jury the power to pronounce life or death in capital cases violates any provision of the Constitution. McGautha v. California, p. 183. JURISDICTION. See also Abortions; Indian Lands; Norris-La- Guardia Act; Railway Labor Act; School Desegregation, 5. 1. Appeals—District of Columbia abortion statute.—Although statute applies only to the District of Columbia, this Court has jurisdiction of the appeal under 18 U. S. C. § 3731, which provides for direct appeals from district court judgments “in all criminal cases . . . dismissing any indictment where such decision is based upon the invalidity ... of the statute upon which the indictment ... is founded.” Once the appeal is properly here, this Court should not refuse to consider it because it might have been taken to the Court of Appeals. United States v. Vuitch, p. 62. 2. Case or controversy—Direct appeal—North Carolina Anti-Busing Law.—Since both parties in this action challenging school desegregation plan seek same result, viz., a holding that North Carolina’s Anti-Busing Law is constitutional, there is no Art. Ill case or controversy. Additionally, on facts here, no direct appeal to this Court lies under 28 U. S. C. § 1253. Moore v. Board of Education, p. 47. 1034 INDEX JURY SENTENCING. See Constitutional Law, II, 2; VI, 2; Juries; Procedure, 1-2. JUSTICIABILITY. See Norris-LaGuardia Act; Railway Labor Act. KENYA. See Appeals. KNOWING VIOLATIONS. See Criminal Law. KNOWLEDGE OF THE FACTS. See Criminal Law. LABOR. See Labor Management Relations Act; Norris-LaGuardia Act; Railway Labor Act. LABOR MANAGEMENT RELATIONS ACT. Employers—Political subdivision exemption—Natural Gas Utility District.—Federal, rather than state, law governs the determination whether an entity is a “political subdivision” within meaning of §2(2) of the Act; and while NLRB’s construction is entitled to great respect, there is no “warrant in the record” and “no reasonable basis in law” for its conclusion that respondent was not a political subdivision. NLRB v. Natural Gas Utility District, p. 600. LAND CLAIMS. See Indian Lands. LEAFLETS. See Constitutional Law, V. LEGAL OBLIGATIONS. See Norris-LaGuardia Act; Railway Labor Act. LIABILITY. See Automobile Accidents, 1, 3; Constitutional Law, II, 1; VIII. LICENSORS. See Antitrust Acts, 1-3. LINES OF COMMERCE. See Antitrust Acts, 1-3. LOAN SHARKS. See Constitutional Law, I; Consumers Credit Protection Act. LOW-COST HOUSING. See Constitutional Law, III, 2. LOW-INCOME PERSONS. See Constitutional Law, III, 2. MAILS. See Constitutional Law, IV, 3; Obscenity, 2. MAINLAND CHINESE. See Immigration and Nationality Act, 2. MAJORITY-TO-MINORITY TRANSFERS. See Civil Rights Act of 1964, 2; Constitutional Law, III, 4; School Desegregation, 1, 6-9. MANDATORY REFERENDUMS. See Constitutional Law, III, 2. INDEX 1035 MEAT PACKERS CONSENT DECREE OF 1920. See also Anti- trust Acts, 4. Acquisition of meatpacker by Greyhound Corp.—Retail food subsidiaries.—Ownership of majority of stock of Armour & Co., a meat-packer, by Greyhound Corp., which has retail food subsidiaries and accordingly engages in business that may be forbidden to Armour by the Decree, in itself and without any evidentiary showing as to consequences, does not violate the Decree’s prohibition against Armour’s “directly or indirectly . . . engaging in or carrying on” the forbidden business. United States v. Armour & Co., p. 673. MEDICAL ADVISERS. See Administrative Procedure, 3; Social Security Act, 1. MEDICAL EVIDENCE. See Administrative Procedure, 3; Social Security Act, 1. MENS REA. See Criminal Law. MILITARY SELECTIVE SERVICE ACT OF 1967. See Selective Service Regulations. MILITARY SERVICE. See Administrative Procedure, 2; Aliens; Immigration and Nationality Act, 1; Naturalization; Selective Service Regulations; Selective Service System. MINISTERIAL STUDENTS. See Administrative Procedure, 2; Selective Service System. MISSISSIPPI. See Constitutional Law, III, 1; Voting Rights Act of 1965. MOBILE, ALABAMA. See School Desegregation, 3. “MOTHER’S LIFE OR HEALTH.’’ See Abortions; Jurisdiction, 1. MOTOR VEHICLE REGISTRATION. See Automobile Accidents, 2-3; Constitutional Law, II, 1; VI, 1. MOTOR VEHICLE SAFETY RESPONSIBILITY ACT. See Automobile Accidents, 1-3; Constitutional Law, II, 1; VI, 1; VIII. MULTI-MEMBER DISTRICTS. See Constitutional Law, III, 1; Voting Rights Act of 1965. MUNICIPAL CORPORATIONS. See Labor Management Relations Act. MUNICIPALLY OWNED UTILITY. See Administrative Procedure, 1; Federal Power Commission. 1036 INDEX MUNICIPAL ORDINANCES. See Constitutional Law, II, 3-4; IV, 1. MUTUALITY OF ESTOPPEL. See Estoppel; Procedure, 3; Res Judicata. NAME AND ADDRESS OF DRIVER. See Automobile Accidents, 2; Constitutional Law, VI, 1. NATIONAL LABOR RELATIONS BOARD. See Labor Management Relations Act. NATIONAL MEDIATION BOARD. See Norris-LaGuardia Act; Railway Labor Act. NATIONALS. See Immigration and Nationality Act, 2. NATURAL GAS UTILITY DISTRICTS. See Labor Management Relations Act. NATURALIZATION. See also Aliens; Immigration and Nationality Act, 1. Aliens—Exemption from military service—Subjection to draft.— Under § 315 of the Immigration and Nationality Act an alien who requests exemption from military service is to be held to his agreement to relinquish claim to naturalization only when he is completely and permanently exempt from service in the armed forces. Astrup v. Immigration Service, p. 509. NEGROES. See Civil Rights Act of 1964, 1-2; Constitutional Law, III, 3-4; Jurisdiction, 2; School Desegregation, 1-9. NEIGHBORHOOD SCHOOL ZONES. See School Desegregation, 3. NEWSPAPER SYNDICATES. See Antitrust Acts, 1-3. NIGHTTIME WANDERING. See Constitutional Law, II, 4. NONCONTIGUOUS ATTENDANCE ZONES. See Civil Rights Act of 1964, 2; Constitutional Law, III, 4; School Desegregation, 1, 6-9. NONCOOFERATION. See Administrative Procedure, 2; Selective Service System. NORRIS-LaGUARDIA ACT. See also Railway Labor Act. Railway Labor Act—Strike injunction.—Section 4 of the Norris-LaGuardia Act does not prohibit use of a strike injunction where that remedy is the only practical, effective means of enforcing the duty imposed by § 2 First of the Railway Labor Act. Chicago & N. W. R. Co. v. Transportation Union, p. 570. INDEX 1037 NORTH CAROLINA. See Civil Rights Act of 1964, 2; Constitutional Law, III, 3-4; Jurisdiction, 2; School Desegregation, 1, 4-9. NOTICE AND HEARING. See Social Security Act, 2. OBSCENITY. See also Constitutional Law, IV, 2-3. 1. Importation of photographs—Seizure by Customs agents—Forfeiture proceedings.—Three-judge court’s ruling that 19 U. S. C. § 1305 (a), prohibiting the importation of obscene material and providing for its seizure at any customs office and retention pending judgment of a district court on forfeiture proceedings, is unconstitutional, is reversed and case remanded. United States v. Thirtyseven Photographs, p. 363. 2. Mail delivery of booklet—Willing recipients—Adults.—Section 1461 of Title 18, U. S. C., is not unconstitutional as applied to the distribution by mail of obscene materials to willing recipients who state that they are adults. United States v. Reidel, p. 351. OFFENSES. See Certiorari; Criminal Law. OHIO. See Constitutional Law, II, 2; VI, 2; Juries; Procedure, 1-2. ONE-RACE SCHOOLS. See Civil Rights Act of 1964, 2; Constitutional Law, III, 4; School Desegregation, 1, 6-9. ORDERS. See Appeals. ORDINANCES. See Constitutional Law, II, 3-4; IV, 1. ORGANIZED CRIME. See Constitutional Law, I; Consumers Credit Protection Act. OUT-OF-COURT STATEMENTS. See Constitutional Law, VII. OVERBREADTH. See Constitutional Law, IV, 2; Obscenity, 1. PAIRING OF ATTENDANCE ZONES. See Civil Rights Act of 1964, 2; Constitutional Law, III, 4; School Desegregation, 1, 6-9. PAMPHLETEERING. See Constitutional Law, V. PANIC PEDDLING. See Constitutional Law, V. PARKED CAR. See Constitutional Law, II, 4. PASSAGE OF TIME. See Antitrust Acts, 1-3. PATENTS. See Estoppel; Procedure, 3; Res Judicata. PAYMENT OF COMPENSATION. See Social Security Act, 2. PENALTIES. See Constitutional Law, II, 2; VI, 2; Juries; Procedure, 1-2. 1038 INDEX PERSECUTION. See Immigration and Nationality Act, 2. PHOTOGRAPHS. See Constitutional Law, IV, 2; Obscenity, 1. PHYSICAL WELL-BEING. See Abortions; Jurisdiction, 1. PHYSICIANS. See Abortions; Jurisdiction, 1. PHYSICIANS’ REPORTS. See Administrative Procedure, 3; Social Security Act, 1. PLEADINGS. See Estoppel; Procedure, 3; Res Judicata. POLITICAL SUBDIVISIONS. See Labor Management Relations Act. POOR PERSONS. See Constitutional Law, III, 2. PORNOGRAPHY. See Constitutional Law, IV, 2-3; Obscenity, 1-2. POSTING SECURITY. See Automobile Accidents, 3; Constitutional Law, II, 1. PREFERENCES. See Immigration and Nationality Act, 2. PRESERVATION OF LIFE. See Abortions; Jurisdiction, 1. PRESUMPTIONS. See Criminal Law. PRE-SUSPENSION HEARINGS. See Automobile Accidents, 3; Constitutional Law, II, 1. PRINTING COLOR COMIC SUPPLEMENTS. See Antitrust Acts, 1-3. PRIOR RESTRAINT. See Constitutional Law, V. PRIVACY. See Constitutional Law, V. PRIVATE USAGE. See Constitutional Law, IV, 2; Obscenity, 1. PROCEDURE. See also Abortions; Administrative Procedure, 1-3; Appeals; Automobile Accidents, 3; Certiorari; Constitutional Law, II, 1-2; IV, 2; VI, 2; VII; Estoppel; Federal Power Commission; Juries; Jurisdiction, 1; Obscenity, 1; Res Judicata; Selective Service Regulations; Selective Service System; Social Security Act, 1-2. 1. Capital cases—Allocution—Addressing jury.—Ohio does provide for common-law ritual of allocution, but State need not provide petitioner an opportunity to speak to jury free from any adverse consequences on issue of guilt. McGautha v. California, p. 183. 2. Capital cases—Jury sentencing discretion.—In light of history, experience, and limitations of human knowledge in establishing definitive standards, it is impossible to say that leaving to the untrammeled discretion of the jury the power to pronounce life or INDEX 1039 PROCEDURE—Continued. death in capital cases violates any provision of the Constitution. McGautha v. California, p. 183. 3. Patent infringement—Res judicata—Collateral estoppel.—Holding in Triplett n. Lowell, 297 U. S. 638, that determination of patent invalidity is not res judicata against patentee in subsequent litigation against different defendant overruled to extent that it forecloses estoppel plea by one facing charge of infringement of patent that has once been declared invalid, and in this infringement suit where because of Triplett petitioner did not plead estoppel and patentee had no opportunity to challenge appropriateness of such plea, parties should be allowed to amend pleadings and introduce evidence on estoppel issue. Blonder-Tongue v. University Foundation, p. 313. PRODUCTION OF RECORDS. See Appeals. PROMPT DETERMINATIONS. See Constitutional Law, IV, 2; Obscenity, 1. PROSPECTIVE PURCHASERS. See Antitrust Acts, 1-3. PSYCHOLOGICAL WELL-BEING. See Abortions; Jurisdiction, 1. PUBLIC CORPORATIONS. See Labor Management Relations Act. PUBLIC HOUSING. See Constitutional Law, III, 2. PUBLIC INTEREST. See Administrative Procedure, 1; Federal Power Commission. PUBLIC SCHOOLS. See Civil Rights Act of 1964, 1-2; Constitutional Law, III, 3-4; School Desegregation, 1-9. PUNISHMENT. See Constitutional Law, II, 2; VI, 2; Juries; Procedure, 1-2. PURCHASERS. See Antitrust Acts, 1-3. RACIAL RATIOS. See Civil Rights Act of 1964, 1-2; Constitutional Law, III, 3-4; Jurisdiction, 2; School Desegregation, 1-2, 4-9. RAILROADS. See Norris-LaGuardia Act; Railway Labor Act. RAILWAY LABOR ACT. See also Norris-LaGuardia Act. Legal obligations—Collective bargaining—Justiciability.—Section 2 First of the Act was intended to be, not just a mere exhortation, but an enforceable legal obligation on carriers and employees alike; and the obligation, central to the effective working of the Act, is enforceable by the courts rather than by the Mediation Board. Chicago & N. W. R. Co. v. Transportation Union, p. 570. 1040 INDEX REAL ESTATE BROKERS. See Constitutional Law, V. REAL PROPERTY. See Constitutional Law, V. REAPPORTIONMENT. See Constitutional Law, III, 1; Voting Rights Act of 1965. REASONABLE EFFORTS. See Norris-LaGuardia Act; Railway Labor Act. RECLASSIFICATIONS. See Administrative Procedure, 2; Selective Service Regulations; Selective Service System. RECORDS. See Appeals. REFERENDUMS. See Constitutional Law, III, 2. REFUGEE RELIEF ACT OF 1953. See Immigration and Na- tionality Act, 2. REFUGEES. See Immigration and Nationality Act, 2. REFUSAL TO BARGAIN. See Labor Management Relations Act. REGISTRATION OF AUTOMOBILES. See Automobile Accidents, 2-3; Constitutional Law, II, 1; VI, 1. REGULATIONS. See Criminal Law; Selective Service Regulations. REGULATORY STATUTES. See Automobile Accidents, 2; Constitutional Law, VI, 1. REIMBURSEMENT. See Administrative Procedure, 1; Federal Power Commission. REMEDIES. See Administrative Procedure, 2; Antitrust Acts, 1-3; Civil Rights Act of 1964, 2; Constitutional Law, III, 4; School Desegregation, 1, 6-9; Selective Service System. RESERVATIONS. See Indian Lands. RESETTLEMENT. See Immigration and Nationality Act, 2. RESIDENCE. See Immigration and Nationality Act, 2. RES JUDICATA. See also Estoppel; Indian Lands; Procedure, 3. Patent infringement—Collateral estoppel.—Holding in Triplett v. Lowell, 297 U. S. 638, that determination of patent invalidity is not res judicata against patentee in subsequent litigation against different defendant overruled to extent that it forecloses estoppel plea by one facing charge of infringement of patent that has once been declared invalid. Blonder-Tongue v. University Foundation, p. 313. RESPONSIBILITY FOR ACCIDENT. See Automobile Accidents, 3; Constitutional Law, II, 1. INDEX 1041 RESTRAINT OF TRADE. See Antitrust Acts, 1-3. RETAIL FOOD SUBSIDIARIES. See Antitrust Acts, 4; Meat Packers Consent Decree of 1920. REVIEW. See Appeals; Certiorari. RIGHT OF PRIVACY. See Constitutional Law, V. SATISFACTORY EXPLANATION. See Constitutional Law, II, 4. SCHOOL BOARDS. See Civil Rights Act of 1964, 1-2; Constitutional Law, III, 3-4; School Desegregation, 1-9. SCHOOL DESEGREGATION. See also Civil Rights Act of 1964, 1-2; Constitutional Law, III, 3-4; Jurisdiction, 2. 1. Attendance zones—Pairing or grouping of zones— Remedial altering of attendance zones is not, as an interim corrective measure, beyond remedial powers of district court. Student assignment plan is not acceptable merely because apparently neutral, for it may fail to counteract continuing effects of past segregation. Pairing and grouping of noncontiguous zones is a permissible tool; judicial steps going beyond contiguous zones should be examined in light of objectives sought. Swann v. Board of Education, p. 1. 2. Attendance zones—Racial ratios.—In compliance with its duty to convert to unitary system, school board properly took race into account in fixing attendance lines. McDaniel v. Barresi, p. 39. 3. Geographic zones—Use of available techniques.—Court of Appeals erred in treating eastern part of metropolitan Mobile in isolation from rest of school system, and in not adequately considering possible use of all available techniques to achieve maximum amount of practicable desegregation. Davis v. School Comm’rs of Mobile County, p. 33. 4. North Carolina Anti-Busing Law—Assignment of students— Racial ratios.—North Carolina’s Anti-Busing Law, which flatly forbids assignment of students on account of race or to create racial balance or ratio in schools and which prohibits busing for such purposes is invalid as preventing implementation of desegregation plans required by the Fourteenth Amendment. North Carolina Bd. of Ed. v. Swann, p. 43. 5. North Carolina Anti-Busing Law—Jurisdiction.—Since both parties in this action challenging school desegregation plan seek same result, viz., a holding that North Carolina’s Anti-Busing Law is constitutional, there is no Art. Ill case or controversy. Additionally, on facts here, no direct appeal to this Court lies under 28 U. S. C. § 1253. Moore v. Board of Education, p. 47. 1042 INDEX SCHOOL DESEGREGATION—Continued. 6. Racial quotas—One-race schools.—Desegregation does not mean that every school in community must always reflect racial composition of system as a whole; here District Court’s very limited use of racial ratio—not as inflexible requirement, but as starting point in shaping a remedy—was within its equitable discretion. While existence of small number of one-race, or virtually one-race, schools does not in itself denote a system that still practices segregation by law, court should scrutinize such schools and require authorities to assure that racial composition does not result from present or past discriminatory action. Swann v. Board of Education, p. 1. 7. Responsibility of authorities—Racial distinctions—Equality of schools.—Policy and practice with regard to faculty, staff, transportation, extracurricular activities, and facilities are among most important indicia of segregated system, and first remedial responsibility of school authorities is to eliminate invidious racial distinctions in those respects. Normal administrative practice should then produce schools of like quality, facilities, and staffs. Swann v. Board of Education, p. 1. 8. State-imposed segregation—Equal protection of the laws— Remedies.—Today’s objective is to eliminate from the public schools all vestiges of state-imposed segregation that was held violative of equal protection guarantees by Brown v. Board of • Education, 347 U. S. 483, in 1954; and in default by school authorities of their affirmative obligation to proffer acceptable remedies, the district courts have broad power to fashion remedies that will assure unitary school systems. Swann v. Board of Education, p. 1. 9. Transportation of students—Travel time—Age of students.— Remedial technique of requiring bus transportation as tool of school desegregation was within District Court’s equitable powers. Objection to transportation may have validity when time or distance of travel is so great as to risk health of children or seriously impinge on educational process; limits on travel time will vary with many factors, but probably with none more than age of the students. Swann v. Board of Education, p. 1. SECONDARY SCHOOLS. See Civil Rights Act of 1964, 1-2; Constitutional Law, III, 3-4; School Desegregation, 1-9. SECURITY FOR DAMAGES. See Automobile Accidents, 3; Constitutional Law, II, 1. SEGREGATION. See Civil Rights Act of 1964, 1-2; Constitutional Law, III, 3-4; Jurisdiction, 2; School Desegregation, 1-9. INDEX 1043 SEIZURE OF OBSCENE MATERIALS. See Constitutional Law, IV, 2; Obscenity, 1. SELECTIVE SERVICE ACT. See Selective Service Regulations. SELECTIVE SERVICE ACT OF 1948. See Aliens; Immigration and Nationality Act, 1; Naturalization. SELECTIVE SERVICE REGULATIONS. Conscientious objector—Timeliness of claim—In-service determination.—Refusal of local board to reopen classification and pass on conscientious objector claim, made after mailing of induction notice but before induction, on basis of regulation that permitted such reopening only for “change in the registrant’s status resulting from circumstances over which the registrant had no control,” was not unreasonable as limitation on time within which local board must act on such claim, in light of Government’s assurance that one whose beliefs assertedly crystallize after mailing of notice will have full opportunity to obtain in-service determination of claim without having to perform combatant training or service. Ehlert v. United States, p. 99. SELECTIVE SERVICE SYSTEM. See also Administrative Procedure, 2; Aliens; Immigration and Nationality Act, 1; Naturalization. Exhaustion of remedies—Noncooperation by registrant.—Petitioner’s failure to exhaust remedies jeopardized.interest of Selective Service System, as administrative agency responsible for classifying registrants, in developing facts and using its expertise to assess his claims to exempt status, and thus bars his defense that he was erroneously classified. McGee v. United States, p. 479. SELF-INCRIMINATION. See Automobile Accidents, 2; Constitutional Law, II, 2; VI; Juries; Procedure, 1-2. SELF-REPORTING. See Automobile Accidents, 2; Constitutional Law, VI, 1. SENTENCES. See Constitutional Law, II, 2; VI, 2; Juries; Procedure, 1-2. SETTLEMENTS. See Indian Lands. SHERMAN ACT. See Antitrust Acts, 1-4; Meat Packers Consent Decree of 1920. SHIPPING PAPERS. See Criminal Law. SIDEWALKS. See Constitutional Law, II, 3; IV, 1. SINGLE-MEMBER DISTRICTS. See Constitutional Law, III, 1; Voting Rights Act of 1965. 1044 INDEX SIXTH AMENDMENT. See Constitutional Law, VII. SOCIAL SECURITY ACT. See also Administrative Procedure, 3. 1. Disability benefits—Medical evidence—Administrative procedure.—Written reports by physicians who have examined claimant for disability benefits under the Act constitute “substantial evidence” supporting nondisability finding within standard of §205 (g), notwithstanding reports’ hearsay character, absence of cross-examination (through claimant’s failure to exercise subpoena rights), and directly opposing testimony by claimant and his medical witness; and procedure followed does not violate due process requirements. Richardson v. Perales, p. 389. 2. Unemployment insurance—California Unemployment Insurance Code—Payment of benefits.—California Unemployment Insurance Code § 1335, providing for withholding of insurance benefits upon an employer’s appeal from initial eligibility determination, must be enjoined because it conflicts with the requirements of §303 (a)(1) of the Act to “insure full payment of unemployment compensation when due.” California Human Resources Dept. v. Java, p. 121. SOUTHERN UTES. See Indian Lands. SPLIT ZONING. See School Desegregation, 3. STANDARDS FOR SENTENCING. See Constitutional Law, II, 2; VI, 2; Juries; Procedure, 1-2. STANDARDS OF CONDUCT. See Constitutional Law, II, 3; IV, 1. STANDARDS OF GUILT. See Constitutional Law, II, 4. STANDBY CHARGES. See Administrative Procedure, 1; Federal Power Commission. STANDING TO SUE. See Constitutional Law, IV, 2; Obscenity, 1. STATEMENTS. See Constitutional Law, VII. STATUTORY CONSTRUCTION. See Constitutional Law, IV, 2; Obscenity, 1. STAYS. See Constitutional Law, III, 1; Voting Rights Act of 1965. STOCK OWNERSHIP. See Antitrust Acts, 4; Meat Packers Consent Decree of 1920. STOP-AND-REPORT STATUTES. See Automobile Accidents, 2; Constitutional Law, VI, 1. STRIKES. See Norris-LaGuardia Act; Railway Labor Act. INDEX 1045 STUDENT DEFERMENTS. See Administrative Procedure, 2; Selective Service System. STUDENT DESEGREGATION. See Civil Rights Act of 1964, 1-2; Constitutional Law, III, 3-4; Jurisdiction, 2; School Desegregation, 1-9. SUBJECTION TO DRAFT. See Aliens; Immigration and Nationality Act, 1; Naturalization. SUBMARKETS. See Antitrust Acts, 1-3. SUBPOENA DUCES TECUM. See Appeals. SUBPOENAS. See Administrative Procedure, 3; Social Security Act, 1. SUBSIDIARIES. See Antitrust Acts, 4; Meat Packers Consent Decree of 1920. SUBSTANTIAL EVIDENCE. See Administrative Procedure, 1, 3; Federal Power Commission; Social Security Act, 1. SUCCESSIVE SUITS. See Estoppel; Procedure, 3; Res Judicata. SULFURIC ACID. See Criminal Law. SUNDAY COMICS. See Antitrust Acts, 1-3. SUPREMACY CLAUSE. See Automobile Accidents, 1; Constitutional Law, VIII. SUPREME COURT. See Abortions; Jurisdiction, 2; School Desegregation, 5. Assignment of Mr. Justice Clark (retired) to United States Court of Appeals for the Second Circuit, pp. 925 and 1005. SUSPENSION OF LICENSES. See Automobile Accidents, 3; Constitutional Law, II, 1. SUSPICIOUS PERSONS. See Constitutional Law, II, 4. TELEVISION ANTENNAS. See Estoppel; Procedure, 3; Res Judicata. TEMPORARY INJUNCTIONS. See Appeals. TENNESSEE. See Labor Management Relations Act. TESTIMONIAL EVIDENCE. See Automobile Accidents, 2; Constitutional Law, VI, 1. TESTIMONY. See Administrative Procedure, 3; Constitutional Law, VII; Social Security Act, 1. TESTIMONY OF DEFENDANT. See Constitutional Law, II, 2; VI, 2; Juries; Procedure, 1-2. 1046 INDEX THEOLOGICAL EXEMPTION. See Administrative Procedure, 2; Selective Service System. THREATENED STRIKES. See Norris-LaGuardia Act; Railway Labor Act. THREATS OF VIOLENCE. See Constitutional Law, I; Consumers Credit Protection Act. THREE-JUDGE COURTS. See Constitutional Law, IV, 2; Obscenity, 1. TIME LIMITS. See Constitutional Law, IV, 2; Obscenity, 1. TIMELINESS. See Selective Service Regulations. TRANSFER PLANS. See Civil Rights Act of 1964, 1-2; Constitutional Law, III, 3-4; School Desegregation, 1-9. TRANSPORTATION. See Norris-LaGuardia Act; Railway Labor Act. TRANSPORTATION OF STUDENTS. See Civil Rights Act of 1964, 1-2; Constitutional Law, III, 3-4; Jurisdiction, 2; School Desegregation, 1-9. TRAVEL TIME. See Civil Rights Act of 1964, 2; Constitutional Law, III, 4; School Desegregation, 1, 6-9. TRIALS. See Constitutional Law, II, 2; VI, 2; Juries; Procedure, 1-2. UNEMPLOYMENT INSURANCE. See Social Security Act, 2. UNFAIR LABOR PRACTICES. See Labor Management Relations Act. UNIFIED GEOGRAPHIC ZONES. See School Desegregation, 3. UNINSURED MOTORISTS. See Automobile Accidents, 3; Constitutional Law, II, 1. UNIONS. See Norris-LaGuardia Act; Railway Labor Act. UNITARY SCHOOL SYSTEMS. See Civil Rights Act of 1964, 1-2; Constitutional Law, III, 3-4; School Desegregation, 1-9. UNITARY TRIALS. See Constitutional Law, II, 2; VI, 2; Juries; Procedure, 1-2. UNITED STATES HOUSING ACT. See Constitutional Law, III, 2. USE OF MAILS. See Constitutional Law, IV, 3; Obscenity, 2. USE RESTRICTIONS. See Automobile Accidents, 2; Constitutional Law, VI, 1. INDEX 1047 UTE INDIANS. See Indian Lands. UTILITY DISTRICT LAW. See Labor Management Relations Act. UTILITY INTERCONNECTIONS. See Administrative Procedure, 1; Federal Power Commission. VAGUENESS. See Abortions; Constitutional Law, II, 3-4; IV, 1; Jurisdiction, 1. VEHICLE CODE. See Automobile Accidents, 2; Constitutional Law, VI, 1. VISAS. See Immigration and Nationality Act, 2. VISITORS’ PERMITS. See Immigration and Nationality Act, 2. VOTING RIGHTS ACT OF 1965. See also Constitutional Law, III, 1. District Court decree—Apportionment plan.—Decree of district court is not within reach of § 5 of the Act, and does not require approval of the Attorney General or the District Court for the District of Columbia. Connor v. Johnson, p. 690. WAIVERS. See Constitutional Law, II, 2; VI, 2; Indian Lands; Juries; Procedure, 1-2. WANDERING ABOUT THE STREETS. See Constitutional Law, II, 4. WESTCHESTER, ILLINOIS. See Constitutional Law, V. “WHEN DUE.’’ See Social Security Act, 2. WILLING RECIPIENTS. See Constitutional Law, IV, 3; Obscenity, 2. WITHHOLDING OF BENEFITS. See Social Security Act, 2. WITHOUT VISIBLE BUSINESS. See Constitutional Law, II, 4. WORDS. 1. “Knowingly violates such regulation.” 18 U. S. C. §834 (f). U. S. v. International Min’ls Corp., p. 558. 2. “Political subdivision.” §2(2), Labor Management Relations Act, 29 U. S. C. § 152 (2). NLRB v. Natural Gas Utility District, p. 600. 3. “When due.” §303 (a)(1), Social Security Act, 42 U. S. C. §503 (a)(1). California Human Resources Dept. v. Java, p. 121. WRITTEN REPORTS. See Administrative Procedure, 3; Social Security Act, 1. U. S. GOVERNMENT PRINTING OFFICE : 1972 O - 419-882 OCT 3 1 1991 NOV 27 1991 3U5.4 111572 [ un3 v.Ij.02 U. S. Supreme Court United States reports .MAHONEY LIBRARY COLLEGE OF SAINT FLIZAiiETR ■ convent. station, n. j.