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PROPERTY OF THE
UNITED STATES
GOVERNMENT
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UNITED STATES REPORTS
VOLUME 409
CASES ADJUDGED
IN
THE SUPREME COURT
AT
JULY SPECIAL TERM, 1972
JULY 7, 1972
AND
OCTOBER TERM, 1972
OCTOBER 3, 1972, THROUGH JANUARY 17, 1973
TOGETHER WITH OPINIONS OF INDIVIDU.\L JUSTICES IN CHAMBERS
HENRY PUTZEL, jr.
REPORTER OF DECISIONS
UNITED STATES
GOVERNMENT PRINTING OFFICE
WASHINGTON : 1974
For 11ale by the Superintendent of Documents. U.S. Government Printing Office
Washington, D.C. 20402 - Price $16.70
Stock Number 2801-00375
ERRATA
151 U. S. 408, line 5 from bottom: "presents" should be "prevents."
404 U. S. 1007, line 7: "p. m" should be "p. v."
405 U. S. LXIII: The following sentence should appear at the
end of the Note: "Opinions reported on page 1201 et seq. are those
written in chambers by individual Justices."
408 U. S. 913, line 2 from bottom: "Comments 14" should be
"Comment 4."
II
JUSTICES
OF THE
SUPREME COURT
DURING THE TIME OF THESE REPORTS
w ARREN E. BURGER, CHIEF JUSTICE.
WILLIAM 0. DOUGLAS, ASSOCIATE JUSTICE.
WILLIAM J. BRENNAN, JR., ASSOCIATE JUSTICE.
POTTER STEW ART, ASSOCIATE JUSTICE.
BYRON R. WHITE, ASSOCIATE JUSTICE.
THURGOOD MARSHALL, ASSOCIATE JUSTICE.
HARRY A. BLACKMUN, AssocIATE JusTICE.
LEWIS F. POWELL, JR., ASSOCIATE JUSTICE.
WILLIAM H. REHNQUIST, ASSOCIATE JUSTICE.
RETIRED
EARL w ARREN, CHIEF JUSTICE.
STANLEY REED, ASSOCIATE JUSTICE.
TOM C. CLARK, ASSOCIATE JUSTICE.
OFFICERS OF THE COURT
RICHARD G. KLEINDIENST, ATTORNEY GENERAL.
ERWIN N. GRISWOLD, SOLICITOR GENERAL.
MICHAEL RODAK, JR., CLERK.
HENRY PUTZEL, jr., REPORTER OF DECISIONS.
FRANK M. HEPLER, MARSHAL.
HENRY CHARLES HALLAM, JR., LIBRARIAN.1
EDWARD G. HUDON, LIBRARIAN.2
1 Mr. Hallam retired as Librarian effective November 30, 1972.
2 Mr. Hudon was appointed Librarian effective December I, 1972.
III
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, THURGOOD MARSHALL,
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, LEWIS F. POWELL, JR., Associate
Justice.
For the Sixth Circuit, POTTER STEWART, Associate
Justice.
For the Seventh Circuit, WILLIAM H. REHNQUIST,
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.
January 7, 1972.
(For next previous allotment, see 403 U. S., p. IV.)
IV
PROCEEDINGS IN THE SUPREME COURT OF
THE UNITED ST ATES IN MEMORY OF
MR. JUSTICE HARLAN*
TUESDAY, OCTOBER 24, 1972
Present: MR. CHIEF JuSTICE BuRGER, MR. JUSTICE
DOUGLAS, MR. JUSTICE BRENNAN, MR. JUSTICE STEWART,
MR. JusTICE ·WHITE, MR. JusTICE MARSHALL, MR. Jus-
TICE BLACKMUN, MR. JUSTICE PowELL, and MR. JUSTICE
REHNQUIST.
THE CHIEF J uSTICE said :
The Court is in Special Session this afternoon to receive
the Resolutions of the Bar of the Supreme Court in
tribute to Mr. Justice Harlan.
Mr. Solicitor General Griswold addressed the Court
as follows:
Mr. Chief Justice, and may it please the Court:
At a meeting of the Bar held earlier this afternoon
Resolutions were adopted in honor and in memory of
Mr. Justice John M. Harlan, which I am instructed to
lay before the Court.
The Resolutions unanimously adopted are as follows:
RESOLUTIONS
The members of the Bar of the Supreme Court have
met to record our respect and esteem for John Marshall
*Mr. ,Justice Harlan, who retired from active service on September
23, 1971 (404 U.S. ix), died in Washington, D. C., on December
29, 1971 (404 U. S. xix). Services were held at Emmanuel
Church, Weston, Connecticut, on January 4, 1972, where interment
followed.
V
VI MR. JUSTICE HARLAN
Harlan, Associate Justice of the Supreme Court of the
United States for 16 years from 1955 to 1971. His death
on December 29, 1971, following by a few months his
retirement from the Court, has saddened the members
of the Judiciary and the Bar and many others, in the
United States and elsewhere, who recognized and admired
his outstanding contributions to the administration of
justice and to the development of the law.
Justice Harlan was born in Chicago on May 20, 1899.
He was descended from a long line of distinguished forebears,
beginning in the United States with George Harlan,
who landed in Delaware in 1687 and later became its
Governor. His great-grandfather, James Harlan, was a
prominent lawyer in the days of the great Chief Justice
John Marshall and named his son born in 1833 in honor
of the Chief Justice. Forty-four years later, that son,
John Marshall Harlan, became a Justice of the Supreme
Court, served on the Court for 34 years and has gone
down in history as the "Great Dissenter" and the only
Justice who dissented in the landmark case of Plessy v.
Ferguson.1
The first Justice Harlan's son, John Maynard Harlan,
who was the father of our Justice Harlan, was a prominent
Chicago lawyer, active in public and civic affairs
and a man of great force and commanding personality.
Those closest to the second Justice Harlan were aware
that his father, as \Vell as his better-known grandfather,
was an important influence on the development of the
qualities of mind and character which made possible his
life's achievements.
After preparatory education in Canada and the United
States, Justice Harlan entered Princeton in 1916. At
Princeton, he was Chairman of the Daily Princetonian
and President of his class for three years and was recognized
by both faculty and fellow students as a man of
1 163 U.S. 537 (1896), which established the "separate but equal"
doctrine in regard to public schools and was not overruled until
Brown v. Board of Education (347 U. S. 483) in 1954.
MR. JUSTICE HARLAN VII
marked distinction. In 1920, he was awarded a Rhodes
scholarship and attended Balliol College at Oxford for
three years, where he earned a "First" in Jurisprudence.2
He maintained his contacts with Oxford and this led to
the development of a close relationship with, and a deep
appreciation of, the English Bench and Bar. This appreciation
was reciprocated and is symbolized by his election
as an Honorary Bencher of the Inner Temple.
In 1923, Justice Harlan began his career in the practice
of law by accepting a position in the New York law firm
of Root, Clark, Buckner and Howland, which was even
then a leading firm and which, with various changes of
name, has ever since maintained a position of high rank
among the great law firms of New York. Emory R.
Buckner of that firm was not only a prominent trial
lawyer, but was also the partner most concerned with the
management of the office, including the recruitment of
young lawyers. From the very beginning of young Harlan's
association with the firm, Buckner took him under
his wing and over the years had a profound influence on
his development as a trial lawyer.
In 1925, only two years after young Harlan arrived,
Buckner was appointed United States Attorney for the
Southern District of New York and Harlan was invited
to go with him. There, he was entrusted with increasing
responsibilities and was Chief of the Prohibition Section
of the office by the time Buckner resigned in 1927 and
went back to private practice, again taking Harlan with
him. Four years later, Harlan became a partner of the
firm and remained a partner, with additional intervals of
public service as a Special Prosecutor and in the Air Force
in World War II, until 1954, when President Eisenhower
appointed him a Judge of the Court of Appeals for the
Second Circuit.
2 After Justice Harlan returned to the United States, he continued
his legal education by enrolling at and earning a degree from New
York Law School.
MR. JUSTICE HARLAN
In 1928, Justice Harlan married Ethel Andrews, daughter
of a distinguished Professor of History and sister
of John Andrews, a fell ow associate at Root, Clark. They
had one daughter, Eve, now Mrs. Frank H. Dillingham,
and five grandchildren who brought them much satisfaction
and happiness.
Justice Harlan's great mentor, Emory Buckner, died in
1941 , after several years of declining health. In 1964,
some 23 years after Buckner's death, when Justice Harlan
was immersed in his work at the Supreme Court, he participated
with others in arranging for the writing of a
biography of Emory Buckner. It is a measure of the
debt which Justice Harlan felt that he owed to Buckner
and an apt demonstration of the depth and sincerity of
his quality of loyalty that he did this and that he also
wrote personally an Introduction to the biography which
is a masterpiece of concise and perceptive expression.3
In his career as a trial and appellate lawyer in private
practice, Justice Harlan won increasing recognition as a
leader of the Bar and, by 1954, when he became a Judge
of the Court of Appeals for the Second Circuit, he had
attained a position within his profession which made inevitable
the enthusiastic reception accorded to his appointment
by the Bench and Bar. This position had
been earned, not only by his exceptional skill as an advocate,
but also by his unremitting drive for excellence, his
penetrating analysis of issues, his clarity and simplicity
of expression and his insistence on painstaking attention
to detail.
Justice Harlan's career in private practice has been
admirably summarized in an article by his former partner,
John E. F. Wood, which appeared in December 1971, in
an issue of the Harvard Law Review dedicated to Justice
Harlan on the occasion of his retirement from the Su-
3 Emory Buckner, a biography by Martin Mayer, published in
1968 by Harper & Row, under the auspices of the William Nelson
Cromwell Foundation.
MR. JUSTICE HARLAN IX
preme Court in September of that year.4 Since Mr. Wood
is himself a leading member of the trial and appellate bar
and was closely associated with Justice Harlan in various
litigations over many years, it was deemed appropriate
to adopt for these Resolutions the following from Mr.
Wood's article: "
"Throughout his practice, Harlan devoted himself
to litigation. His absorbing interest was in the work
of the courts and the function of lawyers as officers
of the court ....
"His first major civil trial as leading counsel was
in the Ella Wendel case, a complicated and much
publicized will contest which turned on Harlan's
painstaking attention to detail and on his brilliant
destruction of false claimants in cross-examination.
In contrast to the drama of Wendel, he later brought
his skills to bear on what some would term drier
matters in a complex question of accounting for
revenues among affiliated railroads. He entered the
arena of political rights in attempting to overturn
a decision requiring the New York Board of Higher
Education to rescind their offer of employment to
Bertrand Russell as a member of the faculty of the
College of the City of New York.
"But the cases Harlan argued were as often destined
for the law school casebook as for newspaper
headlines. In Randall v. Bailey, he dealt with questions
of state statutory construction having to do
with the determination of surplus for the payment
of dividends, and marshalled both legislative history
• 85 Harv. L. Rev. 377-381. :\fr. Wood's article was one of five
in this issue, the other four being by former Chief Justice Earl
Warren, former Chief Judge J. Edward Lumbard, of the Court of
Appeals for the Second Circuit, the present Chief Judge of that
Court, Henry J. Friendly, and Charles Nesson, Professor of Law at
Harvard, and a former Law Clerk of Justice Harlan.
5 In quoting from Mr. Wood's article, his footnotes have been
omitted.
X MR. JUSTICE HARLAN
and economic analysis in support of his cause. He
examined the contours of federal judicial power with
the perception and sensitivity of the academic in
two celebrated cases on federal procedure, De Beers
Consolidated Mines, Ltd. v. United States and Cohen
v. Beneficial Industrial Loan Corp. His last tl:l-sk
before appointment to the bench-the massive undertaking
of both factual and legal analysis in the
famous du Pont-General Motors case- required the
concentration and dexterity of mind that typified his
work as a trial lawyer.
"One of his great strengths was his mastery of the
facts in every case in which he participated. In the
course of his trial practice Harlan developed an
amazing capacity to absorb complicated sets of facts,
to arrange them in proper relationship to each other,
and to state them simply and clearly. This capacity
did not flow from any superficial brilliance or from
a gift of clever utterance. It was accomplished by
methodical and painstaking work pursued with an
intensity of concentration that was a marvel to those
who had the privilege of working with him."
In addition to his service as an Assistant United States
Attorney under Emory Buckner from 1925 to 1927, Justice
Harlan interrupted his private practice on three occasions
for substantial periods of time to undertake public
service. The first such occasion was from 1928 to 1930,
when Buckner was appointed by Governor Alfred E.
Smith as a Special Assistant Attorney General to investigate
a sewer scandal in the Borough of Queens and to
prosecute Maurice Connolly, the then Borough President
of Queens, for his part in this scandal, and Harlan was
appointed to act as Buckner's principal assistant. This
assignment involved for Harlan the supervision of a staff
of five able young lawyers, all of whom were to achieve
prominence in later years, in an unusually complicated
and difficult investigation, analysis and correlation of a
multitude of detailed facts, and resulted in the resignaIvIR.
JUSTICE HARLAN XI
tion of Connolly and his conviction and sentence to
prison.6
The next interruption of Justice Harlan's private practice
was his service from 1942 to 1945 as Chief of the
Operational Analysis Section of the United States Eighth
Air Force headquartered in England, at first as a civilian
and later as a colonel. Harlan's function was to direct
and coordinate the work of a group of scientists in their
important task of analyzing, and endeavoring to improve,
the selection of targets and methods of operation for the
strategic bombing of Germany. The future Justice gave
to the performance of his military duties the same intense
concentration and devotion to duty that had characterized
his earlier work in private practice. One incident
in 1943 strikingly illustrates his dedication to the best
possible performance of the task he had undertaken.
This was his volunteered participation as a waist gunner
in a daylight bombing raid on Gelsenkirchen in order to
understand better the problems faced in such an operation.
For his wartime service, Justice Harlan was
awarded the Legion of Merit of the United States and the
Croix de Guerre of Belgium and France.7
The final interruption of Justice Harlan's private practice
was in 1951 and 1952 when, by appointment of Governor
Thomas E. Dewey, he served as Chief Counsel of
the New York State Crime Commission. This Commission,
of which the late Joseph M. Proskauer was Chairman,
held extensive hearings and rendered reports which
led to important remedial action, including the estab-
6 Emory Buckner by Martin Mayer, pp. 252-262,
7 Article by Judge J. Edward Lumbard in 85 Harv. L. Rev.
372, at 373-374. During his service in the Air Force, Justice
Harlan was appointed to a Commission of Air Force officers that
met in London and Paris with corresponding representatives of the
other services and our allies to set up a Joint Control Council to
coordinate plans for the post-hostility occupation of Germany. Justice
Harlan's advice and participation in the drafting of documents
made a substantial contribution to this important project.
XII MR. JUSTICE HARLAN
lishment of a Waterfront Commission of New York
Harbor.
Justice Harlan had been a Judge of the Court of
Appeals for the Second Circuit for only eight months
when he was nominated by President Eisenhower to fill
the vacancy on the Supreme Court created by the sudden
death of Justice Robert H. Jackson. The nomination
was confirmed on March 16, 1955, and Justice Harlan
took his place on the Court on March 28.
It is safe to predict that history will accord to Justice
Harlan a prominent place among the greatest Justices of
the Court. This prediction is strongly supported by the
views which have already been expressed by a long and
growing list of eminent legal scholars who have studied
his Supreme Court opinions and have begun the process
of analyzing and evaluating their impact.8
During his 16 years on the Supreme Court, Justice
Harlan wrote a total of 613 opinions, more than any
other Justice during this period, of which 168 were opinions
for the Court, 149 were concurring opinions and 296
were dissenting opinions. Many of Justice Harlan's
opinions were written in cases of major importance in-
8 One notable example of such expressions of views is a volume of
Selected Opinions and Papers of Justice John 11. Harlan entitled
"The Evolution of a Judicial Philosophy" and edited by David L.
Shapiro, Professor of Law at Harvard Law School and a former
Law Clerk of Justice Harlan. This volume, published in 1969 by
the Harvard University Press, and sponsored by the William Nelson
Cromwell Foundation, includes a superb foreword by Professor
Paul A. Freund. Additional examples are the five articles in the
special issue of the Harvard Law Review referred to in footnote 4
above. Further noteworthy examples are three addresses delivered
by JusTICE PoTTER S'I'EWART, former Attorney General Herbert
Brownell and Professor Paul M. Bator at a memorial ceremony for
Justice Harlan at the Association of the Bar of the City of New York
on April 5, 1972, an article by Nathan Lewin, of the District of
Columbia Bar, in the June 1972 issue of the American Bar Association
Journal and an article by Professor Norman Dorsen of the New
York University School of Law, in 44 N. Y. U. L. Rev. 249 (1969).
MR. JUSTICE HARLAN XIII
volving complex, difficult, and often novel, questions of
substantive and procedural law, requiring extensive study
of the applicability and effect of provisions of the Constitution,
of the language of federal and state statutes
and of prior decisions of the Supreme Court and other
courts. In these cases, and also in the less important
cases, Justice Harlan's opinions are noteworthy for the
clear presentation of the facts of each case and the careful
formulation of the issues presented. The opinions
of Justice Harlan are admirable examples of the effective
execution of the judicial function. They are regarded by
the Judiciary and the Bar as models of legal analysis and
craftsmanship, even by those who do not always agree
with the conclusions reached in such opinions.
The sheer magnitude of the work represented by Justice
Harlan's opinions, including, as they did, so many
concurring and dissenting opinions which inevitably
added materially to the time and effort required, is notable
in itself. When it is remembered that during his
later years on the Court he was severely handicapped
by his impaired eyesight, his output of opinions is remarkable
and is convincing proof of his devotion to the
Court and his appreciation of its importance to the
country.
The task of synthesizing from the many opinions of
Justice Harlan his judicial philosophy and approach and
the respects in which his contributions to the law and
the administration of justice have been distinctive is one
which cannot appropriately be undertaken at this time
and on this occasion. There are, however, some ingredients
of his opinions which are so pervasive that some
reference to them seems appropriate.
One of these ingredients is the emphasis placed by
Justice Harlan on the division of powers and functions
between the Federal Government and the States. This
concern on his part surfaced in many different types
XIV MR. JUSTICE HARLAN
of cases,9 but is aptly demonstrated by his position in
the obscenity cases, such as Roth v. United States, 354
U. S. 476, 496 ( 1957), and Ginzburg v. United States,
383 U. S. 463, 493 (1966). In his opinion in the Roth
case, where he dissents in that case but concurs in the
result in a companion case decided on the same day, he
says:
"The Constitution differentiates between those
areas of human conduct subject to the regulation
of the States and those subject to the powers of
the Federal Government. The substantive powers
of the two governments, in many instances, are distinct.
And in every case where we are called upon
to balance the interest in free expression against
other interests, it seems to me important that we
should keep in the forefront the question of whether
those other interests are state or federal. Since
under our constitutional scheme the two are not
necessarily equivalent, the balancing process must
needs often produce different results ....
"Not only is the federal interest in protecting the
Nation against pornography attenuated, but the
dangers of federal censorship in this field are far
greater than anything the States may do. It has
often been said that one of the great strengths of
our federal system is that we have, in the fortyeight
States, forty-eight experimental social laboratories."
10 (354 U. S., at 503-504, 505.)
9 See, for example, dissenting opinions of Justice Harlan in Fay v.
Noia, 372 U.S. 391, 448 (1963), and Henry v. Mississippi, 379 U.S.
443, 457 (1965).
10 Justice Harlan's concern for the protection of free speech and
related constitutional rights is illustrated, also, by a number of
cases where he wrote the opinion of the Court. Examples of these
are NAACP v. Alabama, 357 U. S. 449 (1958), where the Court
reversed an Alabama civil contempt judgment against the NAACP
MR. JUSTICE HARLAN xv
A related component of Justice Harlan's judicial approach
is the emphasis placed by him on the separation
of the powers and functions of the Legislative, Executive
and Judicial Branches of the Government. This is forcefully
brought out by his dissenting opinions in the landmark
case of Reynolds v. Sims, 377 U. S. 533, 589· ( 1964),
establishing the "one man, one vote" doctrine, and in
Avery v. Midland County, 390 U. S. 474, 486 (1968),
extending the doctrine to the 80,000 units of local government
within the States. His dissenting opinion in
Reynolds is a major exposition of his various reasons
for finding it necessary to dissent, including his abovementioned
concern to preserve the federal system, and
only a reading of the entire opinion reveals fully the
extent to which his conclusion was based upon his conviction
that the Court's decision went beyond the proper
scope of the judicial powers and functions. However,
his reliance on this factor can be glimpsed from the following
excerpts from this opinion:
"In these cases the Court holds that seats in the
legislatures of six States are apportioned in ways
that violate the Federal Constitution. . . . These
decisions, with Wesberry v. Sanders, 376 U. S. 1,
involving congressional districting by the States, and
Gray v. Sanders, 372 U. S. 368, relating to elections
for statewide office, have the effect of placing basic
aspects of state political systems under the pervasive
overlordship of the federal judiciary ....
"The Court's elaboration of its new 'constitutional'
doctrine indicates how far-and how unwisely-
it has strayed from the appropriate bounds
for its refusal to produce its list of members and agents in the State,
and Cohen v. CaJ,ijornia, 403 U. S. 15 (1971), where the Court reversed
a California conviction for wearing, in a corridor of the Los
Angeles Courthouse, a jacket bearing an obscene slogan against the
draft.
XVI MR. JUSTICE HARLAN
of its authority. The consequence of today's decision
is that in all but the handful of States which
may already satisfy the new requirements the local
District Court or, it may be, the state courts, are
given blanket authority and the constitutional duty
to supervise apportionment of the State Legislatures.
It is difficult to imagine a more intolerable
and inappropriate interference by the judiciary with
the independent legislatures of the States ....
". . . As I have said before, . . . I believe that
the vitality of our political system, on which in the
last analysis all else depends, is weakened by reliance
on the judiciary for political reform .... " (377
U. S., at 589, 615, 624.)
The dissenting opinion in the Reynolds case also includes
a succinct statement of another well-defined component
of Justice Harlan's judicial approach. This is
his firmly held belief that it is a mistake to assume that
it is within the functions of the Court to provide a remedy
for every persistent major problem of society for
which a remedy has not otherwise been provided. Thus,
he says:
"Finally, these decisions give support to a current
mistaken view of the Constitution and the constitutional
function of this Court, This view, in a nutshell,
is that every major social ill in this country
can find its cure in some constitutional 'principle,'
and that this Court should 'take the lead' in promoting
reform when other branches of government
fail to act. The Constitution is not a panacea for
every blot upon the public welfare, nor should
this Court, ordained as a judicial body, be thought
of as a general haven for reform movements. The
Constitution is an instrument of government, fundamental
to which is the premise that in a diffusion
of governmental authority lies the greatest promise
MR. JUSTICE HARLAN XVII
that this Nation will realize liberty for all its citizens.
This Court, limited in function in accordance
with that premise, does not serve its high purpose
when it exceeds its authority, even to satisfy justified
impatience with the slow workings of the political
process." (377 U. S., at 624-625.)
This thesis, expressed in various ways, recurs frequently
in Justice Harlan's opinions, and must be counted
as one of the significant bases of his decisions in many
cases.11
Still another pervasive ingredient of Justice Harlan's
judicial approach is the view that, in considering the
validity of legislative enactments or executive action
challenged on constitutional grounds, the asserted infringement
of constitutional rights involved in such
enactments or action must be balanced against the legitimate
interests of society which the Legislative or Executive
Branch was seeking to protect. Coupled with this
concept of balancing of interests is his further view that
determinations by the Legislative or Executive Branch as
to the existence of a social problem requiring remedial
action and as to the appropriateness of the measures
adopted, should be given great weight by the judiciary in
determining whether such measures should be invalidated.
An example of a major opinion by Justice Harlan
illustrating his application of these two related principles
is his dissenting opinion in Poe v. Ullman, 367
U. S. 497, 522 (1961), involving a Connecticut statute
making it a crime for any person, including married
11 The importance which Justice Harlan attached to this subject
and the amount of thought which he gave to it are demonstrated
by the fact that, in one of his infrequent public addresses, delivered
at the dedication of the American Bar Center in Chicago in August
1963, he devoted substantially his entire address to a carefully formulated
exposition of the bases upon which the notion had been supported,
and his own reasons for opposing, the proposition that "all
deficiencies in our society which have failed of correction by other
means should find a cure in the courts."
XVIII MR. JUSTICE HARLAN
couples, to use any contraceptive drug or device. In
this instance, after an extensive analysis and detailed
appraisal of the individual rights infringed and of the
method adopted by the State-invoking criminal sanctions-
to carry out its purpose of protecting the morals
of the community, he reached the conclusion that the
statute should be held invalid. This conclusion was
subsequently confirmed by the Court in Griswold v.
Connecticut, 381 U. S. 479 (1965), involving the same
statute, with Justice Harlan concurring in the result in
a separate opinion. In many other cases, the application
of these principles by Justice Harlan was a factor
in his reaching the conclusion that the statute or executive
action challenged should be sustained.12
In the field of enforcement of laws protecting citizens
from crimes, particularly crimes of violence, where the
governmental interest was unquestioned, Justice Harlan
believed strongly that, in balancing such interest against
the asserted constitutional rights of those accused of such
crimes, the decisions of the Supreme Court had in some
respects gone too far in upholding the constitutional challenges
to convictions. This resulted in his dissenting
from a number of such decisions. One of the most
notable of such dissents is his opinion in the muchdiscussed
case of Miranda v. Arizona, 384 U. S. 436, 504
(1966), where the Court reversed a conviction because
there had been admitted at the trial a confession obtained
while the defendant was in custody and before he had
been warned about his right to remain silent and his right
to a lawyer.13
12 See, for example, Lathrop v. Donohue, 367 U.S. 820, 848 (1961);
Scales v. United States, 367 U.S. 203 (1961); Shapiro v. Thompson,
394 U. S. 618, 655 (1969); New York Times Co. v. United States,
403 U. S. 713, 752 (1971)-Justice Harlan's last opinion prior to hls
ret.irement from the Court.
13 See, also, Justice Harlan's concurring opinion in Orozco v. Texas,
394 U. S. 324, 327 (1969), in which the Miranda doctrine was applied
to questioning of a suspect immediately after arrest.
MR. JUSTICE HARLAN XIX
In the Miranda opinion, in addition to expounding his
reasons for believing that the Court's decision did not
give adequate "recognition to society's interest in suspect
questioning as an instrument of law enforcement," id.,
at 509, Justice Harlan expressed the view that the practical
effects of the decision would be disappointing with
regard to its influence on policemen and unfortunate in
that the nei,,v rules propounded would handicap massive
ongoing efforts to bring about sound reforms in criminal
law enforcement procedures.
Notwithstanding his dissenting view in Miranda and
related cases that the Fifth Amendment privilege against
self-incrimination should not be held to invalidate the
confessions involved in such cases, Justice Harlan wrote
or joined in several opinions expanding constitutional
protections accorded to the accused. One of these was
his opinion for the Court in Marchetti v. United States,
390 U. S. 39 ( 1968), which added a new dimension to
the protections afforded by the Fifth Amendment. In
that case, the federal wagering tax statute, requiring
payment of an annual occupation tax and registration,
was held invalid on the ground that the statute required,
on pain of criminal prosecution, the providing of information
which could be used to establish guilt in a subsequent
prosecution. An unusual feature of this decision
is that the Court expressly overruled two relatively recent
prior decisions of the Court.
Whatever may be the ultimate verdict of history as to
how Justice Harlan's judicial philosophy should be appraised,
there can be no doubt that he will always be
regarded as a Justice who possessed in the highest degree
the qualities of character and dedication which are an
essential component of a truly great judge. These qualities-
his integrity, his fairness, his candor, his courtesy,
his enjoyment of the spirit of professional comradeship,
his gentle humor, his modesty, his intellectual and physical
courage and his devotion to the Court and to the
country-have won for him the admiration and affection
xx MR. JUSTICE HARLAN
of his colleagues on the Court, of the succession of gifted
young men who have served as his Law Clerks and of
many other judges and lawyers who have been in a position
to form reliable judgments.
The members of the Bar of the Supreme Court are
most grateful that they have had the privilege of appearing
before and knowing Justice Harlan and that the Court
and the country have had the benefit of his extraordinarily
productive and effective service on the Court. His
death has left us with a deep sense of loss and we extend
to his family our most sincere sympathy in their grief.
We and our successors at the Bar will remember Justice
Harlan with reverence and with great affection, and his
noble example of selfless dedication to the law and to the
Court will be a source of inspiration to all of us for many
years to come.
It is accordingly
Resolved, That we, the Bar of the Supreme Court of
the United States, express our profound sorrow at the
death of Associate Justice John Marshall Harlan and our
thankfulness for the great and enduring contributions
made by him to the law, to the Court and to the Nation;
and it is further
Resolved, That the Attorney General be asked to present
these Resolutions to the Court and to request that
they be inscribed upon its permanent records/'
14 The foregoing Resolutions are proposed by the Committee on
Resolutions, which consisted of the following members: Professor
Wayne G. Barnett, Professor Paul Bator, Hon. Dudley B. Bonsal,
Bruce Bromley, Esq., Hon. Frederick van P. Bryan, Eli Whitney
Debevoise, Esq., Professor Norman Dorsen, Harold J. Gallagher,
Esq., Cloyd Laporte, Esq., Nathan Lewin, Esq., David H. McAlpin,
Esq., Robert W. Meserve, Esq., :\1atthew Nimetz, Esq., John Lord
O'Brian, Esq., William P. Palmer, Esq., David W. Peck, Esq., E.
Barrett Prettyman, .Jr., Esq., Hon. William P. Rogers, Henry Sailer,
Esq., Philip C. Scott, Esq., Charles E. Stewart, Jr., Esq., Hon. William
H. Timbers, Lawrence E. Walsh, Esq., Bethuel M. Webster,
Esq., and Leo Gottlieb, Esq., Chairman.
MR. JUSTICE HARLAN XXI
THE CHIEF J usTICE said:
Thank you, Mr. Solicitor General. I recogmze the
Attorney General at this time.
Mr. Attorney General Kleindienst addressed the Court
as follows:
Mr. Chief Justice, may it please the Court:
The Bar of this Court met today to honor the memory
of John Marshall Harlan, Associate Justice of the Supreme
Court from 1955 to 1971.
"A lawyer's and a judge's judge," as he has been so
aptly described, Justice Harlan was nominated by President
Eisenhower in 1954 to fill the vacancy created by
the death of Justice Robert H. Jackson. In announcing
the appointment, the late President said: "Judge Harlan's
qualifications are the highest. Certainly, they were
the highest of any that I could find."
And, indeed they were. Born in Chicago, Illinois, in
1899 to a family whose dedication to public service dates
back almost 300 years, John Marshall Harlan was admitted
to the New York Bar in 1925, after distinguishing
himself academically at Princeton University, as a
Rhodes scholar at Oxford University, and at New York
Law School.
The future Justice's training as a lawyer began under
the tutelage of Emory Buckner, then one of the Nation's
ablest and most highly regarded trial lawyers. Almost
immediately after entering the practice of law, Justice
Harlan accompanied Buckner into public service when
the latter was appointed United States Attorney for the
Southern District of New York. There the Justice not
only assisted Buckner in the trial of many major prosecutions,
but also tried a number of criminal cases.
Upon leaving the United States Attorney's Office, Justice
Harlan returned to private practice where he became
XXII MR. JUSTICE HARLAN
one of the leading members of the New York Bar,
specializing in highly complex civil and criminal litigation
which brought him before this Court in the role of
an advocate. He twice interrupted his private practice
to enter public service, once as a Special Assistant to
the Attorney General of New York and later as Chief
Counsel to the New York State Crime Commission.
During World War II he was decorated by three nations
for his services as head of the Operations Analysis Section
of the Eighth Army.
Some years ago, writing of his association with his
mentor, Emory Buckner, Justice Harlan said: "The
Cornerstone of ... [his] litigation method was objective
and relentless preparation. . . . [He] was never content
to do the best he could with cases as put to him
by his clients, but insisted upon making his own investigation
of every fact and circumstance before rendering
his estimate of the situation."
The young apprentice had apparently learned his lesson
well. "Objective and relentless preparation" and "exhaustive
investigation" of cases not only marked Justice
Harlan's career at the Bar; these traits were also clearly
reflected in the objectivity with which he approached
cases, in the probing questions he asked of counsel during
oral argument, and in the brilliantly analytical and exhaustively
researched opinions he wrote during his tenure
on this Court and the United States Court of Appeals
for the Second Circuit.
While his opinions, which were the work product of
a judicial craftsman, won him the admiration of students
of the Court, and while his courtesy, objectivity, and
general willingness to listen won him the special affection
of the Bar of the Court, it was his profound belief
in the American Federal System as a bulwark of freedom,
and his devotion to those basic liberties essential to a
free society, so brilliantly expounded upon in his opinions,
which can safely be said to have won him his
place in the history of the Court. Justice Harlan deeply
MR. JUSTICE HARLAN XXIII
believed that the diffusion of governmental function
between federal and state authority, and between the
coordinate branches of the Federal Government, afforded
safeguards to our free society of comparable importance
to the Bill of Rights and the Fourteenth Amendment.
Apart from its significance as an instrument of freedom,
he viewed the manner in which our political system
was structured as a catalyst, fostering diversity, innovation,
and experimentation.
With this guiding belief and his refusal to accept the
view that the Fourteenth Amendment incorporated the
provisions of the Bill of Rights in their entirety, he frequently
dissented from opinions of the Court ·which he
regarded as unnecessarily imposing on the States restrictions
and procedures which were not essential to a system
of ordered liberty and which stifled diversity and experimentation.
But, while he would not acquiesce in interferi~
g with state actions which fell short of infringing
on fundamental rights, he had no hesitation in meeting
the responsibility of the Court to strike down any action
which endangered those liberties essential to a free
society.
In cases involving free speech and association, the
rights which have been described as "the matrix, the
indispensable condition of nearly every other form of
freedom," Justice Harlan led the Court in reminding
us that " [ t] he constitutional right of free expression is
powerful medicine in a society as diverse and populous
as ours. It is designed and intended to remove governmental
restraints from the arena of public discussion,
putting the decision as to what views shall be voiced
largely into the hands of each of us, in the hope that
use of such freedom will ultimately produce a more
capable citizenry and more perfect polity and in the
belief that no other approach would comport with the
premise of individual dignity and choice upon which
our political system rests." (Cohen v. California, 403
u. s. 15, 24.)
XXIV MR. JUSTICE HARLAN
And in another opinion he spoke of the "constitutionally
guaranteed 'freedom to be intellectually ... diverse
or even contrary,' and the 'right to differ as to things
that touch the heart of the existing order.' " (Street v.
New York, 394 U.S. 576,593, citing Board of Education
v. Barnette, 319 U. S. 624, 641-642.)
In NAACP v. Alabama, 357 U. S. 449, 462, he stressed
"the vital relationship between freedom to associate and
privacy in one's associations," in an opinion which held
that the State could not compel the disclosure of the
membership lists of a group that had demonstrated
that each time its membership lists were disclosed, its
members had been exposed "to economic reprisal, loss
of employment, threat of physical coercion, and other
manifestations of public hostility."
In Poe v. Ullman, 367 U. S. 497, 522, his dissenting
opinion turned to the essential values reflected by the
Fourth and Fourteenth Amendments.
Voting then to strike down Connecticut's ban on the
use of contraceptive devices, as a majority of the Court
later did, he noted that while the statute was not offensive
under the traditional view of these constitutional provisions
because it involved not an "intrusion into the home
so much as on the life which characteristically has its
pl9ce in the home," he nevertheless found the distinction
to be insubstantial. "[I] f the physical curtilage of the
home is protected, it is surely as a result of solicitude
to protect ·Lhe privacies of the life within. Certainly the
safeguarding of the home does not follow merely from
the sanctity of property rights. The home draws its
pre-eminence as the seat of family life. And the integrity
of that life is ... fundamental ... " (367 U.S., at 551).
This concern for the sanctity and privacy of the home
marked all of Justice Harlan's opinions in Fourth Amendment
cases, although he often found it delicate to balance
these values with his continuing concern that state criminal
proceedings not be unduly shackled.
MR. JUSTICE HARLAN XXV
Time does not permit an exhaustive review of Justice
Harlan's work, which included some 600 opinions. But
what emerges even from a cursory examination is the
image of a man of great intellectual and moral integrity,
dedicated to the Constitution and committed to the role
of the Court as the protector of the fundamental liberties
essential to a free people.
To stop at this point, Mr. Chief Justice, without taking
note of Justice Harlan's character and courage would
"miss the full measure of the man." None of us will
forget his example of courage and fortitude as he worked
without diminution in quantity or quality despite the
illness which virtually blinded him in the last few years
of his life. And all who knew and worked closely with
him will never forget his kindness, warmth and concern
for others. As his close friend and colleague, Justice
Stewart, has said, "What truly set him apart was
his character ... his generous and gallant spirit, his
selfless courage, his freedom from all guile, his total
decency . . . . He was a great human being of great
worth."
May it please this honorable Court:
In the name of the lawyers of this Nation, and particularly
the Bar of this Court, I respectfully request
that the Resolutions presented to you in memory of the
late Justice John Marshall Harlan be accepted by you,
and that they, together with the chronicle of these proceedings,
be ordered kept for all time in the records of
this Court.
The CHIEF JusTICE said:
Your motion is granted, Mr. Attorney General, and
we thank you for your statement and tributes of the
Supreme Court Bar to our late Brother, John Marshall
Harlan.
In responding, on behalf of the Court, to the very
appropriate tributes to John Harlan, presented by the
XXVI MR. JUSTICE HARLAN
Attorney General and the Solicitor General, I would
like to provide a brief glimpse of him as we saw him
within the Court on a day-to-day basis. His great
powers as an advocate and his superb qualities as a
judge have been eloquently expressed and we, his colleagues,
not only accept but fully endorse what has
been said.
No single Memorial ceremony, of course, can ever
encompass the range of qualities and facets of a man
of the qualities of John Harlan. At best we can touch
on only a few aspects that stand out most clearly. The
tributes to him in the various Resolutions give a variety
of appraisals and they are of special value because they
are expressions of close observers going back over nearly
50 years of his life in the law.
These Resolutions have noted his quiet, but very important
public service. His public service was episodic
in the sense that whenever he was called he dropped his
private concerns and turned all his great talents to the
public task at hand. His performance of duty was unspectacular,
if that word is used in a careful sense, and
I use it to emphasize that John Harlan always concentrated
on the objectives and never dramatized himselfa
trait not always found in great advocates. His selfless
approach that placed public service ahead of private
gain or advantage is shown time and again in his life.
His service in World War II is a good example. At the
peak of his career as an advocate he laid aside all his
opportunities and private interests and devoted the war
years to the high level military intelligence work that
has been described in the Resolutions, and which, for all
its crucial importance was necessarily behind the scenes.
And he did this at an age well beyond the realistic
demands of civilians for active military service.
Low key would be one description that we who worked
with him day in and day out would accept even when
the task he was performing was far from low key. This
MR. JUSTICE HARLAN XXVII
quality was, of course, ideal in a judge from whom all
people expect detachment and objectivity.
The colleagues of his early years saw one period of
his career when his skills were being formed. Others
who knew him at the peak of his career as an advocate
saw the intensity of his concentration on the detailed
facts which he saw as the foundation of all cases, the
bedrock on which legal principles must rest.
John Harlan was essentially a very private person
and a man of the present and the future but occasionally
he would turn to reminiscences about cases he had
tried or which he helped prepare in his earliest days
with Emory Buckner. On the rare occasions he did
this, what emerged was his passion for facts. He pursued
the facts of his cases with the single-minded concentration
of a scientist engaged in research. That same
concern for the facts of a case persisted throughout his
judicial work.
His movements, like his thought processes, were always
deliberate and unhurried. His only haste was that of
the efficient human machine whose orderly habits always
brought him to where he was expected in ample time
to be prompt in the most casual way.
We who were his colleagues will always be able to
picture him sauntering into the Conference Room, one
hand fingering the heavy gold watch chain of his grandfather,
the elder Justice Harlan, the other often holding
a cigarette.
His head and face had a sculptured aspect, the eyes
deep set but very alert even in the years that his sight
was failing. Invariably, his countenance had a quizzical
half-smiling look, attentive and receptive to any
comment of a colleague. He carried himself unselfconsciously
with great dignity but it was the simple
dignity of a man who had long since come to terms
with life and with himself.
XXVIII MR. JUSTICE HARLAN
As an experienced, talented and accomplished advocate
he knew that facts are usually the stuff that makes
or breaks a case, and in Conference or on the Bench he
knew the facts of the cases. All of us can recall his
contribution to the Conference process. He never talked
at great length but always to the point. In his quietly
resonant voice that commanded attention he might open
his discussion saying,
"I would like to back up and link up some facts
that, with all deference, seem to have been treated
more lightly than I would think they deserve."
Then he would perform the skilled advocate's task of
focusing on the facts he thought controlling in the case.
Or he might begin by saying:
"Now that we have the whole case before us it
is clear this is a 'pewee' but it is here and we
should deal with it."
For John Harlan the "pewee" case received the same
in-depth concentration as every other case. Having
mentioned his deep concern with the facts of every case,
I hasten to say that his legal research was of the highest
order and his long experience and fine scholarship
enabled him to carry an enormous number of the Court's
opinions in the forefront of his mind.
In this day of labels for public figures, commentators
tended to label John Harlan, but the only shorthand
that for me comes near the mark is that he was a practitioner
of "judicial restraint." This was not something
that developed when he became a judge on the
Second Circuit or a Justice here. He was by nature a
restrained person who never plunged into unexplored
doctrinal thickets without the most careful advance patrolling
of the area. If he could not reasonably predict
the consequences of a holding, he would likely not join
it. With Justice Holmes, it was his view that if a legal
principle or concept had been accepted for generations
past, the burden to abandon it was a heavy one for him.
MR. JUSTICE HARLAN XXIX
One of his most profound convictions that has already
been alluded to was that all good things are not mandated
by the Constitution and all undesirable things
are not proscribed. He was willing to let some problems
remain for future generations to solve rather than
take great leaps to seductively appealing results. I am
not sure whether he was acquainted with the writings
of Rabbi Louis Finkelstein of the Jewish Theological Seminary
of America, but his philosophy seemed to accept
that great theologian's admonition that we should be
content "to leave a little to the Lord" and to the future.
When the suggestion was made to me in 1954 that
I accept a judicial appointment soon expected to develop,
I concluded that I would find out how John Harlan
as an active practicing lawyer felt about leaving the
practice for the Bench. Our backgrounds had some slight
similarity. I had practiced privately for 21 years and
he for nearly 30 years. I visited him in his chambers
at Foley Square in New York and we talked of practice
and of government work and he finally said he suspected
I would go on the Bench. I told him I was not at all
sure and I asked how he liked the life of a Circuit Judge
after years of active practice. He smiled and said
essentially this:
"It's not nearly as much fun as law practice but
after 20 or 30 years at it I think possibly there is
a greater opportunity to grow on the Bench than
in the daily grind of a big firm practice."
John Harlan exhibited great growth capacity all his life
but no one would deny his growth after he became
a judge.
As the date of this Memorial to John Harlan approached
I recalled the visits to him in his last illness
in which he bore his misfortune as he had always faced
every crisis in his life, with fortitude and grace, without
complaint, still receiving a friend as though he had
asked him to his home or his chambers for tea. It was
XXX MR. JUSTICE HARLAN
in the fall months that the severity of his condition
became clear. Last week as I took a final look at my
garden beds I reflected on this Memorial and looked
back on my association with him. The fallen leaves
reminded me that the end of summer was upon us but
the beds were still brilliant with masses of scarlet, coral
and white petals of the last of the summer flowers. Yet
I knew that the frost would soon be on us a.nd the
flowers would be gone, and of course the frost cameindeed
it came that very night. But just as we can
carry the memory and the image ·of past beauty and
color, so do we carry the memory of the beauty of the
spirit, the personality, the integrity and character of a
friend. John Harlan left a rich legacy of this kind for
his friends and loved ones.
His bequest to the Law is recorded so that we can
consult him at will in the volumes of the U. S. Reports.
But for the warmth of the man as a cherished friend
we need no research. To turn the mind to his name
brings a flood of images and events of the Conferences,
of his resonant voice and patient searching questions
from the Bench, of his extraordinary capacity to announce
the reasoning of a complex case in simple terms,
from memory and without the help of notes or text.
Lawyers will remember his genuine understanding of
problems of the lawyer at the lectern. And we can
recall our luncheon table talk and private discourse in
which his warmth and wit and grace came out uninhibited
by the diffidence that strangers saw. These are the
riches of memory each of his former colleagues will carry
as long as we have the power of memory.
Mr. Attorney General, Mr. Solicitor General, on behalf
of the Court I thank you for your presentations here
today in memory of John Harla.n. We ask you to convey
to the Chairman and the Committee on Resolutions
our appreciation for their efforts. The Resolutions will
be made part of the permanent records of this Court.
PROCEEDINGS IN THE SUPREME COURT OF
THE UNITED STATES IN MEMORY OF
MR. JUSTICE BYRNES*
MONDAY, DECEMBER 18, 1972
Present: MR. CHIEF JUSTICE BURGER, MR. JUSTICE
BRENNAN, MR. JUSTICE STEWART, MR. JUSTICE WHITE,
MR. JUSTICE MARSHALL, MR. JUSTICE BLACKMUN, MR.
JUSTICE POWELL, and MR. JUSTICE REHNQUIST.
THE CHIEF JusTICE said:
The Court is in Special Session this afternoon in
memory of our late Brother, Mr. Justice James Francis
Byrnes.
At this time the Court recognizes the Solicitor General
of the United States.
Mr. Solicitor General Griswold addressed the Court as
follows:
Mr. Chief Justice, and may it please the Court:
Earlier this afternoon a meeting of the Bar was held
to honor the memory of Justice James F. Byrnes. At
that meeting resolutions were adopted which had been
prepared by a Committee on Resolutions. I shall read
the resolutions so adopted to the Court, and the Attor-
*Mr. Justice Byrnes, who retired from active service on the Court
October 3, 1942 (317 U. S. vn, vm), died in Columbia, South Caro•
lina, on April 9, 1972 (405 U.S. vn). Services were held at the State
House and at Trinity Episcopal Church, Columbia, South Carolina, on
April 12, 1972. Interment was in Trinity Episcopal Church Cemetery,
Columbia, South Carolina, on April 12, 1972.
XXXI
XXXII JAMES F. BYRNES
ney General will then move that they be accepted by the
Court and spread on the Court's records.
The resolutions unanimously adopted are as follows:
RESOLUTIONS
On behalf of the Bar of the Supreme Court, we have
met to record our respect for James Francis Byrnes,
Justice of the Supreme Court of the United States from
July 11, 1941, to October 3, 1942. His death on April 9,
1972, closed a career of unique public service. Many
have paid their tributes.t
President Nixon: "No man in American history has
held so many positions of responsibility in all branches
of our Government with such distinction."
Senator Mansfield: "I wish to join in the remarks
just made ... at the passing of an old friend, ...
a man of many accomplishments, ... a man of integrity,
patriotism and deep understanding. Those of us
who had the pleasure and the privilege of knowing him
will miss him, and miss him greatly."
Senator Scott: "James F. Byrnes was an American's
American. His distinguished career spanned five decades,
it was capped off by unselfish service to the United
Nations and subsequently to his fellow men throughout
the world. Historians have placed the great accomplishments
of James F. Byrnes high on their list of
those who have labored to insure a world of peace."
Senator Thurmond: "His service to the Nation and to
the State of South Carolina are hallmarks of great
distinction. The scope of his long public career was
broad, and he was recognized around the world for his
achievements."
tU. S. Congress, 92d Cong., 2d Sess., Memorial Addresses and
Other Tributes in the Congress of the United States on the Life and
Contributions of James F. Byrnes, Washington, D. C., U. S. Government
Printing Office, 1972; Proceedings in the United States
Senate, April 10-13, 19, May 17, 23, 1972; Proceedings in the U.S.
House of Representatives, April 10, 13, 1972.
JAMES F. BYRNES XXXIII
Senator Hollings: "His was the world of action- the
arena of great events. Presidents, prime ministers, and
kings eagerly sought his advice. But his wisdom was
never exclusively reserved for statesmen and monarchs.
It was given as openly and freely to anyone willing
to listen."
Governer West: "The State of South Carolina has
lost its most honored citizen; the Nation has lost a
dedicated servant; and the world has lost a great leader."
General Lucius Clay: "He met with the great and
with the humble, and was at home with both. His
warm compassion, his deep and abiding loyalty, and
his faith in America and its people were ever inspiring.
There are only a few-a very few-in a world of many
people who can by virtue of both character and achievement
be called great. Justice Byrnes was such a man.
But of the few who are recognized as great, there are
an even smaller number who are both great and good.
Justice Byrnes was also a good man."
James F. Byrnes was born in Charleston, South Carolina,
May 2, 1879, in a simpler era, when America
was about to make its great leap into modern times.
The Nation in which he began his life was predominantly
rural and overwhelmingly isolationist. But the Nation
in which he ultimately rose to leadership was complex,
highly industrialized, and intimately involved in the
affairs of the world. Few men have lived to witness as
much history-as much profound transformation-as
did Justice Byrnes.
Those who knew him marveled at the ease with which
he moved through the passing years. There was ever
present some tremendous inner strength which helped
him hold fast to his moorings amidst the changes he
encountered. America's greatest men have seemed almost
invariably to possess that quality. Through it all, they
have retained their fundamental faith in their fellow
man and their deep belief in the destiny and goodness
XXXIV JAMES F. BYRNES
of their native land. James F. Byrnes had that kind
of character~that kind of greatness.
Those traits of character were nourished during his
early years in Charleston. Jimmy Byrnes was the
son of Irish immigrants. His father died before he
was born. His mother faced the upbringing of two
young children-a girl and a boy-having only about
$200. It took hard work and devotion to see the family
through~but these were abundant assets in the Byrnes
household. The young boy soon was peddling seafood
and selling newspapers up and down the streets of
Charleston, while his mother worked long hours as a
dressmaker and took on the additional task of leading
a local Catholic choir.
Jimmy attended St. James School, but the family
resources allowed no additional formal education. High
school was out of the question. By age 14, he was working
for $2 a week as office boy in one of Charleston's
leading law firms-Mordecai, Gadsden, Rutledge, &
Hagood. It was Benjamin Rutledge of that firm who
advised young Byrnes to seek an education by reading
books in the Charleston Library. His following that
advice led to his becoming one of the best informed and
educated men of his generation, and his education never
ended.
In 1900, when 20, he won a competitive examination
for the position of Court- Stenographer for the Second
Judicial Circuit at Aiken, South Carolina, where, in his
spare time, he read law under Judge James Aldrich.
From 1903 until 1907 he was editor and publisher of
The Aiken Journal and Review, a weekly newspaper.
He was admitted to the Bar in 1904 and practiced law
in Aiken from 1904 to 1908. On May 2, 1906, he married
Miss Maude Busch, whom he, as a newcomer to
Aiken, had met in the choir of the Episcopal Church
there. In casting about for an explanation of the subsequent
flowering of his remarkable life, it is easy to
see that "Miss Maude" was at the heart of all he was
JAMES F. BYRNES XXXV
and did. She wru, his inspiration-ever his charming,
devoted, and gracious helpmate.
Things moved quickly for this young couple. Soon
the "public years"-over 50 years of dedicated service
to his State and Nation-would begin. As was stated
in the citation when he much later received the Doctor
of Laws degree from Yale University: "He shattered
the tradition that energy ends at the Mason and Dixon
Line." In 1908 he was elected Solicitor for the Second
Judicial Circuit of South Carolina. It was rumored
that he did not enjoy prosecuting his fell ow man. In
any event, he, a Democrat, won a seat in Congress two
years later and served in that office for 14 years. There
he enjoyed warm and constructive associations with the
political leaders of that time-men like Joe Cannon
and Champ Clark, Speakers of the House-Presidents
Woodrow Wilson, Warren Harding, and Calvin Coolidgeand
Carter Glass, with whom he worked effectively for
the adoption of the Federal Reserve Act, which is still
our central banking law. In the House he was identified
with many important legislative activities and was soon
recognized as a master of the art of persuasion and conciliation.
There, as a member of an Appropriations
Subcommittee, he met and became a fast friend of young
Franklin D. Roosevelt, then Assistant Secretary of the
Navy.
At the end of seven terms in the House, he came
home from Washington in 1924 determined to seek
greater opportunities for public service offered in the
Senate. The race that year marked his only loss of
an election. Former Governor Cole L. Elease defeated
him in a closely contested second primary.
At the invitation of Sam Nichols, with whom he had
served in Congress, and Cecil Wyche, he moved to
Spartanburg and successfully practiced law there for six
years in the firm known as Nichols, Wyche, & Byrnes.
In 1930, he returned to politics, defeated Senator Bl ease,
and thus commenced his service in the Senate on the
XXXVI JAMES F. BYRNES
eve of the first administration of President Franklin D.
Roosevelt. He had supported Roosevelt for nomination
as Vice President in 1920, and he supported him for
President in 1932. President Roosevelt relied upon him
to guide much of the sweeping and complicated New
Deal legislation. It was a tribute to the talent and tact
of Senator Byrnes that as a first-term Senator he could
play such an important role without offending the party
leaders and committee chairmen. He was easily reelected
to the Senate in 1936.
On visits to Japan in 1935 and to Germany in 1937,
Senator Byrnes had been shocked by the mounting evidence
of war preparations he observed. On his return
from Germany he reported to President Roosevelt his
deep concern and his feeling that immediate action was
necessary to awaken the Congress and the people to the
Nation's imperative need of increased appropriations
for national defense. He found that the President fully
shared his concern and welcomed his assistance. But it
was a long, hard, up-hill struggle, and both the President
and Senator Byrnes had to be careful not to get
too far ahead of public opinion and the Congress. Then
came Hitler's annexation of Austria in March 1938 and
the Munich agreements in September. Despite the
appeals of the President and Secretary Hull in the spring
of 1939 for modification of the Neutrality Act, Byrnes
was unable to obtain action by the Congress before
adjournment. At the end of August Hitler invaded
Poland.
The President then informed Senator Byrnes that he
was calling a special session of the Congress for September
21 to take action on the repeal of the Arms
Embargo. He asked Mr. Byrnes to come to Washington
to discuss the situation with him, particularly the steps
he contemplated taking to obtain bipartisan cooperation,
both in the Executive Branch and in the Congress.
Byrnes not only arranged to clear the way for the confirmation
of the appointments of Henry Stimson as
JAMES F. BYRNES XXXVII
Secretary of War and Frank Knox as Secretary of the
Navy, but at the President's request took over the management
of the fight for the repeal of the arms embargo
in the Senate.
In the summer of 1940 the President requested Mr.
Byrnes to represent him on the Platform Committee
at the Democratic National Convention in Chicago.
Byrnes handled the delicate and bitterly contested war
clauses with consummate skill, managing to add the
saving words "except in case of attack" to the pledge
"not to participate in foreign wars." In August after
the fall of France, Byrnes was able to attach for General
Marshall an amendment to a defense appropriation
bill which would permit the promotion of officers of exceptional
ability, like Eisenhower, Patton, Clark, and
Bradley over others with higher seniority. He was also
able to expedite the passage of the highly controversial
Selective Service Act on the eve of the election.
In January 1941, the President called on Senator
Byrnes to assume responsibility for piloting the Lmd-
Lease bill through the Congress. Byrnes was a member
of both the Foreign Relations Committee and the Appropriations
Committee. During the winter and spring
Byrnes gave unstintingly of his time and energy to
secure the passage of the Lend-Lease bill and the initial
appropriation of seven billion dollars to implement its
program.
On June 12, 1941, in the afterglow of their cooperation
in the promotion of the needed legislation, President
Roosevelt named Senator Byrnes to fill a vacancy
on the Supreme Court. The nomination was confirmed
by his fellow Senators the same day. He took office
July 11, 1941, and sat for the first time October 6, 1941.
The transition from the Senate to the quiet chambers
of the Court was not altogether easy. But he attacked
the new assignment with that lively curiosity, sensitivity,
perceptiveness, and practicality which were his
trademarks. At a distance he had been an admirer of
XXXVIII JAMES F. BYRNES
Chief Justice Stone. That admiration promptly flowered
when they came together in a working relationship,
and it was to the Chief Justice that Byrnes turned
most often for counsel during his first weeks on the
Court.
In the short span of a single term of Court, the new
Justice's philosophy hardly had time to take shape, and
its full profile is not easily discerned from the 15 opinions
he wrote. His brief service on the Bench revealed
a dedication to the Constitution as written, a respect
for the place of the judiciary, the Congress, and the
President, in our form of Government, and a true appreciation
of the powers reserved to the States.
His initial opinion was in the important case of
Edwards v. California, 314 U. S. 160 (1941), in which
the Court unanimously held that a California statute
making it a crime to knowingly bring a nonresident
"indigent person" into that State violated the Constitution
of the United States. Byrnes' majority opinion
was that the California statute was unconstitutional
because it erected a barrier to interstate commerce. Jus-
TICE DOUGLAS, in a concurring opinion in which Justices
Black and Murphy joined, and Justice Jackson in a
separate concurring opinion, were of the view that the
invalidation of the California statute should be based
upon the Privileges and Immunities Clause of the Fourteenth
Amendment. The trio of opinions which ultimately
emerged were eyed somewhat quizzically by the
majority spokesman, fresh from long years in the legislative
forum in which earthy compromises were the
law of life.
In his maiden opinion, Justice Byrnes revealed that
he was not an undeviating disciple of stare decisis. In
1837 the Supreme Court had said: "We think it as
competent and as necessary for a state to provide precautionary
measures against the moral pestilence of
paupers, vagabonds, and possibly convicts, as it is to
guard against the physical pestilence which may arise
JAMES F. BYRNES XXXIX
from infectious articles imported, or from a ship, the
crew of which may be laboring under an infectious
disease." City of New York v. Miln, 11 Pet. 102, at
142-143. Although he quoted from the Miln language
and noted the casual repetition of similar language by
the Court over the years, as recently as 1898, Missouri
K & TR. Co. v. Haber, 169 U. S. 613, 629, he observed
that times and attitudes change, and he rejected the
notion that one without employment or funds is a
"moral pestilence."
Following Edwards, Justice Byrnes wrote 14 opinions
for the Court. They included three dealing with the
priorities enjoyed by federal claims against insolvent or
bankrupt debtors, United States v. Emory, 314 U. S. 423
(1941), United States v. Texas, 314 U. S. 480 (1941),
and United States v. New York, 315 U. S. 510 (1942);
two dealing with insurance for members of the Armed
Forces, Halliday v. United States, 315 U. S. 94 (1942),
and United States v. Citizens Loan & Trust Co., 316
U. S. 209 ( 1942); and one dealing with each of the
following subjects: peonage, Taylor v. Georgia, 315
U. S. 25 (1942); an anti-racketeermg statute, United
States v. Local 807, 315 U. S. 521 (1942); a quantitative
restriction on corporate landholding in Puerto Rico,
Puerto Rico v. Rubert Hermanos Co., 315 U. S. 637
(1942); the Miller Act, United States v. Irwin, 316 U.S.
23 ( 1942) ; review of an order of the National Labor
Relations Board, Southern S.S. Co. v. NLRB, 316 U. S.
31 (1942); Indian lands, Sioux Tribe v. United States,
316 U.S. 317 (1942); a coerced confession, Ward v.
Texas, 316 U.S. 547 (1942); an antitrust consent decree,
Chrysler Corp. v. United States, 316 U. S. 556 (1942);
and the Fair Labor Standards Act, Walling v. Belo Corp.,
316 U. S. 624 (1942).
Of these, Taylor v. Georgia, striking down a Georgia
statute binding a workman to his private employment
by the threat of imprisonment, and Ward v. Texas,
reversing a state court criminal conviction based upon
XL JAMES F. BYRNES
a confession obtained by coercion, are indicative of Justice
Byrnes' reaction to oppression on economic or racial
grounds, although the result in each case was clearly
supported by earlier decisions of the Court. Local 807
reflects a strong inclination to search for and to honor
Congressional intention. And Southern S. S. Co., which
involved conduct of seamen considered by the Court to
be mutinous, reflects an abhorrence of such conduct so
sharp as to require holding that the Labor Board had
abused its discretion in ordering reinstatement of the
strikers.
Although he wrote no dissents or concurring opinions,
Justice Byrnes was in the minority in 12 cases, six
times in the company of Justice Black, five in the company
of Justice Frankfurter, and one in the company
of neither.
It is not easy to speculate how Justice Byrnes' service
as a member of the Court would have developed
had he remained there for many of the 30 years of life
which still lay before him. That was not to be.
Sixty-three days after he took his seat on the Court,
Pearl Harbor brought the minds of all to the task of
winning World War IL A greatly harassed President
turned to Justice Byrnes for counsel in the formulation
of military policy and the drafting of needed war legislation.
Byrnes put the President at ease by assuring
him that if he thought that in wartime because of his-
Byrnes'-experience in the ways of the Congress and
of the Government he could be of greater service elsewhere
than on the Court, he hoped the President would
call upon him. Within the week it was arranged that
the Attorney General would confer with Byrnes on all
the emergency war legislation and related executive
orders. Early in January 1942, an omnibus bill known
as the Second War Powers Act was submitted to the
Congress and passed with record speed. Although the
activities of Byrnes outside the Court became known, no
public announcement was made, as both the President
JAMES F. BYRNES XLI
and Byrnes thought for the time being Byrnes could be
more effective working quietly and unobtrusively.
In the summer of 1942 the inflationary situation was
becoming tense. Legislation to establish ceilings on
wages and prices was stalled in the Congress. The
President's Council and others had recommended to the
President that he issue an Executive Order establishing
an Office of Economic Stabilization vested with power
to control wages and prices, without awaiting action by
the Congress. When consulted, Byrnes advised strongly
against that course on the ground that the controls
were too sweeping and affected too many people to be
attempted without congressional approval. The President
made another appeal to the Congress, and a fireside
chat, and the legislation was approved by the Congress
and became effective on October 2, 1942.
The following day Byrnes was summoned to the White
House. The President asked him to take a leave of
absence from the Court and become the Director of
Economic Stabilization. The President also stated that
there were other duties beyond those of the Director of
Economic Stabilization that he would wish him to assume.
Justice Byrnes replied that no one could grant a Justice
of the Supreme Court a leave of absence and that the
Justice alone was responsible for the discharge of his
duties. He further stated that the regulation of wages
and prices involved so many decisions with political
implications that it would not be proper for him to
assume such duties and remain on the Court. He then
inquired about the "other duties." The President explained
that he, himself, would not have time to devote
to the prosecution of the war and the many related
diplomatic problems and have any appreciable time
left to supervise domestic affairs. He wanted Byrnes
to relieve him of the problems on the home front and
the jurisdictional disputes which increased with the creation
of every new agency. In these disputes he wanted
Byrnes to act as "judge" and he would let it be known
XLII JAMES F. BYRNES
that Byrnes' decision was his decision. For all practical
purposes Byrnes would be Assistant President with offices
in the White House. On October 3, 1942, Justice
Byrnes promptly resigned from the Court and accepted
appointment as head of the Office of Economic Stabilization.
His fellow Justices expressed their deep sense of
loss and their awareness that he had been moved by
"a sense of duty to render a needed service of public
importance in a time of great national emergency." He
responded that it was indeed "only a sense of duty
[which] impelled me to resign from the Court." (317
U. S. VII, VIII.)
As Director of Economic Stabilization, Byrnes created
no organization of his own. He had only four or five
personal assistants. He conceived it to be his task to
see that the various agencies involved in the stabilization
efforts-OPA, Agriculture, War Labor Board, RFC,
WPB, and the Treasury- cooperated and worked as a
team. He gained the confidence, goodwill and respect of
all those who looked to him for guidance-those representing
labor as well as those representing management, and
those representing agriculture as well as those representing
industry. But inflation was already out of hand
and the fight to curb the rise of wages and prices without
hampering production was a tough one. From October
1942 to April 1943 the rise in the cost of living
index was held to 4.3 percent. Byrnes was not satisfied
and prepared a stronger, more effective directive known
as the Hold-the-Line order. At Byrnes' suggestion, the
President asked Judge (later Chief Justice) Fred Vinson
to take over as Director of Economic Stabilization in
order that Byrnes could devote his energies to expediting
the mobilization of our resources for the prosecution
of the war. With the aid of Byrnes' Hold-the-Line
order which he courageously administered, Judge Vinson
was able to hold the rise in the cost-of-living index
from April 1943 until his resignation in April 1945 to
3.2 percent.
JAMES F. BYRNES XLIII
Byrnes, on May 27, 1943, had become Director of the
Office of War Mobilization under an order of the President
which authorized him to originate policies and
lay out programs that would coordinate the work of all
war agencies and departments in any way connected
with the production, procurement, transportation, and
distribution of civilian and military supplies. It probably
constituted a greater delegation of authority than
a President had ever previously made. Byrnes became
in a very real sense Assistant President. With few
exceptions, his authority was respected and welcomed.
His first act as War Mobilizer was to call upon all agencies
engaged in the war effort to review and report to
him their procurement programs realistically and objectively.
The President sought his counsel on the most
delicate matters affecting his relations with the highest
officials in the administration, and with congressional
leaders, and left the handling of the troublesome coal
and railroad strikes, in large measure, to Byrnes.
In June 1944, the President suggested to Byrnes that
he wished him to become the permanent chairman of
the forthcoming Democratic National Convention in
Chicago and a candidate for Vice President. Byrnes
was prepared to proceed as the President wished. But
when some opposition in labor circles was voiced to
Byrnes, and it appeared that he could not have the
exclusive support of the President, he withdrew his
candidacy.
After the 1944 election, the President, in January
1945, invited Byrnes to accompany him to the Yalta
Conference where postwar planning was to be considered.
There Byrnes got a first taste of some of the
difficult problems which would confront him later that
year as Secretary of State. When Montgomery crossed
the Rhine in March 1945, everyone knew the end of
the War was near. Mr. Byrnes saw that the great
domestic job ahead was reconversion. His had been the
task of mobilization. At his suggestion, Fred Vinson
XLIV JAMES F. BYRNES
was appointed his successor. In early April Mr. Byrnes
returned to his Spartanburg home for a well earned
rest. That was not to be. President Roosevelt died
April 12.
A few days after President Truman took office, he
advised Byrnes that he wished to appoint him Secretary
of State, but it was agreed that no announcement of the
appointment would be made until the end of the United
Nations Conference at San Francisco. In the meantime
the President appointed him to the Interim Committee
he had created to consider when and how the newly
developed atomic bomb should be used. The Committee's
recommendation for the use of the bomb, in the
opinion of many at the time, saved hundreds of thousands
of lives that would have been lost in the prolongation
of the War. Mr. Byrnes took the oath of office
as Secretary of State on July 3, 1945. One of his first
official acts was to sign the protocol formally attesting
that the Charter of the United Nations had come into
being. He called the day "memorable-for all the peace
loving peoples of all nations," but cautioned that peace
depended on the will of the peoples rather than on
documents.
When Byrnes became Secretary of State, World War II
was coming to a close, but the struggle for peace was
beginning. The United States and the Soviet Unioneach
after its fashion-had sought to suppress their differences
and to cooperate in winning the war. The warweary
people throughout the world looked to them
to cooperate in restoring peace. But with the def eat of
their common enemies, the suppressed ideological differences
of the two great Super-Powers were beginning
to surface and to give rise to fears that the two great
allies in war would become bitter and distrusting rivals
in the making of the peace.
In this distressing situation Byrnes pleaded for patience
and firmness on our part in the pursuit of peacepatience
in not abandoning the pursuit and hope of
JAMES F. BYRNES XLV
world peace, firmness in resisting demands which did
not advance the cause of peace. While eager to reach
agreement where he could find common interest to sustain
agreement, he was particularly firm in avoiding
any agreement or understanding that would delay or
hamper the restoration of conditions of peace and normal
life in areas under our control.
Byrnes was a realist. If in negotiation he could not
secure all that he wished to secure, he would ask himself
whether the cause he pleaded would fare better
with no agreement than with such agreement as he
could obtain. If he concluded that the agreement he
could obtain was better than no agreement, he preferred
a half loaf to no loaf. It was this realism of Secretary
Byrnes which made possible the restoration of conditions
of peace in Western Europe and which laid the
foundation for the present strength of Western Europe.
It was Secretary Byrnes who arranged the reparation
settlement at Potsdam which confined the Soviet claims
for reparations from Germany to reparations from the
Soviet zone, apart from only limited contributions from
the Western zones. Byrnes foresaw that without such
a settlement the Russians would take as war booty or
reparation whatever they wanted from the Soviet zone,
and then in the absence of such settlement would make
inflated claims against the Western zones for additional
reparations which would seriously hamper economic
recovery.
At the meeting of the Council of Foreign Ministers
in Paris on July 11, 1946, Byrnes was able to resolve
an equally, if not more, significant controversy in a
strikingly similar fashion. It had been agreed in principle
at Potsdam that Germany should be treated as
an economic unit and common economic policies should
be applied in all zones. But the Allied Control Council
could not agree on how Germany should be administered
as an economic unit. The Soviet Union was dragging
its feet and France also was procrastinating. In the
XLVI JAMES F. BYRNES
meantime, the economic situation was deteriorating.
Whereupon, in the Council of Foreign Ministers, Byrnes
formally announced:
"Pending agreement among the four powers to
implement the Potsdam agreement requiring the
administration of Germany as an economic unit,
the United States will join with any other occupying
government or governments for the treatment
of our respective zones as an economic unit. The
continuation of the present situation will result in
inflation and economic paralysis. It will result in
increased costs to the occupying powers and unnecessary
suffering to the German people. The
United States is unwilling to share the responsibility
for the continuance of such conditions."
On September 6, 1946, Secretary Byrnes made his memorable
speech at Stuttgart, formally setting forth the
American policy towards Germany which charted the
course that the Western Allies were to follow in restoring
peace, prosperity, security, and freedom within the
allied zones.
The British promptly agreed to merge their zone, and
the French did likewise a few months later. The Soviet
Union held aloof, but could no longer hamper the slowly
developing economic recovery in the West. The merger
of the Western zones, called Trizonia, made possible in
due course the establishment of the democratically responsible
West German Government equipped to play
its part in the economic revival of Western Europe.
To shore up Germany against advancing Communism,
Secretary Byrnes had made it clear at Stuttgart that
America favored economic reconstruction in Germany.
He had declared, "The American people want to return
the Government of Germany to the German people.
The American people want to help the German people
win their way back to an honorable place among the
free and peace-loving people of the world." As General
JAMES F. BYRNES XLVII
Clay said at the funeral of Secretary Byrnes, April 12,
1972, "I think this was his finest hour and the policy
which he announced then is still our basic policy. We
had taken a major step to accepting the leadership of
the free world, later to result in the Marshall Plan,
the North Atlantic Treaty Organization, and the establishment
of the German Government." The German
people still gratefully remember Secretary Byrnes' speech
at Stuttgart. In 1956, they held there a Tenth Anniversary
Celebration, including a great ovation to Secretary
and Mrs. Byrnes who were in attendance as honor
guests. A Twenty-fifth Anniversary Celebration was
held last year. Secretary Byrnes, then 91, was unable
to attend.
In April 1946, Secretary Byrnes had informed President
Truman that medical tests had revealed he had a
heart problem and that the doctors had advised him to
relax. He wished therefore to resign as soon as he had
completed the peace treaties with the satellite enemy
states. He had submitted his resignation effective July 1,
1946, and agreed with the President he would remain
until the treaties were completed. A subsequent test by
a different doctor showed no trace of heart trouble.
But, being in doubt as to which test most truly reflected
his condition, he did not inform the President of the
subsequent test, and did not withdraw his resignation.
When he had completed the treaties, he reminded the
President of his resignation and asked to be released.
The President said he had hoped Byrnes had forgotten
the resignation. Byrnes' signing the treaties on January
20, 1947, was his last official act as Secretary of
State.
After his retirement as Secretary of State on January
21, 1947, he divided his time for the next two years
between his home in Spartanburg and law practice in
the well-known Washington firm of Hogan and Hartson,
which had been founded by his cousin, Frank Hogan.
Soon finding himself relaxed and in good health, the
XLVIII JAMES F. BYRNES
world-renowned statesman, at the urging of many friends,
consented to wind up his extraordinary political career
by serving his beloved South Carolina as Governor from
1951 to 19.55. His term as Governor was one of enlightenment
and pointed the way for continuing progress in
his State. In his inaugural address he had stated: "It
is our duty to provide for the races substantial equality
in school facilities. We should do it because it is right.
For me that is sufficient reason. If any person wants
additional reason, I say it is wise." This set the tone
for his administration. His recommendations to the
1951 General Assembly resulted in the enactment of a
vast school improvement program designed to furnish
equal facilities for all children.
When he retired from public life. January 19, 1955, at
the end of his four-year term as Governor, it was said
that the school facilities for black children in South
Carolina then were superior to those for white children.
Two-thirds of the bond money had been spent to provide
facilities for black children. When the 1954-1955 decisions
of the Court dismantled the dual public school
system, South Carolina accomplished the transition gracefully
and without violence. During his administration,
the State also provided substantial funds for better college
and university education of both races, for the care of the
mentally ill, and for other needed public improvements.
Mr. Byrnes' own education did not reach high school,
but he was a self-taught scholar. His schooling never
ended. In his later life he liked to say, "I am being educated
by degrees." Starting in 1935, he received honorary
doctorate degrees from the following colleges and
universities: College of Charleston, Presbyterian College
of South Carolina, John Marshall College of Jersey City,
University of North Carolina, The Citadel, University of
South Carolina, Columbia University, Furman University,
Wofford College, Washington and Lee University, Yale
University, and University of Pennsylvania.
JAMES F. BYRNES XLIX
Having experienced adversity and hardship during his
youth, Mr. Byrnes had compassion for all who were
similarly situated. In 1948, with his competent and
devoted secretary, Miss Cassie Connor, as Trustee, he
established the James F. Byrnes Scholarship Foundation,
to provide college educations for boys and girls who had
lost their parents early in life. He funded it principally
with the proceeds of his two books: Speaking Frankly
( Harper & Brothers, 1947) and All In One Lifetime
( Harper & Brothers, 1958), and with his retirement
pay, and the proceeds of the sale of his "Isle of Palms"
home. That private Foundation already has provided
college educations for almost 400 "Byrnes Scholars."
Since the deaths of Mr. Byrnes and Miss Connors. the
fund for the Foundation continues to grow and work
under the guidance of executives selected by them, including
now two of the former "Scholars." Many of the
"Scholars" already have made good in life and are, in
turn, making their financial contributions to the Foundation.
Friends of Governor and Mrs. Byrnes are contributing,
and much of his estate has been added to its
usefulness. Approximately $400,000 already has gone
into this magnificent educational enterprise. Mrs. Byrnes
early this year wrote: "The results have given us much
pleasure and pride and, although we have no children of
our own , we now have 380 Scholars who call us Mom
and Pop."
In 1943, he was awarded, for his World War II service
to our Country, the Distinguished Service Medal, he being
one of only 14 civilians who have ever been awarded
that honor.
In 1953, while he was Governor, he was appointed by
President Eisenhower as United States Delegate to the
United Nations General Assembly, where he served with
distinction.
In 1941 , he was elected Life Trustee of Clemson University,
with which he maintained warm associations until
L JAMES F. BYRNES
his death. In 1966, he accepted Clemson's formal request,
by unanimous resolution, to place the vast collection
of personal papers, documents, historical memoranda,
memorabilia, and souvenirs of his remarkable life
in the James F. Byrnes Room of its main Library, for
permanent preservation. A competent custodian is on
duty there to make these treasures accessible to researchers,
historians, and the millions of others who keep him
in revered and grateful memory.
We do
RESOLVE that we, the Bar of the Supreme Court of
the United States, express our profound sorrow at the
death of Justice James Francis Byrnes, and our grateful
appreciation for his long life of public service of the
highest order in the Executive, Legislative, and Judicial
Branches of his State and National Governments, giving
his all to a search for light and truth and justice and the
promotion of love, peace, and freedom for all mankind:
IT IS FURTHER RESOLVED
That the Attorney General be asked to present these
Resolutions to the Court and to ask that they be inscribed
on its permanent records and that copies of these
Resolutions be forwarded to Mrs. Byrnes in Columbia,
South Carolina.
Robert R. Carpenter, Rockhill, S. C.
Benjamin V. Cohen, Washington, D. C.
J. Bratton Davis, Columbia, S. C.
James E. Doyle, Madison, Wis.
Nelson Hartson, Washington, D. C.
E. F. Hollings, Washington, D. C.
W. F. Prioleau, Jr., Columbia, S. C.
David W. Robinson, Columbia, S. C.
T. Frank Watkins, Anderson, S. C.
C. G. Wyche, Greenville, S. C.
E. Smythe Gambrell, Atlanta, Ga., Chairman.
JAMES F. BYRNES LI
THE CHIEF JUSTICE said:
Thank you, Mr. Solicitor General. Mr. Attorney
General.
Mr. Attorney General Kleindienst addressed the Court
as follows:
Mr. Chief Justice, and may it please the Court:
The Bar of this Court met today to honor the memory
of James Francis Byrnes, whose brief tenure as Associate
Justice of this Court was characteristic of a lifetime of
exceptional service to his Nation. A man of action a.nd
of experience, James F. Byrnes is among the very few
Americans who have served in all three branches of
the Government at the highest levels and with great
distinction. His accomplishments, especially during the
war and early postwar years, when as "assistant president"
he directed the crucial efforts on the home frontand
as Secretary of State-laid the foundation of our
postwar foreign policy, will surely endure for the life of
this Nation.
It is not difficult to see why James F. Byrnes had so
important an impact on the history of our country, for
he combined to a rare degree the qualities that make for
leadership and influence: a good mind, good judgment,
character, and energy. These were, of course, rooted m
his childhood. Raised by a widowed mother in Charleston,
South Carolina, young "Jimmy" Byrnes learned by
example the value of perseverance and thrift. The necessities
of life meant the end of formal schooling at
the age of 14, but not the end of self-education. His
discipline in pursuing a course of reading in the Charleston
library prepared him well for the study of law in Judge
Aldrich's chambers while acting as court stenographer in
Aiken.
It was not long after James Byrnes passed the bar,
at the age of 24, that he began his career in public
LIi JAMES F. BYRNES
service-first as prosecuting attorney, then for 14 years
as Congressman and 10 years as Senator. After one term
as Associate Justice of this Court, he served as Director
of Economic Stabilization and later as Director of the
Office of War Mobilization, Secretary of State, and finally
Governor of his beloved State of South Carolina.
Quite early in his remarkable career, James Byrnes had
begun to learn, as he later observed, that "in all relationships
in life success and happiness can be achieved only
by a willingness to make concessions." This lesson served
him particularly well in the Congress where, in his words,
"the art of legislating is the art of intelligent compromise."
Those who knew him as a legislator recognized
him as a master of this art. But compromise for James
Byrnes was never the surrender of principles; it was
rather the temporary retreat from one desired objective
in order to attain another.
As Congressman and Senator, Justice Byrnes commanded
the respect and admiration of his colleagues of
both parties. As he later observed, a legislator can
achieve distinction if he possesses unusual ability or
unusual personality. Justice Byrnes had both, and to
these qualities he added, characteristically, unusual diligence
and unusual civility. He never let political differences
disrupt his personal relations; and he knew well
that today's opponent may be tomorrow's ally.
Once, after a hard-fought battle over the Administrative
Reorganization Act of 1939, in which Senator Byrnes
was successful, the leader of the opposition, Harry Byrd
of Virginia, was among the first to congratulate Byrnes.
"That," he later remarked of Byrd, "is one of the reasons
he is respected and loved." And so it was with Byrnes
himself.
Even before he had served in all three branches of the
Government, James Byrnes had developed a strong sense
of the importance of separation of powers, which he regarded
as the principal safeguard against dictatorship.
It was on this ground that he advised against and resisted
JAMES F. BYRNES LIII
President Roosevelt's ill-fated effort to purge the Senate
in the 1938 primaries.
When in July of 1941 Byrnes was appointed to fill the
seat of retiring Justice James McReynolds, he brought
with him his commitment to separation of powers, which,
had his tenure been a longer one, would surely have been
reflected in his decisions.
His fifteen opinions for the Court could not, of course,
do more than suggest the new Justice's developing judicial
philosophy. He could later say, however, that the "supreme
test of judicial statesmanship," in his view, was
"to preserve the balance between the powers of the Federal
Government and the powers of the State." He
strongly believed that the role of the Court is to interpret
the laws and not to make them, and that it should resolve
ambiguities by consulting the legislative history in an
effort to understand the intent of the legislature.
His colleagues on the Court quickly recognized the
new Justice's special abilities and personal qualities. On
a draft of one opinion, a colleague wrote: "Neat and
complete. I verily believe that you say more by saying
less-and what you say is truly good."
Like Holmes, Justice Byrnes believed a dissenting opinion
should not be written unless a Justice felt strongly
on the subject. He did not find it necessary to write a
dissent during his one term, although his opinion for the
court in Walling v. Bdo Corp., 316 U. S. 624, involving
a difficult question under the Fair Labor Standards Act.
was drafted as a dissent and was issued as the majority
opinion only after it persuaded Justice Jackson to change
his vote.
Later, when the President called upon him in a time
of national emergency, Justice Byrnes saw that he would
have to resign. He has said: "It was not easy to leave
the Court, with its opportunity for service, its prestige
and security-the work I liked and the Associates for
whom I had a genuine affection. But in time of war my
duty was plain." And his responsibilities were awesome.
LIV JAMES F. BYRNES
As Director of the Office of War Mobilization, Justice
Byrnes was given greater authority than any President
had previously delegated, with full responsibility for all
federal efforts connected with the production and distribution
of civilian and military supplies. When Byrnes
resigned from that position several years later, President
Roosevelt said he would reappoint him to the Supreme
Court when the next vacancy occurred. Byrnes, the
political realist, demurred, however, saying that his reappointment
would lead to false and damaging speculation
that there had been a secret understanding between them.
As President Truman's Secretary of State and later as
Governor of South Carolina, James Byrnes completed
one of the most diverse and extraordinary public careers
in our country's history. In January 1955 he left the
Governor's office and public life with an understandable
sense of fulfillment. His own words are an especially
fitting expression of that sentiment:
"Within me was the satisfaction that comes from the
consciousness that through the years I had faithfully
tried to discharge my duty. I knew I had made mistakes,
because I am human. I knew I had made political
enemies because I had taken positions on controversial
issues and fought to sustain those convictions. But there
was compensation in the knowledge that I had made
countless friends whose understanding and sympathy had
enriched my life.
"As I thought of the past, overriding all thoughts of
personal relations was my realization that this country
is truly the land of opportunity.
"Now as I think of the future, my hope is that my
experiences may encourage others to dedicate their talents
and energies to public service, for I believe with Tolstoi
that 'The sole meaning of life is to serve humanity.' "
May it please this Honorable Court: In the name of
the lawyers of this Nation, and particularly of the Bar of
this Court, I respectfully request that the resolution presented
to you in memory of the late Justice James F.
JAMES F. BYRNES LV
Byrnes be accepted by you, and that it, together with
the chronicle of these proceedings, be ordered kept for all
time in the records of this Court.
THE CHIEF JUSTICE said:
Your motion is granted, Mr. Attorney General, and we
thank you for your statement and tributes of the Supreme
Court Bar to our late Brother, James Francis
Byrnes.
At the time of this Memorial today, only Justice Douglas
of the present Court served on the Court when
Justice Byrnes was here, and Justice Douglas has asked
me to express his very deep regret that a commitment
made before the date was fixed for this memorial service
prevents his being here today. In visiting with Justice
Douglas about Justice Byrnes, I learned that he and
Byrnes had been friends from the time Justice Douglas
first came to Washington as a member of the Securities
and Exchange Commission more than 35 years ago.
As others have done, Justice Douglas recalled particularly
the warm human qualities that have been spoken
of so eloquently in the Memorial today. He said few
men he had known could concentrate on important governmental
problems of the highest order for long hours
and yet, when the work was finished at the end of the
day, turn to the rich pleasures of congenial friends at
dinner. He recalled that a favorite pastime of Justice
Byrnes was to participate in singing folk songs and
ballads of the South and of America in his rich tenor
v01ce.
When Justice Byrnes came to this Court it was after
an enormously active career as a leader in public life,
and he found the change to the isolated life of a Justice
of this Court not easy to make. But nothing in his opinions
while he was on the Court would give any indication
of any difficulties in the transition.
LVI JAMES F. BYRNES
Justice Byrnes had a remarkable capacity to adjust
to new responsibilities and new situations. When Taylor
v. Georg-ia was unanimously decided in 1942, Chief Justice
Stone assigned the writing of the opinion to Justice
Byrnes for the very sound reason that an opinon by a
leading figure from the South gave added force to a holding
that the Georgia statute violated federal prohibitions
against peonage. From yet another point of view, the
opinion in that case reflects the broad national outlook
he was prepared to take once he came to this Court and
was free to lay aside sectional or regional interests and
attitudes.
I had the honor to attend the services for Justice Byrnes
in Columbia and heard the eloquent eulogy to him delivered
by General Lucius Clay, who in 1944 became
Deputy Director, under Justice Byrnes, of the Office of
War Mobilization. Later they were intimately associated
in Europe following our occupation of Germany. General
Clay described very graphically the breadth of vision and
the great skill of Justice Byrnes in the representation of
American interests in Europe while he was Secretary of
State. This, of course, was one of the crucial periods in
the development of American foreign policy, and his
handling of these problems took into account the natural
tendency of every country to turn inward after a war.
Justice Byrnes, as Secretary of State and as a leading
political figure in the country, was determined that the
:United States should not turn its back on the world after
the enormous sacrifices that had brought victory. His
remarkable talents as a conciliator and a negotiator that
had developed through his many years in legislative work
enabled him to deal with some of the most difficult and
trying problems ever to confront an American statesman
or diplomat. His exposition of American policy relating
to postwar Europe and the pledge on behalf of the United
States that we ,:vould support Western civilization and
JAMES F. BYRNES LVII
the restoration of Europe stand out as one of the high
points in his remarkable career.
General Clay, who shared some of the most trying
hours in Europe in the work of Justice Byrnes as Secretary
of State, recalls the same warm human qualities that
so many others remember. General Clay told me that
these qualities helped to sustain the Justice while he was
representing the interests of our country in those difficult
times.
In Europe, as in the days when Justice Byrnes sat on
this Court, he would renew and refresh himself, after
long hours of negotiation and intense dealing with the
representatives of Russia, by laying work aside and
spending an evening with friends singing the songs that
are a common heritage for all Americans. The historians
and biographers will chronicle the unique career of Justice
Byrnes in the highest levels of all three branches of
Government, but his friends will remember him for his
humanity and his love of life and people.
Mr. Attorney General, Mr. Solicitor General, on behalf
of the Court I thank you for your presentations here today
in memory of James Byrnes. We ask you to convey
to the Chairman and the Committee on Resolutions our
appreciation for their efforts. The resolutions will be
made part of the permanent records of this Court.

TABLE OF CASES REPORTED
NOTE: All undesignated references herein to the United States
Code are to the 1970 edition.
Cases reported before page 801 are those decided with opinions
of the Court or decisions per curiam. Cases reported on page 801
et seq. are those in which orders were entered. Opinions reported
on page 1201 et seq. are those written in chambers by individual
Justices.
Page
Abbamonte v. United States.............................. 880
Abele; Markle v .............................. . .. 908, 1021, 1073
Abell Co.; Cunningham v. . . . . . . . . . . . . . . . .. . . . . .. . . . . .. . . 865
Aberdeen & Rockfish R. Co. v. SCRAP ................ 1073, 1207
Abrams, In re. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 4, 1101
Abshire v. United States.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 880
Ace Doran Hauling Co. v. Interstate Com. Comm'n......... 1070
Ace Doran Hauling Co.; United States v ................ 904, 1050
Achtenberg v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
Acree; Board of Education of Richmond County v. . . . . . . . . . 1006
Acree; Drummond v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006, 1228
Acting Comm'r of Patents v. Benson ... . ............. 63,817, 945
Adam v. Illinois . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 948
Adams v. Evansville-Vanderburgh School Corp............. 1060
Adams v. Maylin........................................ 1030
Adams; Miami Police Benevolent Assn. v. . . . . . . . . . . . . . . . . . 843
Adams v. Wainwright....... . ........................... 855
Addison Board of Education v. James...................... 1042
Adkins v. Kelly's Creek R. Co............................ 926
Administrator of Veterans Affairs; Sibonga v . ........... 952, 1068
Aerojet-General Corp.; Askew v.......................... 892
Aero Mayflower Transit Co. v. United States ....... . .... 905, 1049
Aetna Casualty Co.; Baldwin-Lima-Hamilton Corp. v.... . 1109
AFL--CIO Negotiating Committee; Labor Board v. . . . . . . . . . 1059
AFL--CIO Negotiating Committee; Phelps Dodge Corp. v.... 1059
Agnew v. Damner......... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1128
Agnew; Negron v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901
Agua Caliente Band of Mission Indians v. Riverside County.. 901
LIX
LX TABLE OF CASES REPORTED
Page
Aikin v. United States................................... 981
Air California; Larsen v ............................... 895, 1051
Akin v. United States.................................... 981
Akron v. Middlefield . . . . . . . . . . . . . . . . . . . .. . . . . . .. . . . . .. .. 950
Alabama v. Brinks............. . . . . . . . . . . . . . . . . . . . . . . . . . 1130
Alabama; Buckelew v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1060
Alabama; Daly v. . . . . . . .. . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . 87 4
Alabama; Dotson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1117
Alabama; Hadley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 937
Alabama; King v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 986
Alabama; Luther v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 877
Alabama; Newbern v ................................. 813, 1050
Alabama; Payne v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079
Alabama v. Rennow. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 842
Alabama; Rennow v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 842
Alabama v. United States................................ 1023
Alabama; Wilbanks v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1116
Alabama By-Products Co.; Guthrie v..................... 820
Alabama ex rel. Moore; LeFlore v. . . . . . . . . . . . . . . . . . . . . . . . 1007
Alabama Secretary of State v. Sims...................... 942
Alameda County; Moor v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 841
Albert v. South Carolina................................. 966
Albert v. Wyoming. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079
Albidrez v. United States..... . . . . . . . . . . . . . . . . . . . . . . . . . . . 862
Albina Engine & Machine Works; Arvidson v. . . . . . . . . . . . . 983
Alers v. Superior Court of Puerto Rico................... 899
Alexander v. Henderson. . . . . . . .. . . . . . . . . . . .. . .. . . . . . . . . . . 1032
Alexander v. United States ............................ 844, 1024
Alexander v. Virginia... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 911
Alexander County State's Attorney v. Littleton. . . . . . . . . . . . . 1053
Alfar Dairy v. Palm Beach Board of Public Instruction...... 1048
Alford; California v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109
Alga, Inc. v. Crosland. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 950
Al-Karagholi v. Immigration and Naturalization Service.... 1086
Allard v. United States ................................ 861, 1050
Alldredge; Harbolt v..................................... 1025
Alldredge; Long v . • . . . . • . . . . . . • . . • . • . . . . . . • . . • . . . • . . . . . . 882
Alldredge; Strollo v. . . . . . . . . . . . . . . . . . . . .. . . . . .. . . . . . . . . . . 1046
Alldredge; Waddell v . . .. . . . . .. . . .. . . . . . . . . . . .. . .. . . . . . . . 1045
Allen; Gifford v........................................ 876
Allen; Howard v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 908
Allen v. Thomas........................................ 1114
Allen v. United States................................... 869
TABLE OF CASES REPORTED LXI
Page
Allers v. United States.................................. 854
Allgood v. Brewer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 892
Allison v. United States.................................. 1111
Allman v. Manns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1053
Almeida-Sanchez v. United States ...................... 822, 1035
Almond v. Slayton. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
Almota Farmers Elevator & Warehouse v. United States.... 470
Alogdelis v. Brooklyn College of City University of N. Y.. . 981
Alston v. United States.................................. 871
Alvarez v. United States................................. 1112
Alvarez-Franco v. United States.......................... 980
Amerada Hess Corp.; Nash v............................ 900
American Airlines v. Locaynia. .. . . . . .. .. .. . . . . . . .. . . . .. . 982
American Broadcasting Cos. v. Democratic Nat. Com. . . . . . 820
American Civil Liberties Union v. Laird. . . . . . . . . . . . . . . . . . . 1116
American Federation of Teachers v. Byrd................. 848
American Mannex Corp. v. Rozands. . . . . . . . . . . . . . . . . . . . . . 1040
American Metal Climax, Inc.; Kohn v................... 874
American Oil Co. v. Philadelphia. . . . . . . . . . . . . . . . . . . . . . . . . 893
American Party v. Askew ............................. 945, 1070
American Party v. Bullock............................... 803
American Party v. New York ......................... 909, 1021
American Stock Exchange; Intercontinental Industries v. . . . 842
American Trial Lawyers v. New Jersey Supreme Court..... 467
American Trucking Assns. v. Gold Kist, Inc................ 808
American Waterways Operators; Askew v ............... 945,976
American Yearbook Co. v. Askew........................ 904
Amis; Thompson v.... . .. ... ........................... 847
Ammons v. United States................................ 988
Amoco Production Co. v. Waechter..................... . . 903
Amos v. McCarthy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 853
Amos v. Sims........................................... 942
Anaheim; Stengel v. . . . . . . .. .. .. . . . . . . . . . . . . .. .. . . . . . . . . 1129
Anders v. United States............... . .................. 1064
Andersen v. Regents of the University of California....... 1006
Anderson v. California................................... 949
Anderson; Dobbs v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 916
Anderson; Laird v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
Anderson v. Lecon Properties, Inc........................ 879
Anderson v. Louisiana.. . ................ .. . . ............ 1030
Anderson v. Municipal Court, San Diego Jud. District..... 812
Anderson v. Parker, Coulter, Daley & White.............. 880
Anderson v. United States............................... 915
LXII TABLE OF CASES REPORTED
Page
Andreas v. United States................................ 848
Andrews; Chemical Carriers, Inc. v....................... 874
Andrews v. North Carolina.............................. 1079
Annoreno v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 852
Ansley v. Georgia. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 899
Archer v. Smith. .. . . . . . . . . .. .. . . . . . . . . . . . . . .. . . . . .. . . . . . 808
Archer v. United States.................................. 856
Ard v. United States.................................... 867
Arizona; Bonelli Cattle Co. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Arizona; Foggy v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 899
Arizona; Ford v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1128
Arizona; Gause v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 815
Arizona; Guthrie v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 878
Arizona; Taylor v. .. . . . . . . . . . . . . . . .. .. .. . . . . . . . . . . . . .. . 1130
Arizona; Wilcynski v . .. . . . . . . . .. . . . . . .. . . .. . . . . . . . .. . . . . 950
Arizona Attorney General; Westermann v................. 1236
Arizona Tax Comm'n; McClanahan v..................... 820
Arkansas; Evans v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 913
Arkansas Louisiana Finance Corp.; Rosenthal v. . . . . . . . . . . . 1037
Arkwright v. Georgia.................................... 897
Arlington Coalition on Transportation; Fugate v. . . . . . . . . . . 1000
Armel; Mader v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Arnett; Mattz v ...................... . .............. 819, 1124
Arnheim & Neely, Inc.; Hodgson v ................... 840, 1102
Arnold v. Oliver........................................ 1071
Aronow v. California.................................... 848
Arrington v. Maryland................................... 901
Arvidson v. Albina Engine & Machine Works............. 983
Arvidson v. Dillingham Corp...... . .................. . ... 983
Arvin v. Slayton. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079
A. S. Abell Co.; Cunningham v........................... 865
Ashland Discount Co.; Enyart v. . . . . . . . . . . . . . . . . . . . . . . . . . 880
Askew v. Aerojet-General Corp. . . . . . . . . . . . . . . . . . . . . . . . . . . 892
Askew; American Party v ............................ 945, 1070
Askew v. American Waterways Operators ................ 945,976
Askew; American Yearbook Co. v . . . . . . . . . . . . . . . . . . . . . . . . . 904
Aspinwall; Katz v............................. . . . .. . ... 1000
Associated Enterprises v. Toltec Watershed Imp. District... 1103
Associate Fundings; Phipps v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1064
Association. For labor union, see name of trade.
Association of the Bar of New York City ; Javits v......... 980
Atchison, T. & S. F. R. Co. v. Wichita Bd. of Trade ..... 801, 1005
Atkin v. United States. .......................... .. ... . .. 856
TABLE OF CASES REPORTED LXIII
Page
Atkinson v. North Carolina............................... 881
Atkinson v. United States................................ 856
Atlantic-Richfield Co. v. Cherry.......................... 850
Atlantic Seaboard Corp.; Bosley v. . . . . . . . . . . . . . . . . . . . . . . . 1125
A-T-0, Inc. v. Sperry Rand Corp......................... 892
A-T-0, Inc.; Sperry Rand Corp. v....................... 892
Attorney General; Briscoe v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 808
Attorney General; Corey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
Attorney General; Fiocconi v. .. . . . . . . . . . . .. . . . . . . . . .. .. . 1059
Attorney General; Hanly v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 990
Attorney General; Irish Northern Aid Committee v ...... 823, 1080
Attorney General; Powers v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 967
Attorney General of Arizona; Westermann v............... 1236
Attorney General of California; Wimberley v ........... 882, 1019
Attorney General of Florida; Fuentes v. . . . . . . . . . . . . . . . . . . . 902
Attorney General of Georgia; Doe v. . . . . . . . . . . . . . . . . . . . . 817, 909
Attorney General of New York v. Weiss................... 876
Atwell v. Hardy........................................ 1040
Auerbach v. Mandel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 808
Aunt Mid, Inc. v. Fjell-Oranje Lines....................... 877
Ausby v. New York..................................... 1115
Austin v. Meyer......................................... 1123
Austin v. United States.................................. 1048
Autoworkers of Ohio v. Insurance Rating Board............ 917
Avco Corp.; Corey v.................................... 1116
Avco-Lycoming Division; Corey v. . . . . . . . . . . . . . . . . . . . . . . . 1116
Aveni v. Richman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 877
A very; Collins v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 844
Avis; Karlin v. . . . . . . . . . .. . .. . . . . . . . .. . . . . . . . . . . . . . .. . . . 849
Ayala v. United States................................... 1127
Azzone v. United States.................................. 990
Baca v. Harris.......................................... 977
Bailes v. Southern Farm Bureau Casualty Insurance Co.... 872
Bailey; Bryant v....................................... 1115
Bailey; Hurd v............ . ............................ 1045
Bailey v. North Carolina................................ 948
Bailey v. Todd. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1113
Bailey v. United States.................................. 864
Baker v. Eisenstadt..................................... 846
Baker; Eisenstadt v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 846
Baker v. Gaffney. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 855
Baker; Iannotti v .............................. , . . . . . . . . 890
Baker v. Nelson........................................ 810
LXIV TABLE OF CASES REPORTED
Page
Baker v. New York..................................... 849
Baker; New York, N. H. & H. R. Co. Bondholders Com. v.. 890
Baker; Smith v ................................. 890, 1012, 1019
Baldassaro v. Ohio. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1042
Baldivid v. United States................................ 1047
Baldwin-Lima-Hamilton Corp. v. Aetna Casualty Co....... 1109
Ballantyne v. Central R. of New Jersey. . . . . . . . . . . . . . . . . . . 879
Baltimore Mayor v. Silver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 810
Banco Nacional de Cuba; First National City Bank v...... 897
Bank Comm'r of New Hampshire; N. H. Bankers Assn. v.. 1001
Bank of America v. United States ................. 850,949, 1050
Bank of America Trust 54212; Chais-Shulman v. . . . . . . . 864, 1029
Banks v. Slayton........................................ 1026
Banks v. United States.................................. 1062
Barber v. United States................................. 869
Barnes v. United States.................................. 1037
Barrett v. Kunzig....................................... 914
Barrett v. Shapiro .............................. 819, 1072, 1103
Barron v. United States............................... . . 988
Bartholomey v. Maryland. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901
Bartley v. Kentucky. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1062
Barton v. Oregon........... . . . . . . . . . . . . . . . . . . . . . . . . . . . . 852
Baskerville v. Henderson................................. 1110
Baskin v. Miami Beach.................................. 1115
Bastion v. Louisiana..................................... 888
Basyap, Inc. v. District of Columbia RLA ............. 1008, 1119
Bata v. Bata............................................ 1108
Batista v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 862
Battin; Colgrove v ...... .•........................... 841, 1055
Battisti; Chandler v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 903
Batts v. California...................................... 868
Bauguess v. United States... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1127
Baxter v. Railway Express Agency. . . . . . . . . . . . . . . . . . . . . . . 847
Beane v. Richardson.................................... 859
Bean & Son v. Labor Board. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 849
Bearden v. Metropolitan Dade County. . . . . . . . . . . . . . . . . . . . 1052
Beauchamp v. United States............................. 1076
Beck v. Connecticut General Life Insurance Co ...... 845, 1034, 1093
Becker v. United States................................. 1109
Beech v. Melancon...................................... 1114
Beeman v. United States................................. 1048
Begley; Pratt v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 943
Behning v. Illinois .................................. , . . . 858
TABLE OF CASES REPORTED LXV
Page
Bekeny v. Wandschneider ............................ . 973, 1079
Belix v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 985
Bell v. United States... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 991
Bellingham Stevedoring Co. v. Dampskibsaktieselskabet. . . . 1024
Belliston v. Texaco Inc.................................. 1001
Bello v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 846
Benevento v. United States.......................... . ... 1038
Beng-Joc v. United States................................ 951
Bennett v. District Director of Internal Revenue........... 1128
Bennett v. Rundle....................................... 916
Bennett v. United States ............. . ................ 951, 1010
Bensinger v. Doss. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
Benson; Gottschalk v ............... . .............. 63,817,945
Benson v. Newman .............................. ·........ 1039
Benson; Texas Eastern Transmission Corp. v .......... 1003, 1119
Benter v. United States...................... . ........... 842
Bentex Pharmaceuticals; Richardson v.................. .. 1105
Berbling v. Littleton. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1053
Berg, In re ......................... . ............... 1004, 1238
~ergenthal v. Cady..................................... 1109
Berger v. Columbia Broadcasting System...... . ....... . ... 848
Berger v. United States.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 892
Berndt v. Papilsky.................. . ....... . ........... 1077
Bernstein v. Nationwide Mutual Insurance Co.............. 812
Bernstein v. United States........... . . . . . . . . . . . . . . . . . . . . 1114
Berry v. North Carolina. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Berryhill; Gibson v. . . . . . . .. . . . . . . . . . . . . . . .. . .. . . . . . . . .. . 910
Berryhill v. United States............ . ................... 1046
Bertram Yacht Sales v. Moron.... . . . . . . . . . . . . . . . . . . . . . . . . 851
Bethea v. United States ............................... 802,882
Bethlehem Mines Corp. v. Mine Workers.............. . ... 844
Beto; Bueno v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 884
Beto; Davis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 864
Beto; Enriquez v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . 853
Beto; Huffman v........................... . ....... . ... 897
Beto ; Jackson v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . . 898
Beto; Sellars v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 898, 968
Beto; Thomas v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 853
Beto; Varnell v. . . . .. . . . . . . . .. . .. . . . . . . . . . .. . .. . . .. .. . . . 870
Beto; Wright v. . . . . . . .. . . . . . . . .. . . . . . . . .. . .. . . . . .. . . . . . 897
Bey v. U. S. Court of Appeals........ . ....... . ........... 823
B. Forman Co. v. Commissioner.......................... 899
Bialac; Harsh Building Co. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1060
LXVI TABLE OF CASES REPORTED
Page
Bible v. Chevron Oil Co . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 984
Biggers; Neil v......................................... 188
Birch v. La Vallee....................................... 874
Birch v. United States................................... 989
Birdwell v. Washington.................................. 973
Birmingham; McKinney v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 895
Birnbaum v. New Jersey................................ 1110
Biscuitti v. Florida...................................... 1038
Bishop v. Coral Drilling, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Bishop v. United States ................................ 878,951
Bishop; United States v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 841
Bisno v. Martin. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 990
Bitonti; Tucker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 851
Bittner v. Nebraska... ...... ... ......... ..... ... . ....... 875
Black; Hinojos v........................................ 1126
Black v. United States .............................. 1027, 1123
Blackledge; Wetzel v . . . . . . . .. . .. .. . . . . .. . . .. .. . . . . . . . . .. 989
Blackmon; Dasher v.................................... 1107
Blackwood v. United States.............................. 863
Blake v. Coiner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 912
Bland v. United States................................... 843
Blank v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 887
Blankenship v. Meacham. .. .. .. . . .. . . . . . . . . .. . . . . .. .. . .. 1073
Blankner v. Chicago. . . . . . .. . . . . . . . .. . .. . . . . .. . .. . . . .. . . . 899
Blasecki v. Durham. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 912
Blauner v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 900
Blaylock; Fitzharris v. .. .. .. . . .. . . . . . . . . . .. . . . . . . . .. . . . . 948
Blonder-Tongue Laboratories; Univ. of Ill. Foundation v.... 1061
Bloom v. Florida........................................ 1038
Boag v. Craven.......................................... 1085
Board of Bar Examiners of New Mexico; Rose v. . . . . . . . . . . . 1020
Board of Comm'rs of Montezuma County; Mesa Verde Co. v. 810
Board of Comm'rs of Oak Brook Park; Thompson v....... 850
Board of County Comm'rs (Pierce County) ; Rao v. . . . . . . . . 1017
Board of Education of Addison v. James.. . ............ . ... 1042
Board of Education of Bessemer v. Brown. . . . . . . . . . . . . . . . . 981
Board of Education of Memphis Schools v. Northcross...... 909
Board of Education of Oklahoma City Schools v. Dowell.... 1041
Board of Education of Peoria; Linwood v.................. 1027
Board of Education of School District No. 1 ; Smith v. . . . . . 823
Board of Education, Prince George's County; Pejokovich v.. 1026
Board of Elections of New York City; Fidell v............ 972
Board of Examiners, Bd. of Education of N. Y.; Flynn v.... 844
TABLE OF CASES REPORTED LXVII
Page
Board of Junior College District No. 515; Borrowdale v.... 852
Board of Law Examiners of Tennessee; Miller v. . . . . . . . . . . 1126
Board of Police Comm'rs of L. A.; Sunset Amusement v. . . . 1121
Board of Regents; William E. Goetz & Sons v. . . . . . . . . . . . . 1121
Board of Standards and Appeals; Third Brevoort Corp. v. . . . 1030
Board of Trustees, Carson-Tahoe Hospital; Moore v....... 879
Board of Trustees for Utilities of Indianapolis; Cantwell v. . 984
Boat Associates, Inc. v. Western Geophysical Co............ 1040
Boatwright v. Hendricks.................................. 1012
Bodisco v. Nixon........................................ 1121
Boeing Co. v. Labor Board............................... 1075
Boeing Co.; Labor Board v............................... 1074
Bohannon; N ewe! v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 823, 1002
Bohlinger; Jackson v.................................... 1043
Bolton v. California...... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Bolton; Doe v. . . . .. . . . . . . . . . .. . . . . . . . . . . . . . . .. . . . . . . . 817, 909
Bolton; Texas Board of Barber Examiners v. . . . . . . . . . . . . . 807
Bombacino v. Illinois.................................... 912
Bondurant; Rose v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Bonelli Cattle Co. v. Arizona. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Bonkowski v. Commissioner.............................. 874
Boone v. California..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 913
Booster Lodge No. 405 v. Labor Board.. .. ................. 1074
Borelli v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1127
Borkenhagen v. United States............................. 1021
Bornemeier; Morgan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075
Bornemeier; Williams v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075
Borough. See name of borough.
Borrowdale v. Board of Junior College District No. 515.... 852
Bosley v. Atlantic Seaboard Corp......................... 1125
Bosley v. Grand Lodge of Free Masons of Maryland. . . . . . . . 844
Boston Mayor; Krikmanis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 900
Boston Safe Deposit & Trust Co.; Fleming v . . . . . . . . . . . . . . 813
Bourne, Inc.; Picture Music, Inc. v. . . . . . . . . . . . . . . . . . . . . . . 997
Bowers v. United States................................. 868
Bowling v. California................................... 912
Boyd v. United States ............... . ................ 867, 1127
Boyer Bros. v. Labor Board.............................. 878
Brach v. United States................................... 1059
Braden v. Capps........................................ 1055
Braden v. 30th Judicial Circuit Court of Kentucky........ 822
Bradford Township v. Illinois State Toll Highway Authority. 1047
Bradley v. Cardwell..................................... 861
LXVIIl TABLE OF CASES REPORTED
Bradley; Milliken v . ................................... .
Bradley; N osser v . .................................... .
Bradley v. State Board of Education of Virginia .......... .
Bradley v. Supreme Court of Indiana .................... .
Bradley v. United States ................................ .
Bradley v. Wingo ...................................... .
Bradshaw v. Thompson ................................ .
Brainin v. United States ................................. .
Branch v. Texas ....................................... .
Brantley; Dudley v . ................................... .
Brantley; Nudo v ...................................... .
Bratrud v. Dunning .................................... .
Braun v. Kansas ....................................... .
Bredy v. United States ................................. .
Brewer; Allgood v . .................................... .
Brewer v. United States ................................ .
Brezina Construction Co. v. United States ................ .
Bridge v. New Jersey ................................... .
Bridgeforth v. Illinois .................................. .
Bridge & Iron Workers v. Labor Board .................. .
Brierley; Fletcher v . .................................... .
Brierley; Hester v . .................................... .
Brierley; Phelan v . .................................... .
Brierley; Ray v . ...................................... .
Briggs v. United States ................................. .
Bright v. New Jersey ................................... .
Brinkerhoff; Northern Acceptance Trust 1065 v . ......... .
Brinks; Alabama v . .................................... .
Briola v. United States ................................. .
Briscoe v. Kleindienst .................................. .
Broadrick v. Oklahoma .................................. .
Broadway v. Texas ..................................... .
Bronston v. United States .............................. ..
Brooklyn College of City University of N. Y.; Alogdelis v ..
Brooks v. Florida ....................................... .
Brooks v. Georgia ..................................... .
Page
844
848
1124
1105
883
901
878
1006
902
978
1043
879
991
858
892
880
1125
803
811
1108
1044
1112
899
861
986
1114
904
1130
1108
808
1058
1012
352
981
1069
1129
Brooks v. Wainwright.................................... 1069
Brotherhood. For labor union, see name of trade.
Brouner, In re ....................................... 974, 1101
Broussard v. Henderson................................. 1128
Brown; Board of Education of Bessemer v. . . . . . . . . . . . . . . . 981
Brown v. Chote ...................................... 911, 1035
Brown; Gaston County Dyeing Machine Co. v. . . . . . . . . . . . . 982
TABLE OF CASES REPORTED LXIX
Page
Brown; Gaunt v............ . . . . . . . . . . . . . . . . . . . . . . . . . . . . 809
Brown; Kellems v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1099
Brown v. North Carolina................................ 870
Brown; O'Brien v ....................................... 1,816
Brown v. Scott ....................................... 846, 1049
Brown v. United States ......... 843,864,886, 988, 1061, 1112, 1119
Brown v. Wisconsin State Dept. of Public Welfare.......... 862
Brown v. Woolfolk...................................... 885
Brown v. Wymard. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126
Browne v. Commissioner................................. 867
Brownstein v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1028
Brubacher; Essling v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 950
Bruce v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 867
Brudney v. United States................................ 916
Bruno; Kenosha v...................................... 1105
Brunswick Corp.; Danning v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126
Bryant v. Bailey. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1115
Bryant v. North Carolina................................ 995
Bryant v. Pickett. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1062
Bryant v. Texas........................................ 1126
Bryant v. United States ............................... 918, 1112
Brydges v. Committee for Public Ed. & Religious Liberty... 977
Bublick v. United States ............ . ................. 1055, 1076
Buchanan v. Texas .................................... 814, 1029
Buchowiecki-Kortkiewicz v. Immigration and Nat. Service... 858
Buckelew v. Alabama. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1060
Buckles v. Wyoming..................................... 1026
Budzanoski v. Sabolsky. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 853
Budzanoski v. United States.............................. 949
Bueno v. Beto. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 884
Buffalo Cab Co. v. Labor Board.......................... 949
Bullard v. United States... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 916
Buller; Comeaux v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 983
Bullock; American Party v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 803
Bullock v. Regester. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 840
Bullock v. Weiser....... . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . 947
Bully v. Henderson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 979
Bunch v. Cincinnati..................................... 814
Burbank v. Lockheed Air Terminal. .............. 840, 1073, 1104
Burdette v. Shore. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 866
Bureau of Narcotics & Dangerous Drugs; Kennedy v. . . . . . 1115
Burkheart v. Gomes..................................... 1127
Burkley v. Slayton...................................... 952
LXX TABLE OF CASES REPORTED
Page
Burlington Northern, Inc.; Interstate Com. Comm'n v...... 891
Burnett; Hood v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 899
Burney; Indiana Employment Security Div. v ....... 540,821,946
Burns International Security Services v. Labor Board....... 818
Burns International Security Services; Labor Board v. . . . . . . 818
Burrell; Wilwording v................................... 978
Bursten v. United States................................. 843
Busch v. Cinema Classics................................ 807
Business Execs. for Vietnam Peace; Fed. Com. Comm'n v.. 820
Business Execs. for Vietnam Peace; Post-Newsweek Sta. v. . 820
Bustillo v. United States.................................. 1025
Butcher v. Gross Ile..................................... 814
Butler; Nelson v ..................................... 869, 1019
Buttes Gas & Oil Co.; Occidental Petroleum Corp. v. . . . . . . 950
Butz v. Glover Livestock Comm'n Co. . . . . . . . . . . . . . . . . . . . . 947
Butz; Kresse v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 933
Butz; Rasmussen v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 933
Butz; Sari val Guernsey Farms v. . . . . . . . . . . . . . . . . . . . . . . . . 933
Byrd; Cook County College Teachers Union v. . . . . . . . . . . . 848
Byrd v. D. C. Alcoholic Beverage Control Board............ 1075
Byrd; Johnston v . ................................... 847, 1051
Byrd v. Lykes Bros. Steamship Co........................ 890
Byrn v. New York City Health & Hospitals Corp......... 821
Byrne; Russo v ..................................... 1013, 1219
Byrum; United States v................................. 898
Cady; Bergenthal v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109
Cady v. Dombrowski. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1059
Cagle v. Harris. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 869
Caldrone v. Gaffney. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 855, 1050
Caldwell; Davis v....................................... 1006
Caldwell v. Mathis...................................... 989
Caldwell v. Thornton..................................... 1027
Calhoun; Cook v....................................... 974
California v. Alford. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109
California; Anderson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 949
California; Aronow v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 848
California; Batts v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 868
California; Bolton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
California; Boone v..................................... 913
California; Bowling v................................... 912
California; Castaneda v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126
California; DeFarlo v................................... 881
California; Dockery v . ............................... 871, 1019
TABLE OF CASES REPORTED LXXI
Page
California; Epperson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
California; Fry's Food Stores v. . . . . . . . . . . . . . . . . . . . . . . . . . . 811
California; Gali v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 864
California; Goldstein v. . . . . . . . . . . . . . . . . . 821, 910, 976, 1005, 1104
California; Gomez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 978
California; Guerin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 859
California; Hagan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010
California v. Halpin..................................... 982
California; Harris v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 895
California; Hibberd v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010
California; Hilliard v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 881
California; Jack v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 813
California; Jackson v . ............................ 854, 916, 948
California; Jones v...................................... 1115
California; Komes v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 979
California v. Krivda .......................... .. ... 33,819, 1068
California v. LaRue .................................... 109,818
California ; Lewis v.. . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . .. . . . 866
California; Maselli v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 891
California; McClenan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 7
California; Mclnnis v.................................... 1061
California; Means v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1114
California; Milstead v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1114
California v. Municipal Court for Sacramento .......... : ... 1109
California; Offenberg v. . . . . . . . . . . . . . . . .. . . . . . . . .. . . . . . . . . 1077
California; Perry v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
California; Peters v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1064
California; Pickerell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 913
California; Robles v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 897
California; Ronstadt v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 913
California; Stockman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 979
California; Thomas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 895
California; Tomasino v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1121
California; Valdivia v................................... 1110
California; Valentine v................................... 1075
California; Ward v...................................... 854
California ; Williams v . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . 1073
California; Zemliak v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
California Adult Authority; Sailer v. . . . . . . . . . . . . . . . . . . . . . . 861
California Attorney General; Wimberley v. . . . . . . . . . . . . . 882, 1019
California Dept. of Ale. Bev. Control; Club Hi Dolly v..... . 1075
California Dept. of Ale. Bev. Control; Coleman v ........... 1075
California Dept. of Ale. Bev. Control; 1st King v. . . . . . . . . . . 107 5
LXXII TABLE OF CASES REPORTED
Page
California Dept. of Ale. Bev. Control; Poff v. . . . . . . . . . . . . . . 1075
California Dept. of Corrections; Weaver v . ............. 864, 1019
California Dept. of Motor Vehicles; Rivas v. . . . . . . . . . . . . . . . 55
California Dept. of Social Welfare Director; Bisno v. . . . . . . . 990
California Highway Comm'n v. LaRaza Unida.............. 890
California Secretary of State v. Chote ................... 911, 1035
California State Personnel Board; Ford v... . . . . . . . . . . . . . . . 1043
California Superior Court; Farr v........................ 1011
California Superior Court; Gomez v. . . . . . . . . . . . . . . . . . . . . . . 1059
California Superior Court; Michigan National Bank v. . . . . . 1125
Calvert; Humble Oil & Refining Co. v. . . . . . . . . . . . . . . . . . . . . 967
Camp; First National Bank of Fairbanks v................ 1124
Campbell v. Estelle..................................... 1114
Campbell v. Georgia..................................... 984
Campbell v. Texas....................................... 1008
Campbell v. United States................................ 1062
Campo Corp. v. Supreme Judicial Court of Massachusetts.... 1024
Canale; Hays v. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . .. . . . . . . 1009
Canal Zone; Griffith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 883
Canal Zone; Lobon v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 864
Canal Zone; Wright v................................... 985
Canterbury; Spence v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1064
Cantu v. United States.................................. 1128
Cantwell v. Board of Trustees for Utilities of Indianapolis... 984
Capita.! Assistance Corp. v. United States........... . . . . . . . 941
Capitol Tile & Marble v. Deese........................... 1024
Capps; Braden v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1055
Carbonaro v. United States............................... 1062
Cardillo v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1078
Cardwell; Bradley v................................ . .... 861
Cardwell; Ferguson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 854
Cardwell; Thomas v... ............................ ... .. . 854
Cardwell; Vitoratos v................................... 1112
Cardwell; White v....................................... 1062
Cardwell; Wilson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 984
Caref v. Illinois......................................... 984
Carey v. Commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 990
Carlton v. United States.................................. 875
Carmi cal; Craven v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 929
Carmona; Sherdon v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 971
Carnathan v. Texas............ . . . ...................... 866
Carpenter v. United States ............................. 985,991
Carpenters v. Linbeck Construction Corp.................. 1077
TABLE OF CASES REPORTED LXXIII
Page
Carpenters v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 851
Carr; Phillips v......................................... 1085
Carr v. Texas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1099
Carroll v. McDaniel. . . . . . . .. . . . . .. . . . . . . . . . . . . . . . . . . . . . . 1106
Carroll v. United States.................................. 860
Carson v. United States.................................. 949
Carson-Tahoe Hospital Board of Trustees; Moore v. . . . . . . . . 879
Carter; District of Columbia v. . . . . . . . . . . . . . . . . . . . . . . . . . . 418
Carter v. Fort Worth.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 877
Carter v. Mancusi....................................... 1009
Carter v. Panama Canal Co............................... 1012
Carter v. Roberts........................................ 862
Carter v. Slayton....................................... 1128
Carter v. United States ................................ 984, 1068
Carter v. U. S. Court of Appeals......................... 1122
Carter v. U. S. District Court............................ 858
Cartwright; United States v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 840
Carver v. Ohio.................................. . ....... 1044
Casanova Guns, Inc. v. Shultz... . . . . . . . . . . . . . . . . . . . . . . . . . 845
Cason v. Columbus...................................... 1053
Cassidy v. United States.................................. 1026
Casson v. United States................................. 1112
Castaneda v. California................................. 1126
Castillo v. United States................................. 865
Castle Memorial Hospital; Silver v ................... 1048, 1131
Cast Optics Corp. v. Labor Board......................... 850
Cataldo v. United States................................. 848
Cathedral Academy v. Com. for Pub. Ed. & Religious Liberty. 977
Cauldwell-Wingate Co.; Reilly v. . . . . . . . . . . . . . . . . . . . . . . 882, 1119
Cawy Bottling Co. v. Maltina Corp........................ 1060
Cecere v. United States.................................. 843
Central Charge Service; White v. . . . . . . . . . . . . . . . . . . . . . . . . . 895
Central Gulf Steamship Corp. v. Dennis................... 948
Central R. of New Jersey ; Ballantyne v................... 879
Certified Grocers of Illinois v. Sparkle Food Center. . . . . . . . . 1007
Cervantes v. Time, Inc.................................. 1125
C & G Boat Co. v. Crescent River Port Pilots Assn. . . . . . . . . 850
Chacon v. McClain....................................... 1011
Chaffin v. Stynchcombe ............................... 912, 1123
Chagois v. Lykes Bros. Steamship Co...................... 1012
Chairman, Civil Service Comm'n v. Fitzgerald. . . . 1054, 1055, 1100
Chairman, Civil Service Comm'n; Jalil v. . . . . . . . . . . . . . . . . . . 887
Chais-Shulman v. Bank of America Trust 54212 ......... 864, 1029
LXXIV TABLE OF CASES REPORTED
Page
Chamberlain v. Chamberlain............................. 892
Chambers; Olden v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1105
Champagne v. Penrod Drilling Co......................... 1113
Chandler v. Battisti..................................... 903
Chandler Leasing Div.; Florida Vanderbilt Corp. v......... 1041
Chapa v. 1020 N. Quincey Street, Ltd..................... 881
Charles C. Wilson, Inc. v. Medicenters of America.......... 1039
Charlton v. United States................................. 1027
Chase Manhattan Bank; Serzysko v .................... 883, 1029
Chavez v. Freshpict Foods ............................. 911, 1042
Chavez v. Gibbons...................................... 1112
Chemical Carriers, Inc. v. Andrews........................ 874
Cherokee Nation; Oklahoma v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
Cherry; Atlantic-Richfield Co. v.......................... 850
Cherry v. Henderson..................................... 895
Chevron Oil Co.; Bible v. . . . . . . .. . .. . .. . .. . .. . . . . . .. . . . . . 984
Chicago ; Blankner v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 899
Chicago; Hutter v .................................. 1024, 1119
Chicago ; Weiss v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 896
Chicago, B. & Q. R. Co.; United States v.... . . . . . . . . . . . . . . 947
Chicago City Council v. Cousins. . . . .. . .. . . . . . . . . . . .. . .. .. 893
Chicago Mercantile Exchange; Ricci v. . . . . . . . . . . . . . . . . . . . . 289
Chief Judge, U. S. District Court; Chandler v. . . . . . . . . . . . . 903
Chief Justice, Supreme Court of Florida; Fair v............ 947
Chief of Capitol Police v. Jeanette Rankin Brigade......... 972
Childs v. United States .......................... 966, 1055, 1131
Chiodi v. United States.................................. 1113
Chisum v. United States................................. 987
Chitwood v. United States................................ 858
Chongris v. Corrigan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919
Chong Yuk Wah v. United States......................... 84.'i
Chote; Brown v ...................................... 911, 1035
Chrisman v. Field............. . . . . . . .. .. . . . . . . . . . . . . . .. . 855
Christian v. New York State Board of Parole.............. 871
Chrysler Corp.; Lawrence Chrysler Plymouth v. . . . . . . . . . . . 981
C & H Transp. Co. v. Interstate Com. Comm'n .......... 904, 1049
CIBA Corp. v. Richardson............................... ll05
Cincinnati; Bunch v.................................... 814
Cincinnati; Murray v ................................. 855, 1050
Cinema Classics; Busch v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 807
Cinema Classics; Davis v................................ 807
Ciotti v. United States................................... 863
Cities Service Gas Co. v. Western Natural Gas Co.......... 1052
TABLE OF CASES REPORTED LXXV
Page
Cities Service Oil Co. v. Matzen.......................... 903
Cities Service Oil Co. v. United States...................... 1063
Citizens for Preservation of Environment v. Richfield Board. 847
Citizens Utilities Water Co. v. Superior Ct. of Ariz.......... 1022
City. See also name of city.
City Council of Chicago v. Cousins. . . . . . . . . . . . . . . . . . . . . . . 893
Clark v. Delaware...................................... 812
Clark v. Johnson........................................ 900
Clark v. Payne.......................................... 1070
Clark v. United States ................................ 880, 1028
Clark Equipment Co. v. Wirth........................... 876
Clark Sherwood Oil Field Contractors v. Smith............. 980
Clean Air Coordinating Com. v. Roth Adam Fuel Co .... 946, 1117
Cleaves v. Parker....................................... 863
Clerk's Office of U. S. District Court; Eckert v. . . . . . . . . . . . 855
Clerk, Supreme Court of Minnesota; Daly v. . . . . . . . . . . . . . . 1041
Cleveland; Executive Jet Aviation v. .. . . . . . . . . . . . . . . . . . . . 249
Cleveland Bar Assn.; Stein v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 949
Clinchfield R. Co.; Flinchum v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Clinton v. Ingram Corp.................................. 990
Clizer v. United States................................... 1086
Cloe v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Club Hi Dolly v. Dept. of Ale. Bev. Control of California. . . . 1075
Cody v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010
Cohen; Pennsylvania v.................................. 981
Cohn v. United States................................... 875
Coiner; Blake v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 912
Coiner; Ratliff v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Cole; Hall v............................................ 1074
Cole v. United States .................................. 868,942
Coleman v. Dept. of Ale. Bev. Control of California......... 1075
Coleman; Jiffy June Farms v............................ 948
Coleman v. Louisiana.................................... 811
Coleman v. United States................................ 871
Colgrove v. Battin .................................... 841, 1055
Collins v. A very. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 844
Collins v. Maryland..................................... 882
Collins v. United States ............................... 988, 1011
Colorado; Craig v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077
Colorado; McDaniel v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1060
Colorado Dept. of Labor and Employment; Korczak v...... 860
Colquitt County Board of Education v. Harrington........ 915
Columbia Broadcasting System; Berger v. . . . . . . . . . . . . . . . . 848
LXXVI TABLE OF CASES REPORTED
Columbia Broadcasting System; Custom Recording Co. v . .. .
Columbia Broadcasting System v. Democratic Nat. Com ... .
Columbian Fuel Co. v. United States ..................... .
Columbus; Cason v ..................................... .
Comeaux v. Buller ..................................... .
Commissioner; B. Forman Co. v . ......................... .
Commissioner; Bonkowski v . ............................ .
Commissioner; Browne v . ............................... .
Commissioner; Carey v ................................. .
Commissioner; Escofil v . ............................... .
Commissioner; Geoghegan & Mathis, Inc. v . .............. .
Commissioner; Hedrick Estate v . ........................ .
Commissioner; John B. White, Inc. v .................... .
Commissioner; Kasey v . ................................ .
Commissioner; Landerman v . ........................... .
Commissioner; Lingham v . ............................. .
Commissioner; Montgomery Estate v . .................... .
Commissioner; N ammack v . ............................ .
Commissioner; Plantation Patterns v . .................... .
Commissioner; Road Materials, Inc. v .................... .
Commissioner; Rose v . ................................. .
Commissioner; Steiner v ................................ .
Commissioner; Western & Southern Life Ins. Co. v ........ .
Commissioner of Administration of Minnesota; Essling v . .. .
Commissioner of Bur. of Revenue of N. M.; Evco v . ....... .
Commissioner of Customs; Veterans for Peace v . .......... .
Page
1007
820
1063
1053
983
899
874
867
990
1112
842
1024
876
869
903
1129
849
991
1076
1008
879
850
1063
950
91
933
Commissioner of Fish and Game; Glenovich v.............. 1070
Commissioner of Highways of Va. v. Arlington Coalition..... 1000
Commissioner of Internal Revenue. See Commissioner.
Commissioner of Labor; Ho1'lle v. . . . . . . . . . . . . . . . . . . . . . . . . . 891
Commissioner of Mental Hygiene; Fhagen v. . . . . . . . . . . . . . . 845
Commissioner of Patents; Irons v. . . . . . . . . . . . . . . . . . . . . . . . . 1076
Commissioner of Public Welfare; Jefferson v. . . . . . . . . . . . . . . 898
Commissioner of Revenue; Louisville & N. R. Co. v........ 949
Commissioner of Social Services v. Gilliard. . . . . . . . . . . . . . 807, 1119
Commissioner of Social Services; Sanders v.. .. . .. . .. . .. . . . 1128
Commissioner of Social Services v. Shirley. . . . . . . . . . . . . . . . . 1052
Committee for Public Education; Brydges v. . . . . . . . . . . . . . . 977
Committee for Public Education; Cathedral Academy v..... 977
Committee for Public Education; Levitt v. . . . . . . . . . . . . . . . 977
Committee on Admissions, D. C. Ct. App.; Sellars v......... 1060
Commonwealth. See also name of Commonwealth.
Commonwealth Edison Co.; Particular Cleaners v.......... 890
TABLE OF CASES REPORTED LXXVII
Page
Communist Party of Indiana v. Whitcomb................. 1235
Communist Party of Indiana; Whitcomb v. . . . . . . . . . . . . . . . . 806
Community School Board No. 25; Presidents Council v. . . . 998
Comptroller of New York v. Committee for Public Ed...... 977
Comptroller of the Currency; First National Bank v...... 1124
Conboy; Redman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
Conco, Inc.; Hamlett v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 848
Confederation Life Insurance Co. v. De Lara.............. 953
Congrove v. U. S. District Court.......................... 1026
Conley; Dauer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1049
Connecticut; Crayton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Connecticut; Hawkins v................................. 984
Connecticut; Jackson v.................................. 870
Connecticut General Life Insurance Co.; Beck v .... 845, 1034, 1093
Connecticut Secretary of State; LoFrisco v. . . . . . . . . . . . . . . . 972
Connett; Starnes v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 987
Connor; Duquesne Brewing Co. of Pittsburgh v............ 1024
Connors v. Johnson. . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . 1009, 1093
Conn-Wood Investment Corp. v. Workmen's Comp. Bd... . . 1020
Consolidated Air Tour Committee; E. A. McQuade Tours v . . 1109
Cook v. Calhoun................................. . ...... 974
Cook v. Loop Carry Out . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1071
Cook; Pendergraft v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 886
Cook v. Peto............................................ 1071
Cook v. United States ................................. 949, 1011
Cook County Clerk v. Shapiro .................... 819, 1072, 1103
Cook County Collector v. Northwestern University......... 852
Cook County College Teachers Union v. Byrd...... . ...... 848
Cook County States Attorney; Robinson v. . . . . . . . . . . . . . . . 38
Cook County States Attorney; Splinter v. . . . . . . . . . . . . . . . . . 1059
Cool v. United States.................................... 100
Cooley v. Endictor...................................... 1115
Cooney v. United States.................................. 1044
Cooper v. Florida Board of Dentistry. . . . . . . . . . . . . . . . . . . . . . 1072
Cooper v. United States ............................. 1009, 1107
Copeland v. United States............................... 859
Copeland Refrigeration Corp. v. Warriner Hermetics........ 1086
Copp v. United States................................... 861
Coral Drilling, Inc.; Bishop v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Corcoran; Lomayaktewa v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 843
Corcoran v. United States........ . ... . .. . ..... .... ....... 880
Corey v. Attorney General................................ 1048
Corey v. Avco-Lycoming Division........................ 1116
LXXVIII TABLE OF CASES REPORTED
Page
Corkey v. Edwards...................................... 975
Corps of Engineers; Environmental Defense Fund v. . . . . . . . . 1072
Corrado v. Providence Redevelopment Agency .......... 1003, 1011
Corrado v. Rhode Island Bar Assn. . . . . . . . . . . . . . . . . . . . . . . . 973
Corrections Commissioner. See name of commissioner.
Corrigan; Chongris v .............. . .................... .
Cortese; Parham v . .................................... .
Costanza v. New Jersey ................................ .
Couch v. United States ................................. .
Coulon; Cousino v . ..................................... .
County. See also name of county.
919
902
861
322
1009
County Board of Education of Richmond County v. Acree... 1006
County Collector of Cook County v. Northwestern University. 852
Courier v. United States .............................. 934, 1104
Court of Appeals. See U. S. Court of Appeals.
Cousino v. Coulon. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
Cousins; City Council of Chicago v. . . . . . . . . . . . . . . . . . . . . . . 893
Cousins v. Wigoda...................................... 1201
Cox v. Gaffney........................ . .................. 863
Cox v. McNamara........ . ............................. 882
Cox; Nunn v........................................... 860
Cox v. Woodson........................................ 991
Cozens; Rivas v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Cradle v. North Carolina.............. . .................. 1047
Craig v. Colorado . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077
Craig v. Gilliard ..................................... 807, 1119
Cramer v. Director of Revenue............................ 1107
Cranford v. New Mexico............. . .................. 854
Cratic v. Ohio........................................... 1079
Craven; Boag v......................................... 1085
Craven v. Carmical. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 929
Craven; DuBose v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1130
Craven; Hutchinson v................................... 979
Craven; Sailer v .. .. .. . . . ....... . ........ . .. . . .. ... . . . 856, 873
Craven; Whitney v.......... . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1061
Craven; Womack v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
Craven; Yeager v....................................... 1026
Cravens v. United States................................ 981
Crawford v. Missouri ................................. 811, 1051
Crawford v. Texas................................. . .... 979
Crawford v. United States............. . . . . . . . . . . . . . . . . . . 915
Crescent River Port Pilots Assn.; C & G Boat Co. v. . . . . . . . 850
Crismon v. United States................................ 890
TABLE OF CASES REPORTED LXXIX
Page
Crosland; Alga, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 950
Crosland; Montgomery Book Mart v. . . . . . . . . . . . . . . . . . . . . 950
Crosson v. United States... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1064
Crow v. Eyman ...................................... 867, 1029
Crowe v. South Carolina.................................. 1077
Crutch v. United States................................. 883
Crystal City v. Del Monte Corp. . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Cummings; Gaffney v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 839
Cummings v. Georgia................................... 897
Cunningham v. A. S. Abell Co............................ 865
Cunningham v. King County Boundary Review Board. . . . . . 972
Cunningham v. Warden.................................. 901
Cupp; Earp v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 868
Cupp; LeBrun v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 868, 1027
Cupp; Minor v.......................................... 1113
Cupp v. Murphy... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1036
Cupp; Scharbrough v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 951
Cupp; Smith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 880
Cupp; Trahan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 884
Curry; Marsh v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1042
Curry v. Texas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 899
Curtis v. Labor Board................................... 867
Cussen; Monroe v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 846
Cussen; North Area Refuse Co. v........................ 846
Cussen; Tibbitts v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 982
Custom Component Switches v. Davis..................... 1077
Custom Finance Co.; Hobbs v..... . . . . . . . . . . . . . . . . . . . . . . . 847
Custom Recording Co. v. Columbia Broadcasting System.... 1007
Cutrone v. Kelly........................................ 1099
D.; S. v................................................ 1103
Dabney v. District of Columbia.......................... 1114
Dahl v. United States.................................... 874
Dailey v. United States................................... 1044
Dallas County District Attorney; Roe v. . . . . . . . . . . . . . . . . . . 817
Dallas Public Schools Superintendent; Ware v... . . . . . . . . . . . 1027
Dalton v. United States .............................. 1062, 1131
Daly v. Alabama. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 4
Daly v. McCarthy....................................... 1041
D'Ambra v. New York.................................. 1106
Dameron v. United States................................ 882
Damner; Agnew v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1128
Dampskibsaktieselskabet; Bellingham Stevedoring Co. v. . . . 1024
Dampskibsselskabet Norden A/S; Perreira v. . . . . . . . . . . . . . . 1040
LXXX TABLE OF CASES REPORTED
Page
Dandridge; Eason v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 978
Dandridge; Jefferson Parish School Board v. . . . . . . . . . . . . . . 978
Daniel v. United States.................................. 843
Danning v. Brunswick Corp................ . ............. 1126
Dapper v. O'Connor ................................. 1025, 1131
Daras v. United States..................... . ............. 1046
Dasher v. Blackmon..................................... 1107
Dauer v. Conley. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1049
David v. Texas ...................... . ................... 898
Davidson v. Francis..................................... 904
Davidson v. United States................................ 985
Davidson v. Warden..................................... 989
Davis v. Beto. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 864
Davis v. Caldwell...................... . ................. 1006
Davis v. Cinema Classics................................. 807
Davis; Custom Component Switches v. . . . . . . . . . . . . . . . . . . . . 1077
Davis v. Edwards....................................... 1098
Davis v. Gomes...................................... . .. 1115
Davis; Goodson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077
Davis v. Illinois......................................... 811
Davis; May v........................................... 1077
Davis v. Mississippi..................................... 855
Davis v. Neaher......... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1105
Davis v. New York...................................... 811
Davis v. Ohio........................................... 1047
Davis; Richardson v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1069
Davis v. Superior Court of Los Angeles County..... . . . . . . . . 913
Davis v. Texas....................... . ....... . .......... 898
Davis; Tilli v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901
Davis v. United States ................ . ....... . ... 841,921, 1025
Dawley v. Sacramento County............................ 813
Dawn v. Sterling Drug, Inc .............. . ............ 865, 1118
Dawson v. United States................. . ............... 1072
D. C. Transit; Tate v................. . ... . . . .... . ....... 1027
D. C. Transit v. Washington Met. Transit Comm'n.......... 1086
Dean v. United States... . ....................... . ....... 886
DeCarlo v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 843
Dedham; Turnpike Realty Co. v.......... . ............... 1108
Deepsouth Packing Co. v. Laitram Corp.................. . 902
Deese; Capitol Tile & Marble v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
DeFarlo v. California..... . ....... . ... . . .. ............... 881
De Lara; Confederation Life Insurance Co. v.............. 953
Delaware; Clark v. .. .................................... 812
TABLE OF CASES REPORTED LXXXI
Page
Della Croce v. New York................................ 1038
Del Monte Corp.; Crystal City v. . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Del Monte Foods; Crystal City v. . . . . . . . . . . . . . . . . . . . . . . . . 1023
DeLucia v. New Jersey................................... 952
DeMartino; Scarpetta v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1011
Dement; Huggins v...................................... 1071
Democratic National Com.; American Broadcasting Cos. v.. 820
Democratic National Com.; Columbia Broadcasting System v. 820
Democratic National Com. v. Federal Com. Comm'n........ 843
Democratic Party of Georgia; Williams v. . . . . . . . . . . . . . . . . 809
DeMoulin v. Denver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
Dennett v. United States................................. 851
Dennis; Central Gulf Steamship Corp. v. . . . . . . . . . . . . . . . . . . 948
Dennis v. United States.................................. 865
Denver; DeMoulin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
Denver School District No. 1; Keyes v.................... 818
Department of Agriculture v. Moreno...................... 1036
Department of Ale. Bev. Control of Calif.; Club Hi Dolly v.. 1075
Department of Ale. Bev. Control of Calif.; Coleman v. . . . . . 1075
Department of Ale. Bev. Control of Calif.; 1st King v....... 1075
Department of Ale. Bev. Control of Calif.; Poff v.... . . . . . . . 1075
Department of Army; Thompson v. . . . . . . . . . . . . . . . . . . . . . . 988
Department of Health, Education, and Welfare; Gaillot v... 1060
Department of Labor Deputy Comm'r; Nacirema Co. v..... 980
Department of Labor Deputy Comm'r; Plaquemine Co. v. . 914
Department of Motor Vehicles of California; Rivas v....... 55
Department of Public Health of Mo.; Employees v ...... 821, 1103
Department of Treasury, Bureau of Customs; Doyal v. . . . . 872
DePugh v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 898
DeRosa v. New Jersey. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1040
Desobry; N ola.nd v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
Dessus v. Pennsylvania................................... 853
Detroit; Gerneth v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109
Devcon Corp. v. Woodhill Chemical Sales Corp............. 845
De Verse v. United States................................. 988
De Ville v. Richardson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 986
Diamond; Homa.rt Development Co. v.................... 897
DiCanio v. United States................................. 870
Dickson v. United States................................. 876
DiCosimo; Van Pelt v ................................ 865, 1051
Diehl v. United States................................... 982
Dies; Godwin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
Diggs v. United States ................................. 882,901
LXXXII TABLE OF CASES REPORTED
Page
Dillard v. Industrial Comm'n of Virginia................... 238
Dillingham Corp.; Arvidson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 983
DiPaolo v. New York.................................... 1040
Direct Mail Advertising Assn. v. U. S. Postal Service....... 843
Director, California Dept. of Social Welfare; Bisno v. . . . . . . 990
Director, Dept. of Fish and Game; Mattz v ............ 819, 1124
Director, Dept. of Motor Vehicles; Stauffer v. . . . . . . . . . . . . . 972
Director, Dept. of Motor Vehicles of California; Rivas v.... 55
Director, Dept. of Social Service & Housing; Hillen v. . . . . . . . 989
Director General, India Supply Mission v. The Maru........ 1115
Director, Govt. Affairs of Ill. v. Lake Shore Co .... 819, 1072, 1103
Director of Internal Revenue. See Commissioner; District
Director of Internal Revenue.
Director of penal or correctional institution. See name of
director.
Director of Revenue; Cramer v.......................... 1107
Director of Revenue of Illinois v. Mitchell. . . . . . . . . . . . . . . . . 982
Director, Va. Dept. of Welfare and Inst. v. Woolfolk........ 885
Disposable Services, Inc. v. ITT Life Ins. Co.. . . . . . . . . . . . . . . 1023
District Attorney of Dallas County; Roe v. . . . . . . . . . . . . . . . 817
District Attorney of Kenosha County; Wilson v ... ..... 1043, 1131
District Attorney of Los Angeles County v. Cinema Classics.. 807
District Attorney of Oneida County v. Esquire Theaters.... 1100
District Attorney of Philadelphia County v. Tucker....... . 810
District Court. See U. S. District Court.
District Director of Internal Revenue; Bennett v. . . . . . . . . . 1128
District Judge. See U. S. District Judge.
District Lodge. For labor union, see name of trade.
District of Columbia v. Carter....... . . . . . . . . . . . . . . . . . . . . . 418
District of Columbia; Dabney v. . . . . . . . . . . . . . . . . . . . . . . . . . 1114
District of Columbia; Turner v. . . . . . . . . . . . . . . . . . . . . . . . . . 986
District of Columbia Ale. Bev. Control Board; Byrd v...... 1075
District of Columbia RLA; Basyap, Inc. v . ........... 1008, 1119
' District Unemployment Compensation Board; Kartsonis v.. . 872
Diversified Industries, Inc.; Kaufman v.................... 1038
Division of Employment, Colo. Dept. of Labor; Korczak v.. 860
Dixie Carriers, Inc.; Dow Chemical Co. v. . . . . . . . . . . . . . . . . . 1040
Dixon v. United States.................................. 864
Dobbs v. Anderson...................................... 916
Dockery v. California ................................. 871, 1019
Dodson v. Graham...................................... 879
Dodson v. Iowa. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077
Doe v. Bolton ......................................... 817,909
TABLE OF CASES REPORTED LXXXIII
Page
Doe; Heffernan v....................................... 817
Doe v. McMillan ..................................... 977, 1036
Doherty v. United States .............................. 888, 1093
Dombrowski; Cady v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1059
Dominey v. Dominey. . . . . . . .. .. . .. . .. . . . . . .. . . . .. . . . . . . . 1028
Donohoe v. United States................................ 865
Donovan v. United States......................... . ...... 918
Dorado v. Kerr... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
Dorrough v. United States............................... 868
Dorsey v. United States........................... . ...... 870
Doss; Bensinger v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
Doss v. Lewis-Gale Hospital. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Dotson v. Alabama...................................... 1117
Dotson v. Louisiana..................................... 913
Douglas v. Nixon........................................ 1010
Dow Chemical Co. v. Dixie Carriers, Inc................... 1040
Dow Chemical Co.; 8helco, Inc. v......................... 876
Dowell; Bd. of Education of Oklahoma City Public Schools v. 1041
Downie; Wilson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1037
Doyal v. Department of Treasury, Bureau of Customs...... 872
Doyal v. United States.................................. 870
Doyle v. Doyle. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 855
Doyle v. U. S. District Court............................. 823
Drew v. United States .............................. :.... 1062
Driver v. United States .............................. 1061, 1127
Drummond v. Acree ................................. 1006, 1228
Dublino; N cw York Dept. of Social Services v. . . . . . . . . . . . . . 1123
Dublino; Onondaga County Dept. of Social Services v. . . . . . 1123
DuBose v. Craven...................................... 1130
Duchess Music Corp.; Rosner v. . . . . . . . . . . . . . . . . . . . . . . . . . 847
Dudley v. Brantley...................................... 978
Duncan v. Nelson................ . ...................... 894
Duncan, Nelson v....................................... 894
Duncan v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 814
Dunk v. Manufacturers Light & Heat Co. . . . . . . . . . . . . . . . . . 1078
Dunning; Bratrud v............... . ..................... 879
Duquesne Brewing Co. of Pittsburgh v. Connor............ 1024
Durant v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1127
Durham; Blasecki v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 912
Durst v. National Casualty Co ......................... 967, 1068
Durst v. U. S. Court of Appeals .............. 946,947, 1068, 1069
Duryea; Gottlieb v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
Duvall; Houle v....... .. .. . ............................. 891
LXXXIV TABLE OF CASES REPORTED
Page
Dyal; Union Camp Corp. v.............................. 849
Dyal v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 845
Dye v. New Jersey ................................... 1004, 1090
Dykes v. United States................................... 889
Dzialak v. United States................................. 952
Eagle Star Insurance Co.; Irwin v. . . . . . . . . . . . . . . . . . . . . . . . 852
Eagle Star Insurance Group v. Walker. . . . . . . . . . . . . . . . . . . . . 878
E. A. McQuade Tours v. Consolidated Air Tour Committee.. 1109
Earp v. Cupp........................................... 868
Eason v. Dandridge...................................... 978
East Rutherford v. New Jersey Sports Authority........... 943
East Texas Steel Castings Co. v. Labor Board.............. 852
Eaton v. United States................................... 880
Echeverria v. United States.... . . . . . . . . . . . . . . . . . . . . . . . . . . 893
Eckert v. Clerk's Office of U. S. District Court. . . . . . . . . . . . . 855
Eckert v. Philadelphia................................... 900
Eckert v. Senate of the United States. . . . . . . . . . . . . . . . . . . . . 858
Edwards; Corkey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 975
Edwards; Davis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1098
Edwards; Fontham v.................................... 1120
Edwards v. United States................................ 849
Edwards; Wells v....... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1095
Egan v. United States.................................... 875
Egbert v. Martinez...................................... 1093
Egeler; McCoy v........................................ 1113
Eisenstadt v. Baker. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 846
Eisenstadt; Baker v . . . . . . . . . . . . . . . . . . . . . . . . • . . . . . . . . . . . . 846
Electrical Workers; Leskiw v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1041
Ellingburg v. Goodson . .................................. 1106
Elliott v. Taylor....... .. . . . . . . . . . . .. . . . . . . .. . . .. . . . . . . . . 885
Ellipse Corp.; Ford Motor Co. v. . . . . . . . . . . . . . . . . . . . . . . . . . 898
Ellis; Mayes v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 943
Ellis v. United States.................................... 866
Ellison v. Oklahoma....................... .. . ..... ...... 862
Emdy v. United States......................... . ......... 1011
Employees v. Dept. of Pub. Health &: Welfare of Mo ... 821, 1103
Employers' Fire Insurance Co.; Flores v . . . . . . . . . . . . . . . . . . . 1046
Enders v. Esquire Theaters of America.................... 1100
Endictor; Cooley v..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1115
Engle v. United States ........................ . ........ 863,875
Engler, In re............................................ 1064
English; Esgate v............................ . .......... 899
English v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1062
TABLE OF CASES REPORTED LXXXV
Page
Enmons; United States v ......................... 946, 1034, 1054
Enoch v. United States.............. . .................. . 918
Enriquez v. Beto . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 853
Environment-al Defense Fund v. Corps of Engineers......... 1072
Environmental Defense Fund v. Froehlke................... 1072
Environmental Protection Agency; Getty Oil Co. v.......... 1125
Environmental Protection Agency v. Sierra Club ........ 1054, 1124
Enyart v. Ashland Discount Co....... . ............... . ... 880
Epperson v. California. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Equal Employment Opportunity Comm'n; Rogers v . . . . . . . . 1059
Erdman v. Stevens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 889
Erickson's, Inc.; Travelers Indemnity Co. v................ 847
Erlenbaugh v. United States.............................. 239
Erwing v. United States.................. . .. . .... . ...... 900
Escofil v. Commissioner.................................. 1112
Esgate v. English........ . .............................. 899
Eskridge v. United States................. . .............. 883
Espinoza v. Farah Mfg. Co.............................. 1105
Esquire Theaters of America; Enders v . . . . . . . . . . . . . . . . . . . . 1100
Essex v. Wolman....... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 808
Essex County Welfare Board; Philpott v.................. 413
Essling v. Brubacher. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 950
Estate. See name of estate.
Estelle; Campbell v.................................... . . 1114
Estelle; Hoover v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1086
Estelle; Jackson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1128
Estelle; McLain v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 979
Estelle; Shelton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 985
Estelle; Smith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1061
Estes v. Northcross .............................. . .... 853, 1050
Estes; Ware v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1027
Estrada v. United States................................. 858
Ethington v. United States............................. . . 1026
Evans v. Arkansas................. . .................... 913
Evans v. Moseley. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 889
Evans v. Slayton... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1114
Evans v. United States................ . ................. 865
Evansville-Vanderburgh School Corp.; Adams v. . . . . . . . . . . . 1060
Evco v. Jones........................................... 91
Evco Instructional Designs v. Jones....................... 91
Evergreen Marine Corp., S. A.; Rederi A/ B Soya v. . . . . . . . . 949
Executive Jet Aviation v. Cleveland.................. . .... 249
Eyman; Crow v ...................................... 867, 1029
LXXXVI TABLE OF CASES REPORTED
Page
Eyman; Herrera v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 979
Eyman; Kruchten v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 897
Eyman; Tafoya v. . . . . . . . . . . . . . . . . . . .. .. . . . . . .. .. . . . . . . . 979
Fadel; Power Authority of New York v................... 893
Fair v. Florida....................... . .................. 1077
Fair v. Hodges ....................................... 872, 1051
Fair v. Roberts...................... . .................. 947
Fair v. Sebesta ....................................... 978, 1093
Fair; Womack v........................................ 915
Fair Employment Practices Comm'n; Ronwin v. . . . . . . . . . . 811
Falcon Seaboard, Inc.; Smith v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1085
Falkenstein; Oregon State Elks Assn. v. . . . . . . . . . . . . . . . 1032, 1099
Falkner v. Pastrano ................................. 1020, 1131
Falkner v. Supreme Court of Florida ... . ............... 823, 1051
Falls Church; Falls Church Health Center v............... 907
Falls Church; Kisley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 907
Falls Church Health Center v. Falls Church............... 907
Family Publications Service; Mourning v ..... ........... 819,975
Farah Mfg. Co.; Espinoza v.............................. 1105
Farr v. Pitchess......................................... 1243
Farr v. Superior Court of California....................... 1011
Farrell v. Stovall........................................ 898
Farries v. United States................................. 888
Favre; Henderson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 942
Featherston v. United States............. . . . . . . . . . . . . . . . . 991
Federal Com. Comm'n v. Bus. Execs. for Vietnam Peace.... 820
Federal Com. Comm'n; Democratic National Committee v. . 843
Federal Com. Comm'n; WAIT Radio v. . . . . . . . . . . . . . . . . . . . 1027
Federal Com. Comm'n; Winchester TV Cable Co. v. . . . . . . . 1007
Federal Land Bank of Houston; Godwin v. . ............... 891
Federal Maritime Comm 'n; Latin America Conf. v. . . . . . . . 967
Federal Maritime Comm'n v. Seatrain Lines........ . ....... 1058
Federal Power Comm'n v. Greene County Planning Board. . . 849
Federal Power Comm'n; Gulf States Util. v ... . .... 945, 1004, 1034
Federal Power Comm'n v. Memphis Light & Gas.... .. . . ... 1037
Federal Power Comm'n; Memphis Light & Gas v........ . . 941
Federal Power Comm'n v. Mobil Oil Corp. . . . . . . . . . . . . . . . . 903
Felland v. Schaefer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Felts v. Seaboard Coast Line R. Co. . ........ . ............ 926
Ferguson v. Cardwell. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 854
Ferguson v. Virginia .................................. 861, 1050
Fermin v. Richardson ......................... ... .. . .. 868, 1019
TABLE OF CASES REPORTED LXXXVII
Page
Ferrell v. Oklahoma...................................... 1128
Ferrer-Vega v. United States............................. 1026
Fhagen v. Miller. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 845
Fichman v. United States................................ 845
Fidanian v. United States................................ 1044
Fidell v. Board of Elections of New York City. . . . . . . . . . . . . 972
Field; Chrisman v. . . . . . . .. . . . . . . . . . . . . . . .. .. . . .. .. . . . . . 855
Field; Jones v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 867
Field; Neely v ......................... . ............ 871, 1050
Filtrol Corp. v. Kelleher. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110
Fincher v. Virginia................................. . .... 913
Finger Lakes Racing Assn. v. N. Y. Off-Track Betting....... 1031
Fink v. United States.................................... 844
Fiocconi v. Attorney General............................. 1059
Firestone v. Time, Inc................................... 875
1st King v. Dept. of Ale. Bev. Control of California. . . . . . . . . . 1075
First National Bank at Lubbock v. United States.......... 1125
First National Bank of Fairbanks v. Camp.............. . . 1124
First National City Bank v. Banco N acional de Cuba. . . . . . 897
First Wisconsin National Bank; Rooney v. . . . . . . . . . . . . . . . . . 1063
Fish Meal Co. v. J. Ray McDermott & Co................. 948
Fitzgerald; Hampton v ......................... 1054, 1055, 1100
Fitzgerald; La Vallee v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 885
Fitzharris v. Blaylock.................................... 948
Fitzharris v. Love.......................... . ............ 1100
Fjell-Oranje Lines; Aunt Mid, Inc. v. . . . . . . . . . . . . . . . . . . . . . 877
Flannery v. United States................................ 1125
Flax; Potts v........................................... 1007
Fleming v. Boston Safe Deposit & Trust Co................ 813
Fletcher v. Brierley.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Fletcher v. Maryland..................................... 1006
Flinchum v. Clinchfield R. Co........................... . . 1044
Flint v. Howard......................................... 1078
Flores v. Employers' Fire Insurance Co.................... 1046
Florida; Biscuitti v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1038
Florida; Bloom v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1038
Florida; Brooks v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1069
Florida; Fair v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077
Florida; Helton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 859
Florida; Ingraham v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 862
Florida; James v........................... . ............ 985
Florida; Jordan v. .. . . . . . . . . . . . . . . . .. . . . . . .. .. . . . . . . . .. . . 866
Florida; Pearson v. . . . . . . . . . . . . .. . . . . . . . .. . . . . . . . .. . . . . . . 879
LXXXVllI TABLE OF CASES REPORTED
Page
Florida v. Roberson.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 885
Florida Attorney General; Fuentes v. . . . . . . . . . . . . . . . . . . . . . 902
Florida Board of Dentistry; Cooper v. . . . . . . . . . . . . . . . . . . . . 1072
Florida East Coast R. Co.; United States v................ 1032
Florida Governor v. Aerojet-General Corp... . . . . . . . . . . . . . . 892
Florida Governor; American Party v ................... 945, 1070
Florida Governor v. American Waterways Operators ...... 945,976
Florida Governor; American Yearbook Co. v. . . . . . . . . . . . . . . 904
Florida Machine & Foundry Co. v. Labor Board........... 846
Florida Realty Co. v. Chandler Leasing Div. . . . . . . . . . . . . . . 1041
Florida Supreme Court; Falkner v . .................... 823, 1051
Florida Vanderbilt Corp. v. Chandler Leasing Div.......... 1041
Florida Vanderbilt Corp.; Matthews v..................... 861
Flournoy v. Illinois. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 857
Floyd v. Henderson...................................... 977
Flying Foam, The v. Iron Ore Transport Co. . . . . . . . . . . . . . . . 1038
Flynn v. Board of Examiners, Bd. of Education of N. Y. . . . 844
Foggy v. Arizona. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 899
Follette; Jackson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Fontaine v. United States ............................. 978, 1005
Fontham v. Edwards.. .. . . ....... . .. .. .......... .. .. . . . . 1120
Forbes Leasing & Finance Corp. v. Lebowitz ............. 843, 1049
Ford v. Arizona......................................... 1128
Ford v. California State Personnel Board....... . . . . . . . . . . . 1043
Ford v. Ford Motor Co. . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . 1109
Ford v. United States.................................... 881
Ford Motor Co. v. Ellipse Corp........................... 898
Ford Motor Co.; Ford v. . . . . . . . . . .. .. . . . . . . . . . . . . . . . . .. . 1109
Ford Motor Co.; Ford Records v.......................... 1109
Ford Motor Co. v. Fortunato............................. 1038
Ford Records v. Ford Motor Co.......................... 1109
Foreign Study League; Holland-America Line v. . . . . . . . . . . . 1060
Foreman; Paris v . ...................................... 951
Forks v. Warsaw. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 841
Forman Co. v. Commissioner............................. 899
Forrester v. United States................................ 856
Forsyth County; l\foLean Trucking Co. v. . . . . . . . . . . . . . . . . . 1099
Fortenberry v. New York Life Insurance Co............... 981
Fortunato; Ford Motor Co. v............................. 1038
Fortune; Retza v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 810
Fort Worth; Carter v.......................... .. . . . . . . . 877
Fouchey v. United States................................ 884
Fournier v. United States................................ 1118
TABLE OF CASES REPORTED LXXXIX
Page
Francis; Davidson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 904
Francis v. United States................................. 940
Francis; U. S. Chamber of Commerce v............ ....... 907
Franke; Southwestern Bell Telephone Co. v. . . . . . . . . . . . . . . . 875
Frankel v. New Jersey. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1125
Frankel; Sams v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 977
Frankel v. Securities and Exchange Comm'n............... 889
Frank Irey, Jr., Inc. v. Hodgson......... . ................. 1070
Frasher; Robinson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
Frazier v. North Carolina . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1004
Freeman v. United States................................ 900
Freese v. United States.................................. 879
Freshpict Foods; Chavez v ................ . ........... 911, 1042
Fresno State College; Ronwin v............ .. ...... . ...... 811
Fried v. United States ................................. 908, 1059
Frierson v. Spruill ................................ . ... 989, 1069
Froehlke; Environmental Defense Fund v. . . . . . . . . . . . . . . . . 1072
Froehlke; Keister v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 894
Frommhagen v. Hodgson.............................. . .. 1111
Frontiero v. Laird. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 840, 1123
Fry's Food Stores v. California........................ . ... 811
Fuchs v. Silvester. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1121
Fuentes v. Shevin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902
Fugate v. Arlington Coalition on Transportation............ 1000
Fugate v. Gaffney. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 888
Fugate v. Potomac Electric Power Co..................... 943
Fuller; United States v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 488
Furman v. Georgia. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902
Gabbard v. Gabbard................................. . ... 987
Gabrielson v. Iowa. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 912
Gaffney; Baker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 855
Gaffney; Caldrone v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 855, 1050
Gaffney ; Cox v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 863
Gaffney v. Cummings................................ . ... 839
Gaffney; Fugate v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 888
Gaffney; Griffin v................................... . ... 854
Gaffney; Wilson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 854
Gaffney; Zimmer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 862, 1019
Gaglie v. United States................................... 908
Gagnon; Quinn v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 867
Gaillot v. Department of Health, Education, & Welfare.. . ... 1060
Gaines v. United States. . ...................... . ......... 883
Gaither; Sterrett v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1070
XC TABLE OF CASES REPORTED
Page
Gaito v. Schnupp....................................... 855
Gali v. California....... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 864
Game Co. v. Sterling Drug, Inc ........................ 865, 1118
Gant v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1028
Garcia-Turino v. United States ........................ 951, 1068
Gardner v. McCarthy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110
Gardner v. United States................................. 867
Garr v. United States... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 880
Garren v. Winston-Salem................................. 1039
Garrett v. New Jersey................................... 1043
Garrison v. Shaw. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
Gaston County Dyeing Machine Co. v. Brown.............. 982
Gaunt v. Brown......................................... 809
Gause v. Arizona........................................ 815
Gauthier v. Massachusetts................................ 869
Gauvin; Hill v . ...................................... 918, 1051
Gay v. License Branch, Real Estate Comm'n of D. C ... 1024, 1131
Geary; Houser v........................................ 1113
Gedarro v. United States................................. 1028
Geier v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
General Dynamics Corp.; United States v.................. 1058
General Services Administration; Barrett v. . . . . . . . . . . . . . . . 914
Geoghegan & Mathis, Inc. v. Commissioner................ 842
Georges v. McClellan.................................... 1120
Georgia; Ansley v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 899
Georgia; Arkwright v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 897
Georgia; Brooks v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1129
Georgia; Campbell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 984
Georgia; Cummings v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 897
Georgia ; Furman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902
Georgia; Henderson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 898
Georgia; Jackson v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902, 991, 1122
Georgia; King v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 897
Georgia; Lee v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 897
Georgia; Manor v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 897
Georgia; Miller v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 898
Georgia ; Park v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 897
Georgia ; Pierce v . . . . . . • . . • • • • . . . . . . • • • • • . . . . . . . • • • • . . • . 952
Georgia; Sullivan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 897
Georgia; Thacker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 897
Georgia v. United States................................. 911
Georgia; Walker v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 897
Georgia; Williams v. . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 897
TABLE OF CASES REPORTED XCI
Page
Georgia Attorney General; Doe v. . . . . . . . . . . . . . . . . . . . . . . 817, 909
Gerace v. Los Angeles County............................ 1012
Gerardi v. U. S. District Court........................ . .. 900
Gerberding v. Swenson................................... 1129
Gerneth v. Detroit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109
Getty Oil Co. v. Ruckelshaus............................. 1125
Ghassemi v. United States............................... 886
Gibboney v. United States................ . ............... 858
Gibbons; Chavez v...................... . ............... 1112
Gibson v. Berryhill. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 910
Gibson v. Wainwright................... . ............... 823
Gifford v. Allen......................................... 876
Gilliard; Craig v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 807, 1119
Gilligan v. Morgan ................................... 947, 1122
Gilligan; Sweetenham v. . . . . .. . . . . . . . . . . . . . . . . . . . . . . .. . . 942
Gilmore v. Maryland.................... . ............... 901
Gilson v. Macklin. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1129
Givens v. W. T. Grant Co................................ 56
Glass v. New York...................... . ............... 1064
Glaxo Group Ltd.; United States v. . . . . . . . . . . . . . . . . . . . . . . 818
Glenovich v. Noerenberg................................. 1070
Glover Livestock Comm'n Co.; Butz v.... . ............... 947
Gnoss v. Young......................................... 915
Godin v. United States....... . . . . . . . . . . . . . . . . . . . . . . . . . . . 952
Godwin v. Dies. . . . . . . .. . . . . . . . . . . .. . . . . . . . . .. . . . . . . . .. . . 1048
Godwin v. Federal Land Bank of Houston................. 891
Godwin v. Woodward. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 891
Goetz & Sons v. Board of Regents........................ 1121
Golden v. Henderson .................................. 861, 1029
Golden v. Planning Board of Ramapo...... . ............... 1003
Gold Kist, Inc.; American Trucking Assns. v. . . . . . . . . . . . . . 808
Gold Kist, Inc.; Interstate Commerce Comm'n v. . . . . . . . . . . 808
Gold Kist, Inc.; Refrigerated Transport Co. v. . . . . . . . . . . . 808
Goldsberry v. Hieber.................................... 1117
Goldstein v. California .................. 821,910,976, 1005, 1104
Goldstein's Sons v. Trio Process Corp..................... 997
Gomes; Burkheart v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1127
Gomes; Davis v......................................... 1115
Gomes; Hitchcock v. .. .. .. . .. .. .. .. .. .. .. . .. . .. .. .. 1026, 1119
Gomes; Michael v . . . . . . . . . . • • . . . . • • • . • • • . . . • . . . . . . • . • . • . 1041
Gomez v. California. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 978
Gomez v. Perez ................................. . ..... 535,818
Gomez v. Superior Court of California..................... 1059
XCII TABLE OF CASES REPORTED
Page
Gomori v. Ohio. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 913
Gonzales v. United States................................ 914
Gonzalez v. New York.................................. 859
Goodman v. Pennsylvania. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 987
Goodson v. Davis........................................ 1077
Goodson; Ellingburg v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1106
Goodson ; Wood v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 822, 1030
Goodwin v. United States................................ 859
Goosby v. Osser. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 512, 1035
Gorsalitz v. Olin Mathieson Chemical Corp................ 899
Goslee; Saez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
Gottlieb v. Duryea....................................... 1008
Gottschalk v. Benson ................................ 63,817,945
Goudie v. Sears, Roebuck & Co........................... 1049
Government of the Canal Zone; Griffith v. . . . . . . . . . . . . . . . . 883
Government of the Canal Zone; Loban v. . . . . . . . . . . . . . . . . 864
Government of the Canal Zone; Wright v................ 985
Governor. See name of State.
Gradsky v. United States................................ 894
Graham; Dodson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 879
Graham v. Jones. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1130
Grand; Wetteroff v ................................... 934, 1050
Grandi v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 870
Grand Lodge of Free Masons of Maryland; Bosley v. . . . . . 844
Granite State Joint Board; Labor Board v................. 213
Grant v. United States..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 914
Grant Co.; Givens v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Grantham v. Nelson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010
Gravel v. United States................................... 902
Gravel; United States v... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902
Gray; Thompson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077
Gray v. United States.................................... 1009
Grayton v. Connecticut.................................. 1045
Green; McDonnell Douglas Corp. v. . . . . . . . . . . . . . . . . . . . . . . 1036
Greene; Singer Co. v.................................... 848
Greene County Planning Board; Federal Power Comm'n v. . . 849
Greenseid v. Stewart. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 914
Greer v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 869
Gregory v. United States................................. 956
Gremillion v. United States............................... 1085
Grene v. United States ................................ 856, 1093
Griffin v. Gaffney. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 854
Griffin; Richardson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1069
TABLE OF CASES REPORTED XCIII
Page
Griffin v. United States ................................ 988, 1009
Griffith v. Government of the Canal Zone. . . . . . . . . . . . . . . . . 883
Griffith v. United States.................................. 1048
Grimes v. Nottoway County School Board................. 1008
Grooms v. United States................................. 858
Gross Ile; Butcher v.................................... 814
Grubb v. Oklahoma...................................... 1017
Guardian Glass Co.; Shatterproof Glass Corp. v. . . . . . . . . . . . 1039
Guerin v. California.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 859
Gulf Oil Corp. v. Lehrman................................ 1077
Gulf States Utilities v. Federal Power Comm'n ...... 945, 1004, 1034
Guthrie v. Alabama By-Products Co....................... 820
Guthrie v. Arizona. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 878
Guy v. United States .................................. 896, 1002
Hackensack Meadowland~ v. Transcontinental Gas Pipe Line. 1118
Hackney; Jefferson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 898
Hadco Products v. Walter Kidde & Co. . . . . . . . . . . . . . . . . . . . 1023
Hadley v. Alabama. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 937
Hagan v. California. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010
Hahn v. Norwegian America Line.......................... 966
Hale v. South Dakota. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1130
Hall v. Cole. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 4
Hall; Moveable Offshore, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . . 850
Hall v. Snyder. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 869
Halpin; California v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 982
Ham v. South Carolina ................................ 524,977
Hamlett v. Conca, Inc................................... 848
Hammond v. Papermakers & Paperworkers................ 1028
Hammonds v. Missouri . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 865
Hampden Valley Construction Co., In re................... 891
Hampton v. Fitzgerald ......................... 1054, 1055, 1100
Hampton; Jalil v........................................ 887
Hampton v. United States................................ 856
Handel v. United States.................................. 984
Handley v. Illinois... . ................................... 914
Handy v. United States.................................. 846
Hanly v. Kleindienst..................................... 990
Hanrahan; Robinson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Hanrahan; Splinter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1059
Harbolt v. Alldredge..................................... 1025
Harding v. Warden. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 854
Hardister; Maraman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107
Hardy; Atwell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1040
XCIV TABLE OF CASES REPORTED
Page
Hardy v. Vuitch......................................... 851
Harkins v. United States................................. 883
Harmon v. Richardson................................... 1063
Harness v. Kentucky..................................... 844
Harper v. United States ............................... 973, 1093
Harrell v. United States................................. 846
Harrington; Colquitt County Board of Education v......... 915
Harris; Baca v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 977
Harris; Cagle v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 869
Harris v. California..................................... 895
Harris v. Illinois........................................ 860
Harris; Lara v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 862
Harris; Manufacturers National Bank of Detroit v........ 885
Harris; Masters v...................................... 871
Harris; Starnes v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Harris v. United States ............................ 877,884,951
Harris; Wachovia Bank & Trust Co. v.................... 844
Harrison; Norwood v ................................. 839, 1035
Harrison v. United States .............................. 862,884
Harris Trust & Savings Bank v. United States.............. 1059
Harsh Building Co. v. Bialac.............................. 1060
Hart v. Labor Board. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 844
Hart v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 861
Hartford Accident & Indemnity Co.; United States v. . . . . . . 979
Harvell v. United States...... . .............. . ........... 802
Harvey, Inc. v. Teamsters................................ 1041
Harwell; National Assn. of Securities Dealers v. . . . . . . . . . . . . 876
Haskins; Jones v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 990
Haskins; Paschall v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 985
Hauff v. United States................................... 873
Haugh; Moore v........................................ 809
Havelock v. United States..... . . . . . . . . . . . . . . . . . . . . . . . . . . 857
Hawaii; Kahinu v....................................... 1126
Hawaii; Kantner v...................................... 948
Hawaii State Prison Supt.; Hillen v. . . . . . . . . . . . . . . . . . . . . . 1116
Hawk v. Michigan...................................... 951
Hawkins v. Connecticut.................................. 984
Hawks; Tracy v......................... . ............... 1062
Hay v. Hollis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1130
Hayakawa v. Wong...................................... 1130
Hayden Pub. Co. v. Van Valkenburgh, Nooger & Neville. . . . 875
Haynes; Morton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 868
Haynes; Rhodes v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 856
TABLE OF CASES REPORTED XCV
Page
Hays v. Canale.......................................... 1009
Heard; Marine Sulphur Transport v. . . . . . . . . . . . . . . . . . . . . . 982
Heath v. United States.................................. 846
Hebah v. United States.................................. 870
Hedrick Estate v. Commissioner. . . . . . . . . . . . . . . . . . . . . . . . . . 1024
Heffernan v. Doe....................................... 817
Heindl v. Washington Terminal Co........................ 1113
Heller v. New York...................................... 1021
Helton v. Florida....................................... 859
Heltsley v. Mine Workers................................ 877
Henderson; Alexander v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032
Henderson; Baskerville v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110
Henderson; Broussard v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1128
Henderson; Bully v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 979
Henderson; Cherry v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 895
Henderson v. Favre..................................... 942
Henderson; Floyd v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 977
Henderson v. Georgia.................................... 898
Henderson; Golden v ................................. 861, 1029
Henderson; Hill v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1105
Henderson v. Maroney................................... 1117
Henderson; Mitchelson v................................. 1025
Henderson; Shelton v................................... 977
Henderson; Tollett v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 912, 1004
Hendricks; Boatwright v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Hendry; Masonite Corp. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Henkel v. United States........................... . . . . . . . 859
Henry; Thacker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 988
Hensley v. Municipal Court, San .Jose-Milpitas .Jud. Dist.... 840
Hereden v. United States................................. 1028
Herman; Nachbaur v ................................ 901, 1019
Herrera v. Eyman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 979
Herrera v. New Mexico.................................. 1110
Herrmann v. United States............................... 802
Hersh v. United States................................... 1008
Hessler v. United States................................. 989
Hester v. Brierley....................................... 1112
Heston v. Ohio.......................................... 1038
Heublein, Inc. v. South Carolina Tax Comm'n............... 275
Heyman v. Kline........................................ 847
Hiatt; Smith v......................................... 842
Hibberd v. California............... . . . . . . . . . . . . . . . . . . . . . . 1010
Hieber; Goldsberry v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ill 7
XCVI TABLE OF CASES REPORTED
Page
Higgins v. Illinois............................... . . . . . . . . 855
Hight v. Texas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1071
Hiken v. United States.................................. 842
Hill v. Gauvin ........................................ 918, 1051
Hill v. Henderson....................................... 1105
Hill V. Hill. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
Hill v. Illinois. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 908
Hill v. McKeithen....................................... 943
Hill v. Ohio. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Hill v. Texa.s............................................ 1078
Hill v. United States......... . . . . . . . . . . . . . . . . . . . . . . . . . . . 952
Hillen v. Director, Dept. of Social Service & Housing....... 989
Hillen v. Hawaii State Prison Supt........................ 1116
Hilliard v. California. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 881
Hilliard v. Pennsylvania.................................. 877
Hilliard; Williams v . . . . . . . . . . . . . . . . . . . . . . . . . .. .. . . . . . . . . 1029
Hinds County Democratic Exec. Committee; Muirhead v... 852
Hinojos v. Black........................................ 1126
Hitchcock v. Gomes ................................. 1026, 1119
Hobbs v. Custom Finance Co.... . . . . . . . . . . . . . . . . . . . . . . . . . 847
Hochfelder; McKy v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 880
Hodge; Jacksonville Terminal Co. v....................... 980
Hodges; Fair v ..... .................................. 872,1051
Hodgson v. Arnheim & Neely, Inc ...................... 840, 1102
Hodgson; Frank Irey, Jr., Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . 1070
Hodgson; Frommhagen v................................ 1111
Hodgson; Lance Roofing Co. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1070
Hodgson; Mahoney v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
Hodgson; Mayhue's Super Liquor Stores v............ .... 1108
Hodgson; Square D Co. v................................ 967
Hodgson; Travis-Edwards, Inc. v.......................... 1076
Hoff v. United States.................................... 889
Hohensee v. Scientific Living, Inc ...................... 880, 1051
Holiday v. United States................................. 913
Holland v. Holland. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 849
Holland-America Line v. Foreign Study League............. 1060
Hollis; Hay v.. . .. . . . . . . . . . . .. .. . . . . . . . . .. .. . . . .. .. . . . . 1130
Ho!Jnes v. Laird. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 869
Holmes v. United States.................................. 1002
Holshouser v. Scott. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 807
Homart Development Co. v. Diamond..................... 897
Honeycutt v. North Carolina............................. 1046
Honolulu Rapid Transit v. Public Util. Comm'n of Hawaii.. 875
TABLE OF CASES REPORTED xovn
Page
Hood v. Burnett. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 899
Hood v. Purcell....... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1061
Hoogasian v. Sears, Roebuck & Co........................ 1001
Hoover v. Estelle........................................ 1086
Hoover v. Wyandotte Chemicals Corp..................... 847
Hord v. United States................................... 866
Hospital Television, Inc. v. Wells Television, Inc............ 1024
Hough; Spears v........................................ 878
Houle v. Duvall......................................... 891
Houp v. United States ............................... 1011, 1119
House v. House ...................................... 812, 1118
House v. Smith.......................................... 823
Houser v. Geary........................................ 1113
Housing Authority of Providence; Phillips v. . . . . . . . . . . . . . . . 1094
Howard v. Allen......................................... 908
Howard; Flint v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1078
Howard; Leavitt v...................................... 884
Howard v. Sigler . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 854
Huckabay v. Woodmansee................................ 900
Hudson v. United States................................. 872
Hufftnan v. Beto........................................ 897
Huggins v. Dement...................................... 1071
Hughes v. Maryland.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1025
Hughes Tool Co. v. Trans World Airlines.................. 363
Huie v. United States ................................. 891, 1029
Humble v. United States................................. 1007
Humble Oil & Refining Co. v. Calvert..................... 967
Humphrey v. United States.............................. 854
Hunt v. McNair........................................ 911
Hunter v. Texas........................................ 988
Hunter v. United States ............................... 934, 1104
Hurd v. Bailey. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Hurd v. Slaughter... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 916
Hurst v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Hurt v. Ohio........................................... 991
Hurtado v. United States................................ 841
Hutchinson v. Craven................................... 979
Hutson; Weaver v...................................... 957
Hutter v. Chicago ................................... 1024, 1119
Hutter v. Korzen ..................................... 905, 1049
Hutter v. Tanck. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1106
Hyde v. Nelson.......................................... 1110
Hynson, Westcott & Dunning v. Richardson................ 1105
xcvm TABLE OF CASES REPORTED
Page
Hynson, Westcott & Dunning; Richardson v ............... 1105
Iannelli v. United States................................. 980
Iannotti v. Baker .............. , . . . . . . . . . . . . . . . . . . . . . . . . 890
Idaho Dept. of Highways; Sims v........................ 1037
Ihrke; Northern States Power Co. v...................... 815
Illinois; Adam v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 948
Illinois; Behning v...................................... 858
Illinois; Bombacino v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 912
Illinois; Bridgeforth v................................... 811
Illinois; Caref v . . . . . . . .. .. .. . . . . . . .. .. .. .. . . . . . . . . .. .. . 984
Illinois; Davis v........................................ 811
Illinois; Flournoy v..................................... 857
Illinois; Handley v...................................... 914
Illinois; Harris v . .......................... : . . . . . . . . . . . . 860
Illinois; Higgins v. .. . . . . . . . . . . . . . . .. .. .. .. . . . . . . . . . . .. . 855
Illinois; Hill v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 908
Illinois; Jashunsky v. . . .. . . . . .. . . . . . . . . . . . . .. . . . . . . . . . . . 989
Illinois; Knox v......................................... 1075
Illinois; Manns v....................................... 857
Illinois v. Michigan............... . . . . . . . . . . . . . . . . . . . . . . 36
Illinois; Moore v ..................................... 897,979
Illinois; Prignano v..................................... 851
Illinois v. Raymond. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 885
Illinois; Rettig v. .. .. .. .. . . . . . . . . . . . . .. .. .. . . . . .. . . . . . . . 895
Illinois; Rusch v ........ .• . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 950
Illinois; Sigman v ................... , . . . . . . . . . . . . . . . . . . . 1022
Illinois; Speed v . . . . . . . . . . . . . . . . . . . . .. .. . . . . . . . .. . . . . . . . . 983
Illinois; Telio v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 857
Illinois Dept. of Govt. Affairs v. Lake Shore Co .... 819, 1072, 1103
lllinois Director of Revenue v. Mitchell.................... 982
Illinois State Toll Highway Authority; Bradford Township v. 1047
Illinois Supreme Court Justice; Napolitano v............... 1037
IML SeaTransit; Interstate Com. Comm'n v ......•.•• 1002, 1118
Immigration and Nat. Service; Al-Karagholi v............. 1086
Immigration and Nat. Service; Buchowiecki-Kortkiewicz v. . 858
Immigration and Nat. Service; Padilla-Partida v........... 987
Immigration and Nat. Service; Singh v.................... 847
Indiana; Smith v........................................ 1129
Indiana Employment Security Division v. Burney .... 540,821,946
Indiana Governor v. Communist Party of Indiana......... 806
Indiana Governor; Communist Party of Indiana v. . . . . . . . . . 1235
Indiana Harbor Belt R. Co.; Locomotive Firemen v. . . . . . . . 950
Indiana Supreme Court; Bradley v. . . . . . . . . . . . . . . . . . . . . . . . 1105
TABLE OF CASES REPORTED xmx
Page
India Supply Mission v. The Maru........................ 1115
Industrial Comm'n of Virginia; Dillard v. . . . . . . . . . . . . . . . . . 238
Ingraham v. Florida..................................... 862
Ingram Corp.; Clinton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 990
In re. See name of party.
Insurance Rating Board; Ohio AFL-CIO Autoworkers v.... 917
Intercontinental Industries v. American Stock Exchange..... 842
Internal Revenue Service. See Commissioner; District Director
of Internal Revenue.
International. For labor union, see name of trade.
International Air Transport Assn.; Virginia v. . . . . . . . . . . . . . 817
International Equity Corp.; Pepper & Tanner v............ 1052
International Transport, Inc.; United States v ........ 904, 1049
International Van Lines; Labor Board v.................. 48
Interstate Com. Comm'n; Ace Doran Hauling Co. v. . . . . . . 1070
Interstate Com. Comm'n v. Burlington Northern, Inc...... 891
Interstate Com. Comm'n; C & H Transp. Co. v ....... 904, 1049
Interstate Com. Comm'n v. Gold Kist, Inc................ 808
Interstate Com. Comm'n v. IML SeaTransit ........... 1002, 1118
Interstate Com. Comm'n v. SCRAP...................... 1207
Interstate Com. Comm'n; United States v ........ 904, 1049, 1050
Interstate Com. Comm'n v. Wichita Board of Trade........ 1005
Iowa; Dodson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077
Iowa; Gabrielson v..................................... 912
Iowa; Lynch v.......................................... 1116
Iowa; Nebraska v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285
Iowa Dept. of Social Services; Kelley v. . . . . . . . . . . . . . . . . . . 813
Irey, Jr., Inc. v. Hodgson................................ 1070
Irish Northern Aid Committee v. Attorney General. ...... 823, 1080
Irish Washwoman v. Kentucky....... . . . . . . . . . . . . . . . . . . . . 1031
Iron Ore Transport Co.; · The Flying Foam v. . . . . . . . . . . . . . 1038
Irons v. Commissioner of Patents......................... 1076
Irwin v. Eagle Star Insurance Co . . . . . . . . . . . . . . . . . . . . . . . . . 852
ITT Life Insurance Co.; Disposable Services, Inc. v......... 1023
Jack v. California. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 813
Jackson v. Beto. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 898
Jackson v. Bohlinger... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1043
Jackson v. California .............................. 854,916,948
Jackson v. Connecticut. . . .. . . . . . . . . . . . . . . . . . .. . .. . .. . . .. . 870
Jackson v. Estelle........... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1128
Jackson v. Follette...................................... 1045
Jackson v. Georgia ................................ 902,991, 1122
Jackson; Seaboard Coast Line R. Co. v................... 1001
C TABLE OF CASES REPORTED
Page
Jackson v. Wolford...................... . .. . ............ 1010
Jacksonville Terminal Co. v. Hodge....................... 980
Jacobs v. Pennsylvania................... . ............ . .. 856
Jacobs; Washington v........................... . ... . ... . 895
Jacques v. Louisiana State Bar Assn.................. . .... 877
J. A. Jones Construction Co.; Motteler v................ .. 813
Jalil v. Hampton........................................ 887
James; Board of Education of Addison v................. . 1042
James v. Florida................... . ....... . ....... . .... 985
James v. United States ................ . ............ . . 872, 1086
Janosko v. United States...... .. ....... .. . ... ............ 1111
J ashunsky v. Illinois. . . . . . . .. . . . . . . . .. . . . . . . . . . . . . . . . . . . . 989
Javits v. Assn. of the Bar of New York City............... 980
Jaymac, Inc.; Lew Ron Television, Inc. v. . . . . . . . . . . . . . . . . . 916
Jeannette Rankin Brigade; Chief of Capitol Police v....... 972
Jefferson v. Hackney. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 898
Jefferson Parish School Board v. Dandridge. . .... . . . . . . . . . . 978
Jefferson Parish School Board; Marrero Land Assn. v........ 1106
Jemco, Inc. v. Labor Board. . ... . . . . . . . . . . . . . . . . . . . . . . . . . . 1109
Jenkins v. United States................................. 883
Jerkins v. United States....................... . . . . . . . . . . 987
Jiffy June Farms v. Coleman............................. 948
Jim; United St ates v . . ....... ..... . ...... . ............ 80, 1118
Jim; Utah v .......................................... 80, 1118
John B. White, Inc. v . Commissioner...................... 876
John Nuveen & Co. v. Sanders....... . . . . . . . . . . . . . . . . . . . . 1009
Johns v. Johns................................... . ...... 1022
Johns v. New Jersey....... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1026
Johns; Perini v....... . ............................. . ... 1049
Johnson; Clark v.. . ..... .. ... .. .. . ........ ... ... . ....... 900
Johnson; Connors v ................ . ................ 1009, 1093
Johnson v. Louisiana.............................. . ..... 1085
Johnson v. Maryland .... .... .... . . ....... . ........... 900, 1039
Johnson v. Meacham..................... . .............. 1025
Johnson v. Missouri. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 859
Johnson v. Morton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 887
Johnson v. New York State Education Dept ............... 75
Johnson; Szczytko v... . . . .. ... . . . ... . . . ... ......... . . . . 987
Johnson v. Twomey. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 863
Johnson v. United States ...... . .......... 856, 858, 873,952, 1111
Johnson v. Virginia.. . . .. ............................... 1116
Johnston v. Byrd ....... . . . .... .. . .. ....... .. ........ 847, 1051
Jones v. California....... . .. .... .. . .. .. . . ........... . ... 1115
TABLE OF CASES REPORTED 01
Page
Jones; Evco v.......................................... 91
Jones; Evco Instructional Designs v. . . . . . . . . . . . . . . . . . . . . . 91
Jones v. Field. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 867
Jones; Graham v....................................... 1130
Jones v. Haskins. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 990
Jones v. Missouri. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 986
Jones v. United States .......................... 1010, 1111, 1125
Jones Construction Co.; Motteler v....................... 813
Jordan v. Florida........................................ 866
Jordan; Norris v ..................................... 811, 1029
Jordan v. United States... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1129
Joshua v. Michigan......... . . . . . . . . . . . . . . . . . . . . . . . . . . . . 853
J. Ray McDermott & Co.; Fish Meal Co. v............... 948
J. Ray McDermott & Co. v. The Morning Star. . . . . . . . . . . . 948
Judice v. United States.................................. 886
Judicial Council of the Third Circuit; Nolan v. . . . . . . . . . . . . 822
Kabinto v. United States................................ 842
Kahinu v. Hawaii. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126
Kahn, In re .......................................... 974, 1100
Kansai Iron Works v. Marubeni-Iida, Inc................. 1009
Kansas; Braun v....................................... 991
Kansas; Troy v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 882
Kansas City v. Webb................................... . 851
Kansas City Power & Light Co.; Thompson v.............. 944
Kansas City Southern R. Co. v. United States.............. 1094
Kantner v. Hawaii...................................... 948
Kaplan v. Milliken. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
Karlin v. Avis.......................................... 849
Karr v. Schmidt..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 989
Karst; Regents of the University of California v. . . . . . . . . . . . 849
Kartsonis v. District Unemployment Compensation Board. . . 872
Kasey v. Commissioner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 869
Kasey v. Molybdenum Corp. of America................... 1063
Katz v. Aspinwall. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1000
Katz v. United States................................... 899
Kaufman v. Diversified Industries, Inc. . . . . . . . . . . . . . . . . . . . 1038
Kaye v. United States................................... 863
Keane v. National Democratic Party ...................... 1,816
Keane v. Smith... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1113
Keeble v. United States................................. 1037
Keefer v. United States.................................. 983
Keeny v. Swenson ................................... 1027, 1118
Keever v. United States................................. 1085
TABLE OF CASES REPORTED
Page
Keister v. Froehlke...................................... 894
Kelbach v. Utah........................................ 900
Kell; Michigan National Bank v.......................... 1125
Kelleher; Filtrol Corp. v................................. 1110
Kellems v. Brown....................................... 1099
Keller v. United States............. . . . . . . . . . . . . . . . . . . . . . 1026
Kelley v. Iowa Dept. of Social Services.................... 813
Kellogg Co. v. Labor Board.............................. 850
Kelly; Cutrone v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1099
Kelly; Metropolitan County Board of Nash ville v. . . . . . . . . 1001
Kelly v. United States ........................... 889, 1112, 1127
Kelly's Creek R. Co.; Adkins v. . . . . . . . . . . . . . . . . . . . . . . . . . . 926
Kennecott Copper Corp. v. Utah Tax Comm'n .......... 973, 1093
Kennedy v. Bureau of Narcotics & Dangerous Drugs........ 1115
Kennedy v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 864
Kenosha v. Bruno. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1105
Kenosha County District Attorney; Wilson v ........ . . 1043, 1131
Kentucky; Bartley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1062
Kentucky; Harness v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 844
Kentucky; Minor v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1064
Kentucky; Ohio v ........ . .. .. ....................... 974, 1102
Kentucky; Roaden v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 910
Kentucky; Walker v.................................... 1003
Kentucky ex rel. Div. Unemployment Ins.; Washer One v.. 1031
Kentucky ex rel. Luckett; Louisville & N. R. Co. v........ 949
Kentucky Secretary of State; Pratt v. . . . . . . . . . . . . . . . . . . . . . 943
Kephart v. United States................................ 1048
Keresty v. United States................................ 991
Kerr; Dorado v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
Kerr v. Travelers Insurance Co........................... 986
Kerr Motor Lines v. United States........................ 972
Ketola v. United States........... . . . . . . . . . . . . . . . . . . . . . . . 815
Keyes v. School District No. 1, Denver, Colorado.......... 818
Kheel v. Port of New York Authority............... . ..... 983
Kier v. United States.. . ............... . ................. 950
Kilbourne v. Louisiana.................................. 888
Kile v. United States.................................... . 874
King v. Alabama................................... . .. . . 986
King v. Georgia. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 897
King County Boundary Review Board; Cunningham v. . . . . . 972
Kingman; Schott v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 981
Kingsport; Lay v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 846
Kingston v. McLaughlin. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101
TABLE OF CASES REPORTED CIII
Page
Kirk v. United States ............................... . .. 856,987
Kirkpatrick v. Wisconsin Dept. of Natural Resources........ 846
Kirstel v. Maryland............... .. .................... 943
Kisley v. Falls Church................................... 907
Kleindienst; Briscoe v. . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 808
Kleindienst; Hanly v . . • . . . . . . . • . . • . . . . . . . . .. . .. . . . . . • • . . 990
Kleindienst; Powers v. . . . . . .. . .. . . . . . . . .. . . . .. . . . . . . . . . . 967
Kleve v. Retail Credit Co................................. 877
Klier v. Wainwright..................................... 1129
Kline; Heyman v.......................... . ............ 847
Kline; VI and is v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1036
Knapp; McFarland v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 850
Knapp v. Miami Memorial Park. . . . . . . . . . . . . . . . . . . . . . . . . . 849
Knight, In re. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 802
Knight v. United State;;. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 869
Knoll v. Phoenix Steel Corp.............................. 1126
Knox v. Illinois... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075
Knox v. United States ................................ 845, 1010
Knudsen v. Pennsylvania. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 866
Kochel v. Maryland .................................. 909, 1046
~ochel v. McKeldin . . . . . .. . . . . . . . . . . . . .. .. . . . . . . .. . .. . . . 1128
Kohn v. American Metal Climax, Inc......... . .. . ......... 874
Kohn; Roan Selection Trust Ltd. v........... ............ 874
Kokas v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1107
Koloski; Lotz v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1042
Komes v. California... . ....................... . .... . .... 979
Konigsberg, In re...................... . .... . .. . ......... 974
Koppers Co. v. Rodes...................... . ............ 893
Korczak v. Colorado Dept. of Labor and Employment ....... 860
Korman; United States v...................... . ........ . 897
Korzen; Hutter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 905, 1049
Kosher v. Washington State Bar Assn. ........ . ........... 852
Kosofsky; Otto v.................. ....... .. ... ..... .... 912
Kotrlik v. United States... . .............................. 1043
Kras; United States v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 434
Kraude v. United States..................... . ........... 1076
Krause v. Ohio....... . ............ . .................... 1052
Kresse v. Butz.. . ............. ... .. .. .... ... .. .. ...... . . 933
Krikmanis v. Montgomery...................... . ......... 867
Krikmanis v. White....... . .... .. ..... . ...... ... .... . .... 900
Krivda; California v. . . .. .. . . . . .. .. .. . . . . . . . . . . .. . 33, 819, 1068
Kropke v. United States........ . . . ...................... 914
Kruchten v. Eyman........................ . ............. 897
CIV TABLE OF CASES REPORTED
Page
Kunz v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 914
Kunzig; Barrett v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 914
Kurtzman; Lemon v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 976
Kwitek v. United States................................. 1079
Kwitek v. Wisconsin.................................... 1047
Ky1e v. United States ................................ 1043, 1117
Kysor Industrial Corp.; Pet, Inc. v....................... 980
LaBadie v. Michigan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
Labor Board v. AFI.CIO Negotiating Committee.......... 1059
Labor Board v. Boeing Co............................... 1074
Labor Board; Boeing Co. v.. .. .. . .. .. . .. .. . .. . . .. .. . . . .. 1075
Labor Board; Booster Lodge No. 405 v................... 1074
Labor Board; Boyer Bros., Inc. v......................... 878
Labor Board; Bridge & Iron Workers v.................... 1108
Labor Board; Buffalo Cab Co. v. . . . . . . . . . . . . . . . . . . . . . . . . . 949
Labor Board v. Burns International Security Services. . . . . . 818
Labor Board; Burns International Security Services v. . . . . . 818
Labor Board; Cast Optics Corp. v........................ 850
Labor Board; Curtis v. .. .. .. .. .. .. . . . . .. . . .. .. . . . . . . . .. 867
Labor Board; East Texas Steel Castings Co. v. . . . . . . . . . . . . 852
Labor Board; Florida Machine & Foundry Co. v. . . . . . . . . . . 846
Labor Board; Hart v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 844
Labor Board v. International Van Lines................... 48
Labor Board; Jemco, Inc. v.............................. 1109
Labor Board; Kellogg Co. v............................. 850
Labor Board; Landis Tool Co. v.......................... 915
Labor Board; Litton Industries v......................... 915
Labor Board; Machinists v.. .. .. .. . . . . .. .. . . .. .. .. .. .. .. 107 4
Labor Board v. May Dept. Stores Co. . . . . . . . . . . . . . . . . . . . . . 888
Labor Board ; M. J. Pirolli & Sons v. . . . . . . . . . . . . . . . . . . . . . 1008
Labor Board; Pacific Maritime Assn. v. . . . . . . . . . . . . . . . . . . . 852
Labor Board; Peltzman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 887, 1050
Labor Board; Plastiline, Inc. v.. .. .. . .. .. . .. .. .. .. .. .. . . . 844
Labor Board; San Diego Cabinets v. .. . . .. . . .. . . .. . . .. . . . . 844
Labor Board; San Francisco Newspaper Printing Co. v. . . . . 1008
Labor Board v. Tamiment, Inc........................... 1012
Labor Board; Terminal Freight Cooperative v. . . . . . . . . . . . . 1063
Labor Board; Texaco Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
Labor Board v. Textile Workers.......................... 213
Labor Board; W.R. Bean & Son v........................ 849
Lacaze v. United States.................................. 921
Lacob v. United States.................................. 842
Laird; American Civil Liberties Union v. . . . . . . . . . . . . . . . . . 1116
TABLE OF CASES REPORTED CV
Page
Laird v. Anderson....................................... 1076
Laird; Frontiero v ................. .................. 840, 1123
Laird; Holmes v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 869
Laird; Mathis v... .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 871
Laird v. Nelms......................... . . . . . . . . . . . . . . . . 902
Laird ; Schlesinger v. . . . . .. . . . . . . . . .. .. . . . . . . . . . . . . . . . . . . 1056
Laird v. Spock.......................................... 971
Laird v. Tatum ....................................... 824,901
Lai tram Corp.; Deepsouth Packing Co. v. . . . . . . . . . . . . . . . . . 902
Lake Shore Auto Parts Co.; Lehnhausen v .......... 819, 1072, 1103
Lamb Enterprises, Inc. v. Toledo Blade Co................ 1001
Lambros; Steele v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1005
Lamonge v. United States................................ 863
Lancaster v. New York.................................. 1110
Lance Roofing Co. v. Hodgson............................ 1070
Landegger; Stephenson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
Landerman v. Commissioner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 903
Landis Tool Co. v. Labor Board.......................... 915
Lane v. United States ................................. 876,952
Lara v. Harris. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 862
Lara v. Texas.......................................... 871
La Raza Unida; California Highway Comm'n v............ 890
Larsen v. Air California .............................. 895, 1051
LaRue; California v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109, 818
Lasch v. Richardson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 889
Lash; Wilson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 881
Laswell v. United States................................. 1112
Lathrop v. United States................................ 873
Latin America/Pac. Coast Conf. v. Fed. Maritime Comm'n. . 967
Lauchli v. United States..... . . . . . . . . . . . . . . . . . . . . . . . . . . . 869
Lauria v. United States.................................. 1023
La Vallee; Birch v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 4
La Vallee v. Fitzgerald................................... 885
La vine v. Shirley. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1052
Lawless v. Maryland.................................... 855
Lawrence Chrysler Plymouth v. Chrysler Corp............. 981
Lay v. Kingsport. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 846
Lazard Freres & Co. v. Rosenfeld. . . . . . . . . . . . . . . . . . . . . . . . . 802
Leal v. United States.................................... 889
Leano v. United States.................................. 889
Leary, In re............................................ 814
Leavitt v. Howard...................................... 884
Leavitt v. United States................................. 1006
CVI TABLE OF CASES REPORTED
Page
LeBlanc v. Southern Bell Telephone & Telegraph Co........ 990
Lehman v. United States................................. 950
Lebowitz; Forbes Leasing & Finance Corp. v. . . . . . . . . . . . 843, 1049
LeBrun v. Cupp ..................................... 868, 1027
LeBrun v. Oregon..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010
Lecon Properties, Inc.; Anderson v. . . . . . . . . . . . . . . . . . . . . . . 879
Ledes v. New York..................................... 1108
Lee v. Georgia.......................................... 897
Lee v. Texas............................................ 1046
Lee v. United States..................................... 951
Leeke; Richburg v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1059
Lefkowitz v. Weiss....................................... 876
LeFlore v. Alabama ex rel. Moore......................... 1007
Leftwich v. United States................................ 1127
Legari v. United States................................... 982
Lego v. Twomey........................................ 1062
Lehman v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 967
Lehnhausen v. Lake Shore Auto Parts Co .......... 819, 1072, 1103
Lehrman; Gulf Oil Corp. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077
Lemon v. Kurtzman. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 976
Leroy v. Ohio. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1085
Leskiw v. Electrical Workers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1041
Letter Carriers; Civil Service Comm'n v. . . . . . . . . . . . . . . . . . . 1058
Letter Carriers v. Postal Employees.... . . . . . . . . . . . . . . . . . . . 808
Levine v. Long Island R. Co............................. 1040
Levine v. United States...................... . ........... 848
Levitt v. Committee for Public Ed. & Religious Liberty. . . . 977
Levy v. U. S. Court of Appeals........................... 823
Levy v. U. S. District Court.............................. 899
Lewis v. California...................................... 866
Lewis v. Mancusi....................................... 1045
Lewis v. North Carolina................................. 1046
Lewis v. Ohio........................................... 868
Lewis v. Strachan Shipping Co ......................... 887, 1002
Lewis v. United States .................................. 856,921
Lewis-Gale Hospital; Doss v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
LewRon Television, Inc. v. Jaymac, Inc..... . .. . ...... . .... 916
LewRon Television, Inc. v. United Network, Inc............ 916
L. Goldstein's Sons v. Trio Process Corp................... 997
Liberty Amendment Committee v. United States........... 1076
License Branch, Real Estate Comm'n of D. C.; Gay v ... 1024, 1131
Lightenburger v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . 983
Lii v. Sida of Hawaii, Inc................................. 903
TABLE OF CASES REPORTED CVII
Page
Lilliston Implement Co.; Long Mfg. Co. v................. 874
Linbeck Construction Corp.; Carpenters v. . . . . . . . . . . . . . . . . 1077
Lincoln v. United States................................. 952
Linde ; Pennsylvania v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Lines v. United States................................... 986
Lingham v. Commissioner............................... 1129
Linwood v. Board of Education of Peoria.................. 1027
Li pow; Maras v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 985
Lipscomb v. United States............................... 901
Lipscomb v. U.S. Board of Parole........................ 861
Lipscomb v. Warden..................................... 901
Little Lake Misere Litnd Co.; United States v.............. 840
Littleton; Berbling v. . . . . . . . . . . . . . . . . . . .. . . .. . . . . . . . . . . . 1053
Litton Business Systems v. Machinists..................... 879
Litton Industries v. Labor Board.......................... 915
Llerena v. United States................................. 878
Lloyd v. Third Judicial District Court for Salt Lake County. 907
Lobon v. Government of the Canal Zone................... 864
Local. For labor union, see name of trade.
Locaynia; American Airlines v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 982
Lockheed Air Terminal; Burbank v ................ 840, 1073, 1104
Locomotive Firemen v. Indiana Harbor Belt R. Co......... 950
Lodge. For labor union, see name of trade.
Loeser v. Loeser. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
LoFrisco v. Schaffer. . . . . . . .. . . . . . . . . . . . .. . . . . . . . . . .. . . . . . 972
Logue v. United States................................... 1106
Lomayaktewa v. Corcoran................................ 843
Lombardozzi v. United States............................ 1108
Long v. Alldredge. . . . .. . .. . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . 882
Long Island R. Co.; Levine v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1040
Long Mfg. Co. v. Lilliston Implement Co.................. 874
Longshoremen; North Carolina Ports Authority v. . . . . . . . . . 982
Longshoremen v. United States........................... 1007
Lonquest v. Wyoming. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
Loop Carry Out; Cook v................................ 1071
Lopez v. United States ............................ 862,866,985
Lopez; Zelker v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1049
Los Angeles County; Gerace v. . . . . . . . . . . . . .. . . . . . . . . . . .. 1012
Los Angeles County District Attorney v. Cinema Classics... 807
Los Angeles County Superior Court; Davis v. . . . . . . . . . . . . . . 913
Los Angeles Police Comm'rs; Sunset Amusement Co. v. . . . . . 1121
Los Angeles School District; Wocher v ................ 1042, 1131
Lott v. New York....................................... 1115
CVIII TABLE OF CASES REPORTED
Page
Lotz v. Koloski. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1042
Louisiana; Anderson v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Louisiana; Bastion v. . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . 888
Louisiana; Coleman v. . .. .. .. .. . . . . . . . . . . . . . .. . . . . . . . .. . . 811
Louisiana; Dotson v..................................... 913
Louisiana; Johnson v.................................... 1085
Louisiana; Kilbourne v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 888
Louisiana; Sinclair v. . .. . . . . . . . . . . .. . . . . . . . . . . .. . .. . . . . . 950
Louisiana; Texas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 816
Louisiana; United States v .............................. 17,909
Louisiana; Williams v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1078
Louisiana Boundary Case ............................... 17,909
Louisiana Governor; Davis v.. .. . . .. .. . . . . . .. .. .. .. .. . .. . 1098
Louisiana Governor; Fontham v. . . . . . . . . . . . . . . . . . . . . . . . . . 1120
Louisiana Governor; Hill v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 943
Louisiana Governor; Wells v............................. 1095
Louisiana State Bar Assn.; Jacques v..................... 877
Louisville & N. R. Co. v. Kentucky ex rel. Luckett.......... 949
Louisville & N. R. Co. v. Rodes ....................... 893, 1029
Love; Fitzharris v....................................... 1100
Love v. United States..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 851
Lovingood v. Ross...................................... 913
Lowenthal v. Tcherepnin................................. 1038
Lowry v. United States ........................... 874,887, 1050
Lowther v. United States................................ 857
Loyal Order of Moose v. Pa. Human Relations Comm'n..... 1052
Luallen v. Neil . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 857
Lucas v. Ohio......... ... ............................... 871
Lucas v. Wisconsin Electric Power Co...................... 1114
Lucas v. Wyoming....................................... 1123
Lucchetti v. United States............................... 987
Lucerne Products; Skil Corp. v. . . . . . . . . . . . . . . . . . . . . . . . . . . 876
Luckett; Louisville & N. R. Co. v........................ 949
Luther v. Alabama. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 877
Luttrell v. United States................................. 1041
Lykes Bros. Steamship Co.; Byrd v. . . . . . . . . . . . . . . . . . . . . . . 890
Lykes Bros. Steamship Co.; Chagois v. . . . . . . . . . . . . . . . . . . . 1012
Lynch v. Iowa.......................................... 1116
Lynch; Wimberley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 882, 1019
Mabey v. Reagan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1130
Machado v. United States................................ 860
Machinists v. Labor Board............................... 1074
Machinists; Litton Business Systems v. . . . . . . . . . . . . . . . . . . . 879
TABLE OF CASES REPORTED CIX
Page
Machinists v. Northeast Airlines.......................... 845
Macklin; Gilson v....................................... 1129
MacLeod, In re......................................... 979
MacLeod v. Slayton .................................. 853, 1002
Mader v. Armel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
Madison v. United States................................ 859
MaGee v. Nelson........................................ 1079
Ma Gee v. Superior Court of San Francisco. . . . . . . . . . . . . 1036, 1078
Mahin v. Mitchell....................................... 982
Mahoney v. Hodgson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
Mahoney v. Maryland................................... 978
Maine; Stone v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 908
Mallard v. Oklahoma.................................... 912
Mallory v. United States................................. 870
Maltina Corp.; Cawy Bottling Co. v. . . . . . . . . . . . . . . . . . . . . . 1060
Mammoth Life & Accident Insurance Co.; Robinson v. . . . . . 872
Mancusi; Carter v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
Mancusi; Lewis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Mancusi; Martinez v ................................. 959, 1050
Mancusi; Paturso v..................................... 916
Mandel; Auerbach v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 808
Manfredonia v. United States............................ 851
Manns; Allman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1053
Manns v. Illinois....... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 857
Manor v. Georgia... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 897
Mansour v. New Jersey.................................. 866
Manufacturers Light & Heat Co.; Dunk v. . . . . . . . . . . . . . . . 1078
Manufacturers National Bank of Detroit v. Harris........ 885
Mara; United States v.................................. 976
Maraman v. Hardister. . . . . . . . . .. . . . . . . . . . . . . .. . . . . . . . . . . 1107
Maras v. Lipow......................................... 985
Marasovich; United States v ..... :. . . . . . . .. .. . . .. . . . . . . . . 976
Marchetti v. United States ............................ 823, 1063
Marcovich v. United States.............................. 933
Marcus v. New York ................................ 1027, 1119
Marine Sulphur Transport v. Heard...................... 982
Marine Sulphur Transport; United States Fire Ins. Co. v.... 982
Markle v. Abele ................................. 908, 1021, 1073
Markoff v. New York Life Insurance Co.................. 1064
Maroney; Henderson v.................................. 1117
Marrero Land & Imp. Assn. v. Jefferson Parish School Bd.... 1106
Marsh v. Curry......................................... 1042
Martin; Bisno v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 990
ex TABLE OF CASES REPORTED
Page
Martin v. New Orleans.................................. 944
Martin v. Texas........................................ 1021
Martin v. United States ............. 864,870,871,878, 1043, 1093
Martin v. Wisconsin. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 986
Martinez; Egbert v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1093
Martinez v. Mancusi ................................. 959, 1050
Martinez v. Texas Board of Medical Examiners............ 1020
Martinez-Frausto v. United States........................ 815
Martinez-Villanueva v. United States.................... .. 915
Martino v. United States................................. 1116
Marubeni-Iida, Inc.; Kansai Iron Works v. . . . . . . . . . . . . . . . 1009
Maru, The; Director General, India Supply Mission v...... 1115
Maryland; Arrington v................................... 901
Maryland; Bartholomey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901
Maryland; Collins v. . . . . . . .. . .. . .. . . . . .. . .. . . . . .. . . . .. . . 882
Maryland ; Fletcher v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
Maryland; Gilmore v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901
Maryland; Hughes v... .. .... .. . . .. .. ........ ........ .. . 1025
Maryland; Johnson v ................................ 900, 1039
Maryland; Kirstel v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 943
Maryland; Kochel v . . . .. . . . . . . .. .. . . . . .. . . . . . . . . . . . . . 909, 1046
Maryland; Lawless v.................................... 855
Maryland; Mahoney v................................... 978
Maryland; Miller v..................................... 900
Maryland; Mills v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1042
Maryland; Pea per v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 987
Maryland; Raimondi v............. . .................... 948
Maryland; Richards v. .. . . .. . . . . . . . . . . . . . . . . . . . . . . . .. . . . 1062
Maryland; Scott v................................. . ..... 850
Maryland ; Stock v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Maryland; Strong v. . . . . . . . .. . . . . . . . . . . .. . .. .. . . . . . . . . . . 901
Maryland; Tillman v.................................... 812
Maryland Governor; Auerbach v. . . . . . . . . . . . . . . . . . . . . . . . . . 808
Maryland Governor; Potomac Sand & Gravel Co. v........ 1040
Maryland Governor; Russek v. .. . . .. .. . . . . . . . . . . . . .. . . .. . 1111
Maselli v. California..................................... 891
Mason; Oklahoma v. . . . . . . . . . . . . . . . . .. . . . . .. .. . . . . .. . . . . 1124
Mason; United States v.................................. 1124
Masonite Corp. v. Hendry. . . . . .. .. . . . . .. . . .. . . . . .. .. . .. . 1023
Massachusetts; Gauthier v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 869
Massachusetts; Richardson v. . . . . .. . . . . . . . . . .. . . . . . . . . . . . 884
Massachusetts Governor; Simon v. . . . . . . . . . . . . . . . . . . . . . . . 1020
Massachusetts Supreme Judicial Court; Campo Corp. v. . . . 1024
TABLE OF CASES REPORTED CXl
Page
Massimo v. United States................................ 1117
Masters v. Harris........................................ 871
Masters, Mates & Pilots; Port of Houston Authority v. . . . . . 894
Mastrotataro v. United States............................ 898
Mather v. United States................................. 1085
Mathers v. Rhay. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 861
Mathews v. United States................................ 896
Mathis; Caldwell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 989
Mathis v. Laird. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 871
Matthews v. Florida-Vanderbilt Development Corp......... 861
Matthews v. Smith...................................... 1110
Matthews v. Texas...................................... 899
Mattz v. Arnett ...................................... 819, 1124
Matzen; Cities Service Oil Co. v.......................... 903
Matzen; Mobil Oil Corp. v............................... 902
Mauchlin v. United States................................ 995
May v. Davis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077
May Dept. Stores Co.; Labor Board v. . . . . . . . . . . . . . . . . . . . . 888
Mayes v. Ellis.......................................... 943
Mayhue's Super Liquor Stores v. Hodgson.................. 1108
Maylin; Adams v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
Mayor of Baltimore v. Silver.... . . . . . . . . . . . . . . . . . . . . . . . . . 810
Mayor of Boston; Krikmanis v. . . . . . . . . . . . . . . . . . . . . . . . . . . 900
Mays v. Pennsylvania....... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 855
McAlevey; Rockland County Builders Assn. v. . . . . . . . . . . . . . 1003
McBride v. United States................................ 1027
McBride v. Virginia..................................... 978
McCarthy; Amos v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 853
McCarthy; Daly v...................................... 1041
McCarthy; Gardner v.. . .. . . . ........................... 1110
McClain; Chacon v..................................... 1011
McClanahan v. Arizona Tax Comm'n...................... 820
McClard v. United States............................... . 988
McClellan ; Georges v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1120
McClenan v. California......................... . .... . .. . 1047
McClure v. Salvation Army ........................... 896, 1050
McCorkle; Robinson v . .......................... . .. 1042, 1051
McCoy v. Egeler. . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . 1113
McCrary v. Wainwright................................. 1005
McCray v. United States... .. .. . ... .. ... . ..... . .......... 865
McCray v . Warden...................................... 1112
McDaniel; Carroll v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1106
McDaniel v. Colorado.................... . .............. 1060
CXII TABLE OF CASES REPORTED
Page
McDaniel; Seaboard Coast Line R. Co. v.................. 893
McDermott & Co.; Fish Meal Co. v....................... 948
McDermott & Co. v. The Morning Star. . . . . . . . . . . . . . . . . . . 948
McDonald v. Metro Traffic & Parking Comm'n............ 1117
McDonnell v. Unired States.............................. 860
McDonnell Douglas Corp. v. Green....................... 1036
McEachern v. United States............................. 1043
McFarland v. Knapp.................................... 850
McGee v. United States.................................. 989
McGhee v. Wolff... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
McGinnis v. Royster..................................... 910
McGowan v. Mississippi. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
Mclnnis v. California.................................... 1061
McIntyre v. North Carolina.............................. 888
McKee v. United States .............................. 899, 1019
McKeithen; Hill v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 943
M cKeldin; Kochel v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1128
McKenzie v. Texas....................................... 898
McKinney v. Birmingham................................ 895
McKy v. Hochfelder....... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 880
McKy v. Union Bank & Trust Co. of Helena............... 1041
McLain v. Estelle........................................ 979
McLamore v. South Carolina............................. 934
McLaughlin; Kingston v................................. 1101
McLean Trucking Co. v. Forsyth County.................. 1099
McLean Trucking Co. v. United States.................... 1121
l\1cMann v. Wright...................................... 885
McMillan; Doe v .................................... 977, 1036
McMullen v. United States............................... 1078
McNair; Hunt v........................................ 911
McNamara; Cox v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 882
McQuade Tours v. Consolidated Air Tour Committee....... 1109
McQueen v. United States................................ 857
Meacham; Blankenship v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
Meacham; Johnson v. . . . . . . . . . . . . .. .. . . . . . . . . . . . . . . . . . . . 1025
Meacham; Reardon v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Means v. California...................................... 1114
Medicenters of America; Charles C. Wilson, Inc. v......... 1039
Medina v. Smith........................................ 1111
Medina v. United States .......................... 855,873, 1029
Mefford v. Warden...................................... 900
Mehrtens v. Protective Com., TMT Trailer Ferry........... 849
Melancon; Beech v...................................... 1114
TABLE OF CASES REPORTED CXIII
Page
Melancon v. United States............................... 1038
Memphis; West Tennessee ACLU v....................... 879
Memphis Light & Gas v. Federal Power Comm'n.......... 941
Memphis Light & Gas; Federal Power Comm'n v. . . . . . . . . . 1037
Memphis Light & Gas; Texas Gas Transmission Corp. v. . . . 1037
Mendez-Ruiz v. United States............................ 1117
Mercury Federal Savings & Loan Assn.; Nieder v. . . . . . . . . . 812
Merrick v. United States................................ 1023
Merrill Lynch, Pierce, Fenner & Smith v. Ware............ 1005
Mesa Verde Co. v. Bd. of Comm'rs of Montezuma County. . 810
Metropolitan County Board of Nashville v. Kelly.......... 1001
Metropolitan Dade County; Bearden v. . . . . . . . . . . . . . . . . . . 1052
Metropolitan Government of Nashville v. Rodes........... 893
Metropolitan Life Insurance Co.; Trafficante v . .......... 205,976
Metro Traffic & Parking Comm'n; McDonald v............ 1117
Meyer; Austin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1123
Meyer v. Oklahoma City. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 980
Meyer v. Weil. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1060
Meyers; Pattani v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 807
Miami Beach; Baskin v.................................. 1115
Miami Memorial Park; Knapp v. . . . . . . . . . . . . . . . . . . . . . . . . 849
Miami Police Benevolent Assn. v. Adams.................. 843
Michael v. Gomes....................................... 1041
Michaud v. United States................................ 876
Michigan; Hawk v...................................... 951
Michigan; Illinois v. . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . 36
Michigan; Joshua v..................................... 853
Michigan; LaBadie v.................................... 1009
Michigan v. Payne...................................... 911
Michigan; Platsis v...................................... 1114
Michigan Governor v. Bradley. . . . . . . . . . . . . . . . . . . . . . . . . . . . 844
Michigan National Bank v. Kell.......................... 1125
Michigan National Bank v. Superior Court of California..... 1125
Middlebrooks v. United States............................ 848
Middlefield; Akron v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 950
Middleton v. United States.............................. 863
Midwest Video Corp.; United States v. . . . . . . . . . . . . . . . . . . . 898
Milder v. United States.................................. 851
Miller v. Board of Law Examiners of Tennessee............ 1126
Miller; Fhagen v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 845
Miller v. Georgia....................................... 898
Miller v. Maryland...................................... 900
Miller v. Oklahoma..................................... 888
CXIV TABLE OF CASES REPORTED
Page
Miller v. Slayton........................................ 1007
Miller v. United States ................................ 881,981
Miller; West v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 966
Milliken v. Bradley. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 844
Milliken; Kaplan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
Mills v. Maryland....................................... 1042
Milnarik v. M-S Commodities, Inc........................ 887
Milstead v. California.................................... 1114
Milwaukee County Dept. of Public Welfare; Schroud v...... 842
Mims v. Yarborough.................................... 1041
Miner v. Tennessee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1113
Mine Workers; Bethlehem Mines Corp. v.................. 844
Mine Workers; Heltsley v. . .. . .. . . . . . . . . . . . . . . . . . . . . . . . . 877
Mine Workers v. Yablonski.............................. 1104
Ming v. United States ................................ 915, 1051
Minnesota Comm'r of Administration; Essling v. . . . . . . . . . . . 950
Minor v. Cupp.......................................... 1113
Minor v. Kentucky...................................... 1064
Miranda v. United States................................ 874
Mississippi; Davis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 855
Mississippi; McGowan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
Mississippi; Pooley v.................................... 899
Mississippi; Spears v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1106
Mississippi; Strode v............. . . . . . . . . . . . . . . . . . . . . . . . 1055
Mississippi; Wolfe v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1042
Mississippi Tax Comm'n; United States v................ 1005
Missouri; Crawford v ................... : ............ 811, 1051
Missouri; Hammonds v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 865
Missouri; Johnson v.................................... 859
Missouri; Jones v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 986
Missouri; Ralls v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 853
Missouri; Snipes v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 979
Missouri Dept. of Public Health; Employees v .......... 821, 1103
Missouri Pacific R. Co. v. United States... . . . . . . . . . . . . . . . . . 1094
Missouri Pacific R. Co. v. William A. Smith Co............. 1107
Mitchell; Mahin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 982
Mitchell v. Nelson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 872
Mitchell v. United States................................ 866
Mitchelson v. Henderson................................. 1025
Mitman v. United States................................. 863
M. J. Pirolli & Sons v. Labor Board..... . ................. 1008
Mobil Oil Corp.; Federal Power Comm'n v. . . . . . . . . . . . . . . . 903
Mobil Oil Corp. v. Matzen............................... 902
TABLE OF CASES REPORTED CXV
Page
Modla v. Southside Hospital............................. 1038
Mojar v. Signorelli............... . . . . . . . . . . . . . . . . . . . . . . . 981
Molybdenum Corp. of America; Kasey v. . . . . . . . . . . . . . . . . . 1063
Monje v. United States.................................. 1010
Monroe v. Cussen..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 846
Monroe County; Sweeney v. .. . . . . . . .. .. .. .. .. . . .. . . . . .. . 912
Monroe Lodge No. 770; Litton Business Systems v. . . . . . . . . 879
Monroeville; Ward v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Monsanto Co. v. Rohm & Haas Co........... . . . . .. . . .. . . . 899
Montano v. United States................................ 1009
Montanye; Stevenson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 860
Montezuma County Bd. of Comm'rs; Mesa Verde Co. v.... 810
Montgomery; Krikmanis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 867
Montgomery Book Mart v. Crosland..................... 950
Montgomery Estate v. Commissioner. . . . . . . . . . . . . . . . . . . . . . 849
Moon v. Slayton. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077
Moor v. Alameda County... . . . . . . . . . . .. . .. . . . . . .. .. . .. .. 841
Moore v. Carson-Tahoe Hospital Board of Trustees........ 879
Moore v. Haugh........................................ 809
Moore v. Illinois. .. . .. . . . . . . .. . .. . .. . . . . . . . .. . . . .. .. . . 897, 979
Moore; LeFlore v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Moore v. United States .................. 872,899,985, 1108, 1111
Moose Lodge v. Pennsylvania Human Relations Comm'n... 1052
Morales v. Texas........................................ 898
Moran v. Tuition Plan of New Hampshire ............. 872, 1050
Moran v. United States.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 857
Moreno; Department of Agriculture v. . . . . . . . . . . . . . . . . . . . 1036
Morgan v. Bornemeier................................... 1075
Morgan; Gilligan v ................................... 947, 1122
Moritt v. Rockefeller. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Morland v. United States................................ 866
Morningstar v. United States............................. 896
Morning Star, The; J. Ray McDermott & Co. v........... 948
Moron; Bertram Yacht Sales v........................... 851
Morris v. Richardson.................................... 841
Morris; Richardson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 464
Morris v. United States.................................. 985
Morrow v. United States................................. 873
Morton, In re........................................... 816
Morton v. Haynes....................................... 868
Morton; Johnson v...................................... 887
Morton v. United States................................. 1058
Morton v. Wyoming..................................... 1022
CXVI TABLE OF CASES REPORTED
Page
Morton International, Inc. v. Southern Pac. Transp. Co..... 934
Moseley; Evans v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 889
Moses; Washington Parish School Board v................ 1013
Mothers' & Children's Rights Organization; Sterrett v. . . . . . 809
Mott v. United States................................ ... 1108
Motteler v. J. A. Jones Construction Co................... 813
Mottram; Murch v ................................... 41, 1119
Mourning v. Family Publications Service ................. 819,975
Moveable Offshore, Inc. v. Hall........................... 850
M-S Commodities, Inc.; Milnarik v....................... 887
Muirhead v. Hinds County Democratic Executive Committee. 852
Muirhead v. Spann. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 851
Muncaster v. United States....... . . . . . . . . . . . . . . . . . . . . . . . 1105
Munchak v. United States................................ 915
Municipal Court for Sacramento; California v............. 1109
Municipal Court, Los Angeles Jud. District; Ree v. . . . . . . . . 878
Municipal Court, San Diego Jud. District; Anderson v..... 812
Municipal Court, San Jose-Milpitas Jud. Dist.; Hensley v.. 840
Munns v. United States.................................. 871
Murch v. Mottram .................................... 41, 1119
Murdock v. United States................................ 1044
Murphy; Cupp v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1036
Murphy v. United States................................. 914
Murray v. Cincinnati ................................. 855, 1050
Murray; Non-Resident Taxpayers Assn. of Pa. & N. J. v... 817
Murray v. Owens....................................... 1117
Muse v. North Carolina. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 898
Myers v. Pinnock....................................... 1068
Myers v. Washington.................................... 1061
Mylius; Watts v.............. .. . . . . . . . . . . . . .. . . . .. . .. . . 898
N. A. A. Employees Federal Credit Union; Stafford v....... 1079
Nachbaur v. Herman ................................. 901, 1019
Nacirema Operating Co. v. Oosting........................ 980
N ammack v. Commissioner. . . . . .. . . . . .. . . . . . . . .. . . . . . .. . . 991
Napolitano v. Ward..................................... 1037
Nash v. Amerada Hess Corp.............................. 900
Nash v. Texas ....................................... 887, 1050
Nashville v. Rodes....................................... 893
National Alliance of Postal Employees; Letter Carriers v. . . 808
National American Bank of New Orleans v. United States.. 980
NAACP v. New York................................... 978
National Assn. of Letter Carriers; Civil Serv. Comm'n v.... 1058
National Assn. of Letter Carriers v. Postal Employees...... 808
TABLE OF CASES REPORTED CXVII
Page
National Assn. of Securities Dealers v. Harwell. . . . . . . . . . . . . 876
National Casualty Co.; Durst v ....................... 967, 1068
National Democratic Party; Keane v. . . . . . . . . . . . . . . . . . . . . 1, 816
National Director of Selective Service; Sandler v. . . . . . . . . . . 990
National Labor Relations Board. See Labor Board.
National Motor Freight Traffic Assn. v. United States...... 1094
National Small Shipments Traffic Conf. v. Ringsby Lines.... 943
National Surety Corp. v. United States................... 846
Nationwide Mutual Ins. Co.; Bernstein v.................. 812
Navajo Tribe of Indians; Ute Mt. Tribe of Indians v...... 809
Navallez v. United States................................ 1025
Neaher; Davis v........................................ ll05
Nease v. United States.................................. 873
Nebraska; Bittner v.................................... 875
Nebraska v. Iowa....................................... 285
Nebraska; Rhodes v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1131
Nebraska Board of Ed. v. School Dist. of Hartington...... 921
Nebraska State R. Comm'n; Seward Motor Freight v...... 1028
Neely v. Field ....................................... 871, 1050
Negron, In re......................................... . . 1052
Negron v. Agnew....................................... 901
Neil v. Biggers..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
Neil; Luallen v................. . ....................... 857
Neil v. Phillips......................................... 884
Neil; Robinson v ................................... . 505, 1035
Neil v. Venable......................................... 1079
Nelms; Laird v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902
Nelson; Baker v...................... . ................. 810
Nelson v. Butler ..................................... 869, 1019
Nelson v. Duncan............... .. ...... . ....... . ....... 894
Nelson ; Duncan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 894
Nelson; Grantham v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010
Nelson; Hyde v......................................... 1110
Nelson; MaGee v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079
Nelson; Mitchell v.... ... ........ . ............ . .. . .. .. . . 872
Nelson; New Hampshire Bankers Assn. v.. . ............... 1001
Nelson; Reilly v... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1114
Nelson, Szijarto v.................................. . .... 1073
Nelson ; Thomas v . . . . • . • . • . . • • • . . • . . . . • . . • . . • • . . . . . . . . . 987
Nelson; Westermann v... . . . ......... . .. ... ............. 1236
Nelson v. Zelker. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Neuman; Plaquemine Equipment & Machine Co. v. . .. . ... . 914
Newark Insurance Co.; Rafter v. . . . . . . . . . . . . . . . . . . . . . . . . . 972
CXVIII TABLE OF CASES REPORTED
Page
Newbern v. Alabama ................................. 813, 1050
Newell v. Bohannon .................................. 823, 1002
Newell v. United States .............................. 1025, 1093
New Hampshire Bankers Assn. v. Nelson.................. 1001
New Jersey; Birnbaum v................................ 1110
New Jersey; Bridge v................................... 803
New Jersey; Bright v................................... 1114
New Jersey; Costanza v. . .. . . . .. . . .. . . . . . .. .. . . . . . . . . . . . 861
New Jersey; DeLucia v................................. 952
New Jersey ; DeRosa v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . l 040
New Jersey; Dye v .................................. 1004, 1090
New Jersey; Frankel v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1125
New Jersey; Garrett v................................... 1043
New Jersey; Johns v.................................... 1026
New Jersey; Mansour v................................. 866
New Jersey; Obstein v.................................. 873
New Jersey; O'Connor v................................. 1031
New Jersey; Perwin v................................... 862
New Jersey; Scott v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 942
New Jersey; Slobodian v. . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . 909
New Jersey v. Smith.................................... 1076
New Jersey; Smith v.................................... 916
New Jersey; Tillman v . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . .. . 1049
New Jersey; Wall v................................... . . 997
New Jersey v. Woodard................................. 886
New Jersey Sports Authority; East Rutherford v. . . . . . . . . . 943
New Jersey Supreme Court; American Trial Lawyers v. . . . 467
Newman; Benson v..................................... 1039
Newman v. Newman......... . . . . . . . . . . . . . . . . . . . . . . . . . . . 809
New Mexico; Cranford v................................ 854
New Mexico; Herrera v................................. 1110
New Mexico; Salazar v.................................. 921
New Mexico; Valdez v.................................. 1077
New Mexico Board of Bar Examiners; Rose v. . . . . . . . . . . . . . 1020
New Orleans; Martin v................................. 944
New York; American Party v ......................... 909, 1021
New York; Ausby v.................................... 1115
New York; Baker v..................................... 849
New York; D'Ambra v.................................. 1106
New York; Davis v..................................... 811
New York; Della Croce v................................ 1038
New York; DiPaolo v................................... 1040
New York; Glass v...................................... 1064
TABLE OF CASES REPORTED CXIX
Page
New York; Gonzalez v.................................. 859
New York; Heller v..................................... 1021
New York; Lancaster v.................................. 1110
New York; Ledes v..................................... 1108
New York; Lott v...................................... 1115
New York; Marcus v ................................ 1027, 1119
New York; NAACP v................................... 978
New York; Pasqua v.................................... 873
New York; Pennsylvania v ........................... 897, 1122
New York; Prisco v..................................... 1039
New York; Reyes v ................................. 1053, 1110
New York; Scopes v.................................... 874
New York; Tremarco v.................................. 1040
New York; Vanderburgh v............................... 912
New York; Vermont v.................................. 1103
New York; Webster v................................... 950
New York Attorney General v. Weiss...................... 876
New York Central R. Co. v. Raines....................... 983
New York City Bar Assn.; Javits v....................... 980
New York City Bd. of Standards, Third Brevoort Corp. v. . . 1030
New York City Health & Hospitals Corp.; Byrn v.......... 821
New York Comm'r of Social Services; Sanders v. . . . . . . . . . . . 1128
New York Comm'r of Social Services v. Shirley............ 1052
New York Comptroller v. Committee for Public Education.. 977
New York Dept. of Social Services v. Dublino............. 1123
New York Governor; Rosario v. . . . . .. .. .. .. . . . . . . . . . . . . . 1035
New York Governor; Simon v........................... 1020
New York Life Insurance Co.; Fortenberry v. . . . . . . . . . . . . . 981
New York Life Insurance Co.; Markoff v. . . . . . . . . . . . . . . . . . 1064
New York, N. H. & H. R. Co. Bondholders Com. v. Baker... 890
New York Off-Track Betting Comm'n; Finger Lakes v...... 1031
New York State Board of Parole; Christian v. . . . . . . . . . . . . . 871
New York State Education Dept.; Johnson v.............. 75
Nichlos; Peel v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 883
Nichols v. Page......................................... 1044
Nichols v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 966
Nieder v. Mercury Federal Savings & Loan Assn............ 812
Ninov v. United States................................... 986
Nix, In re. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112
Nix v. United States ................................ 1013, 1119
Nixon; Bodisco v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1121
Nixon; Douglas v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010
Nobles; Os borne v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 853
CXX TABLE OF CASES REPORTED
Page
Noerenberg; Glenovich v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1070
Nolan v. Judicial Council of the Third Circuit............. 822
Noland v. Desobry....................................... 934
Non-Resident Taxpayers Assn. of Pa. & N. J. v. Murray.... 817
Nordlof v. United States................................. 988
Norman v. United States................................. ll07
Norris v. Jordan ..................................... 811, 1029
North Area Refuse Co. v. Cussen.......................... 846
North Carolina; Andrews v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079
North Carolina; Atkinson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 881
North Carolina; Bailey v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 948
North Carolina; Berry v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
North Carolina; Brown v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 870
North Carolina; Bryant v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 995
North Carolina; Cradle v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
North Carolina; Frazier v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1004
North Carolina; Honeycutt v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
North Carolina; Lewis v................................. 1046
North Carolina; McIntyre v............................. 888
North Carolina; Muse v.................................. 898
North Carolina; Parker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 987
North Carolina; Sadler v................................ 1060
North Carolina; Waddell v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 952
North Carolina; Wat6on v............................... 1043
North Carolina Governor; Holshouser v. . . . . . . . . . . . . . . . . . . 807
North Carolina Ports Authority v. Longshoremen.......... 982
Northcross; Board of Education of Memphis Schools v..... 909
Northcross; Estes v .................................. 853, 1050
Northeast Airlines; Machinists v. . . . . . . . . . . . . . . . . . . . . . . . . . 845
Northern Acceptance Trust 1065 v. Brinkerhoff. . . . . . . . . . . . . 904
Northern States Power Co. v. Ihrke....................... 815
Northwestern University; Collector of Cook County v...... 852
Norwegian America Line; Hahn v......................... 966
Norwood v. Harrison. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 839, 1035
Nos.ser v. Bradley........................................ 848
Nottoway County School Board; Grimes v. . . . . . . . . . . . . . . . 1008
Nudo v. Brantley. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1043
Nugent v. Unired States................................. 1065
Nunley v. United States.................................. 856
Nunn v. Cox. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 860
Nunzio; Sayles v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1071
Nuveen & Co. v. Sanders................................. 1009
Oates; Simpson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 904
TABLE OF CASES REPORTED CXXI
Page
O'Brien v. Brown ........................................ 1,816
O'Brien v. Skinner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1240
O'Brien v. United States .............................. 981, 1112
Obstein v. New Jersey................................... 873
Occidental Petroleum Corp. v. Buttes Gas & Oil Co........ 950
Ochoa v. United States .............................. 1079, 1113
O'Clair v. United States................................. 986
O'Connor; Dapper v ................................ 1025, 1131
O'Connor v. New Jersey................................. 1031
O'Connor; Tahl v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1042
Offenberg v. California. . . . . .. . . . . . . . . . . . . .. . . . . . . . . . . . . . 1077
Ohio; Baldassaro v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1042
Ohio; Carver v......................................... 1044
Ohio; Cratic v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079
Ohio; Davis v. . . .. . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . 1047
Ohio; Gomori v......................................... 913
Ohio; Heston v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1038
Ohio; Hill v. . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Ohio; Hurt v................................. . .... . .... 991
Ohio v. Kentucky .................................... 974, 1102
Ohio; Krause v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1052
Ohio; Leroy v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1085
Ohio; Lewis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 868
Ohio; Lucas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 871
Ohio; Ostrowski v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 889
Ohio; Patterson v....................................... 913
Ohio; Priore v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1025
Ohio; Rollins v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 853
Ohio; Siddle v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . 860
Ohio; Williams v. .. . . . . . . . . . . .. .. . . . . . . . . . . . . . . . . . . . . . . . 872
Ohio AFL-CIO Autoworkers v. Insurance Rating Board.... 917
Ohio Governor v. Morgan ............................. 947, 1122
Ohio Governor; Sweetenham v. . . . . . . . . . . . . . . . . . . . . . . . . . . 942
Ohio Secretary of State ; Gaunt v. . . . . . . . . . . . . . . . . . . . . . . . . 809
Ohio Supreme Court; Slone v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Oklahoma; Broadrick v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1058
Oklahoma v. Cherokee Nation................ .. . .. ..... . . 1039
Oklahoma; Ellison v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 862
Oklahoma; Ferrell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1128
Oklahoma; Grubb v..... .. . . ............................ 1017
Oklahoma; Mallard v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 912
Oklahoma v. Mason....... . .................. . .......... 1124
Oklahoma; Miller v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 888
CXXII TABLE OF CASES REPORTED
Page
Oklahoma City; Meyer v. .. . . . . . . . . . . . . .. . . . . . . . . .. . . . . . 980
Oklahoma City; Schulte v............................... 850
Oklahoma City Public Schools Bd. of Education v. Dowell. . 1041
Oklahoma Supreme Court; Smith v. . . . . . . . . . . . . . . . . . . . . . . 1126
Olden v. Chambers...................................... 1105
Olden v. Wilson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Olin Mathieson Chemical Corp.; Gorsalitz v. . . . . . . . . . . . . . . 899
Oliver; Arnold v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1071
Olsen & Ugelstad; Smith v............................... 1040
Olson; Rodriguez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 853
Olund; Swarthout v. . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 1008, 1119
Omaha Tribe of Nebraska; Walthill v.................... 1107
Oneida County District Attorney v. Esquire Theaters...... 1100
One Lot Emerald Cut Stones v. United States............... 232
Onondaga County Dept. of Social Services v. Dublino....... 1123
Oosting; Nacirema Operating Co. v....................... 980
Oree v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1108
Oregon ; Barton v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 852
Oregon; LeBrun v. . . . . .. . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . 1010
Oregon; Pressel v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1078
Oregon State Elks Assn. v. Falkenstein ................ 1032, 1099
Orr v. Trinter. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 898
Osborne v. Nobles....................................... 853
Osser; Goosby v ..................................... 512, 1035
Ostrowski v. Ohio....................................... 889
Otter Tail Power Co. v. United States..................... 820
Otto v. Kosofsky........................................ 912
Ottomano v. United States............................... 1128
Overton v. United States................................ 1043
Owens; Murray v........................................ 1117
Owings v. Secretary of Air Force.................... . . .. .. 901
Oxnard School District Board of Trustees v. Soria........... 945
Pace v. Pace. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 842
Pacific Maritime Assn. v. Labor Board.................... 852
Pack v. United States................................... 860
Padilla-Partida v. Immigration and Naturalization Service.. 987
Page; Nichols v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Paladini; United States v........... . . . . . . . . . . . . . . . . . . . . . 909
P11.lm Beach Board of Public Instruction; Alfar Dairy v. . . . . 1048
Palmer v. United States ............................. . . 874, 1051
Palmore v. United States .. . ....................... 840,977, 1055
Panama Canal Co.; Carter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Pan American Match v. Sears, Roebuck & Co. . . . . . . . . . . . . . 892
TABLE OF CASES REPORTED
Panas v. United States ................................. .
Panotex Pipe Line Co. v. Phillips Petroleum Co ........... .
Papermakers & Paperworkers; Hammond v . .............. .
Papilsky; Berndt v . ................................... .
Parham v. Cortese ..................................... .
CXXIII
Page
886
845
1028
1077
902
Paris v. Foreman....................................... 951
Paris Adult Theatre I v. Slaton..... . . . . . . . . . . . . . . . . . . . . . . 945
Park v. Georgia. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 897
Parker; Cleaves v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 863
Parker v. North Carolina................................ 987
Parker v. Swenson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126
Parker v. United States ................................ 860,870
Parker v. Wisconsin...................................... 1110
Parker, Coulter, Daley & White; Anderson v. . . . . . . . . . . . . . 880
Parks; Tyler v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 858, 1019
Parks v. United States................................... 865
Parten v. United States.................................. 983
Particular Cleaners v. Commonwealth Edison Co. . . . . . . . . . 890
Parton v. Tennessee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 871
Paschall v. Haskins. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 985
Pasqua v. New York.................................... 873
Pastrano; Falkner v . ................................ 1020, 1131
Patents Acting Comm'r v. Benson ................... 63,817,945
Patents Comm'r; Irons v................................ 1076
Pattani v. Meyers...................................... 807
Patterson v. Ohio....................................... 913
Patterson v. Smith...................................... 873
Patterson v. United States............................... 1038
Paturso v. Mancusi. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 916
Pavsner, In re ........................................ 975, 1102
Payne v. Alabama....................................... 1079
Payne; Clark v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1070
Payne; Michigan v...................................... 911
Peaper v. Maryland. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 987
Pearson v. Florida...................................... 879
Peel v. Nichlos......................................... 883
Pejokovich v. Board of Education, Prince George's County.. 1026
Peltzman v. Labor Board .............................. 887, 1050
Penaat v. San Jose...................................... 984
Pendergraft v. Cook..................................... 886
Pendergraft v. Turner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 866
Pennsylvania v. Cohen................................... 981
Pennsylvania; Dessus v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 853
CXXIV TABLE OF CASES REPORTED
Page
Pennsylvania; Goodman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 987
Pennsylvania; Hilliard v. . . .. .. .. . . . . . . . . . . .. . . . . . . . . . .. . 877
Pennsylvania; Jacobs v. .. .. .. . . .. .. . . . . . . . . .. .. .. .. .. . . . 856
Pennsylvania; Knudsen v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 866
Pennsylvania v. Linde................................... 1031
Pennsylvania; Mays v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 855
Pennsylvania v. New York ............................ 897, 1122
Pennsylvania; Scoleri v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 897
Pennsylvania; Shaffer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 867
Pennsylvania; Shank v... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1110
Pennsylvania v. United States............................ 894
Pennsylvania; Wolfe v.................................. 1010
Pennsylvania Human Relations Comm'n; Moose Lodge v.. 1052
Pennsylvania Industrial Chemical Corp.; United States v... 1074
Pennsylvania Secretary of the Commonwealth; Specter v.... 810
Pennsylvania Supt. of Public Instruction; Lemon v. . . . . . . . . 976
Penrod Drilling Co.; Champagne v........................ 1113
Pensec v. United States.................................. 891
Peoria Board of Education; Linwood v. . . . . . . . . . . . . . . . . . . . 1027
Pepper & Tanner v. International Equity Corp............. 1052
Pepsico Service Industries; Florida Vanderbilt Corp. v. . ... 1041
Perez; Gomez v ......... .............................. 535,818
Perillo v. United American Life Insurance Co. . ............ 1008
Perini v. Johns.......................................... 1049
Perini; Wright v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 988
Perkins v. United States................................. 1062
Perreira v. Dampskibsselskabet Norden A/S............... 1040
Perry v. California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Perry's Plumbing v. Providence Redevelopment Agency. . . . . 1003
Perwin v. New Jersey.................................... 862
Peters v. California. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1064
Peters v. United States................................... 1127
Peterson; Upper Pecos Assn. v..... . ..................... 1021
Pet, Inc. v. Kysor Industrial Corp......................... 980
Peto; Cook v........................................ . .. 1071
Phelan v. Brierley. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 899
Phelps Dodge Corp. v. AFL--CIO Negotiating Committee... 1059
Philadelphia; American Oil Co. v. . . . . . . . . . . . . . . . . . . . . . . . . 893
Philadelphia; Eckert v. .. . .. . .. . . . . .. . .. . .. . .. . .. . . . . . . . . 900
Philadelphia County District Attorney v. Tucker....... . . . . 810
Phillips v. Carr. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1085
Phillips v. Housing Authority of Providence... . ............ 1094
Phillips; Neil v......................................... 884
TABLE OF CASES REPORTED CXXV
Page
Phillips v. Pjtchess...................................... 854
Phillips v. United States.................................. 991
Phillips Petroleum Co.; Panotex Pipe Line Co. v............ 845
Philpott v. Essex County Welfare Board................... 413
Phipps v. Associate Fundings............................ 1064
Phoenix Steel Corp.; Knoll v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126
Pickerell v. California.......... . . . . . . . . . . . . . . . . . . . . . . . . . . 913
Pickett; Bryant v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1062
Picking v. Yates ..................................... 812, 1050
Picture Music, Inc. v. Bourne, Inc......................... 997
Pierce v. Georgia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 952
Pierce County Board of Comm'rs; Rao v. . . . . . . . . . . . . . . . . . 1017
Pilgrim Equipment Co. of Houston v. Texas ............ 982, 1118
Pillis v. State Board of Elections. . . . . . . . . . . . . . . . . . . . . . . . . . 900
Pillis v. Virginia Governor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 900
Pineda v. United States.................................. 981
Pinnock; Myers v....................................... 1068
Pirolli & Sons v. Labor Board. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
Pitchess; Farr v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1243
Pitchess; Phillips v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 854
Pittsburgh Comm 'n on Human Relations; Pittsburgh Press v. 1036
Pittsburgh Press Co. v. Human Relations Comm'n..... . . . . . 1036
Planning Board of Ramapo; Golden v........... . . . . . . . . . 1003
Plantation Patterns v. Commissioner... . . . . . . . . . . . . . . . . . . . 1076
Plaquemine Equipment & Machine Co. v. Neuman.......... 914
Plastiline, Inc. v. Labor Board............................ 844
Platsis v. Michigan...................................... 1114
Poff v. Dept. of Alcoholic Beverage Control of Calif. . . . . . . . . 1075
Pogue v. Retail Credit Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109
Pollard v. United States.................................. 1127
Pooley v. Mississippi. . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . 899
Popkin v. United States................................. 1002
Porter v. United States.................................. 1079
Portner v. United States.................................. 983
Port of Houston Authority v. Masters, Mates & Pilots...... 894
Port of New York Authority; Kheel v. . . . . . . . . . . . . . . . . . . . . 983
Postal Employees; Letter Carriers v. . . . . . . . . . . . . . . . . . . . . . . 808
Post-Newsweek Stations v. Bus. Execs. for Vietnam Peace... 820
Potomac Electric Power Co.; Fugate v. . . . . . . . . . . . . . . . . . . . 943
Potomac Sand & Gravel Co. v. Maryland Governor. . . . . . . . . 1040
Potts v. Flax..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Potts v. Slayton......... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1026
Power Authority of New York v. Fadel.................... 893
CXXVI TABLE OF CASES REPORTED
Page
Powers v. Kleindienst. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 967
Pratt v. Begley.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 943
Pratt; Winter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
President of the United States; Bodisco v. . . . . . . . . . . . . . . . . . 1121
Presidents Council, Dist. 25 v. Community School Bd. No. 25. 998
Pressel v. Oregon....................................... 1078
Preston v. United States .............................. 880, 1078
Price v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1040
Prichard; Thornton v.................................... 802
Prignano v. Illinois...................................... 851
Prince; Washington State Labor Council v................. 808
Prince George's County Board of Education; Pejokovich v. . 1026
Priore v. Ohio.......................................... 1025
Prisco v. New York...................................... 1039
Projansky v. United States............................... 1006
Protective Com., TMT Trailer Ferry; Mehrtens v......... 849
Providence Housing Authority; Phillips v. . . . . . . . . . . . . . . . . . 1094
Providence Redevelopment Agency; Corrado v ........ 1003, 1011
Public Service Comm'n of D. C.; Wash. Urban League v.... 848
Public Util. Comm'n of Hawaii; Honolulu Rapid Transit v... 875
Puca v. United States................................... 882
Purcell; Hood v........................................ 1061
Quattrucci v. United States............................... 900
Quinn v. Gagnon. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 867
Quinones-Alvarado v. United States........................ 1128
Quintana v. United States................................ 877
Radich; Ross v ......................................... 1115
Rafter v. Newark Insurance Co........................... 972
Ragland v. Volpe........................................ 889
Railex Corp. v. Speed Check Co........................... 876
Railway, Airline & S. S. Clerks v. REA Express............ 892
Railway Express Agency; Baxter v. . . . . . . . . . . . . . . . . . . . . . . . 847
Raimondi v. Maryland................................... 948
Raimondi v. United States................................ 847
Raines; New York Central R. Co. v. . . . . . . . . . . . . . . . . . . . . . . 983
Rainier Avenue Corp. v. Seattle.......................... 983
Ralls v. Missouri . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 853
Ramapo Planning Board; Golden v....................... 1003
Ramsdell v. United States................................ 882
Randall v. United States.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 862
Randazzo v. United States................................ 858
Rao v. Board of County Comm'rs (Pierce County)........ 1017
Rasmussen v. Butz...................................... 933
'
TABLE OF CASES REPORTED CXXVII
Page
Ratliff v. Coiner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Rawls v. Secretary of Interior. . . . . . . . . . . . . . . . . . . . . . . . . . . . 881
Ray v. Brierley......................................... 861
Raymond; Illinois v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 885
Raymond v. United States............................... 1001
REA Express; Baxter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 847
REA Express; Railway, Airline & S.S. Clerks v........... 892
Reagan; Mabey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1130
Reardon v. l\!Ieacham . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Rederi A/B Nordstjernan v. Rivera....................... 876
Rederi A/B Soya v. Evergreen Marine Corp............... 949
Redman v. Conboy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024
Ree v. Municipal Court, Los Angeles Judicial District....... 878
Reed; Sinclair v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 886
Reed v. United States.................................... 985
Refrigerated Transport Co. v. Gold Kist, Inc............... 808
Regents of the University of California; Andersen v. . . . . . . . 1006
Regents of the University of California v. Karst. . . . . . . . . . . . 849
Regester; Bullock v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 840
Regional Comm'r of Customs; Veterans for Peace v. . . . . . . . 933
Reilley v. Reilley .................................... 1003, 1118
Reilly v. Cauldwell-Wingate Co ....................... 882, 1119
Reilly v. Nelson......................................... 1114
Reilly v. United States.................................. 1232
Rennow v. Alabama..................................... 842
Rennow; Alabama v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 842
Rensing v. Zelker....... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1025
Republican State Central Com. of Ariz. v. Ripon Society... 1222
Retail Credit Co., Kleve v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 877
Retail Credit Co.; Pogue v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109
Rettig v. Illinois........................................ 895
Retza v. Fortune........................................ 810
Rexrode v. Virginia...................................... 1099
Reyes v. New York .................................. 1053, 1110
Reynolds v. United States................................ 842
Reynolds v. Wainwright................................. 950
Rhay; Mathers v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 861
Rhode Island Bar Assn.; Corrado v. . . . . . . . . . . . . . . . . . . . . . . 973
Rhodes v. Haynes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 856
Rhodes v. Nebraska..................................... 1131
Rialto Theatre Co. v. Wilmington......................... 1109
Ricci v. Chicago Mercantile Exchange..................... 289
Richards v. Maryland................................... 1062
CXXVIII TABLE OF CASES REPORTED
Page
Richardson; Beane v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 859
Richardson v. Bentex Pharmaceuticals..................... 1105
Richardson; CIBA Corp. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1105
Richardson v. Davis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1069
Richardson ; De Ville v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 986
Richardson; Fermin v ................................ 868, 1019
Richardson v. Griffin.................................... 1069
Richardson ; Harmon v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1063
Richardson v. Hynson, Westcott & Dunning................ 1105
Richardson; Hynson, Westcott & Dunning v............... 1105
Richardson; Lasch v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 889
Richardson v. Massachusetts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 884
Richardson v. Morris. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 464
Richardson; Morris v................................... 841
Richardson; Skeels v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 857
Richardson; USV Pharmaceutical Corp. v.................. 1105
Richburg v. Leeke...................................... 1059
Richerson v. United States ............................ 883, 1119
Richfield Bd. of Zoning Appeals; Citizens for Environment v. 847
Richman; Aveni v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 877
Richmond County Board of Education v. Acree............ 1006
Richmond School Board v. State Board of Education .... 910, 1124
Ricollet v. United States................................. 870
Rigdon v. United States.................................. 1116
Riley ; Zeigler v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1029
Ringsby Truck Lines; Nat. Small Shipments Traffic Conf. v. . 943
Ripon Society; Republican State Central Com. of Ariz. v. . . 1222
Ritch v. Tarrant County Hospital District................. 1079
Rivas v. Cozens.................................... ... .. 55
Rivera; Rederi A/B Nordstjernan v...................... 876
Rivera; Rose v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1022
Rivera v. United States........................ . ... .. .... 863
Riverside County; Agua Caliente Band of Mission Indians v. 901
Roaden v. Kentucky. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 910
Road Materials, Inc. v. Commissioner..................... 1008
Roan Selection Trust Ltd. v. Kohn........................ 874
Roberson; Florida v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 885
Roberts; Carter v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 862
Roberts; Fair v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 947
Roberts v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1026
Robertson v. United States............................... 985
Robins v. United States ............................... 856,880
Robinson v. Frasher..................................... 1009
TABLE OF CASES REPORTED CXXIX
Page
Robinson v. Hanrahan................................... 38
Robinson v. Mammoth Life & Accident Insurance Co. . . . . . . 872
Robinson v. McCorkle. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1042, 1051
Robinson v. Neil. .................................... 505, 1035
Robinson v. United States ............................. 863, 1050
Robinson v. Wainwright................................. 1035
Robles v. California..................................... 897
Roche v. United States.................................. 951
Rockefeller; Moritt v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Rockefeller; Rosario v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1035
Rockland County Builders Assn. v. McAlevey. . . . . . . . . . . . . . 1003
Rodes; Koppers Co. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 893
Rodes; Louisville & N. R. Co. v. . . . . . . . . . . . . . . . . . . . . . . 893, 1029
Rodes; Metropolitan Government of Nash ville v. . . . . . . . . . . 893
Rodes; Wilson County v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 893
Radovich v. United States............................... 846
Rodriguez v. Olson...................................... 853
Rodriguez; San Antonio Independent School District v. . . . . 822
Rodriguez v. Seamans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1094
Rodriguez v. United States............................... 865
Rodulfa v. United States................................. 949
Roe v. Wade........................................... 817
Roger v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Rogers v. Equal Employment Opportunity Comm'n......... 1059
Rogers v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Rohm & Haas Co.; Monsanto Co. v. . . . . . . . . . . . . . . . . . . . . . . 899
Rollins v. Ohio......................................... 853
Romano v. United States.......................... .. . .. . 915
Ronstadt v. California................................... 913
Ronwin v. Fair Employment Practices Comm'n............ 811
Rooney v. First Wisconsin National Bank.................. 1063
Rosario v. Rockefeller. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1035
Rose v. Bondurant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Rose v. Commissioner......... . . . . . . . . . . . . . . . . . . . . . . . . . . 879
Rose v. Rivera................................. .. ....... 1022
Rosemond v. United States............................... 1086
Rosenberg v. United States.............................. 868
Rosenfeld; Lazard Freres & Co. v. . . . . . . . . . . . . . . . . . . . . . . . . 802
Rosenthal v. Arkansas Louisiana Finance Corp............ 1037
Rosner v. Duchess Music Corp........................... 847
Ross; Lovingood v...................................... 913
Ross v. Radich................ . . ... ................... . . 1115
Ross v. United States ..... . .................. 868,984,1113,1118
CXXX TABLE OF CASES REPORTED
Page
Ross; Wainwright v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 884
Roth v. United States.................................... 1048
Roth Adam Fuel Co.; Clean Air Coordinating Com. v ... 946, 1117
Rothman v. United States ............................. 956, 1050
Royster; McGinnis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 910
Rozands; American Mannex Corp. v. . . . . . . . . . . . . . . . . . . . . . 1040
Ruckelshaus; Getty Oil Co. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1125
Ruckelshaus v. Sierra Club ........................... 1054, 1124
Ruderer v. United States................................. 1031
Ruggirello v. United States............................... 886
Ruisi v. United States.................................... 914
Rundle; Bennett v...................................... 916
Rusch v. Illinois. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 950
Russek v. Maryland Governor............................ 1111
Russell v. United States.................................. 1012
Russell; United States v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 911, 946
Russo v. Byrne ..................................... 1013, 1219
Ryan v. United States.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 866
S. v. D................................................. 1103
Sabolsky; Budzanoski v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 853
Sacramento County; Dawley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 813
Sacramento Municipal Court; California v. . . . . . . . . . . . . . . . . 1109
Sadler v. North Carolina................................. 1060
Saez v. Goslee......................................... . . 1024
Saffioti v. United States... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 908
Sailer v. California Adult Authority.... . . . . . . . . . . . . . . . . . . . 861
Sailer v. Craven ....................................... 856,873
Sailor v. United States................................... 851
St. Louis; Streckfus Steamers, Inc. v. . . . . . . . . . . . . . . . . . . . . . 841
St. Louis-S. F. R. Co.; United States v.................... 1116
St. Petersburg; Waller v................................. 989
Salazar v. New Mexico................................... 921
Salazar v. United States ............................. 1061, 1107
Saline County District Court; Smith v.................... 1111
Salisbury; Tribblet v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 952
Salter v. United States................................... 1019
Salvaggio v. United States......... . . . . . . . . . . . . . . . . . . . . . . 848
Salvation Army; McClure v. . . . . . . . . . . . . . . . . . . . . . . . . . . 896, 1050
Salyer Land Co. v. Tulare Lake Basin Water Storage Dist.... 1104
Sams v. Frankel......................................... 977
Samuels v. United States................................. 899
San Antonio Independent School District v. Rodriguez. . . . . . 822
Sanchez v. United States................................. 864
TABLE OF CASES REPORTED CXXXI
Page
Sanders; John Nuveen & Co. v........................... 1009
Sanders v. Texas........................................ 884
Sanders v. United States .......................... 860,916, 1045
Sanders v. Wyman...................................... 1128
San Diego Cabinets v. Labor Board....................... 844
San Diego Judicial District; Anderson v....... . . . . . . . . . . . . 812
Sandler v. National Director of Selective Service........... 990
San Francisco County Superior Court; MaGee v. . . . . . . . . . . 1036
San Francisco Newspaper Printing Co. v. Labor Board...... 1008
San Jacinto, The; Union Oil Co. of California v.... . . . . . . . . . 140
San Jose; Penaat v...................................... 984
Santana v. U. S. District Court........................... 867
Santoro v. United States..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1063
Sargent; Simon v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1020
Sarival Guernsey Farms v. Butz.......................... 933
Sarnoff v. Shultz........................................ 929
Satiacum v. Washington.................................. 1104
Savidge v. United States................................. 1048
Sayles v. Nunzio........................................ 1071
Scarpetta v. DeMartino................................. 1011
Schaack v. United States................................. 875
Schaefer; Felland v..................................... 1031
Schafer v. United States... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 881
Schaffer; LoFrisco v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 972
Scharbrough v. Cupp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 951
Schattman v. Texas Employment Comm'n................. 1107
Scherman, In re......................................... 975
Schlanger v. Seamans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 860
Schlesinger v. Laird..................................... 1056
Schmidt; Karr v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 989
Schmitz v. Societe Internationale. . . . . . . . . . . . . . . . . . . . . . . . . 894
Schneider v. United States ............................ 877, llll
Schnupp; Gaito v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 855
Schoefield v. United States............................... 881
Schoenling Brewing Co. v. Wurzburger Hofbrau............ 1042
School Board of Richmond v. State Board of Education .. 910, 1124
School District No. 1, Denver, Colorado; Keyes v.......... 818
School District of Hartington; Nebraska Board of Ed. v..... 921
Schostak; Vlahakis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 916
Schott v. Kingman. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 981
Schrader v. Selective Service Local Board No. 76. . . . . . . . . . . 1085
Schrenzel v. United States.................. ... .. . ....... . 984
Schroud v. Milwaukee County Dept. of Public Welfare . ..... 842
CXXXII TABLE OF CASES REPORTED
Pnge
Schulte v. Oklahoma City. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 850
Schutzer; Waterman v............... . . . . . . . . . . . . . . . . . . . 988
Schwartz v. United States................................ 1009
Schwarz, In re.......................................... 1047
Scientific Living, Inc.; Hohensee v . .................... 880, 1051
Sciortino v. United States................................ 859
Scogin v. United States.................................. 865
Scoleri v. Pennsylvania.................................. 897
Scopes v. New York..................................... 874
Scott; Brown v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 846, 1049
Scott; Holshouser v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 807
Scott v. Maryland. . . . . . . .. . . . . .. . . . . . . . . . . .. . . . . . . . . . . . . 850
Scott v. New Jersey..................................... 942
Scott v. United States ................................. 866,888
Scott; Wilson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1043, 1131
SCRAP; Aberdeen & Rockfish R. Co. v. . . . . . . . . . . . . . . 1073, 1207
SCRAP; Interstate Commerce Comm'n v. . . . . . . . . . . . . . . . . . 1207
SCRAP; United States v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
Seaboard Coast Line R. Co.; Felts v. . . . . . . . . . . . . . . . . . . . . . 926
Seaboard Coast Line R. Co. v. Jackson.................... 1001
Seaboard Coast Line R. Co. v. McDaniel. . . . . . . . . . . . . . . . . . 893
Seaboard Coast Line R. Co.; Solomon v. . . . . . . . . . . . . . . . . . . 942
Seamans; Rodriguez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1094
Seamans; Schlanger v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 860
Sears, Roebuck & Co.; Goudie v. . . . . . . . . . . . . . . . . . . . . . . . . . 1049
Sears, Roebuck & Co.; Hoogasian v. . . . . . . . . . . . . . . . . . . . . . . 1001
Sears, Roebuck & Co.; Pan American Match v. . . . . . . . . . . . . 892
Sea train Lines; Federal Maritime Comm'n v. . . . . . . . . . . . . . . 1058
Seattle; Rainier A venue Corp. v. . . . . . . . . . . . . . . . . . . . . . . . . . 983
Sebesta; Fair v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 978, 1093
Secretary, Maryland Dept. of Emp. & Social Serv. v. Francis. 904
Secretary of Agriculture v. Glover Livestock Comm'n Co. . . . 947
Secretary of Agriculture; Kresse v. . . . . . . . . . . . . . . . . . . . . . . . 933
S~cretary of Agriculture; Rasmussen v. . . . . . . . . . . . . . . . . . . . 933
Secretary of Agriculture; Sarival Guernsey Farms v. . . . . . . . 933
Secretary of Air Force; Owings v. . . . . . . . . . . . . . . . . . . . . . . . . 901
Secretary of Air Force; Rodriguez v. . . . . . . . . . . . . . . . . . . . . . 1094
Secretary of Air Force; Schlanger v. . . . . . . . . . . . . . . . . . . . . . . 860
Secretary of Army; Environmental Defense Fund v. . . . . . . . 1072
Secretary of Army; Keister v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 894
Secretary of Commerce; Upper Pecos Assn. v.............. 1021
Secretary of Defense; American Civil Liberties Union v. . . . 1116
Secretary of Defense v. Anderson. . . . . . . . . . . . . . . . . . . . . . . . . 1076
TABLE OF CASES REPORTED CXXXIII
Page
Secretary of Defense; Frontiero v. . . . . . . . . . . . . . . . . . . . . 840, 1123
Secretary of Defense; Holmes v. . . . . . . . . . . . . . . . . . . . . . . . . . . 869
Secretary of Defense; Mathis v. . . . . . . . . . . . . . . . . . . . . . . . . . . 871
Secretary of Defense v. Nelms. . . . . . . . . . . . . . . . . . . . . . . . . . . . 902
Secretary of Defense ; Schlesinger v . . . . . . . . . . . . . . . . . . . . . 1056
Secretary of Defense v. Spock............................. 971
Secretary of Defense; Struck v ........................ 947, 1071
Secretary of Defense v. Tatum ......................... 824,901
Secretary of Health, Education, and Welfare; Beane v. . . . . . . 859
Secretary of Health, Education, and Welfare v. Bentex, Inc.. 1105
Secretary of Health, Education, and Welfare; CIBA Corp. v. . 1105
Secretary of Health, Education, and Welfare v. Davis. . . . . . . 1069
Secretary of Health, Education, and Welfare; DeVille v..... 986
Secretary of Health, Education, and Welfare; Fermin v .. 868, 1019
Secretary of Health, Education, and Welfare v. Griffin..... 1069
Secretary of Health, Education, and Welfare; Harmon v. . . . 1063
Secretary of Health, Education, and Welfare v. Hynson, Inc.. 1105
Secretary of Health, Education, and Welfare; Hynson, Inc. v. 1105
Secretary of Health, Education, and Welfare; Lasch v...... 889
Secretary of Health, Education, and Welfare v. Morris...... 464
Secretary of Health, Education, and Welfare; Morris v...... 841
Secretary of Health, Education, and Welfare; Skeels v... . . . 857
Secretary of Health, Education, and Welfare; USV Corp. v.. 1105
Secretary of Interior; Johnson v.. .. . . . .. .. . . . . . . . . . . . . . .. 887
Secretary of Interior; Rawls v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 881
Secretary of Labor v. Arnheim & Neely, Inc ............ 840, 1102
Secretary of Labor; Frank Irey, Jr., Inc. v. . . . . . . . . . . . . . . . 1070
Secretary of Labor; Frommhagen v...................... 1111
Secretary of Labor; Lance Roofing Co. v. . . . . . . . . . . . . . . . . . 1070
Secretary of Labor; Mahoney v.......................... 1039
Secretary of Labor; Mayhue's Super Liquor Stores v. . . . . . 1108
Secretary of Labor; Square D Co. v....................... 967
Secretary of Labor; Travis-Edwards, Inc. v................ 1076
Secretary of Navy; Wallace v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 933
Secretary of State of Alabama v. Sims..................... 942
Secretary of State of California v. Chote ............... 911, 1035
Secretary of State of Connecticut; LoFrisco v. . . . . . . . . . . . . 972
Secretary of State of Kentucky; Pratt v.. . . . . . . . . . . . . . . . . . 943
Secretary of State of Ohio; Gaunt v. . . . . . . . . . . . . . . . . . . . . . . 809
Secretary of State of Texas; American Party v. . . . . . . . . . . . 803
Secretary of State of Texas; Godwin v. . . . . . . . . . . . . . . . . . . . 1048
Secretary of State of Texas v. Regester. . . . . . . . . . . . . . . . . . . . 840
Secretary of State of Texas v. Weiser... . . . . . . . . . . . . . . . . . . . 947
CXXXIV TABLE OF CASES REPORTED
Page
Secretary of the Commonwealth of Pa.; Specter v. . . . . . . . . . . 810
Secretary of Transportation; Ragland v. . . . . . . . . . . . . . . . . . . 889
Secretary of Treasury; Casanova Guns, Inc. v. . . . . . . . . . . . . 845
Secretary of Treasury; Sarnoff v. . . . . . . . . . . . . . . . . . . . . . . . . . 929
Securities and Exchange Comm'n; Frankel v. . . . . . . . . . . . . . . 889
Segura v. United States.................................. 875
Selective Service Local Board No. 76; Schrader v. . . . . . . . . . 1085
Sellars v. Beto ........................................ 898,968
Sellars v. Committee on Admissions, D. C. Ct. App......... 1060
Senate of the United States; Eckert v. . . . . . . . . . . . . . . . . . . . . 858
Serzysko v. Chase Manhattan Bank ................... 883, 1029
Seward Motor Freight v. Nebraska State R. Comm'n...... 1028
Shaffer v. Pennsylvania................................... 867
Shameia v. United States................................ 1076
Shank v. Pennsylvania................................... 1110
Shapiro; Barrett v ... .......................... 819, 1072, 1103
Shaps v. Union Commerce Bank.......................... 1060
Shatterproof Glass Corp. v. Guardian Glass Co............ 1039
Shaw; Garrison v....................................... 1024
Shelco, Inc. v. Dow Chemical Co.... . . . . . . . . . . . . . . . . . . . . . . 876
Shelton v. Estelle. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 985
Shelton v. Henderson. . . . . . . . . . . . . .. . .. . .. .. . . .. .. . . . .. . . 977
Shelton v. Tennessee....... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 852
Sheppard v. United States................................ 985
Sherdon v. Carmona. . . . . . . . . . . . . .. . .. . . . . .. . .. .. . . . . . . . . 971
Sheris v. Sheris Co.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 878
Sheris Co.; Sheris v..................................... 878
Shevin; Fuentes v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902
Shields v. United States.................................. 901
Shirley; La vine v. .. . . . . .. .. .. . . . . . . . . .. .. . . . . .. . . . . . . . . 1052
Shore; Burdette v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 866
Shultz; Casanova Guns, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 845
Shultz; Sarnoff v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 929
Sibonga v. Administrator of Veterans Affairs ........... 952, 1068
Sida of Hawai, Inc.; Lii v................................ 903
Siddle v. Ohio........................................... 860
Sid Harvey, Inc. v. Teamsters........................... 1041
Sidman v. United States................................. 1127
Sierra Club; Ruckelshaus v. . . . . . . . . . . . . . . . . . . . . . . . . . 1054, 1124
Sigler; Howard v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 854
Sigman v. Illinois....................................... 1022
Signer; In re............................................ 975
Signorelli; Mojar v. . . .. .. . . . . . . .. .. . . . . . . . . .. . . . . . . . . . . . 981
TABLE OF CASES REPORTED CXXXV
Page
Sikes v. United States ................................ 951, 1051
Silver; Baltimore Mayor v............................... 810
Silver v. Castle Memorial Hospital....... . . . . . . . . . . . . 1048, 1131
Silvester; Fuchs v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1121
Simms v. Wyoming...................................... 886
Simon v. Sargent........................................ 1020
Simpson v. Oates..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 904
Simpson v. United States................................. 1078
Sims; Amos v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 942
Sims v. Idaho Dept. of Highways......................... 1037
Sinclair v. Louisiana. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 950
Sinclair v. Reed......................................... 886
Sinclair v. Spatocco..................................... 886
Singal v. Two Unknown Named Patrolmen................. 869
Singer; Sterling Drug, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 878
Singer Co. v. Greene..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 848
Singh v. Immigration and Naturalization Service........... 847
Skeels v. Richardson.................................... 857
Skil Corp. v. Lucerne Products. . . . . . . . . . . . . . . . . . . . . . . . . . . 876
Skinner; O'Brien v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1240
Slade v. Valley National Bank............................. 1013
Slatko v. United States.................................. 1075
Slaton; Paris Adult Theatre I v. . . . . . . . . . . . . . . . . . . . . . . . . . 945
Slaughter; Hurd v...................................... 916
Slayton; Almond v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956
Slayton; Arvin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079
Slayton; Banks v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1026
Slayton; Burkley v..................................... 952
Slayton; Carter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1128
Slayton; Evans v....................................... 1114
Slayton; MacLeod v ................................. 853, 1002
Slayton; Miller v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1007
Slayton; Moon v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077
Slayton; Potts v...... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1026
Slayton; Taylor v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1115
Slayton; Thacker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 882
Slayton; Tripp v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111
Slobodian v. New Jersey................................. 909
Slone v. Supreme Court of Ohio........................... 1047
Smilow v. United States................................. 944
Smith; Archer v........................................ 808
Smith v. Baker .................................. 890, 1012, 1019
Smith v. Board of Ed., Indep. School District No. 1. ....... ·. 823
CXXXVI TABLE OF CASES REPORTED
Page
Smith; Clark Sherwood Oil Field Contractors v. . . . . . . . . . . . . 980
Smith v. Cupp.......................................... 880
Smith v. Estelle... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1061
Smith v. Falcon Seaboard, Inc............................ 1085
Smith v. Hiatt........................................... 842
Smith ; House v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 823
Smith v. Indiana. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1129
Smith; I{eane v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1113
Smith; Matthews v..................................... 1110
Smith; Medina v........................................ 1111
Smith v. New Jersey.................................... 916
Smith; New Jersey v..................................... 1076
Smith v. Olsen & Ugelstad................................ 1040
Smith; Patterson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 873
Smith v. Saline County District Court..................... 1111
Smith v. Smith......................................... 885
Smith v. Supreme Court of Oklahoma..................... 1126
Smith v. Texas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 897
Smith v. United States ................... 869,883,913, 1066, 1076
Smith; Williams v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 898
Smith Contracting Co.; Missouri Pacific R. Co. v.......... 1107
Smith's Transfer Corp. v. United States.................... 1120
Snipes v. Missouri....... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 979
Snohomish Cty. Bd. of Equalization v. Wash. Dept. of Rev.. 810
Snyder; Hall v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 869
Societe Internationale; Schmitz v. . . . . . . . . . . . . . . . . . . . . . . . . 894
Solomon v. Seaboard Coast Line R. Co.................... 942
Soria; Oxnard School District Board of Trustees v. . . . . . . . . . 945
South Carolina; Albert v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 966
South Carolina; Crowe v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077
South Carolina; Ham v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 524, 977
South Carolina; McLamore v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
South Carolina Governor; Hunt v. . .. . . . . . . . . . . . . .. . . . . . . 911
South Carolina Tax Comm'n; Heublein, Inc. v. . . . . . . . . . . . . . 275
South Dakota; Hale v................................... 1130
Southern Bell Telephone & Telegraph Co.; LeBlanc v...... 990
Southern Farm Bureau Casualty Insurance Co.; Bailes v. . . . 872
Southern Pacific Transp.; Morton Int'!, Inc. v. . . . . . . . . . . . . . 934
Southern Pacific Transp. v. Sutton's Steel & Supply. . . . . . . . 1061
Southside Hospital; Modla v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1038
Southwestern Bell Telephone Co. v. Franke................ 875
Spann; Muirhead v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 851
Sparkle Food Center; Certified Grocers of Illinois v. . . . . . . . . 1007
TABLE OF CASES REPORTED CXXXVII
Page
Spatocco; Sinclair v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 886
Spaulding v. United States............................... 884
Spears v. Hough........................................ 878
Spears v. Mississippi.................................. . . 1106
Spears v. United States.................................. 980
Specter v. Tucker. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 810
Speed v. lliinois . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 983
Speed Check Co., Railex Corp. v. . . . . . . . . . . . . . . . . . . . . . . . . . 876
Speer v. United States................................... 951
Spence v. Canterbury.................................... 1064
Sperry Rand Corp. v. A-T-O, Inc........................ 892
Sperry Rand Corp.; A-T-O, Inc. v....................... 892
Spinks v. United States.................................. 1011
Splinter v. Hanrahan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 1059
Spock; Laird v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 971
Springer v. United States............... . .. . . .. . . .. . . . ... 873
Spruill; Frierson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 989, 1069
Square D Co. v. Hodgson................................ 967
Squires v. United States.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 980
Stafford v. N. A. A. Employees Federal Credit Union........ 1079
Stamp v. United States.................................. 842
Stanley v. Taylor.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 983
Stanley v. Texas........................................ 899
Stapleton v. United States ............. . ............... 894,914
Star Industries v. United States........................... 1076
Starnes v. Connett...................................... 987
Starnes v. Harris........................................ 1044
State. See also name of State.
State Bd. of Education of Va.; Bradley v. . . . . . . . . . . . . . . . . 1124
State Bd. of Education of Va.; Richmond School Bd. v . . 910, 1124
State Bd. of Elections; Pillis v... . . . . . . . . . . . . . . . . . . . . . . . . . 900
State Corporation Comm'n of Va.; United States v......... 1094
State Dept. Health & Rehabilitative Serv. of Fla. v . Zarate.. 903
State Highway Comm'r v. Potomac Electric Power Co....... 943
States Attorney of Cook County; Robinson v. . . . . . . . . . . . . . 38
States Attorney of Cook County; Splinter v. . . . . . . . . . . . . . . . 1059
State Tax Comm'n of Mississippi; United States v. . . . . . . . . . . 1005
State Tax Comm'n of Utah; Kennecott Copper v ........ 973, 1093
Stauffer v. Weedlun.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 972
Stead v. United States................................... 952
Stecher v. United States................................. 984
Steed v. United States............ . ..... .. .... . . . ......... 1078
Steel v. Lambros. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1005
CXXXVIII TABLE OF CASES REPORTED
Page
Stein v. Cleveland Bar Assn. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 949
Stein v. United States.................................... 898
Steiner v. Commissioner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 850
Stengel v. Anaheim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1129
Stephens, Inc. v. United States........................... 1118
Stephenson v. Landegger. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
Sterling Drug, Inc.; Dawn v . ......................... 865, 1118
Sterling Drug, Inc.; Game Co. v. . . . . . . . . . . . . . . . . . . . . . 865, 1118
Sterling Drug, Inc. v. Singer.............................. 878
Stemkopf v. United States.... . . . . . . . . . . . . . . . . . . . . . . . . . . . 914
Sterrett v. Gaither. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1070
Sterrett v. Mothers' & Children's Rights Organization. . . . . . 809
Stevens; Erdmann v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 889
Stevens v. United States................................. 948
Stevenson v. Montanye................................... 860
Steward v. Virginia. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
Stewart; Greenseid v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 914
Stewart; White Motor Corp. v............................ 1061
Stidham; Swenson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
Stidham v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 868
Stiglets v. United States.................................. 1039
Stock v. Maryland....................................... 1045
Stockman v. California................................... 979
Stokes v. United States................................... 986
Stone v. I\1aine.......................................... 908
Stone v. Stone ...................................... 1000, 1118
Stone v. United States................................... 997
Stone; vViley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126
Story v. United States................................... 988
Stovall; Farrell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 898
Strachan Shipping Co.; Lewis v ....................... 887, 1002
Streckfus Steamers, Inc. v. St. Louis....................... 841
Strode v. Mississippi... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1055
Strollo v. Alldredge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
Strong v. Maryland...................................... 901
Strother v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1011
Struck v. Secretary of Defense ......................... 947, 1071
Strunk v. United States.................................. 1106
Students Chal'ging Reg. Agcy.; Aberdeen & R.R. Co. v. 1073, 1207
Students Chal'ging Reg. Agcy.; ICC v. . . . . . . . . . . . . . . . . . . . . 1207
Students Chal'ging Reg. Agcy.; United States v............ 1073
Stynchcombe; Chaffin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 912, 1123
Stynchcombe; Watson v ............................... 873, 1002
TABLE OF CASES REPORTED CXXXIX
Sudduth v. United States ................................ .
Sullivan v. Georgia ................................. . ... .
Sunbeam Corp.; Wilkin v . .............................. .
Sunset Amusement Co. v. Board of Police Comm'rs ....... .
Sun Shipbuilding & Dry Dock Co. v. United States ....... .
Superintendent of Field Unit No. 9 v. Terry ............. .
Superintendent of penal or correctional institution. See name
of superintendent.
Page
871
897
1126
1121
1023
814
Superintendent of Public Instr. of Pa.; Lemon v. . . . . . . . . . . . 976
Superior Court of Arizona; Citizens Util. Water Co. v... . . . 1022
Superior Court of California; Farr v...................... 1011
Superior Court of California; Gomez v. . . . . . . . . . . . . . . . . . . 1059
Superior Court of California; Michigan National Bank v. . . . 1125
Superior Court of Los Angeles County; Davis v............ 913
Superior Court of Puerto Rico; Alers v. . . . . . . . . . . . . . . . . . . 899
Superior Court of San Francisco; MaGee v. . . . . . . . . . . 1036, 1078
Supreme Court of Florida; Falkner v .................. 823, 1051
Supreme Court of Florida Chief Justice; Fair v. . . . . . . . . . . . 947
Supreme Court of Illinois Justice; Napolitano v............ 1037
Supreme Court of Indiana; Bradley v.................... 1105
Supreme Court of Minnesota Clerk; Daly v. . . . . . . . . . . . . . . 1041
Supreme Court of Ohio; Slone v. . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Supreme Court of Oklahoma; Smith v.................... 1126
Supreme Judicial Court of Massachusetts; Campo Corp. v.. 1024
Surety Savings & Loan Assn. v. Wisconsin Dept. of Transp.. 810
Sutherland v. United States.............................. 1078
Sutton's Steel & Supply; Southern Pacific Transp. Co. v. . . . 1061
Swarthout v. Olund ................................. 1008, 1119
Sweeney v. Monroe County.............................. 912
Sweetenham v. Gilligan....... . . . . . . . . . . . . . . . . . . . . . . . . . . . 942
Swenson; Gerberding v.................................. 1129
Swenson; Keeny v .................................. 1027, 1118
Swenson; Parker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126
Swenson v. Stidham. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
Swenson; Tyler v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 979
Swope, In re............................................ 1114
Szabo v. Westmoreland County Authorities................ 1114
Szczytko v. Johnson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 987
Szijarto v. Nelson... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
Tafoya v. Eyman....................................... 979
Tahl v. O'Connor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1042
Tamiment, Inc.; Labor Board v . ...........•.............. 1012
Tanck; Hutter v....................... . ................ 1106
CXL TABLE OF CASES REPORTED
Page
Tanner v. Twomey. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1043
Tanner v. United States................................. 949
Tarlton v. Wolfe........................................ 862
Tarrant County Hospital District; Ritch v. . . . . . . . . . . . . . . . 1079
Tate v. D. C. Transit Co................................. 1027
Tate v. United States.................................... 867
Tatum; Laird v ...................................... 824,901
Tatum v. United States.................................. 1028
Tax Comm'n of Arizona; McClanahan v................... 820
Taylor v. Arizona.............. . ........................ 1130
Taylor; Elliott v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 885
Taylor v. Slayton....................................... 1115
Taylor; Stanley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 983
Taylor v. United States ...................... 856,967, 1044, 1113
Tcherepnin; Lowenthal v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1038
Tea v. Texas........................................... 898
Teagle; Watts v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 899
Teamsters; Sid Harvey, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1041
Telio v. Illinois. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 857
Tennant v. United States................................ 863
Tennessee; Miner v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1113
Tennessee; Parton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 871
Tennessee; Shelton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 852
Tennessee; Venable v.................................... IOU
Tennessee Board of Law Examiners; Miller v. . . . . . . . . . . . . . 1126
Tennessee Valley Authority; Two Tracts of Land v......... 887
1020 N. Quincey Street, Ltd.; Chapa v. . . . . . . . . . . . . . . . . . . . 881
Terminal Freight Cooperative v. Labor Board. . . . . . . . . . . . . 1063
Terry; Superintendent of Field Unit No. 9 v............... 814
Texaco Inc.; Belliston v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1001
Texaco Inc. v. Labor Board.............................. 1008
Texas; Branch v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902
Texas; Broadway v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Texas; Bryant v........................................ 1126
Texas; Buchanan v .................................. 814, 1029
Texas; Campbell v...................................... 1008
Texas; Carnathan v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 866
Texas; Carr v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1099
Texas; Crawford v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 979
Texas; Curry v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 899
Texas; David v......................................... 898
Texas; Davis v......................................... 898
Texas; Hight v......................................... 1071
TABLE OF CASES REPORTED CXLI
Page
Texas; Hill v........................................... 1078
Texas; Hunter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 988
Texas; Lara v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 871
Texas; Lee v........................................... 1046
Texas v. Louisiana...................................... 816
Texas; Martin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1021
Texas; Matthews v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 899
Texas; McKenzie v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 898
Texas; Morales v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 898
Texas; Nash v. . .. . . . . . . . . .. . . . . . . . . .. .. .. . .. . .. .. . . 887, 1050
Texas; Pilgrim Equipment Co. of Houston v. . . . . . . . . . . . 982, 1118
Texas; Sanders v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 884
Texas; Smith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 897
Texas; Stanley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 899
Texas; Tea v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 898
Texas; Thames v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 898
Texas; Von Perry v..................................... 916
Texas; Weaver v....................................... 853
Texas; Webb v.......................................... 95
Texas Board of Barber Examiners v. Bolton. . . . . . . . . . . . . . . 807
Texas Board of Medical Examiners; Martinez v. . . . . . . . . . . . 1020
Texas Eastern Transmission Corp. v. Benson. . . . . . . . . . . 1003, 1119
Texas Employment Comm'n; Schattman v............... 1107
Texas Gas Transmission Corp. v. Memphis Light & Gas.... 1037
Texas Governor; Archer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 808
Texas Secretary of State; American Party of Texas v. . . . . . . . 803
Texas Secretary of State; Godwin v. . . . . . . . . . . . . . . . . . . . . . 1048
Texas Secretary of State v. Regester..... . . . . . . . . . . . . . . . . . 840
Texas Secretary of State v. Weiser..... . . . . .. .. . . . . . . . . . . . 947
Textile Workers; Labor Board v.......................... 213
Thacker v. Georgia..................................... 897
Thacker v. Henry. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 988
Thacker v. Slayton...................................... 882
Thames v. Texas........................................ 898
Third Brevoort Corp. v. Board of Standards and Appeals.. 1030
Third Judicial District Court for Salt Lake County; Lloyd v. 907
30th Judicial Circuit Court of Kentucky; Braden v. . . . . . . . 822
Thomas; Allen v....................................... 1114
Thomas v. Beto. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 853
Thomas v. California.................................... 895
Thomas v. Cardwell. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 854
Thomas v. Nelson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 987
Thomas v. United States ............. 859,864,870,951,992, 1006
CXLII TABLE OF CASES REPORTED
Page
Thompson v. Amis... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 847
Thompson v. Bd. of Comm'rs of Oak Brook Park Dist. . . . . . 850
Thompson; Bradshaw v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 878
Thompson v. Department of Army....................... 988
Thompson v. Gray. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077
Thompson v. Kansas City Power & Light Co............... 944
Thornley v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 873
Thornton; Caldwell v................................... 1027
Thornton v. Prichard. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 802
Tibbitts v. Cussen...... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 982
Tidewater Oil Co. v. United States ...................... 151,818
Tierney v. United States................................. 1232
Tilli v. Davis........................................... 901
Tillman v. Maryland..................................... 812
Tillman v. New Jersey................................... 1049
Tillman v. Wheaton-Haven Recreation Assn ........ 821,910, 1034
Time, Inc.; Cervantes v................................. 1125
Time, Inc; Firestone v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 875
TMT Trailer Ferry Stockholders; Mehrtens v. . . . . . . . . . . . . . 849
Todd; Bailey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1113
Toledo Blade Co.; Lamb Enterprises, Inc. v... . . . . . . . . . . . . . 1001
Tollett v. Henderson ................................. 912, 1004
Toltec Watershed Imp. Dist.; Associated Enterprises v. . . . 1103
Tomasino v. California.................................. 1121
Tomeo v. United States.................................. 914
Tonasket v. Washington .......................... 821,976, 1122
Toomey v. United States................................ 1112
Torres v. United States................................... 863
Tortora v. United States.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 980
Town. See name of town.
Townsend v. Twomey. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 854
Township. See name of township.
Traber v. United States................................. 1044
Tracy v. Hawks......................................... 1062
Trafficante v. Metropolitan Life Insurance Co. . . . . . . . . . . 205, 976
Trahan v. Cupp......................................... 884
Transcontinental Gas Pipe Line; Hackensack Meadowlands v. 1118
Transportation Union v. Indiana Harbor Belt R. Co........ 950
Transportation Union v. United States.................... 1107
Trans World Airlines v. Hughes Tool Co................... 363
Trans World Airlines; Hughes Tool Co. v................. 363
Travelers Indemnity Co. v. Erickson's, Inc................. 847
Travelers Insurance Co.; Kerr v.......................... 986
TABLE OF CASES REPORTED CXLIII
Page
Travis-Edwards, Inc. v. Hodgson... . . . . . . . . . . . . . . . . . . . . . . 1076
Tremarco v. New York.................................. 1040
Trevino v. United States................................. 918
Tribblet v. Salisbury. . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 952
Trinter; Orr v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 898
Trio Process Corp.; L. Goldstein's Sons v. . . . . . . . . . . . . . . . . . 997
Tripp v. Slayton....... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111
Troy v. Kansas.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 882
Tubbs v. United States................................... 873
Tucker v. Bitonti........................................ 851
Tucker; Specter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 810
Tuition Plan of New Hampshire; Moran v ............. 872, 1050
Tulare Lake Basin Water Storage Dist.; Salyer Land Co. v.. 1104
Tull v. Warden.......................................... 901
Turner v. District of Columbia. . . . . . . . . . . . . . . . . . . . . . . . . . . . 986
Turner; Pendergraft v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 866
Turnpike Realty Co. v. Dedham.......................... 1108
Tuscany Fabrics, Inc. v. United States. . . . . . . . . . . . . . . . . . . . . 845
12 200-Ft. Reels of Super 8mm. Film; United States v...... 909
Twomey; Johnson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 863
Twomey; Lego v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1062
Twomey; Tanner v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1043
Twomey; Townsend v................................... 854
Two Tracts of Land v. Tennessee Valley Authority......... 887
Two Unknown Named Patrolmen; Singal v................ 869
Tyler v. Parks ....................................... 858, 1019
Tyler v. Swenson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 979
Tyler v. United States ................................ 951, 1045
Union. For labor union, see name of trade.
Union Bank & Trust Co. of Helena; McKy v ............. .
Union Camp Corp. v. Dyal. ............................ .
Union Commerce Bank; Shaps v ....••.....•.••.•.....••.
Union Oil Co. of California v. The San Jacinto ............ .
United. For labor union, see name of trade.
1041
849
1060
140
United American Life Insurance Co.; Perillo v. . . . . . . . . . . . . 1008
United Network, Inc.; LewRon Television, Inc. v........... 916
United States; Abbamonte v............................. 880
United States; Abshire v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 880
United States v. Ace Doran Hauling Co ................. 904, 1050
United States; Achtenberg v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
United States; Aero Mayflower Transit Co. v. . . . . . . . . . 905, 1049
United States; Aikin v........................... . . . . . . 981
United States; Akin v................................... 981
CXLIV TABLE OF CASES REPORTED
Page
United States; Alabama v......... . .................. . .. . 1023
United States; Albidrez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 862
United States; Alexander v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 844, 1024
United States; Allard v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 861, 1050
United States; Allen v.................................. 869
United States; Allers v............... . ...... . ........... 854
United States; Allison v. . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . 1111
United States; Almeida-Sanchez v ...................... 822, 1035
United States; Almota Farmers Elevator & Warehouse v.. . 470
United States; Alston v................................. 871
United States; Alvarez v................................ 1112
United States; Alvarez-Franco v..... . . . . . . . . . . . . . . . . . . . . . 980
United States; Ammons v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 988
United States; Anders v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1064
United States; Anderson v............................... 915
United States; Andreas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 848
United States; Annoreno v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 852
United States; Archer v................................. 856
United States; Ard v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 867
United States; Atkin v. . . . . . .. .. . . . . . . . . . . .. .. . .. . .. . . .. 856
United States; Atkinson v...................... . ........ 856
United States; Austin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
United States; Ayala v.................................. 1127
United States; Azzone v...................... . .......... 990
United States; Bailey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 864
United States; Baldivid v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
United States; Bank of America v .................. 850,949, 1050
United States; Banks v.. .. . . . . . . . . .. .. . . . . . . . . . . .. .. . .. . 1062
United States; Barber v................................. 869
United States; Barnes v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1037
United States; Barron v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 988
United States; Batista v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 862
United States; Bauguess v . . .. . . . . . .. . . .. .. . .. . .. . . . . . .. 1127
United States; Beauchamp v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
United States ; Becker v. . . . .. . . .. . . . . . . . . . . . . . . . .. .. . . . . 1109
United States; Beeman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
United States; Belix v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 985
United States; Bell v.. . ....................... .. ..... . .. 991
United States; Bello v..... . ............................. 846
United States; Benevento v. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1038
United States; Beng-Joc v.. . ... . ... . .......... . ..... . .. 951
United States; Bennett v . ............................. 951, 1010
United States; Benter v................ .. ............ . .. 842
TABLE OF CASES REPORTED CXLV
Page
United States; Berger v............................... .. 892
United States; Bernstein v............................... 1114
United States; Berryhill v. . . . . . . .. . .. . . . . .. . . .. . . . . . . .. . . 1046
United States; Bethea v ............................... 802,882
United States; Birch v.................................. 989
United States v. Bishop............... . ................. 841
United States; Bishop v ............... . ............... 878,951
United States; Black v .............................. 1027, 1123
United States; Blackwood v.............................. 863
United States; Bland v................ . ................. 843
United States; Blank v.................................. 887
United States; Blauner v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 900
United States; Borelli v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1127
United States; Borkenhagen v............................ 1021
United States; Bowers v............... . ................. 868
United States; Boyd v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 867, 1127
United States; Brach v................................... 1059
United States; Bradley v................................ 883
United States; Brain in v. . . . .. . . . . . . . .. . .. . . . .. . . .. . . . . .. 1006
United States; Bredy v.................................. 858
United States; Brewer v................................. 880
United States; Brezina Construction Co. v. . . . . . . . . . . . . . . . 1125
United States; Briggs v.................................. 986
United States; Briola v................................ . . 1108
United States; Bronston v............................... 352
United States; Brown v ........ 843,864,886,988, 1061, 1112, 1119
United States; Brownstein v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1028
United States; Bruce v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 867
United States; Brudney v.............................. . . 916
United States; Bryant v .............................. 918, 1112
United States; Bublick v .... ......................... 1055, 1076
United States; Budzanoski v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 949
United States; Bullard v................................. 916
United States; Bursten v................................ 843
United States; Bustillo v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1025
United States v. Byrum................................. 898
United States; Campbell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1062
United States; Cantu v.................................. 1128
United States; Capital Assistance Corp. v. . . . . . . . . . . . . . . . . 941
United States; Carbonaro v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1062
United States; Cardillo v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1078
United States; Carlton v............ . .................... 875
United States; Carpenter v ............................ 985,991
CXLVI TABLE OF CASES REPORTED
Page
United States; Carpenters v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 851
United States; Carroll v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 860
United States; Carson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 949
United States; Carter v . .............................. 984, 1068
United States v. Cartwright.............................. 840
United States; Cassidy v. . . . . . . .. . . . . . . . .. . .. . . . . . .. . . . . . 1026
United States; Casson v................................. 1112
United States; Castillo v.. . .. .. . . .. . .. . . . .. .. .. . .. .. . . . .. 865
United States; Cataldo v..................... .. ......... 848
United States; Cecere v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 843
United States; Charlton v. . . . . . . . . . . . . . .. . . . .. . . . . . . . . . . . 1027
United States v. Chicago, B. & Q. R. Co...... . ........... 947
United States; Childs v. . . . . . . . . . . . . .. .. . . . . . . . . 966, 1055, 1131
United States; Chiodi v................................. 1113
United States; Chisum v................................ 987
United States; Chitwood v............................... 858
United States; Chong Yuk Wah v . . . . . . . . . . . . . . . . . . . . . . . . 845
United States; Ciotti v. . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . 863
United States; Cities Service Oil Co. v. . . . . . . . . . . . . . . . . . . . 1063
United States; Clark v . ............................... 880, 1028
United States; C1izer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1086
United States; Cloe v. . . . . . . . . . . .. . . . . . . . . . . . . . . . .. . . . . . . 1045
United States; Cody v................................... 1010
United States; Cohn v.................................. 875
United States; Cole v ........................... . ..... 8681 942
United States; Coleman v............................... 871
United States; Collins v ............................... 988, 1011
United States; Columbian Fuel Co. v. . . . . . . . . . . . . . . . . . . . . . 1063
United States; Cook v ........... . .................... 949, 1011
United Stares; Cool v.................... . ............... 100
United States; Cooney v......... . ....................... 1044
United States.: Cooper v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009, 1107
United States; Copeland v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 859
United States; Copp v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 861
United States; Corcoran v............................... 880
United States; Couch v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322
United States; Courier ............................... 934, 1104
United States; Cravens v. .................. . ............ 981
United States; Crawford v.................. . ............ 915
United States; Crismon v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 890
United States; Crosson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1064
United States; Crutch v................................. 883
United States; Dahl v................................... 874
TABLE OF CASES REPORTED CXLVII
Page
United States; Dailey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
United States; Dalton v ............................. 1062, 1131
United States; Dameron v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 882
United States; Daniel v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 843
United States; Daras v.................................. 1046
United States; Davidson v. . . . . .. .. .. . . . . . . . . . . . . . . . . . . . . 985
United States; Davis v ........... ................. 841,921, 1025
United States; Dawson v................................. 1072
United States; Dean v................................... 886
United States; DeCarlo v. . . . . .. .. . . . . .. .. . . . . . . . . . . .. . . . 843
United States; Dennett v................................ 851
United States; Dennis v................................. 865
United States; DePugh v................................ 898
United States; DeVerse v................................ 988
United States; DiCanio v................................ 870
United States; Dickson v................................ 876
United States; Diehl v.................................. 982
United States; Diggs v. . . .. . . .. . . . . . . . . . . . . .. . . . . .. . . . 882, 901
United States; Dixon v. . . . . . . .. .. .. . . . . . . .. .. .. . . . . . .. .. 864
United States; Doherty v . ............................. 888, 1093
United States; Donohoe v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 865
United States; Donovan v............................... 918
United States; Dorrough v............................... 868
United States; Dorsey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 870
United States; Doyal v.................................. 870
United States; Drew v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1062
United States; Driver v .............................. 1061, 1127
United States; Duncan v................................ 814
United States; Durant v................................. 1127
United States; Dyal v................................... 845
United States; Dykes v.................................. 889
United States; Dzialak v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 952
United States; Eaton v..... . ... . .. ... ...... . . . .......... 880
United States; Echeverria v............................. 893
United States; Edwards v............. . .. . .. . .. .. ...... .. 849
United States; Egan v................................... 875
United States; Ellis v................................... 866
United States; Emdy v.................................. 1011
United States; Engle v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 863, 87 5
United States; English v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1062
United States v. Enmons ........................ 946, 1034, 1054
United States; Enoch v............................. . .... 918
United States; Erlenbaugh v............... . ............ 239
CXLVlII TABLE OF CASES REPORTED
Page
United States; Erwing v................................. 900
United States; Eskridge v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 883
United States; Estrada v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 858
United States; Ethington v.............................. 1026
United States; Evans v.................................. 865
United States; Farries v. . .. . . . . . .. . . . . . . . . . . .. . .. .. . .. .. 888
United States; Featherston v............................. 991
United States; Ferrer-Vega v. .. . . .. . . . .. . . . . . . . . .. . . .. . . 1026
United States; Fichman v................................ 845
United States; Fidanian v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
United States; Fink v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 844
United States; First National Bank at Lubbock v. . . . . . . . . . 1125
United States; Flannery v................................ 1125
United States v. Florida East Coast R. Co................. 1032
United States; Fontaine v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 978, 1005
United States; Ford v................................... 881
United States; Forrester v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 856
United States; Fouchey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 884
United States; Fournier v................................ 1118
United States; Francis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 940
United States; Freeman v................................ 900
United States; Freese v.................................. 879
United States; Fried v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 908, 1059
United States v. Fuller. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 488
United States; Gaglie v.................................. 908
United States; Gaines v.................................. 883
United St.ates; Gant v... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1028
United States; Garcia-Turino v ........................ 951, 1068
United States; Gardner v. .. .. .. .. .. .. . .. . . .. . . . . .. . . . .. . 867
United States; Garr v................................... 880
United States; Gedarro v................................ 1028
United States; Geier v.................................. 1006
United States v. General Dynamics Corp.................. 1058
United States; Georgia v................................. 911
United States; Ghassem1 v.... . . . . . . . . . . . . . . . . . . . . . . . . . . . 886
United States; Gibboney v... . . . . . . . . . . . . . . . . . . . . . . . . . . . . 858
United States v. Glaxo Group Ltd......................... 818
United States; Godin v................................... 952
United States; Gonzales v................................ 914
United States; Goodwin v................................ 859
United States; Gradsky v................................ 894
United States; Grandi v ... . .. . .. . . . . . . . .. . . . . . . . .. . . . .. . 870
United States; Grant v...... . ............................ 914
TABLE OF CASES REPORTED CXLIX
Page
United States v. Gravel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902
United States; Gravel v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902
United States; Gray v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
United States; Greer v................................... 869
United States; Gregory v. . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . 956
United States; Gremillion v..... . . . . . . . . . . . . . . . . . . . . . . . . . 1085
United States; Grene v ............................... 856, 1093
United States; Griffin v ............................... 988, 1009
United States; Griffith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
United States; Grooms v................................. 858
United States; Guy v ................................. 896, 1002
United States; Hampton v........................... .. . . . 856
United States; Handel v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 984
United States; Handy v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 846
United States; Harkins v... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 883
United States; Harper v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 973, 1093
United States; Harrell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 846
United States; Harris v . ........................... 877,884,951
United States; Harrison v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 862, 884
United States; Harris Trust & Savings Bank v............ 1059
United States; Hart v................................... 861
United States v. Hartford Accident & Indemnity Co........ 979
United States; Harvell v................................. 802
United States; Hauff v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 873
United States; Havelock v............................... 857
United States; Heath v.................................. 846
United States; Hebah v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 870
United States; Henkel v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 859
United States; Hereden v................................ 1028
United States; Herrmann v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 802
United States; Hersh v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
United States; Hessler v. . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . 989
United States; Hiken v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 842
United States; Hill v. . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . .. . . 952
United States; Hoff v................................... 889
United States; Holiday v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 913
United States; Holmes v................................. 1002
United States; Hord v.................................. 866
United States; Houp v . ............................. 1011, 1119
United States; Hudson v................................ 872
United States; Huie v ................................ 891,1029
United States; Humble v................................ 1007
United States; Humphrey v............. . ................ 854
CL TABLE OF CASES REPORTED
Page
United States; Hunter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934, 1104
United States; Hurst v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
United States; Hurtado v................................ 841
United States; Iannelli v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 980
United States v. International Transport, Inc ........... 904, 1049
United States v. Interstate Com. Comm'n .......... 904, 1049, 1050
United States; James v .............................. 872, 1086
United States; Janosko v................................. 1111
United States; Jenkins v................................. 883
United States; Jerkins v................................. 987
United States v. Jim .................................. 80, 1118
United States; Johnson v . ................ 856,858,873,952, 1111
United States; Jones v .......................... 1010, 1111, 1125
United States; Jordan v.................................. 1129
United States; Judice v... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 886
United States; Kabinto v................................ 842
United States; Kansas City Southern R. Co. v.............. 1094
United States; Katz v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 899
United States; Kaye v................................... 863
United States; Keeble v................................. 1037
United States; Keefer v. . . . . . . . . . . . . .. . . . . .. . . . . . . . . . . . . 983
United States; Keever v................................. 1085
United States; Keller v.................................. 1026
United States; Kelly v .......................... 889, 1112, 1127
United States; Kennedy v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 864
United States; Kephart v................................ 1048
United States; Keresty v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 991
United States; Kerr Motor Lines v....................... 972
United States; Ketola v................................. 815
United States; Kier v................................... 950
United States; Kile v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 4
United States; Kirk v . ................................ 856, 987
United States; Knight v................................. 869
United States; Knox v ............................... 845, 1010
United States; Kokas v.................................. 1107
United States v. Korman................................ 897
United States; Kotrlik v.. .. .. . . . . .. . .. . . .. . . . . . . . . . . . . . 1043
United States v. Kras.................................... 434
United States; Kraude v. .. . . . . . . .. . . .. .. . . . . . . . . . . . . .. . 1076
United States; Kropke v................................. 914
United States; Kunz v.................................. 914
United States; Kwitek v................................. 1079
United States; Kyle v ................................ 1043, 1117
TABLE OF CASES REPORTED CLI
Page
United States; Lacaze v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921
United States; Lacob v.................................. 842
United States; Lamonge v............................... 863
United States; Lane v ................................. 876,952
United States; Laswell v... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112
United States; Lathrop v................................ 873
United States; Lauchli v................................. 869
United States; Lauria v................................. 1023
United States; Leal v. . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . 889
United States; Leana v.................................. 889
United States; Leavitt v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
United States; Lehman v................................ 950
United States; Lee v............................ ... . . . . . . 951
United States; Leftwich v................................ 1127
United States; Legari v.................................. 982
United States; Lehman v................................ 967
United States; Levine v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 848
United States; Lewis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 856, 921
United States; Liberty Amendment Committee v. . . . . . . . . . . 1076
United States; Lightenburger v. . . . . . . . . . . . . . . . . . . . . . . . . . 983
United States; Lincoln v................................. 952
United States; Lines v. .. . . . . .. . . . . . . . . . . . . . . . . . . . . .. . . . 986
United States; Lipscomb v............................... 901
United States v. Little Lake Misere Land Co.............. 840
United States; Llerena v................................. 878
United States; Logue v. .. . . . . .. .. . . . .. . .. . . . .. . .. . . . . . . . 1106
United States; Lombardozzi v.. . .. . . . . . . . . . . .. .. .. . . . . . . . 1108
United States; Longshoremen v. . . . . . . . . . . . . . .. . .. . . .. . .. 1007
United States; Lopez v.. . . . . . . . . . . . . . . . . . . .. . . . . . . 862, 866, 985
United States v. Louisiana .............................. 17,909
United States; Love v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 851
United States; Lowry v .......................... 874,887, 1050
United States; Lowther v.............. . ................. 857
United States; Lucchetti v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 987
United States; Luttrell v................................ 1041
United States; Machado v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 860
United States, Madison v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 859
United States; Mallory v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 870
United States; Manfredonia v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 851
United States v. Mara................................... 976
United States v. Marasovich.............................. 976
United States; Marchetti v ................ . .......... 823, 1063
United States; Marcovich v. . . . . . . .. . . . . . . . . . . . . . . . . . . . . . 933
CLII TABLE OF CASES REPORTED
Page
United States; Martin v ............. 864,870,871,878, 1043, 1093
United States; Martinez-Frausto v........................ 815
United States; Martinez-Villanueva v..................... 915
United States; Martino v................................ 1116
United States v. Mason... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1124
United States; Ma.ssimo v................................ 1117
United States; Mastrqtataro v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 898
United States; Mather v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1085
United States; Mathews v................................ 896
United States; Mauchlin v............................... 995
United States; McBride v............................... 1027
United States; McClard v................................ 988
United States; McCray v................................ 865
United States; McDonnell v.............................. 860
United States; McEachern v............................. 1043
United States; McGee v................................. 989
United States; McKee v .............................. 899, 1019
United States; McLean Trucking Co. v.................... 1121
United States; McMullen v.............................. 1078
United States; McQueen v............................... 857
United States; Medina v .......................... 855,873, 1029
United States; Melancon v............................... 1038
United States; Mendez-Ruiz v............................ 1117
United States; Merrick v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
United States; Michaud v................................ 876
United States; Middlebrooks v. . . . . . . . . . . . . . . . . . . . . . . . . . . 848
United States; Middleton v.............................. 863
United States v. Midwest Video Corp...................... 898
United States; Milder v.................................. 851
United States; Miller v ................................ 881,981
United States; Ming v ................................ 915, 1051
United States; Miranda v................................ 874
United States; Missouri Pacific R. Co. v . . . . . . . . . . . . . . . . . . . 1094
United States; Mitchell v.. .. .. .. .. . . .. . .. .. .. . .. . . . .. .. . 866
United States; Mitman v................................. 863
United States; Monje v................................. 1010
United States; Montano v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
United States; Moore v . ................ 872,899,985, 1108, 1111
United States; Moran v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 857
United States; Morland v................................ 866
United States; Morningstar v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 896
United States; Morris v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 985
United States; Morrow v................................ 873
TABLE OF CASES REPORTED CLIII
Page
United States; Morton v................................. 1058
United States; Mott v................................... 1108
United States; Muncaster v.............................. 1105
United States; Munchak v............................... 915
United States; Munns v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 871
United States; Murdock v............................... 1044
United States; Murphy v................................. 914
United States; National American Bank of New York v..... 980
United States; National Motor Freight Traffic Assn. v. . . . . . 1094
U nitcd States; National Surety Corp. v. . . . . . . . . . . . . . . . . . . . 846
United States; Navallez v............................... 1025
United States; Nease v.................................. 873
United States; Newell v ............................. 1025, 1093
United States; Nichols v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 966
United States; Ninov v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 986
United States; Nix v . ............................... 1013, 1119
United States; Nordlof v................................. 988
United States; Norman v................................ 1107
United States; Nugent v................................. 1065
United States; Nunley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 856
United States; O'Brien v ............................. 981, 1112
United States; Ochoa v .............................. 1079, 1113
United States; O'Clair v................................. 986
United States; One Lot Emerald Cut Stones v. . . . . . . . . . . . . . 232
United States; Oree v.... . .............................. 1108
United States; Otter Tail Power Co. v..................... 820
United States; Ottomano v.... . ......................... 1128
United States; Overton v................................ 1043
United States; Pack v................................... 860
United States v. Paladini................................. 909
United States; Palmer v .............................. 874, 1051
United States; Palmore v ...................... . . 840,977, 1055
United States; Panas v.................................. 886
United States; Parker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 860, 870
United States; Parks v.................................. 865
United States; Parten v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 983
United States; Patterson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1038
United States; Pennsylvania v. . . . . . . . . . . . . . . . . . . . . . . . . . . 894
United States v. Pennsylvania Ind. Chemical Corp..... . . . . 1074
United States; Pensec v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 891
United States; Perkins v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1062
United States; Peters v. . . . . . . .. . . .. . . .. .. . .. . .. .. .. . .. . 1127
United States; Phillips v............................... . . 991
CLIV TABLE OF CASES REPORTED
Page
United States; Pineda v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 981
United States; Pollard v................................. 1127
United States; Popkin v................................. 1002
United States; Porter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079
United States; Portner v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 983
United States; Preston v . ............................. 880, 1078
United States; Price v... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1040
United States; Projansky v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
United States; Puca v................................... 882
United States; Quattrucci v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 900
United States; Quinones-Alvarado v........... . . . . . . . . . . . 1128
United States; Quintana v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 877
United States; Raimondi v............................... 847
United States; Ramsdell v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 882
United States; Randall v................................. 862
United States; Randazzo v.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 858
United States; Raymond v............................... 1001
United States; Reed v................................... 985
United States; Reilly v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1232
United States; Reynolds v............................... 842
United States; Richerson v ........................... 883, 1119
United States; Ricollet v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 870
United States; Rigdon v................................. 1116
United States; Rivera v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 863
United States; Roberts v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1026
United States; Robertson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 985
United States; Robins v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 856, 880
United States; Robinson v ............................. 863, 1050
United States; Roche v.................................. 951
United States; Radovich v. . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 846
United States; Rodriguez v.............................. 865
United States; Rodulfa v................................ 949
United States; Roger v.................................. 1047
United States; Rogers v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
United States; Romano v................................ 915
United States; Rosemond v............................... 1086
United States; Rosenberg v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 868
United States; Ross v ..... .................. 868,984, 1113, 1118
United States; Roth v.................................... 1048
United States; Rothman v ............................. 956, 1050
United States; Ruderer v................................. 1031
United States; Ruggirello v............. . . . . . . . . . . . . . . . . . 886
United States; Ruisi v................................... 914
TABLE OF CASES REPORTED CLV
Page
United States v. Russell. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 911, 946
United States; Russell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
United States; Ryan v.................................. 866
United States; Saffioti v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 908
United States; Sailor v.................................. 851
United States v. St. Louis-S. F. R. Co..................... 1116
United States; Salazar v ............................. 1061, 1107
United States; Salter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019
United States; Salvaggio v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 848
United States; Samuels v.. . . . . . . . . . . .. . . . . .. . .. . .. .. .. . . 899
United States; Sanchez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 864
United States; Sanders v .......................... 860,916, 1045
United States; Santoro v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1063
United States; Savidge v................................. 1048
United States; Schaack v................................ 875
United States; Schafer v. . . . . . . . . . . . .. . . . . . . . . . . .. .. . . . .. 881
United States; Schneider v. . . . . . . . . . . . . . . . . . . . . . . . . .. . 877, 1111
United States; Schoefield v.............................. 881
United States; Schrenzel v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 984
United States; Schwartz v................................ 1009
United States; Sciortino v .. . . .. . . . . . . .. .. .. . . . . . . . . . . . . . 859
United States; Scogin v.................................. 865
United States; Scott v ................................. 866,888
United States; Segura v................................. 875
United States; Shameia v................................. 1076
United States; Sheppard v............................... 985
United States; Shields v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901
United States; Sidman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1127
United States; Sikes v ................................ 951, 1051
United States; Simpson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1078
United States; Slatko v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075
United States; Smilow v................. .. . . . . . . . .. .. .. . 944
United States; Smith v . ................. 869,883,913, 1066, 1076
United States; Smith's Transfer Corp. v................... 1120
United States; Spaulding v.............................. 884
United States; Spears v. . . . . . .. .. .. . . . . .. .. . .. . . .. .. . . . . 980
United States; Speer v.. . . . . . . . . . . .. .. . . . . . . . .. . . . . .. .. . 951
United States; Spinks v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1011
United States; Springer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 873
United States; Squires v. .. . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . 980
United States; Stamp v.................................. 842
United States; Stapleton v ............................. 894,914
United States; Star Industries v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1076
CLVI TABLE OF CASES REPORTED
Page
United States v. State Corporation Comm'n of Va......... 1094
United States v. State Tax Comm'n of Mississippi.. . ........ 1005
United States; Stead v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 952
United States; Stecher v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 984
United States; Steed v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1078
United States; Stein v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 898
United States; Sternkopf v... . .......................... 914
United States; Stephellil, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . 1118
United States; Stevens v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 948
United States; Stidham v. . . . . . . . . . . . . . . .. .. . . . .. . . . . . .. . 868
United States; Stiglets v. . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
United States; Stokes v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 986
United States; Stone v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 997
United States; Story v................................... 988
United States; Strother v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1011
United States; Strunk v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1106
United States v. Students Challenging Reg. Agency.......... 1073
United States; Sudduth v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 871
United States; Sun Shipbuilding & Dry Dock Co. v. . . . . . . . 1023
United States; Sutherland v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1078
United States; Tanner v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 949
United States; Tate v................................... 867
United States; Tatum v.................................. 1028
United States; Taylor v ........ . ............ 856,967, 1044, 1113
United States; Tennant v.. . . . . . . . . . .. . .. . .. . . . . .. . . . . . . . 863
United States; Thomas v . ............. 859,864,870,951, 992, 1006
United States; Thornley v............................... 873
United States; Tidewater Oil Co. v . ..................... 151,818
United States; Tierney v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1232
United States; Tomeo v................................. 914
United States; Toomey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112
United States; Torres v.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 863
United States; Tortora v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 980
·united States; Traber v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
United States; Transportation Union v. . . . . . . . . . . . . . . . . . . 1107
United States; Trevino v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 918
United States; Tubbs v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 873
United States; Tuscany Fabrics, Inc. v. . . . . . . . . . . . . . . . . . . . 845
United States v. 12 200-Ft. Reels of Super 8mm. Film...... 909
United States; Tyler v .... ............................ 951, 1045
United States; Valentine v . ............................ 858,987
United States; Verduzco-Macias v............... . ........ 883
United States; Villauerda v...................... . ....... . 860
TABLE OF CASES REPORTED CLVII
Page
United States; Vines v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
United States; Voege v.................................. 986
United States; Von Sleichter v............................ 1063
United States; Wagner v. . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . 1106
United States; Walker v... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 883
United States; Ware v................................... 888
United States; Way v................................ . ... 1078
United States; Weaver v................................. 881
United States; Webb v . ................................ 815,986
United States; Weg v.................................... 898
United States; Wenger v ..... .......................... 843, 899
United States; West v................................... 880
United States; Western International Hotels Co. v........ 1125
United States; White v.................................. 1043
United States; Wilke v.................................. 918
United States; Wilkes v.................................. 864
United States; Williams v . ................ 857,872,875,967, 1025
United States; Wilson v................................. 1111
United States; Wion v.................................. 916
United States; Witkowski Estate v. . . . . . . . . . . . . . . . . . . . . . . . 891
United States; Woods v.................................. 1045
United States; Workman v............................... 857
United States; Wren v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1129
United States; Wrenn v................................. 1113
United States; Wright v.................................. 915
United States; Wynn v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1025
United States; Wysocki v................................ 859
United States; Zamora-Yescas v.......................... 881
United States; Zarate v ............................... 915, 1051
United States; Zizzo v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
United States; Zweig v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111
U. S. Board of Parole; Lipscomb v. . . . . . . . . . . . . . . . . . . . . . . . 861
U. S. Chamber of Commerce v. Francis................... 907
U. S. Circuit Judge ; Olden v . . . . . . • .. .. . . . . . . .. . . . . . • . . . . 1105
U. S. Civil Service Comm'n v. Fitzgerald. . . . . . . . . 1054, 1055, llOO
U. S. Civil Service Comm'n; J alil v. . . . . . . . . . . . . . . . . . . . . . . . 887
U.S. Civil Service Comm'n v. Letter Carriers............... 1058
U.S. Court of Appeals; Bey v ......................... ,.. 823
U. S. Court of Appeals; Carter v. . . . . . . . . . . . . . . . . . . . . . . . . 1122
U.S. Court of Appeals; Durst v .... .......... 946,947, 1068, 1069
U. S. Court of Appeals; Levy v.......................... 823
U. S. District Court; Carter v . . . . . . . . . . . . . . . . . . . . . .. . . . . . 858
U. S. District Court; Congrove v. . . . .. . .. . . . . . .. . . . . . . . . . . 1026
CLVII[ TABLE OF CASES REPORTED
Page
U. S. District Court ; Doyle v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 823
U.S. District Court; Gerardi v........................... 900
U. S. District Court; Levy v . . . . . . . . . . . . . . . . . .. . . . . . .. . . . 899
U. S. District Court; Santana v.......................... 867
U. S. District Court; Zenchak v. . . . . . . . . . . . . . . . . . . . . . . . . . . 1073
U. S. District Court Chief Judge; Chandler v.............. 903
U. S. District Judge v. Battisti....... . . . . . . . . . . . . . . . . . . . . 903
U. S. District Judge ; Carter v. .. . . . . . . . . . . . . . . . . .. . . . . . . . 862
U. S. District Judge; Colgrove v . . . . . . . . . . . . . . . . . . . . . . . 841, 1055
U. S. District Judge; Davis v............................ 1105
U. S. District Judge; Filtrol Corp. v...................... 1110
U. S. District Judge; Lomayaktewa v..................... 843
U. S. District Judge; Neely v .......................... 871, 1050
U.S. District Judge; Newell v ......................... 823, 1002
U. S. District Judge; Paris v .. . . . .. .. . . .. .. .. .. . . . . . .. . . . 951
U. S. District Judge v. Protective Com., TMT Trailer Ferry. 849
U.S. District Judge; Russo v ......................... 1013, 1219
U. S. District Judge; Sams v .. . . . . . . . . . . . . . . . . . . . . . . . . . . . 977
United St11.tes Fire Ins. Co. v. Marine Sulphur Transport... 982
U.S. Patent Office; Warner v............................. 1045
U. S. Postal Service; Direct Mail Advertising Assn. v. . . . . . . 843
U. S. Senate; Eckert v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 858
University of California Regents; Andersen v. . . . . . . . . . . . . . 1006
University of California Regents v. Karst................. 849
University of Illinois Foundation v. Blonder-Tongue Labs... 1061
Upper Pecos Assn. v. Peterson............................ 1021
USV Pharmaceutical Corp. v. Richardson................. 1105
Utah v. Jim .......................................... 80, 1118
Utah; Kelbach v. . . . . . . . . .. .. .. . . . . .. . . . . . . .. . .. . . . . . . . . 900
Utah Tax Comm'n; Kennecott Copper Corp. v .......... 973, 1093
Ute Mt. Tribe of Indians v. Navajo Tribe of Indians...... 809
Valdez v. New Mexico.................................... 1077
Valdivia v. California.................................... 1110
Valentine v. California................................... 1075
Valentine v. United States ............................. 858,987
Valley National Bank; Slade v............................ 1013
Vanderburgh v. New York............................... 912
Van Pelt v. DiCosimo ................................ 865, i051
Van Valkenburgh, Nooger & Neville; Hayden Pub. Co. v.... 875
Varnell v. Beto......................................... 870
Venable; Neil v........................................ 1079
Venable v. Tennessee.................................... 1011
Verduzco-Macias v. United States........................ 883
TABLE OF CASES REPORTED CLIX
Page
Vermont v. New York................................... 1103
Veterans Affairs Administrator; Sibonga v .............. 952, 1068
Veterans for Peace in Vietnam v. Comm'r of Customs...... 933
Village. See name of village.
Villauerda v. United States.............................. 860
Vines v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1048
Virginia; Alexander v. . . . . . . . . .. .. .. . . . . . . .. . . . . . . . . .. . . 911
Virginia; Ferguson v. . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 861, 1050
Virginia; Fincher v..................................... 913
Virginia v. International Air Transport Assn. . . . . . . . . . . . . . . 817
Virginia; Johnson v..................................... 1116
Virginia; McBride v. . . . . . . . . . . .. . . . . . . . . . . . . . .. . . . . . . . . 978
Virginia; Rexrode v. . . .. . . . . . . . . . . . . . . .. . . . . . . . . . . . . . .. . 1099
Virginia; Steward v . . . .. . . .. . . . . . . .. .. .. . . . . . . . . . . . . . . . . 1048
Virginia; Walton v.................... . .............. . .. 900
Virginia Board of Education; Bradley v. . . . . . . . . . . . . . . . . . . 1124
Virginia Board of Education; Richmond School Bd. v .... 910, 1124
Virginia Corporation Comm'n; United States v. . . . . . . . . . . . 1094
Virginia Dept. of Highways v. Arlington Coalition. . . . . . . . . . 1000
Virginia Dept. of Welfare and Institutions v. Woolfolk. . . . . 885
Virginia Governor; Pill is v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 900
Virginia Industrial Comm'n; Dillard v. . . . . . . . . . . . . . . . . . . . 238
Vitoratos v. Cardwell.................................... 1112
Vlahakis v. Schostak... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 916
Vlandis v. Kline. . . . . .. .. . . . . . . . . .. . . . . . . . . . . . .. .. . . . .. . 1036
Voege v. United States.................................. 986
Volpe; Ragland v . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 889
Von Perry v. Texas............. . . . . . . . . . . . . . . . . . . . . . . . . . 916
Von Sleichter v. United States............................ 1063
Vuitch; Hardy v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 851
Wachovia Bank & Trust Co. v. Harris.................... 844
Waddell v. Alldredge.................................... 1045
Waddell v. North Carolina.............................. . 952
Wade; Roe v........................................ . .. 817
Waechter; Amoco Production Co. v....................... 903
Wagner v. United States................................. 1106
Wagner v. Workmen's Compensation Appeals Board....... . 1010
Wah v. United States... . . . . . ........................... 845
Wainwright; Adams v................................... 855
Wainwright; Brooks v................................... 1069
Wainwright; Gibson v. .. . . .. .. . . . . . . .. . . .. . . .. . . .. . . . . . 823
Wainwright; Klier v.................................... 1129
Wainwright; McCrary v................................ 1005
CLX TABLE OF CASES REPORTED
Page
Wainwright; Reynolds v................................. 950
Wainwright; Robinson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1035
Wainwright v. Ross..................................... 884
WAIT Radio v. Federal Communications Comm'n.......... 1027
Walker; Eagle Star Insurance Group v. . . . . . . . . . . . . . . . . . . . 878
Walker v. Georgia...................................... 897
Walker v. Kentucky... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Walker v. United States................................. 883
Wall v. New Jersey. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 997
Wallace v. Warner...................................... 933
Waller v. St. Petersburg. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 989
Walsh; Weiss v......................................... 1129
Walter Kidde & Co.; Hadco Products v. . . . . . . . . . . . . . . . . . . 1023
Walthill v. Omaha Tribe of Nebraska...................... 1107
Walton v. Virginia...................................... 900
Wandschneider; Bekeny v ............................ 973, 1079
Ward v. California...................................... 854
Ward v. Monroeville.................................... 57
Ward; Napolitano v..................................... 1037
Warden. See also name of warden.
Warden; Cunningham v................................. 901
Warden; Davidson v.................................... 989
Warden; Harding v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 854
Warden; Lipscomb v............................ . ....... 901
Warden; McCray v . ................................... .
Warden; Mefford v . ................................... .
Warden; Tull v . . . ... . . ... .. . .......................... .
Ware v. Estes ......................................... .
1112
900
901
1027
Ware; Merrill Lynch, Pierce, Fenner & Smith v. . . . . . . . . . . . 1005
Ware v. United States................................... 888
Warner v. U. S. Patent Office............................ 1045
Warner; Wallace v. .. . . . . . . . . . . .. . . .. . . . . . . .. . . . . . . . . .. . 933
Warren, In re.......................................... 897
Warriner v. Wiseheart ........................... . .... 881, 1119
Warriner Hennetics; Copeland Refrigeration Corp. v. . . . . . . 1086
Warsaw; Forks v....................................... 841
Washer One, Inc. v. Kentucky. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
Washington; Birdwell v................................. 973
Washington v. Jacobs................................... 895
Washington; Myers v. . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . 1061
Washington; Satiacum v................................. 1104
Washington; Tonasket v .......................... 821,976, 1122
Washington Dept. of Rev.; Snohomish Bd. of Equalization v. 810
TABLE OF CASES REPORTED CLXI
Page
Washington Met. Transit Comm'n; D. C. Transit v........ 1086
Washington Parish School Board v. Moses................. 1013
Washington State Bar Assn.; Kosher v. . . . . . . . . . . . . . . . . . . . 852
Washington State Labor Council v. Prince................. 808
Washington Terminal Co.; Heindl v...................... 1113
Washington Urban League v. Public Serv. Comm'n of D. C.. 848
Waterman v. Schutzer................................... 988
Watson v. North Carolina............................... 1043
Watson v. Stynchcombe .............................. 873, 1002
Watts v. Mylius........................................ 898
Watts v. Teagle......................................... 899
Way v. United States................................... 1078
Wayland, In re......................................... 900
Weaver v. California Dept. of Corrections . . . . . . . . . . . . . . 864, 1019
Weaver v. Hutson...................................... 957
Weaver v. Texas........................................ 853
Weaver v. United States................................. 881
Webb; Kansas City v................................... 851
V/ebb v. Texas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
Webb v. United States ................................. 815,986
Webster v. New York................................... 950
Weedlun; Stauffer v..................................... 972
Weg v. United States.................................... 898
Weil ; Meyer v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1060
Weisenburg; Yeaton v................................... 861
Weiser; Bullock v....................................... 947
Weiss v. Chicago. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 896
Weiss; Lefkowitz v..................................... 876
Weiss v. Walsh. .. .. . . .. . . . . . . . . .. . . . . . . . .. .. .. . . . . . . . . . 1129
Wells v. Edwards....................................... 1095
Wells Television, Inc.; Hospital Television, Inc. v..... . . . . . 1024
Wenger v. United States ............................... 843,899
West v. Miller. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 966
West v. United States................................... 880
Westermann v. Nelson................. . ................. 1236
Western Geophysical Co.; Boat Associates, Inc. v. . . . . . . . . . 1040
Western International Hotels Co. v. United States. . . . . . . . . . 1125
Western Natural Gas Co.; Cities Service Gas Co. v........ 1052
Western & Southern Life Ins. Co. v. Commissioner. . . . . . . . 1063
Westmoreland County Authorities; Szabo v. . . . . . . . . . . . . . . . 1114
West Tennessee ACLU v. Memphis....................... 879
Wetteroff v. Grand .................................. 934, 1050
Wetzel v. Blackledge.................................... 989
CLXII TABLE OF CASES REPORTED
Page
Wheaton-Haven Recreation Assn.; Tillman v. . . . . . . 821, 910, 1034
Whitcomb v. Communist Party of Indiana................. 806
Whitcomb; Communist Party of Indiana v. . . . . . . . . . . . . . . . 1235
White v. Cardwell...................................... 1062
White v. Central Charge Service.......................... 895
White; Krikrnanis v..................................... 900
White v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1043
White, Inc. v. Commissioner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 876
White Motor Corp. v. Stewart. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1061
Whitney v. Craven...................................... 1061
Wichita Board of Trade; Atchison, T. & S. F. R. Co. v .. 801, 1005
Wichita Board of Trade; Interstate Com. Comm'n v....... 1005
Wigoda; Cousins v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1201
Wilbanks v. Alabama. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1116
Wilcynski v. Arizona. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 950
Wiley v. Stone.......................................... 1126
Wilke v. United States................................... 918
Wilkes v. United States.................................. 864
Wilkin v. Sunbeam Corp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126
Wilkinson v. Wilkinson................................... 1099
William A. Smith Contracting Co.; Missouri P.R. Co. v. . . . . . 1107
William E. Goetz & Sons v. Board of Regents.............. 1121
Williams v. Bornemeier. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075
Williams v. California................................... 1073
Williams v. Democratic Party of Georgia.................. 809
Williams v. Georgia.. . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 897
Williams v. Hilliard..................................... 1029
Williams v. Louisiana................................... 1078
Williams v. Ohio........................................ 872
Williams v. Smith. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 898
Williams v. United States ................ 857,872,875,967, 1025
Wilmington; Rialto Theatre Co. v........................ 1109
Wilson v. Cardwell. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 984
Wilson v. Downie. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1037
Wilson v. Gaffney. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 854
Wilson v. Lash.......................................... 881
Wilson; Olden v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044
Wilson v. Scott. .................................... 1043, 1131
Wilson v. United States.................................. 1111
Wilson County v. Rodes.................................. 893
Wilson, Inc. v. Medicenters of America. . . . . . . . . . . . . . . . . . . . . 1039
Wilwording v. Burre11.................................... 978
Wimberley v. Lynch .................................. 882, 1019
TABLE OF CASES REPORTED CLXIII
Page
Winchester TV Cable Co. v. Federal Com. Comm'n.......... 1007
Wingo; Bradley v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901
Winston-Salem; Garren v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039
Winter v. Pratt.......................................... 1003
Wion v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 916
Wirth; Clark Equipment Co. v........................... 876
Wisconsin; K witek v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047
Wisconsin; Martin v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 986
Wisconsin; Parker v.................................... 1110
Wisconsin Dept. of Natural Resources; Kirkpatrick v. . . . . . 846
Wisconsin Dept. of Transportation; Surety Sav. & Loan v. . . 810
Wisconsin Electric Power Co.; Lucas v.................... 1114
Wisconsin State Dept. of Public Welfare; Brown v. . . . . . . . . . 862
Wiseheart; Warriner v ................................ 881, 1119
Witkowski Estate v. United States........................ 891
Wocher v. Los Angeles School District. . . . . . . . . . . . . . . . . 1042, 1131
Wolfe v. Mississippi..................................... 1042
Wolfe v. Pennsylvania.................................... 1010
Wolfe; Tarlton v........................................ 862
Wolff; McGhee v........................................ 1022
Wolford; Jackson v...................................... 1010
Wolman; Essex v. . . . . . . . . . . . . . . . . . . .. . .. .. . . . . . . . . . . . . . . 808
Womack v. Craven...................................... 956
Womack v. Fair... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 915
Wong; Hayakawa v..................................... 1130
Wood v. Goodson ..................................... 822, 1030
Woodard ; New Jersey v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 886
W oodhill Chemical Sales Corp.; Dev con Corp. v. . . . . . . . . . . 845
Woodmansee; Huckabay v............................... 900
Woods v. United States.......... . . . . . . . . . . . . . . . . . . . . . . . . . 1045
Woodson; Cox v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 991
Woodward; Godwin v................................... 891
Woolfolk; Brown v...................................... 885
Workman v. United States............................... 857
Workmen's Comp. Appeals Board; Conn-Wood Corp. v..... 1020
Workmen's Comp. Appeals Board; Wagner v............... 1010
W. R. Bean & Son v. Labor Board. . . . . . . . . . . . . . . . . . . . . . . . 849
Wren v. United States.................................... 1129
Wrenn v. United States.................................. 1113
Wright v. Beto......................................... 897
Wright v. Government of the Canal Zone.................. 985
Wright; McMann v..................................... 885
Wright v. Perini........................................ 988
CLXIV TABLE OF CASES REPORTED
Page
Wright v. United States................................. 915
W. T. Grant Co.; Givens v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Wurzburger Hofbrau; Schoenling Brewing Co. v.......... 1042
Wyandotte Chemicals Corp.; Hoover v.................... 847
Wyman; Sanders v...................................... 1128
Wymard; Brown v...................................... 1126
Wynn v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1025
Wyoming; Albert v...................................... 1079
Wyoming; Buckles v. .. . . . . . . . . . . . . . .. .. . . .. . . . . . .. . .. . . . 1026
Wyoming; Lonquest v................................... 1006
Wyoming; Lucas v...................................... 1123
Wyoming; Morton v.................................... . 1022
Wyoming; Simms v..................................... 886
Wysocki v. United States................................ 859
Yablonski; Mine Workers v.............................. 1104
Yarborough; Mims v.................................... 1041
Yates; Picking v ..................................... 812, 1050
Yeager v. Craven........................................ 1026
Yeaton v. Weisenburg. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 861
Young; Gnoss v........................................ 915
Yudow, In re. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 975
Yuk Wah v. United States......... . . . . . . . . . . . . . . . . . . . . . . 845
Zamora-Yescas v. United States.......................... 881
Zarate; State Dept. Health & Rehabilitative Serv. of Fla. v.. 903
Zarate v. United States ................................ 915, 1051
Zegers; Zegers, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 878
Zegers, Inc. v. Zegers.................................... 878
Zeigler v. Riley. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1029
Zelker v. Lopez. . . .. .. .. .. . .. . .. . . . . . . . . . . .. . . . . . . . . . . .. . 1049
Zelker; Nelson v..................... . .................. 1045
Zelker; Rensing v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1025
Zemliak v . California. . . . . . . .. . .. . .. . . . . .. . .. . . .. . .. . . . . . . 1046
Zenchak v. U. S. District Court........................... 1073
Zimmer v. Gaffney .................................... 862, 1019
Zizzo v. United States... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Zweig v. United States................................... 1111
TABLE OF CASES CITED
Page
Abington School Dist. v.
Schempp, 374 U. S. 203 926
Ackerman v. Port of Seattle,
55 Wash. 2d 400 919
Acree v. Drummond, 336 F.
Supp. 1275 1231
Acree v. Richmond County
Bd. of Ed., 458 F. 2d 486 1228
Adkins v. Children's Hospital,
261 U. S. 525 832-833
Admiral Peoples, The, 295
U. S. 649 255
Aetna Life Ins. v. Haworth,
300 u. s. 227 120,517
Alabama Power v. United
States, 316 F. Supp. 337 1213
Alaska Industrial Bd. v.
Chugach Electric, 356
U. S. 320 52
Alderman v. United States,
394 U. S.165 1013-1017, 1220
Aldridge v. United States,
283 U.S. 308 526-529, 533-534
Algoma Coal & Coke v.
United States, 11 F. Supp.
487 1213
Allen v. Grand Central Aircraft,
347 U. S. 535 244
Allen v. State Bd. of Elections,
393 U. S. 544 211
Allen Calculators v. National
Cash Register, 322 u. s. 137 160
Allis v. United States, 155
U.S. 117 107
American Communications
Assn. v. United States,
298 F. 2d 648 311
American Ins. Co. v. Canter,
1 Pet. 511 431
Anderson v. Dunn, 6 Wheat.
204 1244
Anderson v. Scholes, 83 F.
Supp. 681 425
Page
Antelope, The, 10 Wheat.
66 192
Arnold v. North Carolina,
376 U. S. 773 907
Arrow Transportation v.
Southern R. Co., 372 U.S.
658 1208, 1213-1215
Ashe v. Swenson, 397 U. S.
436 234,508,511,1018
Ashwander v. TV A, 297 U.S.
288 113
Assigned Car Cases, 274 u. s. 564 115
Atlantic City Electric v.
United States, 306 F.
Supp.338 1213
Atlantic Cleaners v. United
States, 286 U. S. 427
245, 42~421
Atlantic Transport v. Imbrovek,
234 U. S. 52 258
Avery v. Midland County,
390 U. S. 474 1097
Baggett v. Bullitt, 377 U. S.
360 113, 125, 137
Bailey v. Central Vermont
R. Co., 319 U.S. 350 928-929
Bailey v. Patterson, 369 u. s. 31 468,516,518, 542
Baird v. State Bar of Arizona,
401 U. S. 1 137
Baker v. Carr, 369 U. S.
186 11, 14, 931
Baker v. Schofield, 243 U.S.
114 202
Baker v. Texas & P. R. Co.,
359 U. s. 227 928-929
Bakery Drivers v. Wagshal,
333 U. s. 437 544-545
Banks v. California, 382
U.S. 420 907
Barnes v. Hocker, No. R
2071 (Nev. 1969) 970
CLXV
CLXVI TABLE OF CASES CITED
Bartels
404
Page
v. Iowa, 262 U. S.
998
Bartkus v. Illinois, 359 U. S.
121 510
Bates Mfg. Co. v. United
States, 303 U. S. 567 466
Beaver v. State, 96 Tex. Cr.
R. 179 537
Beeman, In re, No. 14811
(Conn. 1972) 440
Bell v. Burson, 402 U. S.
535 456,527
Bell v. Hood, 327 U. S.
~8 433
Benton v. Maryland, 395 u. s. 784 506-511, 1018
Berger v. New York, 388 u. s. 41 1091-1092
Bergeron v. Aero Associates,
213 F. Supp. 936 264
Berman v. Parker, 348 U.S.
26 429
Berryhill v. Gibson, 331 F.
Supp. 122 124
Best v. Humboldt Mining,
371 U.S. 334
Biggers v. Neil, 448 F. 2d
90
91 203
Biggers v. State, 219 Tenn.
553 189
Biggers v. Tennessee, 390 u. s. 404 189
Bihn v. United States, 328 u. s. 633 105
Bivens v. Six Unknown
Agents, 403 U.S. 388 14,433
Bjorgo v. Bjorgo, 391 S. W.
2d 528 537
Black v. United States, 385 u. s. 26 1238
Blau v. Lehman, 368 U. S.
403 202
Blount v. Rizzi, 400 U. S.
410 137
BlumentlIBl v. United States.
189 F. Supp. 439 . 263
Board of Trade of Chicago
v. Olsen, 262 U. S. 1 291
Board of Trade of Chicago
v. United States, 246 U.S.
231 304
Page
Boddie v. Connecticut, 401 u. s. 371 320, 440--
446, 449-450, 453-458,
461-463, 521, 809, 939
Bode v. Democratic Party,
146 U.S. App. D. C. 373 1223
Bolling v. Sharpe, 347 U. S.
497 420,424,457
Borden Co. v. Liddy, 309 F.
2d 871 523
Boulden v. Holman, 394 U.S.
478 193,202
Boyd v. United States, 116
U. S. 616
330--331, 335, 339-340,
343, 345--346, 348-349
Boyd v. United States, 271
U.S. 104 108
Boykin v. Alabama, 395 u. s. 238 962
Brandenburg v. Ohio, 395
U.S. 444 131
Branzburg v. Hayes, 408
U. S. 665 838, 1244-1245
Breswick & Co. v. United
States, 75 S. Ct. 912 1206
Bridges v. Wixon, 326 U. S.
135 1088
Brockington v. Rhodes, 396
U.S. 41 79
Brown v. Allen, 344 U. S.
. 443 443, 461
Brown v. Board of Ed., 349
U.S. 294 517
Brown v. Oklahoma, 408 ·
U. S. 914 944, 1063
Brown Shoe v. United States,
370 U. S. 294 156,
169-170, 181, 185-186
Brummitt v. State, 44 Ala.
App. 78 938
Buchanan v. Rhodes, 249 F.
Supp.860 1096
Burdeau v. McDowell, 256
U. S. 465 331-332
Burroughs v. United States,
290 u. s. 534 15
Byrne v. Pennsylvania R.
Co., 262 F. 2d 906 928
California v. FPC, 369 U. S.
482 300,302-303,321,408,410
TABLE OF CASES CITED CLXVII
Page
California v. Giannini, 395
U.S. 910 130
California v. Pinkus, 400 u. s. 922 130
California v. Washington,
358 u. s. 64 119
California Comm'n v. United
States, 355 U. S. 534 113
California Dept. of Human
Resources v. Java, 402 u. s. 121 542-544
Callan v. Wilson, 127 U. S.
540 420
Camara v. Municipal Court,
387 U. s. 523 349
Cameron v. Johnson, 390 u. s. 611 117
Cantwell v. Connecticut, 310
U. S. 296 1000
Carnation Co. v. Pacific
Westbound Conf., 383
U. S. 213 299,302,313,316
Carrington v. Rash, 380
U. S. 89 520,538
Carter v. Carlson, 144 U. S.
App. D. C. 388 419
Carter v. Virginia, 321 U. S.
131 284
Cascade Natural Gas v. El
Paso Natural Gas, 386
U.S. 129 1033-1034
Chandler v. Judicial Council,
398 U. S. 74 834
Chaplinsky v. New Hampshire,
315 U. S. 568 944
Chapman v. Grosse Pointe
Farms, 385 F. 2d 962
251-252,256
Chattahoochee, The, 173
U.S. 540 144
Chelentis v. Luckenbach S.
S. Co., 247 U. S. 372 259
Cherokee Nation v. Hitchcock,
187 U. S. 294
Chessman v. Teets, 354 U.S.
82
156 443
Chicago, M., St. P. & P. R.
Co. v. Chicago, R. I. & P.
R. Co., 138 F. 2d 268 482
Chicot County Drainage
Dist. v. Baxter State Bk.,
308 U. s. 371 507
Page
Chimel v. California, 395
u. s. 752 1066
Chippewa Indians v. United
States, 305 U. S. 479 87
Choy v. Pan-American Airways,
1941 A. M. C. 483 263
Cimorelli v. New York Central
R. Co., 148 F. 2d 575 928
City. See name of city.
City of New York, The, 147
U.S. 72 145
Civil Rights Cases, 109 U.S.
3 422-4-23
Clairol, Inc v. Kingsley, 109
N. J. Super. 22 278
Clark v. Uebersee Finanz-
Korporation, 332 U.S. 480 244
Clark Distilling v. Western
Md. R. Co., 242 U. S.
311 134
Clay v. Sun Insurance Office,
363 U. S. 207 309
Clay v. Sun Insurance Office,
377 U. S. 179 954-955
Clay v. United States, 403 u. s. 698 941
Clemons v. United States,
133 U. S. App. D. C. 27
198-199
Clyatt v. United States, 197
U.S. 207 422
Coates v. Cincinnati, 402 u. s. 611 125,896
Cochrane v. Deener, 94 U. S.
780 69
Coffey v. United States, 116 u. s. 436 235
Cohen v. Beneficial Industrial
Loan, 337 U.S. 541 446
Coleman v. Alabama, 399
U.S. 1 197
Colonnade Catering v.
United States, 397 U. S. 72 135
Colorado, The, 91 U. S. 692
144-145
Colten v. Kentucky, 407
U.S. 104 814, 1053
Commonwealth v. Buckley,
200 Mass. 346 126
Communications Workers v.
NLRB, 215 F. 2d 835 216,219
CLXVJI[ TABLE OF CASES CITED
Page
Comstock v. Institutional Investors,
335 U. S. 211 204
Conard v. Goolsby, 350 F.
Supp. 713 530
Confederation Life Assn. v.
Vega, 207 So. 2d 33 956
Coolidge v. New Hampshire,
403 U.S. 443 1066
Cooper v. Aaron, 358 U. S.
1 1204
Corning v. Burden, 15 How.
69
Hitchcock,
252
Counselman v.
142 U. S. 547
County. See
county.
327
name of
Courtney v. Bishop, 409 F.
2d 1185 970
Covey v. Somers, 351 U. S.
141
Cox v. Louisiana, 379 U. S.
40
536 IB8
Cox v. Louisiana, 379 U. S.
559 117
Cox v. New Hampshire, 312
U.S. 569 117
Crawford v. United States,
212 U. S. 183 103
Crawford Bros. No. 2, The,
215 F. 269 261
Curcio v. United States, 354 u. s. 118 346-347
Curtin v. State, 155 Tex. Cr.
R. 625 537
Cypress v. Newport News
Hospital, 375 F. 2d 648
Dakota County v. Glidden,
79
113 U. S. 222 544-545
D'Aleman v. Pan American
World Airways, 259 F. 2d
493 263
Dandridge v. Williams, 397
U. S. 471 445-446
Davis v. Adams, 400 U. S.
1203 806
Davis v. Jacksonville Beach,
251 F. Supp. 327 256
Davis v. Richardson, 342 F.
Supp. 588 464,538
De Beers Mines v. United
States, 325 U. S. 212 161
De Lara v. Confederation
Life Assn., 257 So. 2d 42 954
Page
Delaware Indians v. Cherokee
Nation, 193 U.S. 127 82
De Lovio v. Boit, 7 F. Cas.
418 253
Dennis v. United States, 339 u. s. 162 529, 532-533
Dennis v. United States, 341
U.S. 494 131
Department of Revenue v.
James Beam Co., 377 U.S.
341 119-120
Department of Treasury v.
Ingram-Richardson Co.,
313 u. s. 252 93
Desist v. United States, 394
U.S. 244 507
Dice v. Akron, C. & Y. R.
Co., 342 U. S. 359 928
Diffenderfer v. Central Baptist
Church, 404 U. S.
4~ 1~2
District of Columbia v.
Murphy, 314 U. S. 441 432
District of Columbia v.
Reilly, 102 U. S. App.
D. C. 9 416
District of Columbia v.
Thompson Co., 346 U. S.
100 429
Dollins v. Pan-American
Grace Airways, 27 F.
Supp. 487 262
Dombrowski v. Pfister, 380
U. S. 479 125
Donaldson v. United States,
400 U. S. 517 326
Doud v. Hodge, 350 U. S.
485 469
Douglas v. California, 372 u. s. 353 520
Douglas v. Jeannette, 319
U.S. 157 124
Duckworth v. Arkansas, 314 u. s. 390 284
Dugan v. Ohio, 277 U. S.
61 60
Dunbar v. Dunbar, 190 U.S.
MO ~6
Duncan v. Louisiana, 391
U. S. 145 531, 962
Dunn v. Blumstein, 405 u. s. 330 14, 1241-1242
TABLE OF CASES CITED CLXIX
Page
Durant v. Essex Co., 7 Wall.
107 192
Durham v. United States,
401 U. S. 481 906
Dusch v. Davis, 387 U. S.
112 1096
Earley v. DiCenso, 403 U.S.
602 926
Easton Utilities Cornm'n v.
AEC, 137 U.S. App. D. C.
359 312
Edwards v. United States,
334 F. 2d 360 837
Eisenstadt v. Baird, 405
U.S. 438 444
Electric Bond & Share Co.
v. SEC, 303 U.S. 419 121
Electronics Industries v.
United States, 310 F.
Supp. 1286 1213
England v. Louisiana Medical
Examiners, 375 U. S.
411 309,469
En tick v. Carrington, 19
How. St. Tr. 1029 339,348
Epperson v. Arkansas, 393
U.S. 97 998
Estate. See name of estate.
Etting v. Bank of United
States, 11 Wheat. 59 192
Euclid v. Ambler Realty, 272
U. S. 365 920
Evans v. Newton, 382 U. S.
296 424
Evansville Airport v. Delta
Airlines, 405 U. S. 707 838
Expanded Metal Co. v.
Bradford, 214 U.S. 366 70
Ex pa.rte. See name of
party.
Falsone v. United States, 205
F. 2d 734 335
Farbenfabriken B ayer v.
United States, 393 U. S.
216 176
Farbenfa.briken Bayer v.
United States, 1968 CCH
Trade Cas. 172,570 153, 172
Far Ea.st Conf. v. United
States, 342 U. S. 570
300,305,313
Page
Farmers Reservoir & Irrigation
v. McComb, 337 U.S.
755 245
Faulkner v. Gibbs, 338 U. S.
267 202
Fay v. Noia, 372 U. S. 391
44-46, 190
Federal Maritime Bd. v.
Isbrandtsen Co., 356 U. S.
481 306
FTC v. National Casualty
Co., 357 U. S. 560 917
Federation of Labor v. Mc-
Adory, 325 U. S. 450 122
Federoff v. Ewing, 386 Mich.
474 36
Finn v. Meigha.n, 325 U.S.
300 957-958
First National Bk. of Ariz.
v. Cities Service Co., 391
U.S. 253 459
Fisons Ltd. v. United States,
458 F. 2d 1241 153,
165,172,178
Fla.st v. Cohen, 392 U. S.
83 211,930--932, 1220
Flemming v. Nest-Or, 363 u. s. 603 446
Florida Citrus Comm'n v.
United States, 144 F.
Supp. 517 1213
Ford v. Board of Managers,
407 F. 2d 937 970
Ford Motor Co. v. United
States, 405 U.S. 562
169-170,176,182
Fortson v. Morris, 385 U. S.
231 1097
Foster v. California, 394 u. s. 440 197-198
Foti v. INS, 375 U.S. 217 1088
Fourco Glass v. Transmirra
Products, 353 U. S. 222 162
Frazier v. Cupp, 394 U. S.
731 1065
Friedman v. Froehlke, 5 S.
S. L. R. 3179 530
Frothingham v. Mel1on, 262
U.S. 447 930
Fuentes v. Shevin, 407 U. S.
67 456
Fuller v. Ala.ska, 393 U. S.
80 907
CLXX TABLE OF CAf,ES CITED
Page
Funk Bros. Seed v. Kalo Co.,
333 U. S. 127 67
Furman v. Georgia, 408 U. S.
238 508-509
Gala.nos v. United States, 49
F. 2d 898 361
Gardner v. Broderick, 392
U.S. 273 342
Gariepy v. United States,
189 F. 2d 459 335
Garland, In re, 428 F. 2d
1185 435,440,
442--443, 453, 460--461
Garrett Freightlines v.
United States, 405 U. S.
1035 176
Gatling v. Butler, 52 F. R. D.
389 79
Gelbard v. United States,
408 U. S. 41 814-815, 838
Genesee Chief, The v. Fitzhugh,
12 How. 443 253
Geofroy v. Riggs, 133 U. S.
258 420
Georgia v. Democratic
Party, 145 U. S. App.
D. C. 102 1223
Georgia v. Pennsylvania R.
Co., 324 U. S. 439
300,303,407,410
Gersewitz v. New York, 326 u. s. 687 1031
Giannini, In re, 69 Cal. 2d
563 130
Giboney v. Empire Storage,
336 u. s. 490 117
Gibson v. Berryhill, 408
U.S. 920 124
Gilbert v. California, 388
· U. S. 263 199
Ginsberg v. New York, 390
U. S. 629 127,999
Giova v. Rosenberg, 37!} u. s. 18 1088
Glasser v. United States,
315 U. S. 60 531
Glidden v. Harrington, 189
U.S. 255 836
Glidden Co. v. Zdanok, 370 u. s. 530 431,465
Glona v. American Guarantee
& Liability Ins.,
391 u. s. 73 539
Page
Gius v. Brooklyn Terminal,
359 U. S. 231 928-929
Goldberg v. Kelly, 397 U.S.
254 456,546
Golden v. Zwickl er, 394
U.S. 103 517
Gomillion v. Lightfoot, 364
U.S. 339 521
Gonzales v. Beto, 405 U. S.
1052 895
Gooding v. Wilson, 405 U .S.
518 124,944, 1053
Goosby v. Osser, 452 F. 2d
39 1241
Gouled v. United States, 255 u. s. 298 349
Gowdy v. United States, 412
F. 2d 525 257
Graham v. Richardson, 403
U.S. 365 446
Gravel v. United States, 408
U.S. 606 839
Gray v. Sanders, 372 U. S.
~8 1007
Grayson v. Harris, 267 U.S.
352 94
Great Lakes Dredge v.
Kierejewski, 261 U.S. 479 259
Griffin v. Breckenridge, 403
U. S. 88 14,422
Griffin v. Illinois, 351 U. S.
12 456,939
Griffin v. Richardson, 346 F.
Supp. 1226 464,538
Griggs v. Allegheny County,
369 U. S. 84 919
Griggs v. Duke Power, 401
U. S. 424 210,409
Griswold v. Connecticut, 381 u. s. 479 132,349,444
Gritts v. Fisher, 224 U. S.
640 82, 86
Groppi v. Wisconsin, 400
U.S. 505 527,532
Grubb v. Oklahoma, 409
U. S. 1017 511
Grubb v. State, 497 P. 2d
1305 1018
Gulf, C. & S. F. R. Co. v.
Ellis, 165 U. S. 150 936
Gutierrez v. Waterman S. S.
Corp., 373 U. S. 206 260
TABLE OF CASES CITED CLXXI
Pagf!
Gwin, White & Prince v.
Henneford, 305 U. S. 434 94
Hackett v. McGuire Bros.,
445 F. 2d 442 209
Haddock, In re, No. 14810
(Conn. 1972) 440,453
Hadley, Ex parte, 288 Ala.
293 938
Hadley v. .Junior College
Dist., 397 U.S. 50 1095-1098
Hadley v. State, 47 Ala.
App. 738 938
Hageman v. Board of
Trustees, 20 Ohio App.
2d 12 919
Haines v. Kerner, 404 U. S.
519 970
Hammer v. United States,
271 U. S. 620 357
Hancock v. Avery, 301 F.
Supp. 786 970
Hannegan v. Esquire Inc.,
327 u. s. 146 137
Hannis Distilling Co. v. Baltimore,
216 U. S. 285 518
Hanover Shoe v. United
Shoe Machinery, 392 U.S.
481 366
Hanrahan v. 1965 Oldsmobile,
52 Ill. 2d 37 39
Harper v. Virginia Bd. of
Elections, 383 U. S. 663
519-520,939, 1241
Harris, In re, 221 U.S. 274 351
Harris v. New York, 401 u. s. 222 996~997
Harris v. United Air Lines,
275 F. Supp. 431 265
Harris v. Washington, 404 u. s. 55 511, 1019
Harrison v. NAACP, 360
U.S. 167 469
Harrison v. Northern Trust,
317 u. s. 476 157
Hart v. United States, 391
U.S. 956 930
Hartford Accident & Indem.
v. Delta & Pine Land, 292
U.S. 143 955
Harvey v. Tyler, 2 Wall.
328 107
Hastings v. Mann, 226 F.
Supp. 962 257
Page
Hatahley v. United States,
351 U. S. 173 495
Hawk v. Olson, 326 U. S.
271 965
Healy v. Ratta, 292 U. S.
263 272
Hearn v. Short, 327 F.
Supp. 33 124
Helvering v. Mitchell, 303
U.S. 391 235-237
Helvering v. Stockholms
Enskilda Bk., 293 U. S.
84 245,420
Hepburn v. Ellzey, 2 Cranch
445 420
Hess Shipping v. S. S.
Charles Lykes, 417 F. 2d
346 150
Higa v. Transocean Airlines,
230 F. 2d 780 263
Hill v. Philpott, 445 F. 2d
144 330
Himmelfarb v. United States,
175 F. 2d 924 335
Hodges v. United States, 203
U. S. 1 424
Holmes v. United States, 391 u. s. 936 930
Holmgren v. United States,
217 U. S. 509 103
Holshouser v. Scott, 335 F.
Supp. 928 1096
Holt v. Sarver, 300 F. Supp.
825 970
Holt v. United States, 218 u. s. 245 328
Home Bldg. & Loan v.
Blaisdell, 290 U. S. 398 136
Home Insurance v. Dick,
281 U. S. 397 953-955
Home of Holy Infancy v.
Kaska, 397 S. W. 2d 208 537
Hooten v. Hooten, 15 S. W.
2d 141 536
Hornsby v. Allen, 326 F. 2d
605 135
Hornsby v. Fish Meal Co.,
431 F. 2d 865 265,271
Horton v. J. & J. Aircraft,
257 F. Supp. 120 256,264
Hostetter v. Idlewild Liquor
Corp., 377 U. S. 324 114-115,
119-120, 125,134,283
CLXXII TABLE OF CASES CITED
Page
Hughes v. Superior Court,
339 u. s. 460 117
Hunter v. Erickson, 393
U.S. 385 244
Hurd v. Hodge, 334 U. S.
24 420-421, 423
Idlewild Liquor Corp. v.
Epstein, 370 U. S. 713 522
Imperial Life Assurance v.
Colmenares, 1967 Can. L.
Rep. 443 955
Indianapolis v. Chase National
Bk., 314 U. S. 63 365
Indiana Toll Road Comm'n
v. Jankovich, 244 Ind. 574 919
In re. See name of party.
Interstate Circuit v. Dallas,
390 u. s. 676 129
Irish v. Democratic-Farmer-
Labor Party, 399 F. 2d 119 4
Irvin v. Dowd, 366 U. S.
717 531-532
Jackson v. Denno, 378 U. S.
368 225--230
Jackson v. Indiana, 406
U. S. 715 814
Jackson Airport Authority
v. Evans, 191 So. 2d 126 919
Jacobellis v. Ohio, 378 U. S.
IB4 ~9
J. D. Adams Mfg. Co. v.
Storen, 304 U. S. 307 93
Jeffers v. Whitley, 197 F.
Supp. 84 516
Jefferson v. Hackney, 406 u. s. 535 446
Jenness v. Fortson, 403 U.S.
431 805--806
Jewell Ridge Coal v. Mine
Workers, 325 U. S. 161,
897 831
J. I. Case Co. v. Borak, 377
U. S. 426 211
Johnson v. Avery, 393 U. S.
483 968
Johnson v. Committee on
Examinations, 407 U. S.
915 937
Johnson v. Florida, 391 u. s. 596 906
Johnson v. Louisiana, 406
U.S. 356 532
Page
Johnson v. New York State
Education Dept., 409
U.S. 75 546
Johnson v. Stevenson, 335
U. S. 801 1227
Johnson v. United States,
228 U. S. 457 328,
332,340,346,350-351
Jones v. Alfred H. Mayer
Co., 392 U. S. 409 421-422
Jordan v. Fitzharris, 257 F.
Supp. 674 970
Joseph Burstyn, Inc. v. Wilson,
343 U. S. 495 117, 129
J. W. Petersen Coal v.
United States , 323 F.
Supp. 1198 257
Kalb v. Feuerstein, 308 u. s. 433 447
Kastigar v. United States,
406 u. s. 441 1233
Katz v. United States, 389
U.S. 347 336,343,350
Katzenbach v. Morgan, 384
U. S. 641 212,424
Kelley v. Board of Ed., 139
F. Supp. 578 516
Kendall v. United States, 12
Pet. 524 429
Kennedy v. Mendoza-Martinez,
372 U. S. 144 522
Kent v. Dulles, 357 U. S.
116 1080
Keogh v. Chicago & N. W.
R. Co., 260 U. S. 156 300
Keyishian v. Board of Regents,
385 U. S. 589
113,137,999
King v. Testerman, 214 F.
Supp. 335 256
Kleindienst v. Mandel, 408
U.S. 753 999
Klor's, Inc. v. Broadway-
Hale Stores, 359 U.S. 207 314
Konigsberg v. State Bar, 353
U. S. 252, 366 U. S. 36 137
Kovacs v. Cooper, 336 U.S.
77 117
Kramer v. Union Free
School Dist ., 395 U. S.
621 1097
Krist v. Smith, 309 F. Supp.
497 970
TABLE OF CASES CITED CLXXIU
Page
Kropp v. Douglas Aircraft,
329 F. Supp. 447 263
Labor Board. See NLRB.
Lacey v. L. W. Wiggins Airways,
95 F. Supp. 916 263
Laird v. Tatum, 408 U. S.
I 827-830
Lake Carriers v. MacMullan,
406 u. s. 498 124,469,523
Lambros Seaplane Base v.
The Batory, 215 F. 2d 228 261
Lane v. Hughes, 228 S. W.
2d 986 90
Lane v. Phillips, 69 Tex.
240 536-537
Lane v. Pueblo of Santa
Rosa, 249 U. S. 110 88
Lavello v. Danko, 175 F.
Supp. 92 263
Law Students Council v.
Wadmond, 401 U. S. 154 137
Lee v. Washington, 390 U.S.
333 514
Leiser v. United States, 234
F. 2d 648 234
Lemke v. United States, 346
U.S. 325 896
Lemon v. Kurtzman, 403
U. S. 602 921-922, 926
Leonard v. State, 43 Ala.
App. 454 938
Le Roy v. Tatham, 14 How.
156 67
Levering & Garrigues v.
Morrin, 289 U. S. 103 518
Levy v. Louisiana, 391 U. S.
68 464, 538-539
Lewis v. Manuf.acturers Nat.
Bk., 364 U. S. 603 835
Lewis v. New Orleans, 408
U. S. 913 944, 1053
Lewis v. United States, 146 u. s. 370 532
Lindsey v. Normet , 405
U. S. 56 446, 449
Linkletter v. Walker, 381
U. S. 618 507- 511
Lisenba v. California, 314
U. S. 219 526
Liverpool, N. Y. & P. S. S.
Co . v. Emigr a tion
Comm'rs, 113 U.S. 33 517
Page
Lloyd A. Fry Roofing v.
Wood, 344 U. S. 157 94
Local. For labor union, see
name of trade.
Local Loan Co. v. Hunt, 292 u. s. 234 457
London Guarantee & Accident
v. Industrial Accident
Comm'n, 279 U. S.
109 259
Long v. Parker, 384 U. S.
32 907
Louisiana v. Texas, 176 U.S.
1 37
Louisiana v. United States,
380 U. S. 145 517
Loving v. Virginia, 388 U.S.
1 444
Ludvig Holberg, The, 157 u. s. 60 145
Luther v. Borden, 7 How.
1 4
Lynch v. Household Finance
Corp., 405 U. S. 538 423
Lynch v. Overholser, 369
U. S. 705 963
Lynch v. Torquato, 343 F.
2d 370 4
Machibroda v. United
States, 368 U. S. 487 962
Mackay Co. v. Radio Corp.,
306 U.S. 86 67
Mahoney v. Joseph Triner
Corp., 304 U. S. 401 119
Malevich, In re, No. Bk
29-71 (NJ 1971) 441,453
Mallory v. United States,
354 U. S. 449 1067
Malloy v. Hogan, 378 U. S.
1 327
Mapp v. Ohio, 367 U. S.
643 199,508-509
Marcus v. Hess, 317 U. S.
537 236-237
Markham v. Cabell, 326
U.S. 404 244
Martin v. Struthers, 319
U. S. 141 999
Maryland v. Baltimore
Radio Show, 338 U. S.
912 366, 1246
CLXXIV TABLE OF CASES CITED
Puge
Maryland & Virginia Milk
Producers v. United States,
362 U. S. 458 302,408
Mastro Plastics v. NLRB,
350 U. S. 270 51-52
Mazzie v. United States,
375 U. S. 32 907
McAllister v. United States,
141 U. S. 174 432
McArthur v. Clifford, 393
U. S. 1002 930
McCormick & Co. v. Brown,
286 U. S. 131 134
McDonald v. Election
Comm'rs, 394 U. S. 802
514-515, 518-522, 1241
McGilvra v. Ross, 215 U. 8.
70 518
McGrath v. Kristensen, 340
U. S. 162 832,834
McGuire v. New York, 192
F. Supp. 866 256
McKart v. United States,
395 U. S. 185 321
McKissick v. Durham Bd.
of Ed., 176 F. Supp. 3 516
McLaughlin v. Florida, 379
U.S. 184 520
McMillen v. United States,
386 F. 2d 29 103
Memoirs v. Massachusetts,
383 u. s. 413 123, 127-128, 139
Mental Hygiene Dept. v.
Kirchner, 380 U. S. 194 35
Mercer v. Theriot, 377 U. S.
~2 3M
Metropolitan Railway Receivership,
In re, 208 U.S.
90 517
Meyer v. Nebraska, 262
U. S. 390 444,998
Michigan Land & Lumber
v. Rust, 168 U. S. 589 89
Miller v. Oregon, 405 U. S.
1047 511, 1018
Minnesota v. National Tea,
309 U. S. 551 35
Minnie v. Port Huron Terminal,
295 U. S. 647 255
Miranda v. Arizona, 384
U. 8. 436 327,338,996
Mishkin v. New York, 383
U.S. 502 537
Page
Mitchell v. United States,
267 U. S. 341 476, 483-484
Mitchum v. Foster, 407
U. S. 225 1205-1206
M-K-T R. Co. v. Hearson,
422 F. 2d 1037 928
Monroe v. Pape, 365 U. S.
167 13,423,426, 429
Moore v. Ogilvie, 394 U. S.
814 78, 514, 544
:Vloore v. Robbins, 96 U. S.
530 89
Moose Lodge v. Irvis, 407
U. S. 163 135
Morales v. Schmidt, 340 F.
Supp. 544 970
Morford v. United States,
339 U. S. 258 529, 532-533
Morley Construction v.
Maryland Casualty Co.,
300 u. s. 185 52
Mottram v. State, 232 A. 2d
809 43
Mottram v. State, 263 A. 2d
715 44
Mullane v. Central Hanover
Bk., 339 U. S. 306 39-40
Murdock v. Pennsylvania,
319 U. S. 105 135
Murphy v. United States,
272 U. S. 630 235, 237
Murphy v. Waterfront
Comm'n, 378 U. S. 52
328, 338, 340, 347, 349
Nacirema Co. v. Johnson,
396 U. S. 212 261
Nacoochee, The, 137 U. S.
330 144-145, 148
Naron, In re, 334 F. Supp.
1150 440, 453, 456
NAACP v. Alabama, 357
U. S. 449 1083
NAACP v. Button, 371 u. s. 415 125-126
National Ins. Co. v. Tidewater
Co., 337 U. S. 582 429
NLRB v. Allis-Chalmers
Mfg. Co., 388 U. S. 175
215-216,219-220,223
NLRB v. Comfort, Inc., 365
F. 2d 867 52
NLRB v. Express Pub. Co.,
312 U. S. 426 52
TABLE OF CASES CITED CLXXV
Page
NLRB v. Fleetwood Trailer,
389 U. S. 375 54
NLRB v. General Motors,
373 U. S. 734 216
NLRB v. Globe Wireless,
193 F. 2d 748 52
NLRB v. Mackay Radio,
304 u. s. 333 50-51
NLRB v. McCatron, 216 F.
2d 212 52
NLRB v. Mechanical Workers,
427 F. 2d 883 219
NLRB v. Shop Rite Foods,
430 F. 2d 786 223
Nebraska v. Iowa, 406 U.S.
117 285
Nelson v. United States, 392
U.S. 303 907
Nelson v, United States, 30
F. 112 431
Newman v. Piggie Park
Enterprises, 390 U.S. 400 211
New York v. New York,
N. H. & H. R. Co., 344 u. s. 293 40
New York v. Sage, 239 U.S.
57 474
New York Times v. United
States, 403 U.S. 713 136,839
New York Trial Lawyers v.
Rockefeller, 267 F. Supp.
1~ 10%
Ng Fung Ho v, White, 259 u. s. 276 1088
Niemotko v. Maryland, 340 u. s. 268 138
Nixon v. Herndon, 273 U.S.
536 11
Noakes v. Imperial Airways,
29 F. Supp. 412 262
Noel v. Airponents, Inc., 169
F. Supp. 348 263
Noel v. Linea Aero postal
Venezolana, 247 F. 2d 677 263
North Carolina v. Alford,
400 U. S. 25 962
North Carolina v. Bryant,
280 N. C. 551 996
North Carolina v. Pearce,
395 U. S. 711 508
Northwestern States Port-
Page
land Cement v. Minnesota,
358 U.S. 450 279-281
Norton v. Shelby County,
118 U. S. 425 507
Notarian v. Trans World
Airlines, 244 F. Supp. 874 264
Novak v. Beto, 320 F. Supp.
1206; 456 F. 2d 1303 968
Novak v. Beto, 453 F. 2d
661 968,971
O'Brien v. Brown, 409 U. S.
1 1224-1227
O'Brien v. Trevethan, 336 F.
Supp. 1029 441,448
O'Brien v. United States,
386 U. S. 345 1238
O'Connor & Co. v. Pascagoula,
304 F. Supp. 681 257
O'Donnell v. Great Lakes
Dredge, 318 U.S. 36 259
O'Donoghue v. United
States, 289 U.S. 516 431-432
Ohio ex rel. Eaton v. Price,
364 U. S. 263 192
Olender v. United States,
210 F. 2d 795 335
Olff v. East Side Union High
School, 404 U. S. 1042 530
Olmstead v. United States,
277 U. S. 438 1014
Olson v. United States, 292
u. s. 246 490
Omnia Commercial Co. v.
United States, 261 U. S.
502 476,482
One Plymouth Sedan v.
Pennsylvania, 380 U. S.
693 236
Oregon v. Mitchell, 400 u. s. 112 14-15,212
O'Reilly v. Morse, 15 How.
62 68
Organized Village of Kake
v. Egan, 80 S. Ct. 33 1215
Ottman, In re, 336 F. Supp.
746 440,448,453
0/Y Finlayson-Forssa A/ B
v. Pan Atlantic S.S. Corp.,
259 F. 2d 11 148
Pan American Petroleum v.
Pierson, 284 F. 2d 649 90
CLXXVI TABLE OF CASES CITED
Page
Pan American World Airways
v. United States, 371
U. S. 296 300,302,314,366,
378-380, 385-389, 393-
394, 402-403, 406-410
Pardonnet v. Flying Tiger
Line, 233 F. Supp. 683 263
Partilla, In re, No. 71-B-
380 (SDNY 1971) 441,453
Passwater, In re, Nos. IP70-
B-3697, IP70-B-3698 (SD
Ind. 1971) 440,453
Payne v. Central Pacific R.
Co., 255 U. S. 228 89
P. B. I. C., Inc. v. Byrne,
313 F. Supp. 757 130
Pennsylvania, The, 19 Wall.
125 144,148
Pennsylvania Coal v. Mahon,
260 U. S. 393 920
People v. Edwards, 71 Cal.
2d 1096 35
People v. Krivda, 5 Cal. 3d
357 34
People v. Martinez, 34 App.
Div. 2d 174 961
People ex rel. Hanrahan v.
1965 Oldsmobile, 52 Ill. 2d
37 39
Perez v. Ledesma, 401 U. S.
82 10
Perkins v. Matthews, 400
U.S. 379 211
Perlman v. United States,
247 U. S. 7
332,336,340,346,350
Perry v. Sindermann, 408
U. S. 593 123, 137
Peytavin v. Government
Employees Ins., 453 F.
2d 1121 257
Phelps Dodge Corp. v.
NLRB, 313 U. S. 177 53-54
Philadelphia, W. & B. R.
Co. v. Philadelphia Towboat
Co., 23 How. 209 253
Phipps v. Follette, 428 F.
2d 912 200
Pickering v. Board of Ed.,
391 U. S. 563 137
Pinkus v. Pitchess, 429 F.
2d 416 130
Page
Plymouth, The, 3 Wall. 20
253,258,260,266
Pointer v. Texas, 380 U. S.
400 962
Pointer v. United States,
151 U. S. 396 532
Police Dept. of Chicago v.
Mosley, 408 U. S. 92 138
Poller v. CBS, 368 U. S.
464 459
Poresky, Ex parte, 290 U.S.
30 518,521
Porter v. Aetna Casualty
Co., 370 U. S. 159 416
Portland Rail way, Light
& Power v. Railroad
Comm'n, 229 U. S. 397 94
Port of Boston Marine Terminal
v. Rederiaktiebolaget
Transatlantic, 400
U. S. 62 312-313
Port of New York Auth. v.
United States, 451 F. 2d
783 1215
Powell v. McCormack, 395 u. s. 486 11
Public National Bank, Ex
parte, 278 U. S. 101 244
Public Utilities Comm'n v.
United States, 355 U. S.
534 464
Public Workers v. Mitchell,
330 U. S. 75 517,905
Puerto Rico v. Shell Co.,
302 U. S. 253 420
Queen v. Judge of London
Court, [1892] 1 Q. B.
273 257
Quirin, Ex parte, 317 U. S.
1 1204
Rabe v. Washington, 405
U.S. 313 127
Radich v. Criminal Ct. of
N. Y., 459 F. 2d 745 192
Railroad Comm'rs v. Great
Northern R. Co., 281 U.S.
412 1208
Railway Express Agency v.
United States, 82 S. Ct.
466 1218
Raithmoor, The, 241 U. S.
166 259
TABLE OF CASES CITED CLXXVII
Page
Raley v. Ohio, 360 U. S.
423 61
Ray v. Blair, 343 U. S. 214 4
Read, In re, No. Bk 71-826
(WDNY 1971) 441,453
Red Lion Broadcasting v.
FCC, 395 U. S. 367 999
Redrup v. New York, 386 u. s. 767 127
Regina v. Hicklin, L. R. 3
Q. B. 360 126
Reichelderfer v. Quinn, 287
U.S. 315 487
Reinhardt v. Newport Flying
Service, 232 N. Y. 115 261
Rescue Army v. Municipal
Court, 331 U. S. 549 122
Rewis v. United States, 401
U.S. 808 247
Rex Trailer Co. v. United
States, 350 U. S. 148 237
Reynolds v. Sims, 377 U. S.
533 519, 1098
Richardson v. Belcher, 404
-U. S. 78 445-446
Rios v. Cozens, 7 Cal. 3d
792 55
Ripley, In re, No. Bk 71-0-
1003 (Neb. 1972) 441,453
Riss & Co. v. Hoch, 99 F.
2d 553 523
Roark v. Caldwell, 87 Idaho
557 919
Roberts v. General Mills, 337
F. Supp. 1055 530
Robins Dry Dock v. Dahl,
266 U. S. 449 259
Robinson v. California, 370
U.S. 660 970
Robinson v. DiCenso, 403
U. S. 602 926
Robinson v. Henderson, 268
F. Supp. 349 506
Robinson v. Neil, 452 F. 2d
370 506
Robison v. United States,
390 u. s. 198 907
Rodrigue v. Aetna Casualty,
395 U. S. 352 258
Rogers v. Missouri P. R.
Co., 352 U. S. 500 927-929
Rose v. Woolwine, 344 F.
2d 993 1088
Page
Rosenberg v. United States,
346 U. S. 273 1204
Rosenfeld v. New Jersey,
408 U. S. 901 944, 1053
Roth v. United States, 354 u. s. 476 113-114, 116, 123,
126-128, 131,139,999
Rubber-Tip Pencil v.
Howard, 20 Wall. 498 67
Russo v. Byrne, 409 U. S.
1219 1233
Sailors v. Board of Ed., 387
U. S. 105 1096-1097
Sakezzie v. Utah Indian
Affairs Comm'n, 198 F.
Supp. 218 82, 84
Sakezzie v. Utah Indian
Affairs Comm'n, 215 F.
Supp. 12 82,85
Salinger v. Loisel, 265 U. S.
224 190-191
Sanders v. Johnson, 403 u. s. 955 922-924, 926
Sanders v. United States,
3n U.S. 1
Sanford, Estate of v. Commissioner,
308 U. S. 39 243
Santa Fe P. R. Co. v. Fall,
259 u. s. 197 89
Sant-Obello v. New York, 404 u. s. 257 959, 962-963, 966
Savoid v. District of Columbia,
110 U. S. App. D. C.
39 416
Schacht v. United States, 398
U. S. 58 117, 130
Schenck v. United States,
249 U. S. 47 131
Schmerber v. California, 384
U.S. 757 329
Schneider v. State, 308 U.S.
147 131, 138
Schneiderman v. United
States, 320 U. S. 118 830
Schooner Catherine v. Dickinson,
17 How. 170 141
Schroeder v. New York, 371
U.S. 208 40
Schware v. Board of Bar Examiners,
353 U. S. 232 137
Schwegmann Bros. v. Calvert
Distillers, 341 U. S.
384 282
CLXXVIII TABLE OF CASES CITED
Page
Schwimmer v. United States,
232 F. 2d 855 333,337
Scofield v. NLRB, 394 U. S.
423 215-217,222-223
Scott v. Eastern Air Lines,
399 F. 2d 14 265
Scully v. United States, 409
F. 2d 1061 485
Seagram & Sons v. Hostetter,
384 u. s. 35
114,116,119,125,134
S&E Contractors v. United
States, 406 U. S. 1 829
SEC v. Chenery Corp., 318 u. s. 80 1057
SEC v. Medical Com. for
Human Rights, 404 U. S.
403 78, 545-546
Serio v. United States, 392
U. S. 305 907
Sewell v. Pegelow, 291 F. 2d
100 Gl
Shannon v. U. S. Dept. of
HUD 211
Shapiro v. Thompson, 394
U. S. 618 137-138, 446
Shelley v. Kraemer, 334
U.S. 1 424
Shelton v. Tucker, 364 U. S.
479 125, 999-1000
Shenandoah Valley Broadcasting
v. ASCAP, 375
U.S. 39 154, 179
Sheppard v. Maxwell, 384
U.S. 333 532, 1244, 1246
Sherbert v. Verner, 374 U.S.
398 123, 136-137
Shillitani v. United States,
384 u. s. 364 1244
Shoshone Indians v. United
States, 299 U. S. 476 87-88
Shropshire, In re (ND Ia.
1972) 453
Sicurella v. United States,
348 U. s. 385 940-941
Siebold, Ex parte, 100 U. S.
371 14
Sierra Club v. Morton, 405
U.S. 727 209, 1212-1213, 1215
Sigler v. Parker, 396 U. S.
482 228
Page
Silver v. New York Stock
Exch., 373 U. S. 341 300-
304,308, 314-315, 318-
319, 385, 393, 400, 410
Silver Palm, The, 94 F. 2d
754 143, 145, 149
Simmons v. United Stat.es,
390 U. S. 377 197-198
Simmons v. United States,
302 F. 2d 71 837
Sinclair Pipe Line v. United
States, 152 Ct. Cl. 723 482
Sioux Indians v. United
States, 316 U. S. 317
Skinner v. Oklahoma, 316
87
U.S. 535 444
Slaughter-House Cases, 16
Wall. 36 527
Smith, In re, 323 F. Supp.
1082 440, 448, 456
Smith, In re, 341 F. Supp.
1297 440, 453
Smith v. Allwright, 321 U.S.
649 4
4
Smith v. Georgia Democratic
Party, 288 F. Supp 371
Smith v. Guerrant, 290 F.
Supp. 111 257
Smith v. Hoboken R. Co.,
328 U.S. 123 958
Smith v. Mississippi, 373 u. s. 238 907
Smith v. Snow, 294 U.S. 1 70
Smith Kline & French v. Tax
Comm'n, 241 Ore. 50 278
Smith & Son v. Taylor, 276
U. S. 179 255, 266-267
Sneed v. Riverside County,
218 Cal. App. 2d 205 919
Sostre v. McGinnis, 4G F.
2d 178 970
Southern Pacific Terminal v.
ICC, 219 U.S. 498 544
South Porto Rico Sugar v.
Buscaglia, 154 F. 2d 96 424
Speiser v. Randall, 357 U. S.
513 123, 137, 1000
Standard Fruit v. United
Fruit, 393 U. S. 406 176
Stanford v. Texas, 379 U. S.
476 349-350
Stanley v. Georgia, 394 U.S.
557 127, 132-133, 139,999
TABLE OF CASES CITED CLXXIX
Page
Stanley v. Illinois, 405 U. S.
6% ~8
State. See also name of
State.
State v. Mottram, 158 Me.
325 42
State v. Stidham, 305 S. W.
2d 7; 415 S. W. 2d 297 226
State v. Stidham, 449 S. W.
2d 634 227
State Board v. Young's Market,
299 U. S. 59 115, 119
State Tax Comm'n v. Van
Cott, 306 U. S. 511 35
Stewart v. Massachusetts,
408 u. s. 845
815,1004, 1032,1122
Stickney, Ex parte, 82 S. Ct.
465 1227
Stiles v. National Airlines,
161 F. Supp. 125 263
Stokes v. Fortson, 234 F.
Supp. 575 1096
Stone v. United States, 167
U.S. 178 235
Stovall v. Denno, 388 U. S.
293 196, 198-200,202
Stratton v. St. Louis Sw. R.
Co., 282 U. S. 10 522
Strika v. Netherlands Ministry
of Traffic, 185 F. 2d
555 260
Stuart v. United States, 416
F. 2d 459 337
Sunshine Book Co. v. Summerfield,
355 U.S. 372 116
Sutphen Estates v. United
States, 342 U. S. 19 1032
Swain v. Alabama, 380 U.S.
202 532
Swann v. Charlotte-Mecklenburg
Bd. of Ed., 402 u. s. 1 1229-1231
Sweezy v. New Hampshire,
354 U. S. 234 999
Talbott v. Silver Bow County,
139 U. S. 438 420
Tate v. Short, 401 U.S. 395 939
Teague v. Commissioner of
Customs, 394 U.S. 977 906
Telephone Cases, 126 U. S.
1 68
Page
TVA v. Powelson, 319 U. S.
266 476, 484, 492
Terry v. Adams, 345 U. S.
~1 4
Terry v. Ohio, 392 U. S. 1 350
Thomas v. Collins, 323 U. S.
516 999
Thomas v. Lane, 23 F. Cas.
957 253,267
Thornhill v. Alabama, 310
U.S. 88 125
Tilghman v. Proctor, 102 u. s. 707 70
Tiller v. Atlantic C. L. R.
Co., 318 U. S. 54 929
Timken Co. v. United States,
341 U. S. 593 387
Tinker v. Des Moines School
Dist., 393 U.S. 503 998-999
Tinker v. Des Moines School
Dist., 258 F. Supp. 971 837
Titmus v. Tinsley, 370 U. S.
964 516
Torres v. New York Dept. of
Labor, 405 U.S. 949 546
Town. See name of town.
Towson v. Moore, 173 U.S.
17 202
Trafficante v. Metropolitan
Life Ins., 409 U. S. 205 409
Travia v. Lomenzo, 86 S. Ct.
7 1205
Travis v. United States, 123
F. 2d 268 357
Trihey v. Transocean Air
Lines, 255 F. 2d 824 263
Trop v. Dulles, 356 U. S.
86 936,970
Tucker v. Kerner, 186 F. 2d
79 837
Tumey v. Ohio, 273 U. S.
510 59, 62
Turner v. Louisiana, 379
U. S. 466 531,895
Tynan v. United States, 126
U. S. App. D. C. 206 837
Udall v. Tallman, 380 U. S.
1 210,409
Ullmann v. United States,
350 U. S. 422 327,338
Umbria, The, 166 U. S.
404 144-145, 148
CLXXX TABLE OF CASES CITED
Page
Ungar v. Sarafite, 376 U. S.
5~ 9M
Uniformed Sanitation Men
v. Sanitation Comm'r, 392
U. S. 280 342
Union. For labor union, see
name of trade.
Union Leader Corp., In re,
292 F. 2d 381 837
United. For labor union,
see name of trade.
United Fuel Gas v. Public
Serv. Comm'n, 278 U. S.
322 1218
United States v. Arnold, 380
F. 2d 366 240,243
United States v. Azar, 243
F. Supp. 345 243
United States v. Bass, 404
U. S. 336 247,282
United States v. Borden Co.,
308 U. S. 188 300,
302-303,385,407,410
United States v. Borden Co.,
370 u. s. 460 169, 181
United States v. California
Canneries, 279 U. S. 553
155,160, 165,185-186
United States v. Causby, 328
U. S. 256 919-920
United States v. Certain
Property, 388 F. 2d 596
473,475
United States v. Chase, 372
F. 2d 453 248
United States v. Chemical
Foundation, 272 U. S. 1 202
United States v. Cities Service
Co., 410 F. 2d 662
156,163,172, 183-184
United States v. Classic, 313 u. s. 299 13-16
United States v. Cobert, 227
F. Supp. 915 361
United States v . Cohen, 388
F, 2d 464 330
United States v. Commercial
Credit Co., 286 U. S.
63 202
United States v. Commodities
Trading Corp., 339
U. S. 121 478,490
Page
United States v. Commodore
Park, 324 U. S. 386 491
United States v. Concentrated
Phosphate Export,
393 u. s. 199 78
United States v. Cook, 19
Wall. 591 89
United States v. Cordova,
89 F. Supp. 298 262
United States v. Cors, 337
U. S. 325 491, 499
United States v. Cox, 190 F.
2d 293 502
United States v. Creek Nation,
295 U. S. 103 87-88
United States v. Cruikshank,
92 u. s. 542 423
United States v. Darby, 312
U. S. 100 831
United States v. Dickinson,
331 U. S. 745 202
United States v. E. C.
Knight Co., 60 F. 306,
934; 156 U. S. 1 155
United States v. Fabrizio,
385 U. S. 263 896
United States v. FMC Corp.,
321 F. 2d 534 153, 163, 172, 183
United States v. Freeman, 3
How. 556 243-244
United States v. Fuller, 409
U. S. 488 476, 478, 486
United States v. George, 319
F. 2d 77 103
United States v. Gerlach
Live Stock, 339 U.S. 725 494
United States v. Gooding,
328 F. Supp. 1005 994-995
United States v. Green, 331
F. Supp. 44 995
United States v. Grunewald,
233 F. 2d 556 338
United States v. Guest, 383
U.S. 745 424
United States v. Guterma,
272 F. 2d 344 334, 337
United States v. Harris, 106
U. S. 629 423
United States v. Hoffa, 382
F. 2d 856 837
United States v. Hutcheson,
312 U. S. 219 832
TABLE OF CASES CITED CLXXXI
Page
United States v. Ingersoll-
Rand, 320 F. 2d 509
163,165,172,183
United States v. International
Minerals, 402 U. S.
•5 58 896
United States v. Jackson,
390 U. s. 570 138
United States v. Jaramillo,
190 F. 2d 300 490, 502
United States v. Jin Fuey
Moy, 241 U. S. 394 282
United States v. Jones, 131
U.S. 1 465
United States v. Judson, 322
F. 2d 460 330
United States v. Kelly, 328
F. 2d 227 243
United States v. Kennerley,
209 F. 119 126
United States v. Kish, 303 F.
Supp. 1212 243
United States v. Klamath
and Moadoc Tribes, 304 u. s. 119 87
United States v. Lyons, 442
F. 2d 1144 329
United States v. Miller, 317 u. s. 369 474,478,480,483,
486,490--492,497-498
United States v. Mosley, 238
U. S. 383 14
United States v. Nolte, 440
F. 2d 1124 103
United States v. Norris, 300
U. S. 564 357,360
United States v. Northern
Pacific R. Co., 256 U. S.
51 89
United States v. Northwest
Air Service, 80 F. 2d 804 261
United States v. O'Brien, 391
U.S. 367
114,116,128- 129,132
United States v. 1,132.50
Acres, 441 F. 2d 356 475
United States v. Peoples, 50
F. Supp. 462 262
United States v. Petty Motor
Co., 327 U. S. 372
476,480--481
Page
United States v. Philadelphia
Nat. Bk., 374 U. S.
321 299, 302-
303, 306, 313, 408, 410
United States v. Phosphate
Export Assn., 393 U. S .
199 546
United States v. Powell, 379
U.S. 48 336
United States v. Price, 383
U. S. 787 424, 432
United States v. RCA, 358
U. S. 334 300,302, 314
United States v. Rands, 389 u. s. 121 480,
486,490--493,499-501
United States v. Reid, 437
F. 2d 1166 1067
United States v. Reidel, 402 u. s. 351 127
United States v. Reynolds,
397U.S. 14 474,478,480,486
United States v. Robel, 389 u. s. 258 132, 136
United States v. Seeger, 380 u. s. 163 940
United States v. Sherwood,
312 U. S. 584 466
United States v. Shoshone
Indians, 304 U. S. 111 87
United States v. Silver Line,
304 U. S. 576 143
United States v. Singer Mfg.
Co., 374 U. S.174 169,174,181
United States v. Slutzky, 79
F. 2d 504 360
United States v. Socony-
Vacuum Oil, 310 U.S. 150 410
United States v. Stewart, 311
U.S. 60 243-244
United States v. 37 Photographs,
402 U. S. 363 139
United Stafos v. Topco Associates,
405 U. S. 596 176
United States v. Trans-
Missouri Freight Assn., 53
F. 440; 58 F. 58; 166
U.S. 290 155
United States v. 22.95 Acres,
450 F. 2d 125 485
United States v. Twin City
Power Co., 350 U. S. 222
491, 493, 499-501
CLXXXII TABLE OF CASES CITED
Page
United States v. 201 Bags
Furazolidone, 405 U. S.
004 2~
United States v. U. S. Coin
& Currency, 401 U.S. 715 236
United States v. U. S. District
Court, 407 U. S.
297 828, 1015, 1219
United States v. Virginia.
Elec. & Power, 365 U. S.
624 474,478,480,490
United States v. Wall, 371
F. 2d 398 360
United States v. Western P.
R. Co., 352 U. S. 59 305
United States v. White, 322
U. S. 694 327,330
United States v. Williams,
341 U.S. 58 357
United States v. Willow
River Power Co., 324 U.S.
499 486
United St.ates v. Winter, 348
F. 2d 204 97
United States v. W. T.
Grant Co., 345 U. S. 629 546
United States v. Zakutansky,
401 F. 2d 68 329
United States Alkali E;.-port
v. United States, 325 U. S.
196 156,160--161, 163
U. S. ex rel. See name of
real party in interest.
United States Navigation
Co. v. Cunard S. S. Co.,
284 U. S. 474 300
Universal Interpretative
Shuttle Corp. v. WMATC,
393 U. S. 186 165
Vaca v. Sipes, 386 U.S. 171 311
Victory Carriers v. Law, 404
U. S. 202 254, 260--261, 272
Victory & Plymothian, The,
168 U. S. 410 146
Village. See name of village.
Walder v. United States, 347 u. s. 62 996
Walker v. Bishop, 408 F. 2d
1~8 837
Walker v. Georgia, 408 U.S.
936 508
Walker v. Hutchinson, 352 u. s. 112 40
Page
Waller v. Florida, 397 U. S.
387 506-511
Warden v. Hayden, 387 U.S.
294 338,341,343,348-350
Washington v. General Motors,
406 U. S. 109 817
Washington v. Texas, 388 u. s. 14 98, 100, 104
Waxham v. Smith, 294 U.S.
20 70
Webb v. Texas, 480 S. W.
2d 398 99
Weber v. Aetna. Casualty
Co., 406 U. S. 164
464,538-539,1069
Weems v. United States, 217
U. S. 349 935, 970
W einst.ein v. Eastern Airlines,
316 F. 2d 758 256,265
Welsh v. United States, 398 u. s. 333 940
West Coast Hotel v. Parrish,
300 U. S. 379 833
Western Live Stock v. Bureau
of Revenue, 303 U.S.
250 93
White v. Sinclair Prairie Oil,
139 F. 2d 103 90
Wieman v. Updegraff, 344
U.S. 183 999
Wight v. Davidson, 181 U.S.
371 420,424
Williams v. Illinois, 399 U.S.
235 939
Williams v. Parker, 188 U.S.
491 836
Williams v. Rhodes, 393
U.S. 23 805
Williams v. United States
Fidelity & Guaranty, 236
U. S. 549 457
Williamson v. Lee Optical,
348 U.S. 483 116
Willoughby Hills v. Corrigan,
29 Ohio St. 2d 39 920
Wilson v. Kelley, 294 F.
Supp. 1005 937
Wilson v. Transocean Airlines,
121 F. Supp. 85 263
Winship, In re, 397 U. S.
358 100,104
Wisconsin v. Constantineau,
400 u. s. 433 115, 120, 135
TABLE OF CASES CITED CLXXXIII
Page
Witherspoon v. Illinois, 391
U.S. 510 532
Wolfson v. Palmieri, 396 F.
2d 121 837
Worcester v. Street R. Co.,
196 r. s. 539 836
Wright v. MrMann, 387 F.
2d 519 970-971
Wyman v . .Tames, 400 U. S.
309 137
Wyman v. Pan-American
Airways, 181 Misc. 963 263
Page
Yara Engineering v. Newark,
132 N. J. L. 370 919
Yarbrough, Ex pa.rte, llO
U. S. 651 14
Y ounger v. Harri!', 401 F. S.
37 124-125, 1205-1206
Ziffrin, Inc. v. Reeves, 308
U. S. 132 119,284
Zwickler v. Koota, 389 U. S.
241 113,124,428,469

TABLE OF STATUTES CITED
(A) STATUTES OF THE UNITED STATES
Page
1789, Sept. 24, c. 20, 1 Stat.
73, § 25 ........... 418
1800, Apr. 4, c. 19, 2 Stat.
19 ............... 434
1801, Feb. 13, c. 4, 2 Stat.
89, § 11 ........... 418
1802, Mar. 8, c. 8, 2 Stat.
132, § 1 ........... 418
1803, Dec. 19, c. 6, 2 Stat.
248 .............. 434
1841, Aug. 19, c. 9, 5 Stat.
440 .............. 434
1843, Mar. 3, c. 82, 5 Stat.
614 .............. 434
1861, Aug. 6, c. 62, 12 Stat.
320 .............. 418
1862, July 16, c. 181, 12 Stat.
578 .............. 418
1863, Mar. 3, c. 91, 12 Stat.
762 .............. 418
1866, Apr. 9, c. 31, 14 Stat.
27, § 1. ........... 418
1867, Feb. 5, c. 28, 14 Stat.
385 .............. 188
Mar. 2, c. 176, 14 Stat.
517 .............. 434
1871, Feb. 21, c. 62, 16 Stat.
419 .............. 418
Apr. 20, c. 22, 17 Stat.
13, § 1. ........... 418
1874, June 20, c. 337, 18 Stat.
116 .............. 418
1875, Mar. 3, c. 137, 18 Stat.
470, § 1. .......... 418
1878, June 7, c. 160, 20 Stat.
99 ............... 434
1887, Feb. 4, c. 104, 24 Stat.
379, as amended,
§§ 1, 6, 15, 216, 218,
307, 406 .......... 1207
Mar. 3, c. 359, 24 Stat.
505 .............. 464
Page
1887, Mar. 3, c. 373, 24 Stat.
552, § 1 ........... 418
1890, July 2, c. 647, 26 Stat.
209, as amended,
§ 1. . 151, 289, 363, 917
§§ 2-3 .... 151,363,917
§§ 4-7... .. .. . 151,917
1891, Mar. 3, c. 517, 26 Stat.
826, §§ 2, 6-7 ...... 151
Mar. 3, c. 561, 26 Stat.
1095, § 7.......... 80
1892, July 20, c. 209, 27 Stat.
252 . .. . .......... 434
1894, July 16, c. 138, 28 Stat.
107, § 3........... 80
1895, Feb. 18, c. 96, 28 Stat.
666 .............. 151
1897, June 7, c. 4, 30 Stat.
96 ....... . ....... 140
1898, July 1, c. 541, 30 Stat.
544, as amended,
§§ 2, 6, 11, 14, 40,
48, 51-52, 59 ....... 434
§§ 21, 301 et seq. . 352
§ 70 ........ 434,957
§§ 77, 101 et seq. . 957
1900, June 6, c. 803, 31 Stat.
660 ........... . .. 151
1902, June 17, c. 1093, 32
Stat. 388 .......... 488
1903, Feb. 11, c. 544, 32
Stat. 823 ..... 151, 1032
1906, Apr. 14, c. 1627, 34
Stat. 116 .......... 151
1908, Apr. 22, c. 149, 35
Stat. 65, as amended,
§ 6 . . ............. 926
1911, Mar. 3, c. 231, 36 Stat.
1087, § 24 ......... 418
§§ 129, 238, 291 ... 151
1913, Mar. 1, c. 90, 37 Stat.
699 .............. 109
CLXXXV
CLXXXVI TABLE OF STATUT~ CITED
Page
1914,Sept. 26, c. 311, 38
Stat. 717, § 4 ...... 151
Oct. 15, c. 323, 38 Stat.
730, as amended,
§§ 1-2, 4, 11. ...... 151
§ 7 ......... 151,363
1915, Mar. 4, c. 153, 38 Stat.
1164, as amended,
§ 20 .............. 249
1920, Feb. 25, c. 85, 41 Stat.
437, §§ 17, 31...... 80
Mar. 30, c. 111, 41
Stat. 537 .......... 249
June 5, c. 250, 41 Stat.
988, § 33. . . . . . .. .. 249
June 10, c. 285, 41 Stat.
1063, as amended,
§ 205 ............ 1207
1922, Sept. 21, c. 356, 42 Stat.
858, § 497. . . . . . . . . 232
Sept. 21, c. 369, 42 Stat.
998, as amended. . . 289
1925, Feb. 13, c. 229, 43 Stat.
936 ............... 151
1926, May 20, c. 344, 44 Stat.
568, § 7 ........... 249
1927, Mar. 4, c. 509, 44 Stat.
1424 ............. 249
1928, Apr. 11, c. 354, 45 Stat.
422 .............. 151
1930, June 17, c. 497, 46 Stat.
590, §§ 460,497,593. 232
1932, Mar. 23, c. 90, 47 Stat.
70 ............... 824
1933, Mar. 1, c. 160, 47 Stat.
1418 .. . . .. . .. . . .. 80
Mar. 3. c. 204, 47 Stat.
1467, § 1 .......... 957
1934, June 6, c. 404, 48 Stat.
881 .............. 289
June 19, c. 652, 48 Stat.
1064, § 204 ....... 1207
June 28, c. 865, 48 Stat.
1269, § 3 .......... 488
1935, July 5, c. 372, 49 Stat.
449, as amended,
§§ 7-8 .. .. . .. .. 48, 213
§ 10 . . .. .. . . . . .. 48
Aug. 9, c. 498, 49 Stat.
543, as amended. . . 1207
Page
1935, Aug. 14, c. 531, 49 Stat.
620, as amended,
§203 ............. 464
§§ 204, 207, 223 ... 413
§ 303 ........... 540
Aug. 26, c. 687, 49 Stat.
803, § 213. . . . . . . . 1207
1936, June 15, c. 545, 49 Stat.
1491 ............. 289
June 19, c. 592, 49 Stat..
1526, §§ 1-4 ....... 151
1938, June 8, c. 327, 52 Stat.
631 ............. 1080
June 21, c. 556, 52 Stat.
821, as amended,
§ 4 .............. 1207
June 22, c. 575, 52 Stat.
840 ...... 352,434,957
June 23, c. 601, 52 Stat.
973 .............. 363
June 25, c. 676, 52 Stat.
1060 ............. 824
1940, Sept. 18, c. 722, 54 Stat.
898, § 201. . . . . . . . 1207
1942, Apr. 29, c. 263, 56 Stat.
248 ............. 1080
May 16, c. 318, 56 Stat.
284 ............. 1207
1944, June 9, c. 239, 58 Stat.
272 .............. 151
1945, Mar. 9, c. 20, 59 Stat.
33, §2 ............ 917
§ 3 ............. 151
1946, June 11, c. 324, 60 Stat.
237, § 6 ........... 289
June 28, c. 512, 60 Stat.
323, § 6 ........... 434
1947, June 23, c. 120, 61 Stat.
136, § 101. . . . . . 48, 213
1948, June 19, c. 526, 62 Stat.
496 .............. 249
June 24, c. 625, 62 Stat.
604, as amended,
§ 12 .............. 940
June 25, c. 646, 62 Stat.
869, § 17 .......... 151
1950,Dec. 29, c. 1184, 64
Stat. 1125 ......... 151
1951, Oct. 31, c. 655, 65 Stat.
710, § 49 .......... 151
1952, June 27, c. 477, 66 Stat.
163, § 101. ....... 1086
TABLE OF STATUTES CITED CLXXXVII
Page
1953, May 22, c. 65, 67 Stat.
29, § 5............ 17
1956, Aug. 1, c. 836, 70 Stat.
807, § 103 ......... 413
1958, July 7, Pub. L. 85-508,
72 Stat. 339, § 12 ... 151
July 25, Pub. L. 85-554,
72 Stat. 415. . . . . . . 418
Aug. 23, Pub. L. 85-
726, 72 Stat. 731,
as amended, §§ 102,
204, 408-409, 411,
414--415, 1106 ...... 363
§ 1002 ..... 363, 1207
§ 1109 .......... 249
Sept. 2, Pub. L. 85-
919, 72 Stat. 1770 .. 151
1959, Sept. 14, Pub. L. 86-
272, 73 Stat. 555,
§§ 101, 201-202 .... 275
1961, Sept. 4, Pub. L. 87-
195, 75 Stat. 424, as
amended, §§510, 610,
614 .............. 929
Sept. 13, Pub. L . 87-
218, 75 Stat. 492
§ 1 ............... 239
Sept. 13, Pub. L. 87-
228, 75 Stat. 498 ... 239
1964, July 2, Pub. L. 88-
352, 78 Stat. 241,
§ 407 ............ 1228
§ 706 ........... 205
1965, Apr. 11, Pub. L. 89- 10,
79 Stat. 27 ........ 921
July 7, Pub. L. 89-68,
79 Stat. 212. . . . . . . 239
Aug. 6, Pub. L. 89-110,
79 Stat. 437.. .. . . 1032
1966, July 4, Pub. L. 89-486,
80 Stat. 244, § 2 .. 1080
1968, Apr. 11, Pub. L. 90--284,
82 Stat. 73, §§ 804,
810, 812--813 ....... 205
May 17, Pub. L. 90--
306, 82 Stat. 121. . . 80
June 19, Pub. L. 90--
351, 82 Stat. 197,
§ 802 et seq .. .. .. 1090
1969, Aug. 20, Pub. L. 91-
62, 83 Stat. 103. . . . 363
Page
1970,Jan. 1, Pub. L. 91-190,
83 Stat. 852, §§ 2,
102 ............. 1207
July 24, Pub. L. 91-
354, 84 Stat. 468 ... 434
July 29, Pub. L. 91-
358, 84 Stat. 473,
§210 ............. 992
Oct. 27, Pub. L. 91-
513, 84 Stat. 1236,
§§ 508-509 ........ 992
§ 701 ........... 239
1972, Mar. 17, Pub. L. 92-
251, 86 Stat. 63 .... 434
June 23, Pub. L. 92-
318, 86 Stat. 235,
§§ 802-803 ....... 1228
Oct. 27, Pub. L. 92-
576, 86 Stat. 1251. . 249
Revised Statutes.
§ 1864 ............... 418
§ 1978 ........... 205,418
§ 1()79 . . . . . . . . .. . . . .. 1,
109, 418,968, 1201
§ 1980 .... . . .. . .. , .. . 1
§§ 2289--2291, 2295 .... . 80
U. S. Code.
Title 5,
§ 555 ........... 289
§ 704 ........... 1086
Title 7, § 1 et seq ..... 289
Title 8, § 1101. . . . . .. 1086
Title 11,
§§ 11, 24, 29, 32, 68,
76, 79--80, 95. . . 434
§§ 44, 701 et seq. . . 352
§ 110 . .. . .. . . 434, 957
§§ 205, 501 et seq .. 957
Title 15,
§ 1. . . 151,289,363,917
§§2--3 ..... 151,363,917
§§4-7 ......... 151,917
§§ 12-13, 13a, 13b,
15, 21, 21a, 28,
44, 1013. . . . . . . . 151
§ 18 .......... 151,363
§ 29 ......... 151, 1032
§ 78a et seq.. . . . .. 289
§ 381 ............ 275
§ 717c .......... 1207
§ 1012 ........... 917
Title 16, § 824d ...... 1207
CLXXXVIII TABLE OF STATUTES CITED
Page
U. S. Code-Continued.
Title 18 (1964 ed.),
§ 1405 ............. 992
Title 18,
§ 7 .............. 249
§ 13 ............ 1066
§ 545 ............ 232
§§ 1084, 1952-1953 .. 239
§ 1621 ........... 352
§ 2153 ........... 932
§ 2510 ...... 1090, 1238
§§ 2518, 6002-6003. 1232
§ 3504 .......... 1238
Title 19, §§ 1460, 1497. 232
Title 20 (Supp. II),
§§ 1652-1653 . . . . . . 1228
Title 21, §§ 878-879 ... 992
Title 22,
§ 611 et seq. . . . . . 1080
§§ 2318, 2360, 2364. 929
Title 26, §§ 6065, 7206,
7402, 7602, 7604 .... 322
Title 28 (1940 ed.),
§ 41 ............... 464
§§ 832-836 . .. .. . .. 434
Title 28,
§§ 294-295 ........ 903,
Ill9, 1131
§§ 453, 455. . . . . . . . . 824
§ 1252. . . . . . .. . 80, 434
§ 1253 .......... 1032
§§ 1257, 2103 ....... 535
§§ 1291-1292 . . . . . . 151
§§ 1331, 1343 ... 109,418
§§ 1333, 2674 ...... 249
§ 1346 ....... 249,464
§ 1447 .. . .. .. . .. . 56
§ 1491 ........... 464
§ 1651 . . . . . . 151, 1222
§ 1826 .......... 1232
§§ 1915, 2403 ...... 434
§ 2101 ... 80,905, 1201
§ 2111 ........... 100
§§ 2201-2202 ...... 109
§ 2241 . . . . . . . . . . . 41
§ 2244 ........... 188
§ 2281 ........... 109,
467, 512, 540
§ 2283 .......... 1201
§ 2284 ........... 109,
540, 1032, 1207
§ 2325 .......... 1207
Page
U. S. Code-Continued.
Title 29,
§§ 101-115, 201 et
seq ............. 824
§§ 157-158 ..... 48,213
§ 160 . . . . . . . . .. . . 48
Title 30, §§ 188, 226... 80
Title 33, § 192 ........ 140
§ 901 et seq. . .. .. 249
Title 35, §§ 100-101. . . 63
Title 38, § 3101. ...... 413
Title 42, § 403. . . . . . . . 464
§§404, 407, 423 .... 413
§ 503 ............ 540
§ 1973 et seq. . . . 1032
§ 1982 ....... 205,418
§ 1983 . . . .. .. .. . . 1,
109, 418, 968, 1201
§ 1985 . . .. . .. . . .. 1
§ 2000c-6 . . .. .. . 1228
§§ 2000e-5 I 3604,
3610 3612-3613 .. 205
§§ 4321, 4332 ..... 1207
Title 43 (1964 ed.),
§ 1313 . . . . . . .. . . . . . 17
Title 43,
§§ 161-165, 1165... 80
§§ 315, 315b ....... 488
Title 45, § 56. . . . . . . . . 926
Title 46, §§ 688, 740,
761 et seq. .. . . . . . . 249
Title 4 7, § 204. . . . . . . 1207
Title 49 (1952 ed.),
§ 177 .............. 249
Title 49,
§§ 1, 6, 15, 316, 318,
907, 1006, 1482. 1207
§ 44 ............. 151
§§ 1302, 1324, 1378-
1379, 1381, 1384-
1385, 1482, 1506. 363
§ 1509 ........... 249
Title 50 App., § 462 ... 940
Administrative Procedure
Act ............... 289, 1086
Air Commerce Act of 1926. . 249
All Writs Act. . . . . . . . 151, 1222
Bankruptcy Act. . . 352, 434, 957
Black-Connery Fair Labor
Standards Act ........... 824
Celler-Kefauver Act ... 151,363
Chandler Act. . . . . 352, 434, 957
TABLE OF STATUTES CITED CLXXXIX
Page
Civil Aeronautics Act of
1938 ................... 363
Civil Rights Act of 1866 .... 418
Civil Rights Act of 1964 ... 205,
1228
Civil Rights Act of 1968 ... 205
Clayton Act. . . . . . . . . . . 151, 363
Commodity Exchange Act .. 289
Communications Act of
1934 .................. 1207
Comprehensive Drug Abuse
Prevention and Control
Act of 1970 ......... 239,992
Controlled Substances Act .. 992
Death on the High Seas
Act ................... 249
District of Columbia Court
Reform and Criminal Procedure
Act of 1970. . . . . . 992
Education Amendments of
1972 .................. 1228
Elementary and Secondary
Education Act of 1965 ... 921
Evarts Act... . . . . . . . . . . . . 151
Expediting Act..... . . 151, 1032
Extension of Admiralty Jurisdiction
Act. . . . . . . . . . . 249
Fair Labor Standards Act of
1938 ................... 824
Federal Aviation Act of
1958 ......... 249,363, 1207
Federal Employers' Liability
Act ................. 926
Federal Power Act ........ 1207
Federal Tort Claims· Act ... 249
Foreign Agents Registration
Act of 1938. . . . . . . . . . . . 1080
Foreign Assistance Act of
1961 ................... 929
Freight Forwarders Act ... 1207
Grain Futures Act. . . . . . . . . 289
Immigration and Nationality
Act .................. 1086
Page
Internal Revenue Code of
1954, §§ 6065, 7206, 7402,
7602, 7604 .............. 322
Interstate Commerce Act. . 1207
Jones Act ................. 249
Judges Act. . . . . . . . . . . . . . . . 151
Judiciary Act of 1789. . . . . . 418
Judiciary Act of 1867 ...... 188
Judiciary Act of 1925. . . . . . 151
Ku Klux Klan Act of 1871 .. 418
Longshoremen's and Harbor
Workers' Compensation
Act ................... 249
Longshoremen's and Harbor
Workers' Compensation
Act Amendments of 1972. 249
McCarran-Ferguson Act ... 917
:\1otor Carrier Act, 1935. . . 1207
National Environmental Policy
Act of 1969. . . . . . . . . 1207
National Labor Relations
Act ................ 48,213
Natural Gas Act .......... 1207
Norris-La.Guardia Act ...... 824
Omnibus Crime Control and
Safe Streets Act of 1968. 1090
Reclamation Act of 1902 ... 488
Referees' Salary Act. . . . . . . 434
Robinson-Patman Act ...... 151
Securities Exchange Act of
1934 ................... 289
Sherman Act .. 151,289,363, 917
Social Security Act. 413,464, 540
Social Security Amendments
of 1956 ................. 413
Submerged Lands Act...... 17
Tariff Acts of 1922, 1930 ... 232
Taylor Grazing Act ........ 488
Travel Act. . . . . . . . . . . . . . . . 239
Tucker Act ............... 464
Voting Rights Act of 1965. 1032
Water Carriers Act. . . . . . . 1207
Webb-Kenyon Act ......... 109
(B) CONSTITUTIONS AND STATUTES OF THE STATES AND THE
DISTRICT OF COLUMBIA
Alabama.
Code, Tit. 7, § 827 .... 937
California.
Const., Art. XX, § 22 .. 109
California-Continued.
Bus. & Prof. Code
§ 25657 ............ 109
Evid. Code § 1070 .... 1243
CXC TABLE OF STATUTES CITED
Po.ge
California-Continued.
Health & Safety
Code §§ 11500-11501,
11721, 11910, 11912 .. 109
Health & Safety Code
§ 11530 . . . .. . . . . . .. 33
Penal Code §§ 166,
801 . . . . . . . . . . . . . . . 1243
Penal Code §§ 261, 263,
647 ............... 109
Colorado.
Rev. Stat. Ann. § 40-2-
31 . . . . . . . . . . . . . . . . 1066
District of Columbia.
Code Ann. §§ 4--138, 23-
521 to 23-522 ....... 992
Illinois.
Rev. Stat., c. 38, § 36--1
et seq . . . . . . . . . . . . . 38
Rev. Stat., c. 46, §§ 19-1
to 19-3 ............. 512
Rev. Stat., c. 95½,
§ 3-405 . .. .. . .. . .. . 38
Indiana.
Ann. Stat. §§ 10-2304,
10-2307, 10-2331 .... 239
Ann. Stat. § 52-1542a .. 540
Louisiana.
Const., Art. VII, § 9. . 1095
Maine.
Rev. Stat. Ann., Tit. 14,
§§ 5502, 5507. .. . .. .. 41
N'ew Jersey.
Stat. Ann. § 2A: 156Al
. . . . . . . . . . . . . . . . 1090
Stat. Ann. § 44:7-14 ... 413
New Mexico.
Laws 1966, c. 47, § 22.. 91
Stat. Ann. §§ 72-16--2 to
72-16--19, 72-16A-1
to 72-16A-19 (1953
Comp.) . . . . . . . . . . . . 91
Emergency School Tax
Act . . . . . . . . . . . . . . . 91
New Mexico-Continued.
Gross Receipts and
Compensating Tax
Page
Act . . . . . . . . . . . . . . . 91
New York.
Laws 1972, c. 687. . . . . 1052
Civ. Prac. Law § 5205. 434
Educ. Law§ 701 et seq. 75
Educ. Law§ 2590-e .... 998
Labor Law § 595. . . . . . 434
Penal Law §§ 70.00,
220.30, 220.35 .... . .. 959
Soc. Serv. Law § 101-
a, .........••...•.. 1052
Soc. Welfare Law
§§ 137, 137-a ...... . . 434
Ohio.
Rev. Code Ann., c.
4563 ............. . . 919
Rev. Code Ann.
§§ 733.40, 737.15,
1905.01 et seq.,
2937.20 . . . . .. . . . .. . 57
Pennsylvania.
Stat. Ann., Tit. 25,
§§ 623-1 et seq.,
2602 .............. 512
South Carolina.
Code Ann. §§ 4-1 et
seq., 4-131, 4-134 to
4-135, 4-137, 4-139
to 4-141, 65--606 .... 275
Code Ann. § 17-554 ... 934
Code Ann. §§ 32-1506,
38--202 ............. 524
Alcoholic Beverage Control
Act ............ 275
Texas.
Laws 1967, c. 309 ....... 535
Election Code, Arts. 13.02,
13.45, 13.50 ......... 803
Fam. Code § 4.02. . . . . . 535
Penal Code §§ 602,
602-A ............. 535
Rev. Civ. Stat., Arts.
4614, 4639a ......... 535
(C) FOREIGN STATUTES
England.
34 & 35 Hen. 8, c. 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 434
4 Anne, c. 17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 434
CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATF.S
AT
JULY SPECIAL TERM, 1972
O'BRIEN ET AL. V. BROWN ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT AND ON APPLICATION FOR STAY
Nos. 72-34 and A-23. Decided July 7, 1972~
On July 3, 1972, delegates from California and Illinois brought
suits in District Court contesting their unseating, recommended by
the Democratic Party's Credentials Committee, in the 1972 Democratic
National Convention, scheduled to convene July 10. The
District Court dismissed both actions. On July 5, the Court
of Appeals reversed both decisions, granting relief to the California
delegates, and denying relief to the Illinois delegates.
Held: In view of the probability that the Court of Appeals
erred in deciding the cases on the merits and in view of the traditional
right of a political convention to review and act upon the
recommendations of a Credentials Committee, the judgments of
the Court of Appeals must be stayed. The important constitutional
issues cannot be resolved within the limited time available,
and no action is now taken on the petitions for certiorari.
See: 15:! U. S. App. D. C. 157, 469 F. 2d 563.
*Together with Nos. 72-35 and A-24, Keane et al. v. National
Democratic Party et al., on petition for writ of certiorari and on
application for stay to the same court.
1
2 JULY SPECIAL TERM, 1972
Per Curiam 409U.S.
PER CURIAM.
Yesterday, July 6, 1972, the petitioners filed petitions
for writs of certiorari to review judgments of the United
States Court of Appeals for the District of Columbia
Circuit in actions challenging the recommendations of the
Credentials Committee of the 1972 Democratic National
Convention regarding the seating of certain delegates to
the convention that will meet three days hence.
In No. 72-35, the Credentials Committee recommended
unseating 59 uncommitted delegates from Illinois on the
ground, among others, that they had been elected in
violation of the "slate-making" guideline adopted by the
Democratic Party in 1971. A complaint challenging the
Credentials Committee action was dismissed by the District
Court. The Court of Appeals on review rejected
the contentions of the unseated delegates that the action
of the Committee violated their rights under the Constition
of the United States.
In No. 72-34, the Credentials Committee recommended
unseating 151 of 271 delegates from California committed
by California law to Senator George McGovern under
that State's "winner-take-all" primary system. The
Committee concluded that the winner-take-all system
violated the mandate of the 1968 Democratic National
Convention calling for reform in the party delegate
selection process, even though such primaries had not
been explicitly prohibited by the rules adopted by the
party in 1971 to implement that mandate. A complaint
challenging the Credentials Committee action was dismissed
by the District Court. On review the Court
of Appeals concluded that the action of the Credentials
Committee in this case violated the Constitution of the
United States.
Accompanying the petitions for certiorari were applications
to stay the judgments of the Court of Appeals
pending disposition of the petitions.
O'BRIEN v. BROWN 3
Per Curiam
The petitions for certiorari present novel questions
of importance to the litigants and to the political system
under which national political parties nominate
candidates for office and vote on their policies and
programs. The particular actions _of the Credentials
Committee on which the Court of Appeals ruled are
recommendations that have yet to be submitted to the
National Convention of the Democratic Party. Absent
judicial intervention, the Convention could decide
to accept or reject, or accept with modification, the proposals
of its Credentials Committee.
This Court is now asked to review these novel and
important questions and to resolve them within the
remaining days prior to the opening sessions of the
convention now scheduled to be convened Monday,
July 10, 1972.
The Court concludes it cannot in this limited time
give to these issues the consideration warranted for
final decision on the merits; we therefore take no action
on the petitions for certiorari at this time.
The applications to stay the judgments of the Court
of Appeals call for a weighing of three basic factors:
(a) whether irreparable injury may occur absent a stay;
(b) the probability that the Court of Appeals was in
error in holding that the merits of these controversies
were appropriate for decision by federal courts; and
(c) the public interests that may be affected by the
operation of the judgments of the Court of Appeals.
Absent a stay, the mandate of the Court of Appeals
denies to the Democratic National Convention its traditional
power to pass on the credentials of the California
delegates in question. The grant of a stay, on the other
hand, will not foreclose the Convention's giving the
respective litigants in both cases the relief they sought
in federal courts.
4 JULY SPECIAL TERM, 1972
Per Curiam 409 U.S.
We must also consider the absence of authority supporting
the action of the Court of Appeals in intervening
in the internal determinations of a national political
party, on the eve of its convention, regarding the seating
of delegates.1 No case is cited to us in which any federal
court has undertaken to interject itself into the
deliberative processes of a national political convention;
no holding of this Court up to now gives support
for judicial intervention in the circumstances presented
here, involving as they do relationships of great delicacy
that are essentially political in nature. Cf. Luther v. Borden,
7 How. 1 (1849). Judicial intervention in this area
traditionally has been approached with great caution and
restraint. See Irish v. Democratic-Farmer-Labor Party
of Minnesota, 399 F. 2d 119 (CA8 1968), affirming 287
F. Supp. 794 (Minn. 1968), and cases cited; Lynch
v. Torquato, 343 F. 2d 370 (CA3 1965); Smith v. State
Exec. Comm. of Dem. Party of Ga., 288 F. Supp. 371
(ND Ga. 1968). Cf. Ray v. Blair, 343 U.S. 214 (1952).
It has been understood since our national political parties
first came into being as voluntary associations of individuals
that the convention itself is the proper forum for
determining intra-party disputes as to which delegates
shall be seated. Thus, these cases involve claims of the
power of the federal judiciary to review actions heretofore
thought to lie in the control of political parties.
Highly important questions are presented concerning
justiciability, whether the action of the Credentials
Committee is state action and, if so, the reach of the
Due Process Clause in this unique context. Vital rights
of association guaranteed by the Constitution are also
involved. While the Court is unwilling to undertake
1 This is not a case in which cla.ims are made that injury arises
from invidious discrimination based on race in a primary contest
within a single State. Cf. Terl'y v. Adams, 345 U. S. 461 (1953);
Smith v. Allwright, 321 U. S. 649 ( 1944).
O'BRIEN v. BROWN 5
Per Curiam
final resolution of the important constitutional questions
presented without full briefing and argument and adequate
opportunity for deliberation, we entertain grave
doubts as to the action taken by the Court of Appeals.
In light of the availability of the convention as a forum
to review the recommendations of the Credentials Committee,
in which process the complaining parties might
obtain the relief they have sought from the federal courts,
the lack of precedent to support the extraordinary relief
granted by the Court of Appeals, and the large public
interest in allowing the political processes to function free
from judicial supervision, we conclude the judgments of
the Court of Appeals must be stayed.
We recognize that a stay of the Court. of Appeals'
judgments may well preclude any judicial review of
the final action of the Democratic National Convention
on the recommendation of its Credentials Committee.
But, for nearly a century and a half the national political
parties themselves have determined controversies regarding
the seating of delegates to their conventions. If this
system is to be altered by federal courts in the exercise
of their extraordinary equity powers, it should not
be done under the circumstances and time pressures surrounding
the actions brought in the District Court, and
the expedited review in the Court of Appeals and in this
Court.2
The applications for stays of the judgments of the
Court of Appeals are granted.
MR. JusTICE BRENNAN is of the view that in the
limited time available the Court cannot give these difficult
and important questions consideration adequate for
2 Argument was had and the case decided in the District Court on
July 3; the Court of Appeals entered its judgment July 5. Papers
were filed here July 6.
6 JULY SPECIAL TERM, 1972
l\1AttSHALL, J., dissenting 409U. S.
their proper resolution. He therefore concurs in the
grant of the stays pending action by the Court on the
petitions for certiorari.
MR. JUSTICE WHITE would deny the applications for
stays.
MR. JUSTICE DOUGLAS, dissenting.
I would deny the stays and deny the petitions for certiorari.
The grant of the stays is, with all respect, an
abuse of the power to grant one. The petitions for certiorari
will not be voted on until October, at which time
everyone knows the cases will be moot. So the action
granting the stays is an oblique and covert way of deciding
the merits. If the merits are to be decided, the cases
should be put down for argument. As MR. JUSTICE
MARSHALL has shown, the questions are by no means
frivolous. The lateness of the hour before the Convention
and the apparently appropriate action by the
Court of Appeals on the issues combine to make a denial
of the stays and a denial of the petitions the only responsible
action we should take without oral argument.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE
DOUGLAS joins, dissenting.
These two separate actions challenge the exclusion
from the Democratic National Convention by the party's
Credentials Committee of 151 delegates from the State
of California and 59 delegates from the State of IIJinois,
all of whom were selected as delegates as a result of
primary elections in their respective States. The excluded
delegates allege, in essence, that the refusal of
the party to accept them as delegates denies them due
process, and denies the voters who elected them their
O'BRIEN v. BROWN 7
1 MARSHALL, J., dissenting
right to full participation in the electoral process as guaranteed
by the United States Constitution.1
Two assertions are central to the challenge made by
the delegates from California. First, they contend that
under California's winner-take-all primary election law,
which the Democratic Party explicitly approved prior
to the 1972 primary election,2 and which the California
voters relied on in casting their ballots, they are validly
elected delegates committed to the presidential candidacy
of Senator George McGovern. Second, they
claim that after all of the presidential candidates who
were on the ballot in California had planned and carried
out their campaigns relying on the validity of the
State's election laws, and after all votes had been cast in
the expectation that the winner of the primary would
command the entire California delegation, the Credentials
Committee changed the party's rules and reneged
on the party's earlier approval of the California electoral
system. The delegates contend that, in so doing, the
committee and the party impaired the rights of both
voters and duly elected delegates in violation of the
Fourteenth Amendment.3
The Illinois delegates contend that they were excluded
on the ground that they were "selected outside the arena
of public participation by, and given the massive support
and endorsement of, the Democratic organization in
1 While the delegates couch their arguments in various ways, all
of the arguments boil down to these two: i. e., they have been denied
due process and the voters who elected them have been denied
an opportunity to vote for the candidate or delegate of their choice.
2 This approval was given in the form of a written communication
from the Commission on Party Structure and Delegate Selection to
the Democratic National Committeeman from California.
3 A hearing offict'r found merit in the delegates' claims, but he was
reversed by the Credentials Committee.
8 JllL Y SPECIAL TERM, 1972
MARSHALL, J., dissi>nting 409 U.S.
Chicago and specifically and clearly identifiable as the
party apparatus in [ certain districts], to the exclusion
of other candidates not favored by the organization, and
this without written and publicized rules and with no
notice to the public such as would permit interested
Democratic electors to participate." • They argue that
the restrictions placed by the rules on party officials violate
their rights under the First and Fourteenth Amendments.
It is also suggested that another reason why
the delegates were excluded was that their delegation
had an insufficient number of Negroes, women, and
representatives of certain other identifiable classes of
persons. This is alleged to be establishment of a "quota"
system in violation of the Fourteenth Amendment.~
The United States District Court for the District of
Columbia denied both sets of plaintiffs relief on the
ground that there was no justiciable question before it.6
The United States Court of Appeals reversed the District
Court and held that the questions presented in
both suits were justiciable. It unanimously rejected
the challenge made by the Illinois delegates, and by a
2-1 vote upheld the claim of the delegates from California
that the belated change in the rules constituted
a denial of due process of law.
The losing parties in the Court of Appeals seek review,
and today this Court grants partial relief in the
form of a stay of the judgments of the Court of Appeals.
The Court holds, in effect, that even if the District
4 Report of Hearing Officer 2, adopted by Credl'ntials Committee,
June 30, 1972.
• See Ri>port of Hearing Officer 3-4.
6 The District. Court Judge indicated that, in his view, a quota
system would raise serious constitutional questions. Two judges of
the Court of Appeals found that the rules did not require any quotas.
Judge MarKinnon disagreed, believing that the rules did establish
a quota and that they were, therefor!', unconstitutional.
O'BRIEN v. BROWN 9
MARSHALL • .T., dissenting
Court was incorrect in ruling that the issues before it
were "political questions" not properly justiciable in a
court of law, the posture and timing of these cases require
that federal courts defer to the Democratic National
Convention for resolution of the underlying disputes.
I cannot agree.
In each of these cases, the claim is made that the
Credentials Committee has impaired the right of Democratic
voters to have their votes counted in a presidential
primary election. The related claim is also made that
the committee has deprived the delegates themselves
of their right to participate in the convention, by
methods that deny them due process of law. Both
these claims are entitled to judicial resolution, and now
is the most appropriate time for them to be heard.
If these cases present justiciable controversies, then
we are faced with a decision as to the most appropriate
time to resolve them. There would appear to be three
available choices: now; after the Credentials Committee's
report is either accepted or rejected by the national
convention; or after the convention is over.
There can be no doubt, in my view, that there is,
at the present time, a live controversy between the excluded
delegates and the Democratic National Committee.
Nevertheless, because this controversy may vanish
at the national convention, it is suggested that judicial
intervention is premature at this point. This may be
correct with respect to a decision on whether to grant
injunctive relief, but not with respect to the appropriateness
of a declaratory judgment.
Should this Court, or a lower federal court, be compelled
to wait until the national convention makes a
final decision on whether it will seat the delegates excluded
by the Credentials Committee, it may never again
be practicable to consider the important constitutional
issues presented. Once the convention rules, we will
JULY SPECIAL TERM, 1972
MARSHALL, .J., dissenting 409 U.S.
be faced with the Robson's choice between refusing to
hear the federal questions at all, or hearing them and
possibly stopping the Democratic convention in midstream.
This would be a far more serious intrusion
into the democratic process than any we are asked to
make at this time.
If we wait even longer-until the national convention
is over-and ultimately sustain the delegates' claims
on the merits, we would have no choice but to declare
the convention null and void and to require that it be
repeated. The dispute in these cases concerns the right
to participate in the machinery to elect the President
of the United States. If participation is denied, there
is no possible way for the underlying disputes to become
moot. The drastic remedy that delay might require
should be avoided at all costs.
It is, therefore, obvious to me that now is the time
for us to act. It is significant in this regard that the
delegates request declaratory, as well as injunctive, relief.
A declaratory judgment is a milder remedy than an
injunction, cf. Perez v. Ledesma, 401 U.S. 82, 111 (1971)
(BRENNAN, J., concurring in part and dissenting in part).
It is a particularly appropriate remedy under these
circumstances, because it can protect any constitutional
rights that may be threatened at the same time that
the premature issuance of an injunction is avoided.
Hence, I believe that we should consider the prayer
for declaratory relief and that we should do so now.
In granting the stays, then, the Court seems to rely
at least in part on the view that the claims are not
yet ripe for decision, a view which I cannot accept for
the reasons stated above. In addition, the Court suggests
that judicial relief will be inappropriate even after
the full convention has ruled on these claims. The
point appears to be that, quite apart from the mere
matter of timing, the cases present a "political question,"
O'BRIEN v. BROWN 11
1 MARSHALL, J ., dissenting
or are otherwise nonjusticiable, because they concern the
internal decisionmaking of a political party. That argument
misconceives the nature and the purpose of the
doctrine. Half a century ago , l\fr. Justice Holmes, writing
for a unanim0us Court, made it clear that a question
is not "political,' ' in the jurisdictional sense, merely because
it involves the operations of a political party:
"The objection that the subject matter of the suit
is political is little more than a play upon words.
Of course the petition concerns political action but
it alleges and seeks to recover for private damage.
That private damage may be caused by such political
action and may be recovered for in a suit
at law hardly has been doubted for over two hundred
years, since Ashby v. White, 2 Ld. Raym. 938,
3 id. 320, and has been recognized by this Court.
Wiley v. Sinkler, 179 U. S. 58, 64, 65. Giles v.
Harris, 189 U. S. 475, 485. See also Judicial Code,
§ 24 (11), (12), (14). Act of March 3, 1911, c. 231;
36 Stat. 1087, 1092. If the defendants' conduct
was a wrong to the plaintiff the same reasons that
allow a recovery for denying the plaintiff a vote at
a final election allow it for denying a vote at the
primary election that may determine the final result."
Nixon v. Herndon, 273 U.S. 536,540 (1927 ) .
The doctrine of "political questions" was fashioned
to deal with a very different problem, which has nothing
to do with this case. As the Court said in Baker v.
Carr, 369 1T. S. 186 (1962), the basic characteristic of
a political question is that its resolution would lead a
court into conflict with one or more of the coordinate
branches of government; courts decline to decide political
questions out of deference to the separation of powers.
369 U. S., at 217; see Powell v. McCormack, 395 'C. S.
486, 518-549 (1969). Neither the Executive nor the
12 JULY SPECIAL TERM, 1972
MARSHALL, J., dissenting 409 U.S.
Legislative Branch of Government purports to have jurisdiction
over the claims asserted in these cases. Apart
from the judicial forum, only one other forum has been
suggested-the full convention of the National Democratic
Party-and that is most assuredly not a coordinate
branch of government to which the federal courts
owe deference within the meaning of the separation of
powers or the political-question doctrine.
Moreover, it cannot be said that "judicially manageable
standards" are lacking for the determinations required
by these cases, 369 U. S., at 217. The IUinois
challenge requires the C'ourt to determine whether certain
rules adopted by the National Party for the selection
of delegates violate the First and Fourteenth Amendment
rights of Illinois voters and, if the rules are valid,
whether they were correctly applied to the facts of the
case. The California challenge requires the Court to
determine whether the votes of party members were
counted in accordance with the rules announced prior
to the election and, if not, whether a change in the
rules after the election violates the constitutional rights
of the voters or the candidates. Both these determinations
are well within the range of questions regularly
presented to courts for decision, and capable of judicial
resolution.
A second threshold objection, however, has been raised
as an obstacle to judicial determination of these claims.
Even if the actions of a political party are not inherently
nonjusticiable, it is suggested that the Constitution
places few, if any, restrictions on the actions of a political
party, and none of those restrictions are even
arguably implicated by any of the allegations here. On
this view, then, the plaintiffs below failed to state a
claim on which relief can be granted. I disagree.
1. First, I agree with the Court of Appeals that the
action of the Party in these cases was governmental
O'BRIEN v. BROWN 13
MARSHALL, .J., dissenting
action, and therefore subject to the requirements of due
process. The primary election was, by state law, the
first step in a process designed to select a Democratic
candidate for President; the State will include electors
pledged to that candidate on the ballot in the general
election. The State is intertwined in the process at
every step, not only authorizing the primary but conducting
it, and adopting its result for use in the general
election. In these circumstances, the primary must be
regarded as an integral part of the general election,
see United States v. Classic, 313 U.S. 299 (1941), quoted
infra, at 15-16, and the rules that regulate the primary
must be held to the standards of elementary due process.
It is suggested that California, at least, cannot be
charged with responsibility for the rules that are challenged
here, because California by law sought (albeit
unsuccessfully) to prohibit the Party from adopting those
rules. That argument is somewhat disingenuous, however,
unless it can seriously be contended that California
will decline to recognize on its ballot in the general election
the nominee of the Democratic convention. For so
long as the State recognizes and adopts the fruits of the
primary as it was actually conducted, then the State has
made that primary an integral part of the election process,
and infused the primary with state action, no matter how
vociferously it may protest. A State cannot render the
action of officials "private" and strip it of its character as
state action, merely by disapproving that action. Monroe
v. Pape, 365 U.S. 167, 172- 187 (1961).
Thus, when the Party deprived the candidates of their
status as delegates, it was obliged to do so in a manner
consistent with the demands of due process. Because the
Court does not reach the question, I likev.·ise refrain from
expressing my views on the merits of the due process challenge
in either case. It is sufficient to say that beyond all
14 JULY SPECIAL TERM, 1972
MARSHALL, J., dissenting 409U. S.
doubt, these claimants are entitled to a judicial resolution
of their claim.
2. Even if the action of the Credentials Committee did
not deny the delegates due process, petitioners in these
cases claim that it impaired the federally protected right
of voters to vote, and to have their votes counted, in the
presidential primary election.1
It is, of course, well established that the Constitution
protects the right to vote in federal or state elections
without impairment on the basis of race or color, Const.
Arndt. XV, or on the basis of any other invidious classification,
e. g., Baker v. Carr, 369 U. S. 186 (1962); Dunn
v. Blumstein, 405 U. S. 330 (1972). With respect to
federal elections, however, the right to vote enjoys a
broader constitutional protection. In Oregon v. Mitchell,
400 U. S. 112 (1970), Mr. Justice Black cited a long
line of precedents for the proposition that Congress has
ultimate supervisory power over all congressional elections,
based on Art. I, § 4, of the Constitution. E. g.,
Ex parte Siebold, 100 U. S. 371 ( 1880) ; Ex parte Y arbrough,
110 U. S. 651 (1884); United States v. Mosley,
238 U. S. 383 (1915); United States v. Classic,
supra. On the basis of these precedents, it is be-
7 The alleged impairment of that right may be regarded as state
action, as above, and hence subject to cha.Henge under 42 U. S. C.
§ 1983. Alternatively, it may be regarded as the action of the
Federal Government, on the theory that Congress has the ultimate
authority over presidential elections, and has acquiesced in the administration
of the primary election process by the national political
parties; in that case it may be subject to challenge on the theory
of an implied remedy for a federal deprivation of constitutional rights,
see Bivens v. Six Unknown Agents, 403 U.S. 388 (1971). Finally, it
may be regarded as private action that interferes with a federally
protected right; in that case the existence of a right of action may
depend on the question whether the claims can be brought within the
terms of 42 U. S. C. § 1985 (3), which protects certain federal
rights against certain kinds of private interference, see Griffin v.
Breckenridge, 403 U.S. 88 (1971).
O'BRIEN v. BROWN 15
MARSHALL, J., dissenting
yond dispute that the right to vote in congressional elections
is a federally secured right.
Mr. Justice Black went on to argue that presidential
elections have the same constitutional status: "It cannot
be seriously contended that Congress has less power
over the conduct of presidential elections than it has over
congressional elections." 400 U. S., at 124. To support
this conclusion, he relied on Art. II, § 1, and its judicial
interpretation in Burroughs v. United States, 290 U. S.
534 (1934), and also on "the very concept of a supreme
national government with national officers." 400 U. S.,
at 124 n. 7. On the basis of Oregon v. Mitchell, then, in
which Mr. Justice Black's analysis was decisive, the right
to vote in national elections, both congressional and
presidential, is secured by the Federal Constitution.
Moreover, federal protection of the right to vote in
federal elections extends not only to the general
election, but to the primary election as well. In
United States v. Classic, supra, this Court sustained
an indictment charging a conspiracy "to injure and oppress
citizens in the free exercise and enjoyment of rights
and privileges secured to them by the Constitution and
Laws of the United States, namely, (1) the right of
qualified voters who cast their ballots in the primary election
to have their ballots counted as cast for the candidate
of their choice, and (2) the right of the candidates
to run for the office of Congressman and to have the votes
in favor of their nomination counted as cast." Id., at
308. It was critical to the decision to hold, first, that
the Constitution protects the right to vote in federal congressional
elections, and, second, that the right to vote in
the general election includes the right to vote in the
pnmary.
"Where the state law has made the primary an integral
part of the procedure of choice, or where in
fact the primary effectively controls the choice, the
16 JULY SPECIAL TERM, 1972
:\-IAttsHALL, .T., dissenting 409 U. s.
right of the elector to have his ballot counted at the
primary is likewise included in the right protected
by Article I, § 2. And this right of participation is
protected just as is the right to vote at the election,
where the primary is by law made an integral part
of the election machinery, whether the voter exercises
his right in a party primary which invariably,
sometimes or never determines the ultimate choice
of the representative." Id., at 318.
That reasoning has equal force in the case of a presidential
election. Where the primary is by law made an integral
part of the election machinery, then the right to
vote at that primary is protected just as is the right to
vote at the election. In the cases before this Court, it
is claimed that the presidential primary is an integral
part of the election machinery, and that the right to vote
in the presidential primary has been impaired. That
claim should be heard and decided on its merits, certainly
not by the use of the stay mechanism in lieu of granting
certiorari and plenary consideration.
It is unfortunate that cases like these must be decided
quickly or not at all, but sometimes that cannot
be avoided. Where there are no substantial facts in dispute,
and where the allegation is made that a right as
fundamental as the right to participate in the process
leading to the election of the President of the United
States is threatened, I believe that our duty lies in making
decisions, not avoiding them.
I would therefore deny the applications for stays.
CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 1972
UNITED STATES V. LOUISIANA ET AL.
(LOPISIA~A BOlTXDARY CASE)
No. 9, Orig. Decided :\Iay 31, 1960-Final Derree Entered December
12, 1960-Snpplemf'ntal Decrres Entered December 13 ,
1965, Decembrr 20, 1971, and October 16 , 1972
Thl' motion by the Statr of Lcui~iana for the entry of a supplrmental
decree as to thr United States is granted (post, p. 909), and a supplemental
derrer is mterC'd.
Opinions reported: 363 r. S. 1 and 394 U. S. 11; final decree reported:
364 U. S. 502; supplC'mental decrees reported: 382 U. S.
288 and 404 F. S. 388.
Supplemental Decree
For the purpose of giving effect to the conclusions of
this Court as stated in its opinion, announced May 31,
1960, 363 U. S. 1, and other opinions or decrees entered
by this Court on December 12, 1960, 364 "G. S. 502; on
December 13, 1965, 382 U. S. 288; on March 3, 1969,
394 U. S. 11; and on December 20, 1971 , Ko. 9, Original,
404 U. S. 388.
IT Is ORDERED, ADJUDGED AND DECREED:
1. \Vith the exceptions provided by § 5 of the Submerged
Lands Act, 67 Stat. 32, 43 U. S. C. § 1313 ( 1964
ed.), the State of Louisiana is entitled, as against the
United States, to all the lands, minerals and other natural
17
18 OCTOBER TERM, 1972
Supplemental Decree 409U. S.
resources lying more than one foot landward of the
lines described in paragraph 2 hereof and seaward of the
ordinary low-water mark on the Louisiana shore, provided
that the United States is not hereby required to
relinquish any monies presently held by it for offset
purposes solely in connection with accounting problems
which have heretofore been deferred by the parties pending
resolution of the larger disputes between them, without
prejudice to the right of the State of Louisiana to
contest either the substance of the United States's offset
claims or its right to withhold monies in connection with
them.
2. The lines referred t-0 in paragraph 1 hereof are
described by coordinates in the Louisiana Plane Coor~
dinate System, South Zone, in two segments, as follows:
Segment I
South and west of the Mississippi-Louisiana border
to grid line Y = 158695, north of West Bay,
X y
BEGINNING AT ................... 2769357 •.•••. 575650 ..... .
BY STRAIGHT LINE TO . .. • .. . .. . 2790258 ...... 526390 ..... .
BY ARC CENTERED AT .......... 2779032 ...... 512013 ••••••
TO . . . • • • . • . • . • . • . • . • • • • • . • • • • • • • • • • 2791385 . . • . • . 525434 .•••••
BY STRAIGHT LINE TO . • . • • • . • • • 2793119 ...... 523838 ..... .
BY ARC CENTERED AT .......... 2780766 ...... 610417 ..... .
TO .......•....•.•• , •••.• , ••••• , • • • • 2794594 , , ••• , 522313 ••••••
BY STRAIGHT LINE TO .. • • • .. • .. 2795887 ...... 620810 •••.••
BY ARC CENTERED AT .......... 2782059 ....•. 608914 .... ..
TO . . . • • • . . . . . . . . . . . . . . • • • • . • . • • • • • • 2796579 ...•.. 619964 ••••••
BY STRAIGHT LINE TO .. .. • .. • • • 2799209 ...... 516495 ••••••
BY ARC CENTERED AT .......... 2784689 ...... 505456 ..... .
TO . . . . . . . . . . . • • • • . • . . . . . • . . . . . • • • . . 2800441 . . . • . . 614663 ••••••
BY STRAIGHT LINE TO .......... 2804270 ...... 508096 .... ..
BY ARC CENTERED AT .......... 2788518 ...... 498898 ..... .
TO . . . . . . . . . . . . . . • . . . . • . • . . • • • • • • • . . 2804495 . . • • • • 607699 •••• , ..
BY STRAIGHT LINE TO , • . • . • .. . • 2806028 .. .. .. 504916 ... ., •
BY ARC CENTERED AT .......... 2790051 ...... 496115 ..... .
TO .........•......•...•...•••.• , • • • 2807014 . . . • • • 502822 ••••••
BY STRAIGHT LINE TO . .. .. .. .. • 2808653 ...... 498677 ......
BY ARC CENTERED AT .......... 2791690 ...•.• 491970 ••••••
TO . • • . • . . . . . . . . . . . . . • • . • • • • • • • • • • • • 2809161 . . • . . . 497245 ••••••
UNITED STATES v. LOUISIANA 19
17 Supplemental Decree
X y
BY STRAIGHT LINE TO • • . • • • • • . • 2812250 486987 ••••••
BY ARC CENTERED AT .......... 2794789 ...... 481712 .... ..
TO .. , .• , ..... , • , .........•• , •••••.• 2812519 •..••• 485996 ••••••
BY STRAIGHT LINE TO .......... 2813932 ...... 480148 .... ..
BY ARC CENTERED AT .......... 2796202 ...... 475864 ..... .
TO . . . . . • • . . . . . . . . • . . • . • . • • • • • • • • • • • 2814262 .....• 478425 ..••••
BY STRAIGHT LINE TO . • • • • • • • • • 2815269 ...... 471324
BY ARC CENTERED AT ••••••••• , 2797209 ..•.•. 468763
TO •..•••.•....••.•••.. , . • • • • • • • • • • . 2815426 ...••• 469688 .•••••
BY STRAIGHT LINE TO .......... Z815673 ...... 464823 ..... .
BY ARC CENTERED AT .......... 2797456 ...... 463898 ..... .
TO . . • • • • . . . . . . . . • . • . • . • . . . • • • • • • • • • 2815697 • . . . • . 463895 ••••••
BY STRAIGHT LINE TO .......... 2815696 ...... 458116 ......
BY ARC CENTERED AT .......... 2797465 ...... 458119
TO . , ..• , ..•.•.•••.... , ..•.. , ••••••• 2815657 .• , .•• 456928
BY STRAIGHT LINE TO • . • . • • . • • • 2815269 •••... 450999
BY ARC CENTERED AT .•.••••..• 2797067 ....•. 452190
TO ................................. 2815171 ...... 449960
BY STRAIGHT LINE TO . • • • • • • . . • 2813967 ....•. 440103
BY ARC CENTERED AT ...•.•.••• 2795853 • , •••. 442333
TO .. , • . . . . . . . . . . . . . . . . . . • • • • . • • • • . • 2818809 . . . . • • 489123
BY STRAIGHT LINE TO .......... 2812678 ...... 482796 .... ..
BY ARC CENTERED AT .......... 2794722 ...... 436006 .... ..
TO ••..••......•••......•••.• , • . • • • . 2812419 431584 ••••••
BY STRAIGHT LINE TO .. • .. .. • .. 2810957 ...... 425733 .... ..
BY ARC CENTERED AT .......... 2793260 ...... 480155 .... ..
TO . . . . . . . . • . . . • . . . • . • • . • • • • • • • • • • • . 2810699 ...... 424807 •.•••.
BY STRAIGHT LINE TO .......... 2807854 ...... 415530 .... ..
BY ARC CENTERED AT .......... 2790415 ...... 420878 ..... .
TO . . . • . . . . . . . . . . . . . . . • . . • • . • • • . • • • • 2807572 ..•••• 414684 •••••.
BY STRAIGHT LINE TO .. • .. • .. .. 2805322 ...... 408452 .... ..
BY ARC CENTERED AT .......... 2788165 ...... 414646 .... ..
TO • • • • • • . . . . . • • • • • • . . • . • . • • • . • • • • • • 2805227 ..•••. 408196 ••••••
BY STRAIGHT LINE TO .......... 2803786 ...... 404384 ..... .
BY ARC CENTERED AT . .. .. • .. .. 2786724 ...... 410884 .... ..
TO . . . . . . . . • . • • • • • • . . . . . . • . . . • • • • • • • 2808319 ....•. 403263 •.•.•.
BY STRAIGHT LINE TO .......... 2799845 ...... 395648 ..... .
BY ARC CENTERED AT .......... 2783250 ...... 403219
TO . . . . . • • . • . . . • • • . • . • . . . • • • . • • • • • • • 2798971 . . . . . . 393968 ..••••
BY STRAIGHT LINE TO . . . . . • . . . • 2795394 ...... 387889 ..••••
BY ARC CENTERED AT .......... 2779673 ...... 397140 .... ..
TO . .. .. .. . .. .. .. . . • • • . .. • .. .. • • .. .. 2795311 ...... 387750 ..... .
BY STRAIGHT LINE TO .......... 2793560 ...... 384834 .... ..
BY ARC CENTERED AT . .. .. .. • .. 2777922 ...... 394224 ..... .
TO . . . . . . . • • • • • • • . • • • • . • . • • • • • • • • • • • 2792249 • • • • • • 382934 •.••••
BY STRAIGHT LINE TO .......... 2790814 ...... 381113 ..... .
BY ARC CENTERED AT .. . .. . • .. • 2776487 .. .. .. 392403 ..... .
TO • • . • • • • • • • . . . . . • • . • . • • • • • • • • • • • • • 2789360 • . • . • . 379480 •.••••
20 OCTOBER TERM, 1972
Supplemental Decree 409 U.S.
X y
BY ARC CENTERED AT ••. , , , , ••• 2774670 390293 .•..••
TO ...• , •..... , • , •.• , •.• , , •• • , . , • , • , 27 88262 . • . . • • 378129 •••• , •
BY STRAIGHT LINE TO .•.•.•.• , • 2786553 •.•. , . 375045 ••••••
BY ARC CENTERED AT ..... , . , • . 2770599 ...... 383887 ••••• •
TO .•• , • , •.• , • , ••••• , •••••• , •••• , •• , 2785045 • • . . • . 372750 •• , •••
BY STRAIGHT LINE TO , ....... , • 2783942 ..•..• 371319 ••••••
BY STRAIGHT LINE TO ..•.•...•. 2783792 .. , ... 871062 ..... .
BY ARC CENTERED AT .......... 2768031 ...... 380244 ..... .
TO .. , ......• , .• , • , • , , , •• , •••••••••• 2780548 • , ..• , 366976 .•••• •
BY STRAIGHT LINE TO .......... 2775735 ...... 360553 .... ..
BY ARC CENTERED AT .......... 2761138 ...... 371491 ..... .
TO ....•...•.•.•.•.•.•. , •.•.•.•.•••. 2775111 • , • , •• 359766 .•••••
BY STRAIGHT LINE TO .......... 2773031 ...... 357287 ..... .
BY ARC CENTERED AT .......... 2757465 ...... 366796 .... ..
TO ........... , ..................... 2771721 ...... 355417 .... ..
BY ,STRAIGHT LINE TO .......... 27706c•1 ...... 354064 ..... .
BY STRAIGHT LINE TO .......... 2770505 ..... . 353847 .... ..
BY ARC CENTERED AT .......... 2755015 , ..... 363480 .... ..
TO .....•.....•...•. , .•.•••• , • , • • • • • 276·7788 . . . . • . 350458 ••• , .•
BY STRAIGHT LINE TO ••• , ...... 2761994 ...... 344776 ..... .
BY ARC CENTERED AT .......... 2749221 ...... 357797 ..... .
TO ... , • , . , . , .. , ••...••••.•••••••••• 2760703 ..•••• 343624 ••••••
BY STRAIGHT LINE TO .......... 2757791 ..... , 341265 ..... .
BY ARC CENTERED AT .......... 2746309 ... . .. 365438 .... ..
TO .....•...•.. , • • • . • • • . • • • . • • • • • • • • 2756022 . . . • . • 339999 •.• , ..
BY STRAIGHT LINE TO .......... 2754136 ...... 338812 ..... .
BY STRAIGHT LINE TO ... , ...... 2742173 ••.•.. 323079 ••••••
BY ARC CENTERED AT .......... 2727653 ...... 334120 .... ..
TO ................................. 2741983 ...... 322834 .... ..
BY STRAIGHT LINE TO •.•• , ..... 2741182 ..••.. 321817 ••• • ••
BY ARC CENTERED AT .......... 2726852 ...... 333103 ..... .
TO .....•....••••••• , ••.•••••••• , • • • 2738042 ...••• 318698 .•• • • ,
BY STRAIGHT LINE TO .......... 2736381 ...... 317408 ... . . .
BY STRAIGHT LINE TO .......... 2736060 ...... 316935 .... ..
BY STRAIGHT LINE TO • . .. • • . • .. 2732627 ...... 311249 •• , • .•
BY ARC CENTERED AT ...... .. .. 2717012 ...... 320677 ..... .
TO ..........• . ••....... , , , • , ••.•... 2731416 ••.••• 309486 ••• • ••
BY STRAIGHT LINE TO .......... 2729640 ...... 307200 ..... .
BY ARC CENTERED AT .......... 2715236 ...... 318391 .. . . ..
TO .....•....•.•• • •.•.••..•••••. , • • • 2728702 • . • . • . 306088 ••••••
BY STRAIGHT LINE TO .......... 2728099 .•.•.• 305428 .... ..
BY ARC CENTERED AT .......... 2714633 ...... 317731 ..... .
TO ..........•...•.•••.....•••.••••. 2725197 .••••. 302861 • •••• •
BY STRAIGHT LINE TO .......... 2723888 ...... 301931 .... ..
BY ARC CENTERED AT .......... 2713324 ...... 316801 ..... .
TO .. • ..•..•.••• • • . ..•••.••• , • , • • ••• 2720770 • ••. .• 300149 ••.•••
BY STRAIGHT LINE TO , ......... 2119218 ...... 299455 ••• • ••
BY ARC CENTERED AT .......... 2711772 ...... 316107 ••••••
UNITED STATES v. LOUISIANA
17 Supplemental Decree
X y
TO ....•................•...•••••••• 2714238 298034
BY STRAIGHT LINE TO •••••••••. 2704480 •.•.•• 294684
BY STRAJGHT LINE TO •.•••••.•• 2704099 293666
BY ARC CENTERED AT .•.•.....• 2687014 300054
TO . . • • • • • • • • • • • • • • • . • • • • . . • • • • • • • • • 2701338 . . • . • . 288761
21
BY STRAIGHT LINE TO .......... 2699382 ...... 286280 .... ..
BY ARC CENTERED AT .......... 2685058 ...... 297573 ..... .
TO •...•.•.................•..•.••.• 2697436 .....• 284175
BY STRAIGHT LINE TO .......... 2699302 ...... 266715 ..... .
BY ARC CENTERED AT .......... 2688235 ...... 252215 ..... .
TO ...•••..............•.•..•••••••• 2704468 •..•.. 260534 •.••••
BY ARC CENTERED AT .......... 2689305 ...... 250395 .... ..
TO ....•..........•.•.•.•.••..•••••. 2707507 •••••. 251577 ••...•
BY ARC CENTERED AT .......... 2700735 ...... 234640 ..... .
TO •...•.•..•..•••...........•.•.•.• 2717908 •.•... 24·0788 •••.••
BY ARC CENTERED AT .......... 2701500 ...... 232820 ..••••
TO .•...•..........••.•.••••.•••••.• 2719022 •...•• 237890 ••••••
BY ARC CENTERED AT .......... 2707635 •..... 223640 ..... .
TO ......... , .....•.............•... 2721632 ..••.• 235337 ••••••
BY STRAIGHT LINE TO .......... 2736873 ...... 228413 ..... .
BY ARC CENTERED AT ..•••••••• 2738320 ....•. 210230 •.•.••
TO ..•.......•....•......•.••.•••••• 2745585 ...... 226961 ..••.•
BY ARC CENTERED AT .......... 2738938 ...... 209975 ..... .
TO ................................. 2749646 ...... 224742
BY ARC CENTERED AT .•.••••••• 2750755 .....• 206535
TO •............•...•.....•.•.•.•.•• 2759837 ...... 222354
BY ARC CENTERED AT ..••.•• • •• 2755325 ....•. 204680
TO ................................. 2773229 ...... 201192
BY ARC CENTERED AT .....•.••• 2755178 203815
TO ••....••.........•.....•...•.•.•• 2770763 194337 . .••••
BY ARC CENTERED AT .......... 2754100 ...... 186915 .... ..
TO ................................. 2771780 ...... 191404 •••.••
BY ARC CENTERED AT .......... 2754263 ...... 186316 .... ..
TO . .•.. . • . . . . .. .. . ...•.. . . . •.• . • • • • 2772100 ....•• 182502 •.•• • •
BY ARC CENTERED AT .......... 2753885 ...... 183460 ..... .
TO ................•......•••••••.•• 2765449 •..... 169354 .•••••
BY ARC CENTERED AT .......... 2752470 182170
TO .....•.................•••••.•••• 2761213 ..••• • 166161 .....•
BY ARC CENTERED AT .......... 2751045 ...... 181305 .... ..
TO ...................•.••..••••.•.• 2752202 ....•. 163101 •.•••.
BY ARC CENTERED AT . . ... .. ... 2750586 ...... 181270 ..... .
TO .....•.......•..••.....•••••••••• 2749611 ...... 163055 ..•••.
BY ARC CENTERED AT .......... 2736662 ...... 175902 .•...•
TO . . . . . . . . . . . . . . . . . . . . . . . . . • . • . • . . . 27 48316 • • • • • • 161869 •••••.
BY ARC CENTERED AT .......... 2734720 ...... 174030 .... ..
TO .............. . .................. 2747824 ...... 161341 ..... .
BY STRAIGHT LINE TO .......... 2746249 ...... 159715 .... ..
BY ARC CENTERED AT .......... 2728153 ...... 162005 ..... .
22 OCTOBER TERM, 1972
Supplemental Decree 409 u. s.
X y
TO ..••••...•.•••••.• , • . • • • . • • • • • • • • 27 46094 158715
BY STRAIGHT LINE TO ........ , • 2745156 153600 ••••••
BY ARC CENTERED AT .......... 2727215 •.•.•. 156890 .... ..
TO ..••••...••. , •..•.••••.•••••••••. 2745054 •••.•• 153083 ••••••
BY ARC CENTERED AT .......... 2726951 ...... 150846 ..... .
TO .....•..•.•...•... , ..•.. , ••• , • • • • 27 43622 • • • • . • 143444 , , , , , ,
BY ARC CENTERED AT .......... 2726105 148530 •.••••
TO ..•.••...•.•••••••••.•••••••• ,, •• 2731258 ....•. 131033 •••.••
BY STRAIGHT LINE TO .•.•.•.•.. 2716731 . . . . .. 112786 •••...
BY ARC CENTERED AT .......... 2702461 .••••• 124148 ..... .
TO ...••••.•.•.•...•••.•• , , ......... 2716719 .•..•• 112772 ••••• ,
BY ARC CENTERED AT .......... 2699435 ...... 118600 •••.••
TO ................................. 2710698 ...... 104252 •• , ...
BY ARC CENTERED AT .......... 2697850 ...... 117200 ..... .
TO . . . . . . • . • • . . . • . . . . . . . . . • . • • • • • • • • 2683320 • . . . • . 106173 ••• , • ,
BY STRAIGHT LINE TO .......... 2682980 ...... 106621 ••.•••
BY ARC CENTERED AT .......... 2697510 ...... 117648 ..... .
TO ..............••..•...••••.• , •••• 267.9799 •.•.•. 113283 ••••••
BY STRAIGHT LINE TO ..•••••.•. 2679589 • . • . . . 114135
BY ARC CENTERED AT .......... 2697300 ...... 118500
TO ................................. 2679155 •.•... 116635
BY ARC CENTERED AT .......... 2685325 ...... 133800
TO ....•...•.•.•.•.•••••••••••• , • , • • 2670977 . • • • • . 122536
BY STRAIGHT LINE TO .......... 2670552 ...... 122781 ..... .
BY STRAIGHT LINE TO •••••••••. 2666743 ••• , . , 124295 ..... .
BY ARC CENTERED AT .......... 2673482 ...... 141245 ••••••
TO ..................••.•.•••.•••••• 2665719 •.•.•. 124739 •.••••
BY ARC CENTERED AT •••• , • , ••• 2672315 ..•••• 141745 , •••••
TO • . • . . . . . . . . . • • • . . . . . • . . • • • • • • • • • • 2661428 . • . . • • 127109 .• , • , •
BY ARC CENTERED AT •••••••••• 2644!i40 ••.•.. 134910 ••••••
TO . . . . . . . . . . . . • . . . . • • • . . • • • • • • . • • • . 2660589 •..•.• 125539 .•••••
BY STRAIGHT LINE TO .......... 2657484 •.•.•. 120354 .... ..
BY ARC CENTERED AT .......... 2641835 •...•. 129725 ••••••
TO ........•..•••......•.••••••••••• 2656160 •..••• 118421 •••• , •
BY STRAIGHT LINE TO .......... 2653860 , ...•• 115521 ••••••
BY ARC CENTERED AT .......... 2639545 ...... 126825 ..... ,
TO ............•.•.•••....•••••••••• 2648682 ...... 111038 .••••.
BY STRAIGHT LINE TO •.•••••• , • 2648610 •.•••• 110974 ••••••
BY STRAIGHT LINE TO ........•.• 2648531 ..... , 110887 ......
BY STRAIGHT LINE TO •••.•••••• 2646419 107265 ••••••
BY ARC CENTERED AT .......... 2630660 116450 ..... .
TO ...... , .........• , • , • • . . . • • • • • • • • 2646250 106981
BY STRAIGHT LINE TO •.•.•••••. 2644270 103121 •••••.
BY ARC CENTERED AT ........ , • 2628680 ••••.. 113190 .... ..
TO ...........••• , •.•.•..••• , , •••••. 2642494 .•.•.. 101278 .•••••
BY STRAIGHT LINE TO .......... 2640182 . . . . . . 98597 .... ..
BY ARC CENTERED AT .......... 2624995 ...... 108700 •••••.
TO ......•.•...•.•.••••..•.••••••••• 2638408 • • • . . . 96339 ••••••
UNITED STATES v. LOUISIANA 23
17 Supplemental Decree
X y
BY STRAIGHT LINE TO • • • • • • • • • • 2638210 96123 ••••••
BY STRAIGHT LINE TO .......... 2637630 , . • .. • 95377 ..... .
BY ARC CENTERED AT .......... 2624045 .•.•.• 107660 ...•••
TO ••..•.....•.•.•.••••••••••••••••• 2637471 . • • • . • 95312 ••••••
BY STRAIGHT LINE TO .......... 2636351 • • • • • • 93007 •••• , •
BY ARC CENTERED AT •••••••••• 2621925 ••••.• 105355 ......
TO ...••.•.••.•••••••••••••••••••••• 2634923 • • • • • • 92558 ••••••
BY STRAIGHT LINE TO • • • .. • . • . • 2633653 • • • • .. 91268 ......
BY ARC CENTERED AT .......... 2620655 ...... 104066 ••••••
TO • • • . . . . • • • • • • • • • • • • • . • • • • • • • • • • • • 2631973 . • • . • • 89760 ••• , ••
BY STRAIGHT LINE TO .•.••••••• 2631344 . . . • • • 89262 •.••••
BY STRAIGHT LINE TO .......... 2630156 .. .. .. 87770 ..... ,
BY ARC CENTERED AT .......... 2615885 • • . . . • 99131 .•••••
TO . . • . . . . . • . • . • • . • • • • • • • • • • • • • • • • • • 2630068 • • • • • . 87661 ••••.•
BY STRAIGHT LINE TO ••• , • • • • • • 2629389 • • . . . . 86821 ......
BY STRAIGHT LINE TO .......... 2626027 . • • • . • 82661 ••••••
BY STRAIGHT LINE TO • • • .. • .. . • 2624340 • • • • • • 80576 ••••••
BY ARC CENTERED AT ..•.••.••• 2610160 . . . • . • 92050 ......
TO ....•.•......•....•..•••••••••••• 2621555 • . • • • • 77806 •.••••
BY STRAIGHT LINE TO .......... 2621180 • • .. .. 77506 ..... .
BY ARC CENTERED AT .......... 2609785 • . • . • . 91750 •••.••
TO ....• , • . . . . . . • . . • . • • • • • • • • • • • • • • • 2617996 • . • • • • 76462 ••••••
BY STRAIGHT LINE TO .........• 2617391 • • • • • • 75157 ••••••
BY ARC CENTERED AT ..••••..•• 2609180 91445 ••.•••
TO •.•••...........•.•..•.•••••••••. 2597416 • • • • • • 77505 ••••••
BY STRAIGHT LINE TO .. • • • • • • • . 2595526 .. . • . . 79100 ••••••
BY ARC CENTERED AT . • • • • .. • • • 2607290 . . • . • • 93040 ......
TO . . . . . . • . • • . . • • . • • • • • . • • • • • • • • • • • • 2589664 . . • • . • 97736 .•••.•
BY ARC CENTERED AT .......... 2607455 • • •• .. 93710 .... ..
TO • . . • • . • • . . • . . • . • . • . . . . • . • • • • • • • • • 2591541 • • • • • • 102625 .•••.•
BY STRAIGHT LINE TO .......... 2692751 ...... 104785 ••••••
BY ARC CENTERED AT .......... 2608665 • . • .. • 95870 .•.•••
TO . . • . . . . . . . . . . . . . • • • . • • . • • • • • • • • • • 2593838 • • • • • • 106495 ••••••
BY STRAIGHT LINE TO .......... 2695167 ..•••• 108350 ..... .
BY STRAIGHT LINE TO .......... 2596041 •.•.•. 109955 ..... .
BY ARC CENTERED AT ....•.•.•• 2614270 ....•• 110615 . • •• ••
TO ................................. 2597233 ...... 117130 ••••••
BY STRAIGHT LINE TO .. • . • .. . .. 2597210 . . • • • • 155899 •.••••
BY ARC CENTERED AT .......... 2614790 ...... 160765 ••••••
TO . . . . . • . . . . . • . . • . • . • . • . . . • . • • • • • • • 2596949 . . • • . • 156969 ••••.•
BY STRAIGHT LINE TO .......... 2596342 ...... 158695 ..... .
BY STRAIGHT LINE TO SHORE AT 2615450 ...... 157770 ••••••
SEGMENT II
From the vicinity of Bayou Goreau to the vicinity
24 OCTOBER TERM, 1972
Supplemental Decree
of Sabine Pass, west of grid line X
east of the Texas-Louisiana border,
X
409 U.S.
2082361 and
y
BEGINNING AT ................... 2082361 169358
BY STRAIGHT LINE TO .......... 2081470 ..... , 169553 .... ..
BY ARC CENTERED AT .......... 2085370 ...... 187372 ••••••
TO ................................. 2076984 ...... 171174 .•••••
BY ARC CENTERED AT .......... 2077417 •...•• 189409 ••••••
TO ............... , ................. 2071846 ...... 172040 .... ,.
BY STRAIGHT LINE TO .......... 2070630 ...... 172430 ..... .
BY ARC CENTERED AT ...... , ... 2076Z01 ...... 189799 ••••••
TO ..................•.••..•.••••••. 2064747 • • • • . • 175603 ••••••
BY STRAIGHT LINE TO .......... 2063841 176334 ..... .
BY ARC CENTERED AT .......... 2075295 ...... 190530 ••••••
TO .••.•••••• , , , , •• , , •••• , • , • • • • • • • • 2059951 180668 ••••••
BY ARC CENTERED AT , .. . .. .. . . 2071131 195080 ......
TO . . . . . . . . . . . . . . • . • . • . . . • • • • • . • . • • • 2058843 181599 ••••••
BY ARC CENTERED AT ••••.•• , .• 2062055 199555 ••••••
TO .............•.......••...•••.••• 2057134 . . . . . . 181991 .. , • , ,
BY STRAIGHT LINE TO .......... 2053779 ...... 182931 ••••••
BY ARC CENTERED AT .......... 2058700 ...... 200495 •.••••
TO ..............................••• 2053474 .•.••• 183019 ••••••
BY STRAIGHT LINE TO .......... 2052967 ...... 183053 .••.•.
BY STRAIGHT LINE TO .......... 2051871 • .. .. . 183006 ..... .
BY ARC CENTERED AT .......... 2051090 ...... 201230 .... ..
TO ................................. 2050845 •.•.•. 182991 ••••••
BY STRAIGHT LINE TO .......... 2048985 •.•.•. 183016 .... ..
BY ARC CENTERED AT .......... 2049230 ...... 201255 .•.•••
TO ........•...•...••••. , • • • • • • • • • • • 2048033 • . . • . . 183054 •.••••
BY STRAIGHT LINE TO .......... 2044865 ...... 183262 .... ..
BY STRAIGHT LINE TO .......... 2041482 ...... 183446 ..... .
BY ARC CENTERED AT .......... 2042475 .•••.• 201660 .... ..
TO ................................. 2037472 ...... 184119 ..... .
BY STRAIGHT LINE TO . . . . • . • • • • 2033139 • . • . • • 185355 ••••••
BY STRAIGHT LINE TO .......... 2032934 ...... 185387 ..... .
BY ARC CENTERED AT .......... 2035775 ...... 203405 .... ..
TO ............•.•••••..•••.•••••••. 2029791 ••.. , • 186174 .•••••
BY STRAIGHT LINE TO .......... 2027401 ...... 187004 ..... .
BY ARC CENTERED AT .......... 2033385 ...... 204235 ..... .
TO . . . • • . . . . . . . . . . . . . • • • • • . • • . • • • • • • 2026834 • • • . • • 187211 ••••••
BY STRAIGHT LINE TO .......... 2023510 ...... 188491 .. , ...
BY STRAIGHT LINE TO .......... 2020959 ...... 189327 ..... .
BY ARC CENTERED AT .......... 2026640 ...... 206660 ..... ,
TO ................................. 2019190 ...... 190010 ..... .
BY STRAIGHT LINE TO .......... 2016613 ...... 191163 .... ..
BY STRAIGHT LINE TO .......... 2015796 ...... 191414 ..... .
BY ARC CENTERED AT .......... 2021155 ...... 208850 .... ..
UNITED STATES v. LOUISIANA 25
17 Supplemental Decree
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TO •.••• , , .• , , , • , •••••••••••• , •• , , • • 2013823 192148 ••••••
BY STRAIGHT LINE TO .......... 2010121 193773 .... ..
BY ARC CENTERED AT .... , .... , 2017453 ••.•.• 210475 .... ..
TO . • . . • . • . • . • • • • • • • • • • . • • • • • • • • • • • • 2007660 .• , • . . 195086 •.•.••
BY STRAIGHT LINE TO .......... 2006450 ...... 195856 .... ..
BY ARC CENTERED AT .......... 2016243 ...... 211245 .... , •
TO . . . . • • . • . • . . • . • . • • • . • • • • • • • • • • • • • 2002812 • • • • • • 198903 ••••••
BY STR.\.IGHT LINE TO ..... , ... , 2001329 ...... 200516 ..... ,
BY STRAIGHT LINE TO .......... 1998627 •.•.•. 203119 ••••••
BY STRAIGHT LINE TO .......... 1996877 ...... 204647 .... ..
BY ARC CENTERED AT . . .. • .. .. • 2008873 • . • .. • 218388 .... ..
TO ................................. 1994484 •.•••• 207177 .... ..
BY STRAIGHT LINE TO •.• , , •.• , • 1993669 • , •• , • 208223 , , • , , ,
BY ARC CENTERED AT .......... 2008058 ...... 219434 ••••••
TO ..•..•...•.• , ••.••• , •••••••••• , • • 1992024 • , , , •• 210737 .•••••
BY STRAIGHT LINE TO .. .. • • .. .. 1991723 ...... 211291 .... ..
BY STRAIGHT LINE TO .......... 1991392 ...... 211653 ..... .
BY STRAIGHT LINE TO . • .. .. • • .. 1987527 .•. , .• 215292 ..... ,
BY ARC CENTERED AT .......... 2000030 ...... 228573 , •••• ,
TO ................................. 1985881 .... , • 217061 .... ..
BY STRAIGHT LINE TO ...•.••••• 1984419 • . .••• 218858 •••• , ,
BY ARC CENTERED AT ......... , 1998568 . ..... 230370
TO ...••.•.....••.•••••..•••.••••••• 1982726 ••.••• 221329
BY STRAIGHT LINE TO . . .. . . . • .. 1981279 •••••. 223864 .... ..
BY ARC CENTERED AT • .. .. • • • • • 1987818 ..•... 240892 ..... .
TO ..• . •... • •.. •• .•.. • •... • •• , • • • • • • 1975782 . . • . • . 227186 •••• , •
BY ARC CENTERED AT .......... 1987371 .. , ... 241272 ••••••
TO ................. ' ................ 1972054 ...... 231367 .... ..
BY STRAIGHT LINE TO .......... 1937446 ...... 246505 ..... .
BY ARC CENTERED AT .......... 1933172 •.•.•. 264238 ..... .
TO ............................. , ... 1920501 ...... 251117 .. , •. ,
BY ARC CENTERED AT •.•.•.•.•• 1924399 ...... 268936 ......
TO . . . . . . . . . . . . . . . • . . . . . . • . • . • . • • • • • 1916888 .••••. 252314 ..••••
BY ARC CENTERED AT .......... 1914373 ..... . 270380 .... ..
TO . . . . . . . . . . . . . • • • • • • • . • • • • • • • • • • • • 1900989 • . • • • . 257987 , .•• ••
BY ARC CENTERED AT . • ••••••• • 1896827 .... , • 275747 ••••••
TO . . ............................... 1895100 ...... 257588 ..... .
BY ARC CENTERED AT . . ...... .. 1882306 ...... 270590 . . . .. ,
TO ................. . ............... 1867537 ...... 259884 ..... .
BY ARC CENTERED AT •••••••• • • 1872418 .•.•.• 277460 •• , •••
TO . . . . . . . . . . . . . . . . . . • . • . • . • • . • • • . • . 1858534 •• . .•. 265630 ..•..•
BY ARC CENTERED AT .......... 1843467 ...... 275912 ..... .
TO . . . , , •....... , ••••• , ...•. , , • . • • • • 1848729 , ...•. 258447 •. , • , •
BY ARC CENTERE D AT .. • • .. • .. • 1835344 .. .. • • 270839 ..••••
TO .... .... .. .. . ........ .. . .... . .... 1841538 ... . .. 253682 ..... .
BY ARC CE NTERED AT .......... 1834019 ...... 270301 ..... .
TO ..•..•......•.•. • ....•.••••••• , • • 1817077 ... • .• 263541 ..••••
BY ARC CENTERED AT .......... 1833527 , . . . .. 271423 ... , ..
26 OCTOBER TERM, 1972
Supplemental Decree 409 u. s.
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TO . . • . • . • . • . • . • • . • • • • • • • • • • • • • • • • • • 1815531 .....• 274401
BY ARC CENTERED AT ......... . 1820994 ..•.... 291804 ••••••
TO . . . . . . • . • • . . • • . • . • • . . • • . • • • • • • • • 1808997 • . • . . . 278064 ••••••
BY ARC CENTERED AT .... , .•. , . 1809845 •••• , • 296285 ••••••
TO . . . . • . . . . . . . . . . . . . . . • • . . • • • • • • • • • 1792971 . . . • . • 289357 •.••••
BY ARC CENTERED AT .......... 1791584 ...... 307645 •••• , •
TO . . . . . . . . . . . . . . . . . . . . . . • . . . . . • • . . . 1773422 . . . . . . 305849 •••• , •
BY ARC CENTERED AT .......•.. 1783067 •••.•. 321331 ..... .
TO ............................. , • , • 1771284 ...... 307407 ..... ,
BY ARC CENTERED AT .. .. . . . . . . 1782891 ...... 321876 ••.•••
TO ................................. 1769317 ...•.. 300156 ..... .
BY ARC CENTERED AT .......... 1778769 ...... 324757 .•.•••
TO . . . . . . . . . . • . • • • • . • • . . • • . • • • . • • • • • 1763172 . . • . • • 815299 •.••••
BY ARC CENTERED AT .......... 1763190 ...... 338540 .•••••
TO ................................. 1762008 ...... 315338 ..... .
BY STRAIGHT LINE TO .......... 1761238 .. , ... 315388 ..... .
BY ARC CENTERED AT .......... 1762420 .....• 333590 ..... .
TO . . . . . • . . . . . . • . • . • • • . . . • . • • • . • • • . • 1761004 .....• 315404 .•••••
BY ARC CENTERED AT .......... 1758630 ..•... 333490 ..... .
TO ......•..................•••••••• 1751585 ... . .• 316665 ..... .
BY STRAIGHT LINE TO ••.••••.•• 1749527 ...... 316597 ... , , •
BY STRAIGHT LINE TO . . . . . . . . . . 1745678 ...... 316238 .•••••
BY STRAIGHT LINE TO .......... 1741757 .... . . 315745 .. ... .
BY STRAIGHT LINE TO ........ , . 1738098 ...... 314155 ..... .
BY ARC CENTERED AT •.••.•.••• 1730831 ..•... 330886 ••••••
TO . . . . . . . . . . . . • . • • • . • . • • . • . . • • .. • .. 1737269 ...... 313819 •.•.••
BY STRAIGHT LINE TO .......... 1733962 .••.•• 312572 ••••••
BY STRAIGHT LINE TO ..••••..•. 1733065 .•..•. 312110
BY ARC CENTERED AT .......... 1724713 ..•... 328326 .•••••
TO ................................. 1729983 .... . . 310863 ..... .
BY STRAIGHT LINE TO .......... 1729557 .....• 310735 ..... .
BY STRAIGHT LINE TO .......•.• 1727510 ...... 309316 ..... .
BY ARC CENTERED AT .......... 1717114 ...... 324303 • , .. ..
TO ................................. 1726647 ....•. 308752 ••••••
BY STRAIGHT LINE TO .......... 1721463 ...... 305574 ..... .
BY STRAIGHT LINE TO ..•.••.... 1721351 ...... 305467 .... , •
BY ARC CENTERED AT .......... 1708756 ..•..• 318661 ..... .
TO ........•. , ••••...•..• , , , , ••• , , • • 1715565 . . • . . . 301739 • , , , ••
BY STRAIGHT LINE TO .. • . • . • • • • 1713599 ...... 300948 ......
BY ARC CENTERED AT ......... , 1706790 . . . . . . 317870
TO ................................. 1711471 •...•. 300240
BY STRAIGHT LINE TO . . ••.••.•• 1707761 •..•.. 299255
BY ARC CENTERED AT .......... 1703080 ...... 316885
TO ............. , . . . . . • . • • • • • . . • • • • • 1706765 . . . . . . 299020
BY STRAIGHT LINE TO •.•••••••. 1704365 ...... 298525
BY ARC CENTERED AT .. .. . . . . . . 1700680 . . .... 316390
TO . • • . • . . . . • . • • • . • • • . • • • • • • • • • • • • • • 1702465 • • . . • . 298237
BY STRAIGHT LINE TO • ••...•.•. 1698144 ...... 297812 ......
UNITED STATES v. LOUISIANA 27
17 Supplemental Decree
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BY ARC CENTERED AT •.•.•••••• 1696359 816965
TO • . . . . . . . • . • . . • . • . . . • . . • . . • • • • • • • • 1696239 ...••• 297725
BY STRAIGHT LINE TO .......... 1692448 ...... 297750 ..... .
BY ARC CENTERED AT .....•...• 1692568 ...... 315990 .... ..
TO • • . . . . • . . . . . . . • . . . . . • • . • . • • • • • • • • 1691302 •..•.• 297793 •••.••
BY STRAIGHT LINE TO .. • • .. .. .. 1688714 ...... 297973 ..... .
BY ARC CENTERED AT .......... 1689980 ...... 316170 ..... .
TO . . • . • . . . • . . . • . . • • • • • . • • • • • • • • • • • • 1687709 .•.•.• 298071 ..••••
BY STRAIGHT LINE TO . • . • • • . • .. 1684999 ...... 298411 •••.••
BY ARC CENTERED AT .......... 1687270 ...... 816510 ..•.••
TO • • • . • . • . • . . . • • • . . . . . • . . . . . • • • • • • • 1683393 . . . . . . 298686 ••••••
BY STRAIGHT LINE TO .......... 1674668 ••••.• 300584 ..... .
BY ARC CENTERED AT •••••••••• 1678545 ...... 318408 .... ..
TO ................................. 1674182 ...•.. 300697 ..... .
BY STRAIGHT LINE TO .......... 1670983 ..•... 301485 •••.••
BY ARC CENTERED AT .......•.• 1675346 ..•..• 319196
TO • • . . • . . . . . . . . . . . . . . . . . . . • • • • • . • • • 1670472 ..•.•• 301619
BY STRAIGHT LINE TO . • • . . . • . • . 1666144 302819 .•.•••
BY ARC CENTERED AT .......... 1671018 320396 ..•• , •
TO . . . . • . • . . . . . . • . • . . • • . • . • • • • • • • • • • 1665216 303103 ..•••.
BY STRAIGHT LINE TO • . • . • • • • • • 1663698 303612 •••.••
BY STRAIGHT LINE TO .......... 1662427 ...... 303960 .... ..
BY STRAIGHT LINE TO • . • . • .. . • . 1661678 ...... 304161 ..... .
BY STRAIGHT LINE TO .......... 1659494 .•.••. 304616 ..••••
BY ARC CENTERED AT •...•.•.•• 1663290 ..•••• 322457 •.••••
TO . . . . • . . . • . . . . . . . • . . . • . . . • • • . • • • • • 16594 76 . . . . . . 304620
BY STRAIGHT LINE TO . . • • • • • • • • 1658120 ..•.•• 304910
BY ARC CENTERED AT .......... 1658887 ...... 323134
TO ..•..•...........•••••.•.•.• , , , •• 1656354 ....•• 305070
BY ARC CENTERED AT .......... 1655896 ...••• 323305
TO . . . . . . . . . . . • • • • . • . • . • . . . • • • • • • • • • 1652650 . . . . • • 305356
BY STRAIGHT LINE TO . . . . • • • .. • 1650184 ...... 305802 .... ..
BY ARC CENTERED AT .......... 1653430 ...... 823751 .... ..
TO • • . . • . . . . . . . . . . • . • • . . • • • • • . . . • • • . 1648635 ....•. 306152 .•••••
BY STRAIGHT LINE TO ....•..••. 1647051 ...... 306584 •.•.••
BY ARC CENTERED AT .......... 1649308 ...... 324684 ••.•••
TO . . . . . . . . • . . . . . . . . . . . • . . • • • • • • • • • • 1643681 . • . . . . 307333 .•••••
BY STRAIGHT LINE TO . . . • . • . . . . 1636292 ...... 308607 ..•••.
BY STRAIGHT LINE TO •.•....••• 1627130 •..... 309807
BY STRAIGHT LINE TO .....••••• 1620757 ....•• 310390
BY ARC CENTERED AT ..•..••. , • 1622420 •...•. 328555
TO ...............••.•..•••.•...•.•. 1619895 ..•.•. 310490
BY STRAIGHT LINE TO ....•.•••. 1614565 •••••. 811235
BY ARC CENTERED AT .......... 1617090 •.•.•. 329300
TO ......•......•...•••...•••...•••. 1613148 ..•... 311491
BY STRAIGHT LINE TO •.•••••••• 1611814 ..•.•. 311591
BY ARC CENTERED AT .......... 1613190 329780
TO ................................. 1609960 ••...• 311828
28 OCTOBER TERM, 1972
Supplemental Decree 409 U.S.
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BY STRAIGHT LINE TO •••••••.•• 1606070 312528 ••••••
BY ARC CENTERED AT ......•... 1609300 ...... 330480 ••••••
TO ................................. 1604702 ...... 812829 ..... .
BY STRAIGHT LINE TO .......... 1604290 ...... 312866 ..... .
BY ARC CENTERED AT .......... 1605965 ...... 331030 ..... .
TO ....••..•.•.•••••.•.••••••••••••• 1601325 •.•••• 313389
BY STRAIGHT LINE TO ..... , • , •• 1601195 ...... 313403 .... ..
BY ARC CENTERED AT .......... 1603140 ...... 331540 .... ..
TO • • • . • • . . . • • . . . • • • • • . • • • • . • • • • • • • • 1598672 •.•••• 313855 ••••• ,
BY STRAIGHT LINE TO ....... . .. 1596370 ...... 314487 ..... .
BY STRAIGHT LINE TO •.•••••••• 1596179 ...... 314483 ..... .
BY STRAIGHT LINE TO ...... , ... 1592424 ••••.• 815063 .... , ,
BY ARC CENTERED AT ...... . ... 1595210 ...... 333090 ..... .
TO .••.•••.•••....••••••••••••••• , , • 1591479 ...••• 815235 • , , , , ,
BY ARC CENTERED AT ....... , .. 1594075 ...... 333290 ..... ,
TO ...•..•...•••••.•.••••••••••• , • • • 1589694 •••••• 315583 ••••••
BY ARC CENTERED AT .......... 1593010 ...... 333520 ..... .
TO ................................. 1589433 ...... 815634 ..... .
BY STRAIGHT LINE TO .......... 1588108 ...... 315899 ••••• ,
BY ARC CENTERED AT .......... 1591685 ...... 333785 ••••••
TO ................................. 1585928 ...... 316477 .... ..
BY STRAIGHT LINE TO .......... 1584286 •.•.•. 317023 ..... .
BY STRAIGHT LINE TO , ......... 1582201 ...... 317563 ..... .
BY ARC CENTERED AT .......... 1586780 ...... 385220 ..... .
TO • . . . . • • • • • . • • • • . • • • • • • • • • • • • • • • • • 1581596 . . • . • . 817732 ••••••
BY STRAIGHT LINE TO .. .. • • . . .. 1576266 ...... 819312 .... ..
BY ARC CENTERED AT .......... 1581450 ...... 336800 .... ..
TO . • • • • • . . • • . . • • • • • . • . • • • • • • • • • • • • • 1575360 •.•.•• 319606 ••..• ,
BY STRAIGHT LINE TO .......... 1570080 ...... 321476 .... ..
BY ARC CENTERED AT .......... 1576170 ...... 338670 ..... .
TO ..........•.•• • .•.••.•••••••.• , • • 1569889 . . • . . . 321545 ••••••
BY STRAIGHT LINE TO .......... 1565349 ...... 323210 ..... ,
BY ARC CENTERED AT .......... 1571630 ...... 340335 .... ..
TO • • . . . . • • • . . . • • • • . • • • • • • • • • • • • • • • • 1563529 ••••.• 323992 •.••• ,
BY STRAIGHT LINE TO ......... , 1563104 . ..... 324202 ..... .
BY STRAIGHT LINE TO .......... 1561073 ...... 324994 ..... .
BY ARC CENTERED AT .......... 1567695 ...... 341990 .... ..
TO .. , • ..•..•....••.•••.•••••••••••• 1558882 • • •..• 326020 • , ••••
BY STRAIGHT LINE TO .......... 1558879 ...... 326021 .. . .. .
BY ARC CENTERED AT .......... 1564160 ...... 343480 .... ..
TO . . . . . • . . . . . . . • .. • • . • . • • • • • • . • • • • • • 1556225 • • • • • . 327056 ••••••
BY STRAIGHT LINE TO .......... 1556066 ...... 827133 .... ..
BY STRAIGHT LINE TO .......... 1553511 ...... 327894 .... ..
BY ARC CENTERED AT .......... 1558720 ...... 345375 ..... .
TO ............................. , ... 1551769 ...... 328511
BY STRAIGHT LINE TO .......... 1549575 ...... 329415 ..... .
BY ARC CENTERED AT ......... . 1553840 ... ... 347150 .... ..
TO •••••.•••••.••••••••••••••••• , , • • 1546081 • • • • . • 330642 ••••••
UNITED STATES v. LOUISIANA 29
17 Supplemental Decree
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BY STRAIGHT LINE TO ••..•••••• 1543911 .•.••• 331662
BY ARC CENTERED AT .......... 1551670 ..•.•• 348170 .... ..
TO •...••....•••.••..•.•..•••••••••• 1541402 •...•• 333094 ••...•
BY STRAIGHT LINE TO .......... 1640011 ...••• 333646 ..... .
BY ARC CENTERED AT • • • • • • • • • • 1546740 ...... 350600 .. . .. .
TO . • • • • • • . . . . • • . • • • • • • • • • • • • • • • .. • • 1537927 •••••• 334630 ••••••
BY STRAIGHT LINE TO .......... 1631757 ...... 337418 .•..••
BY ARC CENTERED AT .......... 1539270 ...... 354040 ••••••
TO . . . . . . • . • . • . . . . . . . . • . • . • • • • • • • • . • 1530263 ..•... 338178 ••••••
BY STRAIGHT LINE TO . • . • .. .. • • 1527498 ...... 339748 ......
BY ARC CENTERED AT •.• • .••••• 1536505 355610 .•••••
TO . . . • .. . . .. • . • • • . • . • . • • .. • • • • • • • • • 1526511 340351 ••••••
BY STRAIGHT LINE TO .. . . . . • . • • 1526495 ...... 340356 . .... .
BY ARC CENTERED AT .......... 1532515 ...... 357575 ..... .
TO . . • . . • . . . . . . . . • • • . • • . . . . . • • • • • • • • 1523959 . . • . . • 341466 ••••• ,
BY ARC CENTERED AT .. . • • .. • .. 1631240 ...... 358190 ......
TO ........•.•••••..•.••• , • • • • • • • • • • 1522813 342013 •.••••
BY STRAIGHT LINE TO ... . ...... 1516478 345313 ..... .
BY STRAIGHT LINE TO •••...•••• 1505572 350398 .... ..
BY ARC CENTERED AT •.•••.•••• 1513280 366930 ••.• , ,
TO ..•.. , . . . • . • • • • • . • • . • . • . • • • • • • • • • 1504 778 350792
BY STRAIGHT LINE TO ..•..•••.. 1493968 356487 •••• , ,
BY ARC CENTERED AT .......... 1502470 ...... 372625 .... ..
TO •••............•..•••...•.•..•.. . 1493740 •.••.. 356609 ...•.•
BY STRAIGHT LINE TO . . ........ 1488240 ...... 359607 .... ..
BY STRAIGHT LINE TO . • .. .. . . . • 1483855 ...... 361809 .... ..
BY ARC CENTERE~ AT .......... 1402040 ...... 378110 .... . .
TO • • • • • • . . . . . . • . . . . • • • . • • . . . • • • • • • • 1483320 .•.... 362089
BY STRAIGHT LINE TO .......... 1481464 ...... 363099 ••••• •
BY STRAIGHT LINE TO .......... 1472522 367321 ..... .
BY STRAIGHT LINE TO . . . . . . . • • . 1464632 370389 •..•••
BY ARC CENTERED AT . • • • • • • • • • 1471240 387390
TO . . . . • . . . . . . . . . • . . . . . . . • • . • • • • • • • • 1464433 370467
BY STRAIGHT LINE TO .......... 1461367 371700 .... ..
BY STRAIGHT LINE TO . .. . • . • . • . 1455041 ...... 373829 ..... .
BY STRAIGHT LINE TO ....... . .. 1449142 ...... 375498 ..••••
BY ARC CENTERED AT .......... 1454105 ...... 393050 ..... .
TO . . . . • . • . . . . • . • . . . • . . • • • • • • • • • • • . . 1447394 ...... 376089 ••••••
BY STRAIGHT LINE TO .. .. .. .. . • 1443224 ...... 377739 ..... .
BY ARC CENTERED AT .......... 1449935 . ..... 394700 ..... .
TO .........••.•........•.•.••• , • • , • 1442769 ...••• 377926 •.••.•
BY STRAIGHT LINE TO .......... 1437906 ...... 880003 ..... .
BY STRAIGHT LINE TO .......... _1435142 ...... 381048 .... ..
BY STRAIGHT LINE TO ...• , • • • • • 1431147 382502 •..•• ,
BY ARC CENTERED AT ....... .. . 1431465 400740 ... .. .
TO ...••.•.•.•......••.. • • , ••••••••• 1426148 383291 ••••• •
BY STRAIGHT LINE TO . . . . • . • . • . 1423703 •... • • 384036
BY ARC CENTERED AT .......... 1429020 ...... 401485 .... ..
30 OCTOBER TERM, 1972
Supplemental Decree 409 U.S.
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TO ....•...•••.•••... , •..•.••••• , ••• 1421665 •••... 384793
BY STRAIGHT LINE TO .......... 1421218 •••••• 384903 .... ..
BY ARC CENTERED AT .......... 1425600 ...... 402610 ..... ,
TO ................................. 1417428 ••..•• 386302 ••••••
BY STRAIGHT LINE TO .......... 1411695 •••••• 388054 .... ..
BY STRAIGHT LINE TO .......... 1406675 ••.••• 389181 ••••••
BY STRAIGHT LINE TO .......... 1400158 ••.•.• 390267 ..... .
BY STRAIGHT LINE TO .......... 1395815 ...... 390681 ••••••
BY STRAIGHT LINE TO .......... 1390919 •••••• 390971 ..... .
BY ARC CENTERED AT .......... 1392000 •••.•• 409180 .... ..
TO ....•.•.•........•••••.•••••••••• 1390575 .••••• 390995 ••••.•
BY STRAIGHT LINE TO .......... 1386958 ...... 390977 ••••••
BY STRAIGHT LINE TO .••••••••• 1385797 •••••• 390942 .... ..
BY STRAIGHT LINE TO .......... 1383281 •••••• 390516 ..... .
BY ARC CENTERED AT .......... 1380235 ...... 408500 .... ..
TO . . . . . . • . • . • • • . • . . • • • . • • • • • • • • • • • • 1382827 • • • . • • 390444 ••••.•
BY STRAIGHT LINE TO .......... 1380530 ...... 390115 .... ..
BY STRAIGHT LINE TO .......... 1379793 ...... 389887 ••••••
BY ARC CENTERED AT ......... , 1363392 ...... 397870 ••••••
TO . . . . • . • . • . • • • . . • . • • • . • • • • • • • • • • • • 1364288 •••.•• 379651 ••••••
BY STRAIGHT LINE TO .......... 1363312 •••••• 379603 ..... .
BY ARC CENTERED AT .......... 1362416 ...... 397822 ..... .
TO ....•.....•.•••••••.••••••••••••• 1348021 ...•.. 386619 ••••••
BY STRAIGHT LINE TO .......... 1347740 ...... 386685 ..... .
BY STRAIGHT LINE TO •.•••••••. 1339580 ...... 387874 .• , •••
BY STRAIGHT LINE TO .......... 1332311 •••••• 388694 .... ..
BY STRAIGHT LINE TO .......... 1328041 •.•.•. 388886 ..... .
BY STRAIGHT LINE TO .......... 1323345 ••••.• 388897 .... ..
BY STRAIGHT LINE TO .. • • .. • • • . 1318624 ...... 388814 ..... ,
BY STRAIGHT LINE TO • . • • • • • • • • 1313961 ...... 388548 .... ..
BY STRAIGHT LINE TO .......... 1309176 ...•.• 388114 .... ..
BY STRAIGHT LINE TO • • • .. • • • • • 1299212 ...... 386972 .... .,
BY STRAIGHT LINE TO •••••••••• 1294264 ...... 386189 .... ..
BY ARC CENTERED AT ...... . ... 1291413 ...... 404205 ••••••
TO ................................. 1293948 ...... 386141 ••••••
BY STRAIGHT LINE TO .......... 1288689 ...... 385403 .... ••
BY ARC CENTERED AT .......... 1286154 ...... 403467 , •••••
TO • . • . • . • . • • • • • • • • • • • • . . • • • • • • • • • • • 1288273 • • • . • • 385350 ••••••
BY STRAIGHT LINE TO ....... . .. 1282879 ...... 384719 ••••••
BY ARC CENTERED AT .......... 1280760 •.•••. 402836 ••••••
TO . . . . . • . . . • . • • • . . . . . • • • • • • . • . • • • . • 1282343 • . • • . . 384664 .•••••
BY STRAIGHT LINE TO • • .. • • • • • • 1277050 •..••. 384203 • , ••••
BY ARC CENTERED AT •••••••••• 1275467 •.•.•. 402375 ••••••
TO ................................. 1276074 ...... 384197 .... ..
BY STRAIGHT LINE TO • . • .. • • • • • 1266567 ...... 383334 •.••••
BY STRAIGHT LINE TO .......... 1261754 . • ...• 382855 ••••••
BY STRAIGHT LINE TO .......... 1256845 ....•. 382176 ..... .
BY STRAIGHT LINE TO • • • • .. • • • • 1252082 .. .... 381444 .... ..
17
UNITED STATES v. LOUISIANA
Supplemental Decree
X
31
y
BY STRAIGHT LINE TO . • • • • • • • .. 1247120 ....•. 380489 •••••.
BY ARC CENTERED AT .••••.•••• 1243670 ...•.. 398400 •••• ••
TO • . . . . . . . . . • . . • • . . . • . • . • • • • • • • • • • • 1246626 .....• 380401 ••••••
BY STRAIGHT LINE TO •••••••••• 1243866 ...... 379947 ••••••
BY STRAIGHT LINE TO •••••••••• 1240511 ...... 379144 ••.•••
BY STRAIGHT LINE TO •••••••.•• 1238894 .•..•. 378640 ••••••
BY STRAIGHT LINE TO • • • • • • • • • • 1234692 ...... 377218 ..... .
BY ARC CENTERED AT •••••.•• , • 1228846 •••.•. 394497 ••••• ,
TO •..•...•..•...•••••••••••••• , , , • • 1233981 ....•. 376994 ••••••
BY ARC CENTERED AT .......... 1225768 ...... 393281 •.••••
TO ................................. 1230677 ...... 375713 ..... .
BY STRAIGHT LINE TO .......... 1229077 ...... 374980 ••••••
BY ARC CENTERED AT .......... 1219065 •••••. 390227 ••••• ,
TO . . . . . . . . . . . . • . . • . . • • • • • • • • • • • • • • • 1227371 •••..• 373987 • , ••• ,
BY STRAIGHT LINE TO .......... 1226185 .••.•. 373381 .... ..
BY STRAIGHT LINE TO •.•••••••• 1227214 ...•.. 367277 ..... .
BY ARC CENTERED AT .......... 1209227 •.•.•. 364245 .•••••
TO ........................•••••.•.• 1214918 •••.•• 346915 ..••••
BY STRAIGHT LINE TO • • • • • . • • • • 1213304 ...... 346385 ••••••
3. The United States is not entitled, as against the
State of Louisiana, to any interest in the lands, minerals
or natural resources described in paragraph 1 hereof, with
the exceptions provided by § 5 of the Submerged Lands
Act, 67 Stat. 32, 43 U. S. C. § 1313 (1964 ed.).
4. Pending further order of the Court or agreement of
the parties, leases of lands lying partly within the area
above described and partly seaward of that area shall
be in no way affected by anything contained in this
decree, and revenues derived from such leases shall
remain subject to impoundment under the Interim Agreement
of October 12, 1956, as amended, in the same manner
as heretofore.
5. All sums now held impounded by the State of
Louisiana or the United States under the Interim Agreement
of October 12, 1956, as amended, derived from
leases of lands wholly within areas referred to in paragraph
1 hereof are hereby released to the State of Louisiana
absolutely, and the State of Louisiana is relieved
of any obligation under said agreement to
impound any sums hereafter received by it from leases
32 OCTOBER TERM, 1972
Supplemental Decree 409 U.S.
of lands lying wholly within said area and the State
of Louisiana is and shall be entitled to lease lands
wholly within said areas and to directly receive any sums
hereafter derivable therefrom.
6. Nothing in this decree or the proceedings leading
to it shall prejudice any rights, claims or defenses of
the United States or the State of Louisiana with respect
to the remainder of the disputed area or past or future
payments derived therefrom or attributable thereto or
the operation of the Interim Agreement of October 12,
1956, as amended, with respect to such remaining disputed
area and payments. Nor shall anything in this
decree nor in the proceedings leading to it prejudice any
rights, claims or defenses of the State of Louisiana as
to its maritime lateral boundaries with the States of Mississippi
and Texas, which boundaries are not at issue in
this litigation.
7. The Court retains jurisdiction to entertain such further
proceedings, enter such orders and issue such writs
as may from time to time be deemed necessary or advisable
to give proper force and effect to its previous
orders or decrees herein or to this decree or to effectuate
the rights of the parties in the premises.
CALIFORNIA v. KRT\'DA
Syllabus
CALIFORNIA V. KRIVDA ET AL.
CERTIORARI TO THE SUPREME COURT OF CALIFORNIA
No. 'il-f\51. Argued October 10, 1972-Decided October 24, 1972
It. not bPing clear whether the judgment of the California Supreme
Court affirming the lower court is based on federal or state
constitutional grounds, or both, and whether this Court ha~
jurisdiction on review, that judgment is vacated and the case
remanded.
5 Cal. 3d a57, 48fi P. 2d 1262, vacated and remanded.
Russell lungerich, Deputy Attorney General of California,
argued the cause for petitioner. With him on
the briefs were Evelle J. Younger, Attorney General,
Edward A. Hinz, Jr., Chief Assistant Attorney General,
William E. James and S. Clark Moore, Assistant Attorneys
General, and William R. Pounders, Deputy Attorney
General, joined by John D. LaBelle for the State
of Connecticut and by the following Attorneys General:
William J. Baxley of Alabama, Gary K. l\' elson of Arizona.
Ray Thornton of Arkansas, Duke W. Dunbar of
Colorado, W. Laird Stabler, Jr., of Delaware, Robert L.
Shevin of Florida, Arthur K. Bolton of Georgia, George
Pai of Hawaii, W. Anthony Park of Idaho, Theodore L.
Sendak of Indiana, Richard C. Turner of Iowa, Jack P.
F. Gremillion of Louisiana, Francis B. Burch of Maryland,
A. F. Summer of Mississippi, Robert L. Woodahl
of Montana, Clarence A.H. Meyer of Nebraska, Robert
List of Nevada, Warren B. Rudman of New Hampshire,
George F. Kugler, Jr., of New Jersey, Louis J. Lefkowitz
of New York, Helgi Johanneson of North Dakota, William
J. Brown of Ohio, J. Shane Creamer of Pennsylvania,
Richard J. Israel of Rhode Island, Daniel R.
McLeod of South Carolina, Gordon Myland of South
Dakota, David M. Pack of Tennessee, Crawford C.
34 OCTOBER TERM, 1972
Per Curiam 409 u. s.
Martin of Texas, Vernon B. Romne,y of Utah, James M.
Jeffords of Vermont, Andrew P. Miller of Virginia, Ronald
H. Tonkin of the Virgin Islands, Slade Gorton of
Washington, Robert W. Warren of Wisconsin, and
Clarence A. Brimmer of Wyoming.
Roger S. Hanson, by appointment of the Court, 406
U. S. 904, argued the cause for respondents. With him
on the brief was George R. Milman.
Briefs of amici curiae were filed by William J. Scott,
Attorney General, and James B. Zagel, Assistant Attorney
General, for the State of Illinois; by Frank G. Carrington,
Jr., Alan S. Ganz, Glen Murphy, and Wayne W.
Schmidt for Americans for Effective Law Enforcement,
Inc., et al.; by Melvin L. Wulf, Sanford J. Rosen, Joel M.
Gora, A. L. Wirin, Fred Okrand, and Lawrence R. Sperber
for the American Civil Liberties Union et al.; by Sheldon
Portman and Rose Elizabeth Bird for the California
Public Defenders Assn.; and by Theodore A. Gottfried
and Marshall J. Hartman for the National Legal Aid
and Defender Assn.
PER CuRIAM.
On the basis of evidence obtained in a police search
of respondents' trash, respondents were charged with
possession of marihuana in violation of § 11530 of the
California Health & Safety Code. The Supreme Court
of California affirmed the superior court's judgment
of dismissal and order suppressing the evidence on
the grounds that, under the circumstances of this case,
respondents "had a reasonable expectation that their
trash would not be rummaged through and picked over
by police officers acting without a search warrant." People
v. Krivda, 5 Cal. 3d 357, 366-367, 486 P. 2d 1262,
1268 (1971) (en bane). We granted certiorari. 405 u. s. 1039.
CALIFORNIA v. KRIVDA 35
Per Curiam
After briefing and argument, however, we are unable
to determine whether the California Supreme Court
based its holding upon the Fourth and Fourteenth
Amendments to the Constitution of the United States,
or upon the equivalent provision of the California Constitution,
or both. In reaching its result in this case,
the California court cited pertinent excerpts from its
earlier decision in People v. Edwards, 71 Cal. 2d 1096,
458 P. 2d 713 (1969) (en bane), which relied specifically
upon both the state and federal provisions. 5 Cal. 3d, at
367, 486 P. 2d, at 1269. Thus, as in Mental Hygiene
Dept. v. Kirchner, 380 U.S. 194, 196-197 ( 1965), "[ w ]hile
we might speculate from the choice of words used in the
opinion, and the authorities cited by the court, which
provision was the basis for the judgment of the state
court, we are unable to say with any degree of certainty
that the judgment of the California Supreme Court was
not based on an adequate and independent nonfederal
ground." We therefore vacate the judgment of the
Supreme Court of California and remand the cause to
that court for such further proceedings as may be appropriate.
Mental Hygiene Dept. v. Kirchner, supra; Minnesota
v. National Tea Co., 309 U. S. 551 (1940); State
Tax Comm'ri v. Van Cott, 306 U. S. 511 (1939). We
intimate no view on the merits of the Fourth and
Fourteenth Amendment issue presented.
36 OCTOBER TERM, 1972
Per Curiam 409 U.S.
ILLINOIS v. MICHIGAN
ON MOTION FOR LEAVE TO FILE BILL OF COMPLAINT
No. 57, Orig. Decided October 24, 1972
The failure of the State of Illinois to petition for a writ of certiorari
with respect to an adverse Michigan Supreme Court
decision in a case to which Illinois was a party "vindicat[ing] ...
grievances of particular individuals" precludes recourse to this
Court's original jurisdiction as an alternative to normal appellate
review.
Motion denied. Sec 386 Mich. 474, 192 N. W. 2d 242.
PER CuRIAl\L
The State of Illinois moved to file its bill of complaint
in this case on the theory that a "reciprocal treaty" between
the States of Illinois and Michigan was violated
by a decision of the Supreme Court of the State of Michigan
which allowed recovery by two injured workmen
against an Illinois re-insurance company. Federoff v.
Ewing, 386 Mich. 474, 192 N. W. 2d 242 (1971). It
claims that such an agreement arose when the two States
enact~d the Uniform Insurers Liquidation Act, which
contains certain reciprocal features, and that the agreement
has the dignity of an interstate compact.*
The State of Illinois was a party to the case decided
by the Supreme Court of Michigan through the person
of the Director of Insurance of the State of Illinois, who
was the liquidator of the workmen's compensation insurer,
Highway Insurance Co. It was the imposition of
*See generally Frankfurter & Landis, The Compact Clause of the
Constitution-a Study in Interstate Adjustments, 34 Yale L. J. 685
( 1925) ; Engdahl, Characterization of Interstate Arrangements:
When is a Compact not a Compact?, 64 Mich. L. Rev. 63 ( 1965);
Note, At the Intersection of Jurisdiction and Choice of Law, 59
Calif. L. Rev. 1514 (1971).
ILLINOIS v. MICHIGAN 37
36 Per Curiam
liability upon that company's re-insurer which Illinois
claims was inappropriate under the uniform act. Review
of the Michigan decision should have been sought
in that case by means of a petition for writ of certiorari.
It is now too late for any such petition for certiorari
to be filed. But original jurisdiction of the Court is
not an alternative to the redress of grievances which
could have been sought in the normal appellate process,
if the remedy had been timely sought.
The problem presented is essentially one between private
litigants and, though the point now raised may not
have been presented in the Michigan litigation, these controversies
are recurring and essentially not state concerns.
While the complaint on its face is within our original,
as well as our exclusive, jurisdiction, it seems apparent
from the moving papers and the response that Illinois,
though nominally a party, is here "in the vindication of
the grievances of particular individuals." Louisiana v.
Texas, 176 U. S. 1, 16.
The motions to file briefs amici curiae by Jack
Federoff, William F. Ewing, dba William Ewing Roofing
Co., and John H. Shannon are granted.
The motion of the State of Illinois for leave to file a
bill of complaint is denied.
38 OCTOBER TERM, 1972
Per Curiam 409 U.S.
ROBINSON v. HANRAHAN, STATES ATTORNEY
OF COOK COUNTY
APPEAL FROM THE SUPREME COURT OF ILLINOIS
No. 71-6918. Decided October 24, 1972
Notwithstanding its knowledge that appellant was in the Cook
County jail awaiting trial, the State of Illinois mailed notice of
automobile forfeiture proceedings to appellant at his home,
which he did not receive until his release, when he learned that
the car had been forfeited. The circuit court rejected appellant's
motion for rehearing. The Illinois Supreme Court affirmed.
Held: The procedure followed here did not comport with due
process requirements as the State made no effort to provide
appellant with notice "reasonably calculated" to apprise him
of the pendency of the forfeiture proceedings.
52 Ill. 2d 37, 284 N. E. 2d 646, reversed and remanded.
PER CURIAM.
On June 16, 1970, appellant was arrested on a charge
of armed robbery and, immediately thereafter, the State
of Illinois instituted forfeiture proceedings against appellant's
automobile pursuant to the Illinois vehicle forfeiture
statute, Ill. Rev. Stat., c. 38, § 36-1 et seq.
(1969). Appellant was held in custody in the Cook
County jail from June 16, 1970, to October 7, 1970, awaiting
trial. Nevertheless, the State mailed notice of the
pending forfeiture proceedings, not to the jail facility,
but to appellant's home address as listed in the records
of the Secretary of State.1 It is undisputed that ap-
1 Under Illinois law, the address of a vehicle owner must be
registered in the office of the Secretary of State. Ill. Rev. Stat.,
c. 95½, § 3-405 ( 1971). The Illinois vehicle forfeiture statute
authorizes service of notice by certified mail to the address as listed
in the records of the Secretary of State. Ill. Rev. Stat., c. 38,
§ 36-1 (1969).
ROBINSON v. HANRAHAN 39
38 Per Curiam
pellant, who remained in custody throughout the forfeiture
proceedings, did not receive such notice until his
release.2 After an ex parte hearing on August 19,
1970, the circuit court of Cook County ordered the forfeiture
and sale of appellant's vehicle.
Upon learning of the forfeiture after his release, appellant
filed a motion for rehearing, requesting that the
order of forfeiture be set aside because the manner of
notice did not comport with the requirements of the Due
Process Clause of the Fourteenth Amendment. The circuit
court of Cook County denied the motion. On appeal,
the Supreme Court of Illinois, three justices dissenting,
held that, in light of the in rem nature of the
proceedings, substituted service as utilized by the State
did not deny appellant due process of law. People ex rel.
Hanrahan v. One 1965 Gidsmobile, 52 Ill. 2d 37, 284 N. E.
2d 646 (1972). We cannot agree.
In Mullane v. Central Hanover Bank & Trust Co.,
339 U. S. 306 (1950), after commenting on the vagueness
of the classifications "in rem, or more indefinitely
quasi in rem, or more vaguely still, 'in the nature of a
proceeding in rem,' " this Court held that "the requirements
of the Fourteenth Amendment to the Federal
Constitution do not depend upon a classification for
which the standards are so elusive and confused generally
and which, being primarily for state courts to define, may
and do vary from state to state." Id., at 312. "An elementary
and fundamental requirement of due process in
2 Appellant was tried on October 7, 1970, for the offense of armed
robbery. The court, sitting without a jury, found appellant guilty
only of plain robbery and sentenced him to probation for three
years, the first four months of which to be sen·cd in the Cook
County jail. In light of appellant's pretrial detention, the fourmonth
requirement was "considered served" and appellant was
released immediately on his own recognizance.
40 OCTOBER TERM, 1972
Per Curiam 409 U.S.
any proceeding which is to be accorded finality is notice
reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and
afford them an opportunity to present their objections."
Id., at 314. More specifically. Mullane held that
notice by publication is not sufficient, with respect
to an individual whose name and address are known or
easily ascertainable. Similarly, in Covey v. Town of
Somers, 351 U. S. 141 (1956), we held that, in the context
of a foreclosure action by the town, notice by mailing,
posting, and publication was inadequate where the
individual involved was known by the town to be an incompetent
without the protection of a guardian. See
also Schroeder v. New York, 371 U. S. 208 (1962) ; Walker
v. City of Hutchinson, 352 U. S. 112 (1956); New
York v. New York, N. H. & H. R. Co., 344 U. S. 293
(1953).
In the instant case, the State knew that appellant was
not at the address to which the notice was mailed and,
moreover, knew also that appellant could not get to that
address since he was at that very time confined in the
Cook County jail. Under these circumstances, it cannot
be said that the State made any effort to provide notice
which was "reasonably calculated" to apprise appellant
of the pendency of the forfeiture proceedings.3 Accordingly,
we grant the motion for leave to proceed in forma
pauperis, reverse the judgment of the Supreme Court of
Illinois, and remand for further proceedings not inconsistent
with this opinion.
"Since we dispose of this case cm the notice question, we do not
reach the additional issues raised by appellant.
MURCH v. MOTTRAc\l 41
Per Curiam
MURCH ET AL. V. MOTTRAM
ON PETITION FOR WRl'l' OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 72-55. Decided Novembl"r 6, 1972
In a 1965 proceeding r€'spondent substituted for his original attack
on the constitutional validity of his underlying convictions a petition
challenging only the constitutionality of procedures attrnding
revocation of his parole, notwithstanding advic€" that, under the
judge's construction of Maine's statute governing post-conviction
relief, a prisoner is deemed to waive constitutional grounds not
asserted and that both the petition and the previous attack cam€'
within the statute. Respondent's 1965 challenge was not successful,
and in 1967 he filed anothn petition for state post-conviction
relief, collatf'rally attacking the validity of the previous convictions.
Following an advPrse ruling by the State's highest court,
respondent sought relief in the District Court, which ruled against
him on the ground that in the 1965 proceeding ht> had bypassed
the state statutory procedures. The Court of Appeals reversed,
holding that respondent had not waived his right to raise the
constitutional issues. Held: Maine could properly provide that
a prisonn seeking post-conviction relief must assert all known
constitutional claims in a singlP proceeding, and a state prisoner
may not "elect" not to comply with a state court's interpr0tation
of the statute and claim, as respondent (who had recei\·ed
fair warning) did here, that he did not have' the subjective
intent to waive his constitutional claims.
Certiorari granted; 458 F. 2d 626, reversed.
PER CumAM.
Respondent Mottram sought habeas corpus from the
United States District Court in Maine, challenging on
various constitutional grounds the validity of a criminal
conviction obtained in the Maine state courts. After a
full evidentiary hearing, the District Court denied relief,
both on the ground that respondent had deliberately bypassed
state procedures established for the post-conviction
adjudication of such claims, and on the ground that the
42 OCTOBER TERM, 1972
Per Curiam 409 U.S.
constitutional claims were without merit. 330 F. Supp.
51 (1971). The Court of Appeals for the First
Circuit reversed, holding that respondent had not waived
his right to raise the constitutional issues, and ruling
in favor of respondent on one such issue. 458 F. 2d 626
(1972). We have concluded that, under settled principles
governing the availability of federal habeas for
state prisoners, the finding of the District Court as to
waiver must be sustained. We therefore grant the motion
of the respondent for leave to proceed in fonna pauperis,
grant the petition for a writ of certiorari, and reverse
the judgment of the Court of Appeals.
Mottram was convicted in 1960 of larceny and of being
a habitual offender, and these convictions were upheld on
appeal. State v. Mottram, 158 Me. 325, 184 A. 2d 225
(1962). On that appeal, Mottram did not litigate the
constitutional issue upon which the Court of Appeals
based its decision. Respondent was paroled in 1963,
but parole was revoked in 1965. Following that revocation,
Mottram brought in state court the action that
later became the main focus of concern of the Court of
Appeals and the District Court. The original petition
in that proceeding challenged directly the validity of the
underlying convictions. Prior to the presentation of evidence
to the state court judge, however, Mottram's
counsel sought to withdraw the original petition without
prejudice and to substitute a "Supplemental Petition,"
which challenged on constitutional grounds only the
propriety of the procedures attending the revocation of
respondent's parole. At this point the state judge advised
respondent's counsel that he considered both the
petition and the proceeding to be for post-conviction
relief, and that therefore, under the applicable state statutes,
Me. Rev. Stat. Ann., Tit. 14, §§ 5502, 5507 (1964),
Mottram would either have to raise all grounds for relief
from custody or be deemed to waive those that had not
MURCH v. ~v10TTRAl'vI
41 Per Curiam
been asserted. Mottram's counsel disagreed with the
state judge, contending that the petition was one for
common-law habeas corpus, and that therefore the statutory
requirement that all grounds for attack be presented
did not apply. The judge reiterated his interpretation,
and the following colloquy then took place:
"THE COURT: I think I will have to ask you to
deal with this at this moment in making a decision
as to what you want to do on the basis that I will
undoubtedly view it as post-conviction and your
only remedy at that point might be an appeal on
this point from my decision. I think in all fairness,
I should indicate to you this is as I view it. I think
that is the result we are led to by the statute, myself.
"MR. TEV ANIAN [Mottram's counsell : I understand
your position and I shall discuss it."
(Conference between Mr. Tevanian and Mr. Mottram.)
( Off-record discussion.)
(RECESS)
"MR. TEVANIAN: For the record, it is our position
here that we do not attack the judgment and
conviction of 1960. We are now attacking his personal
freedom as a parole violator so that whatever
rights we may reserve in appeal as to whether or
not this is a post-conviction hearing, we would now
like to avail ourselves of that reservation. We have
elected to go ahead on that issue.
"THE COURT: I think that makes it clear,
Brother Tevanian, for the record .... "
Mottram's attack on the parole revocation procedures
was unsuccessful before the state judge, and the latter's
decision was sustained on appeal by the Supreme Judicial
Court of Maine. Mottram v. State, 232 A. 2d 809
(1967). In 1967, Mottram filed another petition for state
44 OCTOBER TERM, 1972
Per Curiam 409 u. s.
post-conviction relief, in which he sought to attack collaterally
the validity of the 1960 convictions upon
grounds that included the constitutional ground ultimately
sustained by the Court of Appeals. The Supreme
Judicial Court of Maine held that the failure to present
those claims in the 1965 petition, after an explicit warning
by the trial judge, constituted a waiver of those claims
under the applicable provisions of the Maine post-conviction
statutes, and therefore those statutes precluded
Mottram from raising those claims in a subsequent petition
for post-conviction relief. Mottram v. State, 263
A. 2d 715 ( 1970). Mottram then commenced this
litigation in the federal courts.
In Fay v. Noia, 372 U.S. 391, 439 (1963), this Court
said:
"If a habeas applicant, after consultation with competent
counsel or otherwise, understandingly and
knowingly forewent the privilege of seeking to vindicate
his federal claims in the state courts, whether
for strategic, tactical, or any other reasons that can
fairly be described as the deliberate by-passing of
state procedures, then it is open to the federal court
on habeas to deny him all relief if the state courts
refused to entertain his federal claims on the
merits-though of course only after the federal court
has satisfied itself, by holding a hearing or by some
other means, of the facts bearing upon the applicant's
default."
The District Court devoted four days to such a hearing,
at which the transcripts of the trials and of the
state post-conviction proceedings, as well as the testimony
of witnesses called by Mottram, were introduced
in evidence. Following this evidentiary hearing, the
District Court concluded as follows:
"From the Court's personal observation of petitioner,
it is apparent that he is of at least average
41
MURCH v. MOTTRAM 45
Per Curiam
intelligence and well deserves his reputation as a
cunning 'jailhouse lawyer.' He was represented at
the time by counsel of unquestioned competence
and integrity. It is inconceivable that his counsel
did not fully explain to petitioner the possible consequences
of his action. The Court, therefore, finds
that petitioner was fully aware of these consequences
and that by deliberately bypassing the orderly procedures
provided by the Maine post-conviction statute
for raising the issues presented in his most recent
state habeas petition and in his present petition in
this Court, petitioner has forfeited his right to do
so. [Citing cases.]" 330 F. Supp., at 57.
In Sanders v. United States, 373 U. S. 1, 18 (1963) ,
this Court said, in speaking of habeas corpus for federal
prisoners:
"Thus, for example, if a prisoner deliberately withholds
one of two grounds for federal collateral relief
at the time of filing his first application, in the hope
of being granted two hearings rather than one or
for some other such reason, he may be deemed to
have waived his right to a hearing on a second application
presenting the withheld ground. . . . Nothing
in the traditions of habeas corpus requires the
federal courts to tolerate needles.s piecemeal litigation,
or to entertain collateral proceedings whose
only purpose is to vex, harass, or delay."
There can be no doubt that States may likewise provide,
as Maine has done, that a prisoner seeking post-conviction
relief must assert all known constitutional claims in a
single proceeding. Indeed, the Court of Appeals agreed
that the Maine statutory scheme was an "orderly procedure
of the state courts," as that term is used in Fay v.
No-ia, supra, at 438. No prisoner has a right either
under the Federal Constitution or under 28 U. S. C.
§ 2241 to insist upon piecemeal collateral attack on a
46 OCTOBER TERM, 1972
Per Curiam 409U.S.
presumptively valid criminal conviction m the face of
such a statutory provision.
The Court of Appeals conceded that " [ t] here are a
great many instances where a party must be bound by a
mistake of his counsel." 458 F. 2d, at 629. But it concluded
that because the statutory question presented to
the state trial judge, whether the Maine post-conviction
statute required respondent to assert in the 1965 proceeding
all of his attacks upon his detention, was not open
and shut, counsel's failure to assert the constitutional
claim in the state proceeding could not be regarded as
a "deliberate by-pass" under Fay v. Noia, supra, at 438-
439. That court also relied on the fact that there was
no "extrinsic evidence" that Mottram "was seeking to
circumvent state procedures .... " 458 F. 2d, at 629.
Concededly, Mottram testified at the hearing in the
District Court that he did not intend to waive his
constitutional attacks on the underlying 1960 convictions.
But if a subjective determination not to waive or to
abandon a claim were sufficient to preclude a finding of
a deliberate bypass of orderly state procedures, constitutionally
valid procedural requirements, such as those
contained in the Maine statute requiring the joining of
all bases for attack in one proceeding, would be utterly
meaningless. Nothing in our previous holdings in this
area supports the conclusion that Mottram, having fair
warning of the effect of the Maine statute, could cavalierly
disregard that intended effect by simply announcing
that he did not choose to be bound by it. In this
sensitive and ofttimes strained area of federal-state
relations, a state prisoner may not deliberately "elect"
not to comply with the interpretation of the state procedural
statute by the state court, and then assert in
federal court that no rights were waived because he did
not have the subjective intent to waive his constitutional
claims. The Court of Appeals apparently felt that so
MURCH v. MOTTRAM 47
41 BREXNAN, .J ., dissenting
long as the highest state court has not construed the
relevant procedural statute, a prisoner is free to adhere
to his own interpretation and to establish thereby that
he did not deliberately ignore state procedure. But here,
respondent had reasonable warning from the trial judge
of the risk that he ran in declining to assert his claim in
the first proceeding, and nonetheless chose to run that
risk. Such conduct fully supported the District Court's
conclusion that he had deliberately chosen to bypass
orderly state procedures, and the Court of Appeals erred
in upsetting that determination.
Reversed.
MR. JusTICE BRENNAN, with whom MR. JUSTICE
DouGLAS and MR. JUSTICE MARSHALL concur, dissenting.
I dissent and would affirm because in my view the
Court of Appeals reached the correct result on the facts
presented.
48 OCTOBER TERM, 1972
Syllabus 409 U.S.
NATIONAL LABOR RELATIONS BOARD v.
INTERNATIONAL VAN LINES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 71-895. Argued October 12, 1972-Decided November 7, 1972
Four employees of respondent refused to cross a picket line formed
in connection with a union's organization campaign. Respondent
thereafter advised the employees that because of their failure to
report to work they were being permanently replaced, which was
not true at the time of the discharges. When respondent refused
reinstatement, charges were filed with the National Labor Relations
Board (NLRB). Concluding that the discharges were
unfair labor practices under the National Labor Relations Act,
and that the employees thereby became unfair labor practice
striKers, the NLRB ordered unconditional reinstatement with back
pay. The Court of Appeals reversed that portion of the NLRB's
order, holding that the employees were not unfair labor practice
strikers, who were entitled to unconditional reinstatement, but
economic strikers, who were not entitled to reinstatement if the
employer had substantial business justifications for refusing to
rehire them. Held: The unconditional reinstatement of the employees
was proper since their discriminatory discharges prior to
the time their places were filled constituted unfair labor practices
regardless of whether they were economic strikers or unfair labor
practice strikers. Pp. 52-53.
448 F. 2d 905, reversed in part.
STEWART, J., delivered the opinion of the Court, in which BURGER,
C. J., and DouGLAS, BRENNAN, WHITE, MARSHALL, PowELL, and
REHNQUIST, JJ., joined. BLACKMUN, J., filed an opinion concurring
in the judgment, post, p. 53.
Peter G. Nash argued the cause for petitioner. With
him on the briefs were Solicitor General Griswold, Samuel
Huntington, Patrick Hardin, Norton J. Come, and
Linda Sher.
Norman H. Kirshman argued the cause for respondent.
With him on the briefs was Louis R. Garcia.
NLRB v. INTERNATIONAL VAN" LINES 49
48 Opinion of the Court
Briefs of amici curiae were filed by J. Albert Woll,
Laurence Gold, and Thomas E. Harris for the American
Federation of Labor and Congress of Industrial Organizations,
and by Milton Smith, Jerry Kronenberg, and
Gerard C. Smetana for the Chamber of Commerce of
the United States.
MR. JUSTICE STEWART delivered the opinion of the
Court.
The respondent is a moving and storage company
based in Santa Maria, California. In August 1967,
Local 381 of the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America began
a campaign to organize the employees of moving and
storage firms in the area. By September 21, five of the
respondent's employees had signed union authorization
cards; it is undisputed that they constituted a clear majority
of what would be an appropriate bargaining unit.
Instead of demanding re<iognition by the respondent, the
Union on September 21, 1967, petitioned the National
Labor Relations Board for certification as the exclusive
bargaining agent of the respondent's employees.
Shortly thereafter, on October 2 and 3, the Union held
meetings where it was announced that the respondent
had at first consented to a representation election but
had later withdrawn its consent. It was decided at the
October 3 meeting that all of the moving and storage
companies involved in the Union organization campaign
should be struck, and on October 4, picketing commenced
at the respondent's place of business.
Four of the respondent's employees, Robert and Manuel
Vasquez, Richard Dicus, and Salvador Casillas, were
present at the respondent's premises on the morning
when picketing commenced. They refused to cross the
picket line. The next morning, Robert and Manuel
Vasquez and Richard Dicus received identical tele50
OCTOBER TERM, 1972
Opinion of the Court 409 u. s.
grams which read: "For failure to report to work as
directed at 7 A. M. on Wednesday Oct. 4, 1967
you are being permanently replaced. [Signed] International
Van Lines." 1 It is undisputed that at the time
of the discharges, the respondent had not in fact hired
permanent replacements.
Casillas sought reinstatement in late November, and
the other three discharged employees made unconditional
offers to return to work on December 12. At
least as to these three,2 the respondent refused reinstatement,
claiming that it had at that point hired
permanent replacements. The Union then went to the
National Labor Relations Board with unfair labor practice
charges against the respondent.
The Board determined that the labor picketing that
commenced on October 4 was activity protected under
§ 7 of the National Labor Relations Act, 49 Stat. 452,
as amended, 29 U. S. C. § 157, and concluded that the
subsequent discharges of striking employees discriminated
against lawful union activity and were unfair labor practices
under §§ 8 (a) (1) and 8 (a)(3) of the Act, 29
U. S. C. §§ 158 (a)(l), (a)(3).
It is settled that an employer may refuse to reinstate
economic strikers if in the interim he has taken on permanent
replacements. NLRB v. Mackay Radio & Telegraph
Co., 304 U. S. 333, 345--346. It is equally settled
that employees striking in protest of an employer's unfair
labor practices are entitled, absent some contractual or
1 Casillas did not receive such a telegram, but the Court of Appeals
found that he was discharged at about the same time as the other
three, and for the same reasons. 448 F. 2d 905, 909.
2 There remains some question as to whether Casillas, a part-time
employee, was actually denied subsequent employment or whether
instead there had been no occasion for the employer to use his services.
The Court of Appeals remanded to the Board for a determination
of this question-a determination that will affect the amount of
back pay, if any, that Casillas is entitled to receive.
NLRB v. INTERNATIONAL VAN LINES 51
48 Opinion of the Court
statutory provision to the contrary, to unconditional
reinstatement with back pay, "even if replacements for
them have been made." Mastro Plastics Corp. v. NLRB,
350 U. S. 270, 278. Since the strike in the instant case
continued after the unfair labor practices had been committed
by the employer, the Board reasoned that the
original economic strike became an unfair labor practice
strike on October 5, when the three telegrams were sent.
The Board held the four employees to be unfair labor
practice strikers and, accordingly, ordered their unconditional
reinstatement with back pay.
The Board then sought enforcement of its order in
the Court of Appeals for the Ninth Circuit. The Court
of Appeals agreed that the labor picketing was a lawful
economic strike, and that the discharges of the striking
employees were unfair labor practices. 448 F. 2d 905,
910-911. Nevertheless, the Court of Appeals reversed
the portion of the Board's order providing for reinstatement
with back pay,3 reasoning as follows:
"The strikers whose discharges constituted the unfair
labor practice were, at the time of their discharges,
protesting only the original grievance. Any
strikers subsequently discharged might legitimately
be considered unfair labor practice strikers, for they
would be protesting not only the original grievance
but also the subsequent unfair labor practice. The
initially discharged strikers were obviously not protesting
their own discharges, which had not yet
occurred. To assimilate their status to that of their
co-workers who had not yet been discharged would
eliminate the distinction between [the] economicstriker-
reinstatement rule (Mackay Radio & Tele-
3 The Court of Appeals also rt>jected the Board's finding of an unfair
labor practice in the form of conversations between the son of
thf' respondent's president and thE' employees, 448 F. 2d, at 908-909,
but this aspect of the judgment is not before us.
52 OCTOBER TERM, 1972
Opinion of the Court 409 u. s.
graph) and the unfair-labor-practice-striker-reinstatement
rule (Mastro Plastics) in cases like this
one." Id., at 911-912.
Consistent with its determination that the discharged
employees were economic strikers entitled to reinstatement
only if the employer could not show legitimate
and substantial business justifications for refusing to
take them back, the Court of Appeals remanded the
case for further findings concerning the reasons for the
employer's refusal to rehire them. Id., at 912.
Because this decision appeared to involve principles important
to the administration of the National Labor Relations
Act as amended, we granted the Board's petition
for certiorari, 405 U. S. 953.
Both the Board and the Court of Appeals have agreed
that the labor picketing was a lawful economic strike,
and the validity of that conclusion is not before us.•
Given that hypothesis, the Board and the Court of Appeals
were clearly correct in concluding that the respondent
committ€d unfair labor practices when it fired its
striking employees. "[T]he discharge of economic strikers
prior ... to the time their places are filled constitutes
an unfair labor practice." NLRB v. Globe Wireless,
193 F. 2d 748, 750; NLRB v. Comfort, Inc., 365
F. 2d 867, 874; NLRB v. McCatron, 216 F. 2d 212, 215.
We need not decide, however, whether the Board was
• The Court of Appeals construed the picketing as a strike for
the purpose of forcing the respondent employer to agree to a consrnt
election, 448 F. 2d, at 910, and held this to be protected under
the Act. The respondent disagrees. But since no timely crosspetition
for certiorari was filed by the respondents, this question is
not before us. Alaska Jndmtrial Board v. Chugach Electric Assn.,
356 U. S. 320, 325; NLRB v. Express Publ~hing Co., 312 U. S. 426,
431-432; Morley Construction Co. v. llforyland Casualty Co., 300
U. S. 185, 191. We therefore proceed on the premise that the Union
was engaged in protected activity, while intimating no view on the
merits of this portion of the decision of the Court of Appeals.
NLRB v. INTERNATIONAL VAN LINES 53
48 BLACKMUN, J., concurring in judgment
correct in determining that the discharged employees assumed
the status of unfair labor practice strikers on
October 5, 1967, to reach the conclusion that the Court
of Appeals erred in refusing to enforce the Board's order
of reinstatement with back pay.
Unconditional reinstatement of the discharged employees
was proper for the simple reason that they were
the victims of a plain unfair labor practice by their employer.
Quite apart from any characterization of the
strike that continued after the wrongful discharges occurred,
the discharges themselves were a sufficient ground
for the Board's reinstatement order. "Reinstatement is
the conventional correction for discriminatory discharges,"
Phelps Dodge Corp. v. NLRB, 313 U. S. 177, 187, and
was clearly within the Board's authority. 29 U. S. C.
§ 160 (c).
It would undercut the remedial powers of the Board
with respect to § 8 violations, and subvert the protection
of § 7 of the Act, to hold that the employees' rights to
reinstatement arising from the discriminatory discharges
were somehow forfeited merely because they continued
for a time to engage in their lawful strike after the unfair
labor practices had been committed.
The judgment of the Court of Appeals is reversed insofar
as it refused to enforce the Board's order that the
discharged employees be reinstated with back pay.5
It is so ordered.
MR. JUSTICE BLACKMUN, concurring in the judgment.
The result mandated by the narrow factual situation
presented in this case need not be automatically im-
5 The Court of Appeals remanded to the Board for a determination
of whether Casillas had actually been denied employment subsequent
to his request for reinstatement, and did not reach the propriety of
the bargaining order entered by the Board. We leave these aspects
of the Court of Appeals decision undisturbed.
54 OCTOBER TERM, 1972
BLACKMUN, J., concurring in judgment 409 u. s.
posed whenever an economic striker is discharged before
being permanently replaced. Although the Court's opinion
speaks only of permanent replacement as a justification
for refusal to reinstate an economic striker, the
Court has recognized in the past that, in addition to
permanent replacement, other "legitimate and substantial
business justifications" for not reinstating an economic
striker may exist. NLRB v. Fleetwood Trailer
Co., 389 U. S. 375, 378-380 (1967). The Court is not
faced in the present case with other "legitimate and
substantial business justifications" because the employer,
who bears the burden of proof, asserted only the permanent-
replacement justification. The finding of an unfair
labor practice here is not to be read, therefore, as necessarily
precluding an employer from reliance on appropriate
justifications other than permanent replacement.
Since the employer failed to show any business justification
arising before the discharges, these workers enjoyed
reinstatement rights when they were discriminatorily
discharged. I concur in the reversal of the Court
of Appeals' judgment because preservation of the rights
existing before the workers were discharged is the appropriate
remedy to provide "a restoration of the situation,
as nearly as possible, to that which would have obtained
but for the illegal discrimination." Phelps Dodge Corp.
V. NLRB, 313 U. S. 177, 194 (1941).
RIVAS v. COZENS 55
Per Curiam
RIVAS ET AL. V. COZENS, DIRECTOR, DEPARTMENT
OF MOTOR VEHICLES OF
CALIFORNIA, ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA
No. 71-5780. Decided November 13, 1972
Vacated and remanded. See: 327 F. Supp. 867.
PER CuRIAM.
The appellants' supplemental brief filed October 14,
1972, recites:
"The California Supreme Court's decision in Rios
[v. Cozens, 7 Cal. 3d 792, 499 P. 2d 979 (1972),]
has been given full prospective and retroactive effect.
Cal. Sup. Ct. Order Denying Stay Pending Appeal,
filed August 30, 1972. Accordingly, the individual
petitioners herein, Celestino V. Rivas and Zeferino
Samaniego, have now been accorded the opportunity
for a personal evidentiary hearing regarding the suspension
of their driver's licenses."
Accordingly the motion for leave to proceed in f orma
pauperis is granted, the judgment is vacated, and the case
is remanded to the United States District Court for the
Northern District of California to determine whether this
case has become moot.
56 OCTOBER TERM, 1972
Per Curiam 409 U.S.
GIVENS El' AL. V. w. T. GRANT co.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
No. 72-5256. DeC'ided November 13, 1972
Certiorari granted; 457 F. 2d 612, vacated and remanded.
PER CuRIAM.
The motion for leave to proceed in forma pauperis and
the petition for a writ of certiorari are granted. The
judgment is vacated and the case is remanded to the
United States Court of Appeals for the Second Circuit
for reconsideration of its order of dismissal in light of
28 U. S. C. § 1447 (c).
WARD v. VILLAGE OF MONROEVILLE 57
Opinion of the Court
WARD v. VILLAGE OF MONROEVILLE
CERTIORARI TO THE SUPREME COURT OF OHIO
No. 71-496. Argut>d October 17, 1972-Decided November 14, 1972
Petitioner was denied a trial before a disinterested and impartial
judicial officer a.s guaranteed by the Due Process Claus<> of the
.Fourteenth Amendment where he was compelled to stand trial
for traffic offenses before the mayor, who was responsible for
village finances and whose court through fines, forfeitures, costs,
and fees provided a substantial portion of village funds. 'Tumey
v. Ohio, 273 U. S. 510. A statutory provision for the disqualification
of interested or biased judges did not afford petitioner
a sufficient safeguard, and it is of no constitutional relevance that
petitioner could later be tried de novo in another court, as he
was entitled to an impartial judge in the first instance. Pp. 59-62.
27 Ohio St. 2d 179, 271 N. E. 2d 757, reversed and remanded.
BRENNAN, .J., delivered the opinion of the Court, in which
BURGER, C. ,J., and Douor,As, STEWART, MARSHALL, BLACKMUN, and
PowELL, .J.J., joined. WHITE, J., filed a dissenting opinion, in which
REHNQUIST, J., joined, post, p. 62.
Bernard A. Berkman argued the cause for petitioner.
With him on the brief was Niki Z. Schwartz.
Franklin D. Eckstein argued the cause for respondent.
With him on the brief was Joseph F. Dush.
MR. JUSTICE BRENNAN delivered the opinion of the
Court.
Pursuant to Ohio Rev. Code Ann. § 1905.01 et seq.
( 1968), which authorizes mayors to sit as judges in cases
of ordinance violations and certain traffic offenses, the
Mayor of Monroeville, Ohio, convicted petitioner of two
traffic offenses and fined him $50 on each. The Ohio
Court of Appeals for Huron County, 21 Ohio App. 2d 17,
58 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
254 N. E. 2d 375 (1969), and the Ohio Supreme Court, 27
Ohio St. 2d 179, 271 N. E. 2d 757 (1971), three justices
dissenting, sustained the conviction, rejecting petitioner's
objection that trial before a mayor who also had responsibilities
for revenue production and law enforcement
denied him a trial before a disinterested and impartial
judicial officer as guaranteed by the Due Process Clause
of the Fourteenth Amendment. We granted certiorari.
404 u. s. 1058 (1972).
The Mayor of Monroeville has wide executive powers
and is the chief conservator of the peace. He is president
of the village council, presides at all meetings, votes
in case of a tie, accounts annually to the council respecting
village finances, fills vacancies in village offices and has
general overall supervision of village affairs. A major
part of village income is derived from the fines, forfeitures,
costs, and fees imposed by him in his mayor's court.
Thus, in 1964 this income contributed $23,589.50 of
total village revenues of $46,355.38; in 1965 it was
$18,508.95 of $46,752.60; in 1966 it was $16,085 of
$43,585.13; in 1967 it was $20,060.65 of $53,931.43; and
in 1968 it was $23,439.42 of $52,995.95. This revenue
was of such importance to the village that when legislation
threatened its loss, the village retained a management
consultant for advice upon the problem.1
1 Ordinance No. 59- 9:
"WHEREAS, the legislation known as the County Court law
passed by the 102nd General Assembly greatly reduces the jurisdictional
powers of Mayor Courts as of January 1, 1960; and
"WHEREAS, such restrictions may place such a hardship upon
law enforcement personnel in this village and surrounding areas as
to endanger the health, welfare and safety of persons residing or
being in our village; and
"WHEREAS, other such provisions of this legislation may cause
such a reduction in revenue to this village that an additional burden
WARD v. VILLAGE OF MONROEVILLE 59
57 Opinion of the Court
Conceding that "the revenue produced from a mayor's
court provides a substantial portion of a municipality's
funds," the Supreme Court of Ohio held nonetheless that
"such fact does not mean that a mayor's impartiality is
so diminished thereby that he cannot act in a disinterested
fashion in a judicial capacity." 27 Ohio St. 2d,
at 185, 271 N. E. 2d, at 761. We disagree with that
conclusion.
The issue turns, as the Ohio court acknowledged, on
whether the Mayor can be regarded as an impartial judge
under the principles laid down by this Court in Tumey
v. Ohio, 273 U. S. 510 (1927). There, convictions for
prohibition law violations rendered by the Mayor of
North College Hill, Ohio, were reversed when it appeared
that, in addition to his regular salary, the Mayor remay
result from increased taxation and/ or curtailment of snvices essential
to the health, welfare and safety of this village; ...
"BE IT ORDAINED BY THE VILLAGE OF [MONROEVILLE]
OHIO:
"Section 1. That the services of the management consulting firm
of Midwest Consultants, Incorporated of Sandusky, Ohio, be employed
to condurt a survey and study to ascertain the extent of the
effects of the County Court Law on law enforcement and loss of
revenue in and to the Village of [Monroeville J, Ohio, so that said
Village can prepare for the future operations of the Village to safeguard
the heath rsic], w.-lfare and safety of its citizens .
Moreover, Monroeville's Chief of Police, appointed by the Mayor,
Ohio Rev. Code Ann.§ i37.15 (Supp. 1971), testified that it was his
regular practice to charge suspects under a village ordinance, rather
than a state statute, whenever a choice existed. App. 9. That policy
must be viewed in light of § 733.40 (1954), which provides that
fines and forfeitures collected by the ~fayor in state cases shall
be paid to the county treasury, whereas fines and forfeitures collected
in ordinance and traffic cases shall be paid into the municipal treasury.
Petitioner asserts that the Mayor conceded at trial that this
policy was carried out under the :'.\fayor's orders. The record lends
itst-lf to this infer.-nce. App. 10-11.
60 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
ceived $696.35 from the fees and costs levied by him
against alleged violators. This Court held that "it
certainly violates the Fourteenth Amendment, and deprives
a defendant in a criminal case of due process of
law, to subject his liberty or property to the judgment
of a court the judge of which has a direct, personal, substantial,
pecuniary interest in reaching a conclusion
against him in his case." Id., at 523.
The fact that the mayor there shared directly in
the fees and costs did not define the limits of the
principle. Although "the mere union of the executive
power and the judicial power in him can not be said to
violate due process of law," id., at 534, the test is whether
the mayor's situation is one "which would offer a possible
temptation to the average man as a judge to forget the
burden of proof required to convict the defendant, or
which might lead him not to hold the balance nice, clear
and true between the State and the accused .. . . " Id.,
at 532. Plainly that "possible temptation" may also exist
when the mayor's executive responsibilities for village
finances may make him partisan to maintain the high
level of contribution from the mayor's court. This, too,
is a "situation in which an official perforce occupies
two practically and seriously inconsistent positions, one
partisan and the other judicial, [and} necessarily involves
a lack of due process of law in the trial of defendants
charged with crimes before him." Id., at 534.
This situation is wholly unlike that in Dugan v. Ohio,
277 U. S. 61 ( 1928), which the Ohio Supreme Court
deemed controlling here. There the Mayor of Xenia,
Ohio, had judicial functions but only very limited executive
authority. The city was governed by a commission
of five members, including the Mayor, which exercised
all legislative powers. A city manager, together with
the commission, exercised all executive powers. In those
circumstances, this Court held that the Mayor's relationWARD
v. VILLAGE OF MONROEVILLE 61
57 Opinion of the Court
ship to the finances and financial policy of the city was
too remote to warrant a presumption of bias toward
conviction in prosecutions before him as judge.
Respondent urges that Ohio's statutory provision, Ohio
Rev. Code Ann. § 2937.20 (Supp. 1971), for the disqualification
of interested, biased, or prejudiced judges is a
sufficient safeguard to protect petitioner's rights. This
argument is not persuasive. First, it is highly dubious
that this provision was available to raise petitioner's
broad challenge to the mayor's court of this village in
respect to all prosecutions there in which fines may be
imposed. The provision is apparently designed only
for objection to a particular mayor "in a specific case
where the circumstances in that municipality might warrant
a finding of prejudice in that case." 27 Ohio St.
2d, at 184, 271 N. E. 2d, at 760 (emphasis added).
If this means that an accused must show special prejudice
in his particular case, the statute requires too much and
protects too little. But even if petitioner might have
utilized the procedure to make his objection, the Ohio
Supreme Court passed upon his constitutional contention
despite petitioner's failure to invoke the procedure.
In that circumstance, see Raley v. Ohio, 360 U. S. 423,
436 (1959), he may be heard in this Court to urge that
the Ohio Supreme Court erred in holding that he had
not established his Fourteenth Amendment claim.
Respondent also argues that any unfairness at the
trial level can be corrected on appeal and trial de novo
in the County Court of Common Pleas. We disagree.
This "procedural safeguard" does not guarantee a fair
trial in the mayor's court; there is nothing to suggest that
the incentive to convict would be diminished by the possibility
of reversal on appeal. Nor, in any event, may the
State's trial court procedure be deemed constitutionally
acceptable simply because the State eventually offers a
defendant an impartial adjudication. Petitioner is en62
OCTOBER TERM, 1972
WHITE, J., dissenting 409 U.S.
titled to a neutral and detached judge in the first instance.
2 Accordingly, the judgment of the Supreme
Court of Ohio is reversed and the case is remanded for
further proceedings not inconsistent with this opinion.
It is so ordered.
MR. JusTICE WHITE, with whom MR. JUSTICE REHNQUIST
joins, dissenting.
The Ohio mayor who judged this case had no direct
financial stake in its outcome. Tumey v. Ohio, 273 U. S.
510 ( 1927), is therefore not controlling, and I would
not extend it.
To justify striking down the Ohio system on its face,
the Court must assume either that every mayor-judge
in every case will disregard his oath and administer
justice contrary to constitutional commands or that this
will happen of ten enough to warrant the prophylactic,
per se rule urged by petitioner. I can make neither assumption
with respect to Ohio mayors nor with respect
to similar officials in 16 other States. Hence, I would
leave the due process matter to be decided on a case-bycase
basis, a question which, as I understand the posture
of this case, is not now before us. I would affirm the
judgment.
1 The question presented on this record is the constitutionality of
the Mayor's participat10n in the adjudication and punishment of a
defendant in a litigated case where he elects to contest the charges
against him. We intimate no view that it would be unconstitutional
to permit a mayor or similar official to serve in essentially a mini~-
terial capacity in a traffic or ordinance violation case to accept a
free and voluntary plea of guilty or nolo contendere, a forfeiture of
collateral, or the like.
GOTTSCHALK v. BENSON
Syllabus
63
GOTTSCHALK, ACTING COMMISSIONER OF
PATENTS v. BENSON ET AL.
CERTIORARI TO THE UNITED STATES COURT OF CUSTOMS
AND PATENT APPEALS
No. 71-485. Argued October 16, 1972-Decided November 20, 1972
Hespondents' method for converting numerical information from
binary-coded decimal numbers into pure binary numbers, for use
in programming conventional general-purpose digital computers
is merely a series of mathematical calculations or mental steps
and does not constitute a patentable "process" within the meaning
of the Patent Act, 35 U. S. C. § 100 (b). Pp. 64-73.
- C. C. P. A. (Pat.) - , 441 F. 2d 682, reversed.
Douous, .J., delivered the opinion of the Court, in whi<-h all
Members joined except STEWART, BLACKIIIUN, and POWELL, .T.T.,
who took no part in the consideration or decision of the ease.
Richard B. Stone argued the cause for petitioner.
With him on the briefs were Solicitor General Gmwold,
Assistant Attorney General Kauper, Acting Assistant Attorney
General Comegys, Howard E. Shapiro, Richard H.
Stern, and S. William Cochran.
Hugh B. Cox argued the cause for respondents. With
him on the brief were Henry P. Sailer, Michael Boudin,
William L. Keefauver, and Robert 0. Nimtz.
Briefs of amici curiae urging reversal were filed by
James M. Clabault and Edward G. Fiorito for Burroughs
Corp.; by Henry L. Han son and D. D. Allegretti for
Honeywell, Inc.; by Lloyd N. Cutler, Ezekiel G. Stoddard,
Deanne C. Siemer, Nichol,as DeB. Katzenbach, and
Elmer W. Galbi for International Business Machines
Corp.; and by Donald J. Gavin for the Business Equipment
Manufacturers Assn.
Briefs of amici curiae urging affirmance were filed by
Sidney Neuman, Tom Arnold, and Jack C. Goldstein for
the American Patent Law Assn.; by Claron N. White
64 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
and Lou-is Robert.wn for the Chicago Bar Assn.; by James
J. Hill and William E. Dominick for the Patent Law
Association of Chicago; by Timothy L. Tilton for Iowa
State University Research Foundation, Inc.; by Michael
I. Rackman for Institutional Net works Corp.; by David J.
Toomey for Whitlow Computer Systems, Inc.; by Virgil
E. Woodcock, Richard E. Kurtz, and Oswald G. Hayes
for Mobil Oil Corp.; by Morton C. Jacobs for the Association
of Data Processing Service Organizations et al.; by
Mr. Jacobs for Applied Data Research, Inc.; and by
Howard J. Marsh for Computer Software Analysts, Inc.,
et al.
MR. JUSTICE DouGLAS delivered the opinion of the
Court.
Respondents filed in the Patent Office an application
for an invention which was described as being related
"to the processing of data by program and more particularly
to the programmed conversion of numerical information"
in general-purpose digital computers. They
claimed a method for converting binary-coded decimal
(BCD) numerals into pure binary numerals. The claims
were not limited to any particular art or technology, to
any particular apparatus or machinery, or to any particular
end use. They purported to cover any use of
the claimed method in a general-purpose digital computer
of any type. Claims 8 and 13 1 were rejected by
the Patent Office but sustained by the Court of Customs
and Patent Appeals, - C. C. P.A. (Pat.)-, 441 F. 2d
682. The case is here on a petition for a writ of certiorari.
405 U. S. 915.
The question is whether the method described and
claimed is a "process" within the meaning of the Patent
Act. 2
1 They are set forth in the Appendix to this opinion.
2 Title 35 u. S. C. § 100 (b) proYides:
"The term 'process' means process, art or method, and includes a
GOTTSCHALK v. BENSON 65
63 Opinion of the Court
A digital computer, as distinguished from an analog
computer, operates on data expressed in digits, solving
a problem bv doing arithmetic as a person would do it
by head and hand.3 Some of the digits are stored as
components of the computer. Others are introduced into
the computer in a form which it is designed to recognize.
The computer operates then upon both new and previously
stored data. The general-purpose computer is
designed to perform operations under many different
programs.
The representation of numbers may be in the form of
a time series of electrical impulses, magnetized spots on
the surface of tapes, drums, or discs, charged spots on
cathode-ray tube s~reens, the presence or absence of
punched holes on paper cards, or other devices. The
method or program is a sequence of coded instructions
for a digital computer.
The patent sought is on a method of programming
a general-purpose digital computer to convert signals
from binary-coded decimal form into pure binary form.
A procedure for solving a given type of mathematical
problem is known as a.n "algorithm." The procedures
set forth in the present claims are of that kind; that is to
say, they are a generalized formulation for programs to
solve mathematical problems of converting one form of
numerical representation to another. From the generic
formulation, programs may be developed as specific
applications.
new use of a known process, machine, manufacture, composition of
matter, or material."
Title 35 U.S. C. § 101 provides:
"Whoever invents or discornrs any new and useful process, machine,
manufacture, or composition of matter, or any new and useful improvement
thereof, may obtain a patent therefor, subject to the
conditions and requirements of this title."
3 See R. Benrey, Understanding Digit:il Computers 4 (1964).
66 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
The decimal system uses as digits the 10 symbols 0,
1, 2, 3, 4, 5, 6, 7, 8, and 9. The value represented
by any digit depends, as it does in any positional system
of notation, both on its individual value and on
its relative position in the numeral. Decimal numerals
are written by placing digits in the appropriate
positions or columns of the numerical sequence, i. e.,
"unit" (10°), "tens" (101 ), "hundreds" (102 ), "thousands"
( 1()3), etc. Accordingly, the numeral 1492 signifies
(lX 103
) + ( 4X102 )+(9X 101
) +(2X 10").
The pure binary system of positional notation uses
two symbols as digits~0 and 1, placed in a numerical
sequence with values based on consecutively ascending
powers of 2. In pure binary notation, what would be
the tens position is the twos position; what would be
hundreds position is the fours position; what would
be the thousands position is the eights. Any decimal
number from O to 10 can be represented in the binary
system with four digits or positions as indicated in the
following table.
Decimal
0
1
2
3
4
5
6
7
8
9
10
Shown as the sum of powers of 2
2• 2" 2' 20
(8) (4) (2) (1)
0 + 0 + 0 + 0
0 + 0 + 0 + 20
0 + 0 + 2' + 0
0 + 0 + 2' + 20
0 + 2' + 0 + 0
0 + 2• + 0 + 2°
0 + 2· + 2' + 0
0 + 2· + 2' + 2"
2' + 0 + 0 + 0
2' + 0 + 0 + 20
2' + 0 + 2' + 0
Pure Binary
0000
0001
0010
0011
- 0100
0101
- 0110
0111
1000
1001
= 1010
The BCD system using decimal numerals replaces the
character for each component decimal digit in the decimal
numeral with the corresponding four-digit binary
GOTTSCHALK v. BENSON 67
63 Opinion of the Court
numeral, shown in the righthand column of the table.
Thus decimal 53 is represented as 0101 0011 in BCD,
because decimal 5 is equal to binary 0101 and decimal 3
is equivalent to binary 0011. In pure binary notation,
however, decimal 53 equals binary 110101. The conversion
of BCD numerals to pure binary numerals can be
done mentally through use of the foregoing table. The
method sought to be patented varies the ordinary arithmetic
steps a human would use by changing the order of
the steps, changing the symbolism for writing the multiplier
used in some steps, and by taking subtotals after
each successive operation. The mathematical procedures
can be carried out in existing computers long in use, no
new machinery being necessary. And, as noted, they can
also be performed without a computer.
The Court stated in Mackay Co. v. Radio Corp., 306
U. S. 86, 94, that " [ w] hile a scientific truth, or the mathematical
expression of it, is not a patentable invention,
a novel and useful structure created with the aid of knowledge
of scientific truth may be." That statement followed
the longstanding rule that "[a]n idea of itself is
not patentable." Rubber-Tip Pencil Co. v. Haward, 20
Wall. 498, 507. "A principle, in the abstract, is a fundamental
truth; an original cause; a motive; these cannot
be patented, as no one can claim in either of them an
exclusive right." Le Roy v. Tatham, 14 How. 156, 175.
Phenomena of nature, though just discovered, mental
processes, and abstract intellectual concepts are not
patentable, as they are the basic tools of scientific and
technological work. As we stated in Funk Bros. Seed Co.
v. Kala Co., 333 U. S. 127, 130, "He who discovers a
hitherto unknown phenomenon of nature has no claim to
a monopoly of it which the law recognizes. If there is to
be invention from such a discovery, it must come from
the application of the law of nature to a new and useful
end." We dealt there with a "product" claim, while the
68 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
present case deals with a "process" claim. But we think
the same principle applies.
Here the "process" claim is so abstract and sweeping
as to cover both known and unknown uses of the BCD
to pure binary conversion. The end use may ( 1) vary
from the operation of a train to verification of drivers'
licenses to researching the law books for precedents and
(2) be performed through any existing machinery or future-
devised machinery or without any apparatus.
In O'Reilly v. Morse, 15 How. 62, Morse was allowed a
patent for a process of using electromagnetism to produce
distinguishable signs for telegraphy. Id., at 111.
But the Court denied the eighth claim in which Morse
claimed the use of "electro magnetism, however developed
for marking or printing intelligible characters,
signs, or letters, at any distances." Id., at 112. The
Court in disallowing that claim said, "If this claim can
!Je maintained, it matters not by what process or machinery
the result is accomplished. For aught that we
now know, some future inventor, in the onward march
of science, may discover a mode of writing or printing
at a distance by means of the electric or galvanic current,
without using any part of the process or combination
set forth in the plaintiff's specification. His invention
may be less complicated-less liable to get out of orderless
expensive in construction, and in its operation. But
yet, if it is covered by this patent, the inventor could not
use it, nor the public have the benefit of it, without the
permission of this patentee." Id., at 113.
In The Telephone Cases, 126 U. S. 1, 534, the Court
explained the Morse case as follows: "The effect of that
decision was, therefore, that the use of magnetism as
a motive power, without regard to the particular process
with which it was connected in the patent, could not be
claimed, but that its use in that connection could."
Bell's invention was the use of electric current to transGOTTSCHALK
v. BENSON 69
63 Opinion of the Court
mit vocal or other sounds. The claim was not "for
the use of a current of electricity in its natural state as
it comes from the battery, but for putting a continuous
current in a closed circuit into a certain specified condition
suited to the transmission of vocal and other sounds,
and using it in that condition for that purpose." Ibid.
The claim, in other words, was not "one for the use of
electricity distinct from the particular process with which
it is connected in his patent." Id., at G35. The patent
was for that use of electricity "both for the magneto and
variable resistance methods." Id., at 538. Bell's claim,
in other words, was not one for all telephonic use of
electricity.
In Corning v. Burden, 15 How. 252, 267-268, the Court
said, "One may discover a new and useful improvement
in the process of tanning, dyeing, etc., irrespective of any
particular form of machinery or mechanical device."
The examples given were the "arts of tanning, dyeing,
making waterproof cloth, vulcanizing India rubber, smelting
ores." Id., at 267. Those are instances, however,
where the use of chemical substances or physical acts,
such as temperature control, changes articles or materials.
The chemical process or the physical acts which transform
the raw material are, however, sufficiently definite
to confine the patent monopoly within rather definite
bounds.
Cochrane v. Deener, 94 U. S. 780, involved a process
for manufacturing flour so as to improve its quality.
The process first separated the superfine flour and then
removed impurities from the middlings by blasts of air,
reground the middlings, and then combined the product
with the superfine. Id., at 785. The claim was not limited
to any special arrangement of machinery. Ibid.
The Court said,
"That a process may be patentable, irrespective of
the particular form of the instrumentalities used,
70 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
cannot be disputed. If one of the steps of a process
be that a certain substance is to be reduced to a
powder, it may not be at all material what instrument
or machinery is used to effect that object,
whether a hammer, a pestle and mortar, or a mill.
Either may be pointed out; but if the patent is not
confined to that particular tool or machine, the use
of the others would be an infringement, the general
process being the same. A process is a mode of
treatment of certain materials to produce a given
result. It is an act, or a series of acts, performed
upon the subject-matter to be transformed and reduced
to a different state or thing." Id., at 787-788.
Transformation and reduction of an article "to a different
state or thing" is the clue to the patentability of a
process claim that does not include particular machines.
So it is that a patent in the process of "manufacturing
fat acids and glycerine from fatty bodies by the action
of water at a high temperature and pressure" was sustained
in Tilghman v. Proctor, 102 U. S. 707, 721. The
Court said, "The chemical principle or scientific fact upon
which it is founded is, that the elements of neutral fat
require to be severa.lly united with an atomic equivalent
of water in order to separate from each other and become
free. This chemical fact was not discovered by Tilghman.
He only claims to have invented a particular
mode of bringing about the desired chemical union between
the fatty elements and water." Id., at 729.
Expanded Metal Co. v. Brad/Md, 214 U. S. 366, sustained
a patent on a "proce~s" for expanding metal. A
process "involving mechanical operations, and producing
a new and useful result," id., at 385-386, was held to be
a patentable process, process patents not being limited to
chemical action.
Smith v. Snow, 294 U.S. 1, and Waxham v. Smith, 294
U. S. 20, involved a process for setting eggs in staged inGOTTSCHALK
v. BENSON 71
63 Opinion of the Court
cubation and applying mechanically circulated currents
of air to the eggs. The Court, in sustaining the function
performed (the hatching of eggs) and the means or
process by which that is done, said:
"By the use of materials in a particular manner
he secured the performance of the function by a
means which had never occurred in nature, and had
not been anticipated by the prior art; this is a
patentable method or process. . . . A method, which
may be patented irrespective of the particular form
of the mechanism which may be availed of for carrying
it into operation, is not to be rejected as 'functional,'
merely because the specifications show a
machine capable of using it." 294 U. S., at 22.
It is argued that a process patent must either be tied
to a particular machine or apparatus or must operate to
change articles or materials to a "different state or thing."
We do not hold that no process patent could ever
qualify if it did not meet the requirements of our prior
precedents. It is said that the decision precludes a patent
for any program servicing a computer. We do not
so hold. It is said that we have before us a program for
a digital computer but extend our holding to programs
for analog computers. \Ve have, ho\.vever, made clear
from the start that we deal with a program only for
digital computers. It is said we freeze process patents
to old technologies, leaving no room for the revelations
of the new, onrushing technology. Such is not our purpose.
What we come down to in a nutshell is the
following.
It is conceded that one may not patent an idea. But
in practical effect that would be the result if the formula
for converting BCD numerals to pure binary numerals
were patented in this case. The mathematical formula
involved here has no substantial practical application
except in connection with a digital computer, which
72 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
means that if the judgment below is affirmed, the patent
would wholly pre-empt the mathematical formula and
in practical effect would be a patent on the algorithm
itself.
It may be that the patent laws should be extended to
cover these programs, a policy matter to which we are
not competent to speak. The President's Commission
on the Patent System 4 rejected the proposal that these
programs be patentable: 5
"Uncertainty now exists as to whether the statute
permits a valid patent to be granted on programs.
Direct attempts to patent programs have been rejected
on the ground of nonstatutory subject matter.
Indirect attempts to obtain patents and avoid the
rejection, by drafting claims as a process, or a machine
or components thereof programmed in a given
manner, rather than as a program itself, have confused
the issue further and should not be permitted.
"The Patent Office now cannot examine applications
for programs because of a lack of a classification
technique and the requisite search files. Even
if these were available, reliable searches would not
be feasible or economic because of the tremendous
volume of prior art being generated. Without this
search, the patenting of programs would be tantamount
to mere registration and the presumption of
validity would be all but nonexistent.
"It is noted that the creation of programs has
undergone substantial and satisfactory growth in the
absence of patent protection and that copyright protection
for programs is presently available."
4 "To Promote the Progress of ... Useful Arts," Report of the
President's Commission on the Patent System ( 1966).
5 ld., at 13.
GOTTSCHALK v. BENSON 73
63 Appendix to opinion of the Court
If these programs are to be patentable,0 considerable
problems are raised which only committees of Congress
can manage, for broad powers of investigation are needed,
including hearings which canvass the wide variety of
views which those operating in this field entertain. The
technological problems tendered in the many briefs before
us 1 indicate to us that considered action by the Congress
is needed.
Reversed.
MR. JusTICE STEWART, MR. JUSTICE BLACKMUN, and
MR. JusTICE POWELL took no part in the consideration
or decision of this case.
APPENDIX TO OPINION OF THE COURT
Claim 8 reads:
"The method of converting signals from binary coded
decimal form into binary which comprises the steps of
" ( 1) storing the binary coded decimal signals in a reentrant
shift register,
"(2) shifting the signals to the right by at least three
places, until there is a binary 'l' in the second position
of said register,
"(3) masking out said binary 'l' in said second position
of said register,
" ( 4) adding a binary '1' to the first position of said
register,
" ( 5) shifting the signals to the left by two positions,
6 See Wild, Computer Program Protection: The Need to Legislate
a Solution, 54 Corn. L. Rev. 586, 604-609 (1969); Bender, Computer
Programs: Should They Be Patentable?, 68 Col. L. Rev. 241
(1968); Buckman, Protection of Proprietory Interest in Computer
Programs, 51 J. Pat. Off. Soc. 135 (1969).
1 A micl.l.'! briefs of 14 interested groups have been filed on the
merits in this case.
74 OCTOBER TERM, 1972
Appendix to opinion of the Court 409 U.S.
"(6) adding a 'l' to said first position, and
"(7) shifting the signals to the right by at least three
positions in preparation for a succeeding binary 'l' in the
second position of said register."
Claim 13 reads:
"A data processing method for converting binary coded
decimal number representations into binary number representations
comprising the steps of
"(1) testing each binary digit position '1,' beginning
with the least significant binary digit position, of the
most significant decimal digit representation for a binary
'O' or a binary '1';
"(2) if a binary '0' is detected, repeating step (1) for
the next least significant binary digit position of said
most significant decimal digit representation;
"(3) if a binary 'l' is detected, adding a binary 'l' at
the (i+l)th and (i+3)th least significant binary digit
positions of the next lesser significant decimal digit representation,
and repeating step ( 1) for the next least
significant binary digit position of said most significant
decimal digit representation;
" ( 4) upon exhausting the binary digit positions of said
most significant decimal digit representation, repeating
steps ( 1) through ( 3) for the next lesser significant
decimal digit representation as modified by the previous
execution of steps (1) through (3); and
" ( 5) repeating steps ( 1) through ( 4) until the second
least significant decimal digit representation has been so
processed."
JOHNSON v. NEW YORK STATE EDUCATION DEPT. 75
Per Curiam
JOHNSON ET AL. V. NEW YORK STATE EDUCATION
DEPARTMENT ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
~o. 71-5685. Argued November 8, 1972-Decided
November 20, 1972
449 F. 2d 871, vacated and remanded to the District Court to detrrmine
whether case has become moot.
Carl Jay Nathanson argued the cause and filed briefs
for petitioners.
Joel Lewittes, Assistant Attorney General of New York,
argued the cause for respondents. With him on the brief
were Louis J. Lefkowitz, Attorney General, Samuel A.
Hirshowitz, First Assistant Attorney General, and Iris A.
Steel, Assistant Attorney General. Henry A. Weinstein
filed a brief for respondent the Board of Education, Union
Free School District No. 27.
Briefs of amici curiae were filed by J. Harold Flannery
for the Center for Law and Education, Harvard University,
et al., and by John E. Coon~ for the American Federation
of Teachers et al.
PER CuRIAM.
We granted certiorari to review the judgment of the
United States Court of Appeals for the Second Circuit,
449 F. 2d 871 (1971), affirming the District Court's dismissal
of petitioners' complaint challenging the constitutionality
of New York Education Law § 701 et seq.
(1971). 405 U. S. 916 (1972). However, respondents'
brief states that " [ o] n May 3, 1972, the qualified voters
of the respondent school district elected by majority
vote to assess a tax for the purchase of all textbooks
76 OCTOBER TERM, 1972
MARSHALL, J., concurring 409 u. s.
for grades one through six in the schools of the district."
In light of this fact, and given the suggestion
at oral argument that the books themselves have a
life expectancy of five years, the judgment is vacated
and the case is remanded to the United States District
Court for the Eastern District of New York to determine
whether this case has become moot.
MR. JusTICE MARSHALL, concurring.
While I join the Court's decision, I feel obliged to
state somewhat more fully what I view to be the reasons
for and meaning of this remand.
The New York statutory scheme here under attack
effectively denies textbooks to indigent elementary public
school children unless the voters of their district
approve a tax especially for the purpose of providing
the books.1 Petitioners who are indigent recipients of
public assistance allege, inter al-ia, that the statute, as
applied to their children, creates a wealth classification
violative of the Equal Protection Clause.
When this action was initiated in September 1970,
respondent Board of Education of Union Free School
District No. 27 was not providing free textbooks to
petitioners' children, although textbooks were available
upon the payment of a fee, which petitioners were unable
to afford.2 The practical consequence of this situation
was that indigent children were forced to sit " 'bookless,
side by side in the same classroom with other more
1 Under New York la.w, lo ca.I school districts are required to loan
textbooks free to students in grade.s seven through 12. N. Y.
Educ. Law § 701 (1971). No such provision is made for children
in grades one through six; free textbooks are to be made
available to children in those grades only upon the vote of the
majority of the district's eligible voters to levy a tax to provide
funds for the purchase of the textbooks, N. Y. Educ. La.w § 703
(1971).
2 The fee imposed was $7.50 per child.
JOHNSON v. NEW YORK STATE EDUCATION DEPT. 77
75 MARSHALL, J., concurring
wealthy children learning with purchase [ d] textbooks
[ thus engendering] a widespread feeling of inferiority and
unfitness in poor children [which] is psychologically,
emotionally and educationally disastrous to their well
being.' " 3 Indeed, an affidavit submitted to the District
Court indicated that in at least one case, an indigent
child was told that "he will receive an 'F' for [ each]
day because he is without the required text-books.
When the other pupils in the class read from text-books,
the teacher doesn't let him share a book with another
pupil, instead she gives him paper and tells him to
draw." 4 Despite this evidence, the Court of Appeals,
with one Judge dissenting, affirmed the District Court's
dismissal of the complaint. We granted certiorari.5
This case obviously raises questions of large constitutional
and practical importance. For two full school
years children in elementary grades were denied access
to textbooks solely because of the indigency of their
families while these questions were being considered by
the lower courts. After we had granted certiorari, however,
a majority of the voters in respondent school
district finally agreed to levy a tax for the purchase of
textbooks for the elementary grades, and we are told
that free textbooks have now been provided.
I join in the Court's decision to remand the case so
that the District Court can assess the consequences of
this new development. I do so because I believe that
the Court acts out of a proper sense of our constitutional
duty to decide only live controversies, and because I
believe that the District Judge can best resolve the
factual issues upon which proper resolution of the mootness
question depends. Certainly, our mere act of re-
3 449 F. 2d 871, 873 (CA2 1971) (quoting with approval petitioners'
allegations).
4 Affidavit of Carl Jay Nathanson, App. 28.
5 405 U.S. 916 (1972).
78 OCTOBER TERM, 1972
MARSHALL, J., concurring 409 u. s.
manding in no way suggests any particular view as
to whether this case is in fact moot. That decision is
for the District Judge in the first instance.
In reaching his decision, the District Judge will, of
course, have to take into account the standards that
we have previously articulated for resolving mootness
problems. On the one hand, "[a] case [may be] moot
if subsequent events [make] it absolutely clear that the
allegedly wrongful behavior could not reasonably be
expected to recur." United States v. Concentrated
Phosphate Export Assn., 393 U.S. 199, 203 (1968). See
also SEC v. Medical Committee for Human Rights, 404
U. S. 403 (1972). But on the other, "[m]ere voluntary
cessation of allegedly illegal conduct does not moot a case;
if it did, the courts would be compelled to leave '[t]he
defendant ... free to return to his old ways.'" United
States v. Concentrated Phosphate Export Assn., supra,
at 203. In the context of constitutional questions involving
electoral processes, these principles have generally
found expression in the proposition that a case
is not moot if " [ t lhe problem is ... 'capable of repetition,
yet evading review.'" Moore v. Ogilvie, 394 U. S.
814, 816 (1969).<l
In applying these standards to this case, the District
Judge should ascertain the nature of the textbook problem
for the elementary grades in respondent school
district. Respondents have not suggested that the problem
has been resolved once and for all by the recent
purchases. To be sure, they do contend that the new
textbooks have a useful life of five years. But does
this adequately account for destruction by extraordinary
6 These prior statements provide only rough guidance in thi,,
case, particularly since we deal here with an electoral process that
is employed only on an irregular basis as new books are needed.
Nevertheless, I think they are enlightening as to the appropriate
inquiries for the District Court to make on remand.
JOHNSON v. NEW YORK STATE EDUCATION DEPT. 79
75 MARSHALL, J., concurring
events, for loss due to theft, and for obsolescence due to
curriculum changes? And, even accepting the five-year
figure, does this make the problem a non-recurring one
insofar as the continuing viability of this litigation is
concerned?
The District Judge should also investigate the posture
in which the legal issues presented by this case might
again arise when the books begin to wear out. Will the
respondent school district delay holding a new election
until the new books are actually needed? Is it possible
that litigation would again have to proceed for an entire
school year, or more, while indigent children are deprived
of books, before the constitutionality of that deprivation
is finally determined?
These seem to me essential questions for the District
Court to consider on remand in disposing of the issue of
mootness.1
7 Nor should the District Court overlook the fact that this is
a class action brought by petitioners "on their own behalf and on
behalf of their children and all other persons similarly aggrieved."
Even if the case is now moot as to these particular petitioners,
there may be other members of the class who remain aggrieved
and thus the action may remain a viable one, see, e. g., Cypress v.
Newport News General & Nonsectarian Hospital Assn., 375 F. 2d
648, 657-658 (CA.4 1967); Gatling v. Butler, /52 F. R. D. 389,
394-395 (Conn. 1971). Cf. Brockington v. Rhodes, 396 U.S. 41, 43
(1969).
80 OCTOBER TERM, 1972
Per Curiam 409 u. s.
UNITED STATES v. JIM ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF UTAH
No. 71-1509. Decided November 20, 1972*
A statute enlarged the class of beneficiaries of certain royalties from
oil and gas leases in the Aneth Extension of the Navajo Indian
Reservation in Utah by providing that the funds be used to
benefit all Navajo Indians residing in San Juan County rather
than only those residing in the Aneth Extension, as provided in
an earlier statute. Held: As the earlier statute did not create
constitutionally protected property rights in the residents of the
Aneth Extension, the statutory change did not constitute a taking
of property without just compensation.
Reversed.
PER CURIAM.
The motion of the Navajo Tribe of Indians for leave
to file a brief as amicus curiae in No. 71-1509, is granted.
These cases are here on appeal from a judgment of the
District Court for the District of Utah that declared
an Act of Congress to be unconstitutional. Jurisdiction
in this Court is conferred by 28 U. S. C. §§ 1252 and
2101 (a).
In 1933, the Congress withdrew certain lands in Utah,
known as the "Aneth Extension," from the public domain
and added them to the Navajo Reservation. Though no
oil or gas was believed to be located on these lands, it
was provided that should such mineral resources be
produced in commercial quantities, "37½ per centum of
the net royalties accruing therefrom derived from tribal
leases shall be paid to the State of Utah: Provided, That
said 37½ per centum of said royalties shall be expended
by the State of Utah in the tuition of Indian children
*Together with No. 71-1612, Utah et al. v. Jim et al., on appeal
from the same court.
UNITED STATES v. JIM 81
80 Per Curiam
in white schools and/or in the building or maintenance
of roads across the lands described in section 1 hereof,
or for the benefit of the Indians residing therein." 47
Stat. 1418. The remaining 62%% of the royalties generated
by any such tribal mineral leases were, by implication,
to go to the Navajo tribe.
After the passage of the Act, oil and gas were discovered
on the Aneth Extension, and royalties were divided
pursuant to the statute. The State of Utah created
an Indian Affairs Commission to manage and expend
the funds received by the State under the Act. As time
went on, the language of the 1933 Act came to create administrative
problems regarding the expenditure of the
funds channeled through the State. A report of the
Senate Committee on Interior and Insular Affairs noted
in 1967 that the word "tuition" in the 1933 Act had
created uncertainty as to the breadth of the educational
program the State was authorized to finance from the
royalty funds. The report also noted a difficulty in discerning
precisely who was properly a beneficiary of the
funds, since "many Navajo families do not live permanently
within the lands set aside in 1933, but move
back and forth between this area and other locations."
S. Rep. No. 710, 90th Cong., 1st Sess., 2 (1967).
To make the administration of these funds more flexible
and to spread the benefits of the royalties more broadly
among the Navajo community, the Congress enacted a
statute in 1968 that directed the State to expend the
37½ % of royalties "for the health, education, and general
welfare of the Navajo Indians residing in San Juan
County." 82 Stat. 121. This statutory change expanded
the pool of beneficiaries substantially, and a class action
was brought on behalf of the residents of the Aneth Extension,
seeking inter alia a declaration that the statute
was an unconstitutional taking of property without just
compensation. The District Court concluded that the
82 OCTOBER TERM, 1972
Per Curiam 409 u. s.
1933 Act vested certain property rights in the plaintiffs,
and held the 1968 Act, with its changed pool of beneficiaries,
to be unconstitutional.1
The judgment of the District Court is in error. Congress
in 1933 did not create constitutionally protected
property rights in the appellees. The Aneth Extension
was added to a tribal reservation, and the leases which
give rise to mineral royalties are tribal leases. It is settled
that " [ w l hatever title the Indians have is in the
tribe, and not in the individuals, although held by the
tribe for the common use and equal benefit of all the
members." Cherokee Nation v. Hitchcock, 187 U.S. 294,
307; Delaware Indians v. Cherokee Nation, 193 U.S. 127,
136. To be sure, the 1933 Act established a pattern of
distribution which benefited the appellees more than
other Indians on the Navajo Reservation.2 But it was
well within the power of Congress to alter that distributional
scheme." In Gritts v. Fisher, 224 U. S. 640, this
Court approved a congressional enlargement of the pool
of Indians who were to benefit from a distribution of
tribal property. There, too, an earlier statute had established
a more limited entitlement.
"But it is said that the act of 1902 contemplated
that they [ the beneficiaries under the first enactment]
alone should receive allotments and be the
participants in the distribution of the remaining
lands, and also of the funds, of the tribe. No doubt
1 The decision of the District Court is unreported.
2 While the 1933 Act remained in effect, the District Court properly
insisted that the Utah State Indian Affairs Commission comply
with the statutory formula for disbursements. See Sakezzie v. Utah
Indian Affairs Comm'n, 198 F. Supp. 218 (declaratory judgment);
215 F. Supp. 12 (supplemental relief).
3 We intimate no view as to the rights a tribe might have if Congress
were to deprive it of the value of mineral royalties generated
by tribal lands.
80
UNITED STATES v. JIM 83
DouGLAS, J., dissenting
such was the purport of the act. But that, in our
opinion, did not confer upon them any vested right
such as would disable Congress from thereafter making
provision for admitting newly born members of
the tribe to the allotment and distribution. The
difficulty with the appellants' contention is that it
treats the act of 1902 as a contract, when 'it is only
an act of Congress and can have no greater effect.'
... It was but an exertion of the administrative
control of the Government over the tribal property
of tribal Indians, and was subject to change by
Congress .... " Id., at 648.
Congress has not deprived the Navajo of the benefits
of mineral deposits on their tribal lands. It has merely
chosen to re-allocate the 37%% of royalties which flow
through the State in a more efficient and equitable manner.
This was well within the power of Congress to do.
As no "property," in a Fifth Amendment sense, was conferred
upon residents of the Aneth Extension by the 1933
Act, no violation of the Fifth Amendment was effected
by the 1968 legislation. The judgment of the District
Court is
Reversed.
MR. JusTICE DouGLAs, dissenting.
Plaintiffs below are a class of Indians with a membership
of 1,500. They are a mixture of Navajo and Piute
and live in an area of the Navajo Reservation called the
Aneth Extension, made part of that reservation in a 1933
Act of Congress. 47 Stat. 1418. In 1968 Congress
amended that Act, 82 Stat. 121, and the District Court
for the District of Utah declared the amendment
unconstitutional.
Prior to 1933 the Extension was part of the public
lands of the United States. The area was occupied by
the direct ancestors of the appellees.
84 OCTOBER TERM, 1972
DouGLAS, J., dissenting 409 u. s.
The Indians in the Aneth Extension number about
1,500 people who are primitive Navajos with some mixture
of Piute blood. See Sakezzie v. Utah Indian Affairs
Comm.'n_, 198 F. Supp. 218, 220. They live in a remote
and relatively inaccessible area with an average
annual income per family of $240. Ibid. The Aneth
Extension is in San Juan County and the 1933 Act
stated: "[N]o further allotments of lands to Indians on
the public domain shall be made in San Juan County,
Utah, nor shall further Indian homesteads be made in
said county."
The white man was unconcerned about this domain
until oil was discovered; and then he became quite active.
By June 30, 1970, the royalties owing the Aneth Extension
Indians had increased to $7,039,022.32. Of this,
$78,000 was used to pipe water from the Aneth Extension
to the adjoining lands of a white man, an "improvement"
that only incidentally aided the resident Indians.
Another $27,000 of Indian funds was spent for the construction
of an airport and connecting road, which substantially
benefited a white man's private dude ranch
operation. Some $10,000 or more was expended for administrative
purposes by Utah. 198 F. Supp., at 221.
When this suit was started, additional expenditures were
about to be made: $175,000 to a federal agency to locate
isolated water springs on the Aneth Extension and
$500,000 to build a hard-surfaced road outside the boundaries
of the Extension.
These primitive Navajos wanted the money used to
purchase high-elevation ranges where they might have
summer grazing for the livestock and thus realize a roundthe-
year livestock operation. Judge Christensen found
that members of the Aneth Extension were the sole beneficiaries
of the fund and that it should be administered
with their wishes in mind.
UNITED STATES v. JIM 85
80 DouGLAS, J., dissenting
But there are tensions and conflicts between these
primitive Navajos who live on the Aneth Extension and
other members of the tribe who live elsewhere. 198 F.
Supp., at 221.
The State Commission did not comply with the District
Court's order but sponsored legislation to extend the
benefits of the fund to other Indians.' Judge Christensen
ruled again that the fund was solely for the benefit of
members of the Aneth Extension. Sakezzie v. Utah State
Indian Affairs Comm'n, 215 F. Supp. 12. Neither opinion
was appealed. But the State Commission promoted
legislation to extend the benefits of the 1933 Act to other
Indians. Id., at 20.
The problems the Commission had in administering
the fund reached Congress and in 1968 the contested
amendment was passed. 82 Stat. 121. This
amendment indicates that money must be used by the
State of Utah "for the health, education, and general
welfare of the Navajo Indians residing in San Juan
County" and that "Contribution may be made to projects
and facilities within said area that are not exclusively
for the benefits of the beneficiaries hereunder in proportion
to the benefits to be received therefrom by said
beneficiaries, as may be determined by the State of
Utah .... " Ibid. (Emphasis added.)
The 1933 Act gave title to the land and right to the
fund, not to the tribe of the Navajo, but to the Aneth
1 The Act admitting Utah to the Union provided:
"That the people inhabiting said proposed State do agree and declare
that they forever disclaim all right and title to the unappropriated
public lands lying within the boundaries thereof; and to all
lands lying within said limits owned or held by any Indian or Indian
tribes; and that until the title thereto shall have been extinguished
by the United States, the same shall be and remain subject to the
disposition of the United States, and said Indian lands shall remain
under the absolute jurisdiction and control of the Congress of the
United States." 28 Stat. 108.
86 OCTOBER TERM, 1972
DouGLAS, J., dissenting 409 U.S.
community.2 I do not believe that under the circumstances
of this case Congress had the power to expand
the cla:::s of beneficiaries to include the whole tribe.
The occupants of the Extension have been a separate
community for many generations. Their claim
of right by continuous possession precedes the transfer
of title by the United States Government. Congress
made provision for the Secretary of the Interior to
place other tribes on the land and, if he did, their claim
would be based on territory, not membership. Since the
rights were vested in those who lived on the Aneth
Extension, I do not see how they can be extended to
outsiders.
In Gritts v. Fisher, 224 U. S. 640, the Court upheld the
power of Congress to expand the beneficiaries of certain
Indian land to the children of those who already enjoyed
those rights. Here the expansion is not limited to those
of the same blood line. But, more important, Congress
had a different legal relation to the Cherokees than it
does to the appellees. " [ TJ he members of this tribe were
wards of the United States, which was fully empowered,
whenever it seemed wise to do so, to assume full control
2 That Act (47 Stat. 1418), after describing the Aneth Extension
by metes and bounds, provided that those public lands "be, and the
same are hereby, permanently withdrawn from all forms of entry
or disposal for the benefit of the Navajo and such other Indians as
the Secretary of the Interior may see fit to settle thereon: Provided,
That no further allotments of lands to Indians on the public domain
shall be made in San Juan County, Utah, nor shall further Indian
homesteads be made in said county under the Act of July 4, 1884
(23 Stat. 96; U. S. C., title 43, sec. 190). Should oil or gas be produced
in paying quantities within the lands hereby added to the
Navajo Reservation, 37½ per centum of the net royalties accruing
therefrom derived from tribal leases shall be paid to the State of
Utah: Provided, That said 37½ per centum of said royalties shall be
expended by the State of Utah in the tuition of Indian children in
white schools and/ or in the building or maintenance of roads across
the lands described in section 1 hereof, or for the benefit of the
Indians residing therein."
UNITED STATES v. JIM 87
80 DOUGLAS, J., dissenting
over them and their affairs, to determine who were
such members, to allot and distribute the tribal lands
and funds .... " Id., at 642. The 1933 Act states
that the lands "are hereby, permanently withdrawn
from all forms of entry or disposal for the benefit of
the Navajo and such other Indians as the Secretary
of the Interior may see fit to settle thereon." 47 Stat.
1418. That would seem to freeze the existing legal
rights in that area of the Aneth Extension to the inhabitants.
The legal effect seems like a disclaimer on
the part of the United States of any right in either the
land or the minerals. It is difficult for me to see how
Congress has power to change the scheme without payment
of just compensation. After all, Indians are beneficiaries
of the Due Process Clause of the Fifth Amendment.
[)nited States v. Creek ,Yation, 295 'C'. S. 103;
Shoshone Tribe of Indians v. United States, 299 U.S. 476.
They too are people, not sheep or cattle that can be given
or denied whatever their overseer decrees.
Indians are also beneficiaries of the Just Compensation
Clause of the Fifth Amendment. Chippewa Indians
of Minnesota v. United States, 305 U. S. 479;
[}nited States v. Klamath and Moadoc Tribes, 304 U. S.
119; Sioux Tribe of Indians v. United States, 316 U. S.
317. When there is a taking of Indian lands, the
compensation must take into account the mineral rights
which are part of the lands. United States v. Shoshone
Tribe of Indians, 304 U. S. 111. What then constitutes
a taking? The majority finds no taking because ownership
already existed in the Navajo tribe. The 1933 Act
states, however, that all lands are "permanently withdrawn
from all forms of entry or disposal for the benefit
of the Navajo and such other Indians as the Secretary
of the Interior may see fit to settle thereon," 47 Stat.
1418. That Act plainly indicates that only those residing
on that tract, not the tribe as a whole, were the
beneficiaries.
88 OCTOBER TERM, 1972
DouGLAS, J., dissenting 409 U.S.
If the royalty granted by the 1933 Act had been to the
Standard Oil Co. or any other producer of oil, no one
would dare say that the royalty could be assigned by a
subsequent Congress to an oil consortium without payment
of just compensation. Whenever we have made
grants of public lands or interests therein to Indians
the Court has held that the fact that Indians are wards
and the United States a guardian does not make the
Indian title defeasible. The Court in Lane v. Pueblo of
Santa Rosa, 249 U. S. 1101 113, held that if the United
States were allowed to take lands from Indians, " [ t] hat
would not be an exercise of guardianship, but an act of
confiscation."
In United States v. Creek Nation, 295 U. S., at 109-
110, the Court said:
"The tribe was a dependent Indian community under
the guardianship of the United States, and therefore
its property and affairs were subject to the control
and management of that government. But this
power to control and manage was not absolute.
While extending to all appropriate measures for protecting
and advancing the tribe, it was subject to
limitations inhering in such a guardianship and to
pertinent constitutional restrictions. It did not enable
the United States to give the tribal lands to
others, or to appropriate them to its own purposes,
without rendering, or assuming an obligation to
render, just compensation for them .... "
The present cases are close to Shoshone Tribe of Indians
v. United States, 299 U. S. 476, where Congress
repeatedly put Arapahoes on Shoshone lands acquired
under a treaty. This Court, speaking through Mr. Justice
Cardozo, allowed damages to the Shoshones:
"Confusion is likely to result from speaking of the
wrong to the Shoshones as a destruction of their
80
UNITED STATES v. JIM 89
DouGLAS, J ., dissenting
title. Title in the strict sense was always in the
United States, though the Shoshones had the treaty
right of occupancy with all its beneficial incidents.
. . . What those incidents are, it is needless
to consider now. . . . The right of occupancy is the
primary one to which the incidents attach, and division
of the right with strangers is an appropriation
of the land pro tanto, in substance, if not in form."
Id., at 496.
And quoting from United States v. Cook, 19 Wall. 591,
Mr. Justice Cardozo added,
"The right of the Indians to the occupancy of the
lands pledged to them, may be one of occupancy
only, but it is 'as sacred as that of the United States
to the fee.'" Id., at 497.
What power remains in Congress after the express
purpose of the Act "permanently [to] withdraw" the
lands from disposal?
Public lands are usually subject to disposition by
patent and upon its issuance, control over the transaction
ceases and the patent can only be set aside by judicial
proceedings in the courts. Michigan Land & Lumber
Co. v. Rust, 168 U. S. 589; Moore v. Robbins, 96 U. S.
530. Thus, when Congress passed legislation giving
public lands to the railroads, it was considered a contract
which could not be broken by Congress when it sought
to use the lands as a water-power site, Payne v. Central
Pacific R. Co., 255 U. S. 228; nor could the Secretary
reclaim the property. United States v. Northern Pacific
R. Co., 256 U. S. 51; Santa Fe Pacific R. Co. v. Fall,
259 U. S. 197, 199. An entryman on a homestead claim
does not achieve title until certain time and work conditions
are met. 43 U. S. C. §§ 161- 165. Yet, during
this period he has the right to exclusive possession and
use, unless the patent was secured by fraud. Patents
90 OCTOBER TERM, 1972
DouGLAS, J., dissenting 409U. S.
are not issued in oil and gas exploration but leases
are. 30 U. S. C. § 226. But that fact does not affect the
power to cancel the leases. That can only be done by a
failure of the lessee to comply with the lease, the statute,
and regulations. 30 U. S. C. § 188. Pan American
Petroleum Corp. v. Pierson, 284 F. 2d 649.
Until lands are patented, title remains in the United
States. Yet even before a patent issues the claims are
"valid against the United States if there has been a
discovery of mineral within the limits of the claim, if
the lands are still mineral, and if other statutory requirements
have been met." Best v. Humboldt Mining Co.,
371 u. s. 334, 336.
The devices for doing the Indians in, when it comes
to royalties in gas or oil lands, are numerous. See White
v. Sinclair Prairie Oil Co., 139 F. 2d 103. But the
owners of oil and gas interests ( whether those interests
be legal or equitable) normally have an interest separate
and apart from the land where the oil and gas are discovered.
See Lane v. Hughes, 228 S. W. 2d 986; 3
E. Kuntz, Oil and Gas, cc. 38 and 42 (1967); V. Kulp,
Oil and Gas Rights § 10.36 et seq. (1954). It is strange
law, indeed, when the guardian (the United States) is
allowed to do in the wards (the Indians) by depriving
them of their equitable interest in the oil royalties which
had been granted or by reducing their share of the
royalties granted.
The problems of this case are typical of those that
have plagued the Indians from the beginning. We should
put the cases down for oral argument to make certain
that these primitive Navajos receive the full benefit of
the law.
EVCO v. JONES 91
Per Curiam
EVCO, DBA EVCO INSTRUCTIONAL DESIGNS v.
JONES, COMMISSIONER OF BUREAU OF
REVENUE OF NEW MEXICO, ET AL.
CERTIORARI TO THE COURT OF APPEALS OF NEW MEXICO
No. 71-857. Argued November 8, 1972-Decided December 4, 1972
Proeeeds from transactions whereby petitioner creates and designs
reproducible instructional materials in New Mexico for delivery
under contract to out-of-state clients, which the state court found
involved sales of tangible personal property and not services
performed in New Mexico, may not be subjected to New Mexico's
gross receipts tax, the imposition of which upon such procerds
constitutes an impermissible burden on interstate commerce.
83 N. M. 110, 488 P. 2d 1214, reversed.
Kendall 0. Schlenker argued the cause for petitioner.
With him on the briefs was James M. Parker.
John C. Cook, Assistant Attorney General of New
Mexico, argued the cause for respondents. With him on
the brief was David L. Norvell, Attorney General.
PER CumAM.
The petitioner, Evco, is a New Mexico corporation
that employs writers, artists, and draftsmen to create and
design instructional programs. It develops an educational
idea into a finished product that generally consists
of reproducible originals of books, films, and magnetic
audio tapes. Typical of its contracts is Evco's agreement
with the Department of Agriculture to develop cameraready
copies of programmed textbooks, notebooks, and
manuals to be used in an orientation course for forest
engineers. Evco's contracts are negotiated and entered
into outside New Mexico; it creates the reproducible
originals in New Mexico, and then delivers them to its
out-of-state clients. The customers in turn use the orig92
OCTOBER TERM, 1972
Per Curiam 409 U.S.
inals to publish however many books and manuals are
needed to implement the instructional program.
The Commissioner of Revenue for New Mexico levied
the State's Emergency School Tax and its Gross Receipts
Tax on the total proceeds Evco received from these contracts.
1 The company appealed this assessment to the
Court of Appeals of New Mexico, arguing that these
taxes on out-of-state sales imposed an unconstitutional
burden on interstate commerce in violation of Art. I, § 8,
of the Constitution. That court found that though the
taxes were imposed on the proceeds of out-of-state sales
of tangible personal property, rather than on the receipts
from sales of services, such taxes were not an unconstitutional
burden on commerce. 81 N. M. 724, 472 P. 2d
987.2 The Supreme Court of New Mexico declined to
review the judgment.
In his brief in opposition to the petition for certiorari,
which sought our review of that judgment, the Attorney
General of New Mexico conceded that the State could
not tax the receipts from sales of tangible personal property
outside the State. We granted certiorari, vacated
the judgment, and remanded the case to the Court of
Appeals for reconsideration in light of the position taken
by the Attorney General. 402 U. S. 969.
1 Taxes were assessed for the period January 1, 1966, through
December 31, 1968. From January 1, 1966, through June 30, 1967,
the petitioner's receipts were subject to the Emergency School Tax
Act. N. M. Stat. Ann. §§ 72-16-2 to 72-16-19, 1953 Compilation,
repealed by N. M. Laws 1966, c. 47, § 22. From ,July 1, 1967,
through December 31, 1968, the remainder of the taxable period,
Evco's receipts were taxed under the Gross Receipts and Compensating
Tax Act. N. M. Stat. Ann. §§ 72-16A-1 to 72-16A-19, 1953
Compilation (Supp. 1971).
2 The court did find, however, that the receipts from sales of
tangible personal property to government agencies and certain specified
organizations were statutorily exempted from taxation. Those
specific exemptions are not at issue here.
EVCO v. JONES 93
91 Per Curiam
On remand, the Court of Appeals adhered to its prior
findings that these taxes were imposed on out-of-state
sales of tangible personal property, not services, but it
concluded that the constitutionality of the taxes should
not depend on that distinction. It reinstated and reaffirmed
its prior opinion finding the taxes constitutional.
83 N. M. llO, 488 P. 2d 1214. The Supreme Cob.rt of
New Mexico again declined to review the case, and we
granted certiorari. 405 U. S. 953.
Our prior cases indicate that a State may tax the proceeds
from services performed in the taxing State, even
though they are sold to purchasers in another State.
Hence, in Department of Treasury v. Ingram-Richardson
Mfg. Co., 313 U. S. 252, the Court upheld a state gross income
tax imposed on a taxpayer engaged in the process of
enameling metal parts for its customers. We accepted the
finding of the court below that this was a tax on income
derived from services, not from the sales of finished products,
and we found irrelevant the fact that the sales were
made to out-of-state customers. The tax was validly
imposed on the service performed in the taxing State.
See also Western Live Stock v. Bureau of Revenue, 303 u. s. 250.
But a tax levied on the gross receipts from the sales of
tangible personal property in another State is an impermissible
burden on commerce. In J. D. Adams Mfg.
Co. v. Storen, 304 U. S. 307, we rejected as unconstitutional
a State's attempt to impose a gross receipts tax
on a taxpayer's sales of road machinery to out-of-state
customers.
"The vice of the statute as applied to receipts from
interstate sales is that the tax includes in its measure,
without apportionment, receipts derived from
activities in interstate commerce; and that the exaction
is of such a character that if lawful it may
in substance be laid to the fullest extent by States
94 OCTOBER TERM, 1972
Per Curiam 409 U.S.
in which the goods are sold as well as those in which
they are manufactured. Interstate commerce would
thus be subjected to the risk of a double tax burden
to which intrastate commerce is not exposed, and
which the commerce clause forbids." Id., at 311.
See also Gwin, White & Prince, Inc. v. Henneford, 305
U.S. 434.
As on the previous petition for certiorari, both parties
accept these propositions, and both agree tha.t if the
findings of the Court of Appeals of New Mexico are
accepted, its judgment must be reversed.
The only real dispute between the parties centers on
the factual question of the nature and effect of the taxes.
The State contends that these taxes were actually imposed
on the receipts from services performed in the
State, not on the income from the sale of property outside
the State. It argues that the out-of-state purchasers
actually paid for the educational programs developed
in New Mexico, not for the camera-ready copies
that were only incidental to the services purchased. But
the Court of Appeals rejected this interpretation of the
facts. It found in effect that the reproducible originals
were the sine qua non of the contract and that it was the
sale of that tangible personal property in another State
that New Mexico had taxed. "There are no exceptional
circumstances of any kind that would justify us in rejecting
the ... Court's findings; they are not without factual
foundation, and we accept them." Lloyd A. Fry Roofing
Co. v. Wood, 344 U. S. 157, 160. See also Grayson v.
Harris, 267 U.S. 352, 357- 358; Portland Railway, Light &
Power Co. v. Railroad Comm'n, 229 U. S. 397, 411-412.
Accordingly, since the Court of Appeals approved the
imposition of a tax on the proceeds of the out-of-state
sales of tangible personal property, its judgment is
Reversed.
WEBB v. TEXAS 95
Per Curiam
WEBB v. TEXAS
ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS OF TEXAS
No. 71-6647. Decided December 4, 1972
Trial court's extended admonition to petitioner's only witness to
refrain from lying, coupled with threats of dire consequences if
witness did lie, effectively discouraged the witness from testifying
at aU and deprived petitioner of due process of law by denying
him the opportunity to present witnesses in his own defense.
Certiorari granted; 480 S. W. 2d 398, reversed.
PER CuRIAM.
The petitioner was convicted of burglary in the Criminal
District Court of Dallas County, Texas, and was
sentenced to a term of imprisonment for 12 years. He
appealed, raising several claims of error, among them an
allegation that the trial court had violated his constitutional
rights by "threatening and harassing" the sole
witness for his defense, so that the witness refused to
testify. The Court of Criminal Appeals of Texas affirmed
his conviction, 480 S. W. 2d 398 (1972). We grant the
motion for leave to proceed in f orma pauperi.s and the
petition for a writ of certiorari and reverse the petitioner's
conviction.
The record shows that, after the prosecution had rested
its case, the jury was temporarily excused. During this
recess, the petitioner called his only witness, Leslie Max
Mills, who had a prior criminal record and was then serving
a prison sentence. At this point, the trial judge, on
his own initiative, undertook to admonish the witness
as follows:
"Now you have been called down as a witness in
this case by the Defendant. It is the Court's duty
to admonish you that you don't have to testify, that
anything you say can and will be used against you.
96 OCTOBER TERM, 1972
Per Curiam 409U. S.
If you take the witness stand and lie under oath,
the Court will personally see that your case goes to
the grand jury and you will be indicted for perjury
and the liklihood [sic] is that you would get convicted
of perjury and that it would be stacked onto
what you have already got, so that is the matter you
have got to make up your mind on. If you get on the
witness stand and lie, it is probably going to mean
several years and at least more time that you are going
to have to serve. It will also be held against you
in the penitentiary when you're up for parole and the
Court wants you to thoroughly understand the
chances you're taking by getting on that witness
stand under oath. You may tell the truth and if
you do, that is all right, but if you lie you can get
into real trouble. The court wants you to know
that. You don't owe anybody anything to testify
and it must be done freely and voluntarily and with
the thorough understanding that you know the hazard
you are taking."
The petitioner's counsel objected to these comments,
on the ground that the judge was exerting on the mind
of the witness such duress that the witness could not
freely and voluntarily decide whether or not to testify
in the petitioner's behalf, and was thereby depriving the
petitioner of his defense by coercing the only defense
witness into refusing to testify. Counsel pointed out
that none of the witnesses for the State had been so admonished.
When the petitioner's counsel then indicated
that he was nonetheless going to ask the witness to take
the stand, the judge interrupted: "Counsel, you can state
the facts, nobody is going to dispute it. Let him decline
to testify." The witness then refused to testify for any
purpose and was excused by the court. The petitioner's
subsequent motion for a mistrial was overruled.
WEBB v. TEXAS 97
95 Per Curiam
On appeal, the petitioner argued that the judge's conduct
indicated a bias against the petitioner and deprived
him of due process of Ja,v by driving his sole witness off
the witness stand. The Court of Criminal Appeals rejected
this contention, stating that, while it did not
condone the manner of the admonition, the petitioner had
made no objection until the admonition was completed,
and there was no showing that the witness had been intimidated
by the admonition or had refused to testify
because of it.
We cannot agree. The suggestion that the petitioner
or his counsel should have interrupted the judge in the
middle of his remarks to object is, on this record, not a
basis to ground a waiver of the petitioner's rights. The
fact that Mills was willing to come to court to testify
in the petitioner's behalf, refusing to do so only after
the judge's lengthy and intimidating warning, strongly
suggests that the judge's comments were the cause of
Mills' refusal to testify.
The trial judge gratuitously singled out this one witness
for a lengthy admonition on the dangers of perjury.
But the judge did not stop at warning the witness of his
right to refuse to testify and of the necessity to tell the
truth.* Instead., the judge implied that he expected
Mills to lie, and went on to assure him that if he lied, he
would be prosecuted and probably convicted for perjury,
that the sentence for that conviction would be added on
to his present sentence, and that the result would be to
impair his chances for parole. At least some of these
threats may have been beyond the power of this judge to
*Cf. United States v. Winter, 348 F . 2d 204, 210 (1965), where
Judge Weinfeld, writing for the Second Circuit, stated:
"Once a witness swears to give truthful answers, there is no requirement
to 'warn him not to commit perjury or, conversely to direct him
to tell the truth.' It would render the sanctity of the oath quite
meaningless to require admonition to adhere to it."
98 OCTOBER TERM, 1972
BLACKMUN, J., dissenting 409 U.S.
carry out. Yet, in light of the great disparity between
the posture of the presiding judge and that of a witness
in these circumstances, the unnecessarily strong terms
used by the judge could well have exerted such duress on
the witness' mind as to preclude him from making a
free and voluntary choice whether or not to testify.
In Washington v. Texas, 388 U. S. 14, 19 (1967), we
stated:
"The right to offer the testimony of witnesses, and
to compel their attendance, if necessary, is in plain
terms the right to present a defense, the right to
present the defendant's version of the facts as well
as the prosecution's to the jury so it may decide
where the truth lies. Just as an accused has the
right to confront the prosecution's witnesses for the
purpose of challenging their testimony, he has the
right to present his own witnesses to establish a
defense. This right is a fundamental element of
due process of law."
In the circumstances of this case, we conclude that the
judge's threatening remarks, directed only at the single
witness for the defense, effectively drove that witness off
the stand, and thus deprived the petitioner of due process
of law under the Fourteenth Amendment. The admonition
by the Texas Court of Criminal Appeals might well
have given the trial judge guidance for future cases,
but it did not serve to repair the infringement of the
petitioner's due process rights under the Fourteenth
Amendment.
Accordingly, the judgment is Reversed.
MR. JusTICE BLACKMUN, with whom MR. JUSTICE
REHNQUIST joins, dissenting.
The facts before us do not, in my opinion, justify the
Court's summary disposition. Petitioner Webb (who,
on a prior occasion, had been convicted on still another
WEBB v. TEXAS 99
95 BLACKMUN, J., dissenting
burglary charge) was apprehended by the owner of a
lumber business. The mvner, armed with his shotgun,
had driven to his office at three o'clock in the morning
upon the activation of a burglar alarm. When he entered
the building, the owner observed a broken window and
an assortment of what he regarded as burglary tools on
his desk. When men emerged from an adjacent room,
a gun fight ensued. Two intruders escaped, but the
owner, despite his having been shot twice, succeeded in
holding the petitioner at gunpoint until police arrived.
Although the admonition given by the state trial judge
to the :mle witness proffered by the defense was obviously
improper, sufficient facts have not been presented to this
Court to demonstrate the depth of prejudice that requires
a summary reversal. The admonition might prove far
less offensive, and the conduct of the trial judge understandable,
if, for example, as is indicated in petitioner's
brief, p. 8, prepared by counsel and filed with the Texas
Court of Criminal Appeals, the witness were known to
have been called for the purpose of presenting an alibi
defense. Against the backdrop of being caught on the
premises and of apparently overwhelming evidence of
guilt, offset only by a bare allegation of prejudice, I
would deny the petition for certiorari and, as the Court
so often has done, I would remit the petitioner to the
relief available to him by way of a post-conviction proceeding
with a full evidentiary hearing.*
*Petitioner's counsel assured the Court of Criminal Appeals that
the witness would not have been called "unless he had been previously
interviewed and found to be helpful to the appellant's cause."
Brief for Appellant on First Motion for Rehearing 7, Webb v. Texas,
480 S. W. 2d 398 (Ct. Crim. App. Tex. 1972). An evidentiary hearing
would allow petitioner's trial counsel to outline the testimony
that was expected from the witness.
A prior trial is mentioned in the record. An evidentiary hearing
might reveal events at the prior trial that justified the trial judge's
unusual concern about possible perjury.
100 OCTOBER TERM, 1972
Per Curiam 409 u. s.
COOL v. UNITED STATES
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
No. 72-72. Decided December 4, 1972
Trial court's '·accomplice instruction," in effect requiring the jury to
decide that a defense witness' testimony was "true beyond a reasonable
doubt" before considering that testimony, impcrmissibly
obstructed the right of a criminal defendant to present exculpatory
testimony of an accomplice (Washington v. Texas, 388 U. S. 14);
and it unfairly reduced the prosecution's burden of proof, since it
is possible that the testimony would have created a reasonable
doubt in the minds of the jury, but that it was not considered
because the testimony itself was not believable beyond a reasonable
doubt. Cf. In re Winship, 397 U. S. 358.
Certiorari granted; 461 F. 2d 521, reversed and remanded.
PER CuRIAM.
The petition for a writ of certiorari is granted.
In this case, the court below held in effect that in a
criminal trial, the jury may be instructed to ignore defense
testimony unless it believes beyond a reasonable
doubt that the testimony is true. That holding is fundamentally
inconsistent with our prior decisions in In re
Winship, 397 U.S. 358 (1970), and Washin(lton v. Texas,
388 U. S. 14 (1967), and must therefore be reversed.
After a jury trial, petitioner was found guilty of possessing
and concealing, with intent to defraud, counter-
'feit obligations of the United States. The evidence
showed that on June 2, 1970, petitioner, her husband,
and one Robert E. Voyles were traveling together by car
between St. Louis, Missouri, and Brazil, Indiana. Upon
reaching Brazil, Voyles left petitioner and her husband
and passed two counterfeit bills at a local store. He was
then arrested shortly after he entered the car in which
petitioner and her husband were waiting.
After his arrest, Voyles was placed in the police car
a.nd taken to the station house. Petitioner and her husCOOL
v. UNITED STATES 101
100 Per Curiam
band were told to follow in their own car. A Mr.
Baumunk testified that he saw petitioner throw a paper
sack out of the car window as petitioner was following the
police car. The bag was subsequently found to contain
counterfeit bills. Police also found three counterfeit bills
crumpled up under the right seat of petitioner's car.
Although petitioner testified in her own defense, she
relied primarily on the testimony of Voyles. Voyles
freely admitted his own guilt,1 but steadfastly insisted
that neither petitioner nor her husband had anything to
do with the crime. He testified that petitioner had
merely agreed to give him a ride and knew nothing about
the counterfeit bills that he carried with him. When
the car stopped in Brazil, Voyles allegedly removed some
of the counterfeit bills from his satchel which he kept in
petitioner's trunk, and concealed the rest of the bills in
a sack which he placed under the front bumper by the
headlight. The defense argued that it was this sack
that Baumunk saw fall to the ground as petitioner drove
to the police station. Voyles also stated that after he
had rejoined petitioner, he saw police approaching the
car and threw the remaining bills on his person onto thP
car floor, again without the knowledge of petitioner.
Petitioner thus asserts that she was not in knowing possession
of the bills on the car floor.
With the case in this posture, the Government's position
clearly depended upon its ability to discredit Voyles,
since his testimony was completely exculpatory. Over
strenuous defense ob,iection,2 the trial judge gave the jury
1 At the time of his testimony, Voyles had already pleaded guilty to
a charge of complicity in the possession and concealment of counterfeit
notes.
2 The dissent suggests that the defendant objected to the accomplice
instruction solely on the ground that use of the word "accomplice"
suggested that the defendant was guilty. Although the defense objection
was not a model of clarity, it seems apparent that it was
grounded more broadly on the trial judge's decision to give the stand102
OCTOBER TERM, 1972
Per Curiam 409 U.S.
a lengthy "accomplice instruction" to be used in evaluating
Voyles' testimony. After first defining the word
"accomplice" and warning that an accomplice's testimony
is "open to suspicion," the judge made the following
statement: "However, I charge you that the testimony of
an accomplice is competent evidence and it is for you to
pass upon the credibility thereof. If the testimony carries
conviction and you are convinced it is true beyond a
reasonable doubt, the jury should give it the same effect
as you would to a witness not in any respect implicated
in the alleged crime and you are not only justified, but it
is your duty, not to throw this testimony out because it
comes from a tainted source." (Emphasis added.)
The clear implication of this instruction was that the
jury should disregard Voyles' testimony unless it was
"convinced it is true beyond a reasonable doubt." 3 Such
ard accomplice instruction despite the fact that the accomplice was
a defense witness. The defense attorney stated: "I take exception
to Instruction No. 16, as it's misleading. I don't think it belongs
in this cause. 'There was no accomplice testified [sic] for the Government,
and this could mislead them as to the person who was
accused of this crime and has already pied guilty, as making an
accomplice of him, when actually he is not an accomplice, because
they are not involved in the crime." (Emphasis added.) Certainly,
the trial judge understood this objection to be directed to his decision
to give the standard cautionary instruction even though the alleged
accomplice was called by the defendant. In colloquy with the defense
attorney, the judge stated: "The next, 'accomplice,' the evidence
of both the Government and the defendants may be considered
by the jury in determining the guilt or innocence, no matter
who produces the witness. . . . Now there's a lot of inferences can
be drawn from one item of evidence or another, and that's for the
jury to decide. So long as there is some evidence, the instruction
must be given. It hits both ways on that point." (Emphasis
added.) Nor did the Court of Appeals indicate any doubt that
defendant's objection was sufficient to preserve the point on appeal.
3 True, the instruction was couched in positive terms. It told the
jury to consider the evidence if it believed it true beyond a reasonCOOL
v. UNITED STATES 103
100 Per Curiam
an instruction places an improper burden on the defense
and allows the jury to convict despite its failure to find
guilt beyond a reasonable doubt.'
Accomplice instructions have long been in use and
have been repeatedly approved. See, e. g., Holmgren v.
United States, 217 U. S. 509, 523--524 (1910). In most
instances, they represent no more than a commonsense
recognition that an accomplice may have a special interest
in testifying, thus casting doubt upon his veracity.
See, e. g., Crawford v. United States, 212 U. S. 183, 204
(1909). But in most of the recorded cases, the instruction
has been used when the accomplice turned State's
evidence and testified against the defendant. See generally
McMillen v. United States, 386 F. 2d 29 (CAl
1967), and cases cited therein. No constitutional problem
is posed when the judge instructs a jury to receive
the prosecution's accomplice testimony "with care and
caution." See, e. g., United States v. George, 319 F. 2d
77, 80 (CA6 1963). Cf. United States v. Nolte, 440 F. 2d
1124 (CA5 1971).
able doubt. But the statement contained a negative pregnant as
well. There is an unacceptable risk that jurors might have thought
they were to reject the evidence-"throw [it] out," in the words of
the trial judge-if they had a reasonable doubt as to its veracity.
4 In the next paragraph of his instruction, the judge stated: "I
further instruct you that testimony of an accomplice may alone and
uncorroborated support your verdict of guilty of the charges in the
Indictment if believed by you to prove beyond a reasonable doubt
the essential elements of the charges in the Indictment against the
defendants." In light of the fact that the only accomplice testimony
in the case was exculpatory, this instruction was confusing to say
the least. But even if it is assumed that Voyles' testimony was to
some extent inculpatory, the instruction was still fundamentally
unfair in that it told the jury that it could convict solely on the basis
of accomplice testimony without telling it that it could acquit
on this basis. Even had there been no other error, the conviction
would have to be reversed on the basis of this instruction alone.
104 OCTOBER TERM, 1972
Per Curiam 409 U.S.
But there is an essential difference between instructing
a jury on the care with which it should scrutinize certain
evidence in determining how much weight to accord it
and instructing a jury, as the judge did here, that as a
predicate to the consideration of certain evidence, it must
find it true beyond a reasonable doubt.
In Washington v. Texas, supra, we held that a criminal
defendant has a Sixth Amendment right to present to
the jury exculpatory testimony of an accomplice. The
instruction given below impermissibly obstructs the exercise
of that right by totally excluding relevant evidence
unless the jury makes a preliminary determination that
it is extremely reliable.
Moreover, the instruction also has the effect of substantially
reducing the Government's burden of proof.
We held in In re Winship, supra, that the Constitution
requires proof of guilt beyond a reasonable doubt. It is
possible that Voyles' testimony would have created a
reasonable doubt in the minds of the jury, but that it
was not considered because the testimony itself was not
believable beyond a reasonable doubt. By creating an
artificial barrier to the consideration of relevant defense
testimony putatively credible by a preponderance of the
evidence, the trial judge reduced the level of proof necessary
for the Government to carry its burden. Indeed,
where, as here, the defendant's case rests almost entirely
on accomplice testimony, the effect of the judge's instructions
is to require the defendant to establish his innocence
beyond a reasonable doubt.
Because such a requirement is plainly inconsistent
with the constitutionally rooted presumption of innocence,
the conviction must be reversed and the cause
remanded for further proceedings not inconsistent with
this opinion.
It is so or,dered.
COOL v. UNITED STATES 105
100 REHNQUIST, J., dissenting
MR. JUSTICE REHNQUIST, with whom THE CHIEF
JUSTICE and MR. JusTICE BLACKMUN concur, dissenting.
I believe that the Court's fine-spun parsing of the
trial judge's charge to the jury turns the appellate review
of this case into the sort of "quest for error" which was
said in Bihn v. United States, 328 U.S. 633, 638 (1946),
to be forbidden by Rule 52 (a) of the Federal Rules of
Criminal Procedure,1 and by 28 U. S. C. § 2111.2
The testimony of the witness Voyles, called by petitioner
as a witness in her behalf, presented the trial judge
with something of a dilemma in determining how he
should charge the jury. Much of Voyles' testimony
tended to exculpate petitioner, but there were significant
aspects of it that did not. He substantiated the fact
that the petitioner and her husband 3 had traveled with
him from St. Louis to Brazil, Indiana. He corroborated
prosecution evidence that both petitioner and her husband
gave the same false last name of Gibbs when booked
at the police station in Brazil. He also suggested a closeness
to petitioner's husband which was scarcely helpful
to their defense when he testified that "I was a little
sore at Mike [petitioner's husband], because I thought
Mike should help me [get out on bond]."
The trial judge made clear in his colloquy ·with counsel,
while dealing with their objections to the charge, that he
1 "Any error, defect, irregularity or variance which does not affect
substantial rights shall be disregarded." Fed. Rule Crim. Proc.
52 (a).
2 "On the hearing of any appeal or writ of certiorari in any case,
the court shall give judgment after an examination of the record
without regard to errors or defects which do not affect the substantial
rights of the parties." 28 U. S. C. § 2111.
3 The petitioner and her husband were tried and convicted together
on the counterfeiting charges. Both appealed their convictions to
the Seventh Circuit, which affirmed both. Petitioner's husband has
not sought certiorari to have his conviction reviewed.
106 OCTOBER TER?vI, 1972
REHNQUIST, J., dissenting 409 U.S.
was concerned about the ambivalence of Voyles' testimony
and felt it necessary to give the charge relating to
accomplices. Petitioner's counsel in objecting to that
portion of the charge did so on a quite different ground
from that now sustained by the Court; the ground of objection
stated to the trial court was apparently that the
mention of the term "accomplice" to the jury suggested
that petitioner and her husband were in fact guilty. Such
a ground of objection was wholly without merit, since,
as the Court of Appeals pointed out in its opinion in
this case, the instruction left it entirely to the jury to
determine whether or not the facts existed that would
make Voyles an accomplice.
The trial court gave 36 separate instructions to the
jury, which covered some 52 pages of the transcript in
this case. The instruction in question covers two pages,
and the Court reverses the conviction on the basis of one
sentence in that one instruction. The trial judge repeatedly
emphasized to the jury that the Government was
obligated to prove guilt beyond a reasonable doubt.
Typical is the following statement, which is repeated
throughout the instructions in at least half a dozen places:
"The entire burden of proof is upon the Government
from the beginning to the end of the trial and this
burden of proof never shifts from the Government
to the defendants, and the defendants are not bound
to prove their innocence, offer any excuse, or explain
anything . . . . "
The record before us does not indicate that either counsel
so much as mentioned the accomplice instruction in
his argument to the jury. Nonetheless, the Court concludes
that because the instruction contained a "negative
pregnant" that could be taken to mean that the jurors
should reject Voyles' testimony if they had a reasonable
COOL v. UNITED STATES 107
100 REHNQUIST, J., dissenting
doubt as to its veracity, the conviction 1s to be
reversed.
I had thought the day long past when even appellate
courts of the first instance, such as the Court of Appeals
in this case, parsed instructions and engaged in nice
semantic distinctions in the absence of any showing
that would satisfy an ordinary lawyer or layman that
substantial rights of one of the parties had been prejudiced
by the supposed error. If the nuance of the instruction
upon which reversal is now based did not suggest
itself to petitioner's trial counsel, it seems doubtful
that it suggested itself to the jury either:
"A party must make every reasonable effort to secure
from the trial court correct rulings or such at
least as are satisfactory to him before he will be
permitted to ask any review by the appellate tribunal;
and to that end he must be distinct and
specific in his objections and exceptions. . . .
'. . . [ J] ustice itself and fairness to the court which
makes the rulings complained of, require that the
attention of that court shall be specifically called
to the precise point to which exception is taken, that
it may have an opportunity to reconsider the matter
and remove the ground of exception.' " Allis v.
United States, 155 U. S. 117, 122 (1894), quoting
Harvey v. Tyler, 2 Wall. 328, 339 (1865).
Nor, as pointed out above, did this particular instruction
of the trial court stand alone; it was incorporated
into a series of instructions that had as their predominant
theme that the burden of proof was upon the Government
at every stage to prove guilt beyond a reasonable
doubt. The trial court's instructions are to be taken
as a whole, and even if an isolated passage might be error
if standing by itself, that alone is not a sufficient ground
108 OCTOBER TERM, 1972
REHNQUIST, J., dissenting 409 U.S.
for reversal. Boyd v. United States, 271 U. S. 104, 107
( 1926).
The Court's reversal on the ground that one of the
instructions contained a "negative pregnant" smacks
more of the scholastic jurisprudence whose shortcomings
led to the enactment of 28 U. S. C. § 2111 than it
does of the commonsense approach to appellate review
that that section mandates.
CALIFORNIA v. LARUE 109
Syllabus
CALIFORNIA ET AL. V. LARUE ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
CENTRAL DISTRICT OF CALIFORNIA
No. 71-36. Argued OctobC'r 10, 1972-Decided December 5, 1972
Following hearings, the California Department of Alcoholic Beverage
Control issued regulations prohibiting explicitly sexual live entertainment
and films in bars and other establishments licensed to
dispense liquor by the drink. A three-judge District Court held
the regulations invalid under the First and Fourteenth Amendments,
concluding that under standards la.id down by this Court
some of the proscribed entertainment could not be classified as
obscene or lacking a communicative element. Held: In the context,
not of censoring dramatic performances in a theater, but of
licensing bars and nightclubs to sell liquor by the drink, the States
have broad latitude under the Twenty-first Amendment to control
the manner and circumstances under which liquor may be
dispensed, and here the conclusion that sale of liquor by the drink
and lewd or naked entertainment should not take place simultaneously
in licensed establishments was not irrational nor was
the prophylactic solution unreasonable. Pp. 114--119.
326 F. Supp. 348, reversed.
REHNQUIST, J., delivered the op1mon of the Court, in which
BURGER, C. J., and STEWART, WHITE, BLACKMUN, and PowELL, JJ.,
joined. STEWART, J., filed a concurring opinion, post, p. 119. DouGLAS,
J., post, p. 120, BRENNAN, J., post, p. 123, and MARSHALL, J.,
post, p. 123, filed dissenting opinions.
L. Stephen Porter, Deputy Attorney General of California,
argued the cause for appellants. With him on
the brief was Evelle J. Younger, Attorney General.
Harrison W. Hertzberg and Kenneth Scholtz argued
the cause for appellees. With them on the brief was
Warren I. Wolfe.
110 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
MR. JUSTICE REHNQUIST delivered the opinion of the
Court.
Appellant Kirby is the director of the Department of
Alcoholic Beverage Control, an administrative agency
vested by the California Constitution with primary authority
for the licensing of the sale of alcoholic beverages
in that State, and with the authority to suspend or revoke
any such license if it determines that its continuation
would be contrary to public welfare or morals. Art.
XX, § 22, California Constitution. Appellees include
holders of various liquor licenses issued by appellant,
and dancers at premises operated by such licensees. In
1970 the Department promulgated rules regulating the
type of entertainment that might be presented in bars
and nightclubs that it licensed. Appellees then brought
this action in the United States District Court for the
Central District of California under the provisions of
28 U. S. C. §§ 1331, 1343, 2201, 2202, and 42 U. S. C.
§ 1983. A three-judge court was convened in accordance
with 28 U. S. C. §§ 2281 and 2284, and the majority
of that court held that substantial portions of
the regulations conflicted with the First and Fourteenth
Amendments to the United States Constitution.1
Concerned with the progression in a few years' time
from "topless" dancers to "bottomless" dancers and other
forms of "live entertainment" in bars and nightclubs
that it licensed, the Department heard a number of
witnesses on this subject at public hearings held prior
to the promulgation of the rules. The majority opinion
1 Appellees in their brief here suggest that the regulations may
exceed the authority conferred upon the Department as a matter of
state law. As the District Court recognized, however, such a claim
is not cognizable in the suit brought by these appellees under 42
U. S. C. § 1983.
CALIFORNIA v. LARUE 111
109 Opinion of the Court
of the District Court described the testimony in these
words:
"Law enforcement agencies, counsel and owners of
licensed premises and investigators for the Department
testified. The story that unfolded was a sordid ,
one, primarily relating to sexual conduct between
dancers and customers .... " 326 F. Supp. 348, 352.
References to the transcript of the hearings submitted
by the Department to the District Court indicated
that in licensed establishments where "topless" and "bottomless"
dancers, nude entertainers, and films displaying
sexual acts were shown, numerous incidents of legitimate
concern to the Department had occurred. Customers
were found engaging in oral copulation with women entertainers;
customers engaged in public masturbation;
and customers placed rolled currency either directly into
the vagina of a female entertainer, or on the bar in order
that she might pick it up herself. Numerous other
forms of contact between the mouths of male customers
and the vaginal areas of female performers were reported
to have occurred.
Prostitution occurred in and around such licensed
premises, and involved some of the female dancers.
Indecent exposure to young girls, attempted rape, rape
itself, and assaults on police officers took place on or
immediately adjacent to such premises.
At the conclusion of the evidence, the Department
promulgated the regulations here challenged, imposing
standards as to the type of entertainment that could
be presented in bars and nightclubs that it licensed.
Those portions of the regulations found to be unconstitutional
by the majority of the District Court prohibited
the following kinds of conduct on licensed premises:
(a) The performance of acts, or simulated acts,
of "sexual intercourse. masturbation, sodomy,
112 OCTOBER TERM, 1972
Opinion of the Court 409 u. s.
bestiality, oral copulation, flagellation or any sexual
acts which are prohibited by law";
(b) The actual or simulated "touching, caressing
or fondling on the breast, buttocks, anus or
genitals";
( c) The actual or simulated "displaying of the
pubic hair, anus, vulva or genitals";
( d) The permitting by a licensee of "any person
to remain in or upon the licensed premises who
exposes to public view any portion of his or her
genitals or anus"; and, by a companion section,
( e) The displaying of films or pictures depicting
acts a live performance of which was prohibited by
the regulations quoted above. Rules 143.3 and
143.4.2
Shortly before the effective date of the Department's
regulations, appellees unsuccessfully sought discretionary
review of them in both the State Court of Appeal and
the Supreme Court of California. The Department
then joined with appellees in requesting the three-judge
District Court to decide the merits of appellees' claims
that the regulations were invalid under the Federal
Cons ti tu tion. 3
2 In addition to the regulations held unconstitutional by the court
below, appellees originally challenged Rule 143.2 prohibiting topless
waitresses, Rule 143.3 (2) requiring certain entertainers to perform
on a stage at a distance away from customers, and Rule 143.5
prohibiting any entertainment that violated local ordinances. At
oral argument in that court they withdrew their objections to these
rules, conceding "that topless waitresses are not within the protection
of the First Amendment; that local ordinances must be independently
challenged depending upon their content; and that the
requirement that certain entertainers must dance on a stage is not invalid."
326 F. Supp. 348, 350-351.
3 MR. JUSTICE Dou GLAS in his dissenting opinion suggests that the
District Court should have declined to adjudicate the merits of
appellees' contention until the appellants had given the "generalized
CALIFORNIA v. LARUE 113
109 Opinion of the Court
The District Court majority upheld the appellees'
claim that the regulations in question unconstitutionally
abridged the freedom of expression guaranteed to them
by the First and Fourteenth Amendments to the United
States Constitution. It reasoned that the state regulations
had to be justified either as a prohibition of
obscenity in accordance with the Roth line of decisions
in this Court (Roth v. United States, 354 U. S. 476
(1957)), or else as a regulation of "conduct" having
a communicative element in it under the standards
provisions of the rules ... particularized meaning." Since parties
may not confer jurisdiction either upon this Court or the District
Court by stipulation, the request of both parties in this case that
the court below adjudicate the merits of the constitutional claim
does not foreclose our inquiry into the existence of an "actual
controversy" within the meaning of 28 U. S. C. § 2201 and Art. III,
§ 2, cl. 1, of the Constitution.
By pretrial stipulation, the appellees admitted they offered performances
and depictions on their licensed premises that were
proscribed by the challenged rules. Appellants stipulated they
would take disciplinary action against the licenses of licensees violating
such rules. In similar circumstances, this Court held that
where a state commission had "plainly indicated" an intent to enforce
an act that would affect the rights of the United States, there was
a "present and concrete" controversy within the meaning of 28
U. S. C. § 2201 and of Art. III. Ccdifornia Comm'n v. United
States, 355 U.S. 534,539 (1958). The District Court therefore had
jurisdiction of this action.
Whether this Court should develop a nonjurisdictional limitation
on actions for declaratory judgments to invalidate statutes on their
face is an issue not properly before us. Cf. Ashwander v. Tennessee
VaUey Authority, 297 U. S. 288, 341 (1936) (Brandeis, J.,
concurring). Certainly a number of our cases have permitted
attacks on First Amendment grounds similar to those advanced by
the appellees, see, e. g., Zwickler v. Koota, 389 U. S. 241 (1967);
Keyishian v. Board of Regents, 385 U. S. 589 (1967); Baggett v.
Bwlitt, 377 U. S. 360 (1964), and we are not inclined to reconsider
the procedural holdings of those cases in the absence of a request
by a party to do so.
114 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
laid down by this Court in United States v. O'Brien,
391 U. S. 367 (1968). Concluding that the regulations
would bar some entertainment that could not be called
obscene under the Roth line of cases, and that the governmental
interest being furthered by the regulations
did not meet the tests laid down in O'Brien, the court
enjoined the enforcement of the regulations. 326 F.
Supp. 348. We noted probable jurisdiction. 404 U. S.
999.
The state regulations here challenged come to us, not
in the context of censoring a dramatic performance in a
theater, but rather in a context of licensing bars and
nightclubs to sell liquor by the drink. In Seagram &
Sons v. Hostetter, 384 U. S. 35, 41 (1966), this Court
said:
"Consideration of any state law regulating intoxicating
beverages must begin with the Twenty-first
Amendment, the second section of which provides
that: 'The transportation or importation into any
State, Territory, or possession of the United States
for delivery or use therein of intoxicating liquors, in
violation of the laws thereof, is hereby prohibited.' "
While the States, vested as they are with general
police power, require no specific grant of authority in the
Federal Constitution to legislate with respect to matters
traditionally within the scope of the police power, the
broad sweep of the Twenty-first Amendment has been
recognized as conferring something more than the normal
state authority over public health, welfare, and morals.
In Hostetter v. Idlewild Liquor Corp., 377 U. S. 324,
330 (1964), the Court reaffirmed that by reason of the
Twenty-first Amendment "a State is totally unconfined
by traditional Commerce Clause limitations when it restricts
the importation of intoxicants destined for use,
distribution, or consumption within its borders." Still
CALIFORNIA v. LARUE 115
109 Opinion of the Court
earlier, the Court stated in State Board v. Young's Market
Co., 299 U.S. 59, 64 (1936):
"A classification recognized by the Twenty-first
Amendment cannot be deemed forbidden by the
Fourteen th."
These decisions did not go so far as to hold or say
that the Twenty-first Amendment supersedes all other
provisions of the United States Constitution in the area
of liquor regulations. In Wisconsin v. Constantineau,
400 U.S. 433 (1971), the fundamental notice and hearing
requirement of the Due Process Clause of the Fourteenth
Amendment was held applicable to Wisconsin's statute
providing for the public posting of names of persons who
had engaged in excessive drinking. But the case for
upholding state regulation in the area covered by the
Twenty-first Amendment is undoubtedly strengthened
by that enactment:
"Both the Twenty-first Amendment and the Commerce
Clause are parts of the same Constitution.
Like other provisions of the Constitution, each must
be considered in the light of the other, and in the
context of the issues and interests at stake in any
concrete case." Hostetter v. I dlewild Liquor Corp.,
supra, at 332.
A common element in the regulations struck down by
the District Court appears to be the Department's conclusion
that the sale of liquor by the drink and lewd or
naked dancing and entertainment should not take place
in bars and cocktail lounges for which it has licensing
responsibility. Based on the evidence from the hearings
that it cited to the District Court, and mindful
of the principle that in legislative rulemaking the
agency may reason from the particular to the general,
Assigned Car Cases, 274 U. S. 564, 583 (1927), we do
116 OCTOBER TERM, 1972
Opinion of the Court 409 U. S.
not think it can be said that the Department's conclusion
in this respect was an irrational one.
Appellees insist that the same results could have been
accomplished by requiring that patrons already well
on the way to intoxication be excluded from the licensed
premises. But wide latitude as to choice of means to
accomplish a permissible end must be accorded to the
state agency that is itself the repository of the State's
power under the Twenty-first Amendment. Seagram
& Sons v. Hostetter, supra, at 48. Nothing in the
record before us or in common experience compels the
conclusion that either self-discipline on the part of the
customer or self-regulation on the part of the bartender
could have been relied upon by the Department to secure
compliance with such an alternative plan of regulation.
The Department's choice of a prophylactic solution instead
of one that would have required its own personnel
to judge individual instances of inebriation cannot, therefore,
be deemed an unreasonable one under the holdings
of our prior cases. Williamson v. Lee Optical Co., 348
U. S. 483, 487--488 (1955).
We do not disagree with the District Court's determination
that these regulations on their face would proscribe
some forms of visual presentation that would not
be found obscene under Roth and subsequent decisions of
this Court. See, e. g., Sunshine Book Co. v. Summerfield,
355 U. S. 372 (1958), rev'g per curiam, 101 U. S.
App. D. C. 358, 249 F. 2d 114 (1957). But we do
not believe that the state regulatory authority in this
case was limited to either dealing with the problem it
confronted within the limits of our decisions as to obscenity,
or in accordance with the limits prescribed for
dealing with some forms of communicative conduct in
O'Brien, supra.
Our prior cases have held that both motion pictures
and theatrical productions are within the protection of
CALIFORNIA v. LARUE 117
109 Opinion of the Court
the First and Fourteenth Amendments. In Joseph
Burstyn, Inc. v. Wilson, 343 U. S. 495 (1952), it was
held that motion pictures are "included within the free
speech and free press guaranty of the First and Fourteenth
Amendments," though not "necessarily subject to
the precise rules governing any other particular method
of expression." Id., at 502-503. In Schacht v. United
States, 398 U. S. 58, 63 (1970), the Court said with
respect to theatrical productions:
"An actor, like everyone else in our country, enjoys
a constitutional right to freedom of speech, including
the right openly to criticize the Government during
a dramatic performance."
But as the mode of expression moves from the printed
page to the commission of public acts that may themselves
violate valid penal statutes, the scope of permissible
state regulations significantly increases. States may
sometimes proscribe expression that is directed to the
accomplishment of an end that the State has declared
to be illegal when such expression consists, in part, of
"conduct" or "action," Hughes v. Superior Court, 339
U. S. 460 (1950); Giboney v. Empire Storage Co., 336
U. S. 490 (1949).4 In O'Brien, supra, the Court suggested
that the extent to which "conduct" was protected
by the First Amendment depended on the presence of
a "communicative element," and stated:
"We cannot accept the view that an apparently
4 Similarly, States may validly limit the manner in which the
First Amendment freedoms are exercised, by forbidding sound trucks
in residential neighborhoods, Kovacs v. Cooper, 336 U. S. 77 (1949),
and may enforce a nondiscriminatory requirement that those who
would parade on a public thoroughfare first obtain a permit. Cox
v. New Hampshire, 312 U. S. 569 (1941). Other state limitations
on the "time, manner and place" of the exercise of First Amendment
rights have been sustained. See, e. g., Cameron v. Johnson,
390 U. S. 611 (1968), and Cox v. Louisiana, 379 U. S. 559 (1965).
118 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
limitless variety of conduct can be labeled 'speech'
whenever the person engaging in the conduct intends
thereby to express an idea." 391 U. S., at 376.
The substance of the regulations struck down prohibits
licensed bars or nightclubs from displaying, either in
the form of movies or live entertainment, "performances"
that partake more of gross sexuality than of communication.
While we agree that at least some of
the performances to which these regulations address
themselves are within the limits of the constitutional
protection of freedom of expression, the critical fact is
that California has not forbidden these performances
across the board. It has merely proscribed such performances
in establishments that it licenses to sell liquor
by the drink.
Viewed in this light, we conceive the State's authority
in this area to be somewhat broader than did the District
Court. This is not to say that all such conduct and
performance are without the protection of the First and
Fourteenth Amendments. But we would poorly serve
both the interests for which the State may validly seek
vindication and the interests protected by the First and
Fourteenth Amendments were we to insist that the
sort of bacchanalian revelries that the Department
sought to prevent by these liquor regulations were the
constitutional equivalent of a performance by a scantily
clad ballet troupe in a theater.
The Department's conclusion, embodied in these regulations,
that certain sexual performances and the dispensation
of liquor by the drink ought not to occur at
premises that have licenses was not an irrational one.
Given the added presumption in favor of the validity
of the state regulation in this area that the Twenty-first
CALIFORNIA v. LARUE 119
109 STEW ART, J., concurring
Amendment requires, we cannot hold that the regulations
on their face violate the Federal Constitution.5
The contrary holding of the District Court is therefore
Reversed.
MR. JUSTICE STEWART, concurring.
A State has broad power under the Twenty-first
Amendment to specify the times, places, and circumstances
where liquor may be dispensed within its borders.
Seagram & Sons v. Hostetter, 384 U. S. 35; Hostetter v.
Idleunld Liquor Corp., 377 U. S. 324, 330; Dept. of
Revenue v. James Beam Co., 377 U. S. 341, 344, 346;
Californi.a v. Washington, 358 U. S. 64; Zifjrin, Inc. v.
Reeves, 308 U. S. 132; Mahoney v. Joseph Triner Corp.,
304 U. S. 401; State Board v. Young's Market Co.,
299 U. S. 59. I should suppose, therefore, that nobody
would question the power of California to prevent
the sale of liquor by the drink in places where food
is not served, or where dancing is permitted, or where
gru,oline is sold. But here California has provided that
liqμor by the drink shall not be sold in places where
certain grossly sexual exhibitions are performed; and
that action by the State, say the appellees, violates the
First and Fourteenth Amendments. I cannot agree.
Every State is prohibited by these same Amendments
from invading the freedom of the press and from im-
5 Because of the posture of this case, we have necessarily dealt
with the regulations on their face, and have found them to be valid.
The admonition contained in the Court's opinion in Seagram &
Sons v. Hostetter, 384 U. S. 35, 52 ( 1966), is equally in point here:
"Although it is possible that specific future applications of [the
statute] may engender concrete problems of constitutional dimension,
it will be time enough to consider any such problems when
they arise. We deal here only with the statute on its face. And we
hold that, so considered, the legislation is constitutionally valid."
120 OCTOBER TERM, 1972
DouGLAS, J., dissenting 409U. S.
pinging upon the free exercise of religion. But does this
mean that a State cannot provide that liquor shall not
be sold in bookstores, or within 200 feet of a church?
I think not. For the State would not thereby be interfering
with the First Amendment activities of the church
or the First Amendment business of the bookstore. It
would simply be controlling the distribution of liquor, as
it has every right to do under the Twenty-first Amendment.
On the same premise, I cannot see how the
liquor regulations now before us can be held, on their
face, to violate the First and Fourteenth Amendments.*
It is upon this constitutional understanding that I
join the opinion and judgment of the Court.
MR. JusTICE DouGLAS, dissenting.
This is an action for a declaratory judgment, challenging
Rules and Regulations of the Department of Alcoholic
Beverage Control of California. It is a challenge
of the constitutionality of the rules on their face; no
application of the rules has in fact been made to appellees
by the institution of either civil or criminal
proceedings. While the case meets the requirements of
"case or controversy" within the meaning of Art. III of
the Constitution and therefore complies with Aetna Life
Ins. Co. v. Haworth, 300 U. S. 227, the case does not
mark the precise impact of these rules against licensees
who sell alcoholic beverages in California. The opinion
*This is not to say that the Twenty-first Amendment empowers a
State to act with total irrationality or invidious rliRr.rimirnttion in
controlling the distribution and dispensation of liquor within its
borders. And it most assuredly is not to say that the Twenty-first
Amendment necessarily overrides in its allotted area any other relevant
provision of the Constitution. See Wisconsin v. Constantineau,
400 U.S. 433; Hostetter v. Idlewild Liquor Corp., 377 U.S. 324, 329-
334; Dept. of Revenue v. James Beam Co., 377 U. S. 341.
CALIFORNIA v. LARUE 121
109 DouGLAS, J., dissenting
of the Court can, therefore, only deal with the rules in
the abstract.
The line which the Court draws between "expression"
and "conduct" is generally accurate; and it also accurately
describes in general the reach of the police power
of a State when "expression" and "conduct" are closely
brigaded. But we still do not know how broadly or how
narrowly these rules will be applied.
It is conceivable that a licensee might produce in a
garden served by him a play-Shakespearean perhaps or
one in a more modern setting-in which, for example,
"fondling" in the sense of the rules appears. I cannot
imagine that any such performance could constitutionally
be punished or restrained, even though the police power
of a State is now buttressed by the Twenty-first Amendment.
1 For, as stated by the Court, that Amendment
did not supersede all other constitutional provisions "in
the area of liquor regulations." Certainly a play which
passes muster under the First Amendment is not made
illegal because it is performed in a beer garden.
Chief Justice Hughes stated the controlling principle
in Electric Bond & Share Co. v. SEC, 303 U.S. 419,443:
"Defendants are not entitled to invoke the Federal
Declaratory Judgment Act in order to obtain an
advisory decree upon a hypothetical state of facts .
. . . By the cross bill, defendants seek a judgment
that each and every provision of the Act is unconstitutional.
It presents a variety of hypothetical
controversies which may never become real. We are
invited to enter into a speculative inquiry for the
1 Section 2 of the Twenty-first Amendment reads as follows:
"The transportation or importation into any State, Territory, or
possession of the United States for delivery or use therein of intoxicating
liquors, in violation of the laws thereof, is hereby prohibited."
122 OCTOBER TERM, 1972
DouGLAs, J., dissenting 409 U.S.
purpose of condemning statutory provisions the effect
of which in concrete situations, not yet developed,
cannot now be definitely perceived. We
must decline that invitation .... "
The same thought was expressed by Chief Justice Stone
in Federation of Labor v. M cAdory, 325 U. S. 450, 470-
471. Some provisions of an Alabama law regulating
labor relations were challenged as too vague and uncertain
to meet constitutional requirements. The Chief
Justice noted that state courts often construe state statutes
so that in their application they are not open to
constitutional objections. Id., at 471. He said that for
us to decide the constitutional question "by anticipating
such an authoritative construction" would be either "to
decide the question unnecessarily or rest our decision on
the unstable foundation of our own construction of the
state statute which the state court would not be bound
to follow." 2 Ibid. He added:
"In any event the parties are free to litigate in the
state courts the validity of the statute when actually
applied to any definite state of facts, with the right
of appellate review in this Court. In the exercise
of this Court's discretionary power to grant or withhold
the declaratory judgment remedy it is of controlling
significance that it is in the public interest
to avoid the needless determination of constitutional
questions and the needless obstruction to the domestic
policy of the states by forestalling state action
in construing and applying its own statutes." Ibid.
Those precedents suggest to me that it would have
been more provident for the District Court to have de-
2 Even in cases on direct appeal from a state court, when the decision
below leaves unresolved questions of state law or procedure
which bear on federal constitutional questions, we dismiss the appeal.
Rescue Army v. Municipal Court, 331 U. S. 549.
CALIFORNIA v. LARUE 123
109 MARSHALL, J., dissenting
clined to give a federal constitutional ruling, until and
unless the generalized provisions of the rules were given
particularized meaning.
MR. JUSTICE BRENNAN, dissenting.
I dissent. The California regulation at issue here
clearly applies to some speech protected by the First
Amendment, as applied to the States through the Due
Process Clause of the Fourteenth Amendment, and also,
no doubt, to some speech and conduct which are unprotected
under our prior decisions. See Memoirs v. Massachusetts,
383 U.S. 413 (1966); Roth v. United States, 354
U. S. 476 (1957). The State points out, however, that
the regulation does not prohibit speech directly, but
speaks only to the conditions under which a license to
sell liquor by the drink can be granted and retained.
But, as MR. JUSTICE MARSHALL carefully demonstrates
in Part II of his dissenting opinion, by requiring the
owner of a nightclub to forgo the exercise of certain
rights guaranteed by the First Amendment, the State has
imposed an unconstitutional condition on the grant of
a license. See Perry v. Sindermann, 408 U. S. 593 ( 1972);
Sherbert v. Verner, 374 U.S. 398 (1963); Speiser v.
Randall, 357 U.S. 513 (1958). Nothing in the language
or history of the Twenty-first Amendment authorizes the
.States to use their liquor licensing power as a means for
the deliberate inhibition of protected, even if distasteful,
forms of expression. For that reason, I would affirm the
judgment of the District Court.
l\ifR. JUSTICE MARSHALL, dissenting.
In my opinion, the District Court's judgment should
be affirmed. The record in this case is not a pretty
one, and it is possible that the State could constitutionally
punish some of the activities described therein
124 OCTOBER TERM, 1972
MARSHALL, J., dissenting 409 U.S.
under a narrowly drawn scheme. But appellees challenge
these regulations 1 on their face, rather than as
applied to a specific course of conduct.2 Cf. Gooding
1 Rule 143.3 (1) provides in releYant part:
"No licensee shall permit any person to perform acts of or acts
which simulate:
"(a) Sexual intercourse, masturbation, sodomy, bestiality, oral
copulation, flagellation or any sexual acts which are prohibited by
law.
"(b) The touching, caressing or fondling on the breast, buttocks,
anus or genitals.
"(c) The displaying of the pubic hair, anus, vulva or genitals."
Rule 143.4 prohibits: "The showing of film, still pictures, electronic
reproduction, or other visual reproductions depicting:
"(1) Acts or simulated acts of sexual intercourse, masturbation,
sodomy, bestiality, oral copulation, flagellation or any sexual acts
which are prohibited by law.
"(2) Any person being touched, caressed or fondled on the breast,
buttocks, anus or genitals.
"(3) Scenes wherein a person displays the vulva or the anus or the
genitals.
" ( 4) Scenes wherein artificial devices or inanimate objects are
employed to depict, or drawings are employed to portray, any of
the prohibited activities described above."
2 This is not an appropriate case for application of the abstention
doctrine. Since these regulations are challenged on their face for
overbreadth, no purpose would be served by awaiting a state court
construction of them unless the principles announced in Younger v.
Harris, 401 U.S. 37 (1971), govern. See Zwickler v. Koota, 389 U.S.
241, 248-250 (1967). Thus far, however, we have limited the applicability
of Younger to cases where the plaintiff has an adequate
remedy in a pending criminal prosecution. See Younger v. H arri.s,
supra, at 43-44. Cf. DouglM v. City of Jeannette, 319 U. S. 157
(1943). But cf. Berryhill v. Gibson, 331 F. Supp. 122, 124 (MD
Ala. 1971), probable jurisdiction noted, 408 U. S. 920 (1972).
The California licensing provisions are, of course, ciYil in nature.
Cf. Hearn v. Short, 327 F. Supp. 33 (SD Tex. 1971). Moreover,
th<:> Younger doctrine has been held to "have little force
in the absence of a pending state proceeding." Lake Carriers'
Assn. v. MacMwlan, 406 U.S. 498, 509 (1972) (emphasis added).
There are at present no proceedings of any kind pending against these
CALIFORNIA v. LARUE 125
109 MARSHALL, J., dissenting
v. Wilson, 405 U. S. 518 (1972). When so viewed, I
think it clear that the regulations are overbroad and
therefore unconstitutional. See, e. g., Dombrowski v.
Pfister, 380 U.S. 479,486 (1965)." Although the State's
broad power to regulate the distribution of liquor and
to enforce health and safety regulations is not t-0 be
doubted, that power may not be exercised in a manner
that broadly stifles First Amendment freedoms. Cf.
Shelton v. Tucker, 364 U. S. 479, 488 (1960). Rather,
as this Court has made clear, "[p ]recision of regulation
appellees. Finally, since the Younger dortrine rests heavily on federal
deference to state administration of its own statutes, see Younger
v. Harris, supra, at 44-45, it is waivable by the State. Cf. Hostetter
v. Idlewild Liquor Corp., 377 U. S. 324, 329 (1964). Appellants
have nowhere mentioned the Younger doctrine in their brief
before this Court, and when the case was brought to the attention
of the attorney for the appellants during oral argument, he expressly
eschewed reliance on it. In the court below, appellants
specifically asked for a federal decision on the validity of California's
regulations and stated that they did not think the court should
abstain. Sec 326 F. Supp. 348, 351 (CD Cal. 1971).
3 I am startled by the majority's suggestion that the regulations
are constitutional on their face even though "specific future applications
of [the statute] may engender concrete problems of constitutional
dimension." (Quoting with approval Seagram & Sons v.
Hostetter, 384 U. S. 35, 52 (1966). Ante, at 119 n. 5.) Ever
since Thornhill v. Alabama, 310 U.S. 88 (1940) , it has been thought
that statutes which trench upon First Amendment rights are facially
void even if the conduct of the party challenging them could be
prohibited under a more narrowly drawn scheme. See, e. g. , Baggett
v. Bullitt, 377 U. S. 360, 366 (1964); Coates v. City of Cincinnati,
402 U. S. 611, 616 (1971) ; NAACP v. Button, 371 U. S. 415,
432-433 ( 1963).
Nor is it relevant that the State here "sought to prevent rbacchanalian
revelries]" rather than performances by "scantily clad
ballet troupers]." Whatever the State "sought" to do, the fact is
that these regulations cover both these activities. And it should be
clear that a praiseworthy legislative motive can no more rehabilitate
an unconstitutional statute than an illicit motive can invalidate a
proper statute.
126 OCTOBER TERM, 1972
MARSHALL, J., dissenting 4D9 U.S.
must be the touchstone" when First Amendment rights
are implicated. NAACP v. Button, 371 U. S. 415, 438
(1963). Because I am convinced that these regulations
lack the precision which our prior cases require,
I must respectfully dissent.
I
It should be clear at the outset that California's regulatory
scheme does not conform to the standards which
we have previously enunciated for the control of obscenity.
4 Before this Court's decision in Roth v. United
States, 354 U. S. 476 ( 1957), some American courts
followed the rule of Regina v. Hicklin, L. R. 3 Q. B.
360 ( 1868), to the effect that the obscenity vel non of a
piece of work could be judged by examining isolated
aspects of it. See, e. g., United States v. Kennerley,
209 F. 119 (1913); Commonwealth v. Buckley, 200
Mass. 346, 86 N. E. 910 (1909). But in Roth we held
that "[t]he Hicklin test, judging obscenity by the effect
of isolated passages upon the most susceptible persons,
might well encompass material legitimately treating with
sex, and so it must be rejected as unconstitutionally
restrictive of the freedoms of speech and press." 354
U. S., at 489. Instead, we held that the material must
4 Indeed, there are some indications in the legislative history that
California adopted these regulations for the specific purpose of
evading those standards. Thus, Captain Robert Devin of the Los
Angeles Police Department testified that the Department favored
adoption of the new regulations for the following reason: "While
statutory law has been available to us to regulate what was formerly
considered as antisocial behavior, the federal and state judicial system
has, through a series of similar decisions, effectively emasculated
law enforcement in its effort to contain and to control the growth
of pornography and of obscenity and of behavior that is associated
with this kind of performance." See also testimony of Roy E. June,
City Attorney of the City of Costa Mesa; testimony of Richard C.
Hirsch, Office of Los Angeles County District Attorney. App. 117.
CALIFORNIA v. LARUE 127
109 MARSHALL, J., dissenting
be "taken as a whole," ibid., and, when so viewed, must
appeal to a prurient interest in sex, patently offend
community standards relating to the depiction of sexual
matters, and be utterly without redeeming social value."
See Memoirs v. Massachusetts, 383 U.S. 413,418 (1966).
Obviously, the California rules do not conform to these
standards. They do not require the material to be
judged as a whole and do not speak to the necessity
of proving prurient interest, offensiveness to community
standards, or lack of redeeming social value. Instead
of the contextual test approved in Roth and Memoirs,
these regulations create a system of per se rules to be
applied regardless of context: Certain acts simply may
not be depicted and certain parts of the body may
under no circumstances be revealed. The regulations
thus treat on the same level a serious movie such as
"Ulysses" and a crudely made "stag film." They ban
not only obviously pornographic photographs, but also
great sculpture from antiquity.6
5 I do not mean to suggest that this test need be rigidly applied
in all situations. Different standards may be applicable when
children are involved, see Ginsberg v. New York, 390 U. S. 629
(1968); when a consenting adult possesses putatively obscene material
in his own home, see Stanley v. Georgia, 394 U.S. 557 (1969); or
when the material by the nature of its presentation cannot be viewed
as a whole, see Rabe v. Washington, 405 U.S. 313, 317 n. 2 (1972)
(BuRGER, C. J., concurring). Similarly, I do not mean to foreclose the
possibility that even the Roth-Memoirs test will ultimately be found
insufficient to protect First Amendment interests when consenting
adults view putatively obscene material in private. Cf. Redrup v.
New York, 386 U. S. 767 (1967). But cf. United States v. Reidel,
402 U. S. 351 ( 1971). But I do think that, at very least, Roth-
Jf emoirs sets an absolute limit on the kinds of speech that can be
altogether read out of the First Amendment for purposes of consenting
adults.
6 Cf. Fuller, Changing Society Put9 Taste to the Test, The National
Observer, June 10, 1972, p. 24: "Context is the essence of
est.hetic judgment . . . . There is a world of difference between
128 OCTOBER TERM, 1972
MARSHALL, J., dissenting 409U.S.
Roth held 15 years ago that the suppression of serious
communication was too high a price to pay in
order to vindicate the State's interest in controlling
obscenity, and I see no reason to modify that judgment
today. Indeed, even the appellants do not seriously
contend that these regulations can be justified under
the Roth-Memoirs test. Instead, appellants argue that
California's regulations do not concern the control of
pornography at all. These rules, they argue, deal with
conduct rather than with speech and as such are not subject
to the strict limitations of the First Amendment.
To support this proposition, appellants rely primarily
on United States v. O'Brien, 391 U.S. 367 (1968), which
upheld the constitutionality of legislation punishing the
destruction or mutilation of Selective Service certificates.
O'Brien rejected the notion that "an apparently limitless
variety of conduct can be labeled 'speech' whenever the
person engaging in the conduct intends thereby to express
an idea," and held that Government regulation
of speech-related conduct is permissible "if it is within
the constitutional power of the Government; if it furthers
an important or substantial governmental interest; if
the governmental interest is unrelated to the suppression
of free expression; and if the incidental restriction
on alleged First Amendment freedoms is no greater than
is essential to the furtherance of that interest." Id., at
376, 377.
Playboy and less pretentious girly magazines on the one hand, and
on the other, The Nude, a picture selection from the whole history
of art, by that fine teacher and interpreter of civilization, Kenneth
Clark. People ma.y be just as naked in one or the other, the bodies
inherently just as beautiful, but the context of the former is vulgar,
of the latter, esthetic.
"The same words, the same actions, that a.re cheap and tawdry
in one book or play may contribute to the sublimity, comic universality,
or tragic power of others. For a viable theory of taste,
context is all."
CALIFORNIA v. LARUE 129
109 MARSHALL, J., dissenting
While I do not quarrel with these principles as stated
in the abstract, their application in this case stretches
them beyond the breaking point.7 In O'Brien, the
Court began its discusc;ion by noting that the statute
in question "plainly does not abridge free speech on its
face." Indeed, even O'Brien himself conceded that
facially the statute dealt "with conduct having no connection
with speech." 8 Id., at 375. Here, the situation
is quite different. A long line of our cases makes
clear that motion pictures, unlike draft-card burning,
are a form of expression entitled to prima facie First
Amendment protection. "It cannot be doubted that
motion pictures are a significant medium for the communication
of ideas. They may affect public attitudes
and behavior in a variety of ways, ranging from direct
espousal of a political or social doctrine to the subtle
shaping of thought which characterizes all artistic expression.
The importance of motion pictures as an organ
of public opinion is not lessened by the fact that they
are designed to entertain as well as to inform." Joseph
Burstyn, Inc. v. Wilson, 343 U. S. 495, 501 (1952) (footnote
omitted). See also Interstate Circuit, Inc. v. City of
Dallas, 390 U. S. 676 (1968); Jacobellis v. Ohio, 378 U.S.
7 Moreover, ewn if the O'Brien test were here applicable, it is far
from clear that it has been satisfied. For example, most of the evils
that the State alleges are caused by appellees' performances are
already punishable under California law. Seen. 11, infra. Since the
less drastic alternative of criminal prosecution is available to punish
these violations, it is hard to see how "the incidental restriction on
alleged First Amendment freedoms is no greater than is essential"
to further the State's interest.
8 The Court pointed out that the statute "does not distinguish
between public and private destruction, and it does not punish only
destruction engaged in for the purpose of expressing views . . . . A
law prohibiting destruction of Selective Service certificates no more
abridges free speech on its face than a motor vehicle law prohibiting
the destruction of drivers' licenses, or a tax Jaw prohibiting the
d~truction of books and records." 391 U. S., at 375.
130 OCTOBER TERM, 1972
MARSHALL, J., dissenting 409 U.S.
184 (1964); Pinkus v. Pitchess, 429 F. 2d 416 (CA91970),
aff'd by equally divided court sub nom. California v.
Pinkus, 400 U. S. 922 (1970). Similarly, live performances
and dance have, in recent years, been afforded broad
prima facie First Amendment protection. See, e. g.,
Schacht v. United States, 398 U.S. 58 (1970); P. B. I. C.,
Inc. v. Byrne, 313 F. Supp. 757 (Mass. 1970), vacated to
consider mootness, 401 U. S. 987 (1971); In re Giannini,
69 Cal. 2d 563, 446 P. 2d 535 (1968), cert. denied sub
nom. California v. Giannini, 395 U. S. 910 (1969).
If, as these many cases hold, movies, plays, and the
dance enjoy constitutional protection, it follows, ineluctably
I think, that their component parts are protected as
well. It is senseless to say that a play is "speech"
within the meaning of the First Amendment, but that
the individual gestures of the actors are "conduct" which
the State may prohibit. The State may no more allow
movies while punishing the "acts" of which they are
composed than it may allow newspapers while punishing
the "conduct" of setting type.
Of course, I do not mean to suggest that anything
which occurs upon a stage is automatically immune
from state regulation. No one seriously contends, for
example, that an actual murder may be legally committed
so long as it is called for in the script, or that
an actor may inject real heroin into his veins while
evading the drug laws that apply to everyone else.
But once it is recognized that movies and plays enjoy
prima facie First Amendment protection, the standard
for reviewing state regulation of their component parts
shifts dramatically. For while "[m]ere legislative preferences
or beliefs respecting matters of public convenience
may well support regulation directed at other
personal activities, [ they are] insufficient to justify such
as diminishes the exercise of rights so vital" as freedom
CALIFORNIA v. LARUE 131
109 MARSHALL, J., dissenting
of speech. Schneider v. State, 308 U.S. 147, 161 (1939).
Rather, in order to restrict speech, the State must show
that the speech is "used in such circumstances and [is]
of such a nature as to create a clear and present danger
that [it] will bring about the substantive evils that
[the State] has a right to prevent." Schenck v. United
States, 249 U. S. 47, 52 (1919). Cf. Brandenburg v.
Ohio, 395 U. S. 444 (1969); Dennis v. United States,
341 U. S. 494 (1951).9
When the California regulations are measured against
this stringent standard, they prove woefully inadequate.
Appellants defend the rules as necessary t-0 prevent sex
crimes, drug abuse, prostitution, and a wide variety of
other evils. These are precisely the same interests
that have been asserted time and again before this
Court as justification for laws banning frank discussion
of sex and that we have consistently rejected. In fact,
the empirical link between sex-related entertainment
and the criminal activity popularly associated with it
has never been proved and, indeed, has now been largely
discredited. See, e. g., Report of the Commission on
Obscenity and Pornography 27 ( 1970); Cairns, Paul,
& Wishner, Sex Censorship: The Assumptions of Anti-
Obscenity Laws and the Empirical Evidence, 46 Minn.
L. Rev. 1009 (1962). Yet even if one were to concede
that such a link existed, it would hardly justify a broadscale
attack on First Amendment freedoms. The only
way to stop murders and drug abuse is to punish them
directly. But the State's interest in controlling material
9 Of course, the State need not meet the clear and present danger
test if the material in question is obscene. See Roth v. United
States, 354 U. S. 476 (1957) . But, as argued above, the difficulty
with California's rules is that they do not conform to the Roth test
and therefore regulate material that is not obscene. See supra, at
126-127.
132 OCTOBER TERM, 1972
MARSHALL, J., dissenting 409 U.S.
dealing with sex is secondary in nature.10 It can control
rape and prostitution by punishing those acts, rather
than by punishing the speech that is one step removed
from the feared harm.11 Moreover, because First
Amendment rights are at stake, the State must adopt
this "less restrictive alternative" unless it can make a
compelling demonstration that the protected activity
and criminal conduct are so closely linked that only
through regulation of one can the other be stopped.
Cf. United States v. Robel, 389 U. S. 258, 268 (1967).
As we said in Stanley v. Georgia, 394 U. S. 557, 566-567
(1969), "if the State is only concerned about printed or
filmed materials inducing antisocial conduct, we believe
that in the context of private consumption of ideas and
information we should adhere to the view that '[a]mong
free men, the deterrents ordinarily to be applied to prel
0 This case might be different if the State asserted a primary
interest in stopping the very acts performed by these dancers and
actors. However, I have serious doubts whether the State may
constitutionally assert an interest in regulating any sexual act between
consenting adults. Cf. Griswold v. Connecticut, 381 U. S.
479 (1965). Moreover, it is unnecessary to reach that question in
this case since the State's regulations are plainly not designed to stop
the acts themselves, most of which are in fact legal when done in
private. Rather, the State punishes the acts only when done in
public as part of a dramatic presentation. Cf. United States v.
O'Brien, supra, at 375. It must be, therefore, that the asserted state
interest stems from the effect of the acts on the audience rather than
from a desire to stop the acts themselves. It should also be emphasized
that this case does not present problems of an unwilling audience
or of an audience composed of minors.
1l Indeed, California already has statutes controlling virtually all
of the misconduct said to flow from appellees' activities. See Calif.
Penal Code § 647 (b) (Supp. 1972) (prostitution); Calif. Penal Code
§§ 261, 263 (1970) (rape); Calif. Bus. & Prof. Code § 25657 (Supp.
1972) ("B-Girl" activity); Calif. Health & Safety Code §§ 11500,
11501, 11721, 11910, 11912 (1964 and Supp 1972) (sale and use of
narcotics).
CALIFORNIA v. LARUE 133
109 MARSHALL, J., dissenting
vent crime are education and punishment for violations
of the law .... ' Whitney v. California, 274 U. S. 357,
378 (1927) (Brandeis, J., concurring). . . . Given the
present state of knowledge, the State may no more
prohibit mere possession of obscene matter on the ground
that it may lead to antisocial conduct than it may prohibit
possession of chemistry books on the ground that
they may lead to the manufacture of homemade
spirits." 12
II
It should thus be evident that, under the standards
previously developed by this Court, the California regulations
are over broad: They would seem to suppress
not only obscenity outside the scope of the First Amendment,
but also speech that is clearly protected. But
California contends that these regulations do not involve
suppression at all. The State claims that its rules are
not regulations of obscenity, but are rather merely regulations
of the sale and consumption of liquor. Appellants
point out that California does not punish establishments
which provide the proscribed entertainment, but
only requires that they not serve alcoholic beverages on
their premises. Appellants vigorously argue that such
regulation falls within the State's general police power
as augmented, when alcoholic beverages are involved, by
the Twenty-first Amendment.13
12 Of course, it is true that Stanley does not govern this case, since
Stanley dealt only with the private possession of obscene materials
in one's own home. But in another sense, this case is stronger than
Stanley. In Stanley, we held that the State's interest in the prevention
of sex crimes did not justify laws restricting possession of
certain materials, even though they were conceded to be obscene.
It follows a fortiori that this interest is insufficient when the materials
are not obscene and, indeed, are constitutionally protected.
13 The Twenty-first Amendment, in addition to repealing the
Eighteenth Amendment, provides: "The transportation or iruporta134
OCTOBER TERM, 1972
MARSHALL, J., dissenting 409 U. s.
I must confess that I find this argument difficult to
grasp. To some extent, it seems premised on the notion
that the Twenty-first Amendment authorizes the States
to regulate liquor in a fashion which would otherwise
be constitutionally impermissible. But the Amendment
by its terms speaks only to state control of the importation
of alcohol, and its legislative history makes clear
that it was intended only to permit "dry" States to
control the flow of liquor across their boundaries despite
potential Commerce Clause objections.14 See generally
Seagram & Sons v. Hostetter, 384 U. S. 35 (1966);
Hostetter v. Idlewild Liquor Corp., 377 U. S. 324
(1964). There is not a word in that history which
indicates that Congress meant to tamper in any way
with First Amendment rights. I submit that the
framers of the Amendment would be astonished to
tion into any State, Territory, or possession of the United St1>tes for
delivery or use therein of intoxicating liquors, in violation of the
Jaws thereof, is hereby prohibited."
14 The text of the Amendment is based on the Webb-Kenyon Act,
37 Stat. 699, which antedated prohibition. The AC't was entitled
"An Act Divesting intoxicating liquors of their interstate character
in certain cases," and was designed to allow "dry" States
to regulate the flow of alcohol across their borders. See, e. g., Mc-
Cormick & Co. v. Brown, 286 U. S. 131, 140-141 (1932); Clark
Distilling Co. v. Western Maryland R. Co., 242 U.S. 311,324 (1917).
The Twenty-first Amendment was intended to embed this principle
permanently into the Constitution. As explained by its sponsor on
the Senate floor "to assure the so-called dry States against the importation
of intoxicating liquor into those States, it is proposed to
write permanently into the Constitution a prohibition along that line.
"[TJhe pending proposal will give the States that guarantee.
When our Government was organized and the Constitution of the
United States adopted, the States surrendered control over and regulation
of interstate commerce. This proposal is restoring to the
States, in effect, the right to regulate commerce respecting a single
commodity-namely, intoxicating liquor." 76 Cong, Rec. 4141 (remarks
of Sen. Blaine).
CALIFORNIA v. LARUE 135
109 MARSHALL, J., dissenting
discover that they had inadvertently enacted a pro
tanto repealer of the rest of the Constitution. Only
last Term, we held that the State's conceded power
to license the distribution of intoxicating beverages
did not justify use of that power in a manner
that conflicted with the Equal Protection Clause. See
Moose Lodge No. 107 v. Irv-is, 407 U. S. 163, 178-179
(1972). Cf. Wisconsin v. Constantineau, 400 U. S. 433
(1971); Hornsby v. Allen, 326 F. 2d 605 (CA5 1964).
I am at a loss to understand why the Twenty-first
Amendment should be thought to override the First
Amendment but not the Fourteenth.
To be sure, state regulation of liquor is important,
and it is deeply embedded in our history. See, e. g.,
Colonnade Catering Corp. v. United States, 397 U. S.
72; 77 (1970). But First Amendment values are important
as well. Indeed, in the past they have been thought
so important as to provide an independent restraint on
every power of Government. "Freedom of press, freedom
of speech, freedom of religion are in a pref erred
position." Murdock v. Pennsylvania, 319 U. S. 105,
115 (1943). Thus, when the Government attempted
to justify a limitation on freedom of association by reference
to the war power, we categorically rejected the
attempt. "[The] concept of 'national defense' " we
held, "cannot be deemed an end in itself, justifying any
exercise of legislative power designed to promote such
a goal. Implicit in the term 'national defense' is the
notion of defending those values and ideals which set
this Nation apart. For almost two centuries, our country
has taken singular pride in the democratic ideals
enshrined in its Constitution, and the most cherished
of those ideals have found expression in the First Amendment.
It would indeed be ironic if, in the name of
national defense, we would sanction the subversion of
one of those liberties-the freedom of association-which
136 OCTOBER TERM, 1972
MARSHALL, J., dissenting 409 U.S.
makes the defense of the Nation worthwhile." United
States v. Robel, 389 U. S., at 264. Cf. New York Times
Co. v. United States, 403 U. S. 713, 716-717 (1971)
(Black, J., concurring); Home Bldg. & Loan Assn. v.
Blaisdell, 290 U.S. 398,426 (1934). If the First Amendment
limits the means by which our Government can
ensure its very survival, then surely it must limit the
State's power to control the sale of alcoholic beverages
as well.
Of course, this analysis is relevant only to the extent
that California has in fact encroached upon First Amendment
rights. Appellants argue that no such encroachment
has occurred, since a.ppellees are free to continue
providing any entertainment they choose without fear
of criminal penalty. Appellants suggest that this case
is somehow different because all that is at stake is the
"privilege" of serving liquor by the drink.
It should be clear, however, that the absence of criminal
sanctions is insufficient to immunize state regulation
from constitutional attack. On the contrary,
"this is only the beginning, not the end, of our inquiry."
Sherbert v. Verner, 374 U.S. 398, 403-404 (1963). For
" [ i] t is too late in the day to doubt that the liberties
of religion and expression may be infringed by the
denial of or placing of conditions upon a benefit or
privilege." Id., at 404. As we pointed out only last
Term, "[f]or at least a quarter-century, this Court has
made clear that even though a person has no 'right'
to a valuable governmental benefit and even though
the government may deny him the benefit for any
number of reasons, there are some reasons upon which
the government may not rely. It may not deny a benefit
to a person on a basis that infringes his constitutionally
protected interests- especially, his interest in freedom
of speech. For if the government could deny a
benefit to a person because of his constitutionally proCALIFORNIA
v. LARUE 137
109 MARSHALL, J., dissenting
tected speech or associations, his exercise of those freedoms
would in effect be penalized and inhibited." Perry
v. Sindermann, 408 U. S. 593, 597 (1972).
Thus, unconstitutional conditions on welfare benefits,15
unemployment compensation,10 tax exemptions,17 public
employment,18 bar admissions,19 and mailing privileges 20
have all been invalidated by this Court. In none of
these cases were criminal penalties involved. In all of
them, citizens were left free to exercise their constitutional
rights so long as they were willing to give up a
"gratuity" that the State had no obligation to provide.
Yet in all of them, we found that the discriminatory
provision of a privilege placed too great a burden on
constitutional freedoms. I therefore have some difficulty
in understanding why California nightclub proprietors
should be singled out and informed that they
alone must sacrifice their constitutional rights before
gaining the "privilege" to serve liquor.
Of course, it is true that the State may in proper
circumstances enact a broad regulatory scheme that
incidentally restricts First Amendment rights. For example,
if California prohibited the sale of alcohol altogether,
I do not mean to suggest that the proprietors
15 See Shapiro v. 'Thompson, 394 U.S. 618 (1969). But cf. Wyman
v. James, 400 U. S. 309 (1971).
16 See Sherbert v. Verner, 374 U.S. 398 (1963).
17 See Speiser v. Randoll, 357 U.S. 513 (1958).
18 See, e.g., Pickering v. Board of Education, 391 U.S. 563 (1968);
Keyishian v. Board of Regents, 385 U. S. 589 (1967); Baggett v.
Bullitt, 377 U.S. 360 (1964).
19 See, e. g., Baird v. State Bar of Arizona, 401 U. S. 1 (1971);
Konigsberg v. State Bar, 353 U. S. 252 (1957); Schware v. Board
of Bar Examiners, 353 U.S. 232 (1957). But cf. Law Students Civil
Rights Research Council v. Wadmond, 401 U.S. 154 (1971); Konigsberg
v. State Bar, 36G U.S. 36 (1961) .
20 See, e. g., Blount v. Rizzi, 400 U. S. 410 (1971); Hannegan v.
Esquire Im., 327 U. S. 146, 156 (1946).
138 OCTOBER TERM, 1972
MARSHALL, J., dissenting 409 u. s.
of theaters and bookstores would be constitutionally
entitled to a special dispensation. But in that event,
the classification would not be speech related and, hence,
could not be rationally perceived as penalizing speech.
Classifications that discriminate against the exercise of
constitutional rights per se stand on an altogether different
footing. They must be supported by a "compelling"
governmental purpose and must be carefully
examined to insure that the purpose is unrelated to mere
hostility to the right being asserted. See, e. g., Shapiro
v. Thompson, 394 U. S. 618, 634 (1969).
Moreover, not only is this classification speech related;
it also discriminates between otherwise indistinguishable
parties on the basis of the content of their speech.
Thus, California nightclub owners may present live
shows and movies dealing with a wide variety of topics
while maintaining their licenses. But if they choose
to deal with sex, they are treated quite differently. Classifications
based on the content of speech have long been
disfavored and must be viewed with the gravest suspicion.
See, e.g., Cox v. Lou-is-iana, 379 U.S. 536, 556-558
( 1965). Whether this test is thought to derive from
equal protection analysis, see Police Department of Chicago
v. Mosley, 408 U.S. 92 (1972); Niemotko v. Maryland,
340 U. S. 268 (1951), or directly from the substantive
constitutional provision involved, see Cox v.
Louisiana, supra; Schneider v. State, 308 U.S. 147 (1939),
the result is the same: any law that has "no other
purpose ... than to chill the assertion of constitutional
rights by penalizing those who choose to exercise
them ... [is] patently unconstitutional." Unite,d States
v. Jackson, 390 U.S. 570, 581 (1968).
As argued above, the constitutionally permissible purposes
asserted to justify these regulations are too remote
to satisfy the Government's burden when First
Amendment rights are at stake. See supra, at 131- 133.
CALIFORNIA v. LARUE 139
109 MARSHALL, J., dissenting
It may be that the Government has an interest in suppressing
lewd or "indecent" speech even ,vhen it occurs in
private among consenting adults. Cf. United States
v. Thirty-seven Photographs, 402 U. S. 363, 376 ( 1971).
But cf. Stanley v. Georgia, 394 U. S. 557 ( 1969). That
interest, however, must be balanced against the overriding
interest of our citizens in freedom of thought and expression.
Our prior decisions on obscenity set such a
balance and hold that the Government may suppress
expression treating with sex only if it meets the threepronged
Roth-Memoirs test. We have said that "[t]he
door barring federal and state intrusion into this area
cannot be left ajar; it must be kept tightly closed and
opened only the slightest crack necessary to prevent encroachment
upon more important interests." Roth v.
United States, 354 U. S., at 488. Because I can see no
reason why we should depart from that standard in
this case, I must respectfully dissent.
140 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
UNION OIL CO. OF CALIFORNIA v. THE
SAN JACINTO ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 71-900. Argued October 17, 1972-Decided December 5, 1972
Implicit in that portion of Art. 16 of the Inland Rules of Navigation
that directs a moderate speed for vessels proceeding in foggy
weather, and in the concomitant half-distance rule, is the assumption
that vessels can reasonably be expected to be traveling on
intersecting courses. On the facts of this case, it was totally unrealistic
to anticipate the possibility that the vessels were on intersecting
courses and the rule was not applicable. Pp. 144-146.
451 F. 2d 1369, reversed.
REHNQUIST, J., delivered the opinion of the Court, in which
BuRGER, C. J., and WHITE, lYlARSHALL, BLACKMUN, and PowELL,
JJ., joined. STEWART, J., filed a dissenting opinion, in which DouGLAS
and BRENNAN, JJ., joined, post, p. 147.
Kenneth E. Roberts argued the cause and filed briefs
for petitioner.
Erskine B. Wood argued the cause and filed briefs for
respondents.
MR. JusTICE REHNQUIST delivered the opinion of the
Court.
While proceeding up the Columbia River, the oil tanker
S. S. Santa Maria, bareboat chartered by petitioner, was
struck by a barge owned by respondent Oliver J. Olson &
Co. The barge was being towed by the tugboat San Jacinto,
owned by respondent Star & Crescent Towboat Co.
Both vessels were damaged. Petitioner commenced this
admiralty action for damages to the Santa Maria, and
respondent cross-libeled for damages to the barge. The
District Court found the collision resulted solely from
UNION OIL CO. v. THE SAN JACINTO 141
140 Opinion of the Court
negligence on the part of the crew of the San Jacinto, and
dismissed the cross-libel. 304 F. Supp. 519 (Ore. 1969).
The Ninth Circuit affirmed the finding that the San
Jacinto had been negligent, but determined that the
Santa Maria was also negligent in violating the "halfdistance"
rule, 30 Stat. 99, 33 U. S. C. § 192. That court
therefore reversed with directions that the District Court
determine the amount of damage sustained by the barge
and assess damages under the divided-damages rule. See
The Schooner Catherine v. Dickinson, 17 How. 170
(1855). We granted certiorari, 405 U. S. 954 (1972),
principally to consider petitioner's request that we abandon
the divided-damages rule. The orderly disposition
of the issues presented by the petition for certiorari, however,
requires that we address ourselves to the issue of
liability before reaching the question of damages. Since
in so doing we conclude that the Court of Appeals was
wrong in holding the Santa Maria liable at all, we do not
reach the issue of damages.
I
On the evening of December 24, 1967, the Santa Maria,
loaded with 17,000 tons of petroleum products, was proceeding
up the Columbia River toward Portland. The
ship was steaming on the Oregon side of the channel, with
clear visibility. At the same time, the San Jacinto was
proceeding downriver, towing a 275-foot barge, fully
loaded with lumber, by a 250-foot towline. Proceeding
on the Washington side of the channel, it had encountered
foggy weather conditions upriver. As the San Jacinto
approached Cooper Point, the Santa Maria, steaming
upstream, sighted the tug both visually and by radar.
The two vessels were more than a mile apart and on
opposite sides of the 500-foot-wide shipping channel.
There was heavy fog, described as "tule fog," around
Cooper Point, but the fog was localized on the Washing142
OCTOBER TERM, 1972
Opinion of the Court 409 u. s.
ton side of the channel. Although there was haze and
drizzle, there was no fog on the Oregon side of the channel;
the visibility from the bridge of the Santa Maria
upstream was between one and one-half and two miles.
As the San Jacinto entered the fog on the Washington
side off Cooper Point, the Santa Maria lost visual contact
with the tug and barge. The Santa Maria's pilot
did not track the San Jacinto on radar, believing that the
tug would remain on the Washington side of the channel
and knowing that there was ample room for a port-toport
passage. At this time, the Santa Maria was proceeding
at half-speed making approximately seven knots.
The wateh on the San Jacinto had not sighted the Santa
Maria when the tug entered the heavy fog off Cooper
Point. The tug's captain testified that, after entering
the fog, he cut speed to three or three and one-half knots,
and the visibility dead ahead was approximately 50 yards.
The San Jacinto's navigators were "navigating by visual
sight of the Washington coast," and the captain estimated
that the tug passed between 50 and 75 yards off Cooper
Point. At that point, the crew of the San Jacinto heard
one blast of a ship's horn (later discovered to have been
that of the Santa Maria), and responded with the fog
signal for a tug with a barge in tow. No visual sighting
of a ship was made, however. Shortly thereafter, the
captain sighted range lights, which, he testified, he
thought were 20 degrees off his starboard bow. To avoid
what he anticipated to be a momentary collision, the
captain swung the San Jacinto to port-towards the Oregon
side of the channel-and executed a U-turn, hoping
to run upriver and thus avoid a collision.
The San Jacinto started the U-turn while still in the
heavy fog, and the execution of the turn brought the tug
on a course directly across that of the Santa Maria. The
Santa Maria sighted the San Jacinto emerging from the
fog, at right angles to the Santa Maria, at a distance of
UNION OIL CO. v. THE SAN JACINTO 143
140 Opinion of the Court
approximately 900 feet. Full astern was immediately
ordered. The San Jacinto, quickly completing the turn,
headed safely upriver. Before the Santa Maria could
completely stop, however, the barge in tow sideslipped
across the channel, crashing into the port bow of the
Santa Maria; the force of that blow drove the tanker
aground.
The District Court found that the San Jacinto and the
barge, and those in charge of navigation, were negligent
in eight respects, including navigating at excessive speed,
failing to maintain a proper lookout, and "acting hastily
and without sufficient cause in pulling the tow across the
channel when there was adequate clearance for the tug
and barge to pass port to port." The court found that
"the collision was proximately caused by the sole fault
and negligence" of the San Jacinto and the barge, and
that the acts of negligence allegedly committed by the
Santa Maria did not "proximately [contribute] to the
collision and resulting damage." 304 F. Supp., at 521,
522.
The Ninth Circuit partially reversed, holding that the
Sar;,ta Maria was proceeding at an immoderate speed in
traveling at three to seven knots "while approaching the
edge of the fog bank." That court reasoned that the
San Jacinto was only 900 feet from the Santa Maria when
the tug emerged from the fog bank, and the Santa Maria's
speed was such that she could not stop within half that
distance. The court, relying on The Silver Palm, 94 F.
2d 754 (CA9), cert. denied sub nom. United States v.
Silver Line, Ltd., 304 U. S. 576 ( 1937), deemed it immaterial
that the visibility up the Oregon side of the
channel-the direction in which the Santa Maria was
headed-was almost two miles, because in its view the
"relevant distance" for calculating the proper speed under
the half-distance rule was the distance between the tanker
and the fog bank-to port of the Santa Maria. Finding
144 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
statutory fauJt, and ruling that petitioner had failed to
prove that that fault could not have possibly contributed
to the collision, see The Pennsylvania, 19 Wall. 125
( 187 4), the Court of Appeals held the Santa Maria liable
for half the total damages.
II
The question of the liability of the Santa Maria turns
on the application of Art. 16 of the Inland Rules of
Navigation, 33 U. S. C. § 192. That Rule provides in
pertinent part:
"Every vessel shall, in a fog, mist, falling snow,
or heavy rainstorms, go at a rrwderate speed, having
careful regard to the existing circumstances and
conditions." (Emphasis added.)
AJthough the statutory test for determining the proper
speed at which a vessel should proceed in a fog is
phrased in general terms, our decisions have attached
a well-recognized gloss to that phrase. This gloss on
the statutory rule, variously ref erred to as the half-distance
rule or the "rule of sight," is that, in a fog, "a
moderate speed" is that
"rate of speed as would enable [ the vessel] to come
to a standstill, by reversing her engines at full speed,
before she should collide with a vessel which she
should see through the fog." The Nacoochee, 137
U. S. 330, 339 (1890).
See also The Colorado, 91 U. S. 692, 702 (1876); The
Umbria, 166 U. S. 404, 417 (1897). As stated in The
Chattahoochee, 173 U.S. 540, 548 (1899), "[t]he principal
reason for such reduction of speed is that it will
give [both] vessels time to avoid a collision after coming
in sight of each other." If two vessels, upon sighting
each other, are proceeding at rates of speed such that
UNION OIL CO. v. THE SAN JACINTO 145
140 Opinion of the Court
each can stop before it reaches the point at which the
courses of the two intersect, collision is impossible.
There can be no quarrel with the salutary purpose of
this "rule of thumb." It is premised on the notion that
when a ship is traveling under foggy weather conditions
in waters in which other ships might be proceeding on
intersecting courses, the speed of each ship must be
such as to enable her to stop within half the distance
separating the ships when they first sight each other.
Implicit in the rule, however, is the assumption that
vessels can reasonably be expected to be traveling on
intersecting courses. If, on the facts of the case, it is
totally unrealistic to anticipate the possibility that a
vessel will travel on a particular heading that would
intersect the course of another ship, the reason for the
rule is rather clearly not present.
Those cases in which this Court has upheld a finding
of statutory fault because of a violation of the half-distance
rule involved ships proceeding in fog on established
coastal shipping lanes, The City of New York,
147 U. S. 72 (1893); The Nacoochee, supra; cf. The
Colorado, supra (Lake Huron), or ships traveling near
or in a harbor, The Umbria, supra; cf. The Ludvig Holberg,
157 U. S. 60 (1895) (no fault). We do not imply
that because a vessel is running near fog, as opposed to
running in it, the vessel is not required to proceed at
"a moderate speed" in relation to the distance to the
fog cover. That was, indeed, the circumstance in The
Silver Palm, supra, upon which the Ninth Circuit relied.
But there a naval cruiser was traveling, with clear visibility
ahead but with fog banks on each side, on the
busy coastal shipping lane between San Francisco and
Los Angeles. On such a course it is reasonable to expect
that another ship might steam out of the fog at right
angles to, and on a collision course with, the first vessel.
146 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
The rule of sight was applicable there precisely because
of the reasonable possibility that such an event
might occur.
The facts of our case were significantly different. The
Santa Maria and the San Jacinto were proceeding on
opposite sides of a well-defined and relatively narrow
channel. The Santa Marw had last sighted the tug only
a mile ahead, proceeding along the Washington coast.
Those in charge of the navigation of the tanker cannot
be faulted for not anticipating the tug's totally unorthodox
maneuver in darting across such a channel. The
Victory & The Plymothian, 168 U. S. 410 (1897). The
visibility in the direction in which the Santa Maria was
headed was almost two miles. There is no evidence in
the record suggesting that the speed of the tanker would
have prevented her from coming to a complete halt
within half the distance of sighting a vessel that was
either proceeding on a remotely foreseeable intersecting
course or else being overtaken by her. The tug emerged
from a fog bank only 900 feet from the tanker on a
course and for reasons that no seaman could, under
the circumstances, have anticipated.
The District Court's finding that any negligence on
the part of the Santa Marw did not "proximately [contribute]
to the collision" was but another way of saying
that fault based on the half-distance rule must have
some relationship to the dangers against which that
rule was designed to protect. Here it did not. We believe
that the District Court, and not the Court of
Appeals, reached the correct result on the issue of
liability.
Since in our view respondents alone were at fault,
there is no occasion to consider how damages should
be apportioned were both vessels at fault.
Reversed.
UNION OIL CO. v. THE SAN JACINTO 147
140 STF.WART, J., dissenting
MR. JUSTICE STEWART, with whom MR. JusTICE Doua-
LAS and MR. JusrrcE BRENNAN join, dissenting.
On a misty Christmas Eve the petitioner's oil tankerthe
Santa Maria-was moving upstream along the Oregon
side of the channel of the Columbia River. The vessel
was proceeding at half speed with forward visibility of
one and a half to two miles. Both visually and by radar,
the tanker's pilot sighted the respondent tug, the San
Jacinto, which was moving downstream along the Washington
side of the channel more than a mile ahead. The
tug, with a heavily laden barge in tow, disappeared from
sight into a patch of fog. The inexperienced crew of the
tug became disoriented in the fog and mistakenly thought
the tanker had veered to the Washington side of the
channel. To avoid what he believed would be a collision,
the master of the tug executed a sharp leftward U-turn
directly into the path of the oncoming tanker. While
the tug successfully completed its turn, the barge swung
around and smashed into the tanker, damaging her forward
left side and driving her aground.
In a complaint and cross-complaint the owners of both
vessels sued, each charging the other with sole blame.
The District Court found that the collision was entirely
the fault of the tug--in navigating at an unreasonable
speed in fog, in failing to maintain a proper lookout, in
failing to sound fog signals, in failing to ascertain the
risk of collision and sound the danger signal, in failing to
reduce speed or take any evasive action, in failing to keep
the tow in control, and in turning directly into the path
of the tanker. 304 F. Supp. 519. Finding that the
tanker was also at fault in proceeding at a rate in excess
of that which would have allowed her to stop in one-half
the visibility before her, the Court of Appeals for the
Ninth Circuit modified the judgment of the District
Court. 451 F. 2d 1369. Though the tug's fault was
148 OCTOBER TERM, 1972
STEWART, .T., dissenting 409 U.S.
"more flagrant and shocking," id., at 1374, the tanker was
held liable for half the damages, since she was unable to
prove that her fault could not possibly have contributed
to the collision.1
I would reaffirm the continued vitality of the "halfdistance"
rule and approve its application in this case.
I cannot concur in the Court's decision , which, while apparently
approving the "salutary purpose" of the rule,
guts its certainty by making its application turn on elusive
concepts such as the reasonable possibility of collision,
or the particular bearing that a vessel might be
expected to take on emerging from a fog bank. In short,
the Court today allows a vessel to proceed at an immoderate
speed, provided that its crew does not expect
a collision. I cannot agree.
The half-distance rule is a rational interpretation of
the command of Art. 16 of the Inland Rules that vessels
shall proceed at a "moderate speed" in fog with a
"careful regard to the existing circumstances and conditions."
33 U. S. C. § 192. The rule does not simply
require a vessel to be able to stop in one-half the distance
of her forward visibility, but rather "to maintain
only such a rate of speed as would enable her to come
to a standstill, by reversing her engines at full speed,
before she should collide with a vessel which she should
see through the fog." The Nacoochee, 137 U.S. 330, 339.2
As one scholar phrased the rule: "the vessels must be
able to stop, not within the distance of visibility, but
1 See The Pennsylvania, 19 Wall. 125, 136; O/Y Finla yson-Forssa
A/B v. Pan Atlantic S. S. Corp., 259 F. 2d 11 , 22.
2 "The gPneral consensus of opinion in this country is to the effect
that a steamer is bound to use only such precautions as will enable
her to stop in time to avoid a collision, after the approaching vessel
comes in sight, provided such approaching vessel is herself going at
the moderate speed required by law." The Umbria, 166 U. S. 404,
417.
UNION OIL CO. v. THE SAN JACINTO 149
140 STEWART, J., dissenting
before they collide." J. Griffin, The American Law of
Collision 295 ( 1949).
In this case, the crew of the Santa Maria knew that the
San Jacinto had disappeared into a fog bank over a mile
ahead on the Washington side of the narrow channel.
The tanker nevertheless st€amed ahead at half-speed as
it approached the edge of the fog bank. When the Santa
Maria sighted the tug emerging from the fog and cutting
directly across her course, no more than 900 feet separated
the vessels. The Court of Appeals found a violation of
the half-distance rule in that the tanker could not stop
within 450 feet.3 Indeed, since the tug had turned back
upstream at the time of the tanker's collision with the
barge, the Santa Maria covered considerably more than
half the distance that initially separated the vessels.
I agree with the Court of Appeals that the half-distance
rule correctly applies to the facts of this case. Not
only was the Santa Maria navigating near a fog bank in
a narrow, heavily traveled shipping channel, but she
actually knew that a tug was in the fog bank off the port
bow; the tug might become disoriented in the fog and
emerge on a collision course. And for that reason the
Santa Maria should not have been proceeding at a rate
in excess of the speed which would have allowed her to
stop in half the distance ahead. The tug emerged from
the fog and cut directly across the path of the tanker,
approximately 900 feet ahead. But surely the half-distance
rule does not apply only to head-on collisions. See
The Silver Palm, 94 F. 2d 754. Moreover, the tanker
here should not be any less at fault because the tug
emerged tangentially to her course rather than on a
3 The District Court appears to have assumed as much:
"It is my view that any possible violation of Article 16 of the Inland
Rules by the SS Santa Maria, or those in charge of her navigation,
were technical in nature and were not a contributing cause of the
collision." 304 F. Supp. 519, 522.
150 OCTOBER TERM, 1972
STEWART, J., dissenting 409 u. s.
head-on collision course. If the tug had altered her
course in the fog and emerged steaming head on into the
tanker rather than across her course--which would have
been quite possible since the channel was only 500 feet
wide at this point-the Santa Maria would still have had
to stop within 450 feet. Since the tug was not closing
the distance between the vessels, the tanker actually had
more distance within which to stop than she would have
had if the tug had followed a more orthodox collision
course. The half-distance rule cannot mean that a ship
can travel in the direction of a fog bank, oblivious to the
possibility that another vessel might become lost there
and steam out across or into the first vessel's path.
Concepts such as "reasonable expectancy," "anticipated
possibility," and "reasonable possibility," do little service
to the half-distance rule. "[T]he genius of the Rules
for Prevention of Collision is their certainty." Hess
Shipping Corp. v. S.S. Charles Lykes, 417 F. 2d 346, 351
(Brown, J., dissenting). The half-distance rule is effective
precisely because it is a measurable rule of thumb,
a nautical speed limit. Speed limits would serve no useful
purpose if they applied only when there was a foreseeable
probability that an accident might occur.
Since I cannot say that the Court of Appeals for the
Ninth Circuit incorrectly concluded that the Santa Maria
had violated the half-distance rule, and that she was
unable to prove that her fault could not have contributed
to the collision, I would reach the question that we
granted certiorari in this case to consider-the continued
validity of the divided-damages rule. The Court, however,
does not address that question, and I therefore
refrain from expressing my views upon it.
TIDEWATER OIL CO. v. UNITED STATES 151
Opinion of the Court
TIDEWATER OIL CO. v. UNITED STATES ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 71-366. Argued October 11, 1972-Decided December 6, 1972
The Expediting Act, providing that in a civil antitrust action brought
by the United States in a federal district court an appeal from
that court's final judgment will lie only to this Court, lodged exclusive
appellate jurisdiction over such actions in this Court and
thus bars the courts of appeals from asserting jurisdiction over
interlocutory orders covered by 28 U.S. C. § 1292 (b), as well as
over other interlocutory orders specified in § 1292 (a). The legislative
history of those provisions contains no indication of a congressional
intent to impair the original exclusivity of this Court's
jurisdiction under the Expediting Act. Pp. 154-174.
Affirmed.
MARSHALL, J., delivered the opinion of the Court, in which BURGER,
C. J., and BRENNAN, WHITE, BLACKMUN, and POWELL, JJ., joined.
WHITE, J., filed a concurring statement, post, p. 174. DouGLAs, .J.,
filed a dissenting opinion, post, p. 174. STEWART, J., filed a dissenting
opinion, which REHNQUIST, J., joined, and Douar.As, J., joined
in part, post, p. 178.
Moses Lasky argued the cause for petitioner. With
him on the briefs was C. Lansing Hays, Jr.
A. Raymond Randolph, Jr., argued the cause for the
United States pro hac vice. With him on the brief were
Solicitor General Gmwold and Assistant Attorney General
Kauper.
MR. JUSTICE MARSHALL delivered the opinion of the
Court.
On July 13, 1966, the United States filed a civil
antitrust suit against Phillips Petroleum Co. (Phillips)
and petitioner Tidewater Oil Co. (Tidewater). The
complaint alleged that Phillips' acquisition of certain
152 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
assets and operations of Tidewater violated § 7 of the
Clayton Act, 38 Stat. 731, as amended, 15 U. S. C. § 18.
The District Court denied the United States' motion for
a temporary restraining order to prevent consummation
of the acquisition,1 and its subsequent motion for a preliminary
injunction to require either rescission of the
acquisition or maintenance by Phillips of the going-concern
value of the transferred assets and operations.
Petitioner continued as a party to the suit during some
five years of pretrial discovery and preparation.2 Then
in April 1971, following the Government's announcement
that it was ready for trial, petitioner moved to be dismissed
as a party.3 The District Court denied the motion,
but found that it involved "a controlling question
of law as to which there is substantial ground for difference
of opinion and that an immediate appeal from
[the] order may materially advance the ultimate termination
of this litigation." It therefore certified "its order
denying defendant's motion to dismiss for interlocutory
appeal under Section 1292 (b) of Title 28 of the United
States Code." As required by the statute, Tidewater
then applied to the Court of Appeals for the Ninth Circuit
for leave to prosecute the appeal. That court, however,
denied the application relying solely on its previous
1 Tidewater then transferred title to its Western Marketing and
Manufacturing Division to Phillips.
2 Tidewater merged with Getty Oil Co. on September 30, 1967.
It has never been contended that that merger altered Tidewater's
legal status in this case.
3 In its motion to be dismissed, Tidewater contended "that Section
7 of the Clayton Act is directed only against the acquiring
corporation and not against the seller, that the sale of assets
by defendant Tidewater Oil Company to Phillips Petroleum Company
has long ago been consummated, that no relief is obtainable
against Tidewater Oil Company, and that its presence in the suit
is no longer necessary or appropriate."
TIDEWATER OIL CO. v. UNITED STATES 153
151 Opinion of the Court
decision in United States v. FMC Corp., 321 F. 2d 534
(1963). There an attempt was made to appeal an interlocutory
order denying a preliminary injunction in a
Government civil antitrust case. Notwithstanding that
28 U. S. C. § 1292 (a)(l) provides for an appeal of
right to the courts of appeals from an order granting or
denying preliminary injunctions, the Ninth Circuit held
that it lacked jurisdiction over such an appeal in a Government
civil antitrust case because of § 2 of the Expediting
Act of 1903, 32 Stat. 823, as amended, 15 U. S. C.
§ 29, which provides that "[i]n every civil action brought
in any district court of the United States under any of
[ the Antitrust] Acts, wherein the United States is complainant,
an appeal from the final judgment of the district
court will lie only to the Supreme Court." In this
case, then, the Court of Appeals extended its prior ruling
to interlocutory orders within§ 1292 (b). Because this
decision raises an important question of federal appellate
jurisdiction and because a conflict among the circuits
subsequently developed on this question,' we granted certiorari.
5 For the reasons that follow, we affirm the
decision of the Court of Appeals.
• Subsequent to the decision by the Ninth Circuit in this case,
the Court of Appeals for the Seventh Circuit held that § 1292 (b)
could be used to take an interlocutory appeal in a Government civil
antitrust case. See Fisons Ltd. v. United States, 458 F. 2d 1241,
1244-1248, cert. denied, 405 U. S. 1041 (1972). The only other
court of appeals to consider the question, the Court of Appeals for
the District of Columbia Circuit, reached the same result as the
Ninth Circuit in this case. See Farbenfabriken Bayer, A. G. v.
United States, 1968 CCH Trade Cas. ,r 72,570, cert. denied, 393 U.S.
959 (1968); Glaxo Group, Ltd. v. United States, ]Hise. No. 3261
(June 25, 1968).
5 405 U. S. 986 (1972). We had originally denied certiorari, 404
U.S. 941 (1971).
154 OCTOBER TERM, 1972
Opinion of the Court 409 u. s.
I
To determine the relevance of 28 U. S. C. § 1292 (b)
for Government civil antitrust cases, it is necessary first
to consider the original purpose of § 2 of the Expediting
Act and the over half-century of experience with that
section in the context of interlocutory appeals provisions
that preceded the enactment of § 1292 (b) in 1958.6
In an effort to "expedite [certain] litigation of great
and general importance," 36 Cong. Rec. 1679 (remarks
of Sen. Fairbanks) ,1 Congress enacted § 2 of the Expediting
Act in 1903 8 to withdraw all intermediate
appellate jurisdiction in Government civil antitrust
6 Act of Sept. 2, 1958, Pub. L. 85-919, 72 Stat. 1770.
7 See also Shenandoah Valley Broadcasting v. ASCAP, 375 U. S.
39, 40 (1963), modified, 375 U.S. 994 (1964).
Section I of the Expediting Act, 15 U. S. C. § 28, requires that
a three-judge district court be convened to hear any Government
civil antitrust case that the Attorney General certifies to be of
"general public importance." See also 49 U. S. C. § 44. This threejudge
court provision is also a reflection of the "great importance"
attached to Government civil antitrust cases and was intended
to provide a mechanism for full consideration of such cases by a
panel of judges "before presentation to the Supreme Court as if
heard by the United States circuit court of appeals." H. R. Rep.
No. 3020, 57th Cong., 2d Sess., 2 (1903). But this provision has
been seldom used.
8 Act of Feb. 11, 1903, § 2, 32 Stat. 823, as amended, Act of Mar. 3,
1911, § 291, 36 Stat. 1167; Act of June 9, 1944, c. 239, 58 Stat. 272;
Act of June 25, 1948, § 17, 62 Stat. 989. As originally enacted, the
statute read in relevant part as follows:
"That in every suit in equity pending or hereafter brought in any
circuit court of the United States under any of said Acts, wherein
the United States is complainant, ... an appeal from the final
decree of the circuit court will lie only to the Supreme Court and
must be taken within sixty days from the entry thereof .... "
There is no contention here that the very minor changes in wording
effected by the subsequent amendments and codifications of t.he
statute in any way altered the original meaning of the Act.
TIDEWATER OIL CO. v. UNITED STATES 155
151 Opinion of the Court
cases. At the time of the passage of the Expediting Act,
the then recently established circuit courts of appeals 0
had jurisdiction under the Evarts Act over an appeal
not only from a "final decision" 10 but also from "an
interlocutory order or decree" granting or continuing
an injunction or appointing a receiver "in a cause in which
an appeal from a final decree may be taken ... to the
circuit court of appeals." 11 Hence, by lodging exclusive
appellate jurisdiction over the "final judgment of the
district court" in this Court, the Expediting Act necessarily
eliminated court of appeals jurisdiction over appeals
from interlocutory, as well as final, decrees in Government
civil antitrust cases.
Congress thus initially determined to speed appellate
review by channeling appeals in Expediting Act cases
directly to this Court and to avoid the delay inherent
in piecemeal appeal by conditioning appeal upon the
presence of a "final judgment." 12 But mere speed in
9 Act of Mar. 3, 1891, § 2, 26 Stat. 826 .
• 10 Act of Mar. 3, 1891, § 6, 26 Stat. 828.
11 Act of .June 6, 1900, c. 803, 31 Stat. 660, amending Act of ~far. 3,
1891, § 7, 26 Stat. 828, as amended, Act of Feb. 18, 1895, 28 Stat. 666
( emphasis added).
12 In United States v. CaI,if ornia Cooperative Canneries_. 279 U. S.
553, 558 (1929), Mr. Justice Brandeis, speaking for the Court, detailed
the causes of delay that prompted the Expediting Act:
"Congress sought by the Expediting Act to ensure speedy disposition
of suits in equity brought by the United States under the
Anti-Trust Act. Before the passage of the Expediting Act the
opportunities for delay were many. From a final decree in the
trial court under the Anti-Trust Act an appeal lay to the Circuit
Court of Appeals; and six months were allowed for taking the
appeal. From the judgment of the Court of Appeals an appeal
lay to this Court; and one year was allowed for taking that appeal.
Act. of March 3, 1891, c. 517, §§ 6, 11, 26 Stat. 826, 828, 829.
See United States v. E. C. Knight Co., 60 Fed. 306; 60 Fed. 934;
156 U. S. 1; United States v. Trans-Missouri Freight Association,
,53 Fed. 440; 58 Fed. 58; 166 U. S. 290. Moreover, thNe might
156 OCTOBER TERM, 1972
Opinion of the Court 409U. S.
the disposition of Government civil antitrust cases was
not Congress' only concern; that result might have been
achieved simply by establishing procedures for the expeditious
handling of such cases in the courts of appeals.
Congress was also intent upon facilitating review by
this Court "of a class of antitrust cases deemed particularly
important." 13 Because of the importance of
uniform interpretation of the antitrust law,1' which
was still in its infancy in 1903, it is understandable that
Congress chose to establish this special appellate procedure
for Government civil antitrust cases, which were
thought generally to involve issues of wide importance.15
During the 25 years following the enactment of the
Expediting Act, Congress amended the Evarts Act provision
governing interlocutory appeals to the courts of
be an appeal to the Circuit Court of Appeals from a decree granting
or denying an interlocutory injunction, Act of June 6, 1900, c. 803,
31 Stat. 660."
See also United States AlkaJ,i Export Assn. v. United States, 325
U. S. 196, 203 (1945).
13 United States v. Cities Service Co., 410 F. 2d 662, 664 (CAI
1969); see Brown Shoe Co. v. United States, 370 U. S. 294, 364
(1962) (Harlan, J., dissenting in pa.rt and concurring in part); 36
Cong. Rec. 1679 (remarks of Sen. Fairbanks); cf. n. 7, supra.
14 Act of July 2, 1890, c. 647, 26 Stat. 209.
15 In saying this, we are not to be understood as necessarily accepting
today an important premise that underlies § 2-namely, that
the courts of aripeals, subject to review on certiorari in this
Court, are incapable of providing the uniformity of interpretation
necessary to the administration of the antitrust laws. See infra,
at 170. In 1903, the courts of appeals had been in existence for
only 12 years and various reservations about them had not yet been
dispelled. See F. Frankfurter & J. Landis, The Business of the
Supreme Court 258 (1927). Since that time, we have had over a
half-century of experience with the courts of appeals-including experience
in the field of private antitrust litigation-which has resolved
any initial doubts. See ibid.
TIDEWATER OIL CO. v. UNITED STATES 157
151 Opinion of the Court
appeals on four separate occasions-in 1906,16 1911,17
1925,18 and 1928.19 It can be argued that on its face the
very first of these amendments once again made interlocutory
appeals available to the courts of appeals in
Government civil antitrust cases and that the language
of each successive amendment, where relevant, perpetuated
that state of affairs.20 But, while the clear meaning
of statutory language is not to be ignored, "words are
inexact tools at best," Harrison v. Northern Trust Co.,
317 U. S. 476, 479 (1943), and hence it is essential that
we place the words of a statute in their proper context
by resort to the legislative history. Nowhere is this
better illustrated than in this case. For we find it in-
16 Act of Apr. 14, 1906, c. 1627, 34 Stat. 116.
17 Act of Mar. 3, 1911, § 129, 36 Stat. 1134.
18 Act of Feb. 13, 1925, a.mending§ 129, 43 Stat. 937.
'"Act of Apr. 11, 1928, c. 354, 45 Stat. 422.
20 The 1906 amendment removed the limitation on interlocutory
appeal to causes "in which an appeal from a final decree may be
taken ... to the circuit court of appeals" and provided simply that
such an appeal may be taken to the court of appeals "in any
cause." Act of Apr. 14, 1906, c. 1627, 34 Stat. 116. In codifying
the Evarts Act interlocutory appeals provision in 1911, "in any
cause" was struck, and the provision was amended to allow the
courts of appeals to entertain appeals from interlocutory orders
"notwithstanding an appeal in such case might, upon final decree
under the statutes regulating the same, be taken directly to the
Supreme Court." Act of Mar. 3, 1911, § 129, 36 Stat. 1134. Finally,
the famous Judges' Bill of 1925, in turn struck the "notwithstanding"
language, with the result that the codified provision, § 129, simply
allowed an appeal to be "taken from [an] interlocutory order
or decree [granting or denying an injunction or appointing a receiver]
to the circuit court of appeals .... " Act of Feb. 13,
1925, amending § 129, 43 Stat. 937.
The 1928 amendment is completely without relevance here since
it merely extended the applicability of the statute to interlocutory
orders issued by the District Courts of Alaska. Hawaii, the Virgin
l~lands, and thr Canal Zonr. Act of Apr. 11, 1928, "· 354, 45 Stat.
422.
158 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
conceivable that Congress, having purposefully withdrawn
the jurisdiction of the courts of appeals in certain
antitrust cases in 1903, would re-establish it in the same
cases-but only for interlocutory orders-just three years
later in 1906, without making any reference to that purpose.
Yet no mention of either the Expediting Act or
Government civil antitrust cases is to be found in the
legislative history of the 1906 amendment to the interlocutory
appeals provision 21-or, for that matter, in that
of the successive amendments insofar as they are relevant;
2
" rather, for each amendment some purpose wholly
unrelated to Expediting Act cases is apparent from the
relevant legislative materials.23 In light of this, we find
2t See S. Rep. No. 2192, 59th Cong., 1st Sess. (1906): H. R. Rep.
No. 542, 59th Cong., 1st Sess. (1906); 40 Cong. Rec. 1723, 1742,
4429, 4856-4857, 5056.
22 As to the 1911 amendment, see S. Rep. No. 388, 61st Cong., 2d
Sess., pt. 1, p. 53 (1910); H. R. Doc. ~o. 783, 61st Cong., 2d Sess.,
57 (1910); H. R. Rep. No. 818, 61st Cong., 2d Sess. (1910); S. Doc.
~o. 848, 61st Cong., 3d Sess. (1911); 45 Cong. Rec. 4001. As to
the 1925 amendment, see S. Rep. No. 362, 68th Cong., 1st Sess., 3
(1924); H. R. Rep. No. 1075, 68th Cong., 2d Sess., 4-5 (1925) ;
Hearing on S. 2060 and S. 2061 before a Subcommittee of the Senate
Committee on the Judiciary, 68th Cong., 1st Sess., 12 ( 1924).
23 Tlrns, the 1906 amendment, see n. 20, supra, was intendt>d to
render ineffective certain evasive pleading tactics that had theretofore
been employed to take advantage of the fact that under the
Evarts Act an interlocutory appeal could be taken where only a
nonconstitutional issue was at stake but not where a constitutional
issue was involved. See H. R. Rep. No. 542, 59th Cong., 1st Scss.,
2-3 (1906); 40 Cong. Rec. 1723 (remarks of Rep. Brantley) ; id., at
4856 ( remarks of Sen. Bacon).
The legislative history concerning the 1911 amendment, see n. 20,
supra, indicates that the "notwithstanding" language was designed
to "remove any doubt" that the limitation-initially struck by
the 1906 amendment-on interlocutory appeals to those rases in
which an appeal might be taken to the court of appeals after a
final decree had been eliminated. But this merely suggests an intent
finally to resolve with even more specific language the problf'm of
TIDEWATER OIL CO. v. UNITED STATES 159
151 Opinion of the Court
it impossible to ascribe to Congress an intent to impair
the original exclusivity of this Court's jurisdiction under
§ 2 through any of these amendments to the interlocutory
appeals provision.
evasive pleading which had motivated the 1906 amendment. See
S. Rep. No. 388, 61st Cong., 2d Sess., pt. 1, p. 53 (1910). Thus, in
response to inquiry whether this amendment constituted "a change
in the existing law," Sena.tor Heyburn, a sponsor of the legislation,
said on the Senate floor, "This is the existing law." 45 Cong. Rec.
4001.
As to the 1925 version of the interlocutory appeals provision, see
n. 20, supra, the analysis prepared by the committee of this Court
which drafted it explained that the "notwithstanding" language was
"eliminated as having no further application in view of the repeal
of" the provisions that had necessitated the initial 1906 amendment.
Hearing on S. 2060 and S. 2061 before a Subcommittee of
the Senate Committee on the Judiciary, 68th Cong., 1st Sess., 12
(1924). And if the addition of the "notwithstanding" language in
1911 did not establish court of appeals jurisdiction over interlocutory
orders in Expediting Act cases, we fail to see how dropping that language
in 1925 did so. At the same time, elsewhere in the Judges' Bill,
§ 2 of the Expediting Act was carried forward without alteration.
See Act of Feb. 13, 1925, amending§ 238 (1), 43 Stat. 938. In doing
so, it was stated: "A direct review by the Supreme Court of an interlocutory
or final judgment or decree of a district court may be had
where it is so provided in the following Acts or parts of Acts, and not
otherwise: (1) Section 2 of the Act of February 11, 1903, 'to expedite
the hearing and determination' of certain suits brought by the United
States under the antitrust ... laws .... " Ibid. (emphasis added).
Section 2, of course, has never contained a provision allowing appeal
of interlocutory orders. Moreover, Mr. Justice Van Devanter, a
member of this Court's committee that prepared the bill, testified
before the Senate Committee that the character of Expediting
Act cases "suggest[s] that they should go directly to the Supreme
Court rather than through the circuit courts of appeals" without
any indication that an exception was being introduced for
interlocutory appeals to the courts of appeals. Hearing on S. 2060
and S. 2061 before a Subcommittee of the Senate Committee on the
Judiciary, 68th Cong., 1st Sess., 33 (1924). See also S. Rep. No.
362, 68th Cong., 1st Sess., 3 (1924).
160 OCTOBER TERM, 1972
Opinion of the Court 409U.S.
This clearly was the view of the seven members of the
unanimous Court in United States v. California Cooperative
Canneries, 279 U. S. 553 (1929). There, in rejecting
the argument that an appeal lay to the court of
appeals from an order denying a motion to intervene in
a Government civil antitrust case, the Court stated: 24
"[The Evarts Act] provisions governing appeals in
general were amended by the Expediting Act so that
in suits in equity under the Anti-Trust Act 'in
which the United States is complainant,' the appeal
should be direct to this Court from the final decree
in the trial court. Thus, Congress limited the right
of review to an appeal from the decree which disposed
of all matters . . . ; and it precluded the
possibility of an appeal to either [this Court or the
court of appeals] from an interlocutory decree."
Id., at 558 (emphasis added).
And a decade and a half later, in Allen Calculators v.
National Cash Register Co., 322 U. S. 137, 142 (1944),
the Court reiterated "that jurisdiction to review District
Court decrees was not vested in the Circuit Courts
of Appeals but solely in this court, and [ the Expediting
Act] limited the right of appeal to final decrees." It is
true that interlocutory orders in Government civil antitrust
cases were subsequently held reviewable by way of
extraordinary writs under the All Writs Act, 28 U. S. C.
§ 1651 (a), but application for the extraordinary writ
must be made to this Court where "sole appellate jurisdiction
lies" in such cases. United States Alkali Export
Assn. v. United States, 325 U. S.196, 201-203 (1945);
24 Certainly the Court spoke fully cognizant of at least the
amendment contained in the ,Judges' Bill of just four years before,
see n. 20, supra, since all seven sitting Justices had been on the
Court when its committee submitted the bill to Congress.
TIDEWATER OIL CO. v. UNITED STATES 161
151 Opinion of the Court
De Beers Consolidated Mines v. United States, 325 U. S.
212, 217 (1945).25
The wording of the interlocutory appeals provision was
again altered in the 1948 revision of the Judicial Code.26
The result-after certain subsequent minor changes not
here relevant 21-was the present 28 U. S. C. § 1292 (a)
( 1), which allows "[i l nterlocutory orders of the district
courts ... granting, continuing, modifying, refus-
25 In Alkali Export Assn., the Court went on to say:
"[Extraordinary] writs may not be used as a substitute for an
authorized appeal; and where, as here, the statutory scheme [ the
Expediting Act] permits appellate review of interlocutory orders
only on appeal from the final judgment, revirw by certiorari or other
extraordinary writ is not permissible in the face of the plain indication
of the lrgislative purpose to avoid piecemeal reviews." 325
U.S., at 203 (emphasis added).
Nevertheless, the Court found that exigent circumstances associated
with the District Court's denial of the defendant's motion to dismiss
the action justified immediate review by common-law certiorari in
the particular case. Id., at 203-204.
The Court in De Beers, stating that " [ w]hat. is ... said [in
Alkali Export Assn.] applies in this instance," 325 U. S., at 217,
granted review under the All Writs Act of a preliminary injunction,
although normally review would have been to the court of appeals
under what is now 28 U. S. C. § 1292 (a) (1).
Of course, nothing we say today signifies a retreat from our
previous statements that appeals of interlocutory orders in Govf'rnment
civil antitrust cases cannot be taken even to this Court.
26 Act of June 25, 1948, 62 Stat. 929.
2 7 In 1951 reference to the District Court of Guam was inserted
in the section, Act of Oct. 31, 1951, § 49, 65 Stat. 726, and reference
to the District Court for the Territory of Alaska was removed from
the section effective upon the admission of Alaska into the Union
in 1959, Act of July 7, 1958, § 12 (e), 72 Stat. 348. Finally, when
subsection (b) was added to the section, the former entire section
was designated subsection (a). Act of Sept. 2, 1958, Pub. L. 85-919,
72 Stat. 17i0.
162 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
ing or dissolving injunctions ... " 28 to be appealed to
the courts of appeals "except where a direct review may
be had in the Supreme Court." (Emphasis added.) This
final clause is susceptible of two plausible constructions
that yield opposite results in cases subject to the Expediting
Act. A direct review of interlocutory orders in
Government civil antitrust cases clearly may be had in
this Court, thus barring resort to § 1292 (a) (1)-or so it
would seem. But direct review may not be had when the
interlocutory order is entered since there is no "final judgment,"
the predicate of an appeal under the Expediting
Act. Therefore, were the final clause construed as directed
only at the present availability of review in this
Court, it would not, on its face, bar an interlocutory appeal.
However, the function of the Revisers of the 1948
Code was generally limited to that of consolidation and
codification.29 Consequently, a well-established principle
governing the interpretation of provisions altered in the
1948 revision is that "no change is to be presumed unless
clearly expressed." Fourco Glass Co. v. Transmirra
Products Corp., 353 U. S. 222, 228 (1957). We find no
such clear expression here. To the contrary, the Revisers'
Notes fail to reveal any intention to expand the
scope of the pre-existing jurisdiction of the courts of
appeals over interlocutory appeals; the new § 1292 is
described merely as a consolidation of a number of
previously separate code provisions------including the gen-
28 The portion of the provision governing appeal of interlocutory
orders appointing receivers and related matters became 28 U. S. C.
§ 1292 (2) (1946 ed., Supp. II), now 28 U. S. C. § 1292 (a) (2).
29 See S. Rep. No. 1559, 80th Cong., 2d Sess., 1-2 (1948)
("great care has been exercised to make no changes in the existing
law which would not meet with substantially unanimous approval");
H. R. Rep. No. 308, 80th Cong., 1st Sess., 1- 8 (1947).
TIDEWATER OIL CO. v. UNITED STATES 163
151 Opinion of the Court
eral interlocutory appeals provision-"with necessary
changes in phraseology to effect the consolidation." 30
In sum, then, our examination of the history and evolution
of the present§ 1292 (a) (1)-the direct descendant
of the original interlocutory appeals provision contained
in the Evarts Act--has convinced us that at least up
to the passage of § 1292 (b) in 1958, Congress had not
impaired the original exclusivity of th.is Court's jurisdiction
under § 2 of the Expediting Act. As is usually
true of questions of statutory construction, the issue is
not totally free from doubt. 31 Yet, in the last analysis,
whatever ambiguity may exist in the lengthy history of
the original interlocutory appeals provision relative to
the Expediting Act, it results primarily from the absence
of any consideration of Government civil antitrust cases
in that history and thus emphasizes the extent to which
appellate jurisdiction in such cases has long been viewed
as a peculiarly distinct matter. Cf. United States Alkali
Export Assn. v. United States, 325 U. S., at 202-203.
Certainly, this conclusion finds substantial support in
our prior decisions in which we have consistently interpreted
our appellate jurisdiction under § 2 as exclusive.32
::o H. R. Rep. No. 2646 of the Committee on Revision of the
Laws of the House of Representatives to accompany H. R. 7124, 79th
Cong., 2d Sess., App. A107-108 (1946). See also H. R. Rep. No.
308 of 1he Committee on the Judiciary of the House of Representatives
to accompany H. R. 3214, 80th Cong., 1st Sess., App.
All0-111 (1947).
31 Compare n. 20, supra, with n. 23, supra.
32 See supra, at 160-161. Similarly, two of three courts of
appeals which have considered the question have concluded that an
interlocutory appeal does not lie under § 1292 (a) ( 1) in Expediting
Act cases. See United States v. Cities Service Co., 410 F. 2d 662
(CAI 1969); United States v. FMC Corp., 321 F. 2d 534 (CA9
1963). But see United States v. Ingersoll-Rand Co., 320 F. 2d 509,
511-517 (CA3 1963).
164 OCTOBER TERM, 1972
Opinion of the Court 409U.S.
II
With this background, the question becomes what
effect, if any, the enactment of § 1292 (b) in 1958 had
upon this Court's theretofore exclusive appellate jurisdiction
in Government civil antitrust cases. Section
1282 ( b) provides in relevant part:
"When a district judge, in making in a civil action
an order not otherwise appealable under this section,
shall be of the opinion that such order involves a
controlling question of law as to which there is substantial
ground for difference of opinion and that
an immediate appeal from the order may materially
advance the ultimate termination of the litigation,
he shall so state in writing in such order. The Court
of Appeals may thereupon, in its discretion, permit
an appeal to be taken from such order, if application
is made to it within ten days after the entry
of the order . . . . "
At the outset petitioner contends that there is simply
no conflict between this provision and§ 2 of the Expediting
Act. It suggests that "civil action" must be read as
an all-inclusive phrase that covers, inter alia, Government
civil antitrust cases. At the same time, it points
out that § 1292 (b) is concerned only with interlocutory
orders, while the Expediting Act deals only with
final judgments. Thus, petitioner concludes that the
enactment of § 1292 (b) made discretionary interlocutory
appeals available where none had previously existed, and
that the two statutes are in complete harmony with one
another.
Such a facile argument could also be made to support
the contention that § 1292 (a) (1) can be invoked
in Expediting Act cases-were it not for the fact that, as
we have already seen,§ 2 does not merely apply solely to a
"final judgment" but also limits the right of appeal to a
TIDEWATER OIL CO. v. UNITED STATES 165
151 Opinion of the Court
"final judgment." Likewise, we can hardly accept petitioner's
suggestion that when Congress enacted § 1292
(b), it wrote upon a clean slate insofar as appeals from
interlocutory orders in Expediting Act cases are concerned.
Nor do we find in § 1292 (b) the "sharp break
with the traditional policy" of limited availability of
interlocutory appeal so apparent to the dissent. The
new provision hardly created a general right of interlocutory
appeal; rather, it only extended the availability
of such appeals to a limited group of orders-not previously
covered by § 1292 (a)-that involve "a controlling
question of law" the immediate appeal of which
"may materially advance the ultimate termination of
the litigation." 33 In short, the consistent construction
that had been accorded § 2 prior to the enactment of
§ 1292 (b) 34 cannot simply be ignored in determining
the impact of that section on Government civil antitrust
cases, cf. Universal Interpretive Shuttle Corp. v. Washington
Metropolitan Area Transit Comm'n, 393 U. S.
186, 191-194 (1968). Acceptance of petitioner's contention
would require us to conclude that § 1292 (b) was
intended to revise the policies underlying the Expediting
Act for the first time--that it was intended as the first
departure from the purposes of avoiding piecemeal appeal
and of limiting review of important questions of
antitrust law to this Court. We have been unable to
discern any such intention.
~" Cf. S. Rep. No. 2434, 85th Cong., 2d Sess., 3 (1958); H. R.
Rep No. 1667, 85th Cong., 2d Sess., 2 ( 1958).
34 It was only subsequent to the enactment of § 1292 (b) that a
single Court of Appeals concluded-despite the unqualified statements
by this Court since United States v. CaHfornia Cooperative
Cannerie.~, 279 U. S., at 558, to the contrary-that an interlocutory
appeal would lie under § 1292 (a) (1) in a Government civil antitrust.
case. See United States v. Ingersoll-Rand Co., 320 F. 2d, at 511-
517. See also Fisons Ltd. v. United States, 458 F. 2d, at 1244-1248,
cert. denied, 405 U.S. 1041 (1972) (§ 1292 (b)).
166 OCTOBER TERM, 1972
Opinion of the Court 409U.S.
The legislative history associated with § 1292 (b) contains
no mention of cases within the Expediting Act.35
Reference, to be sure, was made to antitrust cases, but
it is clear on the face of these statements 36 that they
refer only to private treble-damages actions.:;; Tn fact,
rather than indicating that § 1292 (b) was intended to
apply to antitrust cases subject to final review in this
Court under the Expediting Act, the legislative history
strongly suggests an essentially contrary conclusion:
the subsection was intended to apply only to interlocutory
orders, "not otherwise appealable under" § 1292
(a), in civil actions in which the courts of appeals would
have jurisdiction over an appeal from the final judg-
85 See S. Rep. No. 2434, 85th Cong., 2d Sess. (1958); H. R. Rep.
No. 1667, 85th Cong., 2d Sess. (1958); Hearings on H. R. 6238
before Subcommittee No. 3 of the House Committee on the Judiciary,
85th Cong., 2d Sess. (1958); 104 Cong. Rec. 8002 (remarks
of Rep. Keating). See also Report of the Proceedings of the Regular
Annual Meeting of the Judicial Conference of the United States
32-33 (1951); Report of the Proceedings of a Special Meeting of
the Judicial Conference of the United States 7 (1952); Report of
the Proceedings of the Regular Annual Meeting of the Judicial Conference
of the United States 27-28 (1953).
36 The Senate Report suggests the denial of a motion to dismiss
an antitrust action as barred by the statute of limitations as one
instance in which an interlocutory appeal might be desirable. But
it goes on to state:
"Disposition of antitrust cases may take considerable time, yet
upon appeal following finoJ, disposition of such case~, the court of
appeals may well determine that the statute of limitations had
run and for that reason the district court did not have jurisdiction."
S. Rep. No. 2434, 85th Cong., 2d Sess., 3 ( 1958) (emphasis added).
The reference to antitrust cases in Chief Judge John .J. Parker's
testimony at the hearings on § 1292 (b) was also clearly limited to
private treble-damages actions. Set> Hearings on II. R. 6238 before
Subcommittee No. 3 of the House Committee on the Judiciary, 85th
Cong., 2d Sess., 9 (1958).
37 38 Stat. 731, 15 U. S. C. § 15.
TIDEWATER OIL CO. v. UNITED STATES 167
151 Opinion of the Court
ment under 28 U. S. C. § 1291. For instance, in explaining
the proposed statute, the Senate Report on
§ 1292 (b) states: 38
"The bill results from a growing awareness of the
need for expedition of cases pending before the district
courts. Many cases which are filed in the Federal
district courts require the district judge to
entertain motions at an early stage in the proceedings
which, if determined, against the plaintiff, result
in a final order which would then be appealable to
the circuit courts of appeals of the United States.
However, such motions, if determined in the plaintiff's
favor, are interlocutory since they do not end
the litigation and are not therefore, under existing
provisions of law, appealable."
This is hardly supportive of petitioner's position, and yet
throughout the legislative materials the focus similarly remains
on interlocutory orders in civil cases that would be
appealable to the courts of appeals upon final judgment.30
Petitioner's case is further weakened by the extraordinary
result that acceptance of its position would
yield. Section 1292 (a) provides for an appeal as a
matter of right from a number of specified types of interlocutory
orders-in particular, interlocutory orders granting
or denying injunctions. Those interlocutory orders
not within subsection (a), however, were made appealable
in § 1292 (b), subject to the judgment and discretion
of the district court and the court of appeals.
Greater importance obviously was attached to those
3 8 S. Rep. No. 2434, 85th Cong., 2d Sess., 2 (1958) (emphasis
added).
39 See id., at 2-3; H. R. Rep. No. 1667, 85th Cong., 2d Sess., 1
(1958); Hearings on H. R. 6238 before Subcommittee No. 3 of the
House Committee on the Judiciary, 85th Cong., 2d Sess., 8 (19.58).
168 OCTOBER TERM, 1972
Opinion of the Court 409U.S.
types of interlocutory orders specified in subsection (a)
than to those covered by (b) .40 Nevertheless, petitioner
would have us conclude that Congress intended to establish
court of appeals jurisdiction for all interlocutory
orders in Expediting Act cases, except those orders for
which an appeal of right is provided in § 1292 (a)(l).41
As the Government notes, such a result would effectively
turn § 1292 on its head.42 Consistent with the evident
thrust of the statute's legislative history, the much more
sensible conclusion is that § 1292 (b) was intended to
establish jurisdiction in the courts of appeals to review
interlocutory orders, other than those specified in § 1292
(a), in civil cases in which they would have jurisdiction
were the judgments final.43
4 ° Cf. H. R. Rep. No. 1667, 85th Cong., 2d Sess., 1-2 (1958).
41 Petitioner suggests two avenues of escape from this anomalous
situation: (1) that under § 1292 (a) (l} an interlocutory appeal
may in fact lie from an injunctive order in a Government civil antitrust
case; (2) that if an appeal from such an order cannot be taken
under § 1292 (a), it may nevertheless be taken under § 1292 ( b)
since, the argument goes, the latter applies to all orders not appealable
under the former, "whatever the nature of the order and
whatever the reason for its non-appealability." Reply Brief for Petitioner
7-8. Our discussion in Part I of this opinion is sufficient to
dispose of petitioner's first contention. As to the second argument,
while the language of § 1292 (b) is unqualified on its face, the legislative
history indicates that Congress was concerned only with orders
of types other than those specified in § 1292 (a); in other words,
§ 1292 (b) was intended to supplement § 1292 (a), not to provide a
substitute for it. See n. 35, supra. Moreover, it would be, to say
the least, extraordinary for Congress to have resorted to surh a
subtle method of establishing for the first time in Government civil
antitrust cases interlocutory appeals for orders of the type specified
in § 1292 (a) without giving any hint whatsoever that this was its
purpose.
42 Brief for United States 18.
4 3 Nor can it be ignored that subsequent to both the 1948 revision
which resulted in § 1292 (a) and the enactment of § 1292 (b), we
have reaffirmed that a final judgment is an essential prerequi1,ite
TIDEWATER OIL CO. v. UNITED STATES 169
151 Opinion of the Court
At the foundation of the petitioner's position in this
case is the contention that § 1292 (b) is the panacea for
the special burdens imposed on this Court by § 2 of the
Expediting Act. Both the Court and various individual
Members have on occasion commented that "[wJhatever
may have been the wisdom of the Expediting Act in
providing direct appeals in antitrust cases at the time
of its enactment in 1903, time has proven it unsatisfactory,"
for " [ d] irect appeals not only place a great burden
on the Court but also deprive us of the valuable assistance
of the Courts of Appeals." United States v. Singer
Mfg. Co., 374 U.S. 174, 175 n. 1 (1963); see Ford Motor
Co. v. United States, 405 U. S. 562, 595 n. 5 (1972)
(BURGER, C. J., concurring in part and dissenting in part);
United States v. Borden Co., 370 U.S. 460, 477n. (1962)
(Harlan, J., dissenting); Brown Shoe Co. v. United
States, 370 U.S. 294, 355 (1962) (Clark, J., concurring);
id., at 364-365 (Harlan, J., dissenting in part and concurring
in part). Further, in light of the present size
of our docket, direct review "seldom results in much
expedition" since we normally must examine the entire
record and resolve all questions however unsubstantial.
Id., at 355 ( Clark, J., concurring); see id., at 364 (Harlan,
J., dissenting in part and concurring in part); United
States v. Borden Co., supra, at 477 n. (Harlan, J., dissentto
an appeal of an order issued in a government civil antitrust case
since "Congress ... limited the right of review in such cases to an
appeal from a decree which disposed of all matters, and it precluded
the possibility of an appeal either to this Court or to a
Court of Appeals from an interlocutory decree." Brown Shoe Co.
v. United States, 370 U. S., at 305 n. 9. Section 1292 was not,
to be sure, specifically at issue in Brown Shoe. But in holding,
as it did, that the District Court's decree was appealable only
because it was "final," id., at 306-309, the Court necessarily foreclosed
the possibility of an interlocutory appeal to any court, and
thus its remark concerning the preclusion of interlocutory appeals
cannot be lightly dismissed.
170 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
ing). Our action today should not be construed as a
retreat from these previous remarks. On the contrary,
we remain convinced that under present circumstances
the Expediting Act fails to hasten substantially the final
disposition of important antitrust actions while it unjustifiably
burdens this Court with inadequately sifted
records and with cases that could be disposed of by review
in the courts of appeals. Uniformity in the interpretation
and administration of the antitrust laws continues
to be an important consideration. But such
uniformity could be adequately ensured by the availability
of review in this Court on certiorari of cases involving issues
of general importance--together with the "[I] imited
expediting of such cases, under the discretion of this
Court," Ford Motor Co. v. United States, supra, at 595
n. 5 (BURGER, C. J., concurring in part and dissenting in
part), where time is a factor. The simple fact is that
"[t]he legal issues in most [Government] civil antitrust
cases are no longer so novel or unsettled as to make them
especially appropriate for initial appellate consideration
by this Court, as compared with those in a variety of
other areas of federal law," Brown Shoe Co. v. United
States, supra, at 364 (Harlan, J., dissenting in part and
concurring in part). Yet, despite all of these criticisms,
our personal views as to the wisdom of § 2 are, of course,
no basis for disregarding what we are bound to recognize
as the plain and unaltered intent of Congress to
require that appeals in Government civil antitrust cases be
taken only from final judgments and only to this Court.
In any event, petitioner has failed to convince us that
permitting appeals under § 1292 (b) would provide a
meaningful solution--if any solution at all-to the various
problems created for the Court by the Expediting
Act. In the first place, the availability of interlocutory
appeals under § 1292 (b) would not reduce the number
of Government civil antitrust cases that could be brought
TIDEWATER OIL CO. v. UNITED STATES 171
151 Opinion of the Court
to this Court on direct appeal upon the entrance of a
final judgment. Nor would it reduce the number of
issues subject to review by this Court; any issue determined
on interlocutory appeal would normally be open
to consideration on final appeal,44 and doubtless some
party would raise an issue appealed under § 1292 (b)
since it must have involved "a controlling question of
law." Also, there would be the added problem of applications
for certiorari following a certified appeal in Expediting
Act cases. By definition, the issue will be a
substantial one and, where the appellate decision is
questionable, it would be necessary to decide whether to
grant certiorari, which might require the Court to consider
a particular case, on two separate occasions,'5 or
to deny certiorari, which might mean allowing the district
court to proceed to final judgment on an erroneous
basis. Given the potential waste of limited judicial resources-
those either of this Court or of the district
court-associated with each choice, neither can be considered
attractive. Finally, in emphasizing the value of
the screening function that court of appeals review
would provide in Expediting Act cases, we have consistently
focused upon the lengthy records and complex
factual issues common to such cases. Yet, as is illustrated
by this very case, in which the certified question
relates to a motion to dismiss a party, questions that
would be presented to the courts of appeals under § 1292
(b) would often involve threshold procedural issues not
44 The sole exception to this would be if the certified question bad
previously been considered by way of certiorari.
45 Only if we were to dispose of a controlling question in such a
way as to end all proceedings would the possibility of a subsequent
appeal be foreclosed. A threshold issue of jurisdiction might present
such a controlling question; but even that type of issue will often
not end an entire Government civil antitrust case which might
involve a number of parties-as is true in this case where the certified
question relates to only one of the two defendants.
172 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
requiring extensive analysis of the record.4 6 With respect
to such issues the screening function performed by intermediate
appellate review is of far Jess significance than
it would be with respect to questions of, say, relevant
market, competition, or agreement. But these latter
questions can be properly decided only after full development
of the evidence, and it is therefore doubtful at best
that interlocutory appeals would aid this Court in dealing
with them on final review.4 7
Nor are we even certain that the expeditious termination
of litigation in the district courts-the express
purpose of § 1292 (b) 48-would be materially advanced
in the context of Government civil antitrust cases by
acceptance of petitioner's contention. Permitting interlocutory
appeals under § 1292 (b) in Expediting Act
46 Sec also Fisons Ltd. v. United States, 458 F. 2d 1241 (CA7),
cert. denied, 405 U. S. 1041 (1972) (service of process); Farbenfabriken
Bayer, A. G. v. United States, 1968 CCH Trade Cas.
P2,570 (CADC), cert. denied, 393 U. S. 959 (1968) (quasi in rem
jurisdiction).
47 Other than threshold procedural issues, the question consistently
sought to be raised on interlocutory appeal has been the propriety
of orders granting or denying preliminary injunctions with respect
to proposed acquisitions. See United States v. Cities Service Co.,
410 F. 2d 662 (CAI 1969); United States v. FMC Corp., 321 F. 2d
534 (CA9 1963); United States v. Ingersoll-Rand Co., 320 F. 2d 509
(CA3 1963). Although appeals of such orders would involve the
merits of the antitrust actions, the fact is that permitting interlocutory
appeal under § 1292 (b) would not bring these orders and the
related evidence before the courts of appeals since they come
within § 1292 (a) (1). Cf. n. 41, supra. Moreover, because of the
need for speed if an acquisition is to be enjoined before accomplished,
requests for such interlocutory orders must be determined
after, at most, only an initial hearing and without full development
of the record. Consequently, appeals from such orders would not
necessarily bring before the courts of appeals the lengthy records
and numerous documents with which we have often been forced
to deal after final judgment.
••See S. Rep. No. 2434, 85th Cong., 2d Sess., 1-2 (1958).
TIDEWATER OIL CO. v. UNITED STATES 173
151 Opinion of the Court
cases would result in an anomalous situation: the court
of appeals would have jurisdiction over certain interlocutory
orders but not over the final judgment, which
would be appealable only to this Court. An interlocutory
appeal taken under § 1292 (b) must, of course, involve
"a controlling question of law" the immediate appeal
of which "may materially advance the ultimate
termination of the litigation." In the normal case, the
decision of such a question on interlocutory appeal is
final since the same court reviews the final judgment,
and the likelihood of review in this Court on certiorari
is very sma11. Here, however, the decision of the court
of appeals on the interlocutory order would essentially
be only an advisory opinion to the district court since
the issue would usually be open to relitigation on appeal
of the final judgment to this Court.49 The net
result would be added work for the courts of appeals,5°
with no assurance that there ,vould ultimately be a
saving of district court time.
III
Hence, we conclude that § 1292 (b) did not establish
jurisdiction in the Court of Appeals over interlocutory
orders in Expediting Act cases. The exclusive nature of
49 Of course, this problem would not exist if the interlocutory
decision were reviewed immediately on certiorari in this Court; but,
as we have already seen, this alternative entails serious problem;;
of its own.
~0 In this respect, it must be recalled that interlocutory appeal
under § 1292 (b) is subject to the decision of the court of appeals
in the exercise of its discretion, to allow appeal of the question
certified by the district court. Thus, the effectiveness of § 1292 (b)
in Government civil antitrust cases would be dependent upon the
willingness of the courts of appeals to assume this new burden aware
of the limited import of their decisions and of the fact that interlocutory
appeals in such cases would represent only added work for
them, since they would not otherwise consider any appeal.
174 OCTOBER TERM, 1972
DouGLAS, J., dissenting 409U.S.
the jurisdiction created in § 2 of the Expediting Act
has consistently been recognized by this Court, and we
hold today that that exclusivity remains unimpaired.
Despite our interest in a restructuring of our jurisdiction
under the Expediting Act, we are neither willing nor
able to adopt the ungainly half measure offered by the
petitioner in this case.
Affirmed.
MR. JUSTICE WHITE joins the Court's opinion except
for the advisory to Congress reflecting one view of the
relative merits of the Expediting Act.
MR. JUSTICE DOUGLAS, dissenting.
I agree with MR. JUSTICE STEWART that the appeal of
the interlocutory order in this case to the Court of Appeals
under 28 U. S. C. § 1292 (b) was not barred by the
Expediting Act. But I disagree with the intimations in
both the majority opinion and the other dissenting opinion
that because of our overwork the antitrust cases
should first be routed to the courts of appeals and only
then brought here.1
The case for our "overwork" is a myth. The total
number of cases filed has increased from 1063 cases in
the 1939 Term to 3643 in the 1971 Term. That increase
has largely been in the in f orma pauper-is cases, 117 being
filed in the 1939 Term and 1930 in the 1971 Term. But
we grant certiorari or note probable jurisdiction in very
few cases. The signed opinions of the Court ( which are
only in argued cases) totaled 137 in the 1939 Term with
1 It is true that several Justices over the years have expressed
the desire that the antitrust cases come to us only by certiorari to
the courts of appeals. So far as I am aware the only opinion speaking
for the Court containing that suggestion is United States v.
Singer Mfg. Co., 374 U. S. 174. But there the idea was contained
only in a footnote (id., at 175 n. 1); and as Mr. Chief Justice Hughes
was wont to say, "Footnotes do not really count."
TIDEWATER OIL CO. v. UNITED STATES 175
151 DouGLAS, J., dissenting
six per curiams 2 or a. total of 143 Court opinions, while
in the 1971 Term we had 129 signed opinions of the
Court and 20 per curiams 3 or a total of 149 Court opinions.
So in terms of petitions for certiorari granted
and appeals noted and set for argument our load today
is substantially what it was 33 years ago.
The load of work so far as processing cases is concerned
has increased. That work is important; and in
many ways it is the most important work we do. For
the selection of cases across the broad spectrum of issues
presented is the very heart of the judicial process. Once
our jurisdiction was largely mandatory and the backlog
of cases piled high. The 1925 Act 4 changed all that,
leaving to the Court the selection of those certiorari cases
which seem important to the public interest. The
control of the docket was left to the minority, only four
votes out of nine being necessary to grant a petition.
The review or sifting of these petitions is in many respects
the most important and, I think, the most interesting
of all our functions. Across the screen each Term
come the worries and concerns of the American peoplehigh
and low-presented in concrete, tangible form.
Most of these cases have been before two or more courts
already; and it is seldom important that a third or fourth
review be granted. But we have national standards for
many of our federal-state problems and it is important,
where they control, that the national standards be uniform;
and it is equally important where state law is
supreme, that the States be allowed to experiment with
various approaches and solutions.
Neither taking that jurisdiction from us nor the device
of reducing our jurisdiction is necessary for the perform-
2 Not including orders of dismissal or affirmance.
3 Including orders of dismissal or affirmance.
4 Judiciary Act of Feb. 13, 1925, 43 Stat. 936.
176 OCTOBER TERM, 1972
DouGLAs , J. , dissenting 409 U.S.
ance of our duties. We are, if anything, underworked,
not overworked. Our time is largely spent in the fascinating
task of reading petitions for certiorari and jurisdictional
statements. The number of cases taken or put
down for oral argument has not materially increased in
the last 30 years.
The Expediting Act, 15 U. S. C. §§ 28, 29 , involved
in the present case, does not contribute materially to
our caseload. In the 1967 Term we had 12 such cases
but only three of them were argued, the others being
disposed of summarily. In the 1968 Term we had eight,
but only three were argued. In the 1969 Term we had
four; only two being argued. In the 1970 Term only two
such cases reached us and each was argued. In the 1971
Term four such cases reached us, two of them being
argued.~
If there are any courts that are surfeited, they are the
courts of appeals. In my Circuit-the Ninth-it is not
uncommon for a judge to write over 50 opinions for the
court in one term. That Circuit has at the present time
a 15-month backlog of civil cases, while we are current.
The average number of signed opinions for the Court in
s Ford Motor Co. v. United States, 405 U. S. 562; United States
v. Topco Associates, 4-05 U. S. 596.
The antitrust c-ases not argued in the 1967-1971 Terms were either
reversed out of hand or affirmed out of hand (some of these being
companion cases to those that werC' argued), or dismissed as moot,
or dismissed for want of jurisdiction. There were three dismissed
for want of jurisdiction.
Farbenfabriken Bayer A. G. v. United States, 393 P. S. 216, involved
an interlocutory order in which we ruled that we had no
jurisdiction. Standard F'ruit & S. S. Co. v. United Fruit Co., 393
U. S. 406, involved an effort of a corporation, not a party, to inspect
the divestiture plans being submitted to the District Court pursuant
to a consent judgment. Garrett Freightlines v. United States, 405
U. S. 1035, involved an appeal from a defendant dismissed from
the antitrust case because of the primary jurisdiction of the Interstate
Commerce Commission over the acquisition in question.
TIDEWATER OIL CO. v. UNITED STATES 177
151 DOUGLAS, J., dissenting
this Court is close to 12 per Justice; only occasionally
does anyone write even as many as 18; and we have no
backlog.
Separate opinions-including dissents and concurring
opinions-multiply. If they are added to the total of
149 for the 1971 Term, the overall number would be 328.
But the writing of concurrences, dissents, or separate
opinions is wholly in the discretion of the Justice. It is
not mandatory work; it is writing done in the vast leisure
time we presently have.
The antitrust cases are only small fractions of our
caseload. Yet they represent large issues of importance
to the economy, to consumers, and to the maintenance of
the free-enterprise system. Congress has expressed in the
Sherman Act,6 the Clayton Act,7 the Robinson-Patman
Act,8 and the Celler-Kefauver Act 9 a clear policy to keep
the avenues of business open, to bar monopolies, and to
save the country from the cartel system which is the
product of gargantuan growth.
It is of course for Congress and Congress alone to determine
whether the Expediting Act 10 should bring the
6 Sherman Anti-Trust Act of July 2, 1890, c. 647, 26 Stat. 209,
15 U. S. C. §§ 1-7.
7 Clayton Act of Oct. 15, 1914, 38 Stat. 730, 15 U. S. C. § 12
et seq., § 44.
8 Robinson-Patman Act of June 19, 1936, 49 Stat. 1526, 15 U. S. C.
§§13, 13a, 13b, 21~ 1013.
9 Celler-Kefauver Act of Dec. 29, 1950, 64 Stat. 1125, 15 U. S. C.
§§ 18, 21.
1° For the legislative history of the Act see H. R. Rep. No. 3020,
57th Cong., 2d Sess.
Senator Fairbanks, leading exponent of the Act, said in reporting
it to the Senate: "The far-reaching importance of the cases arising
under antitrust laws now upon the statute books or hereafter to
be enacted, and the general public interest therein, are such that
every reasonable means should be provided for speeding the litigation.
It is the purpose of the bill to expedite litigation of great
and general importance. It has no other object." 36 Cong. Rec.
1679.
178 OCTOBER TERM, 1972
STEWART, .J., dissenting 409 U.S.
antitrust cases directly here. While I join the statutory
construction in Ma. JUSTICE STEWART'S dissent, I do not
join that part which expresses to me an inaccurate account
of the "overwork" of the Court. We are vastly
underworked. One interested in history will discover
that once upon a time Hugo Black wrote over 30 opinions
for the Court in a Term where only 135 opinions were
written for the Court, a few more than we all wrote last
Term.
MR. JusTICE STEWART, with whom MR. JusTICE REHNQUIST
concurs, and MR. JUSTICE DOUGLAS concurs in part,
dissenting.
The Expediting Act, enacted in 1903, provides that in
civil antitrust actions brought by the United States "an
appeal from the final judgment of the district court will
lie only to the Supreme Court." (Emphasis added.)
Section 1292 (b), enacted in 1958, provides that when a
district court, "in making in a civil action an order not
otherwise appealable under this section," shall appropriately
certify the question involved, the court of
appeals has discretionary jurisdiction to hear an interlocutory
appeal from that order. Thus, the Expediting
Act, by its terms, relates only to appeals from final
judgments in a limited category of cases, while § 1292 (b)
applies to appeals from certain interlocutory orders in
all civil actions. The Expediting Act does not prohibit
court of appeals jurisdiction under § 1292 (b), for the
former applies only to final judgments, while the latter
applies only to interlocutory orders. To find any inconsistency
whatever between the two statutes thus requires
rejection of the plain meaning of each of them-rejection,
in short, of a most basic principle of statutory construction.
As the Court of Appeals for the Seventh Circuit
recognized in F'isons Ltd. v. United States, 458 F. 2d
1241, 1245 (1972), "the language of ea.ch [can] be given
full effect without limiting the scope of the other."
TIDEWATER OIL CO. v. UNITED STATES 179
151 STEWART, J., dissenting
Moreover, the purpose of § 1292 (b) is wholly consistent
with that of the Expediting Act. The 1903 statute
was motivated by the view that Government antitrust
actions are so important that they should be expedited.
Shenandoah Valley Broadcasting v. ASCAP, 375 U.S. 39,
40 (1963).1 So, too, the motivation behind § 1292 (b),
enacted 55 years later, was the contemporary view that
interlocutory appeals involving important and controlling
questions of law are a useful means of expediting
litigation. Although § 1292 (b) authorizes a departure
from the general rule against interlocutory appeals, it
does so only for the purpose of materially advancing the
ultimate termination of the litigation.2 Thus, the Ex-
1 In reporting the bill that became the Expediting Act, Senator
Fairbanks stated that:
"[E]very reasonable means should be provided for speeding the litigation.
It is the purpose of the bill to expedite litigation of great
and general importance. It has no other object." 36 Cong. Rec.
1679.
2 The Senate Report on the bill that became § 1292 (b) stated:
"This legislation results from a considerable study by committees
of the Judicial Conference. The legislation itself was introduced
at the request of the Administrative Office of the United States
Courts pursuant to the direction of the Judicial Conference of the
United States. . . . The bill results from a growing awareness
of the need for expedition of cases pending before the district courts.
Many cases which are filed in the Federal district courts require the
dist,rict judge to entertain motions at an early stage in the proceedings
which, if determined, against the plaintiff, result in a final
order which would then be appealable to the circuit courts of appeals
of the United States. However, such motions, if determined in
the plaintiff's favor, are interlocutory since they do not end the
litigation and are not therefore, under existing provisions of law,
appealable ....
"The committee believes that this legislation constitutes a desirable
addition to the existing authority to appeal from interlocutory
orders of the district courts of the United States. . . . Any legislation,
therefore, appropriately safeguarded, which might aid in the
180 OCTOBER TERM, 1972
STEWART, J., dissenting 409 U.S.
pediting Act and § 1292 (b) are animated by precisely
the same objectives and warranted by precisely the same
circumstances, and they should be read together as supplementing
one another, not as antagonistic.
The legislative history of § 1292 (b) indicates that its
primary benefit was expected to occur in the protracted
or "big" cases, including civil antitrust litigation.3 Yet,
if no appeal can be taken to a court of appeals under
§ 1292 (b) in a civil antitrust suit where the Government
is plaintiff, then the purpose behind the statute cannot
be served at all in these cases, for no statute provides for
such an interlocutory appeal directly to this Court. It
seems to me that if Congress had wanted to exclude
cases like this one from the beneficent provisions of
§ 1292 (b), it would have said so.4
disposition of cases before the district courts of the United States
by saving useless expenditure of court time is such as to require
the approbation of all those directly concerned with the administration
of justice in the United States." S. Rep. No. 2434, 85th Cong.,
2d Sess., 2, 4 (1958).
3 The Senate Report stated:
"There are many civil actions from which similar illustrations could
be furnished. For example, in an antitrust action a plea may be
entered that the claim is barred by the statute of limitations. If
this motion is denied, under existing law the matter is not appealable
and the ca~c then goes forward to trial. Disposition of antitrust
cases may take considerable time, yet upon appeal following
final disposition of such cases, the court of appeals may well determine
that the statute of limitations had run and for that reason
the district court did not have jurisdiction." Id., at 3.
4 Although the antitrust cases referred to in the Senate Committee
Report on § 1292 (b) were apparently private cases, rather than
Government litigation, the proposed legislation was introduced, after
considerable study, at the direction of the Judicial Conference of
the United States (n. 2, supra}, whose members-all eminent federal
judges-were surely familiar with the appellate procedure in civil
antitrust cases brought by the Government.
TIDEWATER OIL CO. v. UNITED STATES 181
151 STEWART, J., dissenting
The Expediting Act originally provided that Government
antitrust cases would be heard by a panel of judges
upon the certification of the Attorney General. That
provision is now 15 U. S. C. § 28, which provides for a
panel of three. The purpose of the provision was to
ensure that cases would receive full consideration by a
panel of judges before presentation to this Court.5 The
Expediting Act, of course, has been criticized because it
routes complex cases directly here without benefit of
screening by the courts of appeals. As we stated in
United States v. Singer Mfg. Co., 374 U. S. 174, 175 n. 1
(1963):
"Whatever may have been the wisdom of the Expediting
Act in providing direct appeals in antitrust
cases at the time of its enactment in 1903, time has
proven it unsatisfactory. . . . Direct appeals not
only place a great burden on the Court but also
deprive us of the valuable assistance of the Courts
of Appeals."
See also Brown Shoe Co. v. United States, 370 U.S. 294,
355 (1962) (Clark, J., concurring); id., at 364-365 (Harlan,
J., dissenting in part and concurring in part); United
States v. Borden Co., 370 U. S. 460, 477 n. (1962) (Har-
5 The House Report on the bill explains this provision by quoting
a letter of the Attorney General as follows:
"There are a number of cases now provided by statute where
appeals may be made directly to the Supreme Court from the
district and circuit courts . . . .
"The class of cases that I suggest should be brought within this
rule, it seems to me, is of as great importance as any of those
referred to. The suggested provision requiring a full bench of the
circuit judges would insure the cases receiving as full consideration
before presentation to the Supreme Court as if heard by the United
States circuit court of appeals." H. R. Rep. No. 3020, 57th Cong.,
2d Scss., 2 (1903).
182 OCTOBER TERM, 1972
STEWART, J., dissenting 409 u. s.
lan, J., dissenting); Ford Motor Co. v. United States, 405
U. S. 562, 595 n. 5 (1972) (BURGER, C. J., concurring
in part and dissenting in part). Interlocutory appeals
under § 1292 (b) in Government antitrust cases would
provide screening of at least some issues in at least
some cases by courts of appeals before those issues reach
this Court; and this, as shown above, would be consistent
with the original policy of the Expediting Act. The
Court's decision today precludes, in cases like this, both
the useful expediting effect of § 1292 (b) and the equally
desirable potential of intermediate review by the courts
of appeals of important legal issues.
It is said that a ban on court of appeals jurisdiction
under § 1292 (b) in Government antitrust cases is to be
derived from the provisions of§ 1292 (a)(l). The latter
section provides that the courts of appeals shall have
jurisdiction of appeals from interlocutory orders of district
courts granting or denying injunctions "except where
a direct review may be had in the Supreme Court." The
argument is that that language expressly excludes court
of appeals jurisdiction in Expediting Act cases; and
since there is nothing in the language of § 1292 (b) that
contradicts this express exclusion, interlocutory orders in
Expediting Act cases are likewise not appealable under
§ 1292 (b). If § 1292 (b) did allow court of appeals
jurisdiction in this case, it is said, the result would be
that an interlocutory order in a Government antitrust
case could be appealed to a court of appeals only if it
did not involve an injunction; and that result would effectively
turn § 1292 on its head, because in non-Expediting
Act cases, § 1292 gives priority to injunctive orders,
which may be appealed as of right.
There are several answers to this argument. At the
outset, it is not clear that the major premise-that § 1292
(a) (1) expressly excludes court of appeals jurisdiction in
Expediting Act cases-is valid. On that question, the
TIDEWATER OIL CO. v. UNITED STATES 183
151 STEWART, J., dissenting
Circuits are divided, the First and the Ninth denying
their jurisdiction,6 and the Third upholding appealability.
7 We have never before faced the question nor
resolved the conflict.
But even if the Expediting Act does bar court of
appeals jurisdiction to review interlocutory injunctive
orders under§ 1292 (a) (1) in Government antitrust cases,
it does not follow that there must be a similar bar to
§ 1292 (b) jurisdiction. The very fact that § 1292 (a)
(I) contains express language which at least arguably
creates an exception to court of appeals jurisdiction,
while § 1292 (b) contains no such language, is reason
enough to treat the two differently. Beyond that, § 1292
(a)(l) has a history dramatically different from § 1292
(b). That history was thoroughly reviewed in United
States v. Cities Service Co., 410 F. 2d 662 (CAl 1969),
in United States v. Ingersoll-Rand Co., 320 F. 2d 509
(CA3 1963), and in the Court's opinion today, ante, at
155-163, and need not be discussed in detail here. Suffice
it to say that the original version of § 1292 (a) (1) was
6 United States v. Cities Service Co., 410 F. 2d 662 (CAl 1969);
United States v. FMC Corp., 321 F. 2d 534 (CA9 1963).
7 United States v. Ingersoll-Rand Co., 320 F. 2d 509 (CA3 1963).
The reasoning of the Third Circuit in this case was as follows:
Section 1292 (a) (1) permits an appeal to a court of appeals of
interlocutory injunctive orders "except where a direct review may be
had in the Supreme Court." Since the Supreme Court. has direct
review in Expediting Act cases only from final judgments, it has
none from interlocutory orders. Hence, the exception in § 1292
(a) ( 1) does not bar court of appeals jurisdiction over interlocutory
injunctive orders in Government antitrust cases. The court
then concluded:
"In fact, it is extremely difficult and requires doing violence to the
language of the statute to escape the conclusion that interlocutory
orders, such as the one at bar, are reviewable by a court of appeals
excepting and only excepting those types of cases in which an interlocutory
order is directly reviewable by the Supreme Court." 320
F. 2d, at 517.
184 OCTOBER TERM, 1972
STEWART, J., dissenting 409 u. s.
enacted in 1891, and that the provision went through
several changes in language in succeeding years, during
which its relationship to the 1903 Expediting Act was
often unclear. See United States v. Cities Service Co.,
410 F. 2d, at 666-669. The provision was finally codified
in its present form in 1948, although, as the abovementioned
conflict among the circuits demonstrates, that
codification did not make its relationship to the Expediting
Act any clearer. Section 1292 (b), on the other
hand, was an entirely new statute, written on a clean
slate in 1958, and representing a sharp break with the
traditional policy against appeals from noninjunctive interlocutory
orders. At that time, there was already
growing doubt about the wisdom of the Expediting Act;
and the fact that Congress conferred § 1292 (b) jurisdiction
without making any express exception for cases
where direct review may be had in this Court-such as
had been in§ 1292 (a)(l) for some years-is surely some
indication that Congress in 1958 was expressing the contemporary
view that interlocutory appeals to the courts
of appeals on controlling questions of law provide a desirable
tool that should not be denied even in Expediting
Act cases.
As to the point that this interpretation would "turn
§ 1292 on its head," it is certainly arguable that if an appeal
from an injunctive order in an Expediting Act case
cannot be had under§ 1292 (a)(l), it may still be taken
under § 1292 (b). Section 1292 (b) relates to orders
"not otherwise appealable under this section," whatever
the nature of the order and whatever the reason for its
nonappealability. Hence, if, in Government antitrust
cases, courts of appeals have no jurisdiction under
§ 1292 (a)(l), then an interlocutory injunctive order
would be an order "not otherwisEo appealable," and § 1292
(b)'s discretionary jurisdiction might well be held to
apply.
TIDEWATER OIL CO. v. UNITED STATES 185
151 STEWART, J., dissenting
In short, there is no validity to the argument that the
terms of § 1292 (a)(l), whatever they may mean, have
any bearing upon the proper interpretation of § 1292 (b).
It is also argued that the basic policy of the Expediting
Act was to remove all court of appeals jurisdiction in
Government antitrust cases. According to this argument,
although the Act speaks only of final judgments,
it must be understood to include interlocutory appeals,
since, at the time the Act was passed, the courts of
appeals could review interlocutory orders only in cases
where they could review final judgments. From United
States v. California Cooperative Canneries, 279 U. S. 553,
558 (1929), to Brown Shoe Co. v. United States, 370
U. S., at 305 n. 9, the argument goes, this Court
has consistently indicated that courts of appeals may
not exercise jurisdiction in Expediting Act cases, regardless
of whether the appeal is from a final or interlocutory
order; and it should not be assumed that Congress
in 1958 repealed this longstanding interpretation by legislation
that is not addressed specifically to appeals in
these cases.
I fail to see how we e:ff ect anything like a repealer of
the Expediting Act by construing § 1292 (b) to permit
court of appeals jurisdiction thereunder in Expediting
Act cases. As demonstrated above, there is no inconsistency
whatever between this construction of § 1292 (b)
arid the plain language of the Expediting Act. It is
equally clear that the reason why in 1903, and indeed
for 55 years thereafter, courts of appeals could not review
noninjunctive interlocutory orders in cases where
they could not review the final judgment is not that
the Expediting Act forbade such review, but that there
was no statutory authority for such review in any cases
whatsoever. In 1958, however, Congress broke with the
old policy against interlocutory appeals from noninjunctive
orders and specifically provided that such appeals
186 OCTOBER TERM, 1972
STEWART, J., dissenting 409 U.S.
may be taken to the courts of appeals in their discretion
in all civil actions, where the question is properly certified.
I see no reason, in the absence of some statutory prohibition,
to refrain from applying that clear language,
whether or not the court of appeals can review the final
judgment.
The cases cited by the Government do not persuade
me otherwise. Calif ornw Canneries, of course, was decided
29 years before the enactment of § 1292 (b); and
whatever was said there was a judgment on what Congress
had done, not on what it could do or on the meaning
of what it was to do 29 years later. Brown Shoe
does postdate the enactment of § 1292 (b); but that
case involved a direct appeal to this Court, and the only
question about appealability was whether the appealed
order was final. The issue of court of appeals jurisdiction
under § 1292 (b) was not involved there, nor was the
1958 Act even mentioned in the short footnote dictum
so heavily relied on by the Government. That dictum
did little more than quote the language of Calif ornw
Canneries, and it surely cannot be understood to decide
the issue now before us.
Finally, it is said that it would be anomalous for a
court of appeals that is without jurisdiction to entertain
an appeal from a final judgment to decide an interlocutory
issue that could control the outcome of the
case. But there is no case in which the judgment of a
court of appeals is necessarily final. Whenever a court
of appeals decides a controlling question of law in any
litigation, its views are subject to review here. Far from
being anomalous, interlocutory review of potentially dispositive
questions by the courts of appeals in Government
antitrust cases would be helpful to this Court,
giving us the benefit of intermediate appellate consideration
in these cases. We could then exercise our certiorari
power informed by the reasoning of an appellate
TIDEWATER OIL CO. v. UNITED STATES 187
151 STEWART, J., dissenting
court, and there might be no later direct appeal at all
from the final judgment. And surely interlocutory appeals
under § 1292 (b) in Government antitrust cases
would serve to lighten the burden on trial courts and
litigants alike.
We cannot, of course, create an appellate jurisdiction
not created by Congress, however desirable. But what
Congress has conferred, we should not reject.
I would reverse the order of the Court of Appeals denying
Tidewater's petition to appeal under § 1292 (b)
for lack of jurisdiction, and I would remand this case
to that court with directions to consider the merits of
the petition to appeal.
188 OCTOBER TERM, 1972
Syllabus
NEIL, WARDEN v. BIGGERS
409U.S.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
No. 71-586. Argued October 18-19, 1972-
Decided December 6, 1972
Respondent was convicted of rape on evidence that consisted in part
of testimony concerning the victim's visual and voice identification
of respondent at a station-house showup that occurred seven
months after the rape. The victim, who had been in the presence
of her assailant a considerable time and had directly observed him
indoors and under a full moon outdoors, testified that she had "no
doubt" that respondent was her assailant. She had previously
given the police a description of her assailant, which was confirmed
by a police officer. Before the showup where she identified respondent,
the victim had made no identification of others who were
presented at previous showups, lineups, or through photographs.
The police asserted that they used the showup technique because
they had difficulty in finding for a lineup other individuals generally
fitting respondent's description as given by the victim. The
Tennessee Supreme Court's affirmance of the conviction was affirmed
here by an equally divided Court. 390 U. S. 404. Respondent
then brought a habeas corpus action in District Court.
After rejecting the petitioner's contention that this Court's affirmance
constituted an actual adjudication within the meaning
of 28 U. S. C. § 2244 (c) and thus barred further review of the
showup identification in a federal habeas corpus proceeding, the
District Court, noting that a lineup is relatively more reliable
than a showup, held that the confrontation here was so suggestive
as to violate due process. The Court of Appeals affirmed. Held:
1. This Court's equally divided affirmance of respondent's state
court conviction does not, under 28 U. S. C. § 2244 ( c), bar further
federal relief by habeas corpus, since such an affirmance merely
ends the process of direct review but settles no issue of law.
Pp. 190-192.
2. While the station-house identification may have been suggestive,
under the totality of the circumstances the victim's identification
of respondent was reliable and was properly allowed to
go to the jury. Pp. 196-201.
448 F. 2d 91, affirmed in part, reversed in part, and remanded.
NEIL v. BIGGERS 189
188 Opinion of the Court
PowELL, J., delivered the opinion of the Court, in which BURGER,
C. J., and Wm'n:, BLACKMUN, and REHNQUIST, JJ., joined. BRENNAN,
J., filed an opinion concurring in part and dissenting in part,
in which DouGLAB and STEWART, JJ., joined, post, p. 201. MARSHALL,
J., took no part in the consideration or decision of the case.
Bart C. Durham Ill, Assistant Attorney General of
Tennessee, argued the cause for petitioner. With him
on the brief wa6 David M. Pack, Attorney General.
Michael Meltsner argued the cause for respondent.
With him on the brief were Jack Greenberg, Anthony G.
Amstendam, Avon N. Williams, Jr., and Z. Alexander
Looby.
Louis J. Lefkouritz, Attorney General of New York, pro
se, Samuel A. Hirshowitz, First Assistant Attorney General,
and Maria L. Marcus, Assistant Attorney General,
filed a brief for the Attorney General of New York as
amicus curiae urging reversal.
Shirley Fingerhood, Richard G. Green, Burt Neuborne,
and Melvin L. Wulf filed a brief for the American Civil
Liberties Union as amicus curiae urging affirmance.
MR. JUSTICE POWELL delivered the opinion of the
Court.
In 1965, after a jury trial in a Tennessee court, respondent
was convicted of rape and was sentenced to 20 years'
imprisonment. The State's evidence consisted in part of
testimony concerning a station-house identification of respondent
by the victim. The Tennessee Supreme Court
affirmed. Biggers v. State, 219 Tenn. 553, 411 S. W. 2d
696 (1967). On certiorari, the judgment of the Tennessee
Supreme Court was affirmed by an equally divided Court.
Biggers v. Tennessee, 390 U.S. 404 (1968) (MARSHALL, J.,
not participating). Respondent then brought a federal
habeas corpus action raising several claims. In reply,
190 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
petitioner contended that the claims were barred by 28
U. S. C. § 2244 ( c), which provides in pertinent part:
"In a habeas corpus proceeding brought in behalf
of a person in custody pursuant to the judgment of
a State court, a prior judgment of the Supreme Court
of the United States on an appeal or review by a writ
of certiorari at the instance of the prisoner of the
decision of such State court, shall be conclusive as
to all issues of fact or law with respect to an asserted
denial of a Federal right which constitutes
ground for discharge in a habeas corpus proceeding,
actually adjudicated by the Supreme Court therein
..... "
The District Court held that the claims were not barred
and, after a hearing, held in an unreported opinion that
the station-house identification procedure was so suggestive
as to violate due process. The Court of Appeals
affirmed. 448 F. 2d 91 (1971). We granted certiorari
to decide whether an affirmance by an equally divided
Court is an actual adjudication barring subsequent consideration
on habeas corpus, and, if not, whether the
identification procedure violated due process. 405 U. S.
954 (1972).
I
The intended scope of the phrase "actually adjudicated
by the Supreme Court" must be determined by
reference to the peculiarities of federal court jurisdiction
and the context in which § 2244 ( c) was enacted. Jurisdiction
to hear state prisoner claims on habeas corpus
was first expressly conferred on the federal courts by the
Judiciary Act of 1867, c. 28, 14 Stat. 385. Thereafter,
decisions of this Court established not only that res
judicata was inapplicable, e. g., Salinger v. Loisel, 265
U. S. 224, 230 (1924); Fay v. Noia, 372 U. S. 391, 423
NEIL v. BIGGERS 191
188 Opinion of the Court
(1963), but also that federal courts were obliged in appropriate
cases to redetermine issues of fact and federal
law. By the same token, the Court developed a number
of limiting principles to restrain open-ended relitigation,
among them that a successive habeas corpus application
raising grounds rejected in a previous application might
be denied without reaching the merits. Salinger v.
Loisel, supra, at 231.
In 1948, Congress codified a version of the Salinger rule
in 28 U. S. C. § 2244. As redesignated and amended in
I 966, § 2244 (b) shields against senseless repetition of
claims by state prisoners without endangering the principle
that each is entitled, other limitations aside, to a
redetermination of his federal claims by a federal court
on habeas corpus. With this in mind, the purpose of
§ 2244 (c), also enacted in 1966, becomes clear. This
subsection embodies a recognition that if this Court
has "actually adjudicated" a claim on direct appeal or
certiorari, a state prisoner has had the federal redetermination
to which he is entitled. A subsequent application
for habeas corpus raising the same claims would serve
no valid purpose and would add unnecessarily to an
already overburdened system of criminal justice.1
In this light, we review our cases explicating the disposition
"affirmed by an equally divided Court." On
what was apparently the first occasion of an equal di-
1 The legislative history adds little. The Senate Report states,
cryptically, that " [ t] his subsection is intended to give a conclusive
presumption only to actual adjudications of Federal rights, by the
Supreme Court, and not to give such a presumption to mere denials
of writs of certiorari." S. Rep. No. 1797, 89th Cong., 2d Sess., 2
(1966). We conclude from this only that Congress did not expressly
address itself to the effect of an affirmance by an equally divided
Court. Nor is this surprising in view of the rarity of such divided
affirmances in criminal cases.
192 OCTOBER TERM, 1972
Opinion of the Court 409U. S.
v1s10n, The Antelope, 10 Wheat. 66 ( 1825), the Court
simply affirmed on the point of division without much
discussion. Id., at 126-127. Faced with a similar division
during the next Term, the Court again affirmed,
Chief Justice Marshall explaining that "the principles
of law which have been argued, cannot be settled; but
the judgment is affirmed, the court being divided in
opinion upon it." Etting v. Bank of the United States,
11 Wheat. 59, 78 ( 1826). As was later elaborated, in
such cases it is the appellant or petitioner who asks the
Court to overturn a lower court's decree.
"If the judges are divided, the reversal cannot be
had, for no order can be made. The judgment of
the court below, therefore, stands in full force. It is,
indeed, the settled practice in such case to enter a
judgment of affirmance; but this is only the most
convenient mode of expressing the fact that the
cause is finally disposed of in conformity with the
action of the court below, and that that court can
proceed to enforce its judgment. The legal effect
would be the same if the appeal, or writ of error,
were dismissed." Durant v. Essex Co., 7 Wall. 107,
112 (1869).
Nor is an affirmance by an equally divided Court entitled
to precedential weight. Ohio ex rel. Eaton v. Price, 364
U. S. 263, 264 ( 1960). We decline to construe § 2244
(c)'s bar as extending to claims on which the judgment
of a state court stands because of the absence of a majority
position in this Court, and accordingly conclude
that the courts below properly reached the merits.2
2 We have been aided, and are confirmed in this view, by the
thoughtful opinion of Judge Mansfield in United States ex rel. Radich
v. Criminal, Ct. of City of New York, 459 F. 2d 745 (CA2 1972),
pet. for cert. pending sub nom. Ross v. Radich, No. 71-1510.
NEIL v. BIGGERS 193
188 Opinion of the Court
II
We proceed, then, to consider respondent's due process
claim.3 As the claim turns upon the facts, we must
first review the relevant testimony at the jury trial and
at the habeas corpus hearing regarding the rape and the
identification. The victim testified at trial that on the
evening of January 22, 1965, a youth with a butcher
knife grabbed her in the doorway to her kitchen:
"A. [H]e grabbed me from behind, and grappledtwisted
me on the floor. Threw me down on the
floor.
"Q. And there was no light in that kitchen?
3 The dissent would have us decline to address the merits because
the District Court, after an evidentiary hearing, found due process
to have been violated, and the Court of Appeals-after reviewing the
entire record-found that "the conclusions of fact of the District
Judge are [not] clearly erroneous." 448 F. 2d 91, 95. It is said that
we should not depart from "our long-established practice not to
reverse findings of fact concurred in by two lower courts unless shown
to be clearly erroneous." Post, at 202. This rule of practice, under
which the Court does not lightly overturn the concurrent findings of
fact of two lower federal courts, is a salutary one to be followed
where applicable. We think it inapplicable here where the dispute
between the parties is not so much over the elemental facts as over
the constitutional significance to be attached to them. Moreover,
this is a habeas corpus case in which the facts are contained primarily
in the state court record (equally available to us as to the federal
courts below) and where the evidentiary hearing in the District
Court purported to be "confined" to two specific issues which we
deem not controlling. Of the nine cases cited in the dissenting
opinion in support of the rule of practice urged upon us, eight of
them involved civil litigation in the federal system. Only one of
the cases cited, Boulden v. Holman, 394 U.S. 478 (1969), involved a
habeas corpus review and the Court simply held-on the basis of
"an independent study of the entire record"-that the conclusion
reached by the District Court and the Court of Appeals "was justified."
Id., at 480, 481.
194 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
"A. Not in the kitchen.
"Q. So you couldn't have seen him then?
"A. Yes, I could see him, when I looked up in his
face.
"Q. In the dark?
"A. He was right in the doorway-it was enough
light from the bedroom shining through. Yes, I
could see who he was.
"Q. You could see? No light? And you could
see him and know him then?
"A. Yes." Tr. of Rec. in No. 237, 0. T. 1967,
pp. 33- 34.
vVhen the victim screamed, her 12-year-old daughter
came out of her bedroom and also began to scream. The
assailant directed the victim to "tell her [ the daughter]
to shut up, or I'll kill you both." She did so, and was
then walked at knifepoint about two blocks along a railroad
track, taken into a woods, and raped there. She
testified that "the moon was shining brightly, full moon."
After the rape, the assailant ran off, and she returned
home, the whole incident having taken between 15 minutes
and half an hour.
She then gave the police what the Federal District
Court characterized as "only a very general description,"
describing him as "being fat and flabby with smooth skin,
bushy hair and a youthful voice." Additionally, though
not mentioned by the District Court, she testified at the
habeas corpus hearing that she had described her assailant
as being between 16 and 18 years old and between
five feet ten inches and six feet tall, as weighing between
180 and 200 pounds, and as having a dark brown complexion.
This testimony was substantially corroborated
by that of a police officer who was testifying from his
notes.
On several occasions over the course of the next seven
months, she viewed suspects in her home or at the police
NEIL v. BIGGERS 195
188 Opinion of the Court
station, some in lineups and others in showups, and was
shown between 30 and 40 photographs. She told the
police that a man pictured in one of the photographs had
features similar to those of her assailant, but identified
none of the suspects. On August I 7, the police called
her to the station to view respondent, who was being detained
on another charge. In an effort to construct a
suitable lineup, the police checked the city jail and the
city juvenile home. Finding no one at either place fitting
respondent's unusual physical description, they conducted
a showup instead.
The showup itself consisted of two detectives walking
respondent past the victim. At the victim's request, the
police directed respondent to say "shut up or I'll kill you."
The testimony at trial was not altogether clear as to
whether the victim first identified him and then asked
that he repeat the words or made her identification after
he had spoken! In any event, the victim testified that
she had "no doubt" about her identification. At the
habeas corpus hearing, she elaborated in response to
questioning.
"A. That I have no doubt, I mean that I am sure
that when I-see, when I first laid eyes on him, I
4 At trial, one of the police officers present at the identification
testified explicitly that the words were spoken after the identification.
The victim testified:
"Q. What physical characteristics, if any, caused you to be able
to identify him?
"A. First of all,-uh-his size,-next I could remember his voice.
"Q. What about his voice? Describe his voice to the Jury.
"A. Well, he has the voice of an immature youth-I call it an
immature youth. I have teen-age boys. And that was the first
thing that made me think it was the boy." Tr. of Rec. in .No. 237,
0. T. 1967, p. 17.
The colloquy continued, with the victim describing the voice and
other physical characteristics. At the habeas corpus hearing, the
victim and all of the police witnesses testified that a visual identification
preceded the voice identification. App. 80, 123, 134.
196 OCTOBER TERM, 1972
Opinion of the Court 409 l'. S.
knew that it was the individual, because his facewell,
there was just something that I don't think I
could ever forget. I believe- -
"Q. You say when you first laid eyes on him,
which time are you referring to?
"A. When I identified him-when I seen him in
the courthouse when I was took up to view the suspect."
App. 127.
We must decide whether, as the courts below held, this
identification and the circumstances surrounding it failed
to comport with due process requirements.
III
We have considered on four occasions the scope of due
process protection against the admission of evidence deriving
from suggestive identification procedures. In
Stovall v. Denno, 388 U. S. 293 (1967), the Court held
that the defendant could claim that "the confrontation
conducted ... was so unnecessarily suggestive and conducive
to irreparable mistaken identification that he
was denied due process of law." Id., at 301-302. This,
we held, must be determined "on the totality of the
circumstances." We went on to find that on the facts
of the case then before us, due process was not violated,
emphasizing that the critical condition of the injured
witness justified a showup in her hospital room.
At trial, the witness, whose view of the suspect at the
time of the crime was brief, testified to the out-of-court
identification, as did several police officers present in her
hospital room, and also made an in-court identification.
Subsequently, in a case where the witnesses made incourt
identifications arguably stemming from previous
exposure to a suggestive photographic array, the Court
restated the governing test:
"[W]e hold that each case must be considered on
its own facts, and that convictions based on eye188
NEIL v. BIGGERS 197
Opinion of the Court
witness identification at trial following a pretrial
identification by photograph will be set aside on that
ground only if the photographic identification procedure
was so impermissibly suggestive as to give
rise to a very substantial likelihood of irreparable
misidentification." Simmons v. United States, 390 u. s. 377, 384 (1968).
Again we found the identification procedure to be supportable,
relying both on the need for prompt utilization
of other investigative leads and on the likelihood that the
photographic identifications were reliable, the witnesses
having viewed the bank robbers for periods of up to five
minutes under good lighting conditions at the time of
the robbery.
The only case to date in which this Court has found
identification procedures to be violative of due process
is Foster v. California, 394 U.S. 440, 442 (1969). There,
the witness failed to identify Foster the first time he
confronted him, despite a suggestive lineup. The police
then arranged a showup, at which the witness could make
only a tentative identification. Ultimately, at yet another
confrontation, this time a lineup, the witness was
able to muster a definite identification. We held all of
the identifications inadmissible, observing tha.t the identifications
were "all but inevitable" under the circumstances.
Id., at 443.
In the most recent case of Coleman v. Alabama, 399
U. S. 1 ( 1970), we held admissible an in-court identification
by a witness who had a fleeting but "real good
look" at his assailant in the headlights of a passing car.
The witness testified at a pretrial suppression hearing
that he identified one of the petitioners among the participants
in the lineup before the police placed the participants
in a formal line. MR. J U STICE BRENNAN for
four members of the Court stated that this evidence could
support a finding that the in-court identification was
198 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
"entirely based upon observations at the time of the
assault and not at all induced by the conduct of the
lineup." Id., at 5-6.
Some general guidelines emerge from these cases as to
the relationship between suggestiveness and misidentification.
It is, first of all, apparent that the primary
evil to be avoided is "a very substantial likelihood of
irreparable misidentification." Simmons v. United
States, 390 U. S., at 384. While the phrase was coined
as a standard for determining whether an in-court identification
would be admissible in the wake of a suggestive
out-of-court identification, with the deletion of
"irreparable" it serves equally well as a standard for
the admissibility of testimony concerning the out-ofcourt
identification itself.5 It is the likelihood of misidentification
which violates a defendant's right to due
process, and it is this which was the basis of the exclusion
of evidence in Foster. Suggestive confrontations
are disapproved because they increase the likelihood of
misidentification, and unnecessarily suggestive ones are
condemned for the further reason that the increased
chance of misidentification is gratuitous. But as Stovall
makes clear, the admission of evidence of a showup without
more does not violate due process.
What is less clear from our cases is whether, as intimated
by the District Court, unnecessary suggestiveness
5 See Clemons v. United States, 133 U.S. App. D. C. 27, 47, 408 F.
2d 1230, 1250 (1968) (McGowan, J., for the court en bane), cert. denied,
394 U.S. 964 (1969). In the present case, there has been controversy,
in our view irrelevant, over whether, as she testified at the
habeas corpus hearing, the victim actually made an in-court identification.
While we think it evident from the many testimonial links
between her out-of-court identification and "the defendant" before
her in court that the answer is "yes," we recognize that if the testimony
concerning the out-of-court identification was inadmissible,
the conviction must be overturned.
NEIL v. BIGGERS 199
188 Opinion of the Court
alone requires the exclusion of evidence.0 While we are
inclined to agree with the courts below that the police
did not exhaust all possibilities in seeking persons physically
comparable to respondent, we do not think that the
evidence must therefore be excluded. The purpose of a
strict rule barring evidence of unnecessarily suggestive
confrontations would be to deter the police from using
a less reliable procedure where a more reliable one may
be available, and would not be based on the assumption
that in every instance the admission of evidence
of such a confrontation offends due process. Clemons
v. United States, 133 U. S. App. D. C. 27, 48, 408
F. 2d 1230, 1251 (1968) (Leventhal, J., concurring); cf.
Gilbert v. California, 388 U. S. 263, 273 (1967); Mapp
v. Ohio, 367 U. S. 643 (1961). Such a rule would have
no place in the present case, since both the confrontation
and the trial preceded Stovall v. Denno, supra, when we
first gave notice that the suggestiveness of confrontation
procedures was anything other than a matter to be argued
to the jury.
We turn, then, to the central question, whether under
the "totality of the circumstances" the identification was
reliable even though the confrontation procedure was
suggestive. As indicated by our cases, the factors to be
considered in evaluating the likelihood of misidentification
include the opportunity of the witness to view the
criminal at the time of the crime, the witness' degree of
attention, the accuracy of the witness' prior description
of the criminal, the level of certainty demonstrated by
the witness at the confrontation, and the length of time
6 The District Court stated:
"In this case it appears to the Court that a line-up, which both
sides admit is generally more reliable than a show-up, could have
been arranged. The fact that this was not done tended needlessly
to decrease the fairness of the identification process to which petitioner
was subjected." App. 42.
200 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
between the crime and the confrontation. Applying
these factors, we disagree with the District Court's
conclusion.
In part, as discussed above, we think the District
Court focused unduly on the relative reliability of a
lineup as opposed to a showup, the issue on which expert
testimony was taken at the evidentiary hearing.
It must be kept in mind also that the trial was conducted
before Stovall and that therefore the incentive
was lacking for the parties to make a record at trial of
facts corroborating or undermining the identification.
The testimony was addressed to the jury, and the jury
apparently found the identification reliable. Some of
the State's testimony at the federal evidentiary hearing
may well have been self-serving in that it too neatly fit
the case law, but it surely does nothing to undermine
the state record, which itself fully corroborated the
identification.
We find that the District Court's conclusions on the
critical facts are unsupported by the record and clearly
erroneous. The victim spent a considerable period of
time with her assailant, up to half an hour. She was with
him under adequate artificial light in her house and under
a full moon outdoors, and at least twice, once in the
house and later in the woods, faced him directly and
intimately. She was no casual observer, but rather the
victim of one of the most persona1ly humiliating of all
crimes.7 Her description to the police, which included the
assailant's approximate age, height, weight, complexion,
skin texture, build , and voice, might not have satisfied
Proust but was more than ordinarily thorough. She had
"no doubt" that respondent was the person who raped
her. In the nature of the crime, there are rarely witnesses
to a rape other than the victim, who often has a limited
7 See United States ex rel. Phipps v. Follette, 428 F. 2d 912, 915-
916 (CA2) (Friendly, J.), cert. denied, 400 U. S. 908 (1970).
NEIL v. BIGGERS 201
188 Opinion of BRENNAN, J.
opportunity of observation.8 The victim here, a practical
nurse by profession, had an unusual opportunity to observe
and identify her assailant. She testified at the
habeas corpus hearing that there was something about
his face "I don't think I could ever forget." App. 127.
There was, to be sure, a lapse of seven months between
the rape and the confrontation. This would be a seriously
negative factor in most cases. Here, however, the
testimony is undisputed that the victim made no previous
identification at any of the showups, lineups, or
photographic showings. Her record for reliability was
thus a good one, as she had previously resisted whatever
suggestiveness inheres in a showup. Weighing all
the factors, we find no substantial likelihood of misidentification.
The evidence was properly allowed to go
to the jury.9
Affirmed in part, reversed in part, and remanded.
MR. JusTICE MARSHALL took no part in the consideration
or decision of this case.
MR. JusTICE BRENNAN, with whom MR. JUSTICE DOUGLAS
and MR. JUSTICE STEWART concur, concurring in part
and dissenting in part.
We granted certiorari in this case to determine whether
our affirmance by an equally divided Court of respondent's
state conviction constitutes an actual adjudication
8 Respondent attaches some weight to the failure of the victim's
daughter to identify him. Apart from the fact that this does not
bear directly on the reliability of her mother's identification, the girl
was only 12 years old and had, as best we can tell, only a very
brief view of the assailant from across the room.
9 Respondent's habeas corpus petition raised a number of other
claims, including one challenging the legality of his detention at the
time he was viewed by the victim. The courts below did not address
these claims, nor do we.
202 OCTOBER TERM, 1972
Opinion of BRENNAN, J. 409 U.S.
within the meaning of 28 U. S. C. § 2244 ( c) , and thus
bars subsequent consideration of the same issues on federal
habeas corpus. The Court holds today that such an
affirmance does not bar further federal relief, and I fully
concur in that aspect of the Court's opinion. Regrettably,
however, the Court also addresses the merits and
delves into the factual background of the case to reverse
the District Court's finding, upheld by the Court of Appeals,
that under the "totality of the circumstances," the
pre-Stovall showup was so impermissibly suggestive as
to give rise to a substantial likelihood of misidentification.
This is an unjustified departure from our long-established
practice not to reverse findings of fact concurred in by
two lower courts unless shown to be clearly erroneous.
See, e. g., Blau v. Lehman, 368 U. S. 403, 408-409 ( 1962);
Faulkner v. Gibbs, 338 U. S. 267, 268 (1949); United
States v. Dickinson, 331 U. S. 745, 751 (1947); United
States v. Commercial Credit Co., 286 U.S. 63, 67 (1932);
United States v. Chemical Foundation, 272 U. S. 1, 14
(1926); Baker v. Schofield, 243 U. S. 114, 118 (1917);
Towson v. Moore, 173 U.S. 17, 24 (1899); cf. Boulden v.
Holman, 394 U. S. 478, 480-481 (1969).
As the Court recognizes, a pre-Stovall identification
obtained as a result of an unnecessarily suggestive showup
may still be introduced in evidence if, under the "totality
of the circumstances," the identification retains strong
indicia of reliability. After an extensive hearing and
careful review of the state court record, however, the
District Court found that, under the circumstances of
this case, there existed an intolerable risk of misidentification.
Moreover, in making this determination, the court
specifically found that "the complaining witness did not
get an opportunity to obtain a good view of the suspect
during the commission of the crime," "the show-up confrontation
was not conducted near the time of the alleged
crime, but, rather, some seven months after its comNEIL
v. BIGGERS 203
188 Opinion of BRENNAN, J.
mission," and the complaining witness was unable to
give "a good physical description of her assailant" to the
police. App. 41-42. The Court of Appeals, which conducted
its own review of the record, upheld the District
Court's findings in their entirety. 448 F. 2d 91, 95 (CA6
1971).
Although this case would seem to fall squarely within
the bounds of the "two-court" rule, the Court seems
to suggest that the rule is "inapplicable here" because
"this is a habeas corpus case in which the facts are
contained primarily in the state court record ( equally
available to us as to the federal courts below) .... "
Ante, at 193 n. 3. The "two-court" rule, however,
rests upon more than mere deference to the trier
of fact who has a firsthand opportunity to observe the
testimony and to gauge the credibility of witnesses.
For the rule also serves as an indispensable judicial
"time-saver," making it unnecessary for this Court to
waste scarce time and resources on minor factual questions
which have already been accorded consideration
by two federal courts and whose resolution is without
significance except to the parties immediately involved.
Thus, the "two-court" rule must logically apply even
where, as here, the lower courts' findings of fact are
based primarily upon the state court record.
The Court argues further, however, that the rule is
irrelevant here because, in its view, "the dispute between
the parties is not so much over the elemental facts as
over the constitutional significance to be attached to
them." Ante, at 193 n. 3. I cannot agree. Even a
cursory examination of the Court's opinion reveals that
its concern is not limited solely to the proper application
of legal principles but, rather, extends to an essentially
de nova inquiry into such "elemental facts" as
the nature of the victim's opportunity to observe the
assailant and the type of description the victim gave
204 OCTOBER TERM, 1972
Opinion of BRENNAN, J. 409U.S.
the police at the time of the crime. And although we
might reasonably disagree with the lower courts' findings
as to such matters, the "two-court" rule wisely inhibits
us from cavalierly substituting our own view of the
facts simply because we might adopt a different construction
of the evidence or resolve the ambiguities differently.
On the contrary, these findings are "final here
in the absence of very exceptional showing of error."
Comstock v. Group of Institutional Investors, 335 U. S.
211, 214 (1948). The record before us is simply not
susceptible of such a showing and, indeed, the petitioner
does not argue otherwise. I would therefore dismiss
the writ of certiorari as improvidently granted insofar
as it relates to Question 2 of the Questions Presented.
TRAFFICANTE v. METROPOLITAN LIFE INS. 205
Syllabus
TRAFFICANTE ET AL. V. METROPOLITAN LIFE
INSURANCE co. ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 71-708. Argued November 7, 1972-Decided December 7, 1972
Two tenants of an apartment complex filed complaints with the
Secretary of Housing and Urban Development alleging that their
landlord racially discriminated against nonwhites, that the tenants
thereby lost the social benefits of living in an integrated community,
missed business and professional advantages that would
have accrued from living with members of minority groups, and
suffered from being "stigmatized" as residents of a "white ghetto."
The District Court, not reaching the merits, held that the complaining
tenants were not within the class of persons entitled to
sue under § 810 (a) of the Civil Rights Act of 1968. The Court
of Appeals, in affirming, construed § 810 (a) to permit complaints
only by persons who are the objects of discriminatory housing
practices. Held: The definition in§ 810 (a) of "person aggrieved,"
as "any person who claims to have been injured by a clisr.riminRtory
housing practice," shows a congressional intention to define
standing as broadly as is permitted by Article III of the Constitution,
and petitioners, being tenants of the apartment complex, have
standing to sue under § 810 (a). Pp. 208-212.
446 F. 2d 1158, reversed and remanded.
DouGLAS, J., delivered the opinion for a unanimous Court.
WHITE, J., filed a concurring opinion, in which BLACK:1-WN and
l'oWELL, JJ., joined, post, p. 212.
Stephen V. Bomse argued the cause for petitioners.
With him on the briefs were George H. Clyde, Jr., and
Margaret D. Brown.
Richard J. Kilmartin argued the cause and filed a brief
for Metropolitan Life Insurance Co. Robert M. Shea
argued the cause and filed a brief for respondent Parkmerced
Corp.
206 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
Deputy Solicitor General Wallace argued the cause
for the United States as amicus curiae urging reversal.
With him on the brief were Solicitor General Griswold,
Assistant Attorney General Norman, and Frank E.
Schwelb. Briefs of amici curiae urging reversal were
filed by Robert Keith Booth, Jr., for the City of Palo
Alto, California, and by Jack Greenberg, James M. Nabrit
III, Charles Stephen Ralston, Michael Davidson, William
Bennett Turner, and Alice Daniel for the NAACP Legal
Defense and Educational Fund, Inc.
MR. JusTICE DouGLAS delivered the opinion of the
Court.
Two tenants of Parkmerced, an apartment complex in
San Francisco housing about 8,200 residents, filed separate
complaints with the Secretary of Housing and Urban
Development (HUD) pursuant to § 810 (a) 1 of the Civil
Rights Act of 1968, 82 Stat. 85, 42 U.S. C. § 3610 (a). One
tenant is black, one white. Each alleged that the owner 2
1 Section 810 (a) of the Act provides in relevant part:
"Any person who claims to have been injured by a discriminatory
housing practice or who believes that he will be irrevocably injured
by a discriminatory housing practice that is about to occur (hereafter
'person aggrieved') may file a complaint with the Secretary.
Complaints shall be in writing and shall contain such information
and be in such form as the Secretary requires. Upon receipt of
such a complaint the Secretary shall furnish a copy of the same
to· the person or persons who allegedly committed or are about to
commit the alleged discriminatory housing practice. Within thirty
days after receiving a complaint, or within thirty days after the expiration
of any period of reference under subsection ( c), the Secretary
shall investigate the complaint and give notice in writing
to the person aggrieved whether he intends to resolve it. If the
Secretary decides to resolve the complaint, he shall proceed to try
to eliminate or correct the alleged discriminatory housing practice
by informal methods of conference, conciliation, and persuasion."
2 The owner at the time the suit was started was Metropolitan
Life Ins. Co. After the suit was commenced, Parkmerced Corp.
TRAFFICANTE v. METROPOLITAN LIFE INS. 207
205 Opinion of the Court
of Parkrnerced had discriminated against nonwhites on
the basis of race in the rental of apartments within the
complex in violation of § 804 of the Act.
HUD, pursuant to § 810 (c) of the Act,3 notified the
appropriate California state agency of the complaints and
the state agency, for lack of adequate resources to handle
the complaints, referred the charge back to HUD. Since
HUD failed to secure voluntary compliance within 30
days, petitioners brought this action in the District Court
under § 810 (d) of the Act.4
The complaint alleged that the owner had discriminated
against nonwhite rental applicants in numerous
acquired the apartment complex from Metropolitan, and it was joined
as a defendant.
3 Section 810 ( c) provides:
"Wherever a State or local fair housing law provides rights and
remedies for alleged discriminatory housing practices which are
substantially equivalent to the rights and remedies provided in this
title, the Secretary shall notify the appropriate State· or local
agency of any complaint filed under this title which appears to
constitute a violation of such State or local fair housing law, and
the Secretary shall take no further action with respect to such
complaint if the appropriate State or local law enforcement official
has, within thirty days from the date the alleged offense has been
brought to his attention, commenced proceedings in the matter,
or, having done so, carries forward such proceedings with reasonable
promptness. In no event shall the Secretary take further action
unless he certifies that in his judgment, under the circumstances
of the particular case, the protection of the rights of the parties or
the interests of justice require such action."
4 Section 810 (d) provides in relevant part:
"If within thirty days after a complaint is filed with the Secretary
or within thirty days after expiration of any period of reference
under subsection (c), the Secretary has been unable to obtain voluntary
compliance with this title, the person aggrieved may, within
thirty days thereafter, commence a civil action in any appropriate
United States district court, against the respondent named in the
complaint, to enforce the rights granted or protected by this title,
insofar as such rights relate to the subject of the complaint."
208 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
ways, e. g., making it known to them that they would
not be welcome at Parkmerced, manipulating the waiting
list for apartments, delaying action on their applications,
using discriminatory acceptance standards, and
the like.
They-the two tenants-claimed they had been injured
in that (1) they had lost the social benefits of living in
an integrated community; (2) they had missed business
and professional advantages which would have accrued
if they had lived with members of minority groups;
(3) they had suffered embarrassment and economic damage
in social, business, and professional activities from
being "stigmatized" as residents of a "white ghetto." 5
The District Court did not reach the merits but only
held that petitioners were not within the class of persons
entitled to sue under the Act. 322 F. Supp. 352. The
Court of Appeals affirmed, construing § 810 (a) narrowly
to permit complaints only by persons who are the objects
of discriminatory housing practices. 446 F. 2d 1158.
The case is here on a petition for a writ of certiorari, which
we granted, 405 U. S. 915. We reverse the judgment
below.
The definition of "person aggrieved" contained in
§ 810 (a)6 is in terms broad, as it is defined as "[aJny
person who claims to have been injured by a discriminatory
housing practice."
The Act gives the Secretary of HUD power to receive
and investigate complaints regarding discriminatory
housing practices. The Secretary, however, must defer
to state agencies that can provide relief against the
named practice. If the state agency does not act, the
Secretary may seek to resolve the controversy by confer-
5 Less than 1 % of the tenants in this apartment complex are
black.
6 Note 1, supra.
TRAFFICANTE v. ME'l'ROPOLITAN LIFE INS. 209
205 Opinion of the Court
ence, conciliation, or persuasion. If these attempts fail,
the complainant may proceed to court pursuant to § 810
(d).7 Moreover, these rights may be enforced "by civil
actions in appropriate United States district courts without
regard to the amount in controversy," if brought
within 180 days "after the alleged discriminatory housing
practice occurred." § 812 (a). In addition, § 813 gives
the Attorney General authority to bring a civil action in
any appropriate United States district court when he has
reasonable cause to believe "that any person or group of
persons is engaged in a pattern or practice of resistance
to the full enjoyment of any of the rights granted" by
the Act.
It is apparent, as the Solicitor General says, that complaints
by private persons are the primary method of
obtaining compliance with the Act. Hackett v. McGuire
Bros., Inc., 445 F. 2d 442 (CA3), which dealt with the
phrase that allowed a suit to be started "by a person
claiming to be aggrieved" under the Civil Rights Act of
1964, 42 U.S. C. § 2000e-5 (a), concluded that the words
used showed "a congressional intention to define standing
as broadly as is permitted by Article III of the Constitution."
Id., at 446. With respect to suits brought under
the 1968 Act,8 we reach the same conclusion, insofar as
tenants of the same housing unit that is charged with
discrimination are concerned.
The language of the Act is broad and inclusive. Individual
injury or injury in fact to petitioners, the ingredient
found missing in Sierra Club v. Morton, 405
U. S. 727, is alleged here. What the proof may be is one
thing; the alleged injury to existing tenants by exclusion
7 Note 4, supra.
8 We find it unnecessary to reach the question of standing to sue
under 42 U. S. C. § 1982 which is the basis of the third cause of
action alleged in the petition but based on the same allegations as
those made under the Civil Rights Act of 1968.
210 OCTOBER TERM, 1972
Opinion of the Court 409 u. s.
of minority persons from the apartment complex is the
loss of important benefits from interracial associations.
The legislative history of the Act is not too helpful.
The key section now before us, i. e., § 810, was derived
from an amendment offered by Senator Mondale and incorporated
in the bill offered by Senator Dirksen.9 While
members of minority groups were damaged the most from
discrimination in housing practices, the proponents of
the legislation emphasized that those who were not the
direct objects of discrimination had an interest in ensuring
fair housing, as they too suffered.10
The Assistant Regional Administrator for HUD wrote
petitioners' counsel on November 5, 1970, that "it is the
determination of this office that the complainants are
aggrieved persons and as such are within the jurisdiction"
of the Act. We are told that that is the consistent administrative
construction of the Act. Such construction
is entitled to great weight. Udall v. Tallman, 380 U. S.
1, 16; Griggs v. Duke Power Co., 401 U. S. 424, 433.--434.
The design of the Act confirms this construction.
HUD has no power of enforcement. So far as federal
agencies are concerned only the Attorney General may
sue; yet, as noted, he may sue only to correct "a pattern
or practice" of housing discrimination. That phrase
"a pattern or practice" creates some limiting factors in
9 The Dirksen substitute, 114 Cong. Rec. 4570-4573 retained the
present language of § 810 (a) which Senator Mondale had previously
introduced, id., at 2270, and it was in the bill passc>d by the
Senate, id., at 5992, which the House subsequently passed, id., at
9621.
The "aggrieved person" provision that was in Senator Mondale's
bill and carried into the Dirksen bill can be found id., at 2271
(§ 11 (a) of the Mondale bill).
10 See Hearings before the Subcommittee on Housing and Urban
Affairs of the Senate Committee on Banking and Currency on
S. 1358, S. 2114, and S. 2280, 90th Cong., 1st Sess. (1967).
TRAFFICANTE v. METROPOLITAN LIFE INS. 211
205 Opinion of the Court
his authority which we need not stop to analyze. For,
as the Solicitor General points out, most of the fair
housing litigation conducted by the Attorney General is
handled by the Housing Section of the Civil Rights Division,
which has less than two dozen lawyers. Since
HUD has no enforcement powers and since the enormity
of the task of assuring fair housing makes the role of the
Attorney General in the matter minimal, the main generating
force must be private suits in which, the Solicitor
General says, the complainants act not only on their own
behalf but also "as private attorneys general in vindicating
a policy that Congress considered to be of the highest
priority." The role of "private attorneys general" is not
uncommon in modern legislative programs. See Newman
v. Piggie Park Enterprises, 390 U.S. 400, 402; Allen
v. State Board of Elections, 393 U. S. 544, 556; Perkins
v. Matthews, 400 U.S. 379, 396; J. I. Case Co. v. Borak,
377 U. S. 426, 432. It serves an important role in this
part of the Civil Rights Act of 1968 in protecting not only
those against whom a discrimination is directed but also
those whose complaint is that the manner of managing a
housing project affects "the very quality of their daily
lives." Shannon v. United States Dept. of Housing &
Urban Dev., 436 F. 2d 809, 818 (CA3).
The dispute tendered by this complaint is presented
in an adversary context. F'-ast v. Cohen, 392 U. S. 83,
101. Injury is alleged with particularity, so there is not
present the abstract question raising problems under Art.
III of the Constitution. The person on the landlord's
blacklist is not the only victim of discriminatory housing
practices; it is, as Senator J a vi ts said in supporting the
bill, "the whole community," 114 Cong. Rec. 2706, and
as Senator Mondale who drafted § 810 (a) said, the reach
of the proposed law was to replace the ghettos "by truly
integrated and balanced living patterns." Id., at 3422.
212 OCTOBER TERM, 1972
WHITE, J., concurring 409U. S.
We can give vitality to § 810 (a) only by a generous
construction which gives standing to sue to all in the
same housing unit who are injured by racial discrimination
in the management of those facilities within the coverage
of the statute.
We reverse and remand the case to the District Court,
leaving untouched all other questions, including the suggestion
that the case against Metropolitan Life Insurance
Co. has become moot.
Reversed and remanded.
MR. JUSTICE WHITE , with whom MR. Jusl'ICE BLACKMUN
and MR. JusTICE POWELL join, concurring.
Absent the Civil Rights Act of 1968, I would have great
difficulty in concluding that petitioners' complaint in this
case presented a case or controversy within the jurisdiction
of the District Court under Art. III of the Constitution.
But with that statute purporting to give all those
who are authorized to complain to the agency the right
also to sue in court, I would sustain the statute insofar
as it extends standing to those in the position of the petitioners
in this case. Cf. Katzenbach v. Morgan, 384
U. S. 641 , 648-649 (1966); Oregon v. Mitchell, 400 U. S.
112, 240, 248-249 (1970). Consequently, I join the
Court's opinion and judgment.
NLRB v. TEXTILE WORKERS 213
Syllabus
NATIONAL LABOR RELATIONS BOARD v. GRANITE
STATE JOINT BOARD, TEXTILE
WORKERS UNION OF AMERICA,
LOCAL 1029, AFL-CIO
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIRST CIRCUIT
No. 71-711. Argued November 13, 1972-Decided December 7, 1972
Where neither the Union-employer contract nor the Union's constitution
or bylaws defined or limited the circumstances under
which a member could resign from the Union, it was an unfair
labor practice for the Union to fine employees who had been Union
members in good standing but who had resigned during a lawful
strike authorized by the members and thereafter returned to work
during that strike. Pp. 215-218.
446 F. 2d 369, reversed.
DOUGLAS, J., delivered the opinion of the Court, in which BURGER,
C. J., and BRENNAN, STEWART, WHITE, MARSHALL, POWELL, and
REHNQUIST, JJ., joined. BURGER, C. J., filed a concurring opinion,
post, p. 218. BLACKMUN, J., filed a dissenting opinion, post, p. 218.
Norton J. Come argued the cause for petitioner. With
him on the brief were Solicitor General Griswold, Allan
A. Tuttle, and Peter G. Nash.
Harold B. Roitman argued the cause and filed a brief
for respondent.
Milton Smith, Jerry Kronenberg, and Gerard C. Smetana
filed a brief for the Chamber of Commerce of the
United States as amicus curiae urging reversal.
Plato E. Papps, Louis Poulton, and Bernard Dunau
filed a brief for the International Association of Machinists
and Aerospace Workers, AFL-CIO, as amicus
curiae, urging affirmance.
214 OCTOBER TERM, 1972
Opinion of the Court 409 u. s.
MR. JUSTICE DouGLAS delivered the opinion of the
Court.
Respondent is a union that had a collective-bargaining
agreement with an employer which contained a maintenance-
of-membership clause providing that members
were, as a condition of employment, to remain in good
standing "as to payment of dues" for the duration of the
contract. Neither the contract nor the Union's constitution
or bylaws contained any provision defining or
limiting the circumstances under which a member could
resign. A few days before the collective agreement expired,
the Union membership voted to strike if no agreement
was reached by a given date. No agreement was
reached in the specified period, so the strike and attendant
picketing commenced. Shortly thereafter, the Union held
a meeting at which the membership resolved that any
member aiding or abetting the employer during the
strike would be subject to a $2,000 fine.
About six weeks later, two members sent the Union
their letters of resignation. Six months or more later, 29
other members resigned. These 31 employees returned
to work.
The Union gave them notice that charges had been
made against them and that on given dates the Union
would hold trials. None of the 31 employees appeared
on the dates pr-escribed; but the trials nonetheless took
place even in the absence of the employees and fines were
imposed on all.1 Suits were filed by the Union to collect
the fines. But the outcome was not determined because
the employees filed unfair labor practice charges with the
National Labor Relations Board against the Union.
1 Fines equivalent to a day's wages for each day worked during
the strike were imposed.
NLRB v. TEXTILE WORKERS 215
213 Opinion of the Court
The unfair labor practice charged was that the Union
restrained or coerced the employees "in the exercise of
the rights guaranteed in section 7." 2 See § 8 (b)(l) of
the Act.3 The Board ruled that the Union had violated
§ 8 (b) ( 1). 187 N. L. R. B. 636. The Court of Appeals
denied enforcement of the Board's order. 446 F. 2d 369.
The case is here on certiorari, 405, U. S. 987.
We held in NLRB v. Allis-Chalmers Mfg. Co., 388
U. S. 175, that a union did not violate § 8 (b) (1) by
fining members who went to work during a lawful strike
authorized by the membership and by suing to collect
the fines. The Court reviewed at length in that opinion
the legislative history of §§ 7 and 8 (b )( 1), and concluded
by a close majority vote that the disciplinary
measures taken by the union against its members on those
facts were within the ambit of the union's control over
its internal affairs. But the sanctions allowed were
against those who "enjoyed full union membership."
Id., at 196.
Yet when a member lawfully resigns from the union,
its power over him ends. We noted in Scofield v. NLRB,
2 Section 7 provides in relevant part:
"Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other
mutual aid or protection, and shall also have the right to refrain
from any or all of such activities ... . " 61 Stat. 140, 29 U. S. C.
§ 157.
3 Section 8 (b). "It shall be an unfair labor practice for a labor
organization or its agents-
" (I) to restrain or coerce (A) employees in the exercise of the
rights guaranteed in section 7: Provided, That this paragraph shall
not impair the right of a labor organization to prescribe its own
rules with respect to the acquisition or retention of membership
therein ... . " 61 Stat. 141, 29 U. S. C. § 158 (b).
216 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
394 U. S. 423, 429, that if a union rule "invades or frustrates
an overriding policy of the labor laws the rule may
not be enforced, even by fine or expulsion, without violating
§ 8 (b)(l)." On the facts, we held that Scofield,
where fines were imposed on members by the union, fell
within the ambit of Allis-Chalmers. But we drew the
line between permissible and impermissible union action
against members as follows:
" . . . § 8 (b )( 1) leaves a union free to enforce a
properly adopted rule which reflects a legitimate
union interest, impairs no policy Congress has imbedded
in the labor laws, and is reasonably enforced
against union members who are free to leave the
union and escape the rule." Id., at 430.
Under § 7 of the Act the employees have "the right to
refrain from any or all" concerted activities relating to
collective bargaining or mutual aid and protection, as
well as the right to join a union and participate in those
concerted activities. We have here no problem of construing
a union's constitution or bylaws defining or limiting
the circumstances under which a member may resign
from the union! We have, therefore, only to apply the
law which normally is reflected in our free institutionsthe
right of the individual to join or to resign from associations,
as he sees fit "subject of course to any financial
obligations due and owing" the group with which he was
associated. Communications Workers v. NLRB, 215
F. 2d 835, 838.
4 Union-security arrangements requmng employees to pay dues,
though not requiring membership, have been held not to be an unfair
labor practice and therefore not an excuse for the employer to refuse
to bargain collectively for such an agreement, at least where state
law allows employees that option. NLRB v. General, Motors Corp.,
373 U. S. 734.
NLRB v. TEXTILE WORKERS 217
213 Opinion of the Court
The Scofield case indicates that the power of the union
over the member is certainly no greater than the unionmember
contract. Where a member lawfully resigns
from a union and thereafter engages in conduct which
the union rule proscribes, the union commits an unfair
labor practice when it seeks enforcement of fines for
that conduct. That is to say, when there is a lawful dissolution
of a union-member relation, the union has no
more control over the former member than· it has over
the man in the street.
The Court of Appeals gave weight to the fact that the
resigning employees had participated in the vote to
strike. We give that factor little weight. The first two
members resigned from the Union from one to two months
after the strike had begun. The others did so from seven
tb 12 months after its commencement. And the strike
was still in progress 18 months after its inception. Events
occurring after the calling of a strike may have unsettling
effects, leading a member who voted to strike to change
his mind. The likely duration of the strike may increase
the specter of hardship to his family; the ease with which
the employer replaces the strikers may make the strike
seem less provident. We do not now decide to what
extent the contractual relationship between union and
member may curtail the freedom to resign. But where,
as here, there are no restraints on the resignation of
members,5 we conclude that the vitality of § 7 requires
that the member be free to refrain in November from the
5 The Union argues that its practice was to accept resignations
of members only during an annual ten-day "escape period," during
which time the employees were allowed to revoke their "dues
check-off" authorizations. The Court of Appeals rejected that argument,
saying there was no evidence that the employees knew of
this practice or that they had consented to its limitation on their
right to resign. 446 F. 2d 369, 372.
218 OCTOBER TERM, 1972
BLACKMUN, J., dissenting 409 u. s.
actions he endorsed in May and that his § 7 rights are not
lost by a union's plea for solidarity or by its pressures for
conformity and submission to its regime.
Reversed.
MR. CHIEF JusTICE BuRGER, concurring.
I join the Court's opinion because for me the institutional
needs of the Union, important though they are, do
not outweigh the rights and needs of the individual. The
balance is close and difficult; unions have need for solidarity
and at no time is that need more pressing than
under the stress of economic conflict. Yet we have given
special protection to the associational rights of individuals
in a variety of contexts; through § 7 of the Labor Act,
Congress has manifested its concern with those rights
in the specific context of our national scheme of collective
bargaining. Where the individual employee has freely
chosen to exercise his legal right to abandon the privileges
of union membership, it is not for us to impose the
obligations of continued membership.
MR. JusTICE BLACKMON, dissenting.
On September 14, 1968, just six days prior to the
expiration of the collective-bargaining agreement then in
force, the Union membership voted to strike. The strike
began September 20. On September 21 the membership
unanimously 1 adopted a resolution that anyone aiding
or abetting the company during the strike would be subject
to a fine not exceeding $2,000. Each of the employees
involved here voted for both of these resolutions
1 There is a mild discrepancy in the record as to whether the vote
on the strikebreaking resolution was unanimous. In his first opinion,
the trial examiner indicated that the vote was unanimous. (Pet. for
Cert. 23a.) In a second opinion, the examiner indicated that there
was one dissenting vote.
NLRB v. TEXTILE WORKERS 219
213 BLACKMUN, J., dissenting
and participated in the strike.2 Each was a member of
the Union during the period in which the votes were
taken and the strike began. Membership was voluntary,
and persons who became members were free to resign at
any time.3
In NLRB v. Allis-Chalmers Mfg. Co., 388 U. S. 175
( 1967), this Court held that a union could enforce in a
state court a fine levied against a strikebreaking member.
The Court noted that, at the time § 8 (b) ( 1 )(A) was
enacted, "provisions defining punishable conduct and the
procedures for trial and appeal constituted part of the
contract between member and union and that '[t]he
courts' role is but to enforce the contract.'" Id., at 182.
The scope of § 8 (b)(l)(A) was confined to restraint or
coercion visited upon union members in the course of
organizational campaigns, id., at 186-188, or by arbitrary
and undemocratic union leadership, id., at 188-189, or by
coercion that prevented employees not in the bargaining
2 The parties stipulated before the trial examiner that all 31
employees participated in the strike vote, and voted in favor of the
strike. App. 45. It is less clear whether each of the employees
voted in favor of the fine. These are matters that would be resolved
in the state court proceedings.
3 The Union and the company had no union shop clause in the
1965 collective-bargaining agreement. The Union constitution and
bylaws contained no express provision limiting members' rights to
resign. In the absence of such a provision, the members could submit
voluntary resignations at any time. NLRB v. Mechanical &
Allied Production Workers, Local 444, 427 F. 2d 883 (CAl 1970);
Communications Workers v. NLRB, 215 F. 2d 835, 838-839 (CA2
1954). And, as the collective-bargaining agreement was no longer in
force at the time of the resignations, the retention-of-membership
provision was no longer in effect. Finally, the trial examiner found
no evidence that the members knew of the Union's "established
practice" of accepting resignations only during the annual 10-day
escape period, and in the absence of such knowledge that practice
cannot be enforced.
220 OCTOBER TERM, 1972
BLACKMUN, J., dissenting 409 U.S.
unit from going to work, id., at 189 and n. 25. That
section was not viewed as prohibiting "the imposition of
fines on members who decline to honor an authorized
strike and attempts to collect such fines." Id., at 195.
Finding, as a consequence, no restraint or coercion by the
union on the employees' § 7 rights, the Court sustained
the union's power to enforce the strikebreaking fines in
state court.
Today the Court reaches an opposite result on the
basis of two facts: "Neither the contract nor the Union's
constitution or bylaws contained any provision defining
or limiting the circumstances under which a member
could resign''; and the strikebreaking employees resigned
before returning to work, thus effecting "a lawful dissolution
of [ the} union-member relation." As to the first
fact, I am not convinced that the presence of a provision
in the union constitution, for example, should always
make a difference with respect to the existence of an
enforceable, voluntary obligation on the part of an employee
to refrain from strikebreaking activity. In fact,
it seems likely that the three factors of a member's strike
vote, his ratification of strikebreaking penalties, and his
actual participation in the strike, would be far more reliable
indicia of his obligation to the union and its members
than the presence of boilerplate provisions in a
union's constitution. As to the second fact, while membership
in the union may well have implications with
respect to the union's power over the resigned member,
I am hard put to understand why this fact, alone, results
in restraint or coercion under § 8 (b) (1) (A), when the
imposition of fines for similar conduct by members, and
their enforcement in state courts, does not fall within
that section's prohibition. NLRB v. Allis-Chalmers Mfg.
Co., supra. Are an employee's § 7 rights any more at
stake here than they are where, as in Allis-Chalmers, the
NLRB v. TEXTILE WORKERS 221
213 BLACKMUN, J., dissenting
employee engages in the same activity but stops short of
resigning from the union?
I cannot join the Court's opinion, which seems to me
to exalt the formality of resignation over the substance
of the various interests and national labor policies that
are at stake here. Union activity, by its very nature, is
group activity, and is grounded on the notion that
strength can be garnered from unity, solidarity, and
mutual commitment. This concept is of particular force
during a strike, where the individual members of the
union draw strength from the commitments of fellow
members, and where the activities carried on by the
union rest fundamentally on the mutual reliance that inheres
in the "pact." Similar mutual commitments arising
from perhaps less compelling circumstances have been
held to be legally enforceable. See IA A. Corbin, Contracts
§ 198, pp. 210-212 (1963).
A union's power to enforce these mutual commitments
on behalf of its members is of particular importance during
the course of a strike. "The economic strike against
the employer is the ultimate weapon in labor's arsenal
for achieving agreement upon its terms, and '[t]he power
to fine or expel strikebreakers is essential if the union
is to be an effective bargaining agent .... ' " 388 U. S.,
at 181. The 31 employees involved in this case, joined
with their then-fellow members, voted to strike as well
as to impose sanctions on those who broke ranks,4 and
participated in the strike. Their votes were voluntary
and uncoerced. They had notice of the fines, and raised
no objections, perhaps feeling that the hardships that
would befall them during the strike would be compensated
by ultimate victory at the bargaining table. They
4 The reasonableness of the fines imposed by the Union is not in
issue here.
222 OCTOBER TERM, 1972
BLACKMUN, J ., dissenting 409 u. s.
did not attempt to bring the matter to the vote of the
membership, a majority of which could have, and later
did,5 terminate the strike.
I am not convinced that in the strike context, where
paramount union and employee interests are at stake,
union enforcement of this mutual obligation by reasonable
fines "invades or frustrates an overriding policy of
the labor laws." Scofield v. NLRB, 394 U. S. 423, 429
(1969).6 The Court of Appeals concluded that § 7 of
the Act, granting employees the right "to refrain from
any or all" collective activities, including membership
and participation in strikes, was not involved in this
case. Emphasizing the meaning of the word "refrain,"
the court concluded that "although § 7 gives an employee
the right to refuse to undertake and involve himself in
union activities, it does not necessarily give him the
right to abandon these activities in midcourse once he
has undertaken them voluntarily." 446 F. 2d 369, 373.
See H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 39-40
(1947). I believe this notion expressed by the Court
of Appeals is applicable in the limited context of the
economic strike. In my view, the policy of § 7 would
not be frustrated by a holding that an employee could,
in the circumstances of this case, knowingly waive his
§ 7 right to resign from the union and to return to work
5 Counsel for respondent stated in oral argument that the Union
membership ultimately voted to terminate the strike and acctpt the
company's offer. Tr. of Oral Arg. 29.
6 The decision in Scofield v. NLRB, 394 U.S. 423, 430 (1969),
indicated, in dictum, that an employee could avoid a union productivity
rule by resigning from membership. That statement . should
not be construed to mean that employees can never bind themselves
to fulfill union obligations where, as here, the enforcement of that
obligation is essential to maintain union discipline during a strike.
See Recent Cases, 85 Harv. L. Rev. 1669, 1674-1675, n. 23 (1972);
Recent Decisions, 40 Geo. Wash. L. Rev. 330, 338-339 (1971).
NLRB v. TEXTILE WORKERS 223
213 BLACKMUN, J., dissenting
without sanction.7 The mutual reliance of his fellow
members who abide by the strike for which they have
all voted outweighs, in the circumstances here presented,
the admitted interests of the individual who resigns to
return to work. He may still resign, and he may also
return to work, but not without the prospect of having
to pay a reasonable union fine for which he voted.
The employees who resigned have not asserted any
changed circumstances or undue hardships that would
justify their resignations and return to work. Nor do
they claim that the fines imposed on them were unreasonable.
8 Perhaps thE'se matters could be asserted before
the Board or in defense in the state court proceedings
under prevailing state law. As these issues have not
been argued in this case, they need not be resolved at
this time.
I would affirm the decision below.
7 In other contexts it has been held that § 7 rights may be waived.
E. g., NLRB v. Shop Rite Foods, Inc., 430 F. 2d 786 (CA5 1970).
Indeed, this Court's opinions in Allis-Chabners and &afield implicitly
recognize that § 7 rights can be waived. NLRB v. Allis-Chalmers
,lffg. Co., 388 U.S. 175, 200 (1967) (Black, J., dissenting).
8 The General Counsel argued before the trial examiner that the
fines imposed were unrea,;onable, and that the imposition of an
unreasonable fine would constitute a violation of§ 8 (b) (1) (A). The
trial examiner did not pass on this issue, as he concluded that the
imposition of any fine on employees who resigned from membership
in the Union and returned to work violated § 8 (b) (1) (A). Neither
the Board nor the Court of Appeals passed on this issue, and it has
11ot been argued before this Court.
224 OCTOBER TERM, 1972
Syllabus
SWENSON, WARDEN v. STIDHAM
409 U.S.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE EIGHTH CIRCUIT
No. 71-224. Argued October 11, 1972-Decided December 7, 1972
During respondent's trial for murder he challenged the voluntariness
of his confession. A full evidentiary hearing was held outside the
jury's presence, following which the trial court held the confession
admissible. After affirmance of respondent's conviction on appeal,
respondent sought state post-conviction relief. The Missouri Supreme
Court reversed the denial of respondent's motion to vacate,
and an evidentiary hearing was held by the St. Louis Circuit Court
on the voluntariness issue. That court concluded that the trial
judge himself had found the confession voluntary and thus complied
with Jackson v. Denno, 378 U. S. 368. The Missouri Supreme
Court affirmed, and held additionally that respondent had been
given a new evidentiary hearing by the St. Louis court and that
his confession had again been found to be voluntary. Respondent
then sought federal habeas corpus. The District Court determined
that Jackson v. Denno had been satisfied. The Court of Appeals,
concluding that the trial judge, as permitted by then-prevailing
state law, had not made the voluntariness finding himself but had
submitted the issue to the jury, reversed and held that respondent
was entitled to a new hearing. Held: The trial court's Jackson
v. Denno error, if any, was remedied by the constitutionally adequate
evidentiary hearing given respondent on the voluntariness
issue by the St. Louis court, which the Missouri Supreme Court
upheld after concluding from its independent examination of the
record that the confession was voluntary. The Court of Appeals
therefore erred in holding that respondent was entitled to still
another voluntariness hearing in the state court. Pp. 228-231.
443 F. 2d 1327, reversed and remanded.
WHITE, J., delivered the opinion for a unanimous Court.
Kenneth M. Romines, Assistant Attorney General of
Missouri, argued the cause for petitioner. With him on
the brief was John C. Danforth, Attorney General.
SWENSON v. STIDHAM 225
224 Opinion of the Court
Mark M. Hennelly, by appointment of the Court, 405
U. S. 913, argued the cause and filed a brief for
respondent.
MR. JUSTICE WHITE delivered the opm10n of the
Court.
This case has a long and tortured history and is not
yet concluded. At this juncture the question is whether,
absent further state court proceedings to determine the
voluntariness of his confession, respondent's 1955 conviction
for murder is vulnerable to attack under the Fourteenth
Amendment as construed and applied in Jackson
v. Denno, 378 U. S. 368 (1964).
In July 1955, respondent Stidham was convicted of
first-degree murder of a fellow inmate during a riot. He
was sentenced to life imprisonment. He was represented
by experienced counsel who challenged his confession
when it was offered at trial. A full evidentiary hearing
outside the presence of the jury was held. Stidham's
testimony as to the relevant circumstances surrounding
his confession was in sharp conflict with that of the officers.
His claim was that he had been subjected to gross
physical abuse; the officers denied the claim. At the
conclusion of the hearing, the trial judge admitted the
confession with the following ruling:
"THE COURT: [Exhibit] 16 and 16- 1, it is the
Court's opinion that the matters concerning the
statement should be offered in the presence of the
Jury, subject of course to any attacks as to its credibility
by the Defendant. The Defendant has of
course the right to proceed to challenge the voluntariness
of the statement and confession, even before the
Jury, but it is the Court's opinion that upon the evidence
that has been offered before the Court and out226
OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
side of the hearing of the Jury, ... the statement is
and should be admissible in evidence, subject to further
examinations of the witnesses which might be
conducted, so we may proceed with Sergeant Little,
as to his identification before the Jury of the statement
in question, Exhibit 16 and 16-1.
"MR. HENNELLY: In other words, the Court is
overruling my Motion, and request of the Court to
hold as a matter of law, that those statements were
involuntary, is that right?
"THE COURT: That is right. Mr. Sheriff will
you bring the Jury back in?"
Stidham's conviction was affirmed on appeal in State
v. Stidham, 305 S. W. 2d 7 (Mo. 1957). A motion to
vacate was denied and the denial affirmed, 403 S. W.
2d 616 (Mo. 1966). On a second motion to vacate,
however, the Missouri Supreme Court ordered an evidentiary
hearing in accordance with its newly revised
post-conviction procedures. State v. Stidham, 415 S. W.
2d 297 (1967). Among the issues to be heard and
decided was whether Stidham's conviction was infirm
under Jackson v. Denno and the Due Process Clause of
the Fourteenth Amendment.
In compliance with this order, an evidentiary hearing
was held on December 5, 1968, before Judge Godfrey in
the Circuit Court of the City of St. Louis. The court
heard oral testimony from both Stidham and witnesses
offered by the State; it also had before it the transcript
of the prior proceedings as well as certain stipulations of
fact by the parties. In April 1969, the court issued its
opinion, with findings of fact and conclusions of law,
denying the relief requested. With respect to the confession
issue, the court first concluded that the judge himself
at Stidham's trial had found the confession volunSWENSON
v. STIDHAM 227
224 Opinion of the Court
tary and had thus complied with the rule of Jackson v.
Denno. As to voluntariness vel non, the court said:
"As to subparagraph b concerning the averment
that 'the overwhelming evidence was that the
statement was involuntary because of coercion exerted
on movant,' this contention was raised and
profusely litigated in State vs. Stidham, supra, and
the Court finds it no longer open to question here.
State vs. Statler, supra; Crawford vs. State, supra.
"It should be noted that the evidence concerning
the issue of voluntariness was greatly conflicting
and was to be resolved by the trial court in the first
instance and the jury in the second having regard to
the credibility of the witnesses. This issue should
now be considered closed, and this Court finds it to
be so."
This judgment was affirmed in the Missouri Supreme
Court. State v. Stidham, 449 S. W. 2d 634 (1970).
Agreeing first that the judge at Stidham's trial had
with sufficient clarity found the confession voluntary
and admissible in evidence, the court then held that in
any event Stidham had been given a new evidentiary
hearing and his confession again determined to be voluntary
by the circuit court. In its view, the circuit court
had "found, as had the previous court, that the oral and
written confessions were voluntary .... " Based upon
its own extensive analysis of the record, the Missouri
Supreme Court also concluded that the finding of voluntariness
was "overwhelmingly supported and procedurally
and factually the cause meets all the requirements of
the federal cases and there has been no invasion of due
process." Id., at 644.
Stidham then resorted to federal habeas corpus, presenting
several issues including the confession matter.
228 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
The United States District Court for the Western District
of Missouri, after having examined the full record of the
state court proceedings, denied the petition without a
hearing but with an opinion holding that there had been
no violation of Jackson v. Denno because the state trial
judge had satisfactorily found the confession voluntary
prior to submitting it to the jury. 328 F. Supp. 1291
(1970).
The Court of Appeals reversed by a divided vote. 443
F. 2d 1327 (CA8 1971). Its understanding of Missouri
law at the time of Stidham's trial was that the trial judge
was not required to make a finding on voluntariness himself,
but was permitted to submit the issue to the jury in
the first instance. As the Court of Appeals saw it, this
is precisely what the trial court did: the finding that the
confession was not involuntary as a matter of law was not
an independent assessment of voluntariness but merely
a statement that the issue was one for the jury. Because
in its view there had never been a reliable judicial determination
of the facts and of the ultimate issue of
voluntariness, either at trial or in later proceedings, the
Court of Appeals reversed the judgment and remanded
the case to the District Court, it being contemplated that
the State would be allowed "reasonable time to make an
error-free determination on the voluntariness of the confession
at issue .... " Sigler v. Parker, 396 U. S. 482,
484 (1970). We granted certiorari, 404 U. S. 1058
(1972).
We are first asked to hold that the Court of Appeals
erred in concluding that Stidham's trial judge failed to
comply with the requirement of the Fourteenth Amendment
as construed in Jackson v. Denno that there must
be a judicial finding of voluntariness before a challenged
confession is submitted to the jury. Petitioner's position
is not without force, and begins with the proposition
that the Court of Appeals was too much influenced by
SWENSON v. STIDHAM 229
224 Opinion of the Court
what the trial judge might have done under the Missouri
law prevailing at the time and too little by what he
actually did. Even if the controlling rule permitted submission
of a challenged confession to the jury without
the judge's own determination of voluntariness, that rule,
the argument goes, did not prevent him from resolving
the disputed issues of fact prior to admitting the
confession into evidence. Obviously, it is said, Stidham's
trial judge took the latter course, for (1) he held
a full evidentiary hearing outside the presence of the jury,
a wholly unnecessary and time-wasting procedure if he
was merely to determine if there was a disputed issue
as to voluntariness that should be submitted to the jury
and (2) having heard the evidence, he denied the motion
to suppress and found the confession not involuntary as a
matter of law, a conclusion necessarily indicating that
the judge resolved the disputed issues against Stidham,
for had he believed him rather than the police, it is inconceivable
that the confession would have beeh submitted
to the jury. Finally, it is urged that the Missouri
courts and the Federal District Court construed the trial
judge's ruling as equivalent to an affirmative finding that
the confession was voluntary and that the Court of
Appeals should have accepted this interpretation of the
proceedings in the lower courts.
The issue, then, is not free from doubt, but it is evident
that we need not decide it in this case, for the
Court of Appeals erred in another respect that requires
reversal of its judgment.
Even if the trial procedure was flawed with respect to
the challenged confession, Jackson v. Denno does not
entitle Stidham to a new trial if the State subsequently
provided him an error-free judicial determination of the
voluntariness of his confession~error-free in that the determination
was procedurally adequate and substantively
acceptable under the Due Process Clause. Jackson v.
230 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
D enno, 378 U. S., at 393-396. Here, the Missouri
courts, in connection with Stidham's second motion
to vacate his sentence, unquestionably furnished a procedurally
adequate evidentiary hearing, and the outcome
was adverse to Stidham. But it is said that the
St. Louis Circuit Court considered itself bound by prior
proceedings and never independently determined that
Stidham's confession was voluntarily given. Reliance is
placed on Judge Godfrey's statement that the evidence
was conflicting, that the issue was for the trial court and
jury and that "[the] issue should now be considered
closed, and this Court finds it to be so."
This contention is in the t eeth of the Missouri Supreme
Court's prior order reopening the entire matter and directing
the trial judge to hold a full evidentiary hearing and
then "to decide all issues of fact and questions of
law .... " 415 S. W. 2d, at 298. The Missouri Supreme
Court later thought its mandate had been complied with
and expressly read the Circuit Court as having "found,
as had the previous court, that the oral and written confessions
were voluntary .... " 449 S. W. 2d, at 644.
What is more, the Supreme Court carefully reviewed the
record, noting that "the testimony in contradiction of
Stidham's uncorroborated claims was all but overwhelming,"
id., at 641, and that the patrol, police and prison
officers-"all these witnesses, all produced by the state,
categorically or implicitly r efuted all of Stidham's claims
of mistreatment, either physical or mental." Id., at 643-
644. The court's conclusion was that the finding of
voluntariness was "overwhelmingly supported" and that
there had been no invasion of due process. Id., at 644.
We are not inclined to disagree with the Missouri
Supreme Court's interpretation of the Circuit Court's
opinion and judgment. We also hold that as between
the two courts the Jackson v. Denno error, if any, was
sufficiently remedied.
SWENSON v. STIDHAM 231
224 Opinion of the Court
This, of course, does not end the matter. A state
prisoner is free to resort to federal habeas corpus with
the claim that, contrary to a state court's judgment, his
confession was involuntary and inadmissible as a matter
of lav,r. The Court of Appeals did not reach this issue.
We are asked to decide the question here but it is not
our function to deal with this issue in the first instance.
The judgment of the Court of Appeals for the Eighth
Circuit is reversed and the cause is remanded for further
proceedings consistent with this opinion.
So ordered.
232 OCTOBER TERM, 1972
Per Curiam 409 u. s.
ONE LOT EMERALD CUT STONES AND ONE
RING v. UNITED STATES
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
COURT OF APPEALS FOR THE FIFTH CIRCVIT
No. 72-376. DecidPd December 11, 1972
A forfeiture of imported merchandise not included in a declaration
and entry pursuant to the tariff provision in 19 U. S. C. § 1497
is not barred by a prior acquittal under 18 U. S. C. § 545, which
(unlike the civil forfeiture proceeding) requires proof of an
intent to defraud; nor is the forfeiture action barred by the
Double Jeopardy Clause, since Congress may impose both a criminal
and civil sanction respecting the same act or omission.
Certiorari granted; 461 F. 2d 1189, affirmed.
PER CURIAM.
On June 5, 1969, Francisco Farkac Klementova entered
the United States without declaring to United States
Customs one lot of emerald cut stones and one ring.
Klementova was indicted, tried, and acquitted of charges
of violating 18 U. S. C. § 545 1 by willfully and know-
1 "Whoever knowingly and willfully, with intent to defraud the
United States, smuggles, or clandestinely introduces into the United
States any merchandise which should have been invoiced, or makes
out or passes, or attempts to pass, through the customhouse any
false, forged, or fraudulent invoice, or other document or paper; or
"Whoever fraudulently or knowingly imports or brings into the
United States, any merchandise contrary to law, or receives, conceals,
buys, sells, or in any manner facilitates the transportation, concealment,
or sale of such merchandise after importation, knowing
the same to have been imported or brought into the United States
contrary to law-
"Shall be fined not more than $10,000 or imprisoned not more
than five years, or both.
"Proof of defendant's possession of su('h goods, unless explained to
the satisfaction of the jury, shall be deemed evidence sufficient to
authorize conviction for violation of this section.
"Merchandise introduced into the United States in violation of this
section, or the value thereof, to be recovered from any person deONE
LOT EMERALD CUT STONES v. UNITED STATES 233
232 Per Curiam
ingly, with intent to defraud the United States, smuggling
the articles into the United States without submitting
to the required customs procedures. Following
the acquittal, the Government instituted a forfeiture
action in the United States District Court, Southern
District of Florida, under 18 U. S. C. § 545 and § 497
of the Tariff Act of 1930, 46 Stat. 728, 19 U. S. C.
§ 1497.2 Klementova intervened in the proceeding and
argued that his acquittal of charges of violating 18
U. S. C. § 545 barred the forfeiture. The District Court
held that the forfeiture was barred by collateral estoppel
and the Fifth Amendment. The United States Court of
Appeals for the Fifth Circuit reversed, holding that a
forfeiture action pursuant to 19 U. S. C. § 1497 was not
barred by an acquittal of charges of violating 18 U. S. C.
§ 545. We grant certiorari, affirm, and thereby resolve
a conflict among the circuits as to whether a forfeiture
is barred in these circumstances.3
scribed in the first or second paragraph of this section, shall be forfeited
to the United States.
"The term 'United States,' as used in this section, shall not include
the Philippine Islands, Virgin Islands, American Samoa, Wake Island,
Midway Islands, Kingman Reef, Johnston Island, or Guam."
2 Title 19 U.S. C. § 1497 provides:
"Any article not included in the declaration and entry as made,
and, before examination of the baggage was begun, not mentioned
in writing by such person, if written declaration and entry was
required, or orally if written declaration and entry was not required,
shall be subject to forfeiture and such person shall be liable to
a penalty equal to the value of such article."
3 In United State11 v. Two Hundred and One Fifty-Pound Bags
of Furazolidone, No. 71-1329 (1971), cert. denied, 405 U. S.
964 (1972), the Court of Appeals for the Eighth Circuit affirmed a
summary judgment on the basis of a previous acquittal of charges
of violating § 545 in favor of the owner of property in a forfeiture
action commenced by the Government under 18 U. S. C. § 545 and
19 U. S. C. § 1460. The Court of Appeals for the First Circuit
agrees with the view of the Fifth Circuit in the present case. See
234 OCTOBER TERM, 1972
Per Curiam 409U. S.
Collateral estoppel would bar a forfeiture under § 1497
if, in the earlier criminal proceeding, the elements of a
§ 1497 forfeiture had been resolved against the Government.
Ashe v. Swenson, 397 U. S. 436, 443 (1970). But
in this case acquittal on the criminal charge did not
necessarily resolve the issues in the forfeiture action.
For the Government to secure a conviction under § 545,
it must prove the physical act of unlawful importation
as well as a knowing and willful intent to defraud the
United States. An acquittal on the criminal charge may
have involved a finding that the physical act was not done
with the requisite intent. Indeed, the court that tried
the criminal charge specifically found that the Government
had failed to establish intent.4 To succeed in a
forfeiture action under § 1497, on the other hand, the
Government need only prove that the property was
brought into the United States without the required
declaration; the Government bears no burden with respect
to intent. Thus, the criminal acquittal may not be
regarded as a determination that the property was not
unlawfully brought into the United States, and the for-
Leiser v. United States, 234 F. 2d 648, cert. denied, 352 U. S. 893
(1956).
We need not, and do not, decide whether an acquittal under
§ 545 bars a forfeiture under § 545.
• The judge at the criminal trial specifically stated:
"He is, obviously, a sophisticated dealer in emeralds and other
jewelry.
"I don't condone nor do I approve, for one minute, what he did
in this instance. I think he knew that that jewelry-that that ring
and those emeralds should have been declared.
"He made a declaration of some cigarettes and some whiskey,
several other little odd, meager items there, but I'm not persuaded
beyond a reasonable doubt that he did what he did with the intent
to defraud the United States."
ONE LOT EMERALD CUT STONES v. UNITED STATES 235
232 Per Curiam
feiture proceeding will not involve an issue previously
litigated and finally determined between these parties.5
Moreover, the difference in the burden of proof in
criminal and civil cases precludes application of the
doctrine of collateral estoppel. The acquittal of the
criminal charges may have only represented "'an adjudication
that the proof was not sufficient to overcome
all reasonable doubt of the guilt of the accused.' " H elvering
v. Mitchell, 303 U.S. 391, 39'7 (1938). As to the
issues raised, it does not constitute an adjudication on
the preponderance-of-the-evidence burden applicable in
civil proceedings. See Murphy v. United States, 272
U. S. 630 (1926); Stone v. United States, 167 U. S. 178
(1897).
If for no other reason, the forfeiture is not barred by
the Double Jeopardy Clause of the Fifth Amendment
because it involves neither two criminal trials nor two
criminal punishments. "Congress may impose both a
criminal and a civil sanction in respect to the same act or
omission; for the double jeopardy clause prohibits merely
5 The difference in the issues involved in the criminal proceeding,
on the one hand, and the forfeiture action, on the other, serves
to distinguish Coffey v. United States, 116 U. S. 436 (1886), relied
upon by the District Court in the present case. Coffey involved
a forfeiture action commenced after an acquittal. This Court
noted, in holding the forfeiture barred, that "[t]he information
[for forfeiture] is founded on §§ 3257, 3450 and 3453; and there
is no question, on the averments in the answer, that the fraudulent
acts and attempts and intents to defraud, alleged in the prior criminal
information, and covered by the verdict and judgment of acquittal,
embraced all of the acts, attempts and intents averred in the information
in this suit." Id., at 442. The Court specifically distinguished
the situation where "a certain intent must be proved to support
the indictment, which need not be proved to support the civil
action." Id., at 443. See also Stone v. United States, 167 U.S. 178
( 1897).
236 OCTOBER TERM, 1972
Per Curiam 409U.S.
punishing twice, or attempting a second time to punish
criminally, for the same offense." H elvering v.
Mitchell, supra, at 399. See also United States ex rel.
Marcus v. Hess, 317 U.S. 537 (1943).6 Forfeiture under
§ 1497 is a civil sanction. The provision was originally
enacted as § 497 of the Tariff Act of 1922, 42 Stat. 964.
The Tariff Act of 1930 re-enacted the forfeiture remedy,
46 Stat. 728, and added § 593, 46 Stat. 751, which became
18 U. S. C. § 545. The forfeiture provision fell within
Title IV of the Act, which contained the "Administrative
Provisions." Part III of that title, of which § 1497
was a part, dealt with "Ascertainment, Collection, and
Recovery of Duties." Section 545, on the other hand,
was part of the "Enforcement Provisions" and became
part of the Criminal Code of the United States. The
fact that the sanctions were separate and distinct and
were contained in different parts of the statutory scheme
is relevant in determining the character of the forfeiture.
Congress could and did order both civil and criminal
sanctions, clearly distinguishing them. There is no
6 The District Court relied upon the following language in United
States v. U. S. Coin & Currency, 401 U. S. 715, 718 (1971):
"But as Boyd v. United States, 116 U. S. 616, 634 (1886), makes
clear, 'proceedings instituted for the purpose of declaring the forfeiture
of a man's property by reason of offences committed by him,
though they may be civil in form, are in their nature l',rimiml' for
Fifth Amendment purposes." (Emphasis in United States v. U. S.
Coin & Currency.)
Section 1497 does not result in a forfeiture by reason of the commission
of a criminal offense. A forfeiture results from the act of importation
without following customs procedures; no criminal offense,
much less a criminal conviction, is required. Cf. id., at 718-722.
One 1958 Plymouth Sedan v. Pennsylvania, 380 U. S. 693 (1965),
is likewise inapposite for it dealt with a forfeiture that could not
be had without a "determination that the criminal law has been
violated." Id., at 701.
ONE LOT EMERALD CUT STONES v. UNITED STATES 237
232 Per Curiam
reason for frustrating that design. See Helvering v.
Mitchell, supa, at 404.
The § 1497 forfeiture is intended to aid in the enforcement
of tariff regulations. It prevents forbidden merchandise
from circulating in the United States, and, by
its monetary penalty, it provides a reasonable form
of liquidated damages for violation of the inspection
provisions and serves to reimburse the Government for
investigation and enforcement expenses. In other contexts
we have recognized that such purposes characterize
remedial rather than punitive sanctions. See id., at 401;
United States ex rel. Marcus v. Hess, supra, at 549-550;
Rex Trailer Co. v. United States, 350 U. S. 148, 151-154
(1956). Moreover, it cannot be said that the measure
of recovery fixed by Congress in § 1497 is so unreasonable
or excessive that it transforms what was clearly intended
as a civil remedy into a criminal penalty. Rex Trailer
Co. v. United States, supra, at 154. See Murphy v.
United States, supra; United States ex rel. Marcus v.
Hess, supra.
"Forfeiture of goods or their value and the payment
of fixed or variable sums of money are other
sanctions which have been recognized as enforcible
by civil proceedings . . . . In spite of their comparative
severity, such sanctions have been upheld
against the contention that they are essentially
criminal and subject to the procedural rules governing
criminal prosecutions." Helvering v. Mitchell,
supra, at 400.
The question of whether a given sanction is civil
or criminal is one of statutory construction. Id., at 399.
It appears that the § 1497 forfeiture is civil and remedial,
and, as a result, its imposition is not barred by an acquittal
of charges of violating § 545.
Affirmed.
238 OCTOBER TERM, 1972
Per Curiam 409 U.S.
DILLARD v. INDUSTRIAL COMMISSION OF
VIRGINIA ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
No. 72-5411. Decided December 11, 1972
347 F. Supp. 71, vacated and remanded.
PER CURIAM.
Appellant brought a class action to challenge the constitutionality
of a sta.te regulation that permitted temporary
suspension of his workmen's compensation payments
without a prior hearing. He appealed an adverse
judgment, but his jurisdictional statement states
that after the decision below "an Order was entered by
the Commission approving a lump-sum settlement of
$4,243.20 in full settlement of (his] individual claim for
compensation for his injury which occurred on March 15,
1971."
In this state of the record, the motion to proceed in
f orma pauperis is granted, the judgment is vacated, and
the case is remanded to the United States District Court
for the Eastern District of Virginia to consider whether
this case is moot.
ERLENBAUGH v. UNITED STATES 239
Opinion of the Court
ERLENBAUGH ET AL. v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
No. 71-839. Argued November 13, 1972-
Decided December 12, 1972
Causing a publication to be carried by a facility of interstate commerce
with an intent to facilitate the operation of an illegal
gambling business is a violation of 18 U. S. C. § 1952. The exception
for "any newspaper or similar publication" contained in 18
U. S. C. § 1953, which prohibits the interstate shipment of certain
gambling paraphernalia, was not intended to be read into § 1952.
Pp. 242-248.
452 F. 2d 967, affirmed.
MARSHALL, J., delivered the opinion of the Court, in which all
Members joined except WmTE, J., who took no part in the decision
of the case.
Charles W. Grubb argued the cause and filed a brief for
petitioners.
AUan A. Tuttle argued the cause for the United States.
With him on the brief were Solicitor General Griswold,
Assistant Attorney General Petersen, and Royer A.
Pauley.
MR. JUSTICE MARSHALL delivered the op1mon of the
Court.
The petitioners in this case attack their convictions
under the Travel Act, 18 U. S. C. § 1952, which makes
it unlawful to use a facility of interstate commerce
in furtherance of certain criminal activity. Petitioners
were tried in five separate trials.1 The cases were
1 Petitioners Erlenbaugh, Mitchell, and Hintz were tried together.
Petitioner Erlenbaugh was convicted of conspiracy to violate
240 OCTOBER TERM, 1972
Opinion of the Court 409 u. s.
consolidated for purposes of appeal since each raised
the question whether causing a publication to be carried
by a facility of interstate commerce with an intent to
facilitate the operation of a gambling business illegal
under state law violated § 1952. The Court of Appeals
for the Seventh Circuit affirmed the convictions, finding
no exception in § 1952 for the transmittal of publications.
452 F. 2d 967 (1971). We granted certiorari
for the limited purpose of resolving the conflict between
this decision and a previous ruling of the Court of
Appeals for the Fourth Circuit.2 405 U. S. 973 (1972).
For reasons stated below, we affirm.
In a.11 respects here relevant, the facts of the five
cases are identical. Each involves the operation in Ham-
§ 1952. Petitioners Mitchell and Hintz were each convicted of two
counts of violating § 1952 and of conspiracy to violatr the section.
Petitioners White and Lloyd were tried together with petitioner
Hintz in a second trial. Each was convicted of conspiracy to violate
§ 1952, and petitioner White was convicted of three counts,
petitioner Hintz of two counts, and petitioner Lloyd of one count
of violating § 1952.
Petitioner Kelly was tried alone and convicted of one count of
violating § 1952 and of conspiracy to violate the section.
Petitioners Kulik and Dobrowski were tried together and convicted
of conspiracy to violate § 1952 and of three counts and two
counts, respectively, of violating the section.
Petitioners Misiolek, Tumlin, and Strosky were tried together, and
convicted of conspiracy to violate § 1952. Petitioner Misiolek was
also convicted of three counts of violating § 1952, while petitioners
Tumlin and Strosky were convicted of four counts of viola.ting the
sect.ion.
2 In United States v. Arnold, 380 F. 2d 366, 368 (1967), the
Fourth Circuit reversed a conviction under § 1952 because, in its
view, "the use of the telephone to order . . . transmittal through
the mail [of a sports publication intended to be used to facilitate
the operation of a football betting pool] is not the use of a 'facility
. .. to .. . promote ... any unlawful activity', as contemplated
by ... § 1952." The Seventh Circuit in this case specifically
declined to follow the decision in Arnold. See 452 F. 2d, at 973.
ERLENBAUGH v. UNITED STATES 241
239 Opinion of the Court
mond, Indiana, of a bookmaking business. A publication
known as the Illinois Sports News was important
to the functioning of each bookmaking operation. The
News, a publication of the type generally referred to as
a "scratch sheet," 3 contains more complete and detailed
horse racing information than is found in regular newspapers,
and was used extensively by the customers of
the five bookmaking operations in placing their bets.
Because the News, which appears daily except Sunday,
is published in Chicago, Illinois, it was necessary to make
arrangements for prompt daily delivery from Chicago to
Hammond and the bookmaking establishments. This
was accomplished by causing copies of the News to be
placed on board an early morning train of the Chicago,
South Shore, & South Bend Railroad in Chicago for
delivery to the railroad station in Hammond, where
copies were picked up for each of the bookmaking operations.
In each case the petitioners assumed various roles
in this scheme,4 but the pattern of the scheme for securing
the prompt daily delivery of the News was the same
in all cases.
Section 1952 (a) subjects to criminal liability anyone
who "uses any facility in interstate ... commerce ...
with intent to ... promote, manage, establish, carry
on, or facilitate the promotion, management, establishment,
or carrying on, of any unlawful activity, and thereafter
performs or attempts to perform any of [these]
acts .... " Unlawful activity includes "any business
enterprise involving gambling . . . offenses in violation
of the laws of the State in which they are com-
3 A "scratch" is a horse that has been withdrawn from a race in
which it was entered. The withdrawal of a good horse obviously
affects the odds in a race, and is therefore of great interest to bettors.
4 The Court of Appeals described each operation and the respective
roles of the petitioners in detail, see 452 F. 2d, at 969- 970.
242 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
mitted .... " See 18 U. S. C. § 1952 (b).5 For our
limited purposes it is not open to dispute that in each
case petitioners were involved in bookmaking businesses
which violated Indiana law; 6 that the Illinois Sports
News was important to the operation of those bookmaking
businesses; that the scheme for delivery of the
News-a scheme which involved the use of a facility of
interstate commerce, the railroad-was intended to facilitate
the operation of the bookmaking businesses; or that
the requisite overt acts occurred following the use of the
interstate facility. The only question here is whether
these cases fall outside the ambit of § 1952 because the
use of the interstate facility was to secure delivery of a
news publication.7
The basis of petitioners' challenge to the legality of
their convictions under § 19-52-and of the conflict between
the courts of appeal&------is to be found in 18 U. S. C.
§ 1953. Section 1953 (a) makes it unlawful for anyone,
"except a common carrier in the usual course of
its business, knowingly [to] carr:[y] or [to send] in
interstate . . . commerce any . . . paraphernalia, . . .
paper, writing, or other device used, or to be used ...
in (a) bookmaking; or (b) wagering pools ... ; or
( c) in a numbers, policy, bolita, or similar game .... "
The broad sweep of subsection (a) in terms of paraphernalia
covered is limited to some extent by § 1953 (b) (3)
which makes the section inapplicable to "the carriage
or transportation in interstate ... commerce of any
newspaper or similar publication." 8
5 See n. 19, infra.
6 See Ind. Ann. Stat.§§ 10-2304, 10-2307, 10-2331 (1956).
7 The question presented in this case is solely one of statutory construction.
There is no issue here as to the constitutionality of§ 1952.
8 Subsection (b) also makes the section inapplicable to:
" ( 1) parimutuel betting equipment, parimutuel tickets where legally
acquired, or parimutuel materials used or designed for use at raceERLENBAUGH
v. UNITED STATES 243
239 Opinion of the Court
Petitioners' argument starts from the premise that
they could not have been prosecuted under § 1953 (a)
because the Illinois Sports News falls within the newspaper
exception contained in § 1953 (b) (3) .9 Petitioners
recognize that § 1952 contains no express exception for
newspapers comparable to § 1953 (b)(3), but contend
that § 1952 and § 1953 are in pari materia-that is, pertain
to the same subject-and, under settled principles
of statutory construction, should therefore be construed
"as if they were one law," United States v. Freeman,
3 How. 5-56, 564 (1845); see, e. g., United States v.
Stewart, 311 U. S. 60, 64 (1940); Estate of Sanford v.
Commissioner, 308 U.S. 39, 44 (1939). Thus, petitioners
would have us read the exception contained in § 1953
(6)(3) as applicable to not only § 1953 (a) but also
§ 1952 (a), thereby barring their prosecution under the
latter as well as the former. This we cannot do.
The rule of in pari materia-like any canon of statutory
construction-is a reflection of practical experience
in the interpretation of statutes: a legislative body generally
uses a particular word with a consistent meaning
in a given context. Thus, for example, a "later act
tracks or other sporting events in connection with which betting
is legal under applicable State ]aw, or (2) the transportation of
betting materials to be used in the placing of bets or wagers on a
sporting event into a State in which such betting is legal under the
statutes of that State .... "
9 Whether publications such as the ''scratch sheet" here at issue
are in fact within the "newspaper or similar publication" exception
contained in § 1953 (b) (3) is a question that has arisen on a
number of occasions in the lower courts. See United States v.
Kelly, 328 F. 2d 227, 229-236 (CA6 1964); United States v. Arnold,
380 F. 2d 366, 368 (CA4 1967); United States v. Kish, 303 F. Supp.
1212 (ND Ind. 1969); United States v. Azar, 243 F. Supp. 345, 346-
347 (ED Mich. 1964). The Government here concedes that the
Illinois Sports News is within§ 1953 (b)(3). See Brief for United
States 9 n. 3.
244 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
can ... be regarded as a legislative interpretation of [an]
earlier act ... in the sense that it aids in ascertaining
the meaning of the words as used in their contemporary
setting," and "is therefore entitled to great weight in
resolving any ambiguities and doubts." United States v.
Stewart, supra, at 64-65. See also, e. g., Hunter v. Erickson,
393 U.S. 385,388 (1969); United States v. Freeman,
supra, at 565. The rule is but a logical extension of the
principle that individual sections of a single statute
should be construed together,1° for it necessarily assumes
that whenever Congress passes a new statute, it
acts aware of all previous statutes on the same subject,
cf. Allen v. Grand Central Aircraft Co., 347 U. S. 535,
541-552 (1954). Given this underlying assumption, the
rule's application certainly makes the most sense when
the statutes were enacted by the same legislative body
at the same time. Such was indeed the case here.11
Yet petitioners would have us resort to the exception
10 See, e. g., Clark v. Uebersee Finanz-Korporation, A. G., 332
U. S. 480, 488 (1947); Markham v. Cabell, 326 U. S. 404, 410-411
(1945); Ex parte Public National Bank, 278 U. S. 101, 104 (1928).
11 Section 1952 was added to Title 18 of the United States Code
by the Act of Sept. 13, 1961, Pub. L. 87-228, 1 (a), 75 Rtat. 498,
amended, Act of July 7, 1965, Pub. L. 89-68, 79 Stat. 212; Act of
Oct. 27, 1970, Tit. II,§ 701 (i) (2), 84 Stat. 1282. Section 1953 was
added to Title 18 of the United States Code by the Act of Sept. 13,
1961, Pub. L. 87-218, 75 Stat. 492. Indeed, both statutes were a part
of Attorney General Kennedy's legislative program to combat organized
crime and racketeering, and were considered simultaneously by
committees of the House and Senate. See Hearings on S. 1653, S.
1654, S. 1655, S. 1656, S. 1657, S. 1658, S. 1665 before the Senate
Committee on the Judiciary, 87th Cong., 1st Sess. (1961) (hereinafter
Senate Hearings); Hearings on H. R. 468, H. R. 1246, H. R. 3021,
H. R. 3022, H. R. 3023, H. R. 3246, H. R. 5230, H. R. 6571, H. R.
6572, H. R. 6909, H. R. 7039 before Subcommittee No. 5 of the
House Committee on the Judiciary, 87th Cong., 1st Sess. (1961)
(hereinafter House Hearings).
ERLENBAUGH v. UNITED STATES 245
239 Opinion of the Court
contained in § 1953 (b) (3) not simply to resolve any
"ambiguities [or] doubts" in the language in § 1952 but
to introduce an exception to the coverage of the latter
where none is now apparent. This might be a sensible
construction of the two statutes if they were intended to
serve the same function, but plainly they were not.12
True, § 1952 and § 1953 were both parts of a comprehensive
federal legislative effort 13 to assist local
authorities in dealing with organized criminal activity
which, in many instances, had assumed interstate proportions
14 and which in all cases was materially assisted
in its operations by the availability of facilities of interstate
commerce.15 The two statutes, however, play
different roles in achieving these broad, common goals.
12 Cf. Farmers Reservoir & Irrigation Go. v. McComb, 337 U. S.
755, 764 (1949); Helvering v. Stockholms En.skilda Bank, 293 U. S.
84, 87-88 ( 1934); Atlantic Cleaners & Dyers v. United States, 286
u. s. 427, 433 (1932).
13 See n. 11, supra.
14 Attorney General Kennedy, who recommended the legislation to
Congress, testified before the Senate and House Committees that
"the extent to which organized crime and racketeering have developed
on an interstate basis convincingly [demonstrates] the need
for new Federal laws." Senate Hearings 10-11; see House Hearings
19-20. See also H. R. Rep. No. 966, 87th Cong., 1st Sess., 2-3
(1961) (§ 1952).
15 Attorney General Kennedy observed before the Senate Committee
that racketeers "use interstate commerce and interstate communications
with impunity in the conduct of their unlawful activities.
If we could curtail their use of interstate communications and facilities,
we could inflict a telling blow to their operations. We could cut
them down to size." Senate Hearings 11. Previously, before the
House Subcommittee, the Attorney General had described the legislative
package as "designed to prohibit the use of interstate facilities
for the conduct of the many unlawful enterprises which make up
organized crime today." House Hearings 20. See also H. R. Rep.
No. 966, 87th Cong., 1st Sess., 3 (1961) (§ 1952); H. R. Rep. No.
968, 87th Cong., 1st Sess., 2 (1961) (§ 1953).
246 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
Section 1953 has a narrow, specific function. It erects
a substantial barrier 16 to the distribution of certain
materials used in the conduct of various forms of illegal
gambling.11 By interdicting the flow of these materials
to and between illegal gambling businesses, the statute
purposefully seeks to impede the operation of such
businesses.18
Section 1952, by contrast, does not apply just to
illegal gambling; rather, it is concerned with a broad
spectrum of "unlawful activity," 19 illegal gambling businesses
being only one element. Moreover, the statute
does not focus upon any particular materials, but upon
the use of the facilities of interstate commerce with the
intent of furthering an unlawful "business enterprise."
It is, in short, an effort to deny individuals who act for
such a criminal purpose access to the channels of commerce.
2" Thus, while § 1952 ultimately seeks, like§ 1953,
16 Only common carriers acting in the usual course of their business,
plus those materials specified in§ 1953 (b), seen. 8, supra, are
excluded from the statute's prohibition.
17 See also 18 U. S. C. § 1084.
18 Representative Celler, who introduced the statute in the House,
described its purposes as follows:
"The primary purpose is to prevent the transportation in interstate
commerce of wagering material. The purpose actually is to
cutoff and shutoff gambling supplies, in reality to prevent these
lotteries and kindred illegal diversions." 107 Cong. Rec. 16537.
See also S. Rep. No. 589, 87th Cong., 1st Sess., 2 (1961); H. R.
Rep. No. 968, 87th Cong., 1st Sess., 2 (1961).
19 "As used in this section 'unlawful activity' means (1) any
business enterprise involving gambling, liquor on which the Federal
excise tax has not been paid, narcotics, or controlled substances ...
or prostitution offenses in violation of the laws of the State in which
they are committed or of the United States, or (2) extortion, bribery,
or arson in violation of the laws of the State in which committed
or of the United States."
20 "This bill will assist local law enforcement by denying interstate
facilities to individuals engaged in illegal gambling, liquor,
ERLENBAUGH v. UNITED STATES 247
239 Opinion of the Court
to inhibit organized criminal activity,21 it takes a very
different approach to doing so. To introduce into § 1952
an exception based upon the nature of the material
transported in interstate commerce would carve a substantial
slice from the intended coverage of the statute.
This we will not do without an affirmative indicationwhich
is lacking here--that Congress so intended.
Our conclusion here is bolstered by the fact that the
reason for the newspaper exception to § 1953 is absent
in the context of § 1952. The original version of § 1953
introduced in the Senate contained none of the exceptions
set forth in subsection (b). It was quickly realized
that the bill, as introduced, bore the potential for unreasonably
broad application, since it would have imposed
absolute criminal liability on anyone, except a
common carrier, who "knowingly carries or sends in
interstate ... commerce" any gambling paraphernalia
narcotics or prostitution business enterprises." H. R. Rep. No. 966,
87th Cong., 1st Sess., 3 (1961). See also 107 Cong. Rec. 13943
(remarks of Sen. Eastland).
21 In Rew'i.'! v. United States, 401 U. S. 808, 811 (1971), we observed
that "§ 1952 was aimed primarily at organized crime and,
more specifically, at persons who reside in one State while operating
or managing illega.l activities located in another." We, of course, adhere
to this view of the statute for "Congress would certainly recognize
that an expansive Travel Act would alter sensitive federal-state
relationships, could overextend limited federal police resources, and
might well produce situations in which ... relatively minor state
offenses [would be transformed] into federal felonies." Id., at 812.
See also United States v. Bass, 404 U. S. 336, 349--350 (1971). Petitioners
contend that there was no proof in these cases that they were
involved in organized criminal activity and that such activity was
being directed from another State. Given the limited nature of
our grant of certiorari, it is not open to question here that the five
illegal bookmaking businesses were elements of organized l'riminal
activity of the type contemplated by § 1952-t.hough we do note
that the reach of the statute clearly was not limited to instances in
which organized criminal activity in one State is managed from
another State, see n. 15, supra.
248 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
used in an illegal gambling business. Were "knowingly"
construed as modi£ ying only the phrase "carries or
sends/' 22 the statute might have been applied to a wholly
innocent person who knowingly carried a newspaper in
interstate commerce unaware that it contained racing
information.23 It was to avoid this problem that the
newspaper exception was added to § 1953.2
' But § 1952
obviously poses no threat to innocent citizens. Its application
is limited to those who act with an intent to
further unlawful activity~as was clearly true of these
petitioners. There is, then, no reason for carrying the
newspaper exception of § 1953 (b)(3) over to § 1952.
The judgment is
Affirmed.
MR. JUSTICE WRITE took no part m the decision of
this case.
22 But cf. United States v. Chase, 372 F. 2d 453,460 (CA4), cert.
denied, 387 U. S. 907 (1967) ("[K]nowledge and intent to transmit
gambling paraphernalia in interstate commerce are elements of the
crime created by" § 1953).
23 "The committee ... felt that the bill, as introduced, might be
so interpreted as to bring within its criminal penalties a person who
carried a newspaper or other publication conta.ining racing results
or predictions." S. Rep. No. 589, 87th Cong., 1st Sess., 2 (1961).
24 See ibid.; H. R. Rep. No. 968, 87th Cong., 1st Sess., 3 (1961).
EXECUTIVE JET AVIATION v. CITY OF CLEVELAND 249
Syllabus
EXECUTIVE JET AVIATION, INC., ET AL. v. CITY
OF CLEVELAND ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
No. 71-678. Argued November 15, 1972-
Decided December 18, 1972
Petitionei:s, invoking federal admiralty jurisdiction under 28 U. S. C.
§ 1333 (I), brought suit for damages resulting from the crashlanding
and sinking in the navigable waters of Lake Erie of their
jet aircraft shortly after takeoff from a Cleveland airport . The
District Court dismissed the complaint for lack of admiralty jurisdiction
on the grounds that the alleged tort had neither a maritime
locality nor a maritime nexus. The Court of Appeals affirmed
on the first ground. Held: Neither the fact that an aircraft goes
down on navigable waters nor that the negligence "occurs" while
the aircraft is flying over such waters is sufficient to confer federal
admiralty jurisdiction over aviation tort claims, and in the absence
of legislation to the contrary such jurisdiction exists with respect
to those claims only when there is a significant relationship to
traditional maritime activity. Therefore, federal admiralty jurisdiction
does not extend to aviation tort claims arising from flights
like the one involved here between points within the continental
United States. Pp. 253-274.
448 F. 2d 151, affirmed.
STEWART, J., delivered the opinion for a unanimous Court.
Phillip D. Bostwick argued the cause and filed briefs
for petitioners.
Solicitor General Griswold argued the cause for respondent
Dicken. With him on the brief were Assistant
Attorney General Wood, Allan A. Tuttle, and Walter H.
Fleischer. Edwar.d D. Crocker filed a brief for respondents
City of Cleveland et al.
250 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
MR. JusTICE STEWART delivered the opinion of the
Court.
On July 28, 1968, a jet aircraft, owned and operated
by the petitioners, struck a flock of seagulls as it was
taking off from Burke Lakefront Airport in Cleveland,
Ohio, adjacent to Lake Erie. As a result, the plane lost
its power, crashed, and ultimately sank in the navigable
waters of Lake Erie, a short distance from the airport.
The question before us is whether the petitioners' suit
for property damage to the aircraft, allegedly caused by
the respondents' negligence, lies within federal admiralty
jurisdiction.
When the crash occurred, the plane was manned by
a pilot, a co-pilot, and a stewardess, and was departing
Cleveland on a charter flight to Portland, Maine, where
it was to pick up passengers and then continue to White
Plains, New York. After being cleared for takeoff by
the respondent Dicken, who was the federal air traffic
controller at the airport, the plane took off, becoming
airborne at about half the distance down the runway.
The takeoff flushed the seagulls on the runway, and
they rose into the airspace directly ahead of the ascending
plane. Ingestion of the birds into the plane's jet
engines caused an almost total loss of power. Descending
back toward the runway in a semi-stalled condition,
the plane veered slightly to the left, struck a
portion of the airport perimeter fence and the top
of a nearby pickup truck, and then settled in Lake
Erie just off the end of the runway and less than onefifth
of a statute mile off shore. There were no injuries
to the crew, but the aircraft soon sank and became a
total loss.
Invoking federal admiralty jurisdiction under 28
EXECUTIVE JET AVIATION v. CITY OF CLEVELAND 251
249 Opinion of the Court
U. S. C. § 1333 (1),1 the petitioners brought this suit
for damages in the District Court for the Northern District
of Ohio against Dicken and the other respondents,2
alleging that the crash had been caused by the respondents'
negligent failure to keep the runway free of the
birds or to give adequate warning of their presence.3 The
District Court, in an unreported opinion, held that the
suit was not cognizable in admiralty and dismissed the
complaint for lack of subject matter jurisdiction.
Relying primarily on the Sixth Circuit precedent of
Chapman v. City of Grosse Pointe Farms, 385 F. 2d
962 (1967), the District Court held that admiralty jurisdiction
over torts may properly be invoked only when
two criteria are met: (1) the locality where the alleged
tortious wrong occurred must have been on navigable
waters; and (2) there must have been a relationship
between the wrong and some maritime service, navigation,
or commerce on navigable waters. The District
Court found that the allegations of the petitioners' complaint
satisfied neither of these criteria. With respect
to the locality of the alleged wrong, the court stated
that "the alleged negligence became operative upon the
aircraft while it was over the land; and in this sense
1 That section provides:
"The district courts shall have original jurisdiction, exclusive of
the courts of the States, of:
"(1) Any civil case of admiralty or maritime jurisdiction, saving
to suitors in all cases all other remedies to which they are otherwise
entitled."
2 Besides Dicken, the respondents are the City of Cleveland, as
owner and operator of the airport, and Phillip A. Schwenz, the airport
manager.
3 The petitioners also filed an action against Dicken's employer,
the United States, under the Federal Tort Claims Act, 28 U. S. C.
§§ 1346 (b) and 2674, asserting the same claim. That action 1s
pending in the District Court for the Northern District of Ohio.
252 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
the 'impact' of the alleged negligence occurred when
the gulls disabled the plane's engines [ over the
land] . . . . From this point on the plane was disabled
and was caused to fall. Whether it came down upon
land or upon water was largely fortuitous." Alternatively,
the court concluded that the wrong bore no relationship
to maritime service, navigation, or commerce:
"Assuming ... that air commerce bears some relationship
to maritime commerce when the former
is carried out over navigable waters, the relevant
circumstances here were unconnected with the
maritime facets of air commerce. The claimed
'wrong' in this case was the alleged failure to keep
the runway free of birds and the failure to adequately
warn the pilots of their presence upon the
end of the runway. When the alleged negligence
occurred, and when it became operative upon the
aircraft, all the parties were engaged in functions
common to all air commerce, whether over land
or over sea.
" ... Thus, the conclusion here must be that the
operative facts of the claim in this case are concerned
with the land-connected aspects of air commerce,
namely, the maintenance and operation of
an airport located on the land and the dangers
encountered by an aircraft when using its runways
for take-off."
The Court of Appeals for the Sixth Circuit affirmed
on the ground that "the alleged tort in this case occurred
on land before the aircraft reached Lake
Erie .... " 448 F. 2d 151, 154 (1971). Hence, that
court found it "not necessary to consider the question
of maritime relationship or nexus discussed by this court
in [Chapman]." Ibid. We granted certiorari to consider
a seemingly important question affecting the jurisdiction
of the federal courts. 405 U. S. 915 (1972).
EXECUTIVE JET AVIATION v. CITY OF CLEVELAND 253
249 Opinion of the Court
I
Determination of the question whether a tort is "maritime"
and thus within the admiralty jurisdiction of
the federal courts has traditionally depended upon the
locality of the wrong. If the wrong occurred on navigable
waters, the action is within admiralty jurisdiction;
if the wrong occurred on land, it is not. As early as
1813, Mr. Justice Story, on Circuit, stated this general
principle:
"In regard to torts I have always understood, that
the jurisdiction of the admiralty is exclusively
dependent upon the locality of the act. The admiralty
has not, and never (I believe) deliberately
claimed to have any jurisdiction over torts, except
such as are maritime torts, that is, such as are
committed on the high seas, or on waters within
the ebb and flow of the tide." ThomM v. Lane,
23 F. Cas. 957, 960 (No. 13,902) (CC Me.).
See also De Lovio v. Boit, 7 F. Cas. 418, 444 (No. 3,776)
(CC Mass. 1815); Philadelphia, W. & B. R. Co. v. Philadelphia
& Havre de Grace Steam Towboat Co., 23 How.
209, 215 (1860). Later, this locality test was expanded
to include not only tidewaters, but all navigable waters,
including lakes and rivers. The Genesee Chief v. Fitzhugh,
12 How. 443 (1852).
In The Plymouth, 3 Wall. 20, 35, 36 (1866), the Court
essayed a definition of when a tort is "located" on
navigable waters:
"[T]he wrong and injury complained of must have
been committed wholly upon the high seas or
navigable waters, or, at least, the substance and
consummation of the same must have taken place
upon these waters to be within the admiralty jurisdiction
..
254 OCTOBER TERM, 1972
Opinion of the Court 409 u. s.
" ... The jurisdiction of the admiralty over maritime
torts does not depend upon the wrong having
been committed on board the vessel, but upon its
having been committed upon the high seas or other
navigable waters.
" ... Every species of tort, however occurring, and
whether on board a vessel or not, if upon the high
seas or navigable waters, is of admiralty cognizance."
The Court has often reiterated this rule of locality.4
As recently as last Term, in Victory Carriers, Inc. v.
Law, 404 U. S. 202, 205, we repeated that "[t]he historic
view of this Court has been that the maritime tort
jurisdiction of the federal courts is determined by the
locality of the accident and that maritime law governs
only those torts occurring on the navigable waters of
the United States."
This locality test, of course, was established and grew
up in an era when it was difficult to conceive of a
tortious occurrence on navigable waters other than in
connection with a waterborne vessel. Indeed, for the
traditional types of maritime torts, the traditional test
has worked quite satisfactorily. As a leading admiralty
text has put the matter:
"It should be stressed that the important cases
in admiralty are not the borderline cases on jurisdiction;
these may exercise a perverse fascination
in the occasion they afford for elaborate casuistry,
but the main business of the [admiralty] court
involves claims for cargo damage, collision, seamen's
injuries and the like-all well and comfortably
within the circle, and far from the penumbra."
G. Gilmore & C. Black, The Law of Admiralty 24
n. 88 ( 1957).
4 In Victory Carriers, Inc. v. Law, 404 U. S. 202, 205 n. 2 (1971),
we cited over 40 cases to this effect.
EXECUTIVE JET AVIATION v. CITY OF CLEVELAND 255
249 Opinion of the Court
But it is the perverse and casuistic borderline situations
that have demonstrated some of the problems with
the locality test of maritime tort jurisdiction. In Smith
& Son v. Taylor, 276 U. S. 179 (1928), for instance, a
longshoreman unloading a vessel was standing on the
pier when he was struck by a cargo-laden sling from the
ship and knocked into the water where he was later found
dead. This Court held that there was no admiralty
jurisdiction in that case, despite the fact that the longshoreman
was knocked into the water, because the blow
by the sling was what gave rise to the cause of action,
and it took effect on the land. Hence, the Court concluded,
"[t]he substance and consummation of the occurrence
which gave rise to the cause of action took
place on land." 276 U. S., at 182. In the converse
factual setting, however, where a longshoreman working
on the deck of a vessel was struck by a hoist and
knocked onto the pier, the Court upheld admiralty
jurisdiction because the cause of action arose on the
vessel. Minnie v. Port Huron Terminal Co., 295 U. S.
647 (1935). See also The Admiral Peoples, 295 U.S. 649
(1935).
Other serious difficulties with the locality test are illustrated
by cases where the maritime locality of the tort
is clear, but where the invocation of admiralty jurisdiction
seems almost absurd. If a swimmer at a public
beach is injured by another swimmer or by a submerged
object on the bottom, or if a piece of machinery sustains
water damage from being dropped into a harbor by a
land-based crane, a literal application of the locality
test invokes not only the jurisdiction of the federal
courts, but the full panoply of the substantive admiralty
law as well. In cases such as these, some courts have
adhered to a mechanical application of the strict locality
rule and have sustained admiralty jurisdiction despite
the lack of any connection between the wrong and tradi256
OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
tional forms of maritime commerce and navigation.5
Other courts, however, have held in such situations that
a maritime locality is not sufficient to bring the tort
within federal admiralty jurisdiction, but that there
must also be a maritime nexus-some relationship between
the tort and traditional maritime activities, involving
navigation or commerce on navigable waters.
The Court of Appeals for the Sixth Circuit, for instance,
in the Chapman case, where a swimmer at a public
beach was injured, held that
"[a]bsent such a relationship, admiralty jurisdiction
would depend entirely upon the fact that a
tort occurred on navigable waters; a fact which in
and of itself, in light of the historical justification
for federal admiralty jurisdiction, is quite immaterial
to any meaningful invocation of the jurisdiction of
admiralty courts." 385 F. 2d, at 966.6
5 Davis v. City of Jacksonville Beach, 251 F. Supp. 327 (MD
Fla. 1965) (injury to a swimmer by a surfboard); King v. Testerman,
214 F. Supp. 335, 336 (ED Tenn. 1963) (injuries to a water
skier). See also Horton v. J. & J. Aircraft, Inc., 257 F. Supp. 120,
121 (SD Fla. 1966). Cf. Weinstein v. Eastern Airlines, Inc., 316
F. 2d 758 (CA3 1963).
6 In another injured-swimmer case, McGuire v. City of New York,
192 F. Supp. 866, 871-872 (SDNY 1961), the court stated:
"The proper scope of jurisdiction should include all matters relating
to the business of the sea and the business conducted on
navigable waters.
"The libel in this case does not relate to any tort which grows out
of navigation. It alleges an ordinary tort, no different in substance
because the injury occurred in shallow waters along the shore than
if the injury had ocrurred on the sandy beach above the water line.
Whether the City of New York should be held liable for the injury
suffered by libellant fa a question which can easily be determined
in the courts of the locality. To endeavor to project such an action
into the federal courts on the ground of admiralty jurisdiction is to
misinterpret the nature of admiralty jurisdiction."
Other cases holding that admiralty jurisdiction was not properly invoked
because the tort, while having a maritime locality, lacked a
EXECUTIVE JET AVIATION v. CITY OF CLEVELAND 257
249 Opinion of the Court
As early as 1850, admiralty scholars began to suggest
that a traditional maritime activity, as well as a
maritime locality, is necessary to invoke admiralty jurisdiction
over torts. In that year, Judge Benedict expressed
his "celebrated doubt" 1 as to whether such
jurisdiction did not depend, in addition to a maritime
locality, upon some "relation of the parties to a ship
or vessel, embracing only those tortious violation [s] of
maritime right and duty which occur in vessels to which
the Admiralty jurisdiction, in cases of contracts, applies."
E. Benedict, The American Admiralty 173 ( 1850). More
recently, commentators have actively criticized the rule
of locality as the sole criterion for admiralty jurisdiction,
and have recommended adoption of a maritime
relationship requirement as well. See 7 A J. Moore, Federal
Practice, Admiralty mr .325 [3] and .325 [5] (2d ed.
1972); Black, Admiralty Jurisdiction: Critique and Suggestions,
50 Col. L. Rev. 259, 264 (1950). In 1969, the
American Law Institute's Study of the Division of Jurisdiction
Between State and Federal Courts (ALI Study)
also made that recommendation, stating (at 233):
"It is hard to think of any reason why access
to federal court should be allowed without regard
to amount in controversy or citizenship of the
parties merely because of the fortuity that a tort
significant relationship to maritime navigation and commerce, include:
Peytavin v. Government Employees Insurance Co., 453 F. 2d
1121 (CA5 1972); Gowdy v. United States, 412 F. 2d 525, 527-529
(CA6 1969); Smith v. Guerrant, 290 F. Supp. 111, 113-114 (SD
Tex. 1968). Sec also J. W. Petersen Coal & Oil Co. v. United States,
323 F. Supp. 1198, 1201 (ND Ill. 1970); O'Connor & Co. v.
City of Pa..scagoula, 304 F. Supp. 681, 683 (SD Miss. 1969); Hastings
v. Mann, 226 F. Supp. 962, 964-965 (EDNC 1964), aff'd, 340 F. 2d
910 (CA4 1965). A similar view is taken by the English courts.
Queen v. Judge of the City of London Court, [1892] 1 Q. B. 273.
7 Hough, Admiralty Jurisdiction-Of Late Years, 37 Harv. L. Rev.
529,531 (1924).
258 OCTOBER TERM, 1972
Opinion of the Court 409U. S.
occurred on navigable waters, rather than on other
waters or on land. The federal courts should not
be burdened with every case of an injured swimmer."
Despite the broad language of cases like The Plymouth,
3 Wall. 20 (1866), the fact is that this Court has never
explicitly held that a maritime locality is the sole test of
admiralty tort jurisdiction. The last time the Court considered
the matter, the question was left open. Atlantic
Transport Co. v. lmbrovek, 234 U. S. 52 (1914). In
that case, a stevedore brought suit for injuries sustained
on board a vessel while loading and stowing copper. The
petitioner admitted the maritime locality of the tort, but
contended that no maritime relationship was present.
The Court sustained federal admiralty jurisdiction, but
found that it was not necessary to decide whether
locality alone is sufficient:
"Even if it be assumed that the requirement as
to locality in tort cases, while indispensable, is not
necessarily exclusive, still in the present case the
wrong which was the subject of the suit was, we
think, of a maritime nature and hence the District
Court, from any point of view, had jurisdiction ....
" ... If more is required than the locality of the
wrong in order to give the court jurisdiction, the
relation of the wrong to maritime service, to navigation
and to commerce on navigable waters, was
quite sufficient." Id., at 61, 62.
Since the time of that decision the Court has not
squarely dealt with the question left open there, although
opinions in several cases have discussed the maritime
or non-maritime nature of the tort and its relationship
to maritime navigation. In Rodrigue v. Aetna Casualty
& Surety Co., 395 U.S. 352 (1969), for instance, we held
that admiralty had no jurisdiction of wrongful-death
actions under the Death on the High Seas Act, 41 Stat.
EXECUTIVE JET AVIATION v. CITY OF CLEVELAND 259
249 Opinion of the Court
537, 46 U. S. C. § 761 et seq., arising out of accidents on
artificial island drilling rigs in the Gulf of Mexico more
than a marine league off shore. We relied in that case
on the fact that the accidents bore no relation to any
navigational function:
"The accidents in question here involved no collision
with a vessel, and the structures were not
navigational aids. They were islands, albeit artificial
ones, and the accidents had no more connection
with the ordinary stuff of admiralty than do accidents
on piers." J,d., at 360.
See also The Raithmoor, 241 U.S. 166, 176-177 (1916);
Chelenti,s v. Luckenbach S. S. Co., 247 U. S. 372, 382
(1918); Great Lakes Dredge & Dock Co. v. Kierejewski,
261 U. S. 479, 481 (1923); Robins Dry Dock & Repair
Co. v. Dahl, 266 U. S. 449, 457 (1925); London Guarantee
& Accident Co. v. Industrial Accident Comm'n,
279 U. S. 109, 123 (1929).
Apart from the difficulties involved in trying to apply
the locality rule as the sole test of admiralty tort jurisdiction,
another indictment of that test is to be found
in the number of times the federal courts and the Congress,
in the interests of justice, have had to create
exceptions to it in the converse situation-i. e., when
the tort has no maritime locality, but does bear a relationship
to maritime service, commerce, or navigation.
See 7 A J. Moore, Federal Practice, Admiralty ,r .325 [ 4]
(2d ed. 1972). For example, in O'Donnell v. Great Lakes
Dredge & Dock Co., 318 U.S. 36 (1943), the Court sustained
the application of the Jones Act, 41 Stat. 1007, 46
U. S. C. § 688, to injuries to a seaman on land, because of
the seaman's connection with maritime commerce. We
relied in that case on an analogy to maintenance and cure:
"[T]he maritime law, as recognized in the federal
courts, has not in general allowed recovery for per260
OCTOBER TERM, 1972
Opinion of the Court 409 u. s.
sonal injuries occurring on land. But there is
an important exception to this generalization in
the case of maintenance and cure. From its dawn,
the maritime law has recognized the seaman's right
to maintenance and cure for injuries suffered in
the course of his service to his vessel, whether
occurring on sea or on land." Id., at 41--42.
Similarly, the doctrine of unseaworthiness has been extended
to permit a seaman or a longshoreman to
recover from a shipowner for injuries sustained wholly
on land, so long as those injuries were caused by defects
in the ship or its gear. Gutierrez v. Waterman S. S.
Corp., 373 U. S. 206, 214-215 (1963). See also Strika
v. Netherlands Min-istry of Traffic, 185 F. 2d 555 (CA2
1950).
Congress, too, has extended admiralty jurisdiction
predicated on the relation of the wrong to maritime activities,
regardless of the locality of the tort. In the
Extension of Admiralty Jurisdiction Act, 62 Stat. 496,
46 U. S. C. § 740, enacted in 1948, Congress provided:
"The admiralty and maritime jurisdiction of the
United States shall extend to and include all cases
of damage or injury, to person or property, caused
by a vessel on navigable water, notwithstanding
that such damage or injury be done or consummated
on land."
This Act was passed specifically to overrule cases, such
as The Plymouth, supra, holding that admiralty does
not provide a remedy for damage done to land structures
by ships on navigable waters. Victory Carriers,
Inc. v. Law, 404 U. S., at 209 n. 8; Gutierrez v. Waterman
S. S. Corp., 373 U. S., at 209-210.8
8 The Court has held, however, that there is no admiralty jurisdiction
under the Extension of Admiralty Jurisdiction Act over suits
brought by longshoremen injured while working on a pier, when such
EXECUTIVE JET AVIATION v. CITY OF CLEVELAND 261
249 Opinion of the Court
In sum, there has existed over the years a judicial,
legislative, and scholarly recognition that, in determining
whether there is admiralty jurisdiction over a particular
tort or class of torts, reliance on the relationship
of the wrong to traditional maritime activity is often
more sensible and more consonant with the purposes
of maritime law than is a purely mechanical application
of the locality test.
II
One area in which locality as the exclusive test of
admiralty tort jurisdiction has given rise to serious problems
in application is that of aviation. For the reasons
discussed above and those to be discussed, we have
concluded that maritime locality alone is not a sufficient
predicate for admiralty jurisdiction in aviation tort cases.
In one -of the earliest aircraft cases brought in admiralty,
The Crawford Bros. No. 2, 215 F. 269, 271 (WD
Wash. 1914), in which a libel in rem for repairs was
brought against an airplane that had crashed into Puget
Sound, the federal court declined to assume jurisdiction,
reasoning that an airplane could not be characterized
as a maritime vessel. The Crawford Bros. was
followed by a number of cases dealing with seaplanes,
in which the courts restricted admiralty jurisdiction to
occurrences involving planes that were afloat on navigable
waters.9 Continuing doubt as to the applicability
injuries were caused, not by ships, but by pier-based equipment.
Victory Carriers, Inc. v. Law, supra; Nacirema Co. v. Johnson, 396
U. S. 212, 223 (1969). The Longshoremen's and Harbor Workers'
Compensation Act, 33 U. S. C. § 901 et seq., was amended in 1972
to cover employees working on those areas of the shore customarily
used in loading, unloading, repairing, or building a vessel. Pub. L.
No. 92-576, § 2, 86 Stat. 1251.
9 Matter of Reinhardt v. Newport Flying Service Corp., 232 N. Y.
115, 117-118, 133 N. E. 371,372 (1921); United States v. Northwest
Air Service, Inc., 80 F. 2d 804, 805 (CA9 1935). See also Lambros
Seaplane Base v. The Batory, 215 F. 2d 228, 231 (CA2 1954).
262 OCTOBER TERM, 1972
Opinion of the Court 409 u. s.
of admiralty law to aircraft was illustrated by cases in
the 19.30's and 1940's holding that aircraft owners could
not invoke the benefits of the maritime doctrine of limitation
of liability,1° and that crimes committed on board
aircraft flying over international waters were not punishable
under criminal statutes proscribing acts committed
on the high seas.11 Moreover, Congress exempted all
aircraft from conformity with United States navigation
and shipping laws.12
The first major extension of admiralty jurisdiction
to land-based aircraft came in wrongful-death actions
arising out of aircraft crashes at sea and brought under
the Death on the High Seas Act, 46 U. S. C. § 761
et seq. The federal courts took jurisdiction of such cases
because the literal provisions of that statute appeared to
be clearly applicable. The Death on the High Seas Act,
enacted in 1920, provides:
"Whenever the death of a person shall be caused
by wrongful act, neglect, or default occurring on
the high seas beyond a marine league from the
shore of any State, or the District of Columbia, or
the Territories or dependencies of the United States,
the personal representative of the decedent may
10 Dollins v. Pan-American Grace Airways, Inc., 27 F. Supp. 487,
488-489 (SDNY 1939); Noakes v. Imperial Airways, Ltd., 29 F.
Supp. 412, 413 (SDNY 1939).
11 United States v. Peoples, 50 F. Supp. 462 (ND Cal. 1943);
United States v. Cordova, 89 F. Supp. 298 (EDNY 1950).
In 1952, however, Congress amended the criminal jurfadiction of
admiralty to include crimes committed aboard aircraft while in flight
over the high seas or any other waters within the admiralty jurisdiction
of the United States except waters within the territorial jurisdiction
of any State. 18 U. S. C. § 7 ( 5).
12 The Federal Aviation Act of 1958, 72 Stat. 799, as amended,
49 U. S. C. § 1509 (a), the successor to the Air Commerce Act of
1926, 44 Stat. 572, formerly 49 U.S. C. § 177 (1952 ed.).
EXECUTIVE JET AVIATION v. CITY OF CLEVELAND 263
249 Opinion of the Court
maintain a suit for damages in the district courts
of the United States, in admiralty .... "
The first aviation case brought pursuant to the
Death on the High Seas Act was apparently Choy v.
Pan-American Airways Co., 1941 A. M. C. 483 (SDNY),
where death was caused by the crash of a seaplane into
the Pacific Ocean during a transoceanic flight. The
District Court upheld admiralty jurisdiction on the
ground that the language of the Act was broad and made
no reference to surface vessels. According to the court:
"The statute certainly includes the phrase 'on the
high seas' but there is no reason why this should
make the law operable only on a horizontal plane.
The very next phrase 'beyond a marine league from
the shore of any State' may be said to include a
vertical sense and another dimension." Id., at 484.
Since Choy, many actions for wrongful death arising out
of aircraft crashes into the high seas beyond one marine
league from shore have been brought under the Death on
the High Seas Act, and federal jurisdiction has consistently
been sustained in those cases.13 Indeed, it may be
13 See, e. g., Wyman v. Pan-American Airways, Inc., 181 Misc.
963, 966, 43 N. Y. S. 2d 420, 423, aff'd, 267 App. Div. 947, 48
N. Y. S. 2d 459, aff'd, 293 N. Y. 878, 59 N. E. 2d 785 (1944);
Higa v. Transocean Airlines, 230 F. 2d 780 (CA9 1955); Noel v.
Linea Aeropostal Venezolana, 247 F. 2d 677, 680 (CA2 1957);
Trihey v. Transocean Air Lines, 255 F. 2d 824, 827 (CA9 1958);
Lacey v. L. W. Wiggins Airways, Inc., 95 F. Supp. 916 (Mass. 1951);
Wilson v. Transocean Airlines, 121 F. Supp. 85 (ND Cal. 1954);
Stiles v. National Airlines, Inc., 161 F. Supp. 125 (ED La. 1958), aff'd,
268 F. 2d 400 (CA5 1959); Noel v. Airponents, Inc., 169 F. Supp. 348
(NJ 1958); Lavello v. Danko, 175 F. Supp. 92 (SDNY 1959);
Blumenthal v. United States, 189 F. Supp. 439, 445 (ED Pa. 1960),
aff'd, 306 F. 2d 16 (CA3 1962); Pardonnet v. Flying Tiger Line, Inc.,
233 F. Supp. 683 (ND Ill. 1964); Kropp v. Douglas Aircraft Co.,
329 F. Supp. 447, 453-455 (EDNY 1971). Cf. D'Aleman v. Pan
American World Airways, 259 F. 2d 493 (CA2 1958).
264 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
considered as settled today that this specific federal statute
gives the federal admiralty courts jurisdiction of such
wrongful-death actions.
In recent years, however, some federal courts have
been persuaded in aviation cases to extend their admiralty
jurisdiction beyond the statutory coverage of the
Death on the High Seas Act. Several cases have held
that actions for personal injuries arising out of aircraft
crashes into the high seas more than one league off
shore or arising out of aircraft accidents in the airspace
over the high seas were cognizable in admiralty because
of their maritime locality, although they were not within
the scope of the Death on the High Seas Act or any
other federal legislation.14 These cases, as well as most
of those brought under the Death on the High Seas Act,
involved torts both with a maritime locality, in that the
alleged negligence became operative while the aircraft
was on or over navigable ,vaters, and also with some
relationship to maritime commerce, at least insofar as
the aircraft was beyond state territorial waters and performing
a function-transoceanic crossing-that previously
would have been performed by waterborne
vessels.15
But a further extension of admiralty jurisdiction was
created when courts began to sustain that jurisdiction
in situations such as the one now before us-when the
claim arose out of an aircraft accident that occurred
on or over navigable waters within state territorial limits,
14 Bergeron v. Aero Associates, Inc., 213 F. Supp. 936 (ED La.
1963); Notarian v. Trans World Airlines, Inc., 244 F. Supp. 874
(WD Pa. 1965); Horton v. J. & J. Aircraft, Inc., 257 F. Supp. 120
( SD Fla. 1966) .
15 Whether this type of relationship to maritime commerce is a
sufficient maritime nexus to justify admiralty jurisdiction over airplane
accidents is discussed infra, at 271-272. We do not decide
that question in this case.
EXECUTIVE JET AVIATION v. CITY OF CLEVELAND 265
249 Opinion of the Court
and when the aircraft was not on a transoceanic flight.
Apparently, the first such case grew out of a 1960 crash
of a commercial jet, bound from Boston to Philadelphia,
that collided with a flock of birds over the
airport runway and crashed into Boston Harbor within
one minute after takeoff. Weinstein v. Eastern Airlines,
Inc., 316 F. 2d 758 (CA3 1963). In deciding that
a wrongful-death action arising from this crash was
within admiralty jurisdiction, the Court of Appeals for
the Third Circuit applied the strict locality rule and
found that the tort had a maritime locality. The court
further justified the invocation of admiralty jurisdiction
in that case by an analogy to the Death on the High
Seas Act:
"If, as it has been held, a tort claim arising out
of the crash of an airplane beyond the one marine
league line is within the jurisdiction of admiralty,
then a fortiori a crash of an aircraft just short of
that line but still within the navigable waters is
within that jurisdiction as well." Id., at 765.
There have been a few subsequent cases to like effect.16
To the contrary, of course, is the decision of the Court of
Appeals for the Sixth Circuit in the present case.
III
These latter cases graphically demonstrate the problems
involved in applying a locality-alone test of admiralty
tort jurisdiction to the crashes of aircraft. Airplanes,
unlike waterborne vessels, are not limited by physical
boundaries and can and do operate over both land and
navigable bodies of water. As Professor Moore and
16 Hormby v. Fish Meal Co., 431 F. 2d 865 (CA5 1970); Harris v.
United Air Lines, Inc., 275 F. Supp. 431, 432 (SD Iowa 1967). Cf.
Scott v. Eastern Air Lines, Inc., 399 F. 2d 14, 21-22 (CA3 1968)
(en bane).
266 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
his colleague Professor Pelaez have stated, "In both death
and injury cases ... it is evident that while distinctions
based on locality often are in fact quite relevant
where water vessels are concerned, they entirely lose
their significance where aircraft, which are not geographically
restrained, are concerned." 7 A J. Moore, Federal
Practice, Admiralty ,-r .330 [5], pp. 3772-3773 (2d ed.
1972). In flights within the continental United States,
which are principally over land, the fact that an aircraft
happens to fall in navigable waters, rather than on land,
is wholly fortuitous. The ALI Study, in criticizing the
Weinstein decision, observed:
"If a plane takes off from Boston's Logan Airport
bound for Philadelphia, and crashes on takeoff,
it makes little sense that the next of kin of the
passengers killed should be left to their usual
remedies, ordinarily in state court, if the plane
crashes on land, but that they have access to a
federal court, and the distinctive substantive law
of admiralty applies, if the wrecked plane ends up
in the waters of Boston Harbor." ALI Study 231.11
Moreover, not only is the locality test in such cases
wholly adventitious, but it is sometimes almost impossible
to apply with any degree of certainty. Under the locality
test, the tort "occurs" where the alleged negligence
took effect, The Plymouth, mpra; Smith& Son v. Taylor,
276 U. S. 179 (1928); and in the case of aircraft that
locus is often most difficult to determine.
The case before us provides a good example of these
difficulties. The petitioners contend that since their
aircraft crashed into the navigable waters of Lake Erie
and was totally destroyed when it sank in those waters,
the locality of the tort, or the place where the alleged
17 See also Comment, Admiralty Jurisdiction: Airplanes and
Wrongful Death in Territorial Waters, 64 Col. L. Rev. 1084, 1091-
1092 (1964).
EXECUTIVE JET AVIATION v. CITY OF CLEVELAND 267
249 Opinion of the Court
negligence took effect, was there. The fact that the
major damage to their plane would not have occurred
if it had not landed in the lake indicates, they say, that
the substance and consummation of the wrong took
place in navigable waters. The respondents, on the
other hand, argue that the alleged negligence took effect
when the plane collided with the birds- over land. Relying
on cases such as Smith & Son· v. Taylor, supra,
where admiralty jurisdiction was denied in the case of
a longshoreman struck by a ship's sling while standing
on a pier, and knocked into the water, the respondents
contend that a tort "occurs" at the point of first
impact of the alleged negligence. Here, they say, the
cause of action arose as soon as the plane struck the
birds; from then on, the plane was destined to fall,
and whether it came down on land or water should not
affect "the locality of the act." See Thomas v. Lane,
23 F. Cas., at 960.
In the view we take of the question before us , we
need not decide who has the better of this dispute.
It is enough to note that either position gives rise to
the problems inherent in applying the strict locality
test of admiralty tort jurisdiction in aviation accident
cases. The petitioners' argument, if accepted, would
make jurisdiction depend on where the plane ended upa
circumstance that could be wholly fortuitous and
completely unrelated to the tort itself. The anomaly
is well illustrated by the hypothetical case of two aircraft
colliding at a high altitude, with one crashing on
land and the other in a navigable river. If, on the other
hand, the respondents' position were adopted, jurisdiction
would depend on whether the plane happened to
be flying over land or water when the original impact of
the alleged negligence occurred. This circumstance, too,
could be totally fortuitous. If the plane in the present
case struck the birds over Cleveland's Lakefront Air268
OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
port, admiralty jurisdiction would not lie; but if the
plane had just crossed the shoreline when it struck the
birds, admiralty jurisdiction would attach, even if the
plane were then able to make it back to the airport
and crashland there. These are hardly the types of
distinctions with which admiralty law was designed to
deal.
All these and other difficulties that can arise in attempting
to apply the locality test of admiralty jurisdiction
to aeronautical torts are, of course, attributable
to the inherent nature of aircraft. Unlike waterborne
vessels, they are not restrained by one-dimensional geographic
and physical boundaries. For this elementary
reason, we conclude that the mere fact that the alleged
wrong "occurs" or "is located" on or over navigable
waters-whatever that means in an aviation context--
is not of itself sufficient to turn an airplane negligence
case into a "maritime tort." It is far more consistent
with the history and purpose of admiralty to require also
that the wrong bear a significant relationship to traditional
maritime activity. We hold that unless such a
relationship exists, claims arising from airplane accidents
are not cognizable in admiralty in the absence of legislation
to the contrary.
IV
This conclusion, however, does not end our inquiry,
for there remains the question of what constitutes, in
the context of aviation, a significant relationship to
traditional maritime activity. The petitioners argue
that any aircraft falling into navigable waters has a
sufficient relationship to maritime activity to satisfy
the test. The relevant analogy, they say, is not between
flying aircraft and sailing ships, but between a downed
plane and a sinking ship. Quoting from the Weinstein
opinion, they contend: "When an aircraft crashes into
navigable waters, the dangers to persons and property
EXECUTIVE JET AVIATION v. CITY OF CLEVELAND 269
249 Opinion of the Court
are much the same as those arising out of the sinking
of a ship or a collision between two vessels." 316 F.
2d, at 763. The dissenting opinion in the Court of
Appeals in the present case made the same argument:
"I believe that there are many comparisons between
the problems of aircraft over navigable waters
and those of the ships which the aircraft are rapidly
replacing ....
" ... Problems posed for aircraft landing on, crashing
on, or sinking into navigable waters differ
markedly from landings upon land. . . . In such instances,
wind and wave and water, the normal problems
of the mariner, become the approach or survival
problems of the pilot and his passengers. . . . What
I would hold is that tort cases arising out of aircraft
crashes into navigable waters are cognizable in admiralty
jurisdiction even if the negligent conduct is
alleged to have happened wholly on land." 448
F. 2d, at 163.
We cannot accept that definition of traditional maritime
activity. It is true that in a literal sense there
may be some similarities between the problems posed
for a plane downed on water and those faced by a sinking
ship. But the differences between the two modes
of transportation are far greater, in terms of their basic
qualities and traditions, and consequently in terms of
the conceptual expertise of the law to be applied.18
The law of admiralty has evolved over many centuries,
designed and molded to handle problems of vessels relegated
to ply the waterways of the world, beyond whose
18 Moreover, if the mere happenstance that an aircraft falls into
navigable waters creates a maritime relationship because of the
maritime dangers to a sinking plane, then the maritime relationship
test would be the same as the petitioners' view of the maritimelocality
test, with the same inherent fortuity.
270 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
shores they cannot go. That law deals with navigational
rules-rules that govern the manner and direction
those vessels may rightly move upon the waters.
When a collision occurs or a ship founders at sea, the
law of admiralty looks to those rules to determine fault,
liability, and all other questions that may arise from
such a catastrophe. Through long experience, the law
of the sea knows how to determine whether a particular
ship is seaworthy, and it knows the nature of maintenance
and cure. It is concerned with maritime liens,
the general average, captures and prizes, limitation of
liability, cargo damage, and claims for salvage.
Rules and concepts such as these are wholly alien to
air commerce, whose vehicles operate in a totally different
element, unhindered by geographical boundaries
and exempt from the navigational rules of the maritime
road. The matters with which admiralty is basically
concerned have no conceivable bearing on the operation
of aircraft, whether over land or water. Indeed, in
contexts other than tort, Congress and the courts have
recognized that, because of these differences, aircraft are
not subject to maritime law.19 Although dangers of wind
and wave faced by a plane that has crashed on navigable
waters may be superficially similar to those encountered
by a sinking ship, the plane's unexpected
descent will almost invariably have been attributable to
a cause unrelated to the sea-be it pilot error, defective
design or manufacture of airframe or engine, error of
a traffic controller at an airport, or some other cause; and
the determination of liability will thus be based on factual
and conceptual inquiries unfamiliar to the law of admiralty.
It is clear, therefore, that neither the fact that
a plane goes down on navigable waters nor the fact
that the negligence "occurs" while a plane is flying
19 See supra, at 261-262.
EXECUTIVE JET AVIATION v. CITY OF CLEVELAND 271
249 Opinion of the Court
over such waters is enough to create such a relationship
to traditional maritime activity as to justify the invocation
of admiralty jurisdiction.
We need not decide today whether an aviation tort
can ever, under any circumstances, bear a sufficient
relationship to traditional maritime activity to come
within admiralty jurisdiction in the absence of legislation.
20 It could be argued, for instance, that if a
plane flying from New York to London crashed in the
mid-Atlantic, there would be admiralty jurisdiction over
resulting tort claims even absent a specific statute.21
An aircraft in that situation might be thought to bear
a significant relationship to traditional maritime activity
because it would be performing a function traditionally
performed by waterborne vessels.22 Moreover,
20 Of course, under the Death on the High Seas Act, a wrongfuldeath
action arising out of an airplane crash on the high seas bc>yond
a marine league from the shore of a Statr may clearly be brought
in a federal admiralty court.
21 But see 7 A J. l\foore, Federal Prartice, Admiralty ,r .330 [5],
p. 3772 (2d ed. 1972):
"What possible rational basis is there, for instance, in holding that
the personal representative of a passenger killed in the crash of an
airplane travf'ling from Shannon, Ireland to Logan Field in Boston
has a cause of action within the admiralty jurisdiction if the plane
goes down three miles from shore; may have a cause of action within
the admiralty jurisdiction if tht> plane goes down within an area
circumscribed by the shore and the three-mile limit; and will not
have a cause of action within thr admiralty jurisdiction if the plane
managed to remain airborne until reaching the Massachusetts coast?
And this notwithstanding that in all instances the plane may have
developed engine trouble or been the victim of pilot error at an
identical site far out over the Atlantic."
22 Apart from transocranic flights, the Government's brief suggests
that another example where admiralty jurisdiction might properly
be invoked in an airplane accident case on the ground that the plane
was performing a function traditonally performed by waterborne
vessels, is shown in Hornsby v. Fish Meal Co., 431 F. 2d 865 (CA5
1970), which involved the mid-air collision of two light aircraft
272 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
other factors might come into play in the area of international
air commerce-choice-of-forum problems, choiceof-
law problems,23 international law problems, problems
involving multi-nation conventions and treaties, and
so on.
But none of these considerations is of concern in the
case before us. The flight of the petitioners' land-based
aircraft was to be from Cleveland to Portland, Maine,
and thence to White Plains, New York~a flight that
would have been almost entirely over land and within
the continental United States. After it struck the
flock of seagulls over the runway, the plane descended
and settled in Lake Erie within the territorial waters of
Ohio. We can find no significant relationship between
such an event befalling a land-based plane flying from
one point in the continental United States to another,
and traditional maritime activity involving navigation
and commerce on navigable waters.
Just last Term, in Victory Carriers, Inc. v. Law, 404
U. S., at 212, we observed that in determining whether
to expand admiralty jurisdiction, "we should proceed
with caution .... " Quoting from Healy v. Ratta, 292
U. S. 263, 270 (1934), we stated:
"'The power reserved to the states, under the Constitution,
to provide for the determination of
controversies in their courts may be restricted only
used in spotting schools of fish and the crash of those aircraft into
the Gulf of Mexico within one marine league of the Louisiana shore.
23 In such a situation, it has been stated:
"Were the maritime law not applicable, it is argued that the recovery
would depend upon a confusing consideration of what substantive law
to apply, i. e., the law of the forum, the law of the place where each
decedent [ or injured party] purchased his ticket, the law of the
place where the plane took off, or, perhaps, the law of the point of
destination." 7A J. Moore, Federal Practice, Admiralty ,r .330 [5J,
p. 3774 (2d ed. 1972).
EXECUTIVE JET AVIATION v. CITY OF CLEVELAND 273
249 Opinion of the Court
by the action of Congress in conformity to the
judiciary sections of the Constitution. . . Due
regard for the rightful independence of state governments,
which should actuate federal courts, requires
that they scrupulously confine their own jurisdiction
to the precise limits which [a federal] statute
has defined.' "
In the situation before us, which is only fortuitously
and incidentally connected to navigable waters and which
bears no relationship to traditional maritime activity,
the Ohio courts could plainly exercise jurisdiction over
the suit,24 and could plainly apply familiar concepts of
Ohio tort law without any effect on maritime endeavors.25
It may be, as the petitioners argue, that aviation
tort cases should be governed by uniform substantive
and procedural laws, and that such actions should be
heard in the federal courts so as to avoid divergent
results and duplicitous litigation in multi-party cases.
But for this Court to uphold federal admiralty jurisdic-
24 There is no diversity of citizenship between petitioners and
the City of Cleveland.
25 The United States, respondent Dicken's employer, can be sued,
of course, only in federal district court under the Federal Tort Claims
Act, 28 U. S. C. §§ 1346 (b) and 2674. Such an action has been
filed by the petitioners here, but even in that suit the federal court
will apply the substantive tort law of Ohio. Thus, Ohio law will not
be ousted in this case, and the pendency of the action under the
Tort Claims Act has no relevance in determining whether the instant
case should be heard in admiralty, with its federal substantive law.
The possibility that the petitioners would have to litigate the same
claim in two forums is the same possibility that would exist if their
plane had stopped on the shore of the lake, instead of going into
the water, and is the same possibility that exists every time a plane
goes down on land, negligence of the federal air traffic controller
is alleged, and there is no diversity of citizenship. This problem
cannot be solved merely by upholding admiralty jurisdiction in cases
where the plane happens to fall on navigable waters.
274 OCTOBER TERM, 1972
Opinion of the Court 409 u. s.
tion in a few wholly fortuitous aircraft cases would be
a most quixotic way of approaching that goal. If federal
uniformity is the desired goal with respect to claims
arising from aviation accident!S, Congress is free under
the Commerce Clause to enact legislation applicable to all
such accidents, whether occurring on land or water, and
adapted to the specific characteristics of air commerce.
For the reasons stated in this opinion we hold that,
in the absence of legislation to the contrary, there is no
federal admiralty jurisdiction over aviation tort claims
arising from flights by land-based aircraft between points
within the continental United States.26
The judgment is affirmed.
26 Some such flights, e. g., New York City to Miami, Florida,
no doubt involve passage over "the high seas beyond a marine
league from the shore of any State." To the extent that the terms
of the Death on the High Seas Act become applicable to such flights,
that Act, of course, is "legislation to the contrary."
HEUBLEIN, INC. v. SOUTH CAROLINA TAX COMM'N 275
Syllabus
HEUBLEIN, INC. v. SOUTH CAROLINA TAX
COMMISSION
APPEAL FROM THE SUPREME COURT OF SOUTH CAROLIN A
No. 71-879. Argued November 13, 1972-
Decided December 18, 1972
Incident to South Carolina's valid scheme of regulating the sale of
liquor within the State, a requirement that a manufacturer do
more, as a condition of doing business, than merely solicit sales is
not impermissible even though it has the effect of requiring the
out-of-state manufacturer to undertake activities that eliminate
its protection under 15 U. S. C. § 381 (a) from the state income
tax. Pp. 278--284.
257 S. C. 17, 183 S. E. 2d 710, affirmed.
MARSHALL, J., delivered the opinion of the Court, in which
BURGER, C. J., and DouGLAB, BRENNAN, WHITE, POWELL, and
REHNQUIST, JJ., joined. BLACKMUN, J., filed a statement concurring
in the result, post, p. 284. STEWART, J., took no part in the
consideration or decision of the case.
Stephen M. Piga argued the cause for appellant. With
him on the briefs was W. Croft Jennings, Jr.
G. Lewis Argoe, Jr., Assistant Attorney General of
South Carolina, argued the cause for appellee. With him
on the brief were Daniel R. McLeod, Attorney General,
and Joe L. Allen, Jr., and John C. Von Lehe, Assistant
Attorneys General.
Mr. Piga filed a brief for the Distilled Spirits Institute
as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed by
Solicitor General Griswold, Assistant Attorney General
Crampton, and Ernest J. Brown for the United States,
and by William D. Dexter, Assistant Attorney General
of Washington, and Eugene F. Corrigan for the Multistate
Tax Commission.
276 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
MR. JUSTICE MARSHALL delivered the opinion of the
Court.
In this case we must determine whether South Carolina
may tax the income from local sales of Heublein's
products, consistent with the limitations on the State's
power to tax imposed by 15 U. S. C. § 381 (a).1 The
South Carolina Tax Commission assessed Heublein,
Inc., a Connecticut corporation that produces alcoholic
beverages, a total of $21,549.50 in taxes on income derived
from the sale of its goods in South Carolina.2
After a hearing before the Tax Commission, Heublein
paid the taxes and brought suit to recover them. The
Court of Common Pleas held that § 381 (a) protected
Heublein from tax liability in South Carolina. The
Supreme Court of South Carolina reversed. 257 S. C.
17, 183 S. E. 2d 710. We noted probable jurisdiction,
405 U. S. 952 (1972), and now affirm. We hold that
Heublein's activities within South Carolina exceed the
minimum standards established in 15 U. S. C. § 381 (a),
1 Title 15 U. S. C. § 381 (a) provides in pertinent part:
"No State .. . shall have power to impose ... a net income tax
on the income derived within such State by any person from interstate
commerce if the only business activities within such State by
or on behalf of such person ... are either, or both, of the following:
"(1) the solicitation of orders by such person, or his representative,
in such State for sales of tangible personal property, which orders
are sent outside the State for approval or rejection, and, jf approved,
are filled by shipment or delivery from a point outside the State;
and
"(2) the solicitation of orders by such person, or his representative,
in such State in the name of or for the benefit of a prospective
customer of such person, if orders by such customer to such person
to enable such customer to fill orders resulting from such solicitation
are orders described in paragraph ( 1) ."
2 A license tax, which is predicated upon liability for income taxes,
was also assessed and paid. S. C. Code Ann. § 65-606 (1962).
There is no dispute over the amount for which Heublein is liable
under this statute.
HEUBLEIN, INC. v. SOUTH CAROLINA TAX COMM'N 277
275 Opinion of the Court
and that South Carolina may, pursuant to an otherwise
valid regulatory scheme, compel Heublein to undertake
activities that take it beyond the protection of 15 U.S. C.
§ 381 (a).
I
During the years in question, Heublein had one employee
in South Carolina. He maintained an office in
his home and a desk at the warehouse of Ben Arnold
Co., the local distributor of Heublein's products.
Heublein's representative briefed Ben Arnold's salesmen
on Heublein's products, and traveled throughout the
State to liquor retailers, telling them of the products
and leaving promotional literature with them. Ordinarily,
the retailers sent orders directly to Ben Arnold,
but occasionally Heublein's representative transmitted
them. Ben Arnold, in turn, placed its orders with
Heublein's home office in Connecticut. Heublein then
acknowledged its acceptance of the orders and indicated
to Ben Arnold when the goods would be shipped. They
were sent by common carrier consigned to Heublein in
care of its representative at the premises of Ben Arnold.
This arrangement, which served none of Heublein's
business interests, was adopted to conform to the requirements
of the South Carolina Alcoholic Beverage
Control Act. S. C. Code Ann. § 4-1 et seq. (1962 and
Supp. 1971). Under that Act, only registered producers
of registered brands of alcoholic beverages may ship those
brands of alcoholic beverages into the State. §§ 4-134,
4-135. Such producers must have a resident representative
who has no direct or indirect interest in a local liquor
business. §§ 4-131 (3), 4-139. Shipments of liquor into
the State may be made only to the producer in care
of its representative. § 4-141. Prior to the shipment,
the producer must mail a copy of the invoice showing
the quantity and price of the items shipped, and a copy
of the bill of lading, to the Alcoholic Beverage Control
278 OCTOBER TERM, 1972
Opinion of the Court 409U.S.
Commission. Immediately after accepting delivery, the
representative must furnish the Commission a copy of
the invoice showing the time and place of delivery.
Ibid. When received, the shipment must be stored in
a licensed warehouse of the producer, or, after delivery
is complete, the shipment may be transferred to a licensed
wholesaler. §§ 4-140, 4-141. Before the goods
are shipped to a wholesaler, however, the representative
must obtain the Commission's permission to make the
transfer. § 4-141. Heublein complied with this regulatory
scheme.
II
Title 15 U.S. C. § 381 (a)(l), on which Heublein relies,
provides that no State shall have power to impose a
net income tax on income derived within the State
from interstate commerce if the recipient of the income
confined its business within the State to "the solicitation
of orders ... in such State for sales of tangible personal
property, which orders are sent outside the State for
approval or rejection, and, if approved, are filled by
shipment or delivery from a point outside the State."
We need not decide whether, as the State urges, the
actions of Heublein's representative in maintaining a
local office, meeting with retailers, distributing promotional
literature, and personally delivering some orders
to the wholesaler, do not fall within the term "solicitation."
Compare Smith Kline & French v. Tax
Comm.'n , 241 Ore. 50, 403 P. 2d 375 (1965), with Clairol,
Inc. v. Kingsley, 109 N. J. Super. 22, 262 A. 2d 213,
aff'd, 57 N. J. 199, 270 A. 2d 702 (1970), appeal dismissed,
402 U. S. 902 (1971). For here Heublein has
done more than just those acts. It sent its products to
its local representative who transferred them to a local
wholesaler. This transfer occurred within the State
and clearly was neither "solicitation" nor the filling of
HEUBLEIN, INC. v. SOUTH CAROLINA TAX COMM'N 279
275 Opinion of the Court
orders "by shipment or delivery from a point outside
the State" within the meaning of§ 381 (a)(l).
Heublein contends, however, that the transfer never
would have occurred had not South Carolina required
it as a condition of conducting business within the State.
Heublein argues that a State may not evade the purpose
of § 381 (a) by requiring a firm to do more than
solicit business within the State and then taxing the firm
for engaging in this compelled additional activity.
If we were persuaded that South Carolina has evaded
the intent of the statute we would, of course, be reluctant
to uphold its actions. But that is not what South
Carolina has done here. The legislative history of § 381
shows that Congress had rather limited purposes which
are not evaded by South Carolina's regulation of liquor
sales in the manner it has chosen. Congress did not
focus on the consequences of its actions for such local
regulatory schemes. We therefore will not read the
statute as prohibiting the States from adopting such
schemes, even when the regulation requires the producer
to have more than the minimum contacts with
the State for which § 381 provides tax immunity. Such
a reading would require us to assume that Congress carefully
considered the difficult problems of accommodating
the federal interest in an open national economy with
local interest in regulating the sale of liquor. The evidence
is clear that Congress did not do so.
The impetus behind the enactment of § 381 was this
Court's opinion in Northwestern States Portland Cement
Co. v. Minnesota, 358 U. S. 450 (1959). There we held
that "net income from the interstate operations of a
foreign corporation may be subjected to state taxation
provided the levy is not discriminatory and is properly
apportioned to local activities within the taxing State
forming sufficient nexus to support the same." 358 U.S.,
at 452. Congress promptly responded to the "consid280
OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
erable concern and uncertainty" 3 and the "serious apprehension
in the commercial community" 4 generated
by this decision by enacting Pub. L. 86-272, 73 Stat.
555, 15 U. S. C. § 381, within seven months.
In this statute, Congress attempted to allay the apprehension
of businessmen that "mere solicitation" would
subject them to state taxation. Such apprehension arose
because, as businessmen who sought relief from Congress
viewed the situation, Northwestern States Portland
Cement did not adequately specify what local activities
were enough to create a "sufficient nexus" for the exercise
of the State's power to tax.5 Section 381 was designed
to define clearly a lower limit for the exercise of that
power. Clarity that would remove uncertainty was
Congress' primary goal. By establishing such a limit,
Congress did, of course, implicitly determine that the
State's interest in taxing business activities below that
limit was weaker than the national interest in promoting
an open economy. But it did not address the questions
raised by a requirement, incident to a valid regulatory
scheme, that a business undertake activities above the
limit as a condition of doing business within the State.c
3 S. Rep. No. 658, 86th Cong., 1st Bess., 2.
• H. R. Rep. No. 936, 86th Cong., 1st Sess., 1.
5 See, e.g., S. Rep. No. 658, supra, n. 3, pp. 2-3: "Persons engaged
in interstate commerce are in doubt as to the amount of local activities
within a State that will be regarded as forming a sufficient
'nexus,' that is, connection, with the State to support the imposition
of a tax on net income from interstate operations and 'properly
apportioned' to the State."
6 That Congress was untroubled by those questions is suggested
by its emphasis on the increased overhead and recordkeeping that
local taxation of minimal activities would cause. See, e. g., id.,
at 4; H. R. Rep. No. 936, supra, n. 4, p. 2: "These businesses
are concerned not only with the costs of taxation, but
also with the inescapable fact that compliance with the diverse
tax laws of every jurisdiction in which income is produced will require
the maintenance of records for each jurisdiction and the retention
HEUBLEIN, INC. v. SOUTH CAROLINA TAX COMM'N 281
275 Opinion of the Court
Congress recognized, instead, that the accommodation
of local and national interests in this area was a delicate
matter. The committees reporting the bill to the House
and Senate emphasized the difficulty of devising appropriate
limitations on state taxing powers. Both Committees
called their bills temporary solutions to meet
only the most pressing problems created by Northwestern
States Portland Cement.7 More comprehensive
legislation could only follow careful study, in the Committees'
view. Congress agreed, and in Title II of Pub.
L. 86-272, provided that the Committee on the Judiciary
of the House of Representatives and the Committee on
Finance of the Senate study the entire problem of state
taxation of interstate commerce.8
Congress, then, did not address in § 381 the problem of
taxing a business when it undertook local activities simply
in order to comply with the requirements of a valid regulatory
scheme. Such regulation is an important function
of local governments in our federal scheme. As we
said last Term, "unless Congress conveys its purpose
of legal counsel and accountants who are familiar with the tax
practice of each jurisdiction." Where a valid regulatory scheme
requires that records be kept, the overhead costs about which Congress
was concerned might not rise substantially when a state income
tax was imposed. South Carolina's scheme for regulating liquor does
little more than require that Heublein keep certain records.
7 H. R. Rep. No. 936, supra, n. 4, p. 2; S. Rep. No. 658, supra,
n. 3, pp. 4-5: "Your committee recognizes that the bill it has reported
is not a permanent solution to the problem that exists. It was not
intended to be. Your committee ... recognizes that the problem
is a complex one which requires extensive and exhaustive study in
arriving at a permanent solution fair alike to the States and to the
Nation. Your committee believes, however, that the bill it has
reported will serve as an effective stopgap or temporary solution
while further studies are made of the problem."
8 This report is published as H. R. Rep. No. 1480, 88th Cong.,
2d Sess., H. R. Rep. No. 565, 89th Cong., 1st Sess., and H. R. Rep.
No. 952, 89th Cong., 1st Sess.
282 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
clearly, it will not be deemed to have significantly changed
the Federal-State balance." United States v. Bass, 404
U. S. 336, 349 (1971).
Congress of course did not enact in § 381 a statute
which a State can deliberately evade by requiring a firm
to undertake more than mere solicitation. When a State
enacts a regulatory scheme that serves legitimate State
purposes other than assuring that the State may tax the
firm's income, it is not evading § 381; it is pursuing permissible
ends in a manner that Congress did not address.
Thus, if South Carolina's system of regulating
the sale of liquor is valid, § 381 does not prohibit taxation
of Heublein's local sales.9
III
South Carolina's Alcoholic Beverage Control Act is a
long and detailed statute. Requirements that certain
records be kept by the manufacturer, the wholesaler, and
the retailer pervade the scheme. There must be complete
records of the quantities, brands, and prices involved
at every stage of each liquor sale. By requiring
manufacturers to localize their sales, South Carolina establishes
a check on the accuracy of these records. For
9 MR. JusTICE BLACKMUN, in his separate statement, suggests that
§ 381 does proscribe what South Carolina has done here, but that
the Twenty-first Amendment prohibits such an action by Congress.
In his view, to the extent that § 381 prohibits taxing activities undertaken
in order to comply with a regulation valid under the Twentyfirst
Amendment, it is unconstitutional. We prefer to read the
statute and its legislative history, ambiguous though they may be,
to avoid such a holding. Cf. United States v. Jin Fuey Moy, 241
U.S. 394,401 (1916). And, though the relation between the Twentyfirst
Amendment and the force of the Commerce Clause in the absence
of congressional action has occasionally been explored by this
Court, we have never squarely determined how that Amendment
affects Congress' power under the Commerce Clause. Cf. Schwegmann
Bros. v. Ca!,vert Distillers Corp., 341 U.S. 384 (1951).
HEUBLEIN, INC. v. SOUTH CAROLINA TAX COMM'N 283
275 Opinion of the Court
example, when a manufacturer can transfer its goods to
a wholesaler in the State only after it submits an invoice
showing the price and after it receives permission for the
transfer, it is easier for the State to enforce its requirement
that the wholesale price in South Carolina be no
higher than that elsewhere in the country. S. C. Code
Ann. § 4-137.1 (Supp. 1971). The requirement that
sales be localized is, unquestionably, reasonably related
to the State's purposes and is not simply an attempt by
the State to provide a basis for the taxation of an out-ofstate
seller's local sales.
Nor does this requirement violate the Commerce
Clause. The Twenty-first Amendment,§ 2, provides that
" [ t] he transportation or importation into any State ...
for delivery or use therein of intoxicating liquors, in violation
of the laws thereof, is hereby prohibited." As this
Court said in Hostetter v. ldlewild Bon Voyage Liquor
Corp., 377 U. S. 324, 330 (1964):
"This Court made clear in the early years following
the adoption of the Twenty-first Amendment
that by virtue of its provisions a State is totally unconfined
by traditional Commerce Clause limitations
when it restricts the importation of intoxicants destined
for use, distribution, or consumption within
its borders."
The requirement that, before engaging in the liquor
business in South Carolina, a manufacturer do more
than merely solicit sales there, is an appropriate element
in the State's system of regulating the sale of liquor.10
10 In upholding a comprehensive scheme of liquor regulation rather
similar to South Carolina's, this Court said;
"[The State] has seen fit to permit manufacture of whiskey only
upon condition that it be sold to an indicated class of customers
and transported in definitely specified ways. These conditions are
284 OCTOBER TERM, 1972
BLACKMUN, J., concurring in result 409 U.S.
The regulation in question here is therefore valid, and
§ 381 (a) does not apply. The judgment of the Supreme
Court of South Carolina is
Affirmed.
MR. JusTICE STEWART took no part in the consideration
or decision of this case.
MR. JusTICE BLACKMUN, being of the opinion that the
Twenty-first Amendment provides the sole authority for
what South Carolina has required of Heublein by its
Alcoholic Beverage Control Act and, to that extent,
overrides what otherwise would be proscribed by 15
U. S. C. § 381, concurs in the result.
not unreasonable and are clearly appropriate for effectuating the
policy of limiting traffic in order to minunize well-known evils . ... "
Zifjrin, Inc. v. Reeves, 308 U. S. 132, 139 (1939). Cf. Duckworth
v. Arkansas, 314 U. S. 390 (1941); Carter v. Virginia, 321 U.S. 131
(1944).
NEBRASKA v. IOWA
Per Curiam
NEBRASKA v. IOWA
No. 17, Orig. Decided April 24, 1972-Decided
and Decree entered January 8, 1973
Opinion reported: 406 U.S. 117.
PER CuRIAM and DECREE.
285
The Special Master, as directed in Nebraska v. Iowa,
406 U. S. 117, 127 (1972), has submitted a proposed
Decree. Nebraska accepts it but Iowa filed five Exceptions,
to which Nebraska replied. Upon consideration
of the Exceptions in light of our opinion and the
Report of the Special Master, Iowa's Exceptions II and
III are overruled and Exceptions I, IV, and V are sustained
insofar as paragraphs 11 and 12 of the Proposed
Decree are revised in the following Decree, the entry of
which is directed:
IT Is ORDERED, ADJUDGED, AND DECREED THAT:
1. The Missouri River was the boundary between
the States of Iowa and Nebraska which was subject to
the general rules of accretion and avulsion until 1943
when the states determined to agree by compact upon
a permanent location of the boundary line.
2. By 1943 the shifts of the Missouri River channel
had been so numerous and intricate, both in its
natural state and as a result of the work of the Corps
of Engineers, that it was practically impossible to
locate the original boundary line between the states.
3. The Compact between the states effective July 12,
1943, provides in Section 3 as adopted by Iowa:
"Titles, mortgages and other liens good in Nebraska
shall be good in Iowa as to any lands Nebraska may
cede to Iowa and any pending suits or actions concerning
said lands may be prosecuted to final judg286
OCTOBER TERM, 1972
Per Curiam 409 u. s.
ment in Nebraska and such judgment shall be accorded
full force and effect in Iowa."
4. Under Section 2 of the Compact, each state "cedes"
to the other state "and relinquishes jurisdiction over"
all such lands then located within the compact boundary
of the other.
The word "cedes" in Section 2 was meant by the
states to describe all areas formed before July 12, 1943,
regardless of their location with reference to the original
boundary, whose "titles, mortgages and other liens"
were, at the date of the Compact, "good in" the ceding
state. Under Section 3, the state is bound to recognize
such "titles, mortgages and other liens" to be "good in"
its state, and not to claim ownership in itself.
5. Sections 2 and and 3 are not to be construed as
relating only to areas formed before July 12, 1943, that
can be proved by clear, satisfactory, and convincing evidence
to have been on the Nebraska side of the original
boundary before the Compact fixed the permanent
boundary. Such a construction would require the
claimant who proves title "good in Nebraska" also to
shoulder the burden of proving the location of the
original boundary before 1943, as well as proving that
the lands were on the Nebraska side of that boundary
which would be placing a burden upon the land owner
which the states themselves refused to undertake in 1943
and agreed would not be necessary.
6. The State of Iowa does not own Nottleman
Island and Schemmel Island. The proofs sufficed to
establish title "good in Nebraska" to N ottleman Island
which was the land involved in the case of State of Iowa,
Plaintiff, v. Darwin Merritt Babbitt, et al., Equity No.
17433 in the District Court for Mills County, Iowa, and
to Schemmel Island which was the land involved in the
case of State of Iowa, Plaintiff, v. Henry E. Schemmel,
et al., Defendants, Equity No. 19765 filed in the District
NEBRASKA v. IOWA 287
285 Per Curiam
Court of Fremont County, Iowa, on March 26, 1963, and
that N ottleman Island and Schemmel Island formed
before July 12, 1943.
7. Under Section 3 of the Compact, titles "good in
Nebraska" include private titles to riparian lands that
under Nebraska law, differing from Iowa law, run to
the thread of the contiguous stream.
8. Titles "good in Nebraska" are found to include
and embrace titles obtained by ten years' open, notorious
and adverse possession under claim of right without any
requirement of a record title or of "color of title."
9. As to areas formed before July 12, 1943, Sections
2 and 3 of the Compact limit the State of Iowa to
contesting with private litigants in State or Federal
Courts the question whether the private claimants can
prove title "good in Nebraska" and when private litigants
prove such title, Iowa cannot interpose Iowa's
doctrine of state ownership as defeating such title.
10. In the presently pending cases of State of Iowa,
Plaintiff v. Darwin Merritt Babbitt, et al., Equity
No. 17433, (District Court of Mills County, Iowa), and
State of Iowa, Plaintiff v. Henry E. Schemmel, et al.,
Equity No. 19765, (District Court of Fremont County,
Iowa), it having been proved that there are titles "good
in Nebraska" as to those islands, there is no reason for
an injunction against Iowa, its officers, agents and servants,
at this stage, unless it be shown that the State of
Iowa will not abide by this determination of the issues
as embodied in our opinion of April 24, 1972.
11. Generally, ownership of the twenty-one areas and
part of the twenty-second area north of Omaha-claimed
by Iowa to be state owned by Iowa because allegedly
formed wholly on the Iowa side of the Compact boundary
after the Compact date-shall be determined by the law
of the state in which they are found to have formed, the
Compad boundary being the line which shall determine
288 OCTOBER TERM, 1972
Per Curiam 409 U.S.
in which state they formed. Claimants of title to these
areas as against Iowa may have the opportunity to show
title "good in Nebraska" on the Compact date.
12. Although under the Nebraska law of accretion private
titles to riparian lands run to the thread of the
contiguous stream, whether a Nebraska riparian owner
has title to the accretions that cross the boundary into
Iowa is determined by Iowa law.
13. The counterclaim of Iowa is dismissed.
14. The parties having paid their own costs and having
contributed equally to a fund for expenses of the
Special Master, any amounts remaining in said fund
after deduction of all expenses by the Special Master
shall be divided equally and returned to each state by
the Special Master.
It is so ordered.
RICCI v. CHICAGO MERCANTILE EXCHANGE 289
Syllabus
RICCI v. CHICAGO MERCANTILE EXCHANGE
ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
No. 71-858. Argued October 18, 1972-Decided January 9, 1973
Petitioner filed an antitrust complaint charging respondents with
conspiring to restrain his business by transferring to another person
petitioner's Chicago Mercantile Exchange membership, without
notice and hearing, and in violation of Exchange rules and the
Commodity Exchange Act. The District Court dismissed the
complaint. The Court of Appeals reversed but held that the
antitrust action should be stayed. Held: The Court of Appeals
correctly determined that the antitrust proceedings should be
stayed until the Commodity Exchange Commission can pass on
the validity of respondents' conduct under the Commodity Exchange
Act. Though the Commission cannot decide whether the
Act and rules immunize conduct from the antitrust laws, the Commission's
determination of whether the Exchange's rules were
violated as petitioner claims or were followed requires a factual
determination within the special competence of the Commission.
That determination will greatly aid the antitrust court in arriving
at the essential accommodation between the antitrust and
regulatory regimes. Pp. 298-308.
447 F. 2d 713, affirmed.
WHITE, J., delivered the opinion of the Court, in which BURGER,
C. J., and BRENNAN, BLACKMUN, and REHNQUIST, JJ., joined.
BURGER, C. J., filed a concurring opinion, post, p. 308. DOUGLAS, J.,
filed a dissenting opinion, post, p. 308. MARSHALL, J ., filed a dissenting
opinion, in which DouGLAS, STEWART, and PowELL, JJ.,
joined, post, p. 309.
Jerome H. Torshen argued the cause for petitioner.
With him on the briefs was Lawrence H. Eiger.
Lee A. Freeman argued the cause for respondents.
With him on the brief for respondents Chicago Mercantile
Exchange et al. was Lee A. Freeman, Jr. Max
290 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
Chill, Herman Chill, and Charles B. Bernstein filed a
brief for respondents Siegel Trading Co., Inc., et al.
Solicitor General Griswold, Acting Assistant Attorney
General Comegys, Samuel Huntington, and Seymour H.
Dussman filed a brief for the United States as amicus
curiae urging reversal.
MR. JusTICE WHITE delivered the opm10n of the
Court.
The question before us is whether in this antitrust
case the Court of Appeals for the Seventh Circuit properly
stayed further judicial action pending administrative
proceedings which the court deemed available under
the Commodity Exchange Act, 42 Stat. 998, as amended,
7 U. S. C. § 1 et seq.
The case began when petitioner Ricci filed a complaint
against the Chicago Mercantile Exchange, its
president, vice president, and chairman of the board,
and against the Siegel Trading Company, a member of
the Exchange, and its president, charging a conspiracy
in violation of the Sherman Act, 26 Stat. 209, as amended,
15 U. S. C. § 1. The complaint alleged that Ricci had
purchased a membership in the Exchange in 1967, using
funds borrowed from the Trading Company, and that in
February 1969 the Exchange, at the instance of the Trading
Company, transferred the membership to another,
without notice and hearing, utilizing a blank transfer
authorization that had previously been revoked.' Al-
1 Petitioner alleged in his complaint that when he was informed
that Siegel Trading Company claimed to be the owner of his membership,
he notified the Exchange that he was the owner of the
membership; that the Trading Company was indebted to him for
$18,000 in brokerage fees which offset the $15,000 he had borrowed
to acquire his membership; and that the Trading Company did not
have a lien on his membership under the rules of the Exchange.
App. 11.
RICCI v. CHICAGO MERCANTILE EXCHANGE 291
289 Opinion of the Court
legedly, this course of conduct violated both the rules of
the Exchange and the Commodity Exchange Act and was
pursuant to an unlawful conspiracy aimed at restraining
the conduct of Ricci's business. The result was, the complaint
asserted, that Ricci was excluded from trading on
the Exchange from February 11, 1969, until March 4,
1969, when he purchased another membership at a considerably
higher price than the transferred membership
had previously cost.
On motion of respondents, the District Court dismissed
the complaint. The Court of Appeals reversed
that judgment; but because the challenged conduct was
deemed subject to the jurisdiction of the Secretary of
Agriculture (Secretary) or the Commodity Exchange
Commission (Commission) by virtue of the provisions
of the Commodity Exchange Act, the District Court
was directed to stay further proceedings to permit administrative
action to take place. 447 F. 2d 713 (CA7
1971). We granted certiorari, 405, U. S. 953 (1972),
and now affirm the judgment of the Court of Appeals.
I
The Commodity Exchange Act, 2 first passed in 1922
and from time to time amended- the most recent sub-
2 Recognizing the public interest involved in "[t]ransactions in
commodity involving the sale thereof for future delivery [futures]"
and the burden upon interstate commerce imposed by "sudden or
unreasonable fluctuations in ... prices," 7 U. S. C. § 5, Congress, to
regulate "futures" transactions, passed the "Grain Futures Act," 42
Stat. 998, the title being changed to the present "Commodity Exchange
Act" in 1936, 49 Stat. 1491. The constitutionality of regulating
futures trading under the Commerce Clause, Art. I, § 8, cl. 3, of
the Constitution was upheld in Board of Trade of the City of Chicago
v. Olsen, 262 U. S. 1 (1923).
The following will indicate the content and scope of the Act:
Trading in futures is to be done only by or through a member of a
"contract market," 7 U. S. C. §§ 6 and 6h, The Commodity Exchange
Commission (Commission) may take measures to prevent
292 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
stantial amendments being in 1968-makes dealing in
commodity futures a crime except when undertaken by
or through members of a board of trade that meets
certain statutory criteria and that is designated as a
"contract market" by the Secretary. 7 U. S. C. § § 6
and 6h.3 Contract markets must file with the Secexcessive
speculation, id., § 6a, and certain other transactions are
prohibited, id., §§ 6a and 6c. Futures commission merchants and
floor brokers must register with the Secretary of Agriculture (Secretary)
(a member of the Commission, id., § 2), id., §§ 6d and 6e,
and to do so, must meet certain financial requirements, id., § 6f.
Customers' money, securities, and property must be handled in a
prescribed fashion, id., § 6d, and futures commission merchants and
floor brokers must meet reporting and recordkeeping re-quirements
established by the Secretary and keep such books and records open
for inspection, id., § 6g. Specified transactions must be reported to
the Secretary and books and records of same kept, which shall be
subject to inspection, id., § 6i. To be designated a "contract market"
a board of trade must meet certain conditions and requirements,
id.,§ 7; and a contract market must perform certain duties, id.,§ 7a.
The contract market can have its designation suspended or revoked,
id., §§ 7b and 8, or be subjected to cease-and-desist orders, id.,§ 13a.
For stated reasons persons may be excluded from trading on a
contract market by the Secretary, id., § 9, or be subjected to a
cease-and-desist order, id., § 13b, and it is unlawful for such persons
to trade while banned, id., § 126. Contract markets are not to
exclude from membership cooperative associations or corporations
except under certain conditions, id., § 10a. A contract market may
have its designation vacated and subsequently be redesignated, id.,
§ 11. The Secretary may make investigations and reports, id., § 12,
and may disclose the names of traders on commodity markets, id.,
§ 12-1. Certain acts may be punished as felonies or misdemeanors,
id., §§ 13, 13-1, 13a, and 13b. Persons involved in violations of
the Act or rules issued thereto may be held responsible as principals,
id., § 13c (a). The Secretary or Commission is not required to report
minor violations of the Act "for prosecution, whenever it appears
that the public interest does not require such action," id., § 13c (b).
3 Title 7 U. S. C. § 6 provides:
"It shall be unlawful for any person to deliver for transmission
through the mails or in interstate commerce by telegraph, telephone,
wireless, or other means of communication any offer to make or exeRICCI
v. CHICAGO MERCANTILE EXCHANGE 293
289 Opinion of the Court
retary their bylaws, rules, and regulations, and have
the express statutory duty to enforce all such prescriptions
(1) "which relate to terms and conditions in
cute, or any confirmation of the execution of, or any quotation or
report of the price of, any contract of sale of commodity for future
delivery on or subject to the rules of any board of trade in the
United States, or for any person to make or execute such contract
of sale, which is or may be used for (a) hedging any transaction in
interstate commerce in commodity or the products or by-products
thereof, or (b) determining the price basis of any such transaction in
interstate commerce, or (c) delivering commodity sold, shipped, or
received in interstate commerce for the fulfillment thereof, except,
in any of the foregoing cases, where such contract is made by or
through a member of a board of trade which has been designated
by the Secretary of Agriculture as a 'contract market,' as hereinafter
provided in this chapter, and if such contract is evidenced by a
record in writing which shows the date, the parties to such contract
and their addresses, the property covered and its price, and the terms
of delivery: Provided, That each board member shall keep such record
for a period of three years from the date thereof, or for a longer
period if the Secretary of Agriculture shall so direct, which record
shall at all times be open to the inspection of any representative of
the United States Department of Agriculture or the United States
Department of Justice."
Title 7 U. S. C. § 6h states:
"It shall be unlawful for any person-
" ( 1) to conduct any office or place of business anywhere in the
United States or its territories for the purpose of soliciting or accepting
any orders for the purchase or sale of any commodity for future
delivery, or for making or offering to make any contracts for the purchase
or sale of any commodity for future delivery, or for conducting
any dealings in commodities for future delivery, that are or may
be used for
"(A) hedging any transaction in interstate commerce in such
commodity or the products or byproducts thereof, or
"(B) determining the price basis of any such transaction in interstate
commerce, or
"(C) delivering any such commodity sold, shipped, or received in
interstate commerce for the fulfillment thereof,
"if such orders, contracts, or dealings are executed or consum294
OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
contracts of sale ... or relate to other trading requirements,
and which have not been disapproved by the Secretary
of Agriculture pursuant to" his statutory authority,
id., § 7a (8),4 or (2) "which provide minimum financial
mated otherwise than by or through a member of a contract
market; or
"(2) falsely to represent such person to be a member of a contract
market, or the representative or agent of such member, or to
be a futures commission merchant registered under this chapter, or
the agent of such registered futures commission merchant, in soliciting
or handling any order or contract for the purchase or sale of any
commodity in interstate commerce or for future delivery, or falsely
to represent in connection with the handling of any such order or
contract that the same is to be or has been executed on, or by or
through any member of, any contract market."
• Title 7 U. S. C. § 7a provides:
"Each contract market shall-
"(8) Enforce all bylaws, rules, regulations, and resolutions, made
or issued by it or by the governing board thereof or any committee,
which relate to terms and conditions in contracts of sale to be executed
on or subject to the rules of such contract market or relate to
other trading requirements, and which have not been disapproved
by the Secretary of Agriculture pursuant to paragraph (7) of section
12a of this title; and revoke and not enforce any such bylaw,
rule, regulation, or resolution, made, issued, or proposed by it or
by the governing board thereof or any committee, which has been so
disapproved . . . ."
Disapproval by the Secretary is to be pursuant to 7 U. S. C.
§ 12a, which provides:
"The Secretary of Agriculture is authorized-
"(7) to disapprove any bylaw, rule, regulation, or resolution made,
issued or proposed by a contract market or by the go·:erning board
thereof or any committee which relates to terms and conditions in
contracts of sale to be executed on or subject to the rules of such
contract market or relates to other trading requirements, when he
finds that such bylaw, rule, regulation, or resolution violates or will
violate any of the provisions of this chapter, or any of the rules,
regulations, or orders of the Secretary of Agriculture or the commission
thereunder."
RICCI v. CHICAGO MERCANTILE EXCHANGE 295
289 Opinion of the Court
standards and related reporting requirements for futures
commission merchants who are members of such contract
market, and which have been approved by the
Secretary of Agriculture," id., § 7a (9).5 If any contract
market is not enforcing its rules of government
made a condition of its designation, or if it is violating
any provision of the Act, the Commission, an
official agency established by the Act,6 is authorized,
upon notice and hearing and subject to judicial review,
to suspend or revoke the designation of the
board of trade as a contract market, id.,§ 8 (a),7 or may
5 Title 7 U. S. C. § 7a states:
"Each contract market shall-
" (9) Enforce all bylaws, rules, regulations, and resolutions made
or issued by it or by the governing board thereof or by any committee,
which provide minimum financial standards and related
reporting requirements for futures commission merchants who are
members of such contract market, and which have been approved
by the Secretary of Agriculture."
6 The Commission is composed of the Secretaries of Agriculture and
Commerce and the Attorney General, or their designees, the Secretary
of Agriculture or his designee serving as chairman, 7 U. S. C. § 2.
7 Title 7 U. S. C. § 8 (a) provides:
"The commission is authorized to suspend for a period not to
exceed six months or to revoke the designation of any board of trade
as a 'contract market' upon a showing that such board of trade is
not enforcing or has not enforred its rules of government made a
condition of its designation as set forth in section 7 of this title or
that such board of trade, or any director, officer, agent, or employee
thereof, otherwise is violating or has violated any of the provisions
of this chapter or any of the rules, regulations, or orders of the
Secretary of Agriculture or the commission thereunder. Such suspension
or revocation shall only be after a notice to the officers of
the board of trade affected and upon a hearing: Provided, That such
suspension or revocation shall be final and conclusive, unless within
fifteen days after such suspension or revocation by the commission
such board of trade appeals to the court of appeals for the circuit
in which it has its principal place of business, by filing with the
clerk of such court a written petition praying that the order of the
296 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
order such contract market and any director, officer,
agent, or employee to cease and desist from such conduct,
id., § 13a.8 Under the relevant regulations, any intercommission
be set aside or modified in the manner stated in the
petition, together with a bond in such sum as the court may determine,
conditioned that such board of trade will pay the costs of the
proceedings if the court so directs. The clerk of the court in which
such a petition is filed shall immediately cause a copy thereof to be
delivered to the Secretary of Agriculture, who shall thereupon notify
the other members of the commission and file in the court the record
in such proceedings, as provided in section 2112 of Title 28. The
testimony and evidence taken or submitted before the commission,
duly filed as aforesaid as a part of the record, shall be considered
by the court of appeals as the evidence in the case. The proceedings
in such cases in the court of appeals shall be made a preferred cause
and shall be expedited in every way. Such a court may affirm or
eet aside the order of the commission or may direct it to modify its
order. No such order of the commission shall be modified or set
aside by the court of appeals unless it is shown by the board of trade
that the order is unsupported by the weight of the evidence or was
issued without due notice and a reasonable opportunity having been
afforded to such board of trade for a hearing, or infringes the Constitution
of the United States, or is beyond the jurisdiction of the
commission."
8 Title 7 U. S. C. § 13a states:
"If any contract market is not enforcing or has not enforced its
rules of government made a condition of its designation as set forth
in section 7 of this title, or if any contract market, or any director,
officer, agent, or employee of any contract market otherwise is violating
or has violated any of the provisions of this chapter or any
of the rules, regulations, or orders of the Secretary of Agriculture
or the commission thereunder, the commission may, upon notice and
hearing and subject to appeal as in other case,s provided for in
paragraph (a) of section 8 of this title, make and enter an order
directing that such contract market, director, officer, agent, or
employee shall cease and desist from such violation, and if such
contract market, director, officer, agent, or employee thereafter and
after the lapse of the period allowed for appeal of such order or
after the affirmance of such order, shall fail or refuse to obey or
comply with such order, such contract market, director, officer,
agent, or employee shall be guilty of a misdemeanor and, upon
RICCI v. CHICAGO MERCANTILE EXCHANGE 297
289 Opinion of the Court
ested person having information concerning such violation
may request the Commission to institute proceedings,
or the Commission may initiate proceedings on its own
motion,9 and there is provision for persons seeking intervention
in such proceedings.'°
conviction thereof, shall be fined not less than $500 nor more than
$10,000 or imprisoned for not less than six months nor more than
one year, or both. Each day during which such failure or refusal
to obey such order continues shall be deemed a separate offense."
9 Title 17 CFR § 0.53 provides:
"(a) Application to institute proceedings. Any interested person
having any information of any violation of the act, or of any of the
orders or regulations promulgated thereunder, by any board of trade
or by any director, officer, agent, or employee thereof may file with
the Act Administrator [see infra] an application requesting the institution
of such proceeding as is authorized under the act. Such application
shall be in writing, signed by or on behalf of the applicant,
and shall include a short and simple statement of the facts constituting
the alleged violation and the name and address of the applicant
and the name and address of the person against whom the applicant
complains." (The "Act Administrator," who "administers and is
responsible for the enforcement of the [Act]," id., § 140.1, is the Administrator
of the Commodity Exchange Authority, United States
Department of Agriculture, id., § 0.52 (r) .)
"(b) Status of applicant. The person filing an application as
described in paragraph (a) of this section shall have no legal status
in the proceeding which may be instituted as a result of the application,
except where the applicant may be permitted to intervene
therein, in the manner provided in this subpart, or may be called
as a witness, and the applicant's identity shall not be divulged by
any employee of the Department, except with the applicant's prior
consent or upon court order.
" ( c) Who may institute. If, after investigation [by regional offices
of the Commodity Exchange Authorities, id.,§ 140.1 (d)J of the
matters complained of in the application described in paragraph (a) of
this section, or after investigation made on its own motion, the Commission
has reason to believe that any board of trade or any director,
officer, agent, or employee thereof has violated or is violating
any of the provisions of the act, or of any of the regulations promulgated
thereunder, the Commission will institute an appropriate pro-
[Footnote 10 begins on p. 298]
298 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
II
It was against this statutory background that petitioner
alleged he had been deprived of his membership
contrary to the rules of the Exchange, the Commodity
ceeding: Provided, That in any case, except one of willfullness or
one in which the public health, interest or safety otherwise requires,
prior to the institution of a proceeding for the suspension or revocation
of any designation of a contract market, facts or conditions
which may warrant such action shall be called to the attention of
the market in writing and such market shall be accorded opportunity
to demonstrate or achieve compliance with all lawful requirements.
Proceedings will be instituted only upon complaints issued by the
Commission and will not be instituted upon pleadings filed by private
persons."
Should the Commission institute proceedings after investigation,
ibid., unless the respondent is allowed by the Commission to consent
to a.n order, id., § 0.54, proceedings are held before a referee from the
Department of Agriculture, id., §§ 0.52 (p) and (s) and 0.55 et seq.,
an oral hearing being granted on request, id., § 0.61. The Commission
prepares its order based on consideration of the record of the
proceedings, including a report prepared by the referee, id., §§ 0.66,
0.68, and 0.70, oral argument being held before the Commission m
certain instances, id., § 0.69.
10 Title 17 CFR § 0.58 states:
"At any time after the institution of a proceeding, and before it
has been submitted to the Commission for final consideration, the
Commission or the referee may, upon petition in writing and for
good cause shown, permit any person to intervene therein. The
petition shall state with preciseness and particularity: (a) The petitioner's
relationship to the matters involved in the proceeding,
(b) the nature of the material he intends to present in evidence,
(c) the nature of the argument he intends to make, (d) any other
reason that he should be allowed to intervene."
As indicated in n. 2, supra, while the Commission has been vested
with authority to take disciplinary action against a contract market
and its officers, agents, and employees, the Secretary has been given
such authority against persons other than contract markets, including
individuals, associations, partnerships, corporations, and trusts,
7 U. S. C. § 2, and may either exclude them from trading on a contract
market, id., § 9, or may issue a cease-and-desist order, id.,
RICCI v. CHICAGO MERCANTILE EXCHANGE 299
289 Opinion of the Court
Exchange Act, and the Sherman Act. And it was in
this context that the Court of Appeals, having concluded
that the specific Exchange rules allegedly violated 11
were within the bounds of adjudicative and remedial
jurisdiction of the Commodity Exchange Commission,
directed the District Court to hold its hand and
afford the opportunity for administrative consideration
of the dispute between petitioner and the alleged
coconspirator-def endants.
The problem to which the Court of Appeals addressed
itself is recurring.12 It arises when conduct seemingly
§ 13b. The regulations providing for institution of and intervention
in disciplinary proceedings before the Secretary, 17 CFR §§ 0.3
and 0.8, are virtually identical to the regulations for Commission
proceedings quoted above and in n. 9, supra.
11 Rules the Court of Appeals found related to "trading requirements"
were Rule 307, which provides for the sale of membership,
and Rule 322, which concerns qualifications to trade.
Rule 307 provides:
"Membership in the Exchange is a personal privilege subject to
sale and transfer only as authorized herein. When a member or
the legal representative of a deceased or incompetent member desires
to sell a membership, he shall sign an authorization to transfer in
such form as shall be prescribed by the Board. An individual who
desires to purchase a membership shall notify the President to such
effect and when an agreement with a seller shall have been made
shall sign a confirmation of purchase and shall deposit with the
President a transfer fee in the amount of $100.00 and also a certified
check, payable to the Exchange, for the amount of the agreed
purchase price."
Rule 322 states:
"A member may be qualified to trade on the Spot and To-Arrive
Calls provided he has been authorized by a firm or corporation which
has been qualified pursuant to Rule 810 to engage in trading on said
calls. A member may be qualified to trade on the futures ca.II provided
he has been authorized by a firm or corporation which is a
Clearing Member."
12 See, e. g., Carnation Co. v. Pacific Westbound Conference, 383
U. S. 213 (1966); United States v. Philadelphia National Bank, 374
300 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
within the reach of the antitrust laws is also at least
arguably protected or prohibited by another regulatory
statute enacted by Congress. Often, but not always,
the other regime includes an administrative agency with
authority to enforce the major provisions of the statute
in accordance with that statute's distinctive standards,
which may or may not include concern for competitive
considerations.
Silver v. New York Stock Exchange, 373 U. S. 341
(1963), was a case where the conduct challenged in an
antitrust complaint was not within the jurisdiction of
an administrative agency but was nevertheless claimed
to be immune from antitrust challenge by virtue of the
Securities Exchange Act of 1934. Silver sought to recover
damages allegedly suffered when his wire connections
with Exchange members were terminated without
notice or hearing under Exchange rules adopted pursuant
to the Securities Exchange Act of 1934, 48 Stat. 881, as
amended, 15 U. S. C. § 78a et seq. Under this Act, the
Securities and Exchange Commission had general power
to approve or disapprove Exchange rules, but it had no
authority to deal with challenges, such as Silver's, to
specific applications of Exchange rules. Moreover, the
statute conferred on the Exchange no express exemption
from the antitrust laws. We declined to hold that Congress
intended to oust completely the antitrust laws and
supplant them with the self-regulatory scheme authorized
U.S. 321 (1963); Silver v. New York Stock Exchange, 373 U.S. 341
(1963); Pan American World Airways v. United States, 371 U. S.
296 (1963); California v. FPC, 369 U. S. 482 (1962); United
States v. Radio Corp. of America, 358 U. S. 334 (1959);
Far East Conference v. United States, 342 U. S. 570 (1952) ;
Georgia v. Pennsylvania R. Co., 324 U. S. 439 (1945); United
States v. Borden Co., 308 U. S. 188 (1939); United States Navigation
Co. v. Cunard S. S. Co., 284 U. S. 474 (1932); Keogh v. Chicago
& N. W.R. Co., 260 U.S. 156 (1922).
RICCI v. CHICAGO MERCANTILE EXCHANGE 301
289 Opinion of the Court
by the Exchange Act. Repeal of the antitrust laws was
to be implied "only if necessary to make the Securities
Exchange Act work, and even then only to the minimum
extent necessary." 373 U.S., at 357. The question thus
became the extent to which, if any, the "character
and objectives of the duty of exchange self-regulation
contemplated by the Securities Exchange Act are incompatible
with the maintenance of an antitrust action."
Id., at 358. Conceding that the "entire public
policy of self-regulation, beginning with the idea
that the Exchange may set up barriers to membership,
contemplates that the Exchange will engage in restraints
of trade which might well be unreasonable absent sanction
by the Securities Exchange Act," id., at 360, and
hence that "particular instances of exchange self-regulation
which fall within the scope and purpose of the Securities
Exchange Act may be regarded as justified in answer
to the assertion of an antitrust claim," id., at 361, the
Court finally concluded that nothing in the terms or
policy of the Act required or contemplated that a selfregulating
exchange be permitted to impose serious
deprivations without notice and opportunity for a hearing,
and that neither the statute nor Exchange rules
posed any legal barrier to the antitrust action.
In arriving at this conclusion, the Court expressly
noted that the Securities and Exchange Commission
had no authority to review specific instances of enforcement
of Exchange rules; that this "obviate[d] any need
to consider whether petitioners were required to resort
to the Commission for relief before coming into court,"
id., at 358, and avoided "any problem of conflict or
coextensiveness of coverage with the agency's regulatory
power," ibid.; and that if there had been such jurisdiction
in the Commission with "ensuing judicial review ...
a different case would arise concerning exemption from
302 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
the operation of laws designed to prevent anticompetitive
activity, an issue we do not decide today." Id.,
at 358 n. 12.
That "different case" is now before us, but in the
context of the Commodity Exchange Act, and we agree
with the Court of Appeals that, given administrative
authority to examine the Ricci-Exchange dispute in the
light of the regulatory scheme and Exchange rules, the
antitrust action should be stayed until the administrative
officials have had opportunity to act. This judgment
rests on three related premises: (1) that it will be
essential for the antitrust court to determine whether
the Commodity Exchange Act or any of its provisions
are "incompatible with the maintenance of an antitrust
action," id., at 358; (2) that some facets of the
dispute between Ricci and the Exchange are within the
statutory jurisdiction of the Commodity Exchange Commission;
and (3) that adjudication of that dispute by
the Commission promises to be of material aid in resolving
the immunity question.13
13 Thus our judgment is not that Congress intended the C-:mmodity
Exchange Act to be the exclusive instrument for the governance
of the Exchange and its members. The purpose and structure
of the Act and our past cases appear to foreclose any such conclusion.
Carnation Co. v. Pacific Westbound Conference, supra;
United States v. Philadelphia National Bank, supra; Silver v. New
York Stock Exchange, supra; Pan American World Airways v.
United States, supra; United States v. Borden Co., supra. Nor
do we find that Congress intended the Act to confer general antitrust
immunity on the Exchange and its members with respect to
that area of conduct within the adjudicative or rule-making authority
of the Commission or the Secretary. See United States v.
Philadelphia National Bank, 374 U. S., at 350-354; California v.
FPC, supra; Maryland & Virginia Milk Producers v. United States,
362 U. S. 458 (1960); United States v. Radio Corp. of
America, 358 U. S., at 339-352. The Act contains no categorical
RICCI v. CHICAGO MERCANTILE EXCHANGE 303
289 Opinion of the Court
As to the first premise, the argument that the Commodity
Exchange Act to some extent limits the applicability
of the antitrust laws, and may limit them in
this case, is plainly substantial. Repeal of the antitrust
laws is not to be lightly assumed. United States
v. Philadelphia National Bank, 374 U.S. 321,350 (1963);
Silver v. New York Stock Exchange, supra, at 357;
California v. FPC, 369 U. S. 482, 485 (1962); Georgia
v. Pennsylvania R. Co., 324 U. S. 439, 456-457 (1945);
United States v. Borden Co., 308 U. S. 188, 198 (1939).
But here the express will of Congress is that to deal
in commodity futures one must either be, or deal through,
a member of a board of trade having specified qualifications
and carrying official designation as a contract
market. The Act clearly contemplates a membership
organization and hence the existence of criteria for the
acquisition, transfer, and loss of membership. The Chicago
Mercantile Exchange has such membership rules,
and it had the statutory duty to enforce them to the extent
that they constituted or were related to "trading requirements,"
7 U.S. C. § 7a (8) . If the transfer of Ricci's
membership was pursuant to a valid rule, the immediate
question for the antitrust court is whether the rule itself
and Ricci's exclusion under it are insulated from antitrust
attack. The question has substance, for the Commodity
Exchange Act, like the Securities Exchange
exemption of this kind; indeed, it confers no express exemption at
all, not even with respect to conduct that is directed or authorized
by the Commission or the Secretary. Moreover, the area of administrative
authority does not appear to be particularly focused on
competitive considerations; there is no express provision in the Act
directing administrative officials to consider the policies of the antitrust
laws in carrying out their duties and there is no other indication
that Congress intended the adjudicative authority given the Commission
and the Secretary to be a complete substitute for judicial
enforcement of the antitrust laws. Cf. California v. FPC, supra.
304 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
Act, contemplates that the Exchange and its members
will "engage in restraints of trade which might well be unreasonable
absent sanction" by the Act. Silver v. New
York Stock Exchange, supra, at 360. See Board of
Trade of the City of Chicago v. United States, 246 U. S.
231, 238 (1918). On the other hand, if, as Ricci alleges,
loss of his membership was contrary to Exchange rules,
the antitrust action should very likely take its normal
course, absent more convincing indications of congressional
intent than are present here that the jurisdictional
and remedial powers of the Commission are exclusive.
The question whether this membership dispute is
within the jurisdiction of the Commodity Exchange Commission,
the second premise for our judgment, was answered
in the affirmative by the Court of Appeals.
Because trading in futures may be done only by or
through members, the membership rules of the Exchange
were held to relate to "trading requirements" and were
thus among those rules which the Exchange could not
ignore without violating the Act and bringing itself
within the jurisdiction of the Commission to adjudicate
and remedy any violation "of the provisions of this
chapter or any of the rules, regulations, or orders of
the Secretary ... or the commission thereunder .... "
7 U. S. C. §§ 8 (a) and 13a. We need not finally decide
the jurisdictional issue for present purposes, but there
is sufficient statutory support for administrative authority
in this area that the agency should at least be requested
to institute proceedings.14
14 MR. JusTICE MARSHALL'S dissent complains that jurisdiction of
the Commodity Exchange Commission is not clear, that the Commission
need not institute proceedings, that the complainant must intervene
to become a pa.rty, and that agency remedies are discretionary.
But proceeding by complaint and intervention is not an unusual system
for invoking administrative action. And surely if administrative
RICCI v. CHICAGO MERCANTILE EXCHANGE 305
289 Opinion of the Court
We also think it very likely that a pnor agency
adjudication of this dispute will be a material aid in
ultimately deciding whether the Commodity Exchange
Act forecloses this antitrust suit, a matter that seems
to depend in the first instance on whether the transfer
of Ricci's membership was in violation of the Act for
failure to follow Exchange rules. That issue in turn
appears to pose issues of fact 15 and questions about the
scope, meaning, and significance of Exchange membership
rules. These are matters that should be dealt with
in the first instance by those especially familiar with
the customs and practices of the industry and of the
unique marketplace involved in this case. United States
v. Western Pacific R. Co., 352 U. S. 59, 64-65, 65-66
(1956); Far East Conference v. United States, 342 U. S.
570, 574-575 (1952). They are matters typically lying
at the heart of an administrative agency's task and here
they appear to be matters that Congress has placed
within the jurisdiction of the Commodity Exchange
Commission. We should recognize "that the courts,
while retaining the final authority to expound the
statute, should avail themselves of the aid implicit in
proceedings are sought in vain, there would be no further problrm
for the antitrust court. In any event it should be pointed out that
the regulations require investigation of complaints and provide that
"the Commission will institute an appropri:1te proceeding" if im·estigation
revrals reason to believe that the Art is being violated. 17
CFR § 0.53 (c). (Emphasis added.) See n. 9, supra.
1 5 Likely issues for the factfinder are whether Ricci revoked the
transfer authorization before or after he was informed that his
membership was transferred; whether the transfer authorization
was valid; whether the Trading Company had a. lien against Ricci's
membership because of its loan to Ricci for the purchase of a membership;
whether the Trading Company owed brokerage fees to
Ricci; and, if so, whet-her these brokerage fees could be offset against
the debt for the membership purchase.
306 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
the agency's superiority in gathering the relevant facts
and in marshaling them into a meaningful pattern."
Federal Maritime Board v. Isbrandtsen Co., 356 U.S. 481,
498 (1958). The adjudication of the Commission, if it is
forthcoming, will be subject to judicial review and would
obviate any necessity for the antitrust court to relitigate
the issues actually disposed of by the agency
decision. Cf. United States v. Philadelphia National
Bank, 374 U. S., at 353-354; Fe,deral Maritime Board
v. lsbrandtsen Co., supra, at 498-499. Of course, the
question of immunity, as such, will not be before the
agency; but if Ricci's complaint is sustained, the
immunity issue will dissolve, whereas if it is rejected
and the conduct of the Exchange warranted by a
valid membership rule, the court will be in a much
better position to determine whether the antitrust action
should go forward. Affording the opportunity for administrative
action will "prepare the way, if the litigation
should take its ultimate course, for a more informed
and precise determination by the Court of the scope
and meaning of the statute as applied to [these] particular
circumstances." Ibid.
III
MR. JUSTICE MARSHALL'S dissent concedes, as it must,
that it is essential for the antitrust court to make proper
accommodation "between usual antitrust principles and
the self-regulatory and exclusionary powers that the exchanges
were obviously intended to exercise." It also
concedes that where the regulatory regime is administered
by an agency, the antitrust court will stay its hand to
permit institution of administrative proceedings if they
are "likely to make a meaningful contribution to the
resolution of this lawsuit." Our differences thus narrow
to whether proceedings in the Commodity Exchange
RICCI v. CHICAGO MERCANTILE EXCHANGE 307
289 Opinion of the Court
Commission would be of sufficient aid to justify a stay of
this antitrust action.
The dissent asserts that for present purposes the only
relevant issue in the antitrust action is "whether either
the rules, or their application, serves a legitimate selfregulatory
goal," that the Commission has no jurisdiction
to determine facts relevant to whether Exchange rules are
consistent with or essential to legitimate self-regulatory
ends, and that we have mistakenly premised our opinion
on the existence of such jurisdiction, without which there
is no basis for deferring to agency proce~dings.10 This misapprehends
our opinion and fails to come to grips with
reality. We make no claim that the Commission has authority
to decide either the question of immunity as such
or that any rule of the Exchange takes precedence over
antitrust policies. Rather, we simply recognize that Congress
has established a specialized agency that would determine
either that a membership rule of the Exchange
has been violated or that it has been followed. Either
judgment would require determination of facts and the
interpretation and application of the Act and Exchange
rules. And either determination will be of great help to
the antitrust court in arriving at the essential accommodation
between the antitrust and the regulatory regimes:
The problem disappears entirely if it is found that there
has been a violation of the rule; on the other hand, if it is
found that the Exchange has merely followed and enforced
its own rules, the antitrust court will be in a posi-
16 J\'1R. JusTICE MARSHALL'S dissent also asserts that because Ricci's
complaint asserts a conspiracy, the matter at issue lies beyond any
possible self-regulatory goals of the Exchange. But this simply
ignores and refuses to accept the factfinding function of the Commission.
It also fails to recognize that the allegation simply characterizes
as a conspiracy what may be an attempt to invoke the
membership rules of the Exchange.
308 OCTOBER TERM, 1972
DouGLAS, J., dissenting 409 U.S.
tion t-0 make a more intelligent and sensitive judgment
as to whether the antitrust laws will punish what an
apparently valid rule of the Exchange permits.
Accordingly, the judgment is affirmed.
So ordered.
MR. CHIEF JUSTICE BURGER, concurring.
As I read the Court's opinion, it plainly disclaims
any resolution of the issue left open in Silver v. New
York Stock Exchange, 373 U.S. 341 (1963)~namely, the
question of which "particular instances of exchange selfregulation"
occurring within a statutory scheme providing
for self-regulation may be regarded as "justified in answer
to the assertion of an antitrust claim" against the Exchange
and its members. Indeed, the Silver problem
is not before us. The Court of Appeals was careful to
note that it expressed "no opinion on any antitrust immunity
that might result from action or inaction taken
by the Commission or the Secretary of Agriculture in
this case." 447 F. 2d 713, 720 n. 18.
The Court holds that the Commodity Exchange Commission
may materially aid in proper consideration of
petitioner's antitrust claims by determining whether respondents
violated a rule of the Exchange. The Court's
opinion should not be read to suggest that the Commission's
resolution of the dispute either will or will not
foreclose subsequent application of the antitrust laws.
With this understanding, I join the Court's opinion.
MR. JusTICE DouGLAs, dissenting.
While I concur in my BROTHER MARSHALL'S dissent,
I wish to add that even if the Commodity Exchange
Commission were empowered to make a determination
regarding the relief sought by petitioner, it would appear
to be an anomaly to direct the plaintiff in a civil action
to a federal supervising agency for a determination as to
RICCI v. CHICAGO MERCANTILE EXCHANGE 309
289 MARSHALL, J., dissenting
whether the regulations which it is charged to enforce
have been violated, when the agency has, by its inaction,
already shown every indication of sanctioning the alleged
violation. By remanding, we are requiring the petitioner
to seek from the regulators an admission of their failure
to regulate ( or negligence in regulating).
The odds of petitioner's getting the Commodity Exchange
Commission now to find a violation in contradiction
of its past inaction do not, in my view, justify the
expense and delay to the petitioner. In the interests of
orderly and efficient judicial administration, parties are
not generally required to engage in futile gestures. This
inequity is even more pronounced since, as MR. JusTICE
MARSHALL points out in his dissent, the Commodity Exchange
Commission has neither the authority nor power
to make a determination on the issues underlying the
civil action.
My concern about remitting parties in federal court
litigation to state courts or to federal administrative
agencies for resolution of collateral questions of law is
stated in my dissent in Clay v. Sun Insurance Office, 363
U. S. 207, 227-228; see also England v. Louisiana Board
of Medical Examiners, 375 U. S. 411, 429 (concurring
opinion). The road this litigant is now required to travel
to obtain justice is equally long and expensive and available
only to those with long purses, even though he is
remitted only to a federal regulatory agency.
MR. JusTICE MARSHALL, with whom MR. JusTICE
DouGLAS, MR. JusTICE STEWART, and MR. JusTICE
PowELL join, dissenting.
The majority accurately describes the provisions of
the Commodity Exchange Act and the facts of this
case. But my Brethren nowhere explain why the lower
court should stay its hand pending action by an agency
which in all likelihood lacks the statutory power to
310 OCTOBER TERM, 1972
MARSHALL, J ., dissenting 409 U.S.
resolve an issue in the lawsuit. Instead of carefully
balancing the advantages and disadvantages of deferral
to the agency, the Court seems to apply a mechanical
test which requires judicial deference despite the substantial
probability that the agency will have nothing
of relevance to contribute. The principle that should
govern this case can be stated quite adequately in a
single sentence: An agency cannot have primary jurisdiction
over a dispute when it probably lacks jurisdiction
in the first place. The majority seemingly departs
from this principle 1 and, hence, needlessly bifurcates
and complicates a suit that could readily be resolved
by the District Court. I must therefore respectfully
dissent.
I
At the outset, it should be noted that the Commodity
Exchange Act fails to provide petitioner with a means
by which he can require the Commodity Exchange Commission
or the Secretary of Agriculture to consider his
case. The Act provides that "[t]he Secretary of Agriculture
is authorized ... to disapprove any bylaw, rule,
regulation, or resolution made, issued or proposed by
a contract market." 7 U. S. C. § 12a (7) ( emphasis
added). Similarly, "[i]f any contract market is not en-
1 The majority suggests that the Court "need not finally decide
the jurisdictional issue for present purposes." Rather, it holds that
the likelihood of agency jurisdiction is sufficient to require judicial
abstention. This approach could well lead t.o an extraordinary
result. Since the Court expressly leaves the jurisdictional issue open,
it is possible that at some later date, it will be held that the agency
lacks jurisdiction over this dispute. In that event, petitioner will
have been forced to resort to possibly lengthy administrative proceedings,
only to be told at their conclusion that they were irrelevant
to his case. My approach is somewhat different. I submit that the
jurisdiction of the relevant agency is a threshold issue in cases such
as this and that before a court defers to agency judgment, it should
authoritatively determine whether the agency has power to act.
RICCI v. CHICAGO MERCANTILE EXCHANGE 311
289 MARSHALL, J., dissenting
forcing or has not enforced its rules of government made
a condition of its designation . . . the commission
may ... make and enter an order directing that such
contract market . . . shall cease and desist from such
violation." 7 U.S. C. §13a (emphasis added). But
although the relevant regulations provide a means by
which a private party may report apparent violationssee
17 CFR §§ 0.3 (a), 0.53 (a)-the Act nowhere requires
the Secretary or the Commission to act on these
reports. Cf. Vaca v. Sipes, 386 U. S. 171, 182 (1967).
On the contrary, the Act expressly provides that
"[n]othing in this chapter shall be construed as requiring
the Secretary of Agriculture or the commission to
report minor violations of this chapter for prosecution,
whenever it appears that the public interest does not
require such action." 7 U. S. C. § 13c (b).
Moreover, even if the Secretary or the Commission
does institute proceedings at petitioner's behest, it is
by no means certain that petitioner will be permitted
to participate in those proceedings. The Commission's
rules state that " [ t] he person filing an application [ to
institute proceedings] shall have no legal status in the
proceeding which may be instituted as a result of the
application, except where the applicant may be permitted
to intervene therein ... or may be called as a
witness." 17 CFR § 0.53 (b) ( emphasis added). See
also 17 CFR § 0.3 (b). Although Commission rules provide
for the intervention of private parties, the Commission
apparently has unfettered discretion in deciding
whether to allow intervention. See 17 CFR § 0.58. See
also 17 CFR § 0.8. 2
2 I do not intend to foreclose the possibility that petitioner might
be able to intervene under § 6 (a) of the Administrative Procedure
Act, 5 U. S. C. § 555 (b). See, e. g., American Communications
Assn. v. United States, 298 F. 2d 648, 650 (CA2 1962). Petitioner's
312 OCTOBER TERM, 1972
MARSHALL, J., dissenting 409 U.S.
Should the Commission or the Secretary not allow
intervention in this case, this Court's decision will leave
the District Judge on the horns of a serious dilemma.
Normally, when a court stays its hand to allow agency
proceedings, the result of those proceedings may not be
collaterally attacked when the case returns to the court.
See, e. g., Port of Boston Marine Terminal Assn. v.
Rederiaktiebolaget Transatlantic, 400 U. S. 62, 71-72
( 1970). But if the Commission decides a major issue
in this lawsuit without allowing petitioner to intervene,
failure to permit collateral attack would result in petitioner's
antitrust case being resolved against him without
his participation. On the other hand, if the District
Court undertakes a de novo reconsideration of the issues
submitted to the Commission, the Commission's decision,
together with the concomitant delay, will be for
naught.
II
The Court, then, remands petitioner to a procedure
which he has no power to invoke, in which he has no
right to participate if it is invoked, and which cannot
provide the remedy he seeks even if he is allowed to
participate.3 Yet all this might be justifiable if either
the Commission or the Secretary were likely to make
a meaningful contribution to the resolution of this lawsuit.
We have held that "[w]hen there is a basis for
judicial action, independent of agency proceedings, courts
ability to invoke this provision is, however, problematical at best.
Cf. Easton Utilities Comm'n v. AEC, 137 U. S. App. D. C. 359,
362-365, 424 F. 2d 847, 850-853 (1970). See generally Shapiro,
Some Thoughts on Intervention before Courts, Agencies, and Arbitrators,
81 Harv. L. Rev. 721, 764-767 (1968).
3 Although the Commission may issue cease-and-desist orders and
recommend criminal prosecutions, it, of course, lacks authority to
award treble damages.
RICCI v. CHICAGO MERCANTILE EXCHANGE 313
289 MARSHALL, J., dissenting
may route the threshold decision as to certain issues
to the agency charged with primary responsibility for
governmental supervision or control of the particular
industry or activity involved." Id., at 68. The reason
for this policy is self-evident: "in cases raising issues
of fact not within the conventional experience of judges
or cases requiring the exercise of administrative discretion,
agencies created by Congress for regulating the
subject matter should not be passed over." Far East
-Conference v. United States, 342 U. S. 570, 574 (1952).
Thus, if the Commodity Exchange Commission had
jurisdiction over some aspect of this suit and special
expertise in the area of its jurisdiction, a case could, perhaps,
be made for awaiting its decision. For example,
if the Commission had been given the power to grant
general immunity to antitrust violators, sound judicial
administration would require consultation with it before
proceeding with the antitrust suit. But, as the majority
itself recognizes, there is no indication that Congress
intended to grant the Commission any such power. As
this Court held in Carnation Co. v. Pacific Westbound
Conference, 383 U. S. 213, 218 (1966), "[w]e have long
recognized that the antitrust laws represent a fundamental
national economic policy and have therefore
concluded that we cannot lightly assume that the enactment
of a special regulatory scheme for particular aspects
of an industry was intended to render the more
general provisions of the antitrust laws wholly inapplicable
to that industry." In practice, this principle has
meant that "[r]epeals of the antitrust laws by implication
from a regulatory statute are strongly disfavored,
and have only been found in cases of plain repugnancy
between the antitrust and regulatory provisions." United
States v. Philadelphia National Bank, 374 U. S. 321,
350-351 (1963) (footnotes omitted). Such repugnancy
314 OCTOBER TERM, 1972
MARSHALL, J., dissenting 409U. S.
has been found to exist only in those rare cases where
regulation of the industry is pervasive and Congress
plainly intended to substitute Government superv1s1on
for competition. See, e. g., Pan American World Airways
v. United States, 371 U.S. 296 (1963). Cf. United
States v. Radio Corp. of America, 358 U. S. 334 (1959').
Obviously, Congress has not granted the Commission
the sort of pervasive power over commodity exchanges
that would give rise to antitrust exemption. On the
contrary, although the Commission and the Secretary
have some general policing duties, day-to-day regulation
has been largely left to the industry itself. Where,
as here, the industry is given the power to control its
own affairs, it is particularly important to make certain
t~at this power is not abused for the purpose of eliminating
competition. Cf. Silver v. New York Stock Exchange,
373 U. S. 341 (1963).
The majority cannot rely, then, on the Commission's
general power to immunize antitrust violations. Its
argument, as I understand it, is more subtle and, at
the same time, more attenuated. As we recognized in
Silver v. New York Stock Exchange, supra, the very
purpose of an exchange is to exclude nonmembers from
participation in trading. Were it not for the legislative
authorization of such exchanges, they would constitute
group boycotts that are per se violations of
the Sherman Act. See, e. g., Klor's, Inc. v. Broadway-
Hale Stores, 359 U. S. 207 (1959). Thus, although
Congress cannot be taken to have granted total antitrust
immunity to trading exchanges, some accommodation
must be reached between usual antitrust principles
and the self-regulatory and exclusionary powers that
the exchanges were obviously intended to exercise. In
Silver, the Court reached such an accommodation by
holding that "exchange self-regulation is to be regarded
RICCI v. CHICAGO MERCANTILE EXCHANGE 315
289 MARSHALL, J., dissenting
as justified in response to antitrust charges only to the
extent necessary to protect the achievement of the aims
of the Securities Exchange Act." 373 U. S., at 361.
Thus, if an exchange rule serves a valid self-regulatory
purpose, the mere fact that it excludes some individuals
from competition does not mean that an antitrust violation
has been made out. But where, as in Silver
itself, the rule fails to serve any legitimate self-regulatory
goal, its exclusionary effect can lay the predicate for a
Sherman Act violation.
Applying Silver to the facts of this case, the majority
argues that the Commission has primary jurisdiction to
determine facts relevant to the question whether the
Chicago Mercantile Exchange's rules and its application
of those rules are in conformity with the self-regulatory
purposes of the Commodity Exchange Act. Superficially,
at least, that argument has considerable force.
It is marred, however, by two flaws which, in my view,
make it ultimately fallacious.
First, it is important to note that petitioner's complaint
does not merely allege that he has been excluded
from trading or that an Exchange rule has been broken.
Rather, he maintains that the Exchange and certain
of its members entered a deliberate conspiracy against
him and that this was done "maliciously, wilfully, knowingly,
unlawfully and without just cause or provocation,
with the unlawful and illegal intent, purpose and object
of restraining and preventing plaintiff from exercising an
essential and necessary part of his lawful trade or business
in interstate commerce." Whatever the legitimate selfregulatory
goals of the Chicago Mercantile Exchange, I
cannot believe that they include the deliberate and malicious
suppression of competition. Surely, the courts do
not need the Commodity Exchange Commission to tell
them that such conduct is antithetical to the purposes of
the Commodity Exchange Act. We have held that prin316
OCTOBER TERM, 1972
MARSHALL, J ., dissenting 409 U.S.
ciples of administrative comity preclude courts from
finding antitrust violations "only ... when the defendants'
conduct is arguably lawful" under the administrative
scheme. Carnation Co. v. Pacific Westbound Conference,
383 U. S. 213, 222 (1966). I would apply that
principle here and hold that deliberate conspiracies with
the sole purpose of suppressing competition are not
"arguably lawful" under the Commodity Exchange Act.4
To be sure, it may ultimately develop that petitioner
is unable to substantiate all of his allegations and that
the actions of the Exchange are less sinister than he has
made out. Petitioner might be required to submit affidavits
before trial demonstrating that his allegations of
a deliberate conspiracy are factually supported in order
to forestall a remand to the Commission. And if it
becomes clear at any time during trial that the conspiracy
allegations are insubstantial, there will then be
time enough to reconsider the propriety of a delay pending
Commission action. But I would not deprive petitioner
of immediate access to the courts until he has
had an opportunity to prove that the case is as clear as
he says it is.
Moreover, even if petitioner's allegations are for some
reason insufficient to forestall a remand to the Commission,
I still doubt that the Court of Appeals acted properly
in ordering a stay of the litigation. The majority's
position is premised on the assumption that the Com-
4 This position does not, as the majority argues, "[ignore] ...
the factfinding function of the Commission." Rather, it is premis,,cl
on the seemingly obvious proposition that there must be a jurisdictional
predicate to support agency factfinding. I can find nothing
in the Commodity Exchange Act that authorizes the Commission
to determine whether exchanges and their members are engaged
in conspiracies or whether the actions taken by exchanges
are motivated by anticompetitive purposes. N'or is it clear to me
why such factfinding might be made in the course of clP.ti>rmining
whether an Exchange rule had been violated.
RICCI v. CHICAGO MERCANTILE EXCHANGE 317
289 MARSHALL, J., dissenting
mission has jurisdiction to determine facts relevant to
whether Exchange rules, or the application of those rules,
is consistent with legitimate self-regulatory ends.5 But a
careful examination of the Act makes plain that this assumption
is simply incorrect.6 Neither the agency nor the
Secretary has been granted a roving commission to oversee
the proper functioning of the various exchanges.
Rather, the powers conferred in the Act are limited and
discrete, and none of them grants to the Commission the
tools necessary for resolving any issue in this dispute.
The Commission does have authority to oversee the
exchanges' administration of their own rules. 7 U. S. C.
§ 7a (8) requires exchanges to "[e]nforce all bylaws,
rules, regulations, and resolutions, made or issued by
it or by the governing board thereof or any committee,
which relate to ... trading requirements," and 7 U. S. C.
§ 13a permits the Commission to issue a cease-and-desist
order "[i]f any contract market is not enforcing or has
not enforced its rules of government made a condition
of its designation as set forth in section 7 of this title."
But it should be obvious that these provisions do not
5 But cf. n. 1, supra.
6 To be sure, as the majority recognizes, the Commission does have
fact.finding power and, in the course of determining whether the
Exchange rules have been vio1ated, it might exercise that power
to resolve the underlying facts in dispute. But the majority cites
no cases where the mere factfinding power of an agency has been
used to invoke primary jurisdiction in the absence of an issue
of law or a mixed question of law and fact common to the agency
proceeding and the court action. The Commission may have special
expertise that wil1 aid it to determine whether a given rule has
been violated or whether the rule is consistent with the Act. But
it has no special ability to determine pure questions of fact unrelated
to the legal standard relevant in the antitrust suit. On the contrary,
I had thought that it was our court system-with its long
tradition of jury trials, adversary proceedings, and highly developed
evidentiary principles-that was "expert" in the simple factfinding
process.
318 OCTOBER TERM, 1972
MARSHALL, J ., dissenting 409U. S.
authorize the Commission to resolve the Silver issue.
The quoted sections permit the Commission to determine
whether the rules made by an exchange are being
enforced. But they do not permit the Commission to
decide whether either the rules, or their application,
serves a legitimate self-regulatory goal, which is the
only relevant issue in the antitrust suit. Thus, it is
entirely possible that although the Chicago Mercantile
Exchange has respected its own rules to the letter, those
rules themselves are impermissible under the Sherman
Act. Similarly, even if the rules are facially permissible,
it is possible that, as applied in this case, they restrain
competition without any offsetting self-regulatory gain.
The mere fact that an exchange is obeying its own rulesthe
only question that 7 U. S. C. §§ 7a (8) and 13a
permit the Commission to answer-does not tell us
whether either the rules or their application meets the
Silver test.
The Secretary is given supplementary power to invalidate
certain exchange rules. But this power, too, is extremely
limited. Title 7 U.S. C. § 12a (7) empowers the
Secretary to "disapprove any bylaw, rule, regulation,
or resolution made, issued or proposed by a contract
market ... which relates to ... trading requirements,
when he finds that such bylaw, rule, regulation, or resolution
violates or will violate any of the provisions of
this chapter, or any of the rules, regulations, or orders
of the Secretary of Agriculture or the commission thereunder."
(Emphasis added.) The "chapter" referred
to is, of course, the Commodity Exchange Act, not
the Sherman Act, and no provision of the Commodity
Exchange Act incorporates Sherman Act principles. It
follows that § 12a (7) does not empower the Secretary
to invalidate exchange rules because they conflict with
antitrust policy.
RICCI v. CHICAGO MERCANTILE EXCHANGE 319
289 MARSHALL, J., dissenting
Moreover, as noted above, the restrictions placed on
the exchanges by the Act are far from pervasive, and the
Secretary's power to invalidate rules is therefore similarly
restricted. Surely, this power does not include the ability
to invalidate any rule that fails to serve a selfregulatory
end. Such a reading of the Act would
mean that Congress thought it had prohibited everything
an exchange might do that would not serve selfregulatory
purposes--a reading that defies common
sense. Thus, if the Secretary were to refuse to invalidate
the rules involved in this action, his decision would only
mean that those rules were not prohibited by any specific
provision of the Commodity Exchange Act. The decision
could in no way be taken to mean that the rule
serves any useful purpose or that it meets the Silver
requirement. 7
III
I do not mean to suggest that the Commission's consideration
of this case is certain to prove totally useless
when the District Court ultimately resumes its deliberations.
Should the Secretary invalidate the rules that
the Commission relies on, for example, his action would
materially aid petitioner, although his claim would still
7 The Silver case itself neatly illustrates this fact. In Silver, the
rule in question provided for the termination of wire connections
with Exchange members without notice or hearing. This Court held
that the failure to provide notice or hearing served no legitimate
self-regulatory goal and therefore held that an antitrust violation
had been made out. Had the Silver case arisen in the context of the
Commodity Exchange Act, the Secretary could not have invalidated
the Exchange rule since no provision of the Act requires an exchange
to hold hearings before it takes disciplinary action. But, of course,
the Secretary's decision not to invalidate the rule would in no way
have changed the Court's ultimate conclusion that the rule served
no valid self-regulatory purpose. Hence, invocation of the Secretary's
primary jurisdiction would have been a useless act.
320 OCTOBER TERM, 1972
MARSHALL, J ., dissenting 409 U.S.
not be conclusively established since the Exchange's
actions might be justified by a legitimate regulatory
purpose, even though the rule relied upon violated a provision
of the Act. Similarly, the Commission may make
findings of fact or statements as to the law within areas
of its expertise which the court might find helpful.
But I had not thought that petitioner need meet the
burden of showing that resort to administrative remedies
would be totally useless before securing adjudication
from a court. Indeed, in virtually every suit involving
a regulated industry, there is something of value that
an administrative agency might contribute if given the
opportunity. But we have never suggested that such
suits must therefore invariably be postponed while the
agency is consulted.
It has been argued that the doctrine of primary jurisdiction
involves a mere postponement, rather than relinquishment
of judicial jurisdiction. See, e. g., 3 K. Davis,
Administrative Law Treatise 3--4 (1958). However, that
observation should not be taken to mean that invocation
of the doctrine therefore imposes no costs. On the contrary,
in these days of crowded dockets and long court
delays, the doctrine frequently prolongs and complicates
litigation. More fundamentally, invocation of the doctrine
derogates from the principle that except in extraordinary
situations, every citizen is entitled to call upon
the judiciary for expeditious vindication of his legal claims
of right. As we have said in a somewhat different context
"due process requires, at a minimum, that absent a
countervamng state interest of overriding significance,
persons forced to settle their claims of right and duty
through the judicial process must be given a meaningful
opportunity to be heard." Boddie v. Connecticut, 401
U.S. 371, 377 (1971). And surely the right to a "meaningful
opportunity to be heard" comprehends within it
the right to be heard without unreasonable delay. This
RICCI v. CHICAGO MERCANTILE EXCHANGE 321
289 MARSHALL, J., dissenting
principle is especially worthy of protection in the antitrust
field where it is unmistakably clear that Congress
has given courts, rather than agencies, the primary duty
to act. Cf. California v. FPC, 369 U. S. 482, 487-----490
(1962).
To be sure, judicial deference to agency jurisdiction
remains important, particularly in those areas where
the responsibilities of judges and administrators meet
and overlap. But the primary jurisdiction doctrine, like
the related exhaustion requirement, must not be "applied
blindly in every case" without "an understanding of its
purposes and of the particular administrative scheme
involved." McKart v. United States, 395 U.S. 185, 193,
201 (1969). Wise use of the doctrine necessitates a
careful balance of the benefits to be derived from utilization
of agency processes as against the costs in complication
and delay. Where the plaintiff has no means of
invoking agency jurisdiction, where the agency rules do
not guarantee the plaintiff a means of participation in
the administrative proceedings, and where the likelihood
of a meaningful agency input into the judicial process is
remote, I would strike a balance in favor of immediate
court action. Since the majority's scale is apparently
differently calibrated, I must respectfully dissent.
322 OCTOBER TERM, 1972
Syllabus 409 u. s.
COUCH V. UNITED STATES ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT
No. 71-889. Argued November 14, 1972-Decided January 9, 1973
Petitioner challenges an Internal Revenue Service (IRS) summons
directing an accountant, an independent contractor with numerous
clients, to produce business records that she had been giving to
him for preparation of her tax returns from 1955 to 1968, when
the summons was issued. The District Court and the Court of
Appeals concluded that the privilege against self-incrimination
asserted by petitioner was not available. Held: On the facts
of this case, where petitioner had effectively surrendered possession
of the records to the accountant, there was no personal compulsion
against petitioner to produce the records. The Fifth
Amendment therefore constitutes no bar to their production by
the accountant, even though the IRS tax investigation may entail
possible criminal as well as civil consequences. Nor does petitioner,
who was aware that much of the information in the
records had to be disclosed in her tax returns, have any legitimate
expectation of privacy that would bar production under either
the Fourth or Fifth Amendment. Pp. 327-336.
449 F. 2d 141, affirmed.
PowELL, J., delivered the opinion of the Court, in which BURGER,
C. J., and BRENNAN, STEWART, WHITE, BLACKMUN, and REHNQUIST,
JJ., joined. BRENNAN, J., filed a concurring opinion, post,
p. 337. DOUGLAS, J., post, p. 338, and MARSHALL, J., post, p. 344,
filed dissenting opinions.
John G. Rocovich, Jr., argued the cause for petitioner.
With him on the briefs was Claude D. Carter.
Lawrence G. Wallace argued the cause for the United
States et al. On the brief were Solicitor General Griswold,
Assistant Attorney General Crampton, Keith A.
Jones, John P. Burke, and John M. Brant.
COUCH v. UNITED STATES 323
322 Opinion of the Court
MR. JUSTICE PowELL delivered the opm1on of the
Court.
On January 7, 1970, the Government filed a petition
in the United States District Court for the Western
District of Virginia, pursuant to 26 U. S. C. §§ 7402 (b)
and 7604 (a) ,1 seeking enforcement of an Internal Revenue
summons in connection with an investigation of
petitioner's tax liability from 1964-1968. The summons
was directed to petitioner's accountant for the production
of:
"All books, records, bank statements, cancelled
checks, deposit ticket copies, workpapers and all
other pertinent documents pertaining to the tax liability
of the above taxpayer." 2
The question is whether the taxpayer may invoke
her Fifth Amendment privilege against compulsory selfincrimination
to prevent the production of her business
and tax records in the possession of her accountant.
1 SEC. 7402, JURISDICTION OF DISTRICT COURTS.
"(b) To enforce summons. If any person is summoned under
the internal revenue laws to a.ppear, to testify, or to produce books,
papers, or other data, the district court of the United States for the
district in which such person resides or may be found shall have
jurisdiction by appropriate process to compel such attendance, testimony,
or production of books, papers, or other data."
SEC. 7604. ENFORCEMENT OF SUMMONS.
"(a) Jurisdiction of district court. If any person is summoned
under the internal revenue laws to appear, to testify, or to produce
books, papers, records, or other data, the United States district court
for the district in which such person resides or is found shall have
jurisdiction by appropriate process to compel such attendance,
testimony, or production of books, papers, records, or other data."
2 App. 59-60.
324 OCTOBER TERM, 1972
Opinion of the Court 409U.S.
Both the District Court 3 and the Court of Appeals for
the Fourth Circuit 4 held the privilege unavailable. We
granted certiorari, 405 U. S. 1038.
Petitioner is the sole proprietress of a restaurant.
Since 1955 she had given bank statements, payroll records,
and reports of sales and expenditures to her
accountant, Harold Shaffer, for the purpose of preparing
her income tax returns. The accountant was not petitioner's
personal employee but an independent contractor
with his own office and numerous other clients who
compensated him on a piecework basis. When petitioner
surrendered possession of the records to Shaffer, she., of
course, retained title in herself.
During the summer of 1969, Internal Revenue Agent
Dennis Groves commenced an investigation of petitioner's
tax returns. After examining her books and records
in Shaffer's office with his permission, Groves found
indications of a substantial understatement of gross income.
Groves thereupon reported the case to the Intelligence
Division of the Internal Revenue Service.
Special Agent Jennings of the Intelligence Division
next commenced a joint investigation with Groves to
determine petitioner's correct tax liability, the possibility
of income tax fraud and the imposition of tax fraud
penalties, and, lastly, the possibility of a recommendation
of a criminal tax violation. Jennings first introduced
himself to petitioner, gave her Miranda warnings
3 The District Court held that "[s]ince, at the time the summorn
was served, the taxpayer, Lillian V. Couch, was not in possession of
the books, records and documents described in the summons, she may
not assert any Fifth Amendment privilege against self-incrimination
as a bar to the enforcement of the snmmon8." App. 6, 11. The
opinion of the District Court (WD Va.) is not reported.
4 The Court of Appeals also noted that the answer to petitioner's
Fifth Amendment contentions lay in the fact that "the records were
not in the intervenor's [taxpayer's] possession but were in the custody
of her accountant," 449 F. 2d 141, 143 (1971).
COUCH v. UNITED STATES 325
322 Opinion of the Court
as required by IRS directive, and then issued the summons
to Shaffer ·5 after the latter refused to let him
see, remove, or microfilm petitioner's records.
When Jennings arrived at Shaffer's office on September
2, 1969, the return day of the summons, to view
the records, he found that Shaffer, at petitioner's request,
had delivered the documents to petitioner's attorney.
Jennings thereupon petitioned the District Court for
enforcement of the summons, and petitioner intervened,
asserting that the ownership of the records warranted
a Fifth Amendment privilege to bar their production."
5 The summons, which is printed in full in App. 59-60, was
issued on August 18, 1969, pursuant to 26 U. S. C. § 7602, which
provides:
EXAMINATION OF BOOKS AND WITNESSES.
"For the purpose of ascertaining the correctness of any return,
making a return where none has been made, determining the liability
of any person for any internal revenue tax or the liability at law
or in equity of any transferee or fiduciary of any person in respect
of any internal revenue tax, or collecting any such liability, the
Secretary or his delegate is authorized-
" (I) To examine any books, papers, records, or other data which
may be relevant or material to such inquiry;
"(2) To summon the person liable for tax or required to perform
the act, or any officer or employee of such person, or any person
having possession, custody, or care of books of account containing
entries relating to the business of the person liable for tax or required
to perform the act, or any other person the Secretary or his
delegate may deem proper, to appear before the Secretary or his
delegate at a time and place named in the summons and to produce
such books, papers, records, or other data, and to give such testimony,
under oath, as may be relevant or material to such inquiry;
and
" ( 3) To take such testimony of the person concerned, under oath,
as may be relevant or material to such inquiry."
6 Petitioner also claimed that enforcement of the summon~ would
violate her Fourth Amendment right to be secure from unreasonable
searches and seizures. We agree with the Government, however,
that "this claim is not further articulated and does not appear to
326 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
I
It is now undisputed that a special agent is authorized,
pursuant to 26 U. S. C. § 7602, to issue an Internal
Revenue summons in aid of a tax investigation with
civil and possible criminal consequences.7 In Donaldson
v. United States, 400 U.S. 517 (1971), the Court upheld
such a summons, noting that:
"Congress clearly has authorized the use of the
summons in investigating what may prove to be
criminal conduct. . . . There is no statutory suggestion
for any meaningful line of distinction, for
civil as compared with criminal purposes, at the
point of a special agent's appearance. . . . To draw
a line where a special agent appears would require
the Service, in a situation of suspected but undetermined
fraud, to forgo either the use of the
summons or the potentiality of an ultimate recommendation
for prosecution. We refuse to draw
that line and thus to stultify enforcement of federal
law." Id., at 535-536.8
The Court in Donaldson noted that the taxpayer there
had attempted to intervene, pursuant to Fed. Rule Civ.
Proc. 24 (a)(2), to bar production of records "in which
the taxpayer has no proprietary interest of any kind,
which are owned by the third person, which are in his
be independent of her Fifth Amendment argument." Brief for
United States 21-22. See part IV, infra.
7 There is clearly the joint civil and possibly criminal investigatory
purpose in the instant case, see supra, at 324.
8 Donaldson cautioned only that the summons be issued in good
faith and prior to a recommendation for criminal prosecution. 400
U. S., at 536. Neither of those conditions is successfully challenged
here.
COUCH v. UNITED STATES 327
322 Opinion of the Court
hands, and which relate to the third person's business
transactions with the ta.xpayer.'' Id., at 523. The
Court quite properly concluded that, under those facts,
no absolute right to intervene existed. Id., at 530-
531. The instant case, however, presents a different
question. Here petitioner does own the business records
which the Government seeks to review and the
courts below did permit her to intervene. The essential
inquiry is whether her proprietary interest further enables
her to assert success£ ully a privilege against compulsory
self-incrimination to bar enforcement of the
summons and production of the records, despite the fact
that the records no longer remained in her possession.
II
The importance of preserving inviolate the privilege
against compulsory self-incrimination has often been
stated by this Court and need not be elaborated. Counselman
v. Hitchcock, 142 U. S. 547 (1892); Malloy v.
Hogan, 378 U. S. 1 (1964); Miranda v. Arizona, 384
U. S. 436 (1966). By its very nature, the privilege is
an intimate and personal one. It respects a private
inner sanctum of individual feeling and thought and
proscribes state intrusion to extract self-condemnation.
Historically, the privilege sprang from an abhorrence of
governmental assault against the single individual accused
of crime and the temptation on the part of the
State to resort to the expedient of compelling incriminating
evidence from one's own mouth. United States
v. White, 322 U. S. 694, 698 (1944). The Court has
thought the privilege necessary to prevent any "recurrence
of the Inquisition and the Star Chamber, even
if not in their stark brutality," Ullmann v. United States,
350 u. s. 422, 428 (1956).
328 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
In Murphy v. Waterfront Comm'n, 378 U. S. 52, 55
(1964) , the Court articulated the policies and purposes
of the privilege:
" [ 01 ur unwillingness to subject those suspected
of crime to the cruel trilemma of self-accusation,
perjury or contempt; our preference for an
accusatorial rather than an inquisitorial system of
criminal justice; our fear that self-incriminating
statements will be elicited by inhumane treatment
and abuses; our sense of fair play which dictates
'a fair state-individual balance by requiring the
government ... in its contest with the individual
to shoulder the entire load,' . . . our respect for
the inviolability of the human personality and of
the right of each individual 'to a private enclave
where he may lead a private life' . . .. "
It is important to reiterate that the Fifth Amendment
privilege is a personal privilege: it adheres basically
to the person, not to information that may incriminate
him. As Mr. Justice Holmes put it: "A party
is privileged from producing the evidence but not from
its production." Johnson v. United States, 228 U. S.
457, 458 (1913). The Constitution explicitly prohibits
compelling an accused to bear witness "against himself";
it necessarily does not proscribe incriminating statements
elicited from another. Compulsion upon the
person asserting it is an important element of the privilege,
and "prohibition of compelling a man ... to be
witness against himself is a prohibition of the use of
physical or moral compulsion to extort communications
from him," Holt v. United States, 218 U. S. 245, 252- 253
(1910) (emphasis added). It is extortion of information
from the accused himself that off ends our sense
of justice.
COUCH v. UNITED STATES 329
322 Opinion of the Court
In the case before us the ingredient of personal compulsion
against an accused is lacking. The summons
and the order of the District Court enforcing it are
directed against the accountant.9 He, not the taxpayer,
is the only one compelled to do anything. And
the .accountant makes no claim that he may tend
to be incriminated by the production. Inquisitorial
pressure or coercion against a potentially accused person,
compelling her, against her will, to utter self-condemning
words or produce incriminating documents is absent.
In the present case, no "shadow of testimonial compulsion
upon or enforced communication by the accused"
is involved. Schmerber v. California, 384 U. S. 757,
765 (1966).
The divulgence of potentially incriminating evidence
against petitioner is naturally unwelcome. But petitioner's
distress would be no less if the divulgence came
not from her accountant but from some other third
party with whom she was connected and who possessed
substantially equivalent knowledge of her business affairs.
The basic complaint of petitioner stems from the fact
of divulgence of the possibly incriminating information,
not from the manner in which or the person from whom
it was extracted. Yet such divulgence, where it does not
result from coercion of the suspect herself, is a necessary
part of the process of law enforcement and tax
investigation.
9 Technically the order to produce the records was directed to
petitioner's attorney since, after the summons was served upon the
accountant, he ignored it and surrendered the records to the attorney.
But constitutional rights obviously cannot be enlarged by this kind
of action. The rights and obligations of the parties became fixed
when the summons was served, and the transfer did not alter them.
See United States v. Zakutansky, 401 F. 2d 68, 72 (CA7 1968), cert.
denied, 393 U. S. 1021 (1969); United States v. Lyons, 442 F. 2d
1144 (CAl 1971).
330 OCTOBER TERM, 1972
Opinion of the Court 409U.S.
III
Petitioner's reliance on Boyd v. United States, 116
U. S. 616 (1886), is misplaced. In Boyd, the person
asserting the privilege was in possession of the written
statements in question. The Court in Boyd did hold
that "any forcible and compulsory extortion of a man's
own testimony or of his private papers to be used as
evidence to convict him of crime," violated the Fourth
and Fifth Amendments. Id., at 630. That case did
not, however, address or contemplate the divergence
of ownership and possession, 10 and petitioner concedes
that court decisions applying Boyd have largely been
in instances where possession and ownership conjoined,11
see, e. g., Hill v. Philpott, 445 F. 2d 144 (CA7 1971);
United States v. Judson, 322 F. 2d 460, 63-2 USTC ,r 9658
(CA9 1963).12 In Boyd, the production order was directed
against the owner of the property who, by responding,
would have been forced "to produce and
authenticate any personal documents or effects that
might incriminate him." United States v. White, 322
10 A later Court commenting on the Boyd privilege noted that
"the papers and effects which the privilege protects must be the
private property of the person claiming the privilege, or at least in
his possession in a purely personal, capacity." United State.s v.
White, 322 U. S. 694, 699 (1944). (Emphasis added.)
11 Brief for Petitioner 13-14.
12 See also United States v. Cohen, 388 F. 2d 464, 468 (CA9 1967) 1
where the court, in upholding the right of a possessor, nonowner. to
assert the privilege, noted that "it is possession of papers sought uy
the government, not ownership, which sets the stage for exercise of the
governmental compulsion which it is the purpose of the privilege
to prohibit." Though the instant case concerns the scope of the
privilege for an owner, nonpossessor, the Ninth Circuit's linkage of
possession to the purposes served by the privilege was appropriate.
We do not, of course, decide what qualifies as rightful possession
enabling the possessor to assert the privilege.
COUCH v. UNITED STATES 331
322 Opinion of the Court
U. S., at 698. But we reiterate that in the instant case
there was no enforced communication of any kind from
any accused or potential accused.
Petitioner would, in effect, have us read Boyd to
mark ownership, not possession, as the bounds of the
privilege,13 despite the fact that possession bears the
closest relationship to the personal compulsion forbidden
by the Fifth Amendment. To tie the privilege against
self-incrimination to a concept of ownership would be
to draw a meaningless line. It would hold here that
the business records which petitioner actually owned
would be protected in the hands of her accountant, while
business information communicated to her accountant
by letter and conversations in which the accountant took
notes, in addition to the accountant's own workpapers
and photocopies of petitioner's records, would not be
subject to a claim of privilege since title rested in the
accountant. Such a holding would thus place unnecessary
emphasis on the form of communication to an
accountant and the accountant's own working methods,
while diverting the inquiry from the basic purposes
of the Fifth Amendment's protections.
Other precedents debated by the parties lend no support
to petitioner's contention that ownership of documents
should determine the availability of the privilege.14
1 3 Brief for Petitioner 11-17.
14 Burdeau v. McDowell, 256 U. S. 465 (1921), also debated and
cited in the briefs, held that the Government may retain for use
against their owner in a criminal proceeding incriminating documents
which were stolen by private individuals, without any governmental
knowledge or complicity, and turned over to the Government.
The Court, in denying the owner's privilege, alluded primarily
to the absence of any governmental compulsion against the accused,
the precise factor considered in the instant case. It is true, as
petitioner argues, that the case turns somewhat on a discussion of
governmental versus private compulsion and invasion, but it is
332 OCTOBER TERM, 1972
Opinion of the Court 409 u. s.
In Perlman v. United States, 247 U. S. 7 (1918), the
Court held the privilege unavailable to a party seeking
to suppress the admission of incriminating documents
and exhibits before a grand jury. The movant's expectations
of privacy in the exhibits had, according to the
Court, been destroyed when he voluntarily surrendered
the exhibits as evidence in a patent infringement case
he had earlier brought in Federal District Court. Petitioner's
claims of ownership failed to overcome this
fact. The Court noted pertinently:
"But Perlman insists that he owned the exhibits
and appears to contend that his ownership
exempted them from any use by the Government
without his consent. The extent of the insistence
is rather elusive of measurement. It seems to be
that the owner of property must be considered as
having a constructive possession of it wherever it
equally true that the Court in Burdeau failed to find any impermissible
public compulsion on the owner absent his possession:
"We know of no constitutional principle which requires the Government
to surrender the papers under such circumstances. Had it
learned that such incriminatory papers, tending to show a violation
of federal law, were in the hands of a person other than the accused 1
it having had no part in wrongfully obtaining them, we know of
no reason why a subpoena might not issue for the production of the
papers as evidence. Such production would require no unreasonable
search or seizure, nor would it amount to compelling the accused
to testify against himself." Id., at 476.
In Johnson v. United States, 228 U.S. 457 (1913), the Court held
that the books and records of a bankrupt transferred to a trustee in
bankruptcy could be used as evidence against the bankrupt in a
prosecution for concealing money from the trustee. Unlike the
instant ca.se, both title and possession passed in that transfer and
the records were, in one sense, "published" by it. But the Court,
in denying the privilege, recognized that the transfer also succeeded
in removing the important element of personal compulsion against
the accused, id., at 459, just as, in this case, the nature of the divestment
of possession did.
322
COUCH v. UNITED STATES 333
Opinion of the Court
be and in whosesoever hands it be, and it is always,
therefore, in a kind of asylum of constitutional
privilege. And to be of avail the contention must
be pushed to this extreme. It is opposed, however,
by all the cited cases. They, as we have said, make
the criterion of immunity not the ownership of
property but the 'physical or moral compulsion'
exerted." Id., at 15.
Petitioner argues, nevertheless, that grave prejudice
will result from a denial of her claim to equate ownership
and the scope of the privilege. She alleges that "[i]f
the IRS is able to reach her records the instant those
records leave her hands and are deposited in the hands
of her retainer whom she has hired for a special purpose
then the meaning of the privilege is lost." 15 That
is not, however, the import of today's decision. We
do indeed believe that actual possession of documents
bears the most significant relationship to Fifth Amendment
protections against governmental compulsions upon
the individual accused of crime. Yet situations may
well arise where constructive possession is so clear or the
relinquishment of possession is so temporary and insignificant
as to leave the personal compulsions upon
the accused substantially intact.10 But this is not the
15 Brief for Petitioner 13. At oral argument petitioner raised a
similar concern:
"The Government goes so far as to contend, I believe, with their
theory that any time it is out of your actual physical possession
it is subject to subpoena . . . . If I were helping you across Constitution
Avenue by carrying your briefcase, the Government holds
that they could hand me a summons in the middle of Constitution
Avenue and seize your documents to use against you in a f'.riminal
trial." Tr. of Oral Arg. 14.
16 See, e. g., Schwimmer ,v. United States, 232 F. 2d 855 (CA8
1956), which involved an attorney's partially successful motion to
quash two subpoenas duces tecum issued in a grand jury proceeding
against a corporation where the attorney had stored his office files.
334 OCTOBER TERM, 1972
Opinion of the Court 409 u. s.
case before us. Here there was no mere fleeting divestment
of possession: the records had been given to
this accountant regularly since 1955 and remained in
his continuous possession until the summer of 19-69 when
the summons was issued.11 Moreover, the accountant
himself worked neither in petitioner's office nor as her
employee.18 The length of his possession of petitioner's
records and his independent status confirm the belief that
petitioner's divestment of possession was of such a char-
See also United States v. Guterma, 272 F. 2d 344 (CA2 1959), concerning
the storage of taxpayer's personal records in a safe in offices
of a corporation which the taxpayer had served as Chairman of the
Board. Only the taxpayer and an indicted co-defendant knew the
combination of the safe, and the corporation had no access to it.
The Court of Appeals upheld the taxpayer's assertion of Fifth
Amendment privilege as to his personal records in the face of a grand
jury subpoena directed to the corporation.
Petitioner argues these cases support her position (Brief for Petitioner
14-15); the Government argues they can be distinguished
from the instant case as involving mere custodial safekeeping of
records, not disclosure of their information to a third person (Brief
for United States 21). We refrain from judging the merits of such
distinctions today.
17 Tr. of Oral Arg. 31.
18 As we noted, supra, at 324, his status is that of an independent
contractor. He actually did "very little work for the petitioner,"
had many other clients, and was compensated by the job. Tr. of
Oral Arg. 8.
This is a significant point. The Government noted in oral
argument:
"In the Internal Revenue Service practice, so long as the taxpayer
has retained possession of the records and they are being used only
by his full-time employees or others on the taxpayer's premises, without
the taxpayer having relinquished possession and control of the
records, we ordinarily in those situations issue the summon,; to the
taxpayer, because it is the taxpayer who has the dominion over the
records and the authority to return the summons. And if the taxpayer
chooses to plead the privilege against self-incrimination, that
is up to the taxpayer." Tr. of Oral Arg. 30.
COUCH v. UNITED STATES 335
322 Opinion of the Court
acter as to disqualify her entirely as an object of any
impermissible Fifth Amendment compulsion.
IV
Petitioner further argues that the confidential nature
of the accountant-client relationship and her resulting
expectation of privacy in delivering the records protect
her, under the Fourth and Fifth Amendments, from
their production. Although not in itself controlling, we
note that no confidential accountant-client privilege
exists under federal law, and no state-created privilege
has been recognized in federal cases, Falsone v. United
States, 205 F, 2d 734 (CA5 1953), cert. denied, 346
U. S. 864; Gariepy v. United States, 189 F. 2d 459,
463-464 (CA6 1951); Himmelfarb v. United States,
I 75 F. 2d 924, 939 (CA9 1949'), cert. denied, 338
U. S. 860; Olender v. United States, 210 F. 2d 795, 806
(CA9 1954). Nor is there justification for such a privilege
where records relevant to income tax returns are
involved in a criminal investigation or prosecution. In
Boyd, a pre-income tax case, the Court spoke of protection
of privacy, 116 U. S., at 630, but there can be little
expectation of privacy where records are handed to an
accountant, knowing that mandatory disclosure of much
of the information therein is required in an income tax
return. What information is not disclosed is largely
in the accountant's discretion, not petitioner's. Indeed,
the accountant himself risks criminal prosecution if he
willfully assists in the preparation of a false return.
26 U.S. C. § 7206 (2). His own need for self-protection
would often require the right to disclose the information
given him. Petitioner seeks extensions of constitutional
protections against self-incrimination in the
very situation where obligations of disclosure exist and
under a system largely dependent upon honest selfreporting
even to survive. Accordingly, petitioner here
336 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
cannot reasonably claim, either for Fourth 19 or Fifth
Amendment purposes, an expectation of protected privacy
or confidentiality.
V
The criterion for Fifth Amendment immunity remains
not the ownership of property but the " 'physical or moral
compulsion' exerted." Perlman, 247 U. S., at 15. We
hold today that no Fourth or Fifth Amendmtmt claim can
prevail where, as in this case, there exists no legitimate
expectation of privacy and no semblance of governmental
compulsion against the person of the accused.20
It is important, in applying constitutional principles,
to interpret them in light of the fundamental interests
of personal liberty they were meant to serve. Respect
for these principles is eroded when they leap their
proper bounds to interfere with the legitimate interest
of society in enforcement of its laws and collection of
the revenues.
The judgment of the Court of Appeals is
Affirmed.
19 See n. 6, supra. The summons satisfied the requirements in
United States v. Powell, 379 U. S. 48, 57-58 (1964), and, as explained
above, the neressary expectation of privacy to launch a valid
Fourth Amendment rlaim does not exist. Katz v. United States, 389 u. s. 347 (1967).
20 The dissenting opinion of MR. JusTICE MARSHALL implies that
the Court has created a "bright-line rule that no constitutional right
of petitioner is violated by enforcing a summons of papers not in her
possession." Post, at 344. This implication does not reflect accurately
the position of the Court. Indeed, it ignores the language
of the Court, supra, at 333- 335, and nn. 15--18. We do indeed attach
constitutional importance to possession, but only because of its close
relationship to those personal compulsions and intrusions which the
Fifth Amendment forbids. Yet, contrary to any intimation in the
dissent, we do not adopt any per se rule. We also decline to conjecture
broadly on the significance of possession in cases and circumstances
not before this Court.
COUCH v. UNITED STATES 337
322 BRENNAN, J., concurring
MR. JusTICE BRENNAN, concurring.
I join the opinion of the Court on the understanding
that it does not establish a per se rule defeating a claim
of Fifth Amendment privilege whenever the documents
in question are not in the possession of the person claiming
the privilege. In my view, the privilege is available
to one who turns records over to a third person for
custodial safekeeping rather than disclosure of the information,
United States v. Guterma, 272 F. 2d 344 (CA2
1959), cf. Schwimmer v. United States, 232 F. 2d 855
(CA8 1956); to one who turns records over to a third
person at the inducement of the Government, Stuart v.
United States, 416 F. 2d 459 (CA.5 1969); to one who
places records in a safety deposit box or in hiding; and
to similar cases where reasonable steps have been taken
to safeguard the confidentiality of the contents of the
records.* The privilege cannot extend, however, to the
protection of a taxpayer's records conveyed to a retained
accountant for use in preparation of an income tax
return, where the accountant is himself obligated to prepare
a complete and lawful return. 26 U. S. C. § 7206
*In some of these instances, to be sure, the prrson claiming the
privilege would not himself have been the subject of direct Government
compulsion. And there is no doubt that the Fifth Amendment
is concerned solely with compulsory self-incrimination. But surely
the availability of the Fifth Amendment privilege cannot depend
on whether or not the owner of the documents is compelled personally
to turn the documents over to the Government. If private, testimonial
documents held in the owner's own possession are privileged
under the Fifth Amendment, then the Government cannot nullify
that privilege by finding a way to obtain the documents without
requiring the owner to take them in hand and personally present
them to the Government agents. Where the Government takes
private records from, for example, a safety deposit box against the
will of the owner of the documents, the owner has been compelled,
in my view, to incriminate himself within the meaning of the Fifth
Amendment.
338 OCTOBER TERM, 1972
DoUGLAS, J., dissenting 409 U.S.
(2). It is clear on the facts of this case that the taxpayer
has voluntarily removed these records from that
"'private enclave where [she] may lead a private
life ... ,'" Murphy v. Waterfront Comm1 n, 378 U. S.
52, 55 (1964), quoting United States v. Grunewald, 233
F. 2d 556, 581-582 (CA2 1956) (Frank, J., dissenting),
rev'd, 353 U. S. 391 (1957), and for that reason I would
affirm the judgment below.
MR. JUSTICE DOUGLAS, dissenting.
I cannot agree with the majority that the privilege
against self-incrimination was not available to the petitioner
merely because she did not have possession of
the documents in question and was not herself subject
to compulsory process. The basic concerns which, in
my opinion, underlie the privilege are more subtle and
far-reaching than mere aversion to the methods of the
Inquisition and the Star Chamber and their modern
counterparts.1 The decision today sanctions yet another
tool of the ever-widening governmental invasion and
oversight of our private lives. As I urged in dissent in
Warden v. Hayden, 387 U.S. 294, 325, without the right
of privacy "the Fourth Amendment and the Fifth are
ready instruments for the police state that the Framers
sought to avoid."
I
By looking solely to the historical antecedents of the
privilege and focusing on "the ingrec;ierit of personal
compulsion," the majority largely ignores the interplay
1 This is not to say, of course, that we must not be acutely alert
to any "recurrence of the Inquisition and the Star Chamber, even
if not in their stark brutality." Ullmann v. United States, 350 U. S.
422,428 (1956). See, e.g., Miranda v. Arizona, 384 U.S. 436 (1966).
COUCH v. UNITED STATES 339
322 DouGLAs, J., dissenting
of the fundamental values protected by the Fourth and
Fifth Amendments. As early as 1886, the Court recognized
that issues often cannot be pigeonholed within
one amendment or the other, thereby foreclosing consideration
of related policies. Boyd v. United States, 116
U. S. 616. In dealing with the compulsory production
of a private paper for use in a forfeiture proceeding, the
Court stated:
"The principles laid down [in Entick v. Carrington,
19 How. St. Tr. 1029, 95 Eng. Rep. 807] affect
the very essence of constitutional liberty and
security. . . . [TJ hey apply to all invasions on the
part of the government and its employes, of the
sanctity of a man's home and the privacies of
life. It is not the breaking of his doors, and the
rummaging of his drawers, that constitutes the essence
of the offence; but it is the invasion of his
indefeasible right of personal security, personal liberty
and private property, where that right has never
been forfeited by his conviction of some public offence.
. . . Breaking into a house and opening boxes
and drawers are circumstances of aggravation; but
any forcible and compulsory extortion of a man's
own testimony or of his private papers to be used
as evidence to convict him of crime or to forfeit
his goods, is within the condemnation of that judgment.
In this regard the Fourth and Fifth Amendments
run almost into each other." Id., at 630.
Although the subpoena in Boyd was directed at the person
asserting the privilege, that fact cannot be allowed
to obscure the basic thrust of the Court's reasoning; the
Fourth and Fifth Amendments delineate a "sphere of
privacy" which must be protected against governmental
340 OCTOBER TERM, 1972
DouaLAs, J., dissenting 409 U.S.
intrusion.2 We confirmed in Murphy v. Waterfront
Comm'n, 378 U. S. 52, 55, that "our respect for the
inviolability of the human personality and of the right
of each individual 'to a private enclave where he may
lead a private life' " is a fundamental policy underlying
the Fifth Amendment.
The majority contends, however, that petitioner cannot
reasonably claim "an expectation of protected privacy
or confidentiality." The reasons asserted for this position
overlook the nature of the accountant-client relationship.
The accountant, an agent for a specified purpose-
i. e., completing the petitioner's tax returns-bore
certain fiduciary responsibilities to petitioner. One of
those responsibilities was not to use the records given
him for any purpose other than completing the returns.
Under these circumstances, it hardly can be said that by
giving the records to the accountant, the petitioner committed
them to the public domain.3
2 The Court in Boyd also stated that it was unable "to perceive
that the seizure of a man's private books and papers to be used
in evidence against him is substantially different from compelling
him to be a witness against himself. We think it is within the
clear intent and meaning of those terms." Id., at 633. Subsequent
decisions, however, have refused to apply the privilege to
bar the introduction of "testimonial" evidence where the author
no longer has any property rights or a valid claim to confidentiality
and privacy. See, e. g., Perlman v. United States, 247 U. S. 7;
Johnson v. United States, 228 U. S. 457. Obviously, the Court
is not disposed to reconsider those decisions as they apply to instances
where the author has not knowingly and intelligently waived
his privilege against self-incrimination. In any event, I do not
believe it is necessary to reach that issue here because, as I will
discuss below, I believe that the petitioner has a valid claim to
confidentiality and privacy.
3 The majority states that what information to disclose in the
petitioner's tax returns is largely in the accountant's discretion.
Therefore, it argues, the accountant's own need for self-protection
COUCH v. UNITED STATES 341
322 DouGLAS, J., dissenting
I defined what I believe to be the boundaries of this
right to privacy in War,den v. Hayden, 387 U. S., at 323:
"The constitutional philosophy is, I think, clear.
The personal effects and possessions of the individual
(all contraband and the like excepted) are sacrosanct
from prying eyes, from the long arm of the law, from
any rummaging by police. Privacy involves the
choice of the individual to disclose or to reveal what
he believes, v,,hat he thinks, what he possesses. The
article may be a nondescript work of art, a manuscript
of a book, a personal account book, a diary,
invoices, personal clothing, jewelry, or whatnot.
Those who wrote the Bill of Rights believed that
every individual needs both to communicate with
others and to keep his affairs to himself. That dual
aspect of privacy means that the individual should
have the freedom to select for himself the time and
circumstances when he will share his secrets with
others and decide the extent of that sharing."
The majority, by the seeming implications of its opinion,
has cleared the way for investigatory authorities
to compel disclosure of facets of our life we heretofore
considered sacrosanct. We are told that "situations
may well arise where ... the relinquishment of possession
is so temporary and insignificant as to leave the personal
compulsions upon the accused substantially intact."
I can see no basis in the majority opinion, however,
for stopping short of condemning only those intrusions
resting on compulsory process against the author of the
thoughts or documents. Are we now to encourage med-
( to answer a possible charge of assisting in the preparation of a
false return) would often require the right to disclose the information
given him. It may be that the accountant's fiduciary responsibilities
must yield in this event, but that was not the case here.
342 OCTOBER TERM, 1972
DouGLAs, J., dissenting 409 u. s.
dling by the Government and ever more ingenious methods
of obtaining access to sought-after materials? The
premium now will be on subterfuge, on bypassing the
master of the domain by spiriting the materials away
or compelling disclosure by a trusted employee or confidant/
Inevitably, this will lead those of us who cherish
our privacy to refrain from recording our thoughts or
trusting anyone with even temporary custody of documents
we want to protect from public disclosure. In
short, it will stultify the exchange of ideas that we have
considered crucial to our democracy.
II
The decision may have a more immediate impact
which the majority does not consider. Our tax laws have
become so complex that very few taxpayers can afford
the luxury of completing their own returns without professional
assistance. If a taxpayer now wants to insure
the confidentiality and privacy of his records, however,
he must forgo such assistance. To my mind, the majority
thus attaches a penalty to the exercise of the privilege
against self-incrimination. It calls for little more discussion
than to note that we have not tolerated such
penalties in the past. Cf. Uniformed Sanitation Men
v. Commissioner of Sanitation, 392 U.S. 280; Gardner v.
Broderick, 392 U. S. 273.
4 The majority notes that "the accountant himself worked neither
in petitioner's office nor as her employee." I cannot see how that
factor bears on whether the "ingredient of personal compulsion
against [the] accused" is present, or whether the accountant was a
confidant. The majority would seem to suggest, however, that
petitioner, because her business did not call for, or because she could
not afford, a full-time accountant, deserves less protection under
the Fifth Amendment than a taxpayer more fortunately situated.
COUCH v. UNITED STATES 343
322 Douaus, J., dissenting
III
Thus, I would reverse the decision below, finding that
the subpoena violated both petitioner's Fourth and Fifth
Amendment rights." I offer one more observation. The
majority cautions that respect for our constitutional
principles is eroded "when they leap their proper bounds."
We should not be swayed by the popular cry for a
formalistic and narrow interpretation of those provisions
which safeguard our fundamental rights.
It is a Constitution we are construing, not a legislative-
judicial code of conduct that suits our private value
choices or that satisfies the appetite of prosecutors for
more and more shortcuts that avoid constitutional
barriers. Those constitutional barriers and the judicial
traditions supporting them are the sources of the
privacy we value so greatly. That privacy "protects
people," not places, under the Fourth Amendment, Katz
v. United States, 389 U. S. 347, 353. And, as already
noted, Boy,d v. United States, su'f)Ta, held that when it
comes to the "forcible and compulsory extortion of a
man's own testimony or of his private papers to be used
as evidence to convict him of crime or to forfeit his
goods," that is an illustration of the manner in which
"the Fourth and Fifth Amendments run almost into
each other." 116 U. 8., at 630.
One's privacy embraces what the person has in his
home, his desk, his files, and his safe as well as what he
5 In holding that "mere evidence" is not protected from seizure
under the Fourth Amendment, the Court expressly refused to consider
"whether there are items of evidential value whose very nature
precludes them from being the object of a reasonable search and
seizure." Warden v. Hayden, 387 U. S. 294, 303. The answer to
that question was clear to me when I dissented in that case and
remains clear to me now.
344 OCTOBER TERM, 1972
MARSHALL, J., dissenting 409U.S.
carries on his person. It also has a very meaningful
relationship to what he tells any confidant-his wife, his
minister, his lawyer, or his tax accountant. The constitutional
fences of law are being broken down by an
ever-increasingly powerful Government that seeks to
reduce every person to a digit.
MR. JUSTICE MARSHALL, dissenting.
I cannot agree with the majority that the Constitution
permits the Government to enforce the summons
issued in this case. The opinion of the Court fails to
articulate the basis of its result in a way that addresses
the range of constitutional concerns involved.1 The majority
seems to create a bright-line rule that no constitutional
right of petitioner is violated by enforcing a
summons of papers not in her possession. Like MR. Jus-
TICE BRENNAN, I could not accept such a rule.
However, the majority blurs the line by suggesting that
temporary relinquishment of possession presents a different
case, see ante, at 333. The Court expressly
disclaims the proposition that possession alone is determinative
of the availability of constitutional protection
for petitioner's papers. Ante, at 336, and 333 n. 16. But
neither the opinion of the Court nor the concurring opinion
of MR. JUSTICE BRENNAN supplies a clearly articulated
constitutional basis for the rule adopted. If the
considerations that underlie the Court's expressed concerns
are stated explicitly, I think it is clear that the
Court has failed to apply correctly the standards which
1 In part this results from the conflation of petitioner's claims
under the Fourth and Fifth Amendments. See ante, at 325-326, n. 6.
But the constitutional claims are complicated, and their articulation
is difficult. The opinion of the Court does not, I believe, present an
acceptable rationale for its holding.
COUCH v. UNITED STATES 345
322 MARSHALL, J., dissenting
it appears to find relevant.2 I agree, of course, that
possession does not define the limits of the protection
that the Constitution affords to private papers, and add
these comments to indicate how I would treat claims like
petitioner's.
A. I begin with Boyd v. United States, 116 U. S. 616
( 1886), whose continuing vitality is indicated by the
majority's effort to distinguish it. That was a suit for
the forfeiture of 35 cases of plate glass alleged to have
been illegally imported. In the course of the forfeiture
proceeding, the Government introduced into evidence an
invoice of a prior shipment. The defendants objected
on the ground that the use of the invoice violated their
rights under the Fourth and Fifth Amendments, because
the invoice was a private paper secured by a
subpoena. This Court found a violation of both
amendments.
One might interpret Boyd as holding that the Fifth
Amendment prohibits the use of private papers in a
criminal proceeding over the author's objection. The
words of the Fifth Amendment surely can be read in
that way. The use of the papers over objection "compel
[ s the author] in [ a J criminal case to be a witness
against himself." The compulsion occurs when the
paper is introduced over objection, not when the paper
is written or subpoenaed.
2 It may be that everything in this opmmn is implicit in the
opinion of the Court. The majority recognizes the importance of
the purposes of the transfer, ante, at 334, the steps taken to protect
the privacy of the records, ibid., and the ordinary operations of
the recipient, ibid. I would be pleased to discover that we had
no serious disagreements about the guiding principles in this
case, but only a relatively minor disagreement about its proper
disposition.
346 OCTOBER TERM, 1972
MARSHALL, J., dissenting 409 U.S.
But that interpretation has not been adopted by this
Court. See, e. g., Perlman v. United States, 247 U. S.
7 (1918); Johnson v. United States, 228 U.S. 457 (1913).
And in some possible cases, consistent application of
that interpretation of Boyd might lead to results at odds
with common sense.3
Another interpretation of Boyd has been accepted by
this Court and by the leading commentators. See, e. g.,
Curcio v. United States, 354 U. S. 118, 125 (1957); 8
J. Wigmore, Evidence § 2264 (McNaughton rev. 1961);
C. McCormick, Evidence §§ 126-127 (2d ed. 1972).
When a party produces potentially incriminating evidence
in response to a summons or subpoena, he implicitly testifies
that the evidence he brings forth is in fact the
evidence demanded. "The custodian's act of producing
books or records in response to a subpoena duces tecum
3 For example, suppose a noted criminal lawyer walked into a
police station and presented the desk sergeant with his handwritten
confession to the arson of his neighbor's house. Boyd v. United
States, 116 U. S. 616 (1886), read as suggested in the text, would
bar the use of that document if, at trial, the defendant objected.
That case might be analyzed as a problem of waiver: did the
manner in which the author revealed the paper indicate a knowing
decision to surrender his rights? The cases that stand in the
way of the simplest interpretation of Boyd might be treated similarly.
But the "waiver" in those cases was not a waiver in the
ordinary sense. In Johnson, for example, the defendant had been
indicted for concealing money from his trustee in bankruptcy. The
Bankruptcy Act required that he turn over his books to the trustee,
and the books were used against Johnson in the criminal case. The
transfer of the books was required if Johnson was to have the benefits
of bankruptcy available to him. To make that transfer a
waiver of Fifth Amendment rights would be to impose an unconstitutional
condition.
Still, even if "waiver" is an inappropriate term here, the
underlying notion that someone may behave in a way that indicates
a relinquishment of his constitutional rights is sound. I rely on it
as the proper term to use in analyzing claims like petitioner's.
See infra, at 350.
COUCH v. UNITED STATES 347
322 MARSHALL, J., dissenting
is itself a representation that the documents produced
are those demanded by the subpoena. Requiring the
cust.odian to identify or authenticate the documents for
admission in evidence merely makes explicit what is
implicit in the production itself." Curcio v. United
States, 354 U. S., at 125.
The potential for incrimination inherent in the act of
production is illustrated by this case. The summons
here called for the production of "[a]ll books ... pertaining
to the tax liability of" petitioner. Had the summons
been directed to her, she would have implicitly testified,
on producing some papers, that these were "all" the
records sought. The Internal Revenue agents believed
that she ma.y have understated her income. Their belief
might have been confirmed on examining all of her
records, but not on examining only some of them. The
records could then be used in a subsequent criminal
prosecution for underreporting her income. If she produced
only some of her books, though, she would be
liable for contempt of the order. The Fifth Amendment
was designed to prevent the Government from placing
potential defendants in such a position. Cf. Murphy v.
Waterfront CGmm'n, 378 U. S. 52, 55 (1964).
These considerations operate only against the person
in possession of the papers, as the majority correctly
points out. In this case, the accountant to whom the
summons was directed made no claim that turning
over the records he has might incriminate him, for example,
by exposing him to the charge that he had perjured
himself in representing that the return prepared
for petitioner was correct to the best of his know ledge
and belief, 26 U. S. C. § 6065, or that he had knowingly
aided in the preparation of a false return, 26 U. S. C.
§ 7206 (2). Nor could he be held to have represented
more than that he had produced all the records in his
possession.
348 OCTOBER TERM, 1972
MARSHALL, J., dissenting 409 U.S.
However, the accepted interpretation of Boyd has an
odd sound to it. Boyd emphasized that the invoice there
was a private paper written by the defendants. Yet the
accepted interpretation of the case makes the authorship
and contents of the paper largely irrelevant. What
is incriminating about the production of a document in
response to an order is not its contents, as one might
have thought, but the implicit authentication that the
document is the one named in the order:' If that is
the only way rationally to interpret Boyd, it might make
sense to do so.5 But it makes better sense to devise
a rationale that focuses on the obvious concern of the
case, the desire of the author of documents to keep them
private.
B. This Court also held in Boy.d that the Fourth
Amendment was violated. Indeed, much of the opinion
is devoted to a discussion of Entick v. Carrington, 19
How. St. Tr. 1029, 95 Eng. Rep. 807 (1765), a landmark
in the development of the prohibition against unreasonable
searches and seizures. Here, too, the doctrinal
basis of the holding is unclear, in part because the Court
4 Another way of seeing the oddity of this interpretation is to
consider whether the person who produces documents other than
those called for has committed perjury. Perhaps he has, but the
perjury is an unusual one. Yet perjury is the third horn of the
"cruel trilemma" that the Fifth Amendment was designed to
eliminate.
5 Another interpretation of Boyd makes ownership crucial. A
person who owns something has the right to exercise a great deal
of control over it. When the Government seizes it, the owner is
compelled to give up that right. This interpretation is consistent
with the observation in Boyd that contraband and instrumentalities
of crime can be seized because the Government has a superior
property right in them. However, this interpretation runs into the
same difficulties as the accepted one; in particular, it makes the
authorship and content of the property irrelevant. And the
emphasis on property rights in this area has since been abandoned.
See, e. g., Warden v. Hayden, 387 U. S. 294 (1967).
COUCH v. UNITED STATES 349
322 MARSHALL, J., dissent.ing
correctly perceived that " [ i] n this regard the Fourth and
Fifth Amendments run almost into each other." 116
U. S., at 630.
Boyd suggested that the Fourth Amendment prohibited
the seizure of "mere evidence." 116 U. S., at
623-624. See Gouled v. United States, 255 U. S. 298
(1921). Searches for mere evidence were unreasonable
even if such searches were sure to produce evidence leading
to a conviction. The precise contours of the ''mere
evidence" rule were shaped by concepts of property law
which we now see as outmoded. See Warden v. Hayden,
387 U. S. 294, 303-307 ( 1967). But those concepts
attempted to define, however imprecisely, a sphere of
personal privacy that the Government could not enter
over objection. See, e. g., Gouled v. United States, supra,
at 304. And when this Court repudiated the "mere
evidence" rule, it suggested that Fourth Amendment
limitations might be devised precisely in terms of the
interest in privacy, prohibiting the seizure of "items of
evidential value whose very nature precludes them from
being the object of a reasonable search and seizure."
Warden v. Hayden, 387 U. S., at 303. Cf. Stanford v.
Texas, 379 U. S. 476, 485 (1965).
The Fourth and Fifth Amendments do not speak to
totally unrelated concerns. Cf. Griswold v. Connecticut,
381 U. S. 479, 484--485 (1965); Murphy v. Waterfront
Com.m'n, 378 U. S., at 55. Both involve aspects of
a person's right to develop for himself a sphere of personal
privacy. Where the Amendments "run almost into
each other," I would prohibit the Government from
entering.6 The problem, as I see it, is to develop criteria
6 I recognize that there is an alternate view, that unless a Fifth
Amendment privilege is involved, the Fourth Amendment authorizes
intrusion when it is not unreasonable. However, this Court has
held that increasingly severe standards of probable cause are necessary
to justify increasingly intrusive searches. Cf. Camara v.
350 OCTOBER TERM, 1972
MARSHALL, J., dissenting 409U.S.
for determining whether evidence sought by the Government
lies within the sphere of activities that petitioner
attempted to keep private. Cf. Katz v. United
States, 389 U. S. 347, 351-352 (1967).
The first criterion, as Hayden suggests, is the nature
of the evidence. Diaries and personal letters that
record only their author's personal thoughts lie at the
heart of our sense of privacy. In contrast, I see no
bar in the Fourth or Fifth Amendment to the seizure
of a letter from one conspirator to another directing
the recipient to take steps that further the conspiracy.
Business records like those sought in this case lie between
those cases. We are not so outraged by the intrusion
on privacy that accompanies the seizure of these records
as we are by the seizure of a diary, yet the records
could not easily be called "instrumentalities" of tax
evasion, particularly if they are accurate.
Second, we must consider the ordinary operations of
the person to whom the records are given. A transfer
to a lawyer is protected, not simply because there is a
recognized attorney-client privilege, but also because the
ordinary expectation is that the lawyer will not further
publicize what he has been given. Again in contrast,
a transfer to a trustee in bankruptcy or to a clerk of a
court does not usually carry with it such expectations.
That is how I would justify Johnson and Perlman.
Here, too, the transfer in this case lies between the extremes.
It would be relevant to a decision about the
expectation of privacy that an accountant-client priv-
Municipal, Court, 387 U. S. 523 (1967); Terry v. Ohio, 392 U. S. 1
(1968); Stanford v. Texas, 379 U. S. 476 (1965). The precise
elements required of a Fifth Amendment violation need not coincide
exactly with the elements of an invasion of privacy that should
be considered unreasonable, and I see no reason to confine the
sphere of privacy free from intrusion to just what the Fifth Amendment
protects.
COUCH v. UNITED STATES 351
322 MARSHALL, J., dissenting
ilege existed under local law, but not determinative.
Petitioner disclaimed reliance on such a privilege. Tr.
of Oral Arg. 7. But I would think that, privileged or
not, a disclosure to an accountant is rather close to disclosure
to an attorney.
Third, the purposes for which the records were transferred
is an element of an informed judgment about the
author's interest in the privacy of the papers. That a
transfer is compelled by practical considerations if the
author is to claim benefits available under the law,
seems to me quite important. If petitioner had sought
to take advantage of some complicated provision of the
tax laws, and needed the help of an accountant to do
so, I would be quite reluctant to hold that the transfer
of her records was a surrender of the privacy of the
papers. But cf. Johnson v. United States, 228 U. S. 457
(1913). As I understand it, the majority's exception for
temporary relinquishment of possession, and several of
MR. JusTICE BRENNAN'S exceptions, recognize the importance
of this criterion.
Finally, we must take into account the steps that the
author took to insure the privacy of the records. Cf.
In re Harr-is, 221 U. S. 274, 280 (1911). Placing them
in a safe deposit box is different from letting them remain
for many years with an accountant.
It is not impossible that petitioner had indeed abandoned
her claim to privacy in the papers sought by summons
in this case. But the District Court and the Court
of Appeals applied a rather rigid test which made possession
alone conclusive. Those courts have more experience
than we do with the ordinary practices of taxpayers,
accountants, and Internal Revenue agents. They are
therefore better able, in the first instance, to apply the
criteria I believe are relevant, in light of their understanding
of the ordinary practices in such cases. I would
vacate the judgment and remand the case to the District
Court for consideration of those criteria.
352 OCTOBER TERM, 1972
Opinion of the Court 409U. S.
BRONSTON v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 71-1011. Argued November 15, 1972-
Decided January 10, 1973
Federal perjury statute, 18 U. S. C. § 1621, does not reach a witness'
answer tha.t is literally true, but unresponsive, even assuming the
witness intends to mislead his questioner by the answer, and even
assuming the answer is arguably "false by negative implication."
A perjury prosecution is not, in our adversary system, the primary
safeguard against errant testimony; given the incongruity of an
unresponsive answer, it is the questioner's burden to frame his
interrogation acutely to elicit the precise information he seeks.
Pp. 357-362.
453 F. 2d 555, reversed.
BURGER, C. J., delivered the opinion for a unanimous Court.
Sheldon H. Elsen argued the cause for petitioner.
With him on the briefs were Lewi-S Shapiro and John S.
Martin, Jr.
Andrew L. Frey argued the cause for the United States.
With him on the brief were Solicitor General Gri-Swold,
Assi-Stant Attorney General Petersen, Beatrice Rosenberg,
and Marshall Tamor Golding.
MR. CHIEF JusTICE BuRGER delivered the opinion of
the Court.
We granted the writ in this case to consider a narrow
but important question in the application of the federal
perjury statute, 18 U. S. C. § 1621: 1 whether a witness
1 18 U.S. C. § 1621 provides:
"Whoever, having taken an oath before a competent tribunal,
officer, or person, in any case in which a law of the United States
authorizes an oath to be administered, that he will testify, declare,
BRONSTON v. UNITED STATES 353
352 Opinion of the Court
may be convicted of perjury for an answer, under oath,
that is literally true but not responsive to the question
asked and arguably misleading by negative implication.
Petitioner is the sole owner of Samuel Bronston Productions,
Inc., a company that between 1958 and 1964,
produced motion pictures in various European locations.
For these enterprises, Bronston Productions opened bank
accounts in a number of foreign countries; in 1962,
for example, it had 37 accounts in five countries. As
president of Bronston Productions, petitioner supervised
transactions involving the foreign bank accounts.
In June 1964, Bronston Productions petitioned for
an arrangement with creditors under Chapter XI of
the Bankruptcy Act, 11 U.S. C. § 701 et seq. On June 10,
1966, a referee in bankruptcy held a § 21 (a) hearing to
determine, for the benefit of creditors, the extent and
location of the company's assets.2 Petitioner's perjury
depose, or certify truly, or that any written testimony, declaration,
deposition, or certificate by him subscribed, is true, willfully and
contrary to such oath states or subscribes any material matter which
he does not believe to be true, is guilty of perjury, and shall, except as
otherwise expressly provided by law, be fined not more than $2,000
or imprisoned not more than five years, or both. This section is
applicable whether the statement or subscription is made within or
without the United States."
2 Under § 334 of the Bankruptcy Act, 11 U. S. C. § 734, the court
must hold a first meeting of creditors within a limited period of time
after the Chapter XI petition is filed. Section 336, 11 U. S. C. § 736,
provides that the judge or court-appointed referee shall preside
at the meeting and "shall examine the debtor or cause him to
be examined and hear witnesses on any matter relevant to the
proceeding."
Section 21 (a) of the Act, 11 U. S. C. § 44 (a), is applicable to a
Chapter XI proceeding because it is a provision of Chapters I
through VII "not inconsistent with or in conflict with the provisions
of [Chapter XI]." 11 U. S. C. § 702. Section 21 (a) provides, in
pertinent part, that "[t]he court may, upon application of any
officer, bankrupt, or creditor, by order require any designated
354 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
conviction was founded on the answers given by him as
a witness at that bankruptcy hearing, and in particular
on the following colloquy with a lawyer for a creditor
of Bronston Productions:
"Q. Do you have any bank accounts in Swiss
banks, Mr. Bronston?
"A. No, sir.
"Q. Have you ever?
"A. The company had an account there for about
six months, in Zurich.
"Q. Have you any nominees who have bank accounts
in Swiss banks?
"A. No, sir.
"Q. Have you ever?
"A. No, sir."
It is undisputed that for a period of nearly five years,
between October 1959 and June 1964, petitioner had a
personal bank account at the International Credit Bank
in Geneva, Switzerland_. into which he made deposits
and upon which he drew checks totaling more than
$180,000. It is likewise undisputed that petitioner's
answers were literally truthful. (a) Petitioner did not at
the time of questioning have a Swiss bank account.
(b) Bronston Productions, Inc., did have the account
in Zurich described by petitioner. (c) Neither at the time
persons ... to appear before the court ... to be examined concerning
the acts, conduct, or property of a bankrupt." Numerous
statements of the broad scope of a § 21 (a) inquiry are collected
in 2 W. Collier, Bankruptcy ,r21.11 (14th ed. 1971). The
officers of a bankrupt may be required to undergo a § 21 (a) examination
even if they are not still officers at the time of filing. Id.,
,r 21.09. If it appears that the interest of a witness is adverse to the
party calling him to testify, under § 21 (j), 11 U. S. C. § 44 (j), the
party may examine the witness as if under cross-examination, and the
examining party is not bound by the witness' testimony. lA W. Collier,
Bankruptcy ,r 5.22 (14th ed. 1972).
BRONSTON v. UNITED STATES 355
352 Opinion of the Court
of questioning nor before did petitioner have nominees
who had Swiss accounts. The Government's prosecution
for perjury went forward on the theory that in
order to mislead his questioner, petitioner answered the
second question with literal truthfulness but unresponsively
addressed his answer to the company's assets and
not to his own- thereby implying that he had no personal
Swiss bank account at the relevant time.
At petitioner's trial, the District Court instructed the
jury that the "basic issue" was whether petitioner "spoke
his true belief." Perjury, the court stated, "necessarily
involves the state of mind of the accused" and "essentially
consists of wilfully testifying to the truth of a fact
which the defendant does not believe to be true"; petitioner's
testimony could not be found "wilfully" false
unless at the time his testimony was given petitioner
"fully understood the questions put to him but nevertheless
gave false answers knowing the same to be false."
The court further instructed the jury that if petitioner
did not understand the question put to him
and for that reason gave an unresponsive answer, he
could not be convicted of perjury. Petitioner could,
however, be convicted if he gave an answer "not literally
false but when considered in the context in which it
was given, nevertheless constitute [ d] a false statement." 3
3 The District Court gave the following example "as an illustration
only":
"[I]f it is material to ascertain how many times a person has
entered a store on a given day and that person responds to such
a question by saying five times when in fact he knows that he
entered the store 50 times that day, that person may be guilty of
perjury even though it is technically true that he entered the store
five times."
The illustration given by the District Court is hardly comparable
to petitioner's answer; the answer "five times" is responsive to the
hypothetical question and contains nothing to alert the questioner
that he may be sidetracked. See infra, at 358. Moreover, it is very
356 OCTOBER TERM, 1972
Opinion of the Court 409 u. s.
The jury began its deliberations at 11 :30 a. m. Several
times it requested exhibits or additional instructions
from the court, and at one point, at the request of the
jury, the District Court repeated its instructions in full.
At 6: 10 p. m., the jury returned its verdict, finding petitioner
guilty on the count of perjury before us today
and not guilty on another charge not here relevant.
In the Court of Appeals, petitioner contended, as he
had in post-trial motions before the District Court, that
the key question was imprecise and suggestive of various
interpretations. In addition, petitioner contended that
he could not be convicted of perjury on the basis of
testimony that was concededly truthful, however unresponsive.
A divided Court of Appeals held that the
question was readily susceptible of a responsive reply
and that it adequately tested the defendant's belief in
the veracity of his answer. The Court of Appeals further
held that, "[f]or the purposes of 18 U. S. C. § 1621,
an answer containing half of the truth which also constitutes
a lie by negative implication, when the answer
is intentionally given in place of the responsive answer
called for by a proper question, is perjury." 453 F. 2d
555, 559. In this Court, petitioner renews his attack on
the specificity of the question asked him and the legal
sufficiency of his answer to support a conviction for
perjury. The problem of the ambiguity of the question
is not free from doubt, but we need not reach that issue.
doubtful that an answer which, in response to a specific quantitative
inquiry, baldly understates a numerical fact can be described
as even "technically true." Whether an answer is true must be
determined with reference to the question it purports to answer,
not in isolation. An unresponsive answer is unique in this respect
because its unresponsiveness by definition prevents its truthfulness
from being rested in the context of the question-unless there is to
be speculation as to what the unresponsive answer "implies." See
infra, at 359.
BRONSTON v. UNITED STATES 357
352 Opinion of the Court
Even assuming, as we do, that the question asked petitioner
specifically focused on petitioner's personal bank
accounts, we conclude that the federal perjury statute
cannot be construed to sustain a conviction based on petitioner's
answer.
The statute, 18 U. S. C. § 1621, substantially identical
in its relevant language to its predecessors for nearly
a century, is "a federal statute enacted in an effort
to keep the course of justice free from the pollution
of perjury." United States v. Williams, 341 U. S.
58, 68 (1951). We have held that the general federal
perjury provision is applicable to federal bankruptcy
proceedings. Hammer v. United States, 271 U. S. 620
(1926). The need for truthful testimony in a § 21 (a)
bankruptcy proceeding is great, since the proceeding
is "a searching inquiry into the condition of the estate
of the bankrupt, to assist in discovering and collecting
the assets, and to develop facts and circumstances which
bear upon the question of discharge." Travis v. United
States, 123 F. 2d 268, 271 (CAl0 1941). Here, as
elsewhere, the perpetration of perjury "well may affect
the dearest concerns of the parties before a tribunal .... "
United States v. Norris, 300 U. S. 564, 574 (1937).
There is, at the outset, a serious literal problem in applying
§ 1621 to petitioner's answer. The words of the
statute confine the offense to the witness who "willfully
... states . . . any material matter which he does
not believe to be true." Beyond question, petitioner's answer
to the crucial question was not responsive if we assume,
as we do, that the first question was directed at personal
bank accounts. There is, indeed, an implication in
the answer to the second question that there was never a
personal bank account; in casual conversation this interpretation
might reasonably be drawn. But we are
not dealing with casual conversation and the statute does
not make it a criminal act for a witness to willfully
358 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
state any material matter that implies any material matter
that he does not believe to be true!
The Government urges that the perjury statute be
construed broadly to reach petitioner's answer and
thereby fulfill its historic purpose of reinforcing our
adversary factfinding process. We might go beyond the
precise words of the statute if we thought they did not
adequately express the intention of Congress, but we
perceive no reason why Congress would intend the drastic
sanction of a perjury prosecution to cure a testimonial
mishap that could readily have been reached with a
single additional question by counsel alert--as every examiner
ought to be~to the incongruity of petitioner's
unresponsive answer. Under the pressures and tensions
of interrogation, it is not uncommon for the
most earnest witnesses to give answers that are not
entirely responsive. Sometimes the witness does not
understand the question, or may in an excess of
caution or apprehension read too much or too little into
it. It should come as no surprise that a participant in
a bankruptcy proceeding may have something to conceal
and consciously tries to do so, or that a debtor may be
embarrassed at his plight and yield information reluctantly.
It is the responsibility of the lawyer to probe;
testimonial interrogation, and cross-examination in particular,
is a probing, prying, pressing form of inquiry. If
a witness evades, it is the lawyer's responsibility to
recognize the evasion and to bring the witness back to
4 Petitioner's answer is not to be measured by the same standards
applicable to criminally fraudulent or extortionate statements. In
that context, the law goes "rather far in punishing intentional creation
of false impressions by a selection of literally true representations,
because the actor himself generally selects and arranges the
representations." In contrast, "under our system of adversary
questioning and cross-examination the scope of disclosure is largely
in the hands of counsel and presiding officer." A. L. I. Model Penal
Code§ 208.20, Comment (Tent. Draft No. 6, 1957, p. 124).
BRONSTON v. UNITED STATES 359
352 Opinion of the Court
the mark, to flush out the whole truth with the tools
of adversary examination.
It is no answer to say that here the jury found that
petitioner intended to mislead his examiner. A jury
should not be permitted to engage in conjecture whether
an unresponsive answer, true and complete on its face,
was intended to mislead or divert the examiner; the
state of mind of the witness is relevant only to the
extent that it bears on whether "he does not believe
[his answer] to be true." To hold otherwise would be to
inject a new and confusing element into the adversary
testimonial system we know. Witnesses would be unsure
of the extent of their responsibility for the misunderstandings
and inadequacies of examiners, and might well
fear having that responsibility tested by a jury under
the vague rubric of "intent to mislead" or "perjurv by
implication." The seminal modern treatment of the
history of the offense concludes that one consideration
of policy overshadowed all others dunng the
years when perjury first emerged as a common-law
offense: "that the measures taken against the offense
must not be so severe as to discourage witnesses from
appearing or testifying." Study of Perjury, reprinted
in Report of New York Law Revision Commission, Legis.
Doc. No. 60, p. 249 (1935). A leading 19th century
commentator, quoted by Dean Wigmore, noted that the
English law "throws every fence round a person accused
of perjury," for
"the obligation of protecting witnesses from oppression,
or annoyance, by charges, or threats of
charges, of having borne false testimony, is far paramount
to that of giving even perjury its deserts.
To repress that crime, prevention is better than cure:
and the law of England relies, for this purpose, on the
means provided for detecting and exposing the crime
at the moment of commission,- such as publicity,
360 OCTOBER TERM, 1972
Opinion of the Court 409U. S.
cross-examination, the aid of a jury, etc.; and on the
infliction of a severe, though not excessive punishment,
wherever the commission of the crime has
been clearly proved." W. Best, Principles of the
Law of Evidence § 606 (C. Chamberlayne ed. 1883).
See J. Wigmore, Evidence 275-276 (3d ed. 1940). Addressing
the same problem, Montesquieu took as his
starting point the French tradition of capital punishment
for perjury and the relatively mild English punishment
of the pillory. He thought the disparity
between the punishments could be explained because
the French did not permit the accused to present his
own witnesses, while in England "they admit of witnesses
on both sides, and the affair is discussed in some
measure between them; consequently false witness is
there less dangerous, the accused having a remedy against
the false witnesses, which he has not in France." Montesquieu,
The Spirit of the Laws, quoted in Study of
Perjury, supra, p. 253.
Thus, we must read § 1621 in light of our own and the
traditional Anglo-American judgment that a prosecution
for perjury is not the sole, or even the primary, safeguard
against errant testimony. While "the lower federal
courts have not dealt with the question often," and
while their expressions do not deal with unresponsive
testimony and are not precisely in point, "it may be said
that they preponderate against the respondent's contention."
United States v. Norm, 300 U. S., at 576. The
cases support petitioner's position that the perjury statute
is not to be loosely construed, nor the statute invoked
simply because a wily witness succeeds in derailing the
questioner-so long as the witness speaks the literal
truth. The burden is on the questioner to pin the witness
down to the specific object of the questioner's inquiry.
United States v. Wall, 371 F. 2d 398 (CA6
1967); United States v. Slutzky, 79 F. 2d 504 (CA3
BRONSTON v. UNITED STATES 361
352 Opinion of the Court
1935); Galanos v. United States, 49 F. 2d 898 (CA6
1931); United States v. Cobert, 227 F. Supp. 915 (SD
Cal. 1964).
The Government does not contend that any misleading
or incomplete response must be sent to the jury to
determine whether a witness committed perjury because
he intended to sidetrack his questioner. As the
Government recognizes, the effect of so unlimited an interpretation
of § 1621 would be broadly unsettling. It is
said, rather, that petitioner's testimony falls within a
more limited category of intentionally misleading responses
with an especially strong tendency to mislead
the questioner. In the federal cases cited above, the
Government tells us the defendants gave simple negative
answers "that were both entirely responsive and entirely
truthful . . . . In neither case did the defendant-as
did petitioner here-make affirmative statements of one
fact that in context constituted denials by negative implication
of a related fact." Thus the Government
isolates two factors which are said to require application
of the perjury statute in the circumstances of this case:
the unresponsiveness of petitioner's answer and the affirmative
cast of that answer, with its accompanying
negative implication.
This analysis succeeds in confining the Government's
position, but it does not persuade us that Congress intended
to extend the coverage of § 1621 to answers
unresponsive on their face but untrue only by "negative
implication." Though perhaps a plausible argument
can be made that unresponsive answers are
especially likely to mislead,5 any such argument must,
5 Arguably, the questioner will assume there is some logical justification
for the unresponsive answer, since competent witnesses do
not usually answer in irrelevancies. Thus the questioner may conclude
that the unresponsive answer is given only because it is intended
to make a statement-a negative statement-relevant to the ques362
OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
we think, be predicated upon the questioner's being
aware of the unresponsiveness of the relevant answer.
Yet, if the questioner is aware of the unresponsiveness
of the answer, with equal force it can be argued that
the very unresponsiveness of the answer should alert
counsel to press on for the information he desires. It
does not matter that the unresponsive answer is stated
in the affirmative, thereby implying the negative of the
question actually posed; for again, by hypothesis, the
examiner's awareness of unresponsiveness should lead
him to press another question or reframe his initial
question with greater precision. Precise questioning is
imperative as a predicate for the offense of perjury.
It may well be that petitioner's answers were not
guileless but were shrewdly calculated to evade. Nevertheless,
we are constrained to agree with Judge Lumbard,
who dissented from the judgment of the Court of Appeals,
that any special problems arising from the literally
true but unresponsive answer are to be remedied through
the "questioner's acuity" and not by a federal perjury
prosecution.
Reversed.
tion asked. In this case, petitioner's questioner may have assumed
that petitioner denied having a personal account in Switzerland;
only this unspoken denial would provide a logical nexus between
inquiry directed to petitioner's personal account and petitioner's
adverting, in response, to the company account in Zurich.
HUGHES TOOL CO. v. TRANS WORLD AIRLINES 363
Syllabus
HUGHES TOOL co. ET AL. V. TRANS WORLD
AIRLINES, INC.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 71-827. Argued October 10, 1972-Decided January 10, 1973*
Trans World Airlines (TWA) brought this antitrust action against
the Hughes Tool Co. (Toolco) and others for treble damages as
a result of the manner in whlch Toolco had exercised its controlling
interest in TWA, with particular reference to Toolco's asserted acts
to control and dictate the acquisition and financing of aircraft by
TWA. A,,, an organization engaged in phases of aeronautics,
Toolco could not acquire control of an air carrier such as TWA
without consent of the Civil Aeronautics Board (CAB). In 1944
the CAB approved de facto control of TWA by Toolco as comporting
with the provisions of § 408 of the Federal Aviation Act.
That provision permits acquisitions of control that the CAB finds
are not inconsistent with the public interest and that will not result
in monopoly. Section 414 immunizes from antitrust liability any
conduct approved by a CAB order issued under § 408. The approval
narrowly limited intercompany sales transactions without
specific CAB approval, and required annual reporting. A few
years later, Toolco and TWA made an agreement permitting
Toolco to obtain full legal control of TWA. The CAB, after full
hearings into the Toolco-TWA relationship, found that Toolco's
financial and other support was of great importance to TWA and
concluded that "the continued interest of Toolco in TWA appears
essential to the best interests of the carrier and the public." The
CAB's approval was made subject to the conditions of the 1944
order. As a result, from 1944 to 1960, every acquisition and lease
of aircraft by TWA from Toolco and each financing by TWA from
Toolco received CAB approval pursuant to § 408. In 1960,
Toolco's stock in TWA was placed in a voting trust in connection
with a program for financing TWA's acquisition of jet equipment.
Shortly thereafter, TWA brought this suit. As a defense, Toolco
relied on Pan American World Airways v. United States, 371
U. S. 296. The District Court entered a default judgment against
*Together with No. 71-830, Trans World Airlines, Inc. v. Hughes
Tool Co. et al,,, on certiorari to the same court.
364 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
Toolco. The Court of Appeals affirmed, concluding that Pan
American was inapplicable because, unlike the situation in that
case, the conduct challenged in TWA's complaint was "unrelated
to any specific function of the CAB" and not within the CAB's
exclusive competence. Held: The transactions that TWA challenged
as violative of the antitrust laws were under the CAB's
control and surveillance, and, by virtue of §§ 408 and 414 of the
Federal Aviation Act, had immunity under the antitrust laws.
The Court of Appeals, therefore, erred in holding that Pan American,
supra, is not controlling on the facts involved here. Pp.
366-389.
449 F. 2d 51, reversed.
DouoLAs, J., delivered the opinion of the Court, in which BRENNAN,
STEWART, WHITE, PowELL, and REHNQUIST, JJ., joined.
BURGER, C. J., filed a dissenting opinion, in which BLACKMUN, J.,
joined, post, p. 389. MARSHALL, J., took no part in the consideration
or decision of the cases.
Charles Alan Wright argued the cause for petitioners
in No. 71-827 and respondents in No. 71-830. With him
on the briefs were Clark M. Clifford, Thomas D. Finney,
Jr., E. Barrett Prettyman, Jr., Chester C. Davis, and
Maxwell E. Cox.
Dudley B. Tenney argued the cause for respondent in
No. 71-827 and petitioner in No. 71-830. With him on
the briefs were James Wm. Moore, Paul W. Williams,
Marshall H. Cox., Jr., Raymond L. Falls, Jr., and William
T. Lifland.
Solicitor General Griswold, Assistant Attorney General
Kauper, George Edelstein, 0. D. Ozment, Warren L.
Sharfman, and Robert L. Toomey filed a memorandum
for the Civil Aeronautics Board as amicus curiae.
MR. JusTICE DouGLAS delivered the opinion of the
Court.
The complaint in this litigation alleged antitrust violations
and damages suffered by Trans World Airlines
(TWA) while under control of Hughes Tool Co. ( Toolco).
HUGHES TOOL CO. v. TRANS WORLD AIRLINES 365
363 Opinion of the Court
A default judgment was entered for over $145 million
with interest at the rate of 7½%- The District Court's
opinions confirming the damages award are reported
at 308 F. Supp. 679, 312 F. Supp. 478. The Court of
Appeals affirmed, 449 F. 2d 51. The cases are here on
a petition for certiorari 1 and on a cross petition. 405
U. S. 915.
1 The District Court's judgment on entry of a default and certifying
a controlling question of law is reported at 32 F. R. D. 604.
The Court of Appeals affirmed, 332 F. 2d 602. We granted certiorari,
379 U. S. 912, but after argument dismissed the writ as
improvidently granted. 380 U. S. 248. Moreover, our dismissal as
improvidently granted was in 1965 and involved the 1964 judgment
of the Court of Appeals. In 1971 a different panel of the Court of
Appeals ruled that its 1964 decision was not binding. It noted that
prior to its 1971 decision there had been no "final judgment" with
respect to the merits of TWA's cause of action against Toolco and
therefore res judicata did not apply. 449 F. 2d 51, 58. It went on
to say that collateral estoppel likewise did not apply, since the only
relevant issue that was actually litigated and determined in the 1964
appeal was that the District Court "properly entered the default on
Toolco's counterclaims." Ibid. That issue, it said, was "a sharply
distinguishable issue from the propriety of a different default judgment
in favor of Toolco's adversary." Ibid.
No party has suggested that our prior dismissal forecloses us from
reaching the issue now presented.
The prior dismissal did not establish the law of the case or
amount to res judicata on the points raised. Indianapolis v. Chase
National Bank, 314 U.S. 63 (1941), was a diversity action in which
the District Court, after realigning the parties, dismissed the action
for want of jurisdiction. The Court of Appeals reversed and this
Court denied certiorari. Two years later, after the Court of Appeals
sustained plaintiff's claims on the merits, certiorari was granted and
this Court reversed, holding that proper realignment "precludes assumption
of jurisdiction based upon diversity of citizenship." 314
U.S., at 74. Similarly, in M ercer v. Theriot, 377 U.S. 152 (1964),
a diversity action for wrongful death, certiorari was initially denied
after the Court of Appeals had set aside a jury verdict on the
grounds of variou,: trial errors and insufficiency of the evidence. On
remand, the District Court denied a motion for a new trial and the
366 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
The crux of TW Ns complaint was the use by Toolco
of its control over TWA to control and dictate the manner
and method by which TWA acquired aircraft and the
necessary financing thereof.2
Whether or not that complaint states a cause of action
under the antitrust laws is a question we do not reach.
Another defense of Toolco was that those transactions
were under the control and surveillance of the Civil
Aeronautics Board and by virtue of the Federal Aviation
Act of 1958 those transactions have immunity from the
antitrust laws.
It is our view that the Court of Appeals erroneously
rejected that defense. This result, we think, is required
by §§ 408 and 414 of the Federal Aviation Act and by our
prior decision in Pan American World Airways v. United
States, 371 U. S. 296 (1963).
Section 408 of the Act makes illegal certain mergers,
consolidations, and other transactions without the approval
of the Civil Aeronautics Board.3 Specifically,
Court of Appeals affirmed. We then granted certiorari and reversed
because the trial errors did not affect substantial rights and the
evidence at the trial was sufficient to sustain a verdict in petitioner's
favor. See also Hanover Shoe v. United Shoe Machinery Corp.,
392 U. S. 481, 488 n. 6 (1968).
For the well-settled view that denial of certiorari imparts no
implication or inference concerning the Court's view of the merits,
see Maryland v. Baltimore Radio Show, 338 U. S. 912, 919 (Frankfurter,
J.).
2 See 449 F. 2d, at 71.
3 Section 408, 72 Stat. 767, as amended, 49 U. S. C. § 1378, reads
in pertinent part as follows:
"(a) Prohibited acts.
"It shall be unlawful unless approved by order of the Board as
provided in this section-
" (2) For any air carrier, any person controlling an air carrier,
any other common carrier, or any person engaged in any other phase
HUGHES TOOL CO. v. TRANS WORLD AIRLINES 367
363 Opinion of the Court
§ 408 (a)(5) requires the approval of the Board when
"any person engaged in any other phase of aeronautics"
seeks to acquire control of any air carrier in any manner
whatsoever. Section 408 (b) authorizes and directs
the Board to approve such transactions, including acof
aeronautics, to purchase, lease, or contract to operate the properties,
or any substantial part thereof, of any air carrier;
"(5) For any air carrier or person controlling an air carrier, any
other common carrier, any person engaged in any other phase of
aeronautics, or any other person to acquire control of any air carrier
in any manner whatsoever: Provided, That the Board may by
order exempt any such acquisition of a noncertificated air carrier
from this requirement to the extent and for such periods as may be
in the public interest;
"(b) Application to Board; hearing; approval; disposal without
hearing.
"Any person seeking approval of a consolidation, merger, purchase,
lease, operating contract, or acquisition of control, specified in subsection
(a) of this section, shall present an application to the Board,
and thereupon the Board shall notify the persons involved in the
consolidation, merger, purchase, lease, operating contract, or acquisition
of control, and other persons known to have a substantial interest
in the proceeding, of the time and place of a public hearing.
Unless, after such hearing, the Board finds that the consolidation,
merger, purchase, lease, operating contract, or acquisition of control
will not be consistent with the public interest or that the conditions
of this section will not be fulfilled, it shall by order approve such
consolidation, merger, purchase, lease, operating contract, or acquisition
of control, upon such terms and conditions as it shall find to be
just and reasonable and with such modifications as it may prescribe:
Provided, That the Board shall not approve any consolidation,
merger, purchase, lease, operating contract, or acquisition of control
which would result in creating a monopoly or monopolies and
thereby restrain competition or jeopardize another air carrier not a
party to the consolidation, merger, purchase, lease, operating contract,
or acquisition of control "
In 1969, § 408 (a) (5) was amended to include "any other person"
acquiring control of an air carrier.
368 OCTOBER TERM, 1972
Opinion of the Court 409U.S.
quisitions of control, that are in the "public interest"
and prohibits approval of any transaction "which would
result in creating a monopoly or monopolies and thereby
restrain competition or jeopardize another air carrier"
not a party to the transaction. Section 102 of the Act requires
that in assessing the public interest and the public
convenience and necessity, the Board should consider,
among other things, "[c]ompetition to the extent necessary
to assure the sound development of an air-transportation
system properly adapted to the needs of the foreign
and domestic commerce of the United States .... " 4
Section 408 (e) empowers the Board, upon complaint or
its own initiative, to investigate and determine whether
any person is violating any provision of subsection (a)
• Section 102, 49 U. S. C. § 1302, reads:
"In the exercise and performance of its powers and duties under
this chapter, the Board shall consider the following, among other
things, as being in the public interest, and in accordance with the
public convenience and necessity:
"(a) The encouragement and development of an air-transportation
system properly adapted to the present and future needs of
the foreign and domestic commerce of the United States, of the
Postal Service, and of the national defense;
"(b) The regulation of air transportation in such manner as to
recognize and preserve the inherent advantages of, assure the highest
degree of safety in, and foster sound economic conditions in, such
transportation, and to improve the relations between, and coordinate
transportation by, air carriers;
" ( c) The promotion of adequate, economical, and efficient service
by air carriers at reasonable charges, without unjust discriminations,
undue preferences or advantages, or unfair or destructive competitive
practices;
" ( d) Competition to the extent necessary to assure the sound
development of an air-transportation system properly adapted to the
needs of the foreign and domestic rnmmPr~e of the United States,
of the Postal Service, and of the national defense;
" ( e) The promotion of safety in air commerce; and
"(f) The promotion, encouragement, and development of civil
aeronautics."
HUGHES TOOL CO. v. TRANS WORLD AIRLINES 369
363 Opinion of the Court
and, if such violation is found, to "require such person to
take such action, consistent with the provisions of this
chapter, as may be necessary, in the opinion of the Board,
to prevent further violation of such provision." Under
§ 408 (d), the Board has broad control over the accounts,
records, and reports of anyone controlling an air carrier,
and their inspection. The Board is further granted power
to control the designation of any officer or director of an
air carrier who is an officer, director, member, or the controlling
stockholder of any person who is engaged "in
any phase of aeronautics." § 409 (a), 49 U.S. C. § 1379
(a). Section 414 relieves from the operation of the
antitrust laws any person affected by any order under
§ 408 "insofar as may be necessary to enable such person
to do anything authorized, approved, or required by such
order." 5
It was against this statutory backdrop that the Civil
Aeronautics Board issued a series of decisions and orders
with respect to the control of TWA by Toolco, the major
decisions being issued in 1944, 1948, 1950, and 1960.
The first decision, 6 C. A. B. 153 (1944), authorized control
of approximately 45.6% of the outstanding stock of
TWA. From the Board's opinion issued at that time, it
appears that Howard Hughes first became interested in
TWA at the invitation of his friend, Jack Frye, the
president of TWA. Hughes began acquiring TWA stock
through Toolco, which he solely owned. By 1942,
5 Section 414, 49 U. S. C. § 1384, reads:
"Any person affected by any order made under sections 1378, 1379,
or 1382 of this title shall be, and is hereby, relieved from the operations
of the 'antitrust laws,' as designated in section 12 of Title 15,
and of all other restraints or prohibitions made by, or imposed
under, authority of law, insofar as may be necessary to enable such
person to do anything authorized, approved, or required by such
order."
See also§§ 1002 (b), (c), of the Act, 49 U.S. C. §§ 1482 (b), (c).
370 OCTOBER TERM, 1972
Opinion of the Court 409U. S.
Toolco had acquired 42.1 % of TWA's outstanding stock
and for all practical purposes was in position to control
the day-to-day affairs of the carrier. Meanwhile,
Hughes and Frye had jointly designed a four-engine
transport, later known as the Constellation, which
Lockheed agreed to manufacture under contract with
Toolco. The contract was assigned by Toolco to TWA
in 1942, Toolco reserving the right to purchase a sizable
number of such aircraft through TWA. It was
this arrangement by which Toolco might actually
acquire for resale a number of commercial aircraft
that, together with its experimental work in aviation
and its manufacture of aircraft parts for the military,
characterized Toolco as an organization engaged in any
phase of aeronautics and therefore forbidden to acquire
control of an air carrier such as TWA without the consent
of the Board. Toolco's control of TWA, by virtue
of its stock ownership which had by 1944 increased to
45.6%, was approved by the Board as being in the
public interest and consistent with the provisions of
§ 408, including the prohibition against monopoly. In
order to insure that Toolco would not abuse its power
over TWA, "to its own profit and to the detriment of
the public interest," 6 C. A. B., at 156, the approval
was to continue only so long as intercompany purchases
did not exceed $200 per item and did not amount to
more than $10,000 in any one calendar year. Annual
reports were required in this respect.0 6 C. A. B., a.t 158.
6 The Board's public counsel had opposed such a condition on
approval as "imposing far too great a burden upon the Board to
ask it to pass upon the wisdom and propriety, in both a technical and
business way, of every bargain made by a carrier for the purchase
of equipment from a particular manufacturer." Brief for Examiner
25 (filed Apr. 22, 1944). Public counsel's alternative proposed
condition required Toolco to forfeit control in the event Toolco
should manufacture or sell certain commercial aircraft or Hughes
"should attempt to influence TWA with regard to the purchase, acHUGHES
TOOL CO. v. TRANS WORLD AIRLINES 371
363 Opinion of the Court
The 1948 and 1950 decisions of the Board originated
in a letter agreement presented by Toolco to TWA on
January 8, 1947, and accepted by TWA the following
day. By this agreement, Toolco agreed to loan $10
million to TWA in return for the latter's interestbearing
notes which were convertible into common stock
of the company. On its own initiative, the Board opened
an investigation into the matter. At the threshold was
the question of Board jurisdiction, which was hotly contested.
The Board's June 1948 opinion sustained its
jurisdiction, 9 C. A. B. 381. The opinion took
a dual approach to the jurisdictional question. It first
inquired whether "any chang.:i in the activities of Toolco
in the field of aeronautics since October 17, 1944, has
affected or altered the character of the control approved
in Docket No. 1182. It is clear that a substantial change
in the activities of Toolco in the field of aeronautics
would result in a transaction subject to the Board's jurisdiction
under section 408 by reason of the fact that the
character and propriety of control originally approved
might be altered or changed as a result thereof." 9
C. A. B., at 382.
After reviewing the aeronautical activities of Toolco,
it was concluded that the aircraft division of the comceptance,
or use by it of any aircraft or aircraft parts in the development
or design of which he himself may have participated to
a substantial degree." 6 C. A. B., at 157. The Board rejected this
proposal, reasoning as .follows:
"The conditions proposed by public counsel are complicated and
seem to be somewhat indefinite and difficult of enforcement. The
object of any condition . . . should be to protect the public interest
from any improper coercion of the air carrier by a controlling company
on account of any interest which that controlling company
may have in some other phase of aeronautics. This can be accomplished
by a reasonable limit upon commercial transactions
between the acquirer and the acquired which may be had without
further consideration in this proceeding by the Board." Ibid.
372 OCTOBER TERM, 1972
Opinion of the Court 409 u. s.
pany was chiefly a large-scale experimental plant for the
military and had not substantially changed its status
with respect to its participation in any phase of
aeronautics.
The Board's second approach to the jurisdictional question
was to inquire whether the letter agreement, which
would permit Toolco to increase its shareholdings up to
80% of the outstanding shares of TWA, represented such
a change in extent or effectiveness of control as to give
the Board jurisdiction and require its consent. Its conclusion
was that, although Toolco's 45.6% was obviously
enough to dominate the Board and control the day-today
affairs of the company, the 1947 letter agreement
would permit Toolco to translate its de facto control into
full legal control of the company, which would "obviously
impl [y] power to dictate the complete corporate activities
of the corporation." 9 C. A. B., at 387. This was sufficient
to require an order of the Board in addition to
the 1944 order.
With its jurisdiction established, the Board proceeded
with hearings and inquiry into whether the additional
control was consistent with the public interest. This
matter was also contested. Toolco thought that only
a narrowly focused inquiry was appropriate, but the
Board's public counsel not only insisted that the hearings
be far-ranging but urged, as a possible solution, that
the additional control be disapproved and that the original
1944 proceedings, Docket No. 1182, be reopened to
determine whether all control of TWA by Toolco should
be terminated. The Board 7 opted for an investigation
7 References to the Board's 1950 opinion are actually to the
opinion of the Trial Examiner. But the Board adopted as its own
"the findings, conclusions, and recommended derision of the examiner"
without modification. 12 C. A. B. 192, 193.
HUGHES TOOL CO. v. TRANS WORLD AIRLINES 373
363 Opinion of the Court
sufficiently broad to inquire "into the actions and policies
of the controlling company with respect to TWA
for the period during which the prior-approved control
existed ... [f] or inevitably the controlling company,
by virtue of its investment in the acquired carrier, will
endeavor to make itself accountable-as indeed the
acquirer here under scrutiny had-for the managerial
efficiency, the operating economy, and the financial integrity
of the controlled carrier." 12 C. A. B. 192, 196
( 1950). Before approving the additional acquisition,
which would make certain "[c]omplete actual and legal
control," id., at 197, the Board determined not only to
examine the future plans of Toolco but also its past
conduct with respect t-0 TWA.
Accordingly, the Toolco-Hughes-TW A relationship
from 1939 to the date of the decision was examined in detail,
including the events occurring since the letter agreement
of January 1947. The major focus of the inquiry
was the differences between TWA management and
Toolco with respect to the acquisition of new flight
equipment-the quantity, the type, the timing, and the
financing thereof. Unquestionably, TWA had been and
was in need of additional financing to make possible the
purchase of new equipment, particularly that needed to
operate its expanded routes. TWA proposed and preferred
equity financing in large measure, but Toolco
most often insisted on financing new equipment through
credit arrangements. Disagreement caused delay, and
this, in combination with other factors, brought TWA
to the verge of bankruptcy or reorganization in late 1946.
It was at this juncture that the January 1947 letter
agreement eventuated. Financial failure was averted;
but urgent needs for new equipment continued, and substantial
additions were made in the years from 1947 to
1950, most of it with the aid of Toolco and some of it
374 OCTOBER TERM, 1972
Opinion of the Court 409 u. s.
by purchase from Tool co itself. 8 By the time the hearings
concluded and the case was under submission, TWA's
financial condition had considerably improved, measurably
aided by better operating results, better expense
control, and a stock offering to stockholders with the unsubscribed
amount being underwritten by investment
bankers. 12 C. A. B., at 208-209.
In considering whether the additional control by
Toolco would be in the public interest, the Board observed
that there was no conflict of interest between
Toolco's present or contemplated aeronautical activities
and its control of an air carrier and that enhanced control
presented no problems under the antimonopoly provisions
of§ 408 (b). ld., at 216. The Board then noted
that Toolco's contributions to the science of aeronautics
by way of aircraft design and instrumental aids to aviation
for both the armed services and civil aviation have been
substantial and found that "of specific importance to
TWA, have been the contributions of Toolco and Mr.
Hughes in the way of financial support to the carrier, in
the selection and purchase of its equipment, and their
advice and guidance to the engineering and operations
departments of the carrier." Ibid." Most important,
8 The Examiner found that it was "necessary" for Toolco to
acquire aircraft initially and then resell them to TWA on a conditional
sales basis because TWA "could not have purchased (the
aircraft] directly without the specific consent of its principal creditors."
12 C. A. B., at 218.
9 For example, the Examiner found that:
"Even before TWA's financial crisis of late 1946, t he financial resources
of Toolco were used to provide credit for the carrier. For
example, the credit arrangements provided by Toolco made possible
the placing of the original order for the Constellation airplane with
the Lockheed Aircraft Corporation. There is little doubt that the
Constellation would not have been developed as early as it had
without the aid of Mr. Hughes and his company. In addition to
the technical assistance from Mr. Hughes and his engineers in
HUGHES TOOL CO. v. TRANS WORLD AIRLINES 375
363 Opinion of the Court
however, in the Board's opinion, were the efforts of
Toolco to improve the financial position of TWA during
the last few years. Although criticizing Toolco,
along with others in the aircraft transportation industry,
for relying too heavily on debt financing which, in the
case of TWA had resulted in a very difficult, lopsided
capital structure, the Board concluded that the record
would not support a finding that the additional control
would be inconsistent with the public interest. Indeed,
the Board concluded that " [ t] he continued interest of
Toolco in TWA appears essential to the best interests
of the carrier and the public." Id., at 224.
The Board's approval in 1950 of the complete control
of TWA by Toolco was made "subject to the terms and
conditions" imposed by the 1944 order with respect to
intercompany purchases and annual reporting. See
supra, at 370. As a result, from 1944 through 1960, every
acquisition or lease of aircraft by TWA from Toolco and
each financing of TWA by Toolco required Board approval.
Applications by Toolco were made to the Board
in each instance, with the terms and conditions of the
transactions being described.10 Each was approved by
Toolco, the financial commitment which was necessary to undertake
and continue the project could never have been made and met by
TWA." 12 C. A. B., at 216.
1 ° For example: On May 15, 1959, the Board authorized Toolco
to lease 11 Boeing jets and 30 spare jet engines to TWA. The
Board required that a separate lease be executed for each aircraft
and modified the previous order under § 408 to permit aircraft lease
transactions between TWA and Toolco and to authorize an agreement
covering $3½ million worth of spare parts.
On July 1, 1959, Toolco asked that 10 leases of Boeing aircraft
to TWA be modified so as to permit the extension of the 10 leases
under the same rental until no later than September 30, 1959, and
to permit the lease under identical terms of four additional Boeing
jets and to permit the purchase from Toolco at actual cost of
additional spare parts necessary for the operation of the leased jet
376 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
the Board and each was regarded as a modification or interpretation
of its antecedent control orders under § 408.
Each of these transactional orders recited a finding of
the Board that the transaction was "just and reasonable
and in the public interest." Then, in December 1960,
the Board issued an order approving a major proposal
by TWA for the acquisition of jet equipment, which
among other things involved fundamental changes in
relationship between TWA and Toolco in that the stock
of the former, at the insistence of the financial institutions
involved in the program, was to be placed in a voting
trust and the company's Board of Directors reconstituted.
32 C. A. B. 1363. The dominant position of
Toolco thus ended for the period of the trusteeship. In
the course of its opinion accompanying the order, the
Board stated that although it had not been officially
informed of the reasons for the banks' insistence on the
voting trust, it was not "unaware of TWA's problems."
Id., at 1364. The Board knew, because it was a matter
of public record, that TWA had been delayed in
financing its jet fleet and the Board's opinion was that
TWA had probably suffered because more attractive
financing terms were no longer available and because the
airliners. This order of the Board also constituted a modification of
the original order of control granted under § 408.
On September 30, 1959, Toolco asked permiSBion to extend the
leases of 10 Boeing jets. The extension was to be under the identical
terms of the original leases, the new leases to be terminated by
either party within 24 hours on written notice. Here again the
Board modified the original transaction under § 408.
On January 29, 1959, Toolco asked permission to lease to TWA
on a day-to-day basis up to eight Boeing aircraft and up to eight
Convairs, and for TWA to purchase from Toolco at actual cost such
spare parts as were necessary and such other equipment as might be
required. Here again the Board entered an order that qualified its
original "control" order under § 408.
HUGHES TOOL CO. v. TRANS WORLD AIRLINES 377
363 Opinion of the Court
unavailability of equipment may have contributed to the
company's failure to maintain its normal share of the
transportation market. "Under these circumstances" the
Board said, "we think it clear that Board action to facilitate
TWA's acquisition of jet equipment is in the public
interest. At the same time, however, it is evident that
Toolco's control of TWA, as exercised through Hughes,
has presented substantial problems requiring the Board's
attention." Id., at 1365. The Board went on to make
clear that its approval would be required before Toolco
would be permitted to reassume control over TWA and
that any such approval would be forthcoming only after
a most "searching inquiry" into the public interest factors
involved.11 Ibid.
It was six months later that TWA, now no longer
under control of Toolco, filed suit against the latter alleging
violations of the antitrust laws to the injury of
TWA's business. As analyzed by the Court of Appeals
in its opinions filed in this case, the complaint rested
principally on Toolco's conduct as controlling stockholder
during the years 1955- 1960. The assertions were
11 In a footnote, the Board amplified what it meant by publicinterest
factors through reference to the following excerpt from its
1950 decision (12 C. A. B., at 196):
"Aside from any undesirable influence on an air carrier which
might arise because of the acquirer's interest in a given phase of
aeronautics, an acquirer of an air carrier is not without responsibility
in other respects for an air carrier's general capacity to perform its
public responsibilities. For inevitably the controlling company, by
virtue of its investment in the acquired carrier, will endeavor to
make itself accountable . . . for the managerial efficiency, the operating
economy, and the financial integrity of the controlled carrier.
Accordingly, in determining whether or not a particular acquisition
should be approved, it is necessary to consider the over-all impact
of the acquirer's plans and policies with respect to the controlled
carrier."
378 OCTOBER TERM, 1972
Opinion of the Court 409 u. s.
that in 1955 the commercial air industry was converting
to jet aircraft, and that TWA's competitors began in
that year "to aid in the development of and to purchase
jet planes." 332 F. 2d 602, 605. Toolco and General
Dynamics Corp. (Convair) had entered into an arrangement
for the joint development of a suitable aircraft
but the plan proved abortive, whereupon Toolco
considered but ultimately abandoned a plan for itself
to enter aircraft production. Meanwhile, Toolco had
arranged for the purchase of jet aircraft from Convair
and Boeing, the arrangements providing that Toolco
could assign its rights to such aircraft to TWA.
As respects its defense that CAB control and surveillance
gave it immunity from the antitrust suit, Toolco
relies on Pan American World Airways v. United States,
371 U. S. 296. The Court of Appeals distinguished
that case, saying that there the unlawful division of
territories and allocation of routes were directly "within
the ambit of powers explicitly granted the Board by the
Congress," 332 F. 2d, at 608. The Court of Appeals
said that the present case was different because, in its
view, the continuing supervision of the Board over the
Toolco-TW A relationship was general and not related to
specific conduct that gave rise to violations of the
antitrust laws.
The transactions on the basis of which damages were
awarded were based primarily on profits lost as a result
of five transactions relating to orders placed by Toolco
for a fleet of 63 jet aircraft destined for use by TWA.
449 F. 2d, at 65-66:
(1) The diversion of six Convairs by Toolco to Northeast
Air lines;
(2) The temporary retention by Toolco of four other
Convairs and their ultimate lease to Northeast Airlines;
(3) The diversion of six Boeing jets out of 33 ordered
to Pan American Airways;
HUGHES TOOL CO. v. TRANS WORLD AIRLINES 379
363 Opinion of the Court
( 4) The lease, instead of outright sales, of jets m
1959-1960; and
(5) The late delivery of 47 of the 63 jets.
One difficulty with the conclusion of the Court of Appeals
that these transactions, unlike those involved in the
Pan American case, were transactions on which the Board
might take action but did not do so, is that it misconstrues
the record. As noted, from 1944 through 1960 every
acquisition or lease of aircraft by TWA from Toolco and
each financing of TWA by Toolco required Board approval.
Each transaction was approved by the Board
and each approval was an order under § 408, for the Board
regarded its transactional orders as modifications or interpretations
of its antecedent control order. Each of the
modification orders recited a finding of the Board that
the transactions were "just and reasonable and in the
public interest."
It is said, however, that while the Board modified its
original "control" order under § 408 so as to permit sale
or lease of the aircraft out of which the alleged antitrust
violations occurred, the approval of the Board did not
sanction the precise way in which Toolco allegedly used
the power to the disadvantage of TWA. But that is not
an answer t.o the problem of exemption.
The Federal Aviation Act as construed and applied by
this Court and the Civil Aeronautics Board dictates a
contrary result.
In Pa-n American World Airways v. United States,
supra, the United States brought a civil antitrust action
under §§ 1, 2, and 3 of the Sherman Act challenging the
joint control of Panagra., an air carrier, by Pan American
Airways and W. R. Grace & Co. The allegations
were that Pan American, Grace, and Panagra had divided
territories, that Pan American and Grace had conspired
to monopolize air transportation on the west
coast of South America, and that Pan American had used
380 OCTOBER TERM, 1972
Opinion of the Court 409U.S.
its power to prevent Panagra from extending its routes
from the Canal Zone to the United States. The District
Court found no division of territories and no conspiracy
between Grace and Pan American but concluded that
Pan American had violated the Sherman Act in interfering
with Panagra's possible route extension. On cross
appeals by Pan American and the United States, this
Court held that the complaint should have been dismissed
because § 411 of the Act gave the CAB broad power to
investigate and bring to a halt unfair practices and
unfair methods of competition, including those alleged
in the complaint, and because if the courts were to intrude
independently with their own construction of the
antitrust laws the two regimes might collide. Hence, relief
against the alleged division of territories, allocation
of routes, and conspiracy to monopolize was a matter
exclusively for the Board. The Court also pointed out
that under § 414 of the Act, Board orders carried antitrust
immunity for any conduct authorized, approved, or required
by the order and that it would be odd to hold
that an affiliation between an air carrier and others that
would pass muster under § 408 could nevertheless run
afoul of the antitrust laws: "Whether or not transactions
of that character meet the standards of competition and
monopoly provided by the Act is peculiarly a question
for the Board, subject of course to judicial review as
provided in 49 U. S. C. § 1486." 371 U. S., at 309.
As previously indicated, the Court of Appeals did
not consider Pan American to be relevant or controlling
because, different from the situation there, the
conduct challenged in TWA's complaint against Toolco
was "unrelated to any specific function of the CAB"
and hence was not within the exclusive competence
of that body. 332 F. 2d, at 608. This view is difficult
to square with the statute and the several opinions and
HUGHES TOOL CO. v. TRANS WORLD AIRLINES 381
363 Opinion of the Court
orders issued by the Board with respect to the relationship
between Toolco and TWA.
The Act expressly forbade Toolco to acquire control
of TWA without approval of the Board. Section
408, however, directed the Board to approve the acquisition
if consistent with the public interest and empowered
it to remedy any acquisition of control by Toolco obtained
otherwise than in accordance with the Act. It is
also perfectly clear that in 1944 the Board approved the
acquisition of control of TWA by Toolco by virtue of a
45.6% stock ownership and that in 1948 and 1950 the
Board approved a transaction that could have increased
Toolco's holdings to 80% and transformed its de facto
control into full legal, as well as practical, control.
In reaching this conclusion, the Board inquired broadly
into all phases of the exercise of Toolco's control over
TWA during the years 1944-1947. It was not only
proper but necessary in determining whether further acquisition
of control was consistent with the public interest
to examine "into the actions and policies of the
controlling company ... [f] or inevitably the controlling
company, by virtue of its investment in the acquired carrier,
will endeavor to make itself accountable ... for the
managerial efficiency, the operating economy, and the
financial integrity of the controlled carrier." 12 C. A. B.,
at 196. Hence, of major interest to the Board were the
decisions of Toolco with respect to the type, quantity,
timing, and financing of new equipment acquisitions by
TWA. It examined and dealt with in great detail the
assertions that Toolco had improperly delayed the arrival
of new equipment, had insisted on debt rather than equity
financing, and itself had sold or leased aircraft to TWA.
All of these matters, the Board concluded, were central
to proper determination of the issue of the additional con382
OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
trol and, indeed, to the additional question before the
Board as to whether the existing relationship should have
been completely terminated.
The point is that the conduct of Toolco with which
the Board so extensively dealt in 1950 is the same kind
of conduct charged to Toolco in the 1950's and alleged
by TWA in its complaint to violate the antitrust laws.
It is, therefore, difficult to understand how the Court of
Appeals could conclude that the acts of Toolco in controlling,
allegedly to the injury of TWA, the timing, the
financing, and the flow of new equipment to TWA were
unrelated to any function of the Board under the Act.
Clearly, such considerations were in the mainstream of
the Board's § 408 responsibilities to insure that only
those acquisitions of control that are in the public interest
are approved.
Nor is it tenable to argue that, however relevant Toolco's
new equipment decisions might have been to the
public-interest standard mandated for Board approval
of the additional control obtained in 1947, the Board's
authority nevertheless terminated with that approval
and that the Board, having issued its approval, was
powerless to control or oversee its exercise in the years
to come. Section 408 permits only those acquisitions of
control that are not inconsistent with the public interest
and that will not result in a monopoly. It also authorizes
the Board to approve acquisitions subject to such conditions
as it may deem desirable. Section 408 ( e) empowers
the Board to investigate and remedy violations
of § 408 (a). If a carrier has acquired control "in any
manner whatsoever" other than that approved by the
Board, the Board is authorized either on complaint or its
own initiative to investigate and if a violation is discovered
it is ordered to remedy that situation. Section
204 (a), 49 U. S. C. § 1324 (a), authorizes the Board to
issue and amend such orders as it shall deem necessary
HUGHES TOOL CO. v. TRANS WORLD AIRLINES 383
363 Opinion of the Court
to carry out the provisions of and to exercise and perform
its powers and duties under the statute.12
It seems sufficiently apparent, therefore, that the Board
did not exhaust its powers with respect to Toolco's control
of TWA when it issued its order of approval in
Docket No. 1182 in 1944. Obviously, the Board remained
competent to enforce or to waive the conditions
attached to that order. It did so many times. Seen. 10,
supra. It also is clear from the 1948 and 1950 proceedings,
where the Board's jurisdiction was challenged, that
its jurisdiction was triggered not only by substantial additional
acquisitions of stock but by a.ny change in the
extent or effectiveness of Toolco's control or in Toolco's
position in the aeronautics industry. The Board also
implied that had Toolco's exercise of control over TWA
from 1942 to 1947 been sufficiently unacceptable to foreclose
the additional acquisition of control, reopening of
Docket No. 1182 and re-examination of the initial approval
would have been justified.
We have little doubt that the authority of the Board,
either on complaint or its own initiative, extended to
forbidding any exercise of control by Toolco which was
not authorized or contemplated by the initial or subsequent
approval. This seems the clear import of the
Act and of the Board's 1948-1950 proceedings.
Also instructive is the Board's response when asked in
1956 to modify its original order so as to permit TWA's
purchase of up to 25 jet-powered aircraft from Toolco.
12 See also § 415 of the Act, 49 U. S. C. § 1385, which provides
that:
"For the purpose of exercising and performing its powers and
duties under this chapter, the Board is empowered to inquire into
the management of the business of any air carrier and, to the extent
reasonably necessary for any such inquiry, to obtain from such carrier,
and from any person controlling ... such air carrier, full and
complete reports and other information." (Emphasis added.)
384 OCTOBER TERM, 1972
Opinion of the Court 409U.S.
Reciting that its prior approvals of Toolco's control of
TWA had been premised upon the assumption that
Toolco was not engaged in the manufacture or sale of
aircraft for commercial use, the Board forthwith opened
an investigation to determine whether Toolco's position
in the aeronautics industry had so changed as to result
in a transaction subject to the Board's jurisdiction under
§ 408. The motion for waiver of the 1944 condition was
consolidated with this new proceeding. The proceeding
was later canceled when the motion to waive the 1944
condition was withdrawn, but clearly the Board thought,
and rightly so, that it had continuing power to audit the
ongoing relationship between TWA and Toolco.
It is also difficult to read in any other manner the
recital by the CAB, in the course of approval of the 1960
voting trust arrangement, of Toolco's alleged conduct in
delaying the delivery of new equipment and dictating the
financing of same, all to TWA's alleged injury, followed
by its assertion that such conduct "presented substantial
problems requiring the Board's attention." 32 C. A. B.,
at 1365.
It is therefore no answer to say that our Pan American
decision does not cover the alleged antitrust violations
involved in the Toolco-TW A transactions for which
treble damages were sought. As noted, § 408 (b) states
that the Board shall not approve any "acquisition of control"
which would result "in creating a monopoly or monopolies
and thereby restrain competition or jeopardize
another air carrier." Moreover, the Board in granting
permission to "control" an air carrier must consider the
standards of the public interest as defined in § 102 of the
Act. Among such standards is that set forth in § 102 ( c),
which, as indicated, ante, at 368 n. 4, provides:
"The promotion of adequate, economical, and efficient
service by air carriers at reasonable charges,
363
HUGHES TOOL CO. v. TRANS WORLD AIRLINES 385
Opinion of the Court
without unjust discriminations, undue preferences
or advantages, or unfair or destructive competitive
practices."
Competition and monopoly 13-two ingredients of the
antitrust laws-are thus standards governing the CAB's
exercise of authority in granting, allowing, or expanding
or contracting the control which Toolco had over TWA
by reason of the various orders issued by the CAB under
§ 408. In this context, the authority of the Board to
grant the power to "control" and to investigate and alter
the manner in which that "control" is exercised leads us
to conclude that this phase of CAB jurisdiction, like the
one in the Pan American case, pre-empts the antitrust
field.u It should be noted in that connection that in
13 The Board in an early decision refused to approve a joint
agreement among carriers because of its antitrust aspects:
"Agreements of this nature, whereby a carrier operating in a
particular territory obtains from a prospective competitor an undertaking,
express or implied, not to attempt competitive operations,
are likely to tend to impede the development of competition to the
extent required by the present and future needs of the nation.
Accordingly, we are of the opinion that such agreements thwart
the purposes of the Act, and that their formation should in general
be discouraged." Pan American Airways, 3 C. A. B. 540, 546-547.
14 The Pan American case is consistent with the view expressed in
Silver v. New York Stock Exchange, 373 U. S. 341, 360-361, that
a statutory scheme that does not create a total exception from
antitrust laws may, nonetheless, in particular and discrete instances
by implication grant immunity from an antitrust claim.
To the same effect is United States v. Borden Co., 308 U. S. 188,
200, where the Court said:
"That the field covered by the Agricultural Act is not coterminous
with that . covered by the Sherman Act is manifest from the fact
that the former is thus delimited by the prescribed action participated
in and directed by an officer of government proceeding under the
authority specifically conferred by Congress. As to agreements and
arrangements not thus agreed upon or directed by the Secretary,
386 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
the Pan American case, Pan American, which owned
50% of the stock of the air carrier Panagra, was charged
with using its control to prevent Panagra from receiving
the authority of the CAB to extend its route from the
Canal Zone to the United States. That restraint was
held beyond the reach of the antitrust laws even though
the CAB had taken no action to investigate, let alone
act on, the alleged misfeasance as the Board has done here
for over 16 years.
We think the Court of Appeals erred also in construing
§ 414, which immunizes from antitrust liability
any conduct approved, authorized, or required by
any Board order issued under § 408. As we read this
record, the Board not only approved Toolco's ownership
of TWA stock but it also contemplated actual and legal
control of TWA by Toolco. The Board made it as plain
as possible that Toolco's stock ownership would inevitably
result in Toolco's exercising authority over the
day-to-day affairs of TWA, including the acquisition and
financing of equipment. It was precisely this kind of
control the Board approved. Toolco's power of decision
with respect to these matters was central to the publicinterest
issue. What is more, the Board not only concluded
that Toolco's st€wardship, although faulty in
some respects, had been a great benefit to TWA and to
the public in years gone by, but also determined that
the additional control sought by Toolco and continuation
of TW A-Toolco relationships were essential to the public
interest.
It is too clear for argument that in entering the 1950
order the Board fully realized that Toolco had determined
and would determine when and how much new
equipment would be purchased, from whom it would be
the Agricultural Act in no way impinges upon the prohibitions and
penalties of the Sherman Act, and its condemnation of private action
in entering into combinations and conspiracies which impose the
prohibited restraint upon interstate commerce remains untouched."
HUGHES TOOL CO. v. TRANS WORLD AIRLINES 387
363 Opinion of the Court
acquired, and how it would be financed. It was precisely
this type of association that it contemplated when it approved
the additional control obtained by Toolco in
1947. And it was precisely this same conclusion that
the Board was implementing each time during the 1950's
that it approved a sale or a lease of an airplane from
Toolco to TWA which, without its approval, would have
violated the Board's ongoing limitation on the size of
intercompany transactions.
We repeat, however, what we said in the Pan American
case that the Federal Aviation Act does not completely
displace the antitrust laws.
"While the Board is empowered to deal with numerous
aspects of what are normally thought of as
antitrust problems, those expressly entrusted to it
encompass only a fraction of the total." 371 U. S.,
at 305.
One of the most conspicuous exceptions would be the
combination or agreement between two air carriers involving
trade restraints. See Timken Co. v. United
States, 341 U. S. 593, 598.
There may be other exceptions. But where, as here,
the CAB authorizes control of an air carrier to be acquired
by another person or corporation, and where it specifically
authorizes as in the public interest specific transactions
between the parent and the subsidiary, the way
in which that control is exercised in those precise situations
is under the surveillance of the CAB, not in the
hands of those who can invoke the sanctions of the antitrust
laws. As noted, the parent company which controls
an air carrier is subject to pervasive control by the
CAB. The control which the CAB is authorized to grant
or to deny under § 408 involves an appraisal of the impact
of that control in terms of monopoly and competition;
and the ongoing supervision entrusted to the CAB
by § 415 is broad enough to put all transactions between
388 OCTOBER TERM, 1972
Opinion of the Court 409U.S.
parent and subsidiary-as originally conceived or subsequently
exercised-under CAB supervision.
We cannot believe that if the day after the Board's
order of 1950, a minority stockholder had instituted a
derivative antitrust suit against Toolco, alleging that
Toolco had monopolized the TWA market from 1944
to 1950, delayed deliveries of aircraft, and insisted on improvident
financing arrangements, such a suit could have
survived a motion to dismiss based on § 414. Such an
action would have sought to negate what the Board, after
full investigation, had found consistent with § 408's antimonopoly
provision, consistent with § 102's competition
standard, and consistent with the public interest.
TWA's suit in 1961 carries no better credentials, for
it sought to terminate a relationship the continuation
of which the Board had found essential to both TWA and
the public interest and to penalize the type of conduct
which the Board expressly contemplated and preferred
would continue unless and until a different order from
the Board was forthcoming.
It adds nothing to the analysis to characterize Toolco's
exercise of power over TWA as monopolization of the
TWA market, for it was precisely such control that the
Board opted for in 1944 and 1950. Moreover, a condition
of the order was that Toolco's sales to TWA could
not assume more than negligible proportions without
in every instance the Board's approving the transaction
as being consistent with the public interest. Nor does
it add to the argument to describe Toolco's conduct as
furthering a tying or exclusive-dealing arrangement or as
a conspiracy to restrain trade in that market represented
by TWA.
The short of it is that in our view §§ 408 and 414 of
the Act, as construed in Pan American, require reversal
of the Court of Appeals and dismissal of this action.
What TWA charged in its complaint was no more than
the kind of conduct the CAB in 1950 had approved and
HUGHES TOOL CO. v. TRANS WORLD AIRLINES 389
363 BURGER, C. J., dissenting
authorized for the future; and, in any event, such conduct
was within the power of the Board to control and
was central to the mandate of § 408 to permit control
of TWA by Toolco only if consistent with the public
interest.
We by no means hold that the Federal Aviation Act
completely displaces the antitrust 'laws. Pan American,
371 U. S., at 305. But where, as here, the CAB authorizes
control of an air carrier to be acquired by another person
or corporation, and where the CAB specifically authorizes
as in the public interest specific transactions between
the parent and the subsidiary, the way in which that
control is exercised in those precise situations is under
the surveillance of the CAB, not in the hands of those
who can invoke the sanctions of the antitrust laws. The
control which the CAB is authorized to grant or to deny
under § 408 involves an appraisal of the impact of that
control in terms of monopoly and competition; and the
ongoing supervision entrusted to the CAB by § 415 is
broad enough to put all transactions between parent and
subsidiary-as originally conceived or subsequently exercised-
under CAB supervision.
This conclusion necessitates a dismissal of the crosspetition,
a reversal of the judgment below, and a remand
with directions to dismiss the complaint, as the numerous
other points briefed and argued become irrelevant in
that posture of the litigation.
Reversed.
MR. JusTICE MARSHALL took no part in the consideration
or decision of these cases.
MR. CHIEF JUSTICE BURGER, with whom MR. JUSTICE
BLACKMUN joins, dissenting.
The history of this cause is so remarkable-indeed
unique in the annals of modern federal jurisprudence, so
far as I am aware-that I must preface my dissent on the
390 OCTOBER TERM, 1972
BuRGER, C. J., dissenting 409 u. s.
merits with a recital of the course of this litigation over
nearly a dozen years. This protracted litigation, conducted
at enormous cost, now comes. to an abrupt end on
an issue directly presented to this Court nearly eight
years ago but not decided. As the strange history will
demonstrate, resolution of the issue when it was first
before the Court, as now decided, would have terminated
this litigation without having the parties invest untold
efforts and vast expense in a now wholly irrelevant contest
over the proper measure of damages.
On June 30, 1961, TWA filed a complaint against
the Hughes Tool Co. in the United States District
Court for the Southern District of New York, charging
violations of the antitrust laws. On February 7,
1962, the District Court filed a pretrial order, appointing
a Special Master to act in discovery and
deposition proceedings. After discovery proceeded to
an impasse, on February 1, 1963, the District Court
ordered Howard Hughes to appear for a deposition and
ordered the defendant Toolco to produce certain documents
that it had previously refused to produce.
Shortly thereafter, on February 7, 1963, the District
Court entered a memorandum opinion and order denying
a motion to dismiss TWA's complaint.1 In response
to the order to produce Hughes for examination along
with the contested documents, Toolco filed a "notice
of position," on February 8, 1963, advising the District
Court and TWA that it had chosen to rest on the merits
of its positions in order to "avoid the burdens and expenses
involved in further pretrial and trial proceedings
prior to the time that an appellate court has had the
opportunity to rule upon the decisions and orders heretofore
made herein."
This "notice of position" constituted a default and
accordingly judgment was entered against Toolco, on
1 32 F. R. D. 604.
HUGHES TOOL CO. v. TRANS WORLD AIRLINES 391
363 BuRGER, C. J., dissenting
May 3, 1963. The District Court then certified to the
United States Court of Appeals for the Second Circuit
the question of the sufficiency of the complaint on which
the default judgment was based. The issue of damages
was referred to the Special Master. On June 2, 1964,
the Second Circuit issued an opinion in which it decided
that the District Court had jurisdiction of the
action and that the orders of the Civil Aeronautics
Board affecting the relationship between the parties did
not constitute a good defense to the antitrust claims
of TWA.2 On November 16, 1964, this Court granted
certiorari to review the judgment of the Court of Appeals.
3 After full argument and briefing, but without
opinion, the writ was dismissed as improvidently granted
on March 8, 1965,4 and the case returned to the District
Court for further proceedings to determine the
amount of TWA's damages.
For nearly three years, proceedings were held before
the Special Master 5 to determine the appropriate amount
of damages. On December 23, 1969, the District Court
filed a new opinion confirming a report of the Special
Master awarding damages amounting to $137,611,435.95."
On April 14, 1970, the District Court filed a superseding
order in which it added to the TWA award
$7,500,000 as a reasonable attorney's fee (representing
some 56,000 hours of work at a "mixed rate" of $128
per hour) and $336,705.12 in costs, for a total of
$145,448,141.07 , plus interest. The judgment was stayed
pending a renewed appeal to the Court of Appeals, which,
2 332 F. 2d 602.
3 379 U. S. 912.
• 380 u. s. 248.
5 Herbert Brownell replaced J. Lee Rankin as Special Master when
Rankin resigned in December 1965 to become Corporation Counsel
for New York City.
6 308 F. Supp. 679.
392 OCTOBER TERM, 1972
BURGER, C. J., dissenting 409 u. s.
on September 1, 1971, affirmed the judgment of the
District Court, with only slight modification.'
This Court again granted certiorari on February 22,
1972,8 and today-more than 11 years after it all began
and more than seven years after the now-determinative
issue was brushed aside by this Court-the
Court discovers that the actions alleged in TWA's complaint
were immunized from the antitrust laws by the
Civil Aeronautics Board's role in the Toolco-TW A
relationship. This, of course, was the precise issue
tendered to this Court for decision in 1964 in order to
secure an early decision that might end the contest
before enormous additional sums were expended in proving
damages resulting from the actions alleged in TWA's
complaint.9
7 449 F. 2d 51.
8 405 U. S. 915.
9 Toolco's 1964 petition for certiorari posed three questions, the
first being as follows:
"1. Where the Civil Aeronautics Board has approved the acquisition
of a controlling stock interest in an air carrier by a person
engaged in a phase of aeronautics and has further approved or has
jurisdiction to approve all relevant transactions between them under
an Act which immunizes the approved transactions from the antitrust
laws, does the district court have jurisdiction to entertain a
complaint by such air carrier alleging that the transactions between
the subsidiary air carrier and its parent violated the antitrust laws
in that they constituted a conspiracy, an attempt to monopolize and
an acquisition in violation of the antitrust laws?"
Toolco's petition in the present case posed seven questions, the
fourth of which was as follows:
"4. When the Civil Aeronautics Board has approved an acquisition
of control over an air carrier by a person engaged in a phase of
aeronautics and has further approved all relevant transactions between
them, is the exercise of that control to determine how the air
carrier acquires aircraft and the necessary financing therefor immunized
from the operation of the antitrust laws under Section 414
of the Federal Aviation Act?"
HUGHES TOOL CO. v. TRANS WORLD AIRLINES 393
363 BURGER, C. J ., dissenting
This capsule chronicle of the present litigation ha.rely
suggests its factual complexity. To describe this litigation
as a 20th-century sequel to Bleak House is
only a slight exaggeration. Dickens himself could
scarcely have imagined that 56,000 hours of lawyering
at a cost of $7,500,000 would represent the visible expenses
of only one party to a modern intercorporate
conflict, to say nothing of the time of corporate and
management personnel diverted from their daily tasks.1°
Indeed, today's "ending" is quite a surprise-as great
a surprise for some of us as it must be for the parties.
I suggest it will even surprise the victors, for in
the oral argument to this Court only a few fleeting
comments were devoted to the point that now becomes
the dispositive issue in the case. Of course, this was
a sound allocation by counsel of the limited time allowed
for argument since the Court had not considered the
point worthy of notice in 1964 when the case was first
here.
To be sure, all this is secondary to the correctness
of today's decision. I am unable to join the Court's
disposition because I believe it departs markedly from
our prior decisions uniformly holding that repeal of
the antitrust laws to accommodate other federal regulatory
statutes "is to be regarded as implied only if
necessary to make the [regulatory scheme] work, and
even then only to the minimum extent necessary." Silver
v. New York Stock Exchange, 373 U.S. 341, 357 (1963).
In particular, the Court today substantially enlarges the
scope of Pan American World Airways v. United States,
371 U. S. 296 (1963), a case which the Court says "requires"
the result it reaches today-notwithstanding that
10 It is not unreasonable to assume that the battalions of lawyers
for these adversaries devoted substantially the same effort and time,
thus bringing counsel fees in the aggregate to the sum of $15 million
394 OCTOBER TERM, 1972
BuRGER, C. J., dissenting 409U. S.
Pan American's teaching was available in Volume 371 of
the United States Reports when the Court dismissed
the writ in this cause as improvidently granted.
I
Passing to the merits of the Court's holding, I find it
necessary at the outset to supplement the Court's description
of the statutory framework from which this litigation
arises. Section 408 of the Federal Aviation Act of
1958, 49 U. S. C. § 1378,11 requires the approval of the
11 Section 408, 49 U.S. C. § 1378, reads in pertinent part as follows:
"(a) Prohibited acts.
"It shall be unlawful unless approved by order of the Board as
provided in this section-
"(2) For any air carrier, any person controlling an air carrier,
any other common carrier, or any person engaged in any other phase
of aeronautics, to purchase, lease, or contract to operate the properties,
or any substantial part thereof, of any air carrier;
"(5) For any air carrier or person controlling an air carrier, any
other common carrier, any person engaged in any other phase of
aeronautics, or any other person to acquire control of any air carrier
in any manner whatsoever: Provided, That the Board may by
order exempt any such acquisition of a noncertificated air carrier
from this requirement to the extent and for such periods as may be
in the public interest;
"(b) Application to Board; hearing; approval; disposal without
hearing.
"Any person seeking approval of a consolidation, merger, purchase,
lease, operating contract, or acquisition of control, specified in subsection
(a) of this section, shall present an application to the Board,
and thereupon the Board shall notify the persons involved in the
consolidation, merger, purchase, lease, operating contract, or acquisition
of control, and other persons known to have a substantial interest
in the proceeding, of the time and place of a public hearing.
Unless, after such hearing, the Board finds that the consolidation,
HUGHES TOOL CO. v. TRANS WORLD AIRLINES 395
363 BuRGER, C. J., dissenting
CAB when any person 12 seeks to acquire a controlling
interest in any air carrier. The Board may approve
such acquisition only if it finds that the acquisition
will be consistent with the public interest. § 408 (b),
49 U. S. C. § 1378 (b). Specifically, the Board "shall
not approve any ... acquisition of control which would
result in creating a monopoly or monopolies and thereby
restrain competition or jeopardize another air carrier
not a party to the . . . acquisition of control." Ibid.
The Act fails to elaborate on the scope of its command
to the CAB not to approve any acquisition that would
create a monopoly and thereby restrain competition.
In other words, the Act fails to specify the relevant
market or markets to which the Board must look in
determining whether a particular acquisition or exercise
of control is forbidden. Section 102 of the Act,13
merger, purchase, lease, operating contract, or acquisition of control
will not be consistent with the public interest or that the conditions
of this section will not be fulfilled, it shall by order approve such
consolidation, merger, purchase, lease, operating contract, or acquisition
of control, upon such terms and conditions as it shall find to be
just and reasonable and with such modifications as it may prescribe:
Provided, That the Boa rd shall not approve any consolidation,
merger, purchase, lease, operating contract, or acquisition of control
which would result in creating a monopoly or monopolies and
thereby restrain competition or jeopardize another air carrier not a
party to the consolidation, merger, purchase, lease, operating contract,
or acquisition of control . . . . "
12 Section 408 (a) (5) was amended in 1969 to require Board approval
of an acquisition of control of an air carrier by "any other
person." 83 Stat. 103, 49 U. S. C. § 1378 (a) (5). Prior to 1969,
the Act required Board approval only for acquisition of control of an
air carrier by another air carrier, by persons having other specified
transportation interests, or by a "person engaged in any other phase
of aeronautics."
13 Section 102, 49 U. S. C. § 1302, reads:
"In the exercise and performance of its powers and duties under
this chapter, the Board shall consider the following, among other
396 OCTOBER TERM, 1972
BURGER, C. J., dissenting 409 u. s.
enumerating the general policies that are to guide
the Board, is similarly ambiguous. It includes among
those factors to be weighed in evaluating the "public
interest" factor under the Act "[c]ompetition to the
extent necessary to assure the sound development of
an air-transportation system properly adapted to the
needs of the ... commerce of the United States .... "
Again, though, the question is: competition by whom?
In which market or markets?
There can be no doubt the Board is responsible for
promoting competition in some sense; our inquiry is
whether the Board is charged with fostering competition
both within the air transportation market and
without, in other markets essentially unrelated to air
transportation and alien to the purposes for which the
Board was created. Resolution of this ambiguity is
things, as being in the public interest, and in accordance with the
public convenience and necessity:
"(a) The encouragement and development of an air-transportation
system properly adapted to the present and future needs of
the foreign and domestic commerce of the United States, of the
Postal Service, and of the national defense;
"(b) The regulation of air transportation in such manner as to
recognize and preserve the inherent advantages of, assure the highest
degree of safety in, and foster sound economic conditions in, such
transportation, and to improve the relations between, and coordinate
transportation by, air carriers;
"(c) The promotion of adequate, economical, and efficient service
by air carriers at reasonable charges, without unjust discriminations,
undue preferences or advantages, or unfair or destructive competitive
practices;
" ( d) Competition to the extent necessary to assure the sound
development of an air-transportation system properly adapted to the
needs of the foreign and domestic commerce of the United States,
of the Postal Service, and of the national defense;
" ( e) The promotion of safety in air commerce; and
"(f) The promotion, encouragement, and development of civil
aeronautics."
HUGHES TOOL CO. v. TRANS WORLD AIRLINES 397
363 BURGER, C. J., dissenting
critical to proper interpretation of § 414 of the Act,14
which confers antitrust immunity upon "[a]ny person
affected by any order made under [ § 408, inter alia] ...
insofar as may be necessary to enable such person
to do anything authorized, approved, or required
by such order." What is "authorized, approved, or required"
by the CAB must surely be determined, at least
to a very large extent, by the scope of the Board's mandate
to evaluate potentially anticompetitive conduct.
II
The Court today neglects to resolve, or indeed even
mention, this problem, and well it might, for the legislative
history of the Act demonstrates that the competitive
concerns that troubled the framers of the
Aviation Act related exclusively to competition by and
among air carriers. A major impetus to federal regulations
of air transportation was the failure of the preceding
era of freely competitive price and route warfare
to bring stability to the Nation's air transport industry.
In his statement accompanying the report of the Committee
on Commerce on the Civil Aeronautics Act of
1938, Senator Copeland stated:
"Competition among air carriers is being carried to
an extreme, which tends to jeopardize the financial
status of the air carriers and to jeopardize and render
unsafe a transportation service appropriate to the
needs of commerce and required in the public in-
14 Section 414, 49 U. S. C. § 1384, reads:
"Any person affected by any order made under sections 1378, 1379,
or 1382 of this title shall be, and is hereby, relieved from the operations
of the 'antitrust laws,' as designated in section 12 of Title 15,
and of all other restraints or prohibitions made by, or imposed
under, authority of law, insofar as may be necessary to enable such
person to do anything authorized, approved, or required by such
order."
398 OCTOBER TERM, 1972
BuRGER, C. J., dissenting 409 U.S.
terest, in the interests of the Postal Service, and of
the national defense. Aviation in America today,
under present laws, is unsatisfactory to investors,
labor, and the air carriers themselves. . . . The committee
feels that this bill will not only promote an
orderly development of our Nation's civil aeronautics,
but by its immediate enactment prevent the
spread of bad practices and of destructive and wasteful
tactics resulting from the intense competition
now existing within the air-carrier industry." S.
Rep. No. 1661, 75th Cong., 3d Sess., 2 (1938).
Similar views were voiced by the Chairman of the House
Committee on Interstate and Foreign Commerce, Congressman
Clarence Lea:
"Under existing law there is little economic regulation
of air carriers. Routes are awarded not
upon the basis of the ability of the particular a.ir
carrier to perform the service or the requirements
of the public convenience and necessity, but upon
the letting of air-mail contracts to the lowest responsible
bidders. This system has completely
broken down in recent months, because the air
carriers, in their desire to secure the right to carry
the mail over a new route, have made absurdly
low bids, indeed, have virtually evinced a willingness
to pay for the privilege of carrying the mail over a
particular route. A route once secured, however,
under the existing system of air-mail contracts does
not protect the air carrier operating that route from
possible cutthroat competition, for air carriers are
not required to secure a certificate or other authorization
from the Government before beginning
operations, other than one based upon safety requirements.
Nor, is there any authority in the
Federal Government under existing law to prevent
363
HUGHES TOOL CO. v. TRANS WORLD AIRLINES 399
BURGER, C. J., dissenting
competing carriers from engaging in rate wars which
would be disastrous to all concerned.
"The result of this chaotic situation of the air
carriers has been to shake the faith of the investing
public in their financial stability and to prevent
the flow of funds into the industry." H. R. Rep. No.
2254, 75th Cong., 3d Sess., 2 (1938).
A key aim of the new legislation, then, was to eliminate
"cutthroat competition" among air carriers. From
the beginning, the air carriers pushed for a scheme of
regulation to control entry and regulate price competition
in the air transportation market. Yet equally
soon after serious consideration of an air regulation
bill began, the prospect of regulation gave rise to concern
that the new system of regulation might be used
to foster the development of an "airline trust" or similar
overconcentration in the air transportation market.
In 1937, Commissioner Eastman of the Interstate Commerce
Commission, who supported full federal regulation
of air transportation, reminded the members of the
Senate Commerce Committee that the proposed legislation
would give the Commission unlimited authority
to consolidate the Nation's airlines and, possibly, to do
away with competition altogether. Eastman suggested
that language be drafted to preclude undue consolidation
among carriers.15 As one commentator has stated,
"Eastman's suggestion appears to have been heeded,
for when the [1937] bill was reported, the merger
clause contained [ the language which became the antimonopoly
restriction of section 408] ." Comment,
Merger and Monopoly in Domestic Aviation, 62 Col.
15 Testimony of Joseph B. Eastman, Member, Interstate Commerce
Commission, on S. 2 and S. 1760 before a Subcommittee of the Senate
Committee on Interstate Commerce, 75th Cong., 1st Sess., 334-335
{1937).
400 OCTOBER TERM, 1972
BuRGER, C. J., dissenting 409 u. s.
L. Rev. 851, 856-857 (1962). Final consideration of
the aviation bill was postponed until the next session
of Congress, but when Senator McCarran and Representative
Lea introduced legislation at the 1938 session
to create an independent air regulatory agency, both
bills "contained a monopoly proviso virtually identical
to the one that had been added to the 1937 bills, as
reported." Id., at 857.
To implement § 408's scheme for balancing stability
with competition in the air transportation market,
the bill provided explicit antitrust immunity in § 414.16
The debates over § 414-like the origins of § 408-reflect
congressional concern with competition in the air
transportation market. Senator McKellar asked Senator
Truman, a major supporter of the aviation bill, if
it were true that the proposed legislation would repeal
the antitrust provisions of the existing airmail laws.
When Senator Truman answered in the affirmative, Senator
McKellar complained that:
"[SJuch a provision is very inadvisable, and very
bad legislation, and ought never to be agreed to.
16 At the House hearings, Colonel Edgar Gorrell, President of the
Air Transport Assn. of America, testified that a major element of
uncertainty that kept money from flowing into commercial aviation
was "cutthroat competition, ... where one company went out to
make warfare against another and wound up by destroying the capital
of both. . . . That is a fact. It has happened, and the only agency
or agent in America today that can stop it is myself; and the moment
I stick my neck out to stop it, if I did, I would face a jail sentence
and a fine for violating the antitrust laws. Our companies today
cannot lawfully agree on prices." Hearings on H. R. 9738 before
the House Committee on Interstate and Foreign Commerce, 75th
Cong., 3d Sess., 309.
See Silver v. New York Stock Exchange, 373 U.S. 341,347 (1963),
where we noted that the relevant "collective action ... would, had it
occurred in a context free from other federal regulation, constitute a
per se violation of § 1 of the Sherman Act."
363
HUGHES TOOL CO. v. TRANS WORLD AIRLINES 401
BURGER, C. J., dissenting
As everyone knows, at the present time the air
companies are complaining that they are not allowed
to consolidate. Some years ago we allowed
them to consolidate, and the result was the greatest
ill that ever befell the air companies. The same
ill will befall them again if such combinations are
permitted.
"I desire to state that I cannot vote for any
bill which proposes that a commission shall give air
companies the right to combine and confederate
into a huge monopoly. I regret very much that
I shall have to vote against the bill." 83 Cong.
Rec. 6728-6729.
Senator McCarran disagreed. He told Senator McKellar
that the bill "contain [ ed] every protection against the
very thing which the Senator from Tennessee fears."
Sen3ttor Truman reminded his colleagues of the § 408
proviso requiring that the Board approve no acquisition
of control that would "result in creating a
monopoly or monopolies and thereby unduly restrain
competition or unreasonably jeopardize another air carrier
not a party to the consolidation .... " Senator
McCarran agreed that "every precaution has been written
into the bill so that the antitrust laws and all laws
for the prevention of combinations and monopolies shall
be enforced. . . . Protection has been written into the
bill against combinations and monopolies in restraint
of trade, in restraint of commerce, and in restraint of
everything which would constitute a monopoly." Id.,
at 6729. Senator Copeland recited five different provisions
of the bill "where the question of monopoly
is dealt with in one way or another with the view
to its control and prevention." When the debate
turned from the discussion of general principles to ap402
OCTOBER TERM, 1972
BuRGER, C. J., dissenting 409 u. s.
plication of those principles to a particular fact situation,
again the Senators spoke of consolidation and
competition by air carriers.11
Thus, the debates, as well as the remainder of the
legislative history of the 1938 Act, reflect that the Congress
that enacted the 1938 legislation was concerned
only with problems of competition and monopoly in
the air carrier market. Moreover, the debates show that
there was considerable concern over even the limited
grant of antitrust immunity deemed necessary to provide
the proposed authority with sufficient flexibility
to administer the air carrier market in the public interest.
It is most unlikely that the concerns expressed
would have been put to rest by extending the new
authority's pre-emptive antitrust responsibilities under
§ 408 beyond the air transportation market into every
market that might happen to be touched by transactions
with an air carrier.
III
Our holding in Pan American World Airways v. United
States, 371 U. S. 296, becomes important in this setting.
There, the Government filed an antitrust complaint alleging,
inter alia, anticompetitive interference by Pan
American with the route acquisitions of Panagra, a joint
venture of Pan American World Airways and W. R.
Grace & Co. This court held that the complaint should
be dismissed. The Court stood behind the presumption
against implied antitrust immunity, 371 U. S., at 304-
305, n. 9; however, for two interdependent reasons, the
Court held that the conduct alleged in Panagra's complaint
was immunized from the antitrust laws. First,
the conduct specified in the complaint fell within the
17 83 Cong. Rec. 6730-6731.
HUGHES TOOL CO. v. TRANS WORLD AIRLINES 403
363 BURGER, C. J., dissenting
Board's basic mission and competency-the regulation
of entry into and competition within the air transportation
market:
"Limitation of routBs and divisions of territories
and the relation of common carriers to air carriers
are basic in this regulatory scheme." Id., at 305.
Second, and equally important, we held that § 411 of
the Act gave the Board a specific substantive mandate
to investigate and regulate unfair practices and unfair
methods of competition among air carriers in the air
transportation market, id., at 302, 308.
In Pan American the Board had not only the statutory
power to supervise the relevant transactions but also
the statutory responsibility to remedy the abusive features
of those transactions specified in the Panagra complaint.
Consequently, "If the courts were to intrude
independently with their construction of the antitrust
laws, two regimes might collide." Id., at 310. Even
this narrow holding provoked the dissent of MR. JusTICE
BRENNAN, in which Mr. Chief Justice Warren joined.
The present case is different from Pan American in
a critical respect. Here, we may assume the Board
possesses full authority under the Act to supervise § 408
transactions between a controlling person and an air
carrier-just as in Pan American, the allocation of routes
and division of territories constituted the basic stuff of
the Board's day-to-day business. Yet, unlike the acts
specified by Panagra in Pan American, the acts charged
in TWA's complaint are components of an antitrust
conspiracy to restrain trade in the aircraft supply and
manufacturing market. Section 411 does not command
Board responsibility for preventing such a conspiracy,
since § 411 is in terms restricted to unfair methods of
competition "in air transportation or the sale thereof."
Thus, to sustain its result in this case, the Court must
404 OCTOBER TERM, 1972
BURGER, C. J., dissenting 409 U.S.
fall back on one (or both) of two propositions: it must
either find some specific authority in the Federal Aviation
Act other than § 411 for its conclusion that the Board's
mandate to police anticompetitive practices extends to
the subject matter of TWA's complaint; or it must consider
such statutory authority irrelevant to a finding
of antitrust immunity. Neither approach 1s, m my
view, sound.
IV
A. Improbable as it seems, there is much in the Court's
opinion to suggest that its judgment rests upon the
assumption that antitrust immunity is conferred here
simply by virtue of a rather extensive grant of procedural
authority for the Board to intervene in the
control-person-air-carrier relationship. The Court recounts
in detail the history of the Board's involvement
in the Toolco-TW A relationship-though the Court does
not suggest, as it cannot, that the Board specifically
considered the actions by Toolco alleged in TWA's complaint
to violate the antitrust laws.ls The Court tells
18 Between 1956 and 1960, the Board entered various modification
orders permitting Toolco and TWA to enter into short-term leases
of jets and permitting various limited extensions of those leases.
Specifically, the record shows that the Board approved 12 transactions
between Toolco and TWA from 1956 to 1960:
-on May 17, 1956, the Board approved sale of 33 Lockheed
aircraft, and spare parts, by Toolco to TWA;
-on Dec. 18, 1956, the Board approved a proposal for TWA to
borrow some $10 million in operating capital from Toolco;
-on June 11, 1957, the Board approved a proposal whereby Toolco
would refinance TWA's May 17, 1956, purchase of Lockheed
aircraft;
-on Dec. 30, 1958, the Board again approved a transaction relating
to the nonjet Lockheed aircraft;
-on Feb. 26, 1959, the Board approved a proposal whereby TWA
would lease one Boeing 707-131 aircraft from Toolco, plus spare
parts, for the purpose of training its crews to fly jet aircraft ;
-on May 15, 1959, the Board approved the lease by Toolco to
HUGHES TOOL CO. v. TRANS WORLD AIRLINES 405
363 BURGER, C. J., dissenting
us that in 1950, the Board embarked upon a wide-ranging
evaluation of the treatment afforded TWA by Toolco
as the controlling person-though the Court does not sug-
TWA of 11 Boeing 707-131 jet a.ircraft, with provision for obtaining
spare parts from Tool co and leasing spare jet engines;
-on July 1, 1959, the Board approved the lease of four additional
aircraft by Toolco to TWA, and the extension of the leases on the
previous jet aircraft. The leases were prolonged pending the working
out of "definitive financing arrangements" which, presumably,
would enable TWA to acquire ownership of the aircraft;
-on Sept. 30, 1959, the Board again approved extension of the
jet leases upon the representation of Toolco and TWA that financing
arrangements had not yet been completed;
-on Jan. 29, 1960, the Board approved the lease by Toolco to
TWA of eight 707-13l's and eight Convair 880's (all jet aircrnft),
on a day-to-day basis, and again with provision for spare parts. This
approval was again premised on completion in the near future of
"definitive financing arrangements permitting [TWA] to operate
these aircraft on a permanent basis";
-on June 23, 1960, the Board approved acquisition-i. e., purchase-
by TWA of 25 Boeing 707 and 20 Convair 880 jet aircraft,
with $260 million to be raised by an offering of bonds and junior
securities. Toolco was to guarantee the subscription and would lend
$50 million to TWA to enable it to make the offering;
-on July 21, 1960, the Board approved acquisition of title to two
additional jet aircraft by TWA from Toolco; and
-finally, on December 29, 1960, the Board approved creation of
a voting trust for the placement of Toolco's holdings in TWA.
As the Court's opinion observes, damages were awarded for those
allegations of the TWA complaint that charged that TWA had been
damaged by the diversion of six Convairs by Toolco to Northeast
Airlines; by the temporary retention by Tool co of four Convairs and
the ultimate lease of these aircraft to Northeast; by the diversion
of six Boeing jet aircraft, of 33 ordered, to Pan American Airways,
TWA's principal trans-Atlantic competitor; by the lease of planes
to TWA, in lieu of sales that would have been more to TWA's financial
interest; and by the late delivery of 47 of the 63 jets procured
for TWA by Toolco.
With the exception of the decision to lease planes to TWA rather
than sell them, the actions alleged to have damaged TWA related,
not to the documented structure of Toolco's transactions with TWA,
as presented to and approved in fact by the Board, but rather to
406 OCTOBER TERM, 1972
BuRGER, C. J., dissenting 409 U.S.
gest, as again it cannot, that the 1950 proceeding of
the Board even remotely considered Toolco's actions
as components of an antitrust conspiracy directed toward
the aircraft supply and manufacturing market.19 Finally,
the manner in which Toolco executed the paper transactions, without
Board approval or knowledge. The leases were never considered
in relation to other means of aircraft acquisition, as the complaint
required they be viewed. The Court dismisses these discrepancies
by observing that the restraint alleged in Pan American was held
to be immune "even though the CAB had taken no action to investigate,
let alone act on, the alleged misfeasance as the Board has done
here for over 16 years." In other words, if the Board were responsible
for complete supervision of the Toolco-TW A transactions,
immunity would not be undermined by the Board's failure to undertake
such supervision in fact.
At best, though, the Court's historical recitation is irrelevant since
it in no way explains why it was the Board's statutory responsibility
to consider the transactions between Toolco and TWA as components
of an antitrust conspiracy allegedly pointed toward the aircraft
supply and manufacturing market.
19 The Board's 1950 proceeding undertook "to consider the over-all
impact of the acquirer's plans and policies with respect to the controlled
carrier." 12 C. A. B. 192, 196. The Board reviewed the past
transactions involving the financing of aircraft. In particular, the
Board considrred whether Toolco had properly resolved, in favor of
debt financing, a longstanding dispute between the Toolco and
TWA managements over the relative merits of debt or equity financing
of new aircraft. The Board concluded that Toolco's finanri1tl
and technical contributions to TWA had been of considerable benefit
to the carrier. On the other hand, the Board viewed TWA's capitalization
as "neither reasonable nor sound" since "[i]ts proportion of
debt to total capitalization is far too large." Id., at 218. Yet "the
extent to which Toolco and its principal officers can be held directly
or principally responsible for TWA's present capital structure poses
a most difficult problem," since "[nJumerous factors ... operate to
complicate and often delay agreement on a financial plan." Id., at
221. On balance, the Board concluded that Toolco control of TWA
had been in the public interest, and it approved the additional
acquisition by Toolco of TWA stock.
While it is true that the Board's evaluation of Toolco's "stewardship"
over TWA involved decisions regarding the acquisition of
HUGHES TOOL CO. v. TRANS WORLD AIRLINES 407
363 BURGER, C. J., dissenting
the Court makes much of the powers of investigation
and continuing supervision provided by § 415 of the
Act-though the Court does not acknowledge that those
powers are explicitly limited by Congress to Board
actions "[f] or the purpose of exercising and performing
[ the Board's] powers and duties under this Act," and
are therefore no indication of the scope of the Board's
substantive responsibility.
The weakness inherent in the Court's recitation of
"procedural underbrush" is that it leaps from the premise
of the Board's acknowledged procedural power to
intervene in § 408 "control" transactions to the conclusion
that the Board's substantive statutory duty to
consider the anticompetitive impact of such transactions
is or, for some reason of policy, ought to be equally
unlimited. Yet, inescapably, it is the Board's substantive
mandate upon which antitrust immunity properly turns;
as our prior decisions teach, the potential of colliding
substantive judgments forces the carving out of antitrust
immunity, not simply the overlapping of jurisdiction
to intervene in a particular type of transaction.
We have uniformly insisted upon a substantive mandate
to the regulatory agency to consider fully and remedy
the relevant anticompetitive conduct. See, in addition
to Pan American, supra, United States v. Borden Co.,
308 U. S. 188, 206 (1939) (relevant provision of Capper-
Volstead Act "does not cover the entire field of the
Sherman Act"); Georgia v. Pennsylvania R. Co., 324
aircraft, including the method of financing and the timing of purchase
and lease decisions, there is nothing in the Board's decision to
indicate that the Board's 1950 proceeding undertook to analyze
Toolco's control of TWA from the perspective of Toolco's own market
position. Consequently, the 1950 proceeding in no way suggests
that the Board has deviated from its consistent position that Congress
did not entrust it with the exclusive responsibility for policing
anticompetitive effects of § 408 transactions.
408 OCTOBER TERM, 1972
BURGER, C. J., dissenting 409 U.S.
U. S. 439, 458 (1945) ("no warrant in the Interstate
Commerce Act and the Sherman Act for saying that the
authority to fix joint through rates clothes with legality a
conspiracy to discriminate against a State or a region, to
use coercion in the fixing of rates, or to put in the hands
of a combination of carriers a veto power over rates proposed
by a single carrier"); Milk Producers Assn. v.
United States, 362 U. S. 458, 469 (1960) (§ 7 of Clayton
Act immunized "transactions duly consummated pursuant
to authority given by ... the Secretary of Agriculture"
under statutory authority, but this included only marketing
agreements and not agreements or restraints of
wider scope typically covered by the antitrust laws);
California v. Federal Power CGmm'n, 369 U. S. 482, 485
(1962) ("Here ... while 'antitrust considerations' are
relevant to the issue of 'public interest, convenience, and
necessity' ... there is no 'pervasive regulatory scheme' ...
including the antitrust laws that has been entrusted
to the Commission"); United States v. Phil,adelphia
National Bank, 374 U. S. 321, 351- 352 (1963) (though
Comptroller of Currency was required to consider effect
on competition in passing on bank merger, not required
to give the factor any particular weight, to hold a hearing,
or to subject his determination to judicial review).
B. The major premise of the Court's decision must,
then, be that the Federal Aviation Act imposes on the
Board full responsibility for evaluating and preventing
anticompetitive impact, of whatever variety, flowing from
a control transaction touching an air carrier. As the
Court puts it, "Competition and monopoly-two ingredients
of the antitrust laws-are thus standards governing
the CAB's exercise of authority in granting, allowing,
or expanding or contracting the control which Toolco
had over TWA by reason of the various orders issued
by the CAB under § 408."
HUGHES TOOL CO. v. TRANS WORLD AIRLINES 409
363 BURGER, C. J., dissenting
I cannot agree with the Court's reading of the provisions
of the Act that require the Board to maintain
competition. The Court offers no support for its reading
of those provisions; and, as I have already indicated,
the legislative history surely provides none. Moreover,
the Board itself has consistently interpreted the Act
not to impose on it the expansive role the Court now
perceives for the first time. In a brief amicus curiae filed
in 1964 and again in 1972, the Board disclaimed the mandate
or the competency to police the aircraft supply
market or any non-air carrier market which may be
threatened by anticompetitive acts involving control of
an air carrier. We have only recently reaffirmed the wellestablished
doctrine that the consistent administrative
construction of federal legislation "is entitled to great
weight." Trafficante v. Metropolitan Life Insurance Co.,
ante, at 210; Udall v. Tallman, 380 U. S. 1, 16
(1965); Griggs v. Duke Power Co., 401 U.S. 424, 433-434
(1971). As for the Board's competence to do the job assigned
it by the Court, we are not tied to the Board's
self-appraisal, but "it is entitled to some weight," particularly
when the legal issues surrounding Toolco's alleged
behavior in the aircraft supply market "are typical antitrust
problems and not at all typical airline law problems."
"The search for a practical accommodation of court and
agency ... is not advanced by our ignoring the agency's
considered sense of self-limitation." Pan American World
Airways, supra, at 328, 330 (BRENNAN, J., dissenting).
If the Board's basic function, the Act's legislative
history, and the Board's view of its own mandate and
competence were not enough to convince me that
the Court's reading of the Act is erroneous, these
factors are at least enough to raise substantial
doubts. Such doubts, as our prior cases teach, are
enough to secure the continuing availability of anti410
OCTOBER TERM, 1972
BuRGER, C. J., dissenting 409U. S.
trust or other judicial remedies as additional safeguards
for protection of the public interest. "Repeals
of the antitrust laws by implication from a regulatory
statute are strongly disfavored." United States v. Philadelphia
National Bank, supra, at 350, United States
v. Borden Co., 308 U. S., at 198 ("a cardinal principle
of construction that repeals by implication are not
favored"). See United States v. Socony-Vacuurn Oil
Co., 310 U. S. 150, 226-228 (1940); Georgia v. Pennsylvania
R. Co., 324 U. S., at 456-457; California v.
Federal Power Comm'n, 369 U. S., at 485, and 14 additional
cases cited in MR. JUSTICE BRENNAN's opinion for
the Court in United States v. Philadelphia National
Bank, supra, at 350 n. 28. The traditional aversion to
implied repeal of the antitrust laws should have particular
force in the context of the Federal Aviation Act, which
explicitly states that "[n]othing contained in this chapter
shall in any way abridge or alter the remedies now
existing at common law or by statute, but the provisions
of this chapter are in addition to such remedies."
49 U.S. C. § 1506; and see Pan American World Airways,
supra, at 321 (BRENNAN, J., dissenting).
Nor does the Court's result seem justifiable for practical
reasons of regulatory accommodation. Indeed, I
find the Court's expansive reading of the Board's antitrust
responsibilities inconsistent with our duty "to
make the [regulatory scheme] work." Silver v. New
York Stock Exchange, 373 U. S., at 357. Section 408 of
the Act has now been amended to require Board approval
when any person, whether or not engaged in any aspect of
aeronautics, acquires a controlling interest in an air carrier.
In this age of conglomerate mergers, the time
may soon arrive when another industrial corporation
seeks to acquire control of an air carrier. It may well
be that some similar future acquisition may be in the
best interests of American air transportation. It may
HUGHES TOOL CO. v. TRANS WORLD AIRLINES 411
363 BuRGER, C. J., dissenting
likewise pose serious anticompetitive dangers. The
Court's decision today will, I think, provide a serious
obstacle to proper consideration of any such transaction
that may be proposed in future years, since the Board
will be faced with a difficult dilemma. If it approves the
control acquisition, under the terms of the Court's decision
the Board engages itself to exercise continuing
supervision over all aspects of the control relationship,
including the anticompetitive impact of the relationship
in the computer market, the hotel market, the
insurance market, the credit market, or whatever market
happens to be affected by the control transaction. Quite
understandably, the Board's response may be to play it
safe, in keeping with its own advice to this Court that
it cannot effectively function as the ombudsman of the
American economy whenever that economy touches air
transportation in any way. On the other hand, the
Board may feel obliged to heed the Court's yawning
interpretation of § 408. This course of action poses the
threat that the Board will have extended itself so far
beyond its competence and manpower that it is diverted
from those central tasks of regulation imposed on it by
§ 408 of the Act. In either event, I cannot imagine that
the Court's new reading of § 408 will contribute to the
effective enforcement of the congressional scheme for
promoting a sound national system of air transportation.
Returning to the 1964 efforts of Toolco to have the
Court resolve the issue of the Board's authority with
respect to the antitrust issue, it is elementary, of course,
that a denial of a petition for certiorari decides nothing.
It is also true that dismissal of a petition as improvidently
granted, after full oral argument and briefing, is not a
judgment on the merits in any sense. But when parties
to litigation reach that stage and the Court fails to
respond with a decision on the merits, lawyers read that
as a signal that the case should proceed. These parties
412 OCTOBER TERM, 1972
BURGER, C. J., dissenting 409 U.S.
did so-for nine years and more than 15 million dollars
in legal expense-only to be told by the Court now that
on the facts there is no legal liability-the very issue that
could as well have been decided in 1964 as today. All of
the litigation since 1964 has been confined to the massive
task of determining damages and it will not do to say
that the Court could not resolve the legal issues until
damages were ascertained. Precisely the contrary is true.
For these reasons, I respectfully dissent from the Court's
judgment. I would hold that actions permitted by the
Board under § 408 of the Federal Aviation Act are "authorized,
approved, or required" by the Board's action
(and thereby immunized by § 414 from antitrust liability)
only to the extent that the antitrust claim falls
within the core of the Board's statutory responsibility to
regulate air transportation while maintaining, in that
market1 the maximum degree of competition consistent
with the public interest. In view of the Court's disposition,
it would not be fruitful for me to express at length
my views on the other issues presented to the Court,
other than to note that, with modifications not relevant
to the overriding issue, I would affirm the judgment of
the Court of Appeals. At the very least, I would set
the cases for reargument so the dispositive issue might be
fully explored by the Court.
PHILPOTT v. ESSEX COUNTY WELFARE BOARD 413
Opinion of the Court
PHILPOTT ET AL. v. ESSEX COUNTY
WELFARE BOARD
CERTIORARI TO THE SUPREME COURT OF NEW JERSEY
No. 71-5656. Argued December 4, 1972-Decided January 10, 1973
A Social Security Act provision, 42 U. S. C. § 407, which prohibits
subjecting federal disability insurance benefits and other
benefits to any legal process, bars a State from recovering such
benefits retroactively paid to a beneficiary, and in this case no
exception can be implied on the ground that if the federal payments
had been made monthly there would have been a corresponding
reduction in the state payments. Pp. 415-417.
59 N. J. 75, 279 A. 2d 806, reversed.
DouGLAS, J., delivered the opinion for a unanimous Court.
George Charles Bruno argued the cause and filed a
brief for petitioners.
Ronald Reichstein argued the cause for respondent.
With him on the brief was Joseph E. Cohen.
Solicitor General Griswoid, Deputy Solicitor General
Friedman, Keith A. Jones, Wilmot R. Hastings, Edwin
Yourman, and Arthur Abraham filed a brief for the
United States as amicus curiae urging reversal.
George F. Kugler, Jr., Attorney General, Stephen
Skillman, Assistant Attorney General, and Joan W. Murphy,
Deputy Attorney General, filed a brief for the State
of New Jersey as amicus curiae urging affirmance.
MR. JUSTICE DOUGLAS delivered the opinion of the
Court.
Wilkes,1 one of the petitioners, applied to respondent,
one of New Jersey's welfare agencies, for financial as-
1 The payment in controversy is in a bank account under the
name of petitioner Philpott in trust for Wilkes.
414 OCTOBER TERM, 1972
Opinion of the Court 409U.S.
sistance based upon need by reason of permanent and
total disability. As a condition of receiving assistance,
a recipient is required by New Jersey law to execute
an agreement to reimburse the county welfare board for
all payments received thereunder.2 The purpose apparently
is to enable the board to obtain reimbursement out
of subsequently discovered or acquired real and personal
property of the recipient.
Wilkes applied to respondent for such assistance in
1966 and he executed the required agreement. Respondent
determined Wilkes' monthly maintenance needs to
be $108; and, finding that he had no other income, respondent
fixed the monthly benefits at that amount and
began making assistance payments, no later than January
1, 1967. The payments would have been less if
Wilkes had been receiving federal disability insurance
benefits under the Social Security Act, and respondent
advised him to apply for those federal benefits.
In 1968 Wilkes was awarded retroactive disability
insurance benefits under § 223 of the Social Security Act,
70 Stat. 815, as amended, 42 U. S. C. § 423, covering the
period from May 1966 into the summer of 1968. Those
benefits, calculated on the basis of $69.60 per month
for 20 months and $78.20 per month for six months,
2 N. J. Stat. Ann. § 44:7-14 (a) (Supp. 1972-1973) provides:
''Every county welfare board shall require, as a condition to granting
assistance in any case, that all or any part of the property,
either real or personal, of a person applying for old age assistance,
be pledged to said county welfare board as a guaranty for the
reimbursement of the funds so granted as old age assistance pursuant
to the provisions of this chapter. The county welfare board shall
take from each applicant a properly acknowledged agreement to
reimburse for all advances granted, and pursuant to such agreement,
said applicant shall assign to the welfare board, as collateral security
for such advances, all or any part of his personal property as the
board shall specify."
PHILPOTT v. ESSEX COUNTY WELFARE BOARD 415
413 Opinion of the Court
amounted to $1,864.20. A check in that amount was
deposited in the account which Philpott holds as trustee
for Wilkes. Under New Jersey law, we are told, the filing
of a notice of such a reimbursement agreement has the
same force and effect as a judgment. 59 N. J. 75, 80,
279 A. 2d 806, 809·.
Respondent sued to reach the bank account under
the agreement to reimburse. The trial court held that
respondent was barred by the Social Security Act, 49
Stat. 624, as amended, 42 U.S. C. § 407, from recovering
any amount from the account.3 104 N. J. Super. 280,
249 A. 2d 639. The Appellate Division affirmed. 109
N. J. Super. 48, 262 A. 2d 227. The Supreme Court reversed.
4 59 N. J. 75, 279 A. 2d 806. The case is here
on a petition for a writ of certiorari which we granted.
406 u. s. 917.
On its face, the Social Security Act in § 407 bars the
State of New Jersey from reaching the federal disability
payments paid to Wilkes. The language is all-inclusive:
5 "[NJ one of the moneys paid or payable . .. under
this subchapter shall be subject to execution, levy, attachment,
garnishment, or other legal process .... " The
3 Title 42 U. S. C. § 407 provides:
"The right of any person to any future payment under this subchapter
shall not be transferable or assignable, at law or in equity,
and none of the moneys paid or payable or rights existing under
this subchapter shall be subject to execution, levy, attachment,
garnishment, or other legal process, or to the operation of any
bankruptcy or insolvency law."
4 Since respondent did not claim a right to the entire federal
payment but only to the amount by which its own payments would
have been reduced had the federal benefits been received currently
rather than retroactively and because the stipulated facts were
ambiguous as to when respondent actually began making assistance
payments, the court remanded for a determination of the precise
amount of respondent's claim.
5 Supra, n. 3.
416 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
moneys paid as retroactive benefits were "moneys
paid ... under this subchapter"; and the suit brought
was an attempt to subject the money to "levy, attachment
... or other legal process."
New Jersey argues that if the amount of social :security
benefits received from the Federal Government had
been made monthly, the amount of state welfare benefits
could have been reduced by the amount of the federal
grant. We see no reason to base an implied exemption
from § 407 on that ground. We see no reason why a
State, performing its statutory duty to take care of the
needy, should be in a preferred position as compared
with any other creditor. Indeed, since the Federal Government
provides one-half of the funds for assistance
under the New Jersey program of disability relief, the
State, concededly, on recovery of any sums by way of
reimbursement, would have to account to the Federal
Government for the latter's share.
The protection afforded by § 407 is to "moneys paid"
and we think the analogy to veterans' benefits exemptions
which we reviewed in Porter v. Aetna Casualty Co.,
370 U. S. 159, is relevant here. We held in that case that
veterans' benefits deposited in a savings and loan association
on behalf of a veteran retained the "quality of
moneys" and had not become a permanent investment.
Id., at 161-162.
In the present case, as in Porter, the funds on deposit
were readily withdrawable and retained the quality of
"moneys" within the purview of § 407. The Supreme
Court of New Jersey referred to cases 6 where a State
which has provided care and maintenance to an incompetent
veteran at times is a "creditor" for purposes of
6 See Savoid v. District of Columbia, 110 U. S. App. D. C. 39,
288 F. 2d 851; District of Columbia v. Reilly, 102 U. S. App. D. C.
9, 249 F. 2d 524. See decision below, 59 N. J. 75, 85, 279 A. 2d
806, 812.
PHILPOTT v. ESSEX COUNTY WELFARE BOARD 417
413 Opinion of the Court
38 U. S. C. § 3101, and at other times is not. But § 407
does not refer to any "claim of creditors"; it imposes
a broad bar against the use of any legal process to reach
all social security benefits. That is broad enough to
include all claimants, including a State.
The New Jersey court also relied on 42 U. S. C. § 404,
a provision of the Social Security Act which permits the
Secretary to recover overpayments of old age, survivors,
or disability insurance benefits. But there has been
no overpayment of federal disability benefits here and
the Secretary is not seeking any recovery here. And
the Solicitor General, speaking for the Secretary, concedes
that the pecuniary interest of the United States
in the outcome of this case, which would be its aliquot
share of any recovery, is not within the ambit of § 404.
By reason of the Supremacy Clause the judgment
below is
Reversed.
418 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
DISTRICT OF COLUMBIA v. CARTER
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
No. 71-564. Argued November 6, 1972-Decided January 10, 1973
The District of Columbia is not a "State or Territory" within the
meaning of 42 U. S. C. § 1983, and the Court of Appeals therefore
erred insofar as that court sustained respondent's claims for
deprivation of civil rights pursuant to that statute. Pp. 420-433.
144 U. S. App. D. C. 388, 447 F. 2d 358, reversed.
BRENNAN, J., delivered the opinion for a unanimous Court.
Richard W. Barton argued the cause for petitioner.
With him on the brief were C. Francis Murphy and David
P. Sutton.
Warren K. Kaplan argued the cause for respondent.
With him on the brief were Melvin L. Wulf, Ralph J.
Temple, and Robert W. Boraks.
MR. JusTICE BRENNAN delivered the opmion of the
Court.
On February 12, 1969, respondent filed this civil action
in the United States District Court for the District of
Columbia alleging that in 1968 Police Officer John R.
Carlson of the Metropolitan Police Department of the
District of Columbia arrested him without probable
cause and, while he was being held by two other officers,
beat him with brass knuckles. The complaint alleged
further that Carlson's precinct captain, the chief of
police, and the District of Columbia each had negligently
failed to train, instruct, supervise, and control Carlson
with regard to the circumstances in which an arrest may
be made and the extent to which various degrees of force
may be used to effect an arrest. Respondent sought damages
against each defendant upon several theories, inDISTRICT
OF COLUMBIA v. CARTER 419
418 Opinion of the Court
eluding a common-law theory of tort liability and an
action for deprivation of civil rights pursuant to 42
U. S. C. § 1983, which provides: 1
"Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory, subjects, or causes to be subjected, any
citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured
in an action at law, suit in equity, or other
proper proceeding for redress."
The District Court dismissed the complaint against all
defendants without opinion.2 On appeal, the United
States Court of Appeals for the District of Columbia
Circuit reversed, holding that the allegations of the complaint
were sufficient to state causes of action under both
the common-law and federal statutory theories of liability.
Carter v. Carlson, 144 U. S. App. D. C. 388, 447 F.
2d 358 (1971). In sustaining respondent's claims under
§ 1983, the court held that "[a]cts under color of the
law of the District of Columbia are under color of the
law of a 'State or Territory' for the purpose of § 1983."
Id., at 391 n. 3, 447 F. 2d, at 361 n. 3. We granted
certiorari. 404 U. S. 1014. For the reasons stated belo.
w, we hold that the District of Columbia is not a
"State or Territory" within the meaning of § 1983. We
1 Ku Klux Klan Act of 1871, Act of Apr. 20, 1871, § 1, 17 Stat. 13,
Rev. Stat. § 1979, 42 U. S. C. § 1983.
2 Officer Carlson was never found for service of process. The
precinct captain and police chief moved to dismiss the complaint
on the ground that it failed to state a claim for which relief could
be granted. Their supporting memorandum argued that no tort
on their part had been committed, and that in any event they were
protected by the doctrine of official immunity. The District of
Columbia moved to dismiss the complaint for failure to state a
claim, and also on the ground of sovereign immunity.
420 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
therefore reverse the judgment of the Court of Appeals
insofar as that judgment sustained respondent's claims
under § 1983."
I
Whether the District of Columbia constitutes a
"State or Territory" within the meaning of any particular
statutory or constitutional provision depends upon
the character and aim of the specific provision involved.4
Indeed, such " [ w] ords generally have different shades
of meaning, and are to be construed if reasonably possible
to effectuate the intent of the lawmakers; and this
meaning in particular instances is to be arrived at, not
only by a consideration of the words themselves, but by
considering, as well, the context, the purposes of the law,
and the circumstances under which the words were employed."
Puerto Rico v. The Shell Co. (P. R.), Ltd.,
302 U. S. 253, 258 (1937); see Helvering v. Stockholms
Enskilda Bank, 293 U. S. 84, 86, 87-88 (1934); Atlantic
Cleaners & Dyers v. United States, 286 U. S. 427, 433
(1932).
The Court of Appeals' conclusion that the District of
Columbia is a "State or Territory" for the purpose of
§ 1983 was premised almost exclusively upon this Court's
earlier determination that "the District of Columbia is
included within the phrase 'every State and Territory' "
as employed in 42 U. S. C. § 1982. Hurd v. Hodge, 334
3 We therefore have no occasion to determine whether, as urged
by petitioner, the District is not a "person" for the purpose of 42
U. S. C. § 1983. In addition, we intimate no view on the merits
of respondent's claims insofar as they are predicated on other
theories of liability.
4 Compare Hurd v. Hodge, 334 U. S. 24 (1948); Tolbott v. Silver
Bow County, 139 U. S. 438 (1891); Geofroy v. Riggs, 133 U. S.
258 (1890); Collan v. Wilson, 127 U. S. 540 ( 1888), with Bolling v.
Sharpe, 347 U. S. 497 (1954); Wight v. Davidson, 181 U. S. 371
(1901); Hepburn v. Ellzey, 2 Cranch 445 (1805).
DISTRICT OF COLUMBIA v. CARTER 421
418 Opinion of the Court
U. S. 24, 31 (1948).5 At first glance, it might seem logical
simply to assume, as did the Court of Appeals, that
identical words used in two related statutes were intended
to have the same effect. Nevertheless, "[w]here the
subject matter to which the words refer is not the same
in the several places where they are used, or the conditions
are different, or the scope of the legislative power
exercised in one case is broader than that exercised in
another, the meaning well may vary to meet the purposes
of the law . . . . " Atlantic Cleaners & Dyers
v. United States, supra, at 433. And the logic underlying
the Court of Appeals' assumption breaks down
completely where, as here, "there is such variation
in the connection in which the words are used as reasonably
to warrant the conclusion that they were employed
... with different intent." Ibid.
Section 1982, which first entered our jurisprudence as
§ 1 of the Civil Rights Act of 1866, Act of Apr. 9, 1866,
14 Stat. 27, provides:
"All citizens of the United States shall have the
same right, in every State and Territory, as is enjoyed
by white citizens thereof to inherit, purchase,
lease, sell, hold, and convey real and personal
property."
This provision was enacted as a means to enforce the
Thirteenth Amendment's proclamation that "[n]either
slavery nor involuntary servitude ... shall exist within
the United States, or any place subject to their jurisdiction."
See Jones v. Alfred H. Mayer Co., 392 U. S. 409,
437-438 ( 1968). "As its text reveals, the Thirteenth
5 The Court of Appeals also cited Sewell v. Pegelow, 291 F. 2d
196 (CA4 1961), which, relying upon Hurd, also held that the
District of Columbia is a "State or Territory" within the mP.aning
of § 1983. That decision is likewise disapproved.
422 OCTOBER TERM, 1972
Opinion of the Court 409 u. s.
Amendment 'is not a mere prohibition of State laws
establishing or upholding slavery, but an absolute declaration
that slavery or involuntary servitude shall not exist
in any part of the United States.'" Civil Rights Cases,
109 U. S. 3, 20 (1883); see Griffin v. Breckenridge, 403
U. S. 88, 105 (1971); Jones v. Alfred H. Mayer Co.,
supra, at 437-440; Clyatt v. United States, 197 U. S.
207, 216, 218 (1905). Thus, it cannot be doubted that
the power vested in Congress to enforce this Amendment
includes the power to enact laws of nationwide
application.
Moreover, like the Amendment upon which it is based,
§ 1982 is not a "mere prohibition of State laws establishing
or upholding" racial discrimination in the sale or
rental of property but, rather, an "absolute" bar to all
such discrimination, private as well as public, federal as
well as state. Cf. Jones v. Alfred H. Mayer Co., supra,
at 413, 437. With this in mind, it would be anomalous
indeed if Congress chose to carve out the District
of Columbia as the sole exception to an act of
otherwise universal application. And this is all the
more true where, as here, the legislative purposes underlying
§ 1982 support its applicability in the District. The
dangers of private discrimination, for example, that
provided a focal point of Congress' concern in enacting
the legislation," were, and are, as present in the District
of Columbia as in the States, and the same considerations
that led Congress to extend the prohibitions of
§ 1982 to the Federal Government apply with equal force
to the District, which is a mere instrumentality of that
Government. Thus, in the absence of some express indication
of legislative intent to the contrary,7 there was
6 See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 422-436 (1968).
7 Although the legislative debate over the 1866 Act did not focus
specifically on the District, there are numerous indications that the
DISTRICT OF COLUMBIA v. CARTER 423
418 Opinion of the Court
ample justification for the holding in Hurd that § 1982
was intended to outlaw racial discrimination in the sale
or rental of property in the District of Columbia as well
as elsewhere in the United States.
The situation is wholly different, however, with respect
to § 1983. Unlike § 1982, which derives from the Civil
Rights Act of 1866, § 1983 has its roots in § 1 of the
Ku Klux Klan Act of 1871, Act of Apr. 20, 1871, § 1,
17 Stat. 13. This distinction has great significance,
for unlike the 1866 Act, which was passed as a means
to enforce the Thirteenth Amendment, the primary purpose
of the 1871 Act was "to enforce the Provisions of
the Fourteenth Amendment." 17 Stat. 13; see, e. g.,
Lynch v. Household Finance Corp., 405 U. S. 538, 545
(1972); Monroe v. Pape, 365 U.S. 167, 171 (1961); see
also Cong. Globe, 42 Cong., 1st Sess., App. 68, 80,
83-85. And it has long been recognized that " [d]ifferent
problems of statutory meaning are presented by two enactments
deriving from different constitutional sources.
See the Civil Rights Cases, 109 U.S. 3. Compare United
States v. Williams, [341 U. S. 70], with Screws v. United
States, 325 U. S. 91." Monroe v. Pape, supra, at 205-
206 ( opinion of Frankfurter, J.).
In contrast to the reach of the Thirteenth Amendment,
the Fourteenth Amendment has only limited applicability;
the commands of the Fourteenth Amendment
are addressed only to the State or to those acting under
color of its authority. See, e. g., Civil Rights Cases,
supra; United States v. Harris, 106 U. S. 629 (1883);
United States v. Cruikshank, 92 U. S. 542 (1876). The
Fourteenth Amendment itself "erects no shield against
merely private conduct, however discriminatory or wrong-
Act was designed to "extend to all parts of the country." Cong.
Globe, 39th Cong., 1st Sess., 322 (Sen. Trumbull) ; see, e. g., id.,
at 426, 474.
424 OCTOBER TERM, 1972
Opinion of the Court 409 U. s.
ful." 8 Shelley v. Kraemer, 334 U. S. 1, 13 (1948); see
also United States v. Price, 383 U. S. 787 (1966); Evans
v. Newton, 382 U. S. 296 (1966); Hodges v. United
States, 203 U. S. 1 (1906). Similarly, actions of the
Federal Government and its officers are beyond the purview
of the Amendment. And since the District of
Columbia is not a "State" within the meaning of the
Fourteenth Amendment, see Bolling v. Sharpe, 347 U.S.
497, 499 (1954); Shelley v. Kraemer, supra, at 8; Wight
v. Davidson, 181 U. S. 371, 384 ( 1901), neither the District
nor its officers are subject to its restrictions.9
Like the Amendment upon which it based, § 1983 is
of only limited scope. The statute deals only with those
deprivations of rights that are accomplished under the
color of the law of "any State or Territory." 10 It does
not reach purely private conduct and, with the exception
of the Territories,11 actions of the Federal Govern-
8 This is not to say, of course, that Congress may not proscribe
purely private conduct under § 5 of the Fourteenth Amendment.
See United States v. Guest, 383 U. S. 745, 762 (1966) (Clark, J.,
concurring); id., at 782-784 (BRENNAN, J., concurring and dissenting).
Cf. Katzenbach v. Morgan, 384 U. S. 641 (1966).
9 Thus, unlike the situation with respect to § 1982 and the Thirteenth
Amendment, inclusion of the District of Columbia in § 1983
cannot be subsumed under Congress' power to enforce the Fourteenth
Amendment but, rather, would necessitate a wholly separate exercise
of Congress' power to legislate for the District under Art. I, § 8,
cl. 17.
10 It should be observed that, unlike § 1982, which uses the phrase
"every State and Territory" as a mere geographical description, the
expression "any State or Territory" in § 1983 constitutes a substantive
limitation upon the types of conduct that are prohibited.
11 As initially enacted, § 1 of the 1871 Act applied only to action
under color of the law of any "State." 17 Stat. 13. The phrase
"or Territory" was added, without explanation, in the 1874 codification
and revision of the United States Statutes at Large. Rev. Stat.
§ 1979 (1874). Since the Territories are not "States" within the
meaning of the Fourteenth Amendment, see South Porto Rico Sugar
DISTRICT OF COLUMBIA v. CARTER 425
418 Opinion of the Court
ment and its officers are at least facially exempt from
its proscriptions. Thus, unlike the situation presented
in Hurd, the instant case does not involve a constitutional
provision and related statute of universal applicability.
This being so, the considerations that led to
an expansive reading of § 1982 so as to include the
District of Columbia simply do not apply with respect
to § 1983. We must therefore examine the legislative
history of § 1983 to determine whether the purposes for
which the Act was adopted support a similarly broad
construction.
II
Any analysis of the purposes and scope of § 1983 must
take cognizance of the events and passions of the time
at which it was enacted.12 After the Civil War ended in
1865, race relations in the South became increasingly
turbulent. The Ku Klux Klan was organized by southern
whites in 1866, and a wave of murders and assaults
was launched against both blacks and Union sympathizers.
13 Thus, at the opening of the 42d Congress,
considerable apprehension was expressed by Republicans
about the insecurity of life and property in the South,14
Co. v. Buscaglia, 154 F. 2d 96, 101 (CAI 1946); Anderson v. Scholes,
83 F. Supp. 681, 687 (Alaska 1949), this addition presumably
was an exercise of Congress' power to regulate the Territories under
Art. IV, § 3, cl. 2.
12 See generally K. Stampp, The Era of Reconstruction, 1865-1877
(1965); A. Nevins, The Emergence of Modern America, 1865-1878
(1927).
13 See Nevins, supra, n. 12, at 351. For an appreciation of the
nature and character of the Ku Klux Klan as it appeared to
Congress in 1871, see S. Rep. No. 1, 42d Cong., 1st Sess. (1871),
and the voluminous report of the Joint Select Committee to inquire
into the Condition of Affairs in the late Insurrectionary States,
published as S. Rep. No. 41, pts. 1-13 and H. R. Rep. No. 22, pts.
1-13, 42d Cong., 2d Sess. (1872).
"See Cong. Globe, 42d Cong., 1st Sess., 116--117.
426 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
and on March 23, 1871, President Grant sent a message
to Congress requesting additional federal legislation to
curb this rising tide of violence. Such legislation was
deemed essential in light of the inability of the state
governments to control the situation.15 Five days later,
Congressman Shellabarger of Ohio introduced the bill
that eventually was to become the Ku Klux Klan Act of
1871.16
Although there are threads of many thoughts running
through the debates on the 1871 Act, it seems clear that
§ 1 of the Act, with which we are here concerned, was
designed primarily in response to the unwillingness or
inability of the state governments to enforce their own
laws against those violating the civil rights of others.11
Thus, while the Klan itself provided the principal catalyst
for the legislation, the remedy created in § 1 "was not
a remedy against [ the Klan] or its members but against
those who representing a State in some capacity were
unable or unwilling to enforce a state law." Monroe v.
Pape, 365 U. S., at 175-176 (emphasis in original).
Senator Pratt of Indiana summarized this concern when
he said: 18
"[O]f the hundreds of outrages committed upon
loyal people through the agency of this Ku Klux
organization not one has been punished. This
defect in the administration of the laws does not
extend to other cases. Vigorously enough are the
laws enforced against Union people. They only fail
in efficiency when a man of known Union sen ti-
15 See id., at App. 226.
16 See Cong. Globe, 42d Cong., 1st Sess., 317.
17 See, e. g., id., at 154-159 (Sen. Sherman), 322 (Cong. Stoughton),
374 (Cong. Lowe), 428 (Cong. Beatty), 516--519 (Cong. Shellabarger),
653 (Sen. Osborn); id., at App. 72 (Cong. Blair), 78 (Cong.
Perry), 100-110 (Sen. Pool).
18 Cong. Globe, 42d Cong., 1st Sess., 505.
418
DISTRICT OF COLUMBIA v. CARTER 427
Opinion of the Court
ments, white or black, invokes their aid. Then
Justice closes the door of her temples."
Similarly, Congressman Hoar of Massachusetts stated: 19
"Now, it is an effectual denial by a State of the
equal protection of the laws when any class of
officers charged under the laws with their administration
permanently and as a rule refuse to extend
that protection. If every sheriff in South Carolina
refuses to serve a writ for a colored man and
those sheriffs are kept in office year after year by
the people of South Carolina, and no verdict against
them for their failure of duty can be obtained before
a South Carolina jury, the State of South Carolina,
through the class of officers who are its representatives
to afford the equal protection of the laws to
that class of citizens, has denied that protection."
To the Reconstruction Congress, the need for some
form of federal intervention was clear. It was equally
clear, however, that Congress had neither the means nor
the authority to exert any direct control, on a day-to-day
basis, over the actions of state officials. The solution
chosen was to involve the federal judiciary. At the time
this Act was adopted, it must be remembered, there
existed no general federal-question jurisdiction in the
lower federal courts.20 Rather, "Congress relied on the
19 J d., at 334.
20 Original "arising under" jurisdiction, pursuant to Art. III, § 2,
cL 1, was vested in the federal courts by § 11 of the Act of Feb. 13,
1801, 2 Stat. 92, but was repealed only a year later by § 1
of the Act of Mar. 8, 1802, c. 8, § 1, 2 Stat. 132. It was not
until 1875 that Congress granted the federal courts "original
cognizance, concurrent with the courts of the several States, of
all suits of a civil nature at common law or in equity, where the
matter in dispute exceeds, exclusive of costs, the sum or value of
five hundred dollars, and arising under the Constitution or laws of
428 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
state courts to vindicate essential rights arising under the
Constitution and federal laws." 21 Zwickler v. Koota,
389 U.S. 241, 245 (1967). With the growing awareness
that this reliance had been misplaced, however, Congress
recognized the need for original federal court jurisdiction
as a means to provide at least indirect federal
control over the unconstitutional actions of state officials.
22 Congressman Coburn explained: 23
"The United States courts are further above mere
local influence than the county courts; their judges
can act with more independence, cannot be put
under terror, as local judges can; their sympathies
are not so nearly identified with those of the
vicinage; the jurors are taken from the State, and
not the neighborhood; they will be able to rise
above prejudices or bad passions or terror more
easily. . . . We believe that we can trust our United
States courts, and we propose to do so."
Thus, in the final analysis, § 1 of the 1871 Act may be
viewed as an effort "to afford a federal right in federal
courts because, by reason of prejudice, passion, neglect,
intolerance or otherwise, state laws might not be enforced
the United States . . . ." Act of Mar. 3, 1875, § 1, 18 Stat.
470. The jurisdictional amount has since been raised from $500 to
$2,000 by the Act of Mar. 3, 1887, § I, 24 Stat. 552; to $3,000 by
the Act of Mar. 3, 1911, § 24, 36 Stat. 1091; and to $10,000 by the
Act of July 25, 1958, 72 Stat. 415. The provision is now codified as
28 U. S. C. § 1331 (a).
21 The only exception was § 25 of the Judiciary Act of 1789,
1 Stat. 85, providing for Supreme Court review whenever a claim
of federal right was denied by a state court.
22 Thus, as originally enacted, § 1 of the 1871 Act provided that
the proceedings authorized by the Act are "to be prosecuted in the
several district or circuit courts of the United States . . . . " 17
Stat. 13. This aspect of § 1 is now codified as 28 U. S. C. § 1343 (3).
23 Cong. Globe, 42d Cong., 1st Sess., 460.
DISTRICT OF COLUMBIA v. CARTER 429
418 Opinion of the Court
and the claims of citizens to the enjoyment of rights,
privileges, and immunities guaranteed by the Fourteenth
Amendment might be denied by the state agencies."
Monroe v. Pape, 365 U. S., at 180.
There was no need, however, to create federal court
jurisdiction for the District of Columbia. Even prior
to 1871, the courts of the District possessed general jurisdiction
over both federal and local matters. Act of
Mar. 3, 1863, c. 91, 12 Stat. 762. Thus, the jurisdictional
aspects of § 1 of the 1871 Act were entirely superfluous
with respect to the District. Moreover, while
Congress was unable to exert any direct control over
the actions of state officials, it was authorized under
Art. I, § 8, cl. 17, of the Constitution to exercise plenary
power over the District of Columbia and its officers.24
Indeed, "[t]he power of Congress over the District of
Columbia includes all the legislative powers which a
state may exercise over its affairs." Berman v. Parker,
348 U. S. 26, 31 (1954); see District of Columbia v.
Thompson Co., 346 U. S. 100, 108 (1953); National
Insurance Co. v. Tidewater Co., 337 U. S. 582, 602
(1949); Kendall v. United States, 12 Pet. 524, 619
(1838). And since the District is itself the seat of the
National Government, Congress was in a position to
observe and, to a large extent, supervise the activities
of local officials.25 Thus, the rationale underlying Conu
In pertinent part, Art. I, § 8, cl. 17, of the Constitution provides
that Congress shall have power "[t]o exercise exclusive
Legislation in all Cases whatsoever, over such District . . . as
may ... become the Seat of Government of the United States .... "
25 The District of Columbia police system, for example, was operated
under the direction of a board of five commissioners appointed
by the President with the advice and consent of the Senate. The
statutes creating the metropolitan police system established a network
of regulations and reporting requirements that enabled the
430 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
gress' decision not to enact legislation similar to § 1983
with respect to federal officials-the assumption that the
Federal Government could keep its own officers under
control-is equally applicable to the situation then existing
in the District of Columbia.
It is true, of course, that Congress also possessed
plenary power over the Territories. 26 For practical reasons,
however, effective federal control over the activities
of territorial officials was virtually impossible. Indeed,
"the territories were not ruled immediately from Washington;
in a day of poor roads and slow mails, it was
unthinkable that they should be. Rather, Congress left
municipal law to be developed largely by the territorial
legislatures, within the framework of organic acts and
subject to a retained power of veto. The scope of selfgovernment
exercised under these delegations was nearly
Federal Government to keep a watchful eye over police conduct.
See Act of Aug. 6, 1861, 12 Stat. 320; Act of July 16, 1862, 12
Stat. 578.
Respondent seeks to make much of the fact that, in 1871, Congress
established a "territorial" form of government for the District
of Columbia, with a governor and legislative assembly, to which the
general administration of the affairs of the District was committed.
Act of Feb. 21, 1871, 16 Stat. 419. In light of this development,
respondent argues, Congress must have intended the word
"Territory" in § 1 of the Ku Klux Klan Act to include the District
of Columbia. What respondent apparently overlooks, however,
is that on June 20, 1874, the very day that the phrase "or
Territory" was formally enacted into the revised version of § I of
the Ku Klux Klan Act, see n. 11, supra, Congress also abolished
the "territorial" form of government in the District and, in its
stead, authorized the President, with the advice and consent of the
Senate, to appoint a commission of three members to exercise the
power previously vested in the governor and assembly. Act of
June 20, 1874, c. 337, 18 Stat. 116.
26 Article IV, § 3, cl. 2, provides: "The Congress shall have Power
to dispose of and make all needful Rules and Regulations respecting
the Territory or other Property belonging to the United States .... "
DISTRICT OF COLUMBIA v. CARTER 431
418 Opinion of the Court
as broad as that enjoyed by the States. " Glidden
Co. v. Zdanok, 370 U. S. 530, 546 (1962); see also
E. Pomeroy, The Territories and the United States 1861~
1890, p. 92 (1947); H. R. Rep. No. 440, 48th Cong., 1st
Sess. ( 1884,' ; S. Rep. No. 1249, 49th Cong., 1st Sess.
(1886). Thus, although the Constitution vested control
over the Territories in the Congress, its practical control
was both "confused and ineffective," 27 making the problem
of enforcement of civil rights in the Territories more
similar to the problem as it existed in the States than in
the District of Columbia.28
Moreover, the effort to analogize the District of
Columbia to the Territories in this context faces strong
theoretical obstacles. The territorial state has aptly
been described as "one of pupilage at best." Nelson v.
United States, 30 F. 112, 115 (Ore. 1887). From
the moment of their creation, the Territories were
destined for admission as States into the Union, and "as
a preliminary step toward that foreordained end-to tide
over the period of ineligibility-Congress, from time to
time, created territorial governments, the existence of
21 E. Pomeroy, The Territories and the United States 1861-1890,
p. 4 (1947).
28 Moreover, unlike the courts of general jurisdiction in the
District of Columbia, which were created under the authority vested
in Congress by Art. III, § 1, see O'Donoghue v. United States, 289
U. S. 516 (1933), the federal courts in the Territories were established
under Art. IV, § 3, cl. 2, see Glidden Co. v. Zdanok, 370
U. S. 530 (1962); American lmurance Co. v. Canter, 1 Pet. 511
(1828). This distinction also has significance for our problem for,
unlike judges in the District, territorial judges were appointed
for terms of only four years. Rev. Stat. § 1864 (1874). As a result,
the territorial judges were peculiarly susceptible to local pressures,
since their reappointments were often dependent upon favorable
recommendations of the territorial legislatures. See Pomeroy, supra,
n. 27, at 98--102.
432 OCTOBER TERM, 1972
Opinion of the Court 409 u. s.
which was necessarily limited to the period of pupilage."
O'Donoghue v. United States, 289 U.S. 516, 537 (1933);
see McAllister v. United States, 141 U.S. 174,188 (1891).
Thus, in light of the transitory nature of the territorial
condition, Congress could reasonably treat the Territories
as inchoate States, quite similar in many respects to the
States themselves, to whose status they would inevitably
ascend.
The District of Columbia, on the other hand, "is an
exceptional community ... established under the Constitution
as the seat of the National Government."
District of Columbia v. Murphy, 314 U. S. 441, 452
(1941). As such, it "is as lasting as the States from
which it was carved or the union whose permanent
capital it became." O'Donoghue v. United States, supra,
at 538. Indeed, it is "the very heart-of the Union
itself, to be maintained as the 'permanent' abiding
place of all its supreme departments, and within which
the immense powers of the general government were
destined to be exercised . . . . " Id., at 539. Unlike
either the States or Territories, the District is truly
sui generis in our governmental structure.
With this unique status of the District of Columbia
in mind, and in the absence of any indication in
the language, purposes, or history of § 1983 of a legislative
intent to include the District within the scope of
its coverage, the conclusion is compelled that the Court
of Appeals erred in holding that the District of Columbia
constitutes a "State or Territory" within the meaning of
§ 1983. Just as " [ w] e are not at liberty to seek ingenious
analytical instruments" to avoid giving a congressional
enactment the broad scope its language and origins
may require, United States v. Price, 383 U. S., at 801,
so too are we not at liberty to recast this statute to
expand its application beyond the limited reach Congress
gave it. This is not to say, of course, that a claim,
DISTRICT OF COLUMBIA v. CARTER 433
418 Opinion of the Court
such as a possible claim against Officer Carlson, of
alleged deprivation of constitutional rights is not litigable
in the federal courts of the District. See Bivens v. Si.x
Unknown Named Agents of the Federal Bureau of Narcotics,
403 U. S. 388 (1971); Bell v. Hood, 327 U. S.
678 (1946). But insofar as the judgment of the Court
of Appeals sustaining respondent's claims rested on
§ 1983, that judgment must be, and is,
Reversed.
434 OCTOBER TERM, 1972
Syllabus 409 U.S.
UNITED STATES v. KRAS
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF NEW YORK
No. 71-749. Argued October 18, 1972-Decided January 10, 1973
Appellee, an indigent who filed a voluntary petition in bankruptcy,
sought discharge without payment of the fees, aggregating no
more than $50, that are a precondition to discharge in such a
proceeding. The District Court, relying primarily on Boddie v.
Connecticut, 401 U. S. 371 (where the Court held that a State
could not consistently with due process and equal protection requirements,
deny access to divorce courts to indigents unable to
pay filing and other fees), held the bankruptcy fee provisions, as
applied to appellee, an unconstitutional denial of Fifth Amendment
rights of due process, including equal protection. Held: This
case is not controlled by Boddie, supra. For here access to courts
is not the only conceivable relief available to bankrupts; thf'
filing-fee requirement does not deny an indigent the equal protection
of the laws, since there is no constitutional right to obtain
a discharge of one's debts in bankruptcy; the right to a discharge
in bankruptcy is not a "fundamental" right demanding a compelling
governmental interest as a precondition to regulation; and
there is a rational basis for the fee requirement. Pp. 443-450.
331 F. Supp. 1207, reversed.
BLACKMUN, J., delivered the opm1on of the Court, in which
BURGER, C. J., and WHITE, PowELL, and REHNQUIST, JJ., joined.
BURGER, C. J., filed a concurring opinion, post, p. 450. STEWART, J.,
filed a dissenting opinion, in which DouGLAS, BRENNAN, and MARSHALL,
JJ., joined, post, p. 451. DoUGLAS and BRENNAN, JJ., filed
a dissenting opinion, post, p. 457. MARSHALL, J., filed a dissenting
opinion, post, p. 458.
Edward R. Korman argued the cause for the United
States. With him on the brief were Solicitor General
Griswold, Acting Assistant Attorney General Wood, and
Alan S. Rosenthal.
Kalman Finkel argued the cause for appellee. With
him on the brief was Leon B. Polsky.
UNITED STATES v. KRAS 435
434 Opinion of the Court
MR. JUSTICE BLACKMUN delivered the opinion of the
Court.
The Bankruptcy Act and one of this Court's complementary
Orders in Bankruptcy impose fees and make
the payment of those fees a condition to a discharge
in voluntary bankruptcy.
Appellee Kras, an indigent petitioner in bankruptcy,
challenged the fees on Fifth Amendment grounds. Upon
receiving notice of the constitutional issue in the District
Court, the Government moved to intervene as of
right under 28 U. S. C. § 2403 and Rule 24 (a) of the
Federal Rules of Civil Procedure. Leave to intervene
was granted. The District Court held the fee provisions
to be unconstitutional as applied to Kras. 331 F. Supp.
1207 (EDNY 1971). It reached this conclusion in the
face of an earlier contrary holding by a unanimous First
Circuit. In re Garland, 428 F. 2d 1185 (1970), cert.
denied, 402 U. S. 966 (1971). Pursuant to 28 U. S. C.
§ 1252, the Government appealed. We noted probable
jurisdiction. 405 U. S. 915 ( 1972).
I
Section 14 (b)(2) of the Bankruptcy Act, 11 U. S. C.
§ 32 (b )(2), provides that, upon the expiration of the
time fixed by the court for filing of objections, "the
court shall discharge the bankrupt if no objection has
been filed and if the filing fees required to be paid
by this title have been paid in full." Section 14 ( c),
11 U. S. C. § 32 (c), similarly provides that the court
"shall grant the discharge unless satisfied that the bankrupt
... (8) has failed to pay the filing fees required
to be paid by this title in full." Section 59 (g) , 11
U. S. C. § 95 (g), relates to the dismissal of a petition
in bankruptcy and states that "in the case of a dismissal
for failure to pay the costs," notice to creditors
shall not be required. Three separate sections of the
436 OCTOBER TERM, 1972
Opinion of the Court 409 u. s.
Act thus contemplate the imposition of fees and condition
a discharge upon payment of those fees.
Three charges are imposed: $37 for the referee's salary
and expense fund, $10 for compensation of the trustee,'
and $3 for the clerk's services. § § 40 ( c) ( 1), 48 ( c),
and 52 (a), 11 U. S. C. §§ 68 (c)(l), 76 (c), and
80 (a). These total $50.2 The fees are payable upon
the filing of the petition. Section 40 (c)(l), however,
contains a proviso that in cases of voluntary bankruptcy,
all the fees "may be paid in installments, if so authorized
by General Order of the Supreme Court of the
United States."
The Court's General Order in Bankruptcy No. 35 ( 4),
as amended June 23, 1947, 331 U. S. 873, 876-877, 11
U. S. C. App., p. 2210, complements § 40 ( c) (1) and
provides that, upon a proper showing by the bankrupt,
the fees may be paid in installments within a six-month
period, which may be extended not to exceed three
months.3
1 Additional compensation to the trustee in an appropriate case is
allowable under § 48 ( c), 11 U. S. C. § 76 ( c), but these provisions
have no application for a no-asset or fully exempt estate.
2 General Order in Bankruptcy No. 15, 305 U. S. 687 ( 1939),
11 U. S. C. App., p. 2203, provides that a trustee need not be appointed
in a no-asset case. When a trustee is not appointed, the
aggregate fees are $40.
3 "(4) The petition in a voluntary proceeding under Chapters I
to VII ... of the Act may be accepted for filing by the clerk if accompanied
by a verified petition of the bankrupt ... stating that
the petitioner is without and cannot obtain the money with which
to pay the filing fees in full at the time of filing. Such petition shall
state the facts showing the necessity for the payment of the filing
fees in installments and shall set forth the terms upon which the
petitioner proposes to pay the filing fees.
"a. At the first meeting of creditors or any adjournment thereof,
the court ... shall enter an order fixing the amount and date of
payment of such installments. The final installment shall be payable
not more than six months after the date of filing of the original
UNITED STATES v. KRAS 437
434 Opinion of the Court
II
Robert William Kras presented his voluntary petition
in bankruptcy to the United States District Court for
the Eastern District of New York on May 28, 1971. The
petition was accompanied by Kras' motion for leave
to file and proceed in bankruptcy without payment of
any of the filing fees as a condition precedent to discharge.
The motion was supported by Kras' affidavit
containing the following allegations that have not been
controverted by the Government:
1. Kras resides in a 2%-room apartment with his
wife, two children, ages 5 years and 8 months, his mother,
and his mother's 6-year-old daughter. His younger child
suffers from cystic fibrosis and is undergoing treatment
in a medical center.
2. Kras has been unemployed since May 1969 except
for odd jobs producing about $300 in 1969 and a like
amount in 1970. His last steady job was as an insurance
agent with Metropolitan Life Insurance Company.
He was discharged by Metropolitan in 1969 when premiums
he had collected were stolen from his home and
he was unable to make up the amount to his employer.
Metropolitan's claim against him has increased to over
$1,000 and is one of the debts listed in his bankruptcy
petition. He has diligently sought steady employment
in New York City, but, because of unfavorable references
from Metropolitan, he has been unsuccessful. Mrs.
Kras was employed until March 1970, when she was
petition; provided, however, that for cause shown the court may
extend the time of payment of any installment for a period not to
exceed three months.
"b. Upon the failure of a bankrupt ... to pay any installment
as ordered, the court may dismiss the proceeding for failure to pay
costs as provided in Section 59, sub. g. of the Act. . . .
"c. No proceedings upon the discharge of a bankrupt ... shall
be instituted until the filing fees are paid in full."
438 OCTOBER TERM, 1972
Opinion of the Court 409U.S.
forced to stop because of pregnancy. All her attention
now will be devoted to caring for the younger child
who is coming out of the hospital soon.
3. The Kras household subsists entirely on $210 per
month public assistance received for Kras' own family
and $156 per month public assistance received for his
mother and her daughter. These benefits are all expended
for rent and day-to-day necessities. The rent
is $102 per month. Kras owns no automobile and no
asset that is non-exempt under the bankruptcy law.
He receives no unemployment or disability benefit. His
sole assets are wearing apparel and $50 worth of essential
household goods that are exempt under § 6 of the
Act, 11 U. S. C. § 24, and under New York Civil Practice
Laws and Rules § 5205 (1963). He has a couch of
negligible value in storage on which a $6 payment is due
monthly.
4. Because of his poverty, Kras is wholly unable to
pay or promise to pay the bankruptcy fees, even in
small installments. He has been unable to borrow money.
The New York City Department of Social Services
refuses to allot money for payment of the fees. He
has no prospect of immediate employment.
5. Kras seeks a discharge in bankruptcy of $6,428.69
in total indebtedness in order to relieve himself and his
family of the distress of financial insolvency and creditor
harassment and in order to make a new start in life.
It is especially important that he obta.in a discharge
of his debt to Metropolitan soon "because until that
is cleared up Metropolitan will continue to falsely charge
me with fraud and give me bad references which prevent
my getting employment."
The District Court's opinion contains an order, 331
F. Supp., at 1215, granting Kras' motion for leave to
file his petition in bankruptcy without prepayment of
fees. He was adjudged a bankrupt on September 13,
UNITED STATES v. KRAS 439
434 Opinion of the Court
1971. Later, the referee, upon consent of the parties,
entered an order allowing Kras to conduct all necessary
proceedings in bankruptcy up to but not including discharge.
The referee stayed the discharge pending disposition
of this appeal.
III
In the District Court Kras first presented a statutory
argument-and, alternatively, one based in common
law-that he was entitled to relief from payment of
the bankruptcy charges because of the provisions of
28 U. S. C. § 1915 (a).4 This is the in Jorma pauperis
statute that has its origin in the Act of July 20, 1892,
c. 209, 27 Stat. 25,2. See also 28 U. S. C. §§ 832-836
(1940 ed.).
The District Court rejected the argument despite the
seeming facial application of § 1915 (a) to a bankruptcy
proceeding as well as to any other. It reached this
result by noting that § 51 (2) of the Bankruptcy Act,
as originally adopted in 1898, 30 Stat. 558, had provided
for a waiver of fees upon the filing of an affidavit
of inability to pay; that by the passage of the
Referees' Salary Bill in 1946, 60 Stat. 326, bankruptcy
petitions in jorma pauperis were abolished, H. R. Rep.
No. 1037, 79th Cong., 1st Sess., 6 (1945); S. Rep. No.
959, 79th Cong., 2d Sess., 7 (1946); and that the 1946
statute, being later and having a positive and specific
provision for postponement of fees in cases of indigency,
overrode the earlier general provisions of § 1915 (a).
331 F. Supp., at 1209-1210. To the same effect are
• "Any court of the United States may authorize the commencement,
prosecution or defense of any suit, action or proceeding,
civil or criminal, or appeal therein, without prepayment of fees and
costs or security therefor, by a person who makes affidavit that he
is unable to pay such costs or give security therefor. Such affidavit
shall state the nature of the action, defense or appeal and affiant's
belief that he is entitled to redress."
440 OCTOBER TERM, 1972
Opinion of the Court 409U.S.
In re Garland, 428 F. 2d, at 1186-1187, and In re Smith,
323 F. Supp. 1082, 1084-1085 (Colo. 1971), the reasoning
of which the District Court adopted. So also is
In re Smith, 341 F. Supp. 1297, 1298 (ND Ill. 1972).
The appellee may well have abandoned the argument
on this appeal. Tr. of Oral Arg. 44-45. In any event, we
agree, for the reasons stated by the District Court and
by the courts in Garland and in the two Smith cases,
supra, that § 1915 (a) is not now available in bankruptcy.
See 2 W. Collier, Bankruptcy 1 51.01, pp. 1873-
1874 (14th ed. 1971). Neither do we perceive any common-
law right to proceed without payment of fees.
Congress, of course, sometime might conclude that
§ 1915 (a) should be made applicable to bankruptcy
and legislate accordingly.
The District Court went on to hold, however, 331 F.
Supp., at 1210--1215, that the prescribed fees, payment
of which was required as a condition precedent to discharge,
served to deny Kras "his Fifth Amendment right
of due process, including equal protection." Id., at 1212.
It held that a discharge in bankruptcy wa.s a "fundamental
interest" that could be denied only when a "compelling
government interest" was demonstrated. It
noted, -id., at 1213, that provision should be made by
the referee for the survival, beyond bankruptcy, of the
bankrupt's obligation to pay the fees. The court rested
its decision primarily upon Boddie v. Connecticut, 401
U. S. 371 ( 1971), which came down after the First Circuit's
decision in Garland, supra. A number of other
district courts and bankruptcy referees have reached
the same result. 5
5 In re Smith, 323 F. Supp. 1082 (Colo. 1971) (decided before
Boddie); In re Naron, 334 F. Supp. 1150 (Ore. 1971); In re Ottman,
336 F. Supp. 746 (ED Wis. 1972); In re Smith, 341 F. Supp. 1297
(ND Ill. 1972); In re Haddock and Beeman, Nos. 14810 and
14811 (Conn. 1972); In re Passwater, Nos. IP70-B-3697 and
UNITED STATES v. KRAS 441
434 Opinion of the Court
Kras contends that his case falls squarely within
Boddie. The Government, on the other hand, stresses
the differences between divorce (with which Boddie
was concerned) and bankruptcy, and claims that Boddie
is not controlling and that the fee requirements constitute
a reasonable exercise of Congress' plenary power
over bankruptcy.
IV
Boddie was a challenge by welfare recipients to certain
Connecticut procedures, including the payment of court
fees and costs, that allegedly restricted their access to
the courts for divorce. The plaintiffs, simply by reason
of their indigency, were unable to bring their actions.
The Court reversed a district court judgment that a
State could limit access to its courts by fees "which
effectively bar persons on relief from commencing actions
therein." 286 F. Supp. 968, 972. Mr. Justice Harlan,
writing for the Court, stressed state monopolization of
the means for legally dissolving marriage and identified
the would-be indigent divorce plaintiff with any other
action's impoverished defendant forced into court by
the institution of a lawsuit against him. He declared
that "a meaningful opportunity to be heard" was firmly
imbedded in our due process jurisprudence, 401 U. S.,
at 377, and that this was to be protected against denial
by laws that operate to jeopardize it for particular individuals,
id., at 379~380. The Court then concluded that
Connecticut's refusal to admit these good-faith divorce
plaintiffs to its courts equated with the denial of an
opportunity to be heard and, in the absence of a suffi-
IP70-B-3698 (SD Ind. 1971); In re Ripley, No. Bk 71-0-1003
(Neb. 1972); In re Read, No. Bk 71-826 (WDNY 1971). See
O'Brien v. Trevethan, 336 F. Supp. 1029 (Conn. 1972). But see In
re Partilla, No. 71-B-380 (SDNY 1971); In re Malevich, No. Bk
29-71 (NJ 1971).
442 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
cient countervailing justification for the State's action,
a denial of due process, id., at 380--381.
But the Court emphasized that "we go no further
than necessary to dispose of the case before us." Id.,
at 382.
"We do not decide that access for all individuals
to the courts is a right that is, in all circumstances,
guaranteed by the Due Process Clause of the Fourteenth
Amendment so that its exercise may not be
placed beyond the reach of any individual, for, as
we have already noted, in the case before us this
right is the exclusive precondition to the adjustment
of a fundamental human relationship. The
requirement that these appellants resort to the judicial
process is entirely a state-created matter.
Thus we hold only that a State may not, consistent
with the obligations imposed on it by the
Due Process Clause of the Fourteenth Amendment,
pre-empt the right to dissolve this legal relationship
without affording all citizens access to the means
it has prescribed for doing so." Id., at 382--383.
MR. JusTICE DouGLAS, concurring in the result, rested
his conclusion on equal protection rather than due process.
"I do not see the length of the road we must follow
if we accept my Brother HARLAN'S invitation." / d., at
383, 385. MR. JUSTICE BRENNAN concurred in part,
for he discerned no distinction between divorce and "any
other right arising under federal or state law" and he,
also, found a denial of equal protection. Id., at 386,
387. Mr. Justice Black dissented, id., at 389·, feeling
that the Connecticut court costs were barred by neither
the Due Process Clause nor the Equal Protection Clause
of the Fourteenth Amendment.
Just two months after Boddie was decided, the Court
denied certiorari in Garland. 402 U. S. 966. MR. JusUNITED
STATES v. KRAS 443
434 Opinion of the Court
TICE BRENNAN was of the opinion that certiorari should
have been granted. Mr. Justice Black, in an opinion
applicable to Garland and to seven other then-pending
cases, 402 U. S. 954, dissented and would have heard
argument in all eight cases "or reverse them outright on
the basis of the decision in Boddie." Id., at 955. For
him "the need ... to file for a discharge in bankruptcy
seem[ed] ... more 'fundamental' than a person's right
to seek a divorce." Id., at 958. And MR. JUSTICE
DOUGLAS similarly dissented from the denial of certiorari
in Garland and in four other cases because "obtaining
a fresh start in life through bankruptcy proceedings ...
seemingly come[sJ within the Equal Protection Clause."
402 u. s. 960, 961.
Thus, although a denial of certiorari normally carries
no implication or inference, Chessman v. Teets, 354 U. S.
156, 164 n. 13 ( 1957); Brown v. Allen, 344 U. S. 443
(1953), the pointed dissents of Mr. Justice Black and
MR. JusTICE DouGLAS to the denial in Garland so soon
after Boddie, and Mr. Justice Harlan's failure to join
the dissenters, surely are not without some significance
as to their and the Court's attitude about the application
of the Boddie principle to bankruptcy fees.
V
We agree with the Government that our decision in
Boddie does not control the disposition of this case and
that the District Court's reliance upon Boddie is
misplaced.
A. Boddie was based on the notion that a State cannot
deny access, simply because of one's poverty, to a
"judicial proceeding [that isJ the only effective means
of resolving the dispute at hand." 401 U. S., at 376.
Throughout the opinion there is constant and recurring
reference to Connecticut's exclusive control over the
establishment, enforcement, and dissolution of the mari444
OCTOBER TERM, 1972
Opinion of the Court 409 u. s.
tal relationship. The Court emphasized that "marriage
involves interests of basic importsnce in our society,"
ibid., and spoke of "state monopolization of the means
for legally dissolving this relationship," id., at 374.
"[R]esort to the state courts [was] the only avenue to
dissolution of . . . marriages," id., at 376, which was
"not only the paramount dispute-settlement technique,
but, in fact, the only available one," id., at 377. The
Court acknowledged that it knew "of no instance where
two consenting adults may divorce and mutually liberate
themselves from the constraints of legal obligations that
go with marriage, and more fundamentally the prohibition
against remarriage, without invoking the State's
judicial machinery," id., at 376. In the light of all
this, we concluded that resort to the judicial process
was "no more voluntary in a realistic sense than that
of the defendant called upon to defend his interests in
court" and we resolved the case "in light of the principles
enunciated in our due process decisions that delimit
rights of defendants compelled to litigate their
differences in the judicial forum," id., at 376-377.
B. The appellants in Boddie, on the one hand, and
Robert Kras, on the other, stand in materially different
postures. The denial of access to the judicial forum
in Boddie touched directly, as has been noted, on the
marital relationship and on the associational interests
that surround the establishment and dissolution of that
relationship. On many occasions we have recognized
the fundamental importance of these interests under
our Constitution. See, for example, Loving v. Virginia,
388 U. S. 1 ( 1967) ; Skinner v. Oklahoma, 316 U. S.
535 (1942); Griswold v. Connecticut, 381 U. S. 479
(1965); Eisenstadt v. Baird, 405 U. S. 438 (1972);
Meyer v. Nebraska, 262 U. S. 390 (1923). The Boddie
appellants' inability to dissolve their marriages seriously
impaired their freedom to pursue other protected associaUNITED
STATES v. KRAS 445
434 Opinion of the Court
tional activities. Kras' alleged interest in the elimination
of his debt burden, and in obtaining his desired new start
in life, although important and so recognized by the
enactment of the Bankruptcy Act, does not rise to the
same constitutional level. See Dandridge v. Williams,
397 U. S. 471 (1970); Richardson v. Belcher, 404 U. S.
78 (1971). If Kras is not discharged in bankruptcy,
his position will not be materially altered in any constitutional
sense. Gaining or not gaining a discharge
will effect no change with respect to basic necessities.6
We see no fundamental interest that is gained or lost
depending on the availability of a discharge in
bankruptcy.
C. Nor is the Government's control over the establishment,
enforcement, or dissolution of debts nearly so
exclusive as Connecticut's control over the marriage
relationship in Boddie. In contrast with divorce, bankruptcy
is not the only method available to a debtor for
the adjustment of his legal relationship with his creditors.
The utter exclusiveness of court access and court remedy,
as has been noted, was a potent factor in Boddie.
But "[w]ithout a prior judicial imprimatur, individuals
may freely enter into and rescind commercial contracts
.... " 401 U. S., at 376.
However unrealistic the remedy may be in a particular
situation, a debtor, in theory, and often in actuality,
may adjust his debts by negotiated agreement with
his creditors. At times the happy passage of the applicable
limitation period, or other acceptable creditor
arrangement, will provide the answer. Government's
role with respect to the private commercial relationship
is qualitatively and quantitatively different from its
6 See N. Y. Civ. Prac. Law § 5205 (1963); N. Y. Labor Law § 595
(1965); N. Y. Soc. Welfare Law § 137 (1966) , and § 137-a (Supp.
1972-1973).
446 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
role in the establishment, enforcement, and dissolution
of marriage.
Resort to the court, therefore, is not Kras' sole path
to relief. Boddie's emphasis on exclusivity finds no
counterpart in the bankrupt's situation. See Cohen v.
Beneficial Industrial Loan Corp., 337 U. S. 541, 547-555
(1949).
D. We are also of the opinion that the filing fee
requirement does not deny Kras the equal protection
of the laws. Bankruptcy is hardly akin to free speech
or marriage or to those other rights, so many of which
are imbedded in the First Amendment, that the Court
has come to regard as fundamental and that demand the
lofty requirement of a compelling governmental interest
before they may be significantly regulated. See Shapiro
v. Thompson, 394 U. S. 618, 638 (1969). Neither does
it touch upon what have been said to be the suspect criteria
of race, nationality, or alienage. Graham v. Richardson,
403 U.S. 365, 375 (1971). Instead, bankruptcy
legislation is in the area of economics and social welfare.
See Dandridge v. Williams, 397 U. S., at 484----485; Richardson
v. Belcher, 404 U. S., at 81; Lindsey v. N ormet,
405 U. S. 56, 74 (1972); Jefferson v. Hackney, 406
U. S. 535, 546 (1972). This being so, the applicable
standard, in measuring the propriety of Congress' classification,
is that of rational justification. Flemming v.
Nestor, 363 U. S. 603, 611-612 (1960); Dandridge v.
Williams, 397 U. S., at 485-486; Richardson v. Belcher,
404 U. S., at 81.
E. There is no constitutional right to obtain a discharge
of one's debts in bankruptcy. The Constitution,
Art. I, § 8, cl. 4, merely authorizes the Congress to "establish
... uniform Laws on the subject of Bankruptcies
throughout the United States." Although the first bankruptcy
law in England was enacted in 1542, 34 & 35
Hen. 8, c. 4, and a discharge provision first appeared
UNITED STATES v. KRAS 447
434 Opinion of the Court
in 1705, 4 Anne, c. 17, primarily as a reward for cooperating
debtors, J. MacLachlan, Bankruptcy 20--21 ( 1956),
voluntary bankruptcy was not known in this country at
the adoption of the Constitution. Indeed, for the entire
period prior to the present Act of 1898, the Nation was
without a federal bankruptcy law except for three short
periods aggregating about 15½ years. The first statute
was the Act of April 4, 1800, c. 19, 2 Stat. 19, and it was
repealed by the Act of December 19, 1803, c. 6, 2 Stat.
248. The second was the Act of August 19, 1841, c. 9,
5 Stat. 440, repealed less than two years later by the Act
of March 3, 1843, c. 82, 5 Stat. 614. The third was the
Act of March 2, 1867, c. 176, 14 Stat. 517; it was repealed
by the Act of June 7, 1878, c. 160, 20 Stat. 99. Voluntary
petitions were permitted under the 1841 and 1867 Acts.
See 1 W. Collier, Bankruptcy 1nT 0.03-0.05, pp. 6-9 (14th
ed. 1971). Professor MacLachlan has said that the development
of the discharge "represents an independent
... public policy in favor of extricating an insolvent
debtor from what would otherwise be a financial impasse."
J. MacLachlan, Bankruptcy 88 (footnote omitted).
But this obviously is a legislatively created benefit,
not a constitutional one, and, as noted, it was a benefit
withheld, save for three short periods, during the first ll0
years of the Nation's life. The mere fact that Congress
has delegated to the District Court supervision over the
proceedings by which a petition for discharge is processed
does not convert a statutory benefit into a constitutional
right of access to a court. Then, too, Congress might
have delegated the responsibility to an administrative
agency.
F. The rational basis for the fee requirement is readily
apparent. Congressional power over bankruptcy, of
course, is plenary and exclusive. Kalb v. Feuerstein, 308
U. S. 433, 438-439 (1940). By the 1946 Amendment,
60 Stat. 326, Congress, as has been noted, abolished the
448 OCTOBER TERM, 1972
Opinion of the Court 409 u. s.
theretofore existing practices of the pauper petition and
of compensating the referee from the fees he collected.
It replaced that system with one for salaried referees and
for fixed fees for every petition filed and a specified percentage
of distributable assets. It sought to make the
system self-sustaining and paid for by those who use
it rather than by tax revenues drawn from the public at
large. H. R. Rep. No. 1037, 79th Cong., 1st Sess., 4-6
(1945); S. Rep. No. 959, 79th Cong., 2d Sess. 2, 5-6
(1946).7 The propriety of the requirement that the fees
be paid ultimately has been recognized even by those
district courts that have held the payment of the fee
as a precondition to a discharge to be unconstitutional,
for those courts would make the payments survive the
bankruptcy as a continuing obligation of the bankrupt.
In re Smith, 323 F. Supp., at 1093; In re Ottman, 336 F.
Supp. 746, 748 (ED Wis. 1972). See O'Brien v. Trevethan,
336 F. Supp. 1029, 1034 (Conn. 1972).
Further, the reasonableness of the structure Congress
produced, and congressional concern for the debtor, are
apparent from the provisions permitting the debtor to
file his petition without payment of any fee, with consequent
freedom of subsequent earnings and of afteracquired
assets ( with the rare exception specified in § 70
(a) of the Act, 11 U. S. C. § 110 (a)) from the claims of
then-existing obligations. These provisions, coupled with
the bankrupt's ability to obtain a stay of all debt enforcement
actions pending at the filing of the petition or there-
7 For the decade ended June 30, 1959, the Referee's Salary and
Expense Fund showed surpluses for the first five fiscal years and
deficits for the last five. For fiscal 1969, 107,481 no-asset cases were
terminated (as compared with 169,500 nonbusiness cases filed).
Administrative Office of the United States Courts, Tables of Rrmkruptcy
Statistics for Fiscal Year Ending June 30, 1969, pp. 5, 10
(1971). This means, of course, that the fees were paid in those
terminated no-asset cases. Undue hardship and denial of access to
the courts are not apparent from this record of achievement.
UNITED STATES v. KRAS 449
434 Opinion of the Court
after commenced, §§ 11 (a) and 2 (a) (15), 11 U. S. C.
§§ 29 (a) and 11 (a) (15); lA W. Collier, Bankruptcy
,r 11.03 (14th ed. 1972); 1 id., ,r 2.62 [4] (14th ed.
1971), enable a bankrupt to terminate his harassment
by creditors, to protect his future earnings and property,
and to have his new start with a minimum of effort and
financial obligation. They serve also, as an incidental effect,
to promote and not to defeat the purpose of making
the bankruptcy system financially self-sufficient. Cf.
Lindsey v. Normet, 405 U. S., at 74-79.
G. If the $50 filing fees are paid in installments over
six months as General Order No. 35 ( 4) permits on a
proper showing, the required average weekly payment is
$1.92. If the payment period is extended for the additional
three months as the Order permits, the average
weekly payment is lowered to $1.28.8 This is a sum less
than the payments Kras makes on his couch of negligible
value in storage, and les.s than the price of a movie and
little more than the cost of a pack or two of cigarettes.
If, as Kras alleges in his affidavit, a discharge in bankruptcy
will afford him that new start he so desires, and
the Metropolitan then no longer will charge him with
fraud and give him bad references,9 and if he really needs
and desires that discharge, this much available revenue
should be within his able-bodied reach when the adjudication
in bankruptcy has stayed collection and has brought
to a halt whatever harassment, if any, he may have sustained
from creditors.
VI
Mr. Justice Harlan, in his opm10n for the Court in
Boddie, meticulously pointed out, as we have noted
8 If the fees total $40, as they may under General Order No. 15,
305 U. S. 687 (1939), 11 U. S. C. App., p. 2203, these average
weekly figures are reduced to $1.54 and $1.03 respectively.
9 We fail to see how a discharge in bankruptcy in itself will prevent
the Metropolitan from issuing an unfavorable reference letter
about Kras.
450 OCTOBER TERM, 1972
BuRGER, C. J., concurring 409 U.S.
above, that the Court went "no further than necessary to
dispose of the case before us" and did "not decide that
access for all individuals to the courts is a right that is,
in all circumstances, guaranteed by the Due Process
Clause of the Fourteenth Amendment so that its exercise
may not be placed beyond the reach of any individual."
401 U. S., at 382-383. The Court obviously
stopped short of an unlimited rule that an indigent at all
times and in all cases has the right to relief without the
payment of fees.
We decline to extend the principle of Boddie to the noasset
bankruptcy proceeding. That relief, if it is to be
forthcoming, should originate with Congress. See Shaeffer,
Proceedings in Bankruptcy In Forma Pauperis, 69
Col. L. Rev. 1203 (1969).
Reversed.
MR. CHIEF JUSTICE BURGER, concurring.
I concur fully in the Court's opinion. The painstaking
and precise delineation by Mr. Justice Harlan of the
interests involved in Boddie v. Connecticut, 401 U. S.
371 (1971), ought not to be ignored as the dissenting
opinions would do. Moreover, the exclusivity of a State's
control of marriage and divorce is a far cry from the
degree of government control over relations between
debtor and creditor, as MR. JusTICE BLACKMUN has
pointed out. In a bankruptcy proceeding the government,
through the court, is no more than the overseer
and the administrator of the process; it is not the absolute
and exclusive controller as with the dissolution of marriage.
Like the descent and distribution of property for
which all States have provided statutes and probate
courts, the bankruptcy court is but one mode of orderly
adjustment with creditors; it is not the only one since
many debtors work out binding private adjustments with
creditors.
UNITED STATES v. KRAS 451
434 STEWART, J., dissenting
Surely there are strong arguments, as a matter of
policy, for the result the dissenting view asserts. But
Congress has not yet seen fit to declare the policy that
the dissenters now find in the Constitution. In 1970
Congress authorized a tripartite commission to review
the bankruptcy laws.1 The commission has been engaged
in its task for more than two years and it is hardly
likely that this problem will escape its consideration.2
The Constitution is not the exclusive source of law reform,
even needed reform, in our system.
MR. JusTICE STEWART, with whom MR. JusTICE Doua-
LAS, MR. JUSTICE BRENNAN, and MR. JUSTICE MARSHALL
join, dissenting.
On May 28, 1971, Robert Kras, the appellee, sought to
file a voluntary petition in bankruptcy. In an accompanying
affidavit, he described his economic plight. He
resided in a 21/2-room apartment with his wife, his two
young children, his mother, and her child. His eightmonth-
old son had cystic fibrosis and at the time of the
1 Pub. L. 91-354, 84 Stat. 468.
2 The commission's mandate requires it to "study, analyze,
evaluate, and recommend changes" in the Bankruptcy Act "in order
for such Act to reflect and adequately meet the demands of present
technical, financial, and commercial activities. The commission's
study . . . shall include a consideration of the basic philosophy of
bankruptcy, the causes of bankruptcy, the possible alternatives to
the present system of bankruptcy administration, the applicability
of advanced management techniques to achieve economies in the
administration of the Act, and all other matters which the Commission
shall deem relevant." Of particular relevance is the preamble
to the Act creating the commission, which recites in part that ''the
technical aspects of the Bankruptcy Act are interwoven with the
rapid expansion of credit which has reached proportions far beyond
anything previously experienced by the citizens of the United States."
The report of the commission is to be submitted prior to June 30,
1973. Pub. L. 92-251, 86 Stat. 63.
452 OCTOBER TERM, 1972
STEWART, J., dissenting 409 u. s.
affidavit was undergoing hospital treatment. Unemployed
since May 1969, except for odd jobs, he supported
his household on a total public assistance allotment of
$366 per month-all of which was consumed on rent
and the most basic necessities of life. His sole assets
consisted of $50 worth of clothing and essential household
goods.1
He sought a discharge from over $6,000 in debts, particularly
his indebtedness to a former employer that he
contended hampered his present efforts to find a permanent
job: "I earnestly seek a discharge in bankruptcy ...
in order to relieve myself and my family of the distress
of financial insolvency and creditor harassment and in
order to make a new start in life. . . . When I do get
a job I want to be able to spend my wages for the support
of myself and my family and for the medical care
of my son, instead of paying them to my creditors and
forcing my family to remain dependent on welfare."
He indicated that he was unable to pay the $50 bankruptcy
filing fee in a lump sum,2 and could not promise
to pay it in installments, as required before the petition
could be filed.3 He contended that the fee requirement
1 These items are exempt from distribution in bankruptcy pursuant
to 11 U. S. C. § 24 and N. Y. Civ. Prac. Law § 5205 (1963).
2 The fee consists of $37 for the referees' salary and expense
fund, $10 compensation for the trustees, and $3 to the clerk as a
filing fee. 11 U. S. C. §§ 68 (c)(l), 76 (c), 80 (a).
3 This Court's General Order in Bankruptcy No. 35 ( 4), authorized
by 11 U. S. C. § 68 ( c) ( 1), permits fees to be paid in installments
over a six-month period, amounting to $1.92 a week; and, for cause,
this period may be extended for an additional three months, so that
the debtor would only be required to pay $1.28 per week. But
before the bankruptcy petition can be filed, the petitioner must both
indicate that he is without, and cannot obtain, money with which
to pay the fee in advance, and set forth the terms upon which he
proposes to make installment payments.
UNITED STATES v. KRAS 453
434 STEWART, J., dissenting
was unconstitutional as applied to him,4 and moved for
leave to proceed without paying the fee.
The District Court held that under the doctrine of
Boddie v. Connecticut, 401 U. S. 371, the statutory requirement
of a prepaid bankruptcy filing fee would violate
Kras' Fifth Amendment right to due process of law.
331 F. Supp. 1207, 1212.6 The court ordered the petition
filed and directed the referee in bankruptcy to make
provision for the survival of the appellee's obligation to
pay the filing fee. ,,~e noted probable jurisdiction of
the Government's appeal. 405 U. S. 915. I agree
with the District Court and would, therefore, affirm its
judgment.
Boddie held that a Connecticut statute requiring the
payment of an average $60 fee as a prerequisite to a
divorce action was unconstitutional under the Due Proc-
4 The appellee also contended that the filing fee should he Wllh·ed
under the gen<:'ral federal in Jonna pauperis statutt>, 28 U. S. C.
§ 1915 (a). That contention was rejected by the District Court on
the grounds that, in 1946, Congress exprt>ssly eliminated bankruptcy
petitions in f orma pauperis, and substituted installment payments.
11 U. S. C. § 68 (c). In light of the clear congressional
intent to eliminate pauper petitions, the court concluded, Congress
did not intend to allow bankrupts to procet>d under the general
in forma pauperis statute. See also In re Garland, 428 F. 2d 1185,
1186-1187; In re Smith, 323 F. Supp. 1082, 1084-1085. The
appellee does not question that conclusion here.
5 Other federal courts have reached the same conclusion. Sec
In re Haddock, No. WUO (Conn., May 22, 1972); In re Smith, 341
F. Supp. 1297; In re Ripley, No. Bk 71--0-1003 (::'-l'eb., Apr. 28,
1972); In re Ottman, 336 F. Supp. 746; In re Naron, 334
F. Supp. 1150; In re Read, No. Bk 71--826 (WDNY, O('t. 19, 1971).
See also In re Shropshire (ND Ia., Mar. 28, 1972); In re Passwater,
Nos. IP70-B-3697 and IP70-B--3698 (SD Ind. 1971). But see In re
Partilla, No. 71-B-380 (SDNY Oct. 15, 1971); In re Malevich, No.
Bk 29-71 (NJ 1971). In re Garland, supra, upon which the Government
relies, was decided before our decision in Boddie.
454 OCTOBER TERM, 1972
STEWART, J., dissenting 409 u. s.
ess Clause of the Fourteenth Amendment, as applied to
indigents unable to pay the fee. The Court reasoned
that due process protections are traditionally viewed as
safeguards for a defendant, because at the point when a
plaintiff invokes the governmental power of a court, the
judicial proceeding is "the only effective means of resolving
the dispute at hand and denial of a defendant's full
access to that process raises grave problems for its legitimacy."
401 U. S., at 376. But a party to a marriage
remains under serious and continuing obligation imposed
by the State, which cannot be removed except by judicial
dissolution of the marital bond. Thus, we concluded
that:
"[AJlthough they assert here due process rights as
would-be plaintiffs, we think appellants' plight, because
resort to the state courts is the only avenue
to dissolution of their marriages, is akin to that of
defendants faced with exclusion from the only forum
effectively empowered to settle their disputes. Resort
to the judicial process by these plaintiffs is no
more voluntary in a realistic sense than that of the
defendant called upon to defend his interests in
court. For both groups this process is not only the
paramount dispute-settlement technique, but, in
fact, the only available one." Id., at 376-377.
The violation of due process seems to me equally clear
in the present case. It is undisputed that Kras is making
a good-faith attempt to obtain a discharge in bankruptcy,
and that he is in fact indigent. As was true in
Boddie, the "welfare income .. barely suffices to meet
the costs of the daily essentials of life and includes no
allotment that could be budgeted for the expense to gain
access to the courts .... " Id., at 372-373.6
6 The appellee indicated in the affidavit submitted with his
petition:
"Because of my poverty, I am wholly unable to pay or promise
UNITED STATES v. KRAS 455
434 STEWART, J., dissenting
Similarly, the debtor, like the married plaintiffs in
Boddie, originally entered into his contract freely and voluntarily.
But it is the Government nevertheless that
continues to enforce that obligation, and under our "legal
system" that debt is effective only because the judicial
machinery is there to collect it. The bankrupt is bankrupt
precisely for the reason that the State stands ready
to exact all of his debts through garnishment, attachment,
and the panoply of other creditor remedies. The appellee
can be pursued and harassed by his creditors since
they hold his legally enforceable debts.
And in the unique situation of the indigent bankrupt,
the Government provides the only effective means of his
ever being free of these Government-imposed obligations.
As in Boddie, there are no "recognized, effective alternatives,"
id., at 376. While the creditors of a bankrupt
with assets might well desire to reach a compromise
settlement, that possibility is foreclosed to the truly indigent
bankrupt. With no funds and not even a sufficient
prospect of income to be able to promise the payment of
a $50 fee in weekly installments of $1.28, the assetless
bankrupt has absolutely nothing to offer his creditors.
And his creditors have nothing to gain by allowing him
to escape or reduce his debts; their only hope is that
eventually he might make enough income for them to
attach. Unless the Government provides him access to
the bankruptcy court, Kras will remain in the totally
hopeless situation he now finds himself. The Government
has thus truly pre-empted the only means for the
to pay the filing fees, even in small installments, a.s a condition
precedent to discharge and also provide myself and my dependents
with day-to-day necessities. I have been unable to borrow money
from my family, relatives, or friends. One of the debts of which
I seek a discharge in bankruptcy is a loan from my wife's grandmother.
The New York City Department of Social Services refuses
to allot money for payment of the bankruptcy filing fees. I have
no prospect of immediate employment."
456 OCTOBER TERM, 1972
STEWART, J., dissenting 409 U.S.
indigent bankrupt to get out from under a lifetime burden
of debt.1
The Government contends that the filing fee is justified
by the congressional decision to make the bankruptcy
system self-supporting.8 But in Boddie we rejected this
same "pay as you go" argument, finding it an insufficient
justification for excluding the poor from the only available
process to dissolve a marriage. 401 U. S., at 382.
The argument is no more persuasive here. The Constitution
cannot tolerate achievement of the goal of selfsupport
for a bankruptcy system, any more than for a
domestic relations court, at the price of denying due
process of law to the poor. In re Naron, 334 F. Supp.
1150, 1151; In re Smith, 323 F. Supp. 1082, 1088."
7 In Boddie, the Court recognized that marriage was a "fundamental
human relationship," 401 U. S., at 383, which involved
interests '·of basic importance in our society." Id., at 376. But it
was not any subjective conception of the "fundamentality" of
marriage, or divorce for that matter, that led the Court to find
a. due process violation in Boddie; rather, the significant fa('tor about
marriage was that "[w]ithout a prior judicial imprimatur, individuals
may freely enter into and rescind commercial contracts, for example,
but we are unaware of any jurisdiction where private citizens may
covenant for or dissolve marriages without state approval." Id.,
at 376. It is the existence of judicially enforced obligations coupled
with monopolization of the means of dissolution that similarly
besets the indigent bankrupt.
s Prior to 1946, while pauper petitioners were accepted without
payment of fees, the referees whose compensation depended on fees,
often demanded payment before granting a discharge. S. Rep. No.
959, 79th Cong., 2d Sess., 6-7 (1946) ; H. R. Rep. No. 1037, 79th
Cong., !st Sess., 6 (1945). The 1946 Amendments to the Bankruptcy
Act eliminated pauper petitions and provided for the payment
of fixed fees for every petition filed, and the payment of a
fixed percentage of all distributable assets. See H. R. Rep. No.
1037, supra, at 4, 5-6.
0 See Fuentes v. Shevin, 407 U. S. 67, 90 n. 22; Bell v. Burson.
402 U. S. 535, 540-541; Goldberg v. Kelly, 397 U. S. 254, 261;
Cf. Griffin v. Illinois, 351 U.S. 12.
Moreover, there is no evidence that a substantial amount of
UNITED STATES v. KRAS 457
434 DOUGLAS and BRENNAN, JJ., dissenting
In my view, this case, like Boddie, does not require us
to decide "that access for all individuals to the courts is a
right that is, in all circumstances, guaranteed by the
Due Process Clause ... so that its exercise may not be
placed beyond the reach of any individual .... " 401
U. S., at 382-383. It is sufficient to hold, as Boddie did,
that "a State may not, consistent with the obligations
imposed on it by the Due Process Clause ... , pre-empt
the right to dissolve this legal relationship without affording
all citizens access to the means it has prescribed
for doing so." Id., at 383.
The Bankruptcy Act relieves "the honest debt.or from
the weight of oppressive indebtedness and [permits] him
to start afresh free from the obligations and responsibilities
consequent upon business misfortunes," Williams
v. United States Fidelity & Guaranty Co., 236 U. S.
549, 554--555. It holds out a promise to the debtor of
"a new opportunity in life and a clear field for future
effort, unhampered by the pressure and discouragement
of preexisting debt." Local Loan Co. v. Hunt, 292 U. S.
234, 244. Yet the Court today denies that promise to
those who need it most, to those who every day must
live face-to-face with abject poverty-who cannot spare
even $1.28 a week.
The Court today holds that Congress may say that
some of the poor are too poor even to go bankrupt. I
cannot agree.
MR. JUSTICE DOUGLAS and MR. JUSTICE BRENNAN,
dissenting.
While we join MR. JUSTICE STEWART'S dissenting opinion
we do so with this explicit statement of reasons. We
said in Bolling v. Sharpe, 347 U.S. 497, 499, when holding
revenue would be lost by allowing assedess indigents with no present
prospects of paying the fee to file without prepayment. Any
loss in fees that did result could be partly recouped by allowing the
filing-fee debt to survive bankruptcy.
458 OCTOBER TERM, 1972
MARSHALL, J., dissenting 409 U.S.
that segregation of students in the District of Columbia
violated the Due Process Clause of the Fifth Amendment:
"The Fifth Amendment, which is applicable in the
District of Columbia, does not contain an equal protection
clause as does the Fourteenth Amendment
which applies only to the states. But the concepts
of equal protection and due process, both stemming
from our American ideal of fairness, are not mutually
exclusive. The 'equal protection of the laws'
is a more explicit safeguard of prohibited unfairness
than 'due process of law,' and, therefore, we do not
imply that the two are always interchangeable
phrases. But, as this Court has recognized, discrimination
may be so unjustifiable as to be violative
of due process."
The invidious discrimination in the present case is a
denial of due process because it denies equal protection
within our decisions which make particularly "invidious"
discrimination based on wealth or race.
MR. JusTICE MARSHALL, dissenting.
The dissent of MR. JusncE STEWART, in which I have
joined, makes clear the majority's failure to distinguish
this case from Boddie v. Connecticut, 401 U. S. 371
(1971). I add only some comments on the extraordinary
route by which the majority reaches its conclusion.
A. The majority notes that the minimum amount
that appellee Kras must pay each week if he is permitted
to pay the filing fees in installments is only $1.28. It
says that "this much available revenue should be within
his able-bodied reach." Ante, at 449.
Appellee submitted an affidavit in which he claimed
that he was "unable to pay or promise to pay the filing
fees, even in small installments." App. 5. This claim
was supported by detailed statements of his financial conUNITED
STATES v. KRAS 459
434 MARSHALL, J., dissenting
dition. The affidavit was unchallenged below, but the
majority does challenge it. The District Judge properly
accepted the factual allegations as true. See, e. g., Poller
v. Columbia Broadcasting System, 368 U.S. 464 (1962);
First National Bank of Arizona v. Cities Service Co., 391
U. S. 253 (1968); 35B C. J. S., Federal Civil Procedure
§ 1197 n. 4 (1960). The majority seems to believe that it
is not restrained by the traditional notion that judges
must accept unchallenged, credible affidavits as true, for
it disregards the factual allegations and the inferences that
necessarily follow from them. I cannot treat that notion
so cavalierly.1
Even if Kras' statement that he was unable to pay the
fees was an honest mistake, surely he cannot have been
mistaken in saying that he could not promise to pay the
fees. The majority does not directly impugn his good
faith in making that statement. Yet if he cannot promise
to pay the fees, he cannot get the interim relief from
creditor harassment that, the majority says, may enable
him to pay the fees.
But beyond all this, I cannot agree with the majority
that it is so easy for the desperately poor to save $1.92
each week over the course of six months. The 1970 Census
found that over 800,000 families in the Nation had
annual incomes of less than $1,000 or $19.23 a week.
U. S. Bureau of Census, Current Population Reports,
series P-60, No. 80; U. S. Bureau of Census, Statistical
1 The majority also misrepresents appellee's financial condition.
It says that $1.28 "is a sum less than the payments Kras makes on
his couch of negligible value in storage." Ante, at 449. Nowhere
in the slender record of this case can I find any statement that
appellee is actually paying anything for the storage of the couch.
He said only that he "owed payments of $6 per month" for storage.
App. 5 ( emphasis added). He also stated that he owed $6,428.69,
but I would hardly read that to mean that he was paying that much
to anyone.
460 OCTOBER TERM, 1972
MARSHALL, J., dissenting 409 U.S.
Abstract of the United States 1972, p. 323. I see no reason
to require that families in such straits sacrifice over
5% of their annual income as a prerequisite to getting a
discharge in bankruptcy.2
It may be easy for some people to think that weekly
savings of less than $2 are no burden. But no one
who has had close contact with poor people can fail to
understand how close to the margin of survival many of
them are. A sudden illness, for example, may destroy
whatever savings they may have accumulated, and by
eliminating a sense of security may destroy the incentive
to save in the future. A pack or two of cigarettes may
be, for them, not a routine purchase but a luxury indulged
in only rarely. The desperately poor almost never
go to see a movie, which the majority seems to believe
is an almost weekly activity. They have more important
things to do with what little money they have-like attempting
to provide some comforts for a gravely ill
child, as Kras must do.
It is perfectly proper for judges to disagree about
what the Constitution requires. But it is disgraceful for
an interpretation of the Constitution to be premised
upon unfounded assumptions about how people live.
B. The majority derives some solace from the denial
of certiorari in In re Garland, 402 U.S. 966 (1971). Re-
2 The majority, in citing the "record of achievement" of the bankruptcy
system in terminating 107,481 no-asset cases in the fiscal
year 1969, ante, at 448 n. 7, relies on spectral evidence. Because the
filing fees bar relief through the bankruptcy system, statistics showing
how many people got relief through that system are unenlightening
on the question of how many people could not use the system
because they were too poor. I do not know how many people cannot
afford to pay a $50 fee in installments. But I find nothing in the
majority's opinion to convince me that due process is afforded a
person who cannot receive a discharge in bankruptcy because he is
too poor. Even if only one person is affected by the filing fees, he
is denied due process.
UNITED STATES v. KRAS 461
434 MARSHALL, J., dissenting
liance on denial of certiorari for any proposition impairs
the vitality of the discretion we exercise in controlling the
cases we hear. See Brown v. AUen, 344 U. S. 443, 491-
492 ( 1953) ( opinion of Frankfurter, J.). For all that
the legal community knows, Mr. Justice Harlan did not
join the dissent from denial of certiorari in that case for
reasons different from those that the majority uses to
distinguish this case from Boddie. Perhaps he believed
that lower courts should have some time to consider the
implications of Boddie. Most of the lower courts have
refused to follow the First Circuit's decision in Garland,
428 F. 2d 1185. See ante,, at 453 n. 5 (STEWART, J., dissenting).
Perhaps he thought that the record in that
case made inappropriate any attempt to determine the
scope of Boddie in that particular case. Or perhaps he
had some other reason.
The point of our use of a discretionary writ is precisely
to prohibit that kind of speculation. When we
deny certiorari, no one, not even ourselves, should think
that the denial indicates a view on the merits of the
case. It ill serves judges of the courts throughout the
country to tell them, as the majority does today, that in
attempting to determine what the law is, they must read,
not only the opinions of this Court, but also the thousands
of cases in which we annually deny certiorari.3
C. The majority says that "[t]he denial of access to the
judicial forum in Boddie touched directly ... on the
marital relationship." It sees "no fundamental interest
3 That one of us undertook to write a dissent, even a "pointed
dissent," from the denial of certiorari should suggest, again, nothing
at all about the views of any other Members of the Court on the
merits of the petition. Surely each of us has seen many cases in
which a colleague's dissent from the denial of certiorari pointed to
an issue of great concern that we thought should be decided by this
Court, but in which we did not join because we did not consider the
case to be an appropriate vehicle for determination of that issue.
462 OCTOBER TERM, 1972
MARSHALL, J., dissenting 409 u. s.
that is gained or lost depending on the availability of a
discharge in bankruptcy." Ante, at 444,445. If the case
is to turn on distinctions between the role of courts in divorce
cases and their role in bankruptcy cases/ I agree
with MR. JUSTICE STEWART that this case and Boddie
cannot be distinguished; the role of the Government in
standing ready to enforce an otherwise continuing obligation
is the same.
However, I would go further than MR. JusncE STEWART.
I view the case as involving the right of access to
the courts, the opportunity to be heard when one claims
a legal right, and not just the right to a discharge in
bankruptcy.5 When a person raises a claim of right or
entitlement under the laws, the only forum in our legal
system empowered to determine that claim is a court.
4 I am intrigued by the majority's suggestion that, because the
granting of a divorce impinges on "associational interests," the right
to a divorce is constitutionally protected. Are we to require that
state divorce laws serve compelling state interests? For example, if
a State chooses to allow divorces only when one party is shown to
have committed adultery, must its refusal to allow them when the
parties claim irreconcilable differences be justified by some compelling
state interest? I raise these questions only to suggest that
the majority's focus on the relative importance in the constitutional
scheme of divorce and bankruptcy is misplaced. What is involved
is the importance of access to the courts, either to remove an obligation
that other branches of the government stand ready to enforce,
as MR. JUSTICE STEWART sees it, or to determine 11himR of right,
as I see it.
5 The majority suggests that no such right is involved, because
Congress could have committed the administration of the Bankruptcy
Act to a nonjudicial agency. Ante, at 447. I have some doubt
about the proposition that a statutorily created right can be fin~lly
determined by an agency, with no method for a disappointed claimant
to secure judicial review. But I have no doubt that Congress
could not provide that only the well-off had the right to present
their claims to the agency. As should be clear, the question is one
of access to the forum empowered to determine the claim of right;
it is only shorthand to call this a question of access to the courts.
UNITED STATES v. KRAS 463
434 MARSHALL, J., dissenting
Kras, for example, claims that he has a right under the
Bankruptcy Act to be free of any duty to pay his creditors.
There is no way to determine whether he has such
a right except by adjudicating his claim.6 Failure to do
so denies him access to the courts.
The legal system is, of course, not so pervasive as to
preclude private resolution of disputes. But private
settlements do not determine the validity of claims of
right. Such questions can be authoritatively resolved
only in courts. It is in that sense, I believe, that we
should consider the emphasis in Boddie on the exclusiveness
of the judicial forum~and give Kras his day in
court.
6 It might be said that the right he claims does not come into
play until he has fulfilled a condition precedent by paying the
filing fees. But the distinction between procedure and substance
is not unknown in the law and can be drawn on to counter that
argument.
464 OCTOBER TERM, 1972
Per Curiam 409 U.S.
RICHARDSON, SECRETARY OF HEALTH, EDUCATION,
AND WELFARE v. MORRIS ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF GEORGIA
No. 72-603. Decided January 15, 1973
District Court, which granted appellees an injunction against enforcement
of § 203 (a) of the Social Security Act, erred in assuming
jurisdiction under Tucker Act, which does not authorize suits for
equitable relief.
346 F. Supp. 494, vacated and remanded.
PER CURIAM.
Appellees are illegitimate children on whose behalf a
class action was commenced seeking to enjoin enforcement
of § 203 (a) of the Social Security Act, 49 Stat.
623, as amended, 42 U. S. C. § 403 (a), on the ground
that the provision was unconstitutional under this Court's
decisions in Weber v. Aetna Casualty & Surety Co., 406
U. S. 164 (1972), and Levy v. Louisiana, 391 U. S. 68
( 1968). The District Court granted appellees' request
for declaratory and injunctive relief.
On the merits, this appeal involves the same issues
that were raised in Davis v. Richardson, 342 F. Supp. 588
(Conn.), aff'd, post, p. 1069, and Griffin v. Richardson,
346 F. Supp. 1226 (Md.), aff'd, post, p. 1069. Unlike
those cases, however, the District Court here purported
to predicate its jurisdiction on the Tucker Act, 28 U. S. C.
§ 1346 (a) (2). Assuming, arguendo, that exhaustion of
the administrative remedies provided by the Social Security
Act was not a prerequisite to appellees' attack on
the facial constitutionality of§ 203 (a), see Public Utilities
Comm'n of California v. United States, 355 U. S.
534 ( 1958), we nonetheless conclude that it was error for
RICHARDSON v. MORRIS 465
464 Per Curiam
the District Court to assume jurisdiction under the
Tucker Act.
The Tucker Act plainly gives district courts jurisdiction
over claims against the United States for money
damages of less than $10,000 that are "founded ... upon
the Constitution."* But the Act has long been contrued
as authorizing only actions for money judgments
and not suits for equitable relief against the United
States. See United States v. Jones, 131 U. S. 1 (1889).
The reason for the distinction flows from the fact that
the Court of Claims has no power to grant equitable
relief, see Glidden Co. v. Zdanok, 370 U. S. 530, 557
(1962) (Harlan, J., announcing the judgment of the
Court), and the jurisdiction of the district courts under
the Act was expressly made "concurrent with the Court
*The Act, in pertinent part, reads as follows:
"(a) The district courts shall have original jurisdiction, concurrent
with the Court of Claims, of:
"(2) Any other [ excepting certain tax cases] civil action or claim
against the United States, not exceeding $10,000 in amount, founded
either upon the Constitution, or any Act of Congress, or any regulation
of an executive department, or upon any express or implied
contract with the United States, or for liquidated or unliquidated
damages in cases not sounding in tort."
The Act was passed in 1887. 24 Stat. 505. As enacted, the Act
read in terms of "[a]ll claims" rather than "[a]ny other civil
action or claim." Appellees suggest that the added phrase was
intended to broaden the scope of district court jurisdiction to include
"actions" for injunctions as well as "claims" for monetary damages.
The phrase, however, did not appear in the 1940 edition of the
Judicial Code, 28 U. S. C. § 41 (20), and appears to have been
inserted during the revision in 1948, without any suggestion
that the change was to affect the section's substance. In any event,
the corresponding section dealing with the concurrent jurisdiction
of the Court of Claims contains no such addition. See 28 U. S. C.
§ 1491.
466 OCTOBER TERM, 1972
Per Curiam 409 u. s.
of Claims." See United States v. Sherwood, 312 U. S.
584, 589-591 (1941); Bates Mfg. Co·. v. United States,
303 U. S. 567, 570 (1938). What was said in Sherwood,
supra, at 591, applies here:
"[T]he Tucker Act did no more than authorize the
District Court to sit as a court of claims and ... the
authority thus given to adjudicate claims against
the United States does not extend to any suit which
could not be maintained in the Court of Claims."
Although appellees contend that jurisdiction was properly
asserted under various alternative provisions of the
Judicial Code, the District Court did not pass upon the
applicability of those other provisions. Accordingly, appellees'
motion for leave to proceed in forma pauperis is
granted, the judgment is vacated, and the case remanded
to the District Court for further proceedings consistent
with this opinion.
It is so ordered.
AMERICAN TRIAL LAWYERS v. N. J. SUPREME COURT 467
Per Curiam
AMERICAN TRIAL LAWYERS ASSN., NEW
JERSEY BRANCH, ET AL. V. NEW JERSEY
SUPREME COURT
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF NEW JERSEY
No. 72-691. Decided January 15, 1973
In abstaining so as to permit a state court to pass on an issue of
state law, a district court should retain jurisdiction pending the
state proceeding so that appellants ma.y preserve their right to
litigate their federal claims in federal courts at the conclusion of
the state proceeding.
Vacated and remanded.
PER CURIAM.
On December 21, 1971, the Supreme Court of New
Jersey announced the adoption of Rule 1 :21-7, effective
January 31, 1972, establishing a graduated schedule of
maximum contingent fees applicable to tort litigation
conducted by New Jersey attorneys.1 Appellants, representing
members of the New Jersey bar, brought this
action to enjoin the enforcement of the rules on the
grounds that they violate several provisions of the Constitution,
including the Due Process and Equal Protection
Clauses of the Fourteenth Amendment. The trial
1 Rule 1 :21-7 provides in part:
" ( c) In any matter where a client's claim for damages is based
upon the alleged tortious conduct of another, including products
liability claims, and the client is not a subrogee, an attorney shall
not contract for, charge, or collect a contingent fee in excess of the
following limits:
" ( 1) 50% on the first $1000 recovered;
" ( 2) 40% on the next $2000 recovered ;
"(3) 33¼% on the next $47,000 recovered;
" ( 4) 20% on the next $50,000 recovered ;
"(5) 10% on any amount recovered over $100,000 . "
468 OCTOBER TERM, 1972
Per Curiam 409 U. S.
judge convened a three-judge court. 28 U. S. C.
§ 2281.2
After hearing argument on the merits, the District
Court pointed out that:
"[E]ssentially the case poses a dispute between a
state's highest court and those persons authorized
by that court to practice law in the state. The relationship
between the parties thus is an extremely
delicate one. Under such circumstances federal
courts generally have considered it appropriate, before
attempting any direct federal intervention at
the outset, first to permit the state courts to process
the dispute. Cf. Reetz v. Bozanich, 397 U. S. 82,
85-87 (1970)."
The court added that "[a]s was true in Reetz the initial
issue is whether the state constitution authorized the
enactment challenged." The court therefore granted
defendant-appellee's motion to dismiss.
By timely motion under Fed. Rule Civ. Proc. 59 (e),
appellants sought an order amending the judgment by
either
"(A) Retaining jurisdiction, but staying proceedings
in this Court pending determination of the issues
of state law in the courts of New Jersey, or
until efforts to obtain such a determination have
been exhausted; or
"(B) Ordering that the dismissal be without
prejudice, so that the suits for determination of the
2 Appellee maintained below, as it maintains before this Court,
that a three-judge court need not have been convened because the
constitutional question presented is insubstantial. Bailey v. Patterson,
369 U. S. 31 (1962). It insists, however, that if the claim
is substantial then it must be heard by a court of three judges. 28
U. S. C. § 2281. In view of the posture of the case on this appeal,
we do not, of course, express any view on the merits of the question
presented.
AMERICAN TRIAL LAWYERS v. N. J. Sl' PREME COllRT 469
467 Per Curiam
federal constitutional issues may be reinstituted after
exhausting state recourse with respect to state law
issues." Jurisdictional Statement 10.
The motion was denied and appellants brought this
appeal. 3
"[A]bstention 'does not, of course, involve the abdication
of federal jurisdiction, but only the postponement of
its exercise.' " England v. Loui,siana State Board of
Medical Examiners, 375 U. S. 411, 416 (1964), quoting
from Harmon v. NAACP, 360 lT. S. 167,177 (1959). For
that reason, we have held that a dismissal on grounds of
abstention so as to permit a state court to pass on an
issue of state law must not be with prejudice. Doud v.
Hodge, 350 U. S. 485 (1956); Lake Carriers' Assn. v.
MacMullan, 406 U.S. 498 (1972). The proper course is
for the District Court to retain jurisdiction pending the
proceedings in the state courts. Lake Carriers' Assn. v.
MacMuUan, supra, at 512-513; Zwickler v. Koota, 389
U. S. 241, 244-245, n. 4 (1967).4 Although the District
Court may have intended its judgment of dismissal to be
without prejudice to the right of appellants to litigate
their federal claims in federal court at the conclusion of
the state proceeding, the court did deny appellants' motion
for an amendment to the judgment making clear that
no prejudice would attach. The motion should have
been granted. Accordingly, we vacate the judgment of
the District Court and remand the case for proceedings
consistent with this opinion.
So ordered.
3 The validity of the Distrirt Court's derision to abstain is not
at is.sue on this appe.al.
' "It is better practice, in a rase raising a federal constitutional
or statutory claim [where the doctrine of abstention is applied],
to retain juri~dic1ion, rather than to dismiss .... " Zwickler, supra,
at 244 n. 4.
470 OCTOBER TERM, 1972
Opinion of the Court 409U. S.
ALMOTA FARMERS ELEVATOR & WAREHOUSE
CO. v. UNITED STATES
CERTIORARI TO THE UNITED STATJ<JS COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 71-951. Argued October 18, 1972-Decided January 16, 1973
Before and during the last of several successive leases, petitioner
made substantial and permanent improvements that had a useful
life in excess of the remaining lease term. With 7½ years to run
on the then-current lease term, the United States contracted to
acquire the underlying fee and began condemnation proceedings
for the leasehold. The Court of Appeals reversed the District
Court's ruling that just compensation required that the improvements
be valued in place over their useful life without limitation
to the remainder of the lease term. Held: In a condemnation
proceeding, the concept of "just compensation" is measured by
what a willing buyer would have paid for the improvements, taking
into account the possibility that the lease might be renewed as
well as that it might not. Pp. 473-478.
450 F. 2d 125, reversed and District Court judgment reinstated.
STEWART, J., delivered the opinion of the Court, in which DouGLAS,
BRENNAN, MARSHALL, and PowELL, JJ., joined. PowELL, J.,
filed a concurring opinion, in which DouGLAs, J., joined, post, p. 479.
REHNQUIST, J., filed a dissenting opinion, in which BURGER, C. J.,
and WHITE and BLACKMUN, J,J., joined, post, p. 480.
Lawrence Earl Hickman argued the cause for petitioner.
With him on the briefs was Philip H. Faris.
Assistant Attorney General Frizzell argued the cause
for the United States. With him on the brief were Solicitor
General Griswold, Wm. Terry Bray, Edmund B.
Clark, and Jacques B. Gelin.
MR. JusTICE STEWART delivered the opm10n of the
Court.
Since 1919 the petitioner, Almota Farmers Elevator
& Warehouse Co., has conducted grain elevator operations
on land adjacent to the tracks of the OregonALMOTA
FARMERS ELEVATOR & WHSE. CO. v. U. S. 471
470 Opinion of the Court
Washington Railroad & Navigation Co. in the State of
Washington. It has occupied the land under a series
of successive leases from the railroad. In 1967, the
Government instituted this eminent domain proceeding
to acquire the petitioner's property interest by condemnation.
At that time there were extensive buildings
and other improvements that had been erected on the
land by the petitioner, and the then-current lease had
7½ years to run.
In the District Court the Government contended that
just compensation for the leasehold interest, including
the structures, should be "the fair market value of the
legal rights possessed by the defendant by virtue of the
lease as of the date of taking," and that no consideration
should be given to any additional value based on the expectation
that the lease might be renewed. The petitioner
urged that, rather than this technical "legal rights
theory," just compensation should be measured by what
a willing buyer would pay in an open market for the
petitioner's leasehold.
As a practical matter, the controversy centered upon
the valuation to be placed upon the structures and their
appurtenances. The parties stipulated that the Government
had no need for these improvements and that the
petitioner had a right to remove them. But that stipulation
a.fforded the petitioner only what scant salvage
value the buildings might bring. The Government offered
compensation for the loss of the use and occupancy
of the buildings only over the remaining term of the
lease. The petitioner contended that this limitation
upon compensation for the use of the structures would
fail to award what a willing buyer would have paid for
the lease with the improvements, since such a buyer
would expect to have the lease renewed and to continue
to use the improvements in place. The value of the
buildings, machinery, and equipment in place would be
substantially greater than their salvage value at the end
472 OCTOBER TERM, 1972
Opinion of the Court 409 u. s.
of the lease term, and a purchaser in an open market
would pay for the anticipated use of the buildings and
for the savings he would realize from not having to
construct new improvements himself. In sum, the dispute
concerned whether Almota would have to be satisfied
with its right to remove the structures with their
consequent salvage value or whether it was entitled to
an award reflecting the value of the improvements in
place beyond the lease term.
In a pretrial ruling, the District Court accepted the
petitioner's theory and held that Almota was to be
compensated for the full market value of its leasehold
"and building improvements thereon as of the date of
taking ... , the total value of said leasehold and improvements
... to be what the interests of said company
therein could have been then sold for upon the
open market considering all elements and possibilities
whatsoever found to then affect the market value of
those interests including, but not exclusive of, the possibilities
of renewal of the lease and of the landlord requiring
the removal of the improvements in the event
of there being no lease renewal." The court accordingly
ruled that the petitioner was entitled to the full fair
market value of the use of the land and of the buildings
in place as they stood at the time of the taking, without
limitation of such use to the remainder of the term of
the existing lease.
On appeal, the Court of Appeals for the Ninth Circuit
reversed, 450 F. 2d 125; it accepted the Government's
theory that a tenant's expectancy in a lease renewal was
not a compensable legal interest and could not be included
in the valuation of structures that the tenant had
built on the property. It rejected any award for the
use of improvements beyond the lease term as "compensation
for expectations disappointed by the exercise
of the sovereign power of eminent domain, expectations
ALMOTA FARMERS ELEVATOR & WHSE. CO. v. U.S. 473
470 Opinion of the Court
not based upon any legally protected right, but based
only ... upon 'a speculation on a chance.' " 450 F.
2d, at 129. The court explicitly refused to follow an
en bane decision of the Court of Appeals for the Second
Circuit, relied upon by the District Court, which had held
that for condemnation purposes improvements made by a
lessee are to be assessed at their value in place over
their useful life without regard to the term of the lease.
United States v. Certain Property, Borough of Manhattan,
388 F. 2d 596, 601.
In view of this conflict in the circuits, we granted certiorari,
405 U. S. 1039, to decide an important question
of eminent domain law: "Whether, upon condemnation
of a leasehold, a lessee with no right of renewal is entitled
to receive as compensation the market value of its improvements
without regard to the remaining term of its
lease, because of the expectancy that the lease would
have been renewed." 1 We find that the view of the
Court of Appeals for the Second Circuit is in accord with
established principles of just-compensation law under
the Fifth Amendment, and therefore reverse the judgment
before us and reinstate the judgment of the
District Court.
The Fifth Amendment provides that private property
shall not be taken for public use without "just compensation."
"And 'just compensation' means the full monetary
equivalent of the property taken. The owner is
1 This was the statement of the question presented by the Government
in opposing the grant of the petition for certiorari. As the
petitioner phrased the question, the Court was asked to decide: "In
awarding just compensation to a tenant in the condemnation of a
leasehold interest in real property, including tenant owned building
improvements and fixtures situated thereon, may an element of great
inherent value in the improvements be excluded merely because it
does not, by itself, rise to the status of a legal property right."
(Emphasis added.)
474 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
to be put in the same position monetarily as he would
have occupied if his property had not been taken."
United States v. Reynolds, 397 U. S. 14, 16 (footnotes
omitted). See also United States v. Miller, 317 U. S.
369, 373. To determine such monetary equivalence, the
Court early established the concept of "market value":
the owner is entitled to the fair market value of his
property at the time of the taking. New York v. Sage,
239 U. S. 57, 61. See also United States v. Reynolds,
supra, at 16; United States v. Miller, supra, at 374. And
this value is normally to be ascertained from "what a
willing buyer would pay in cash to a willing seller."
Ibid. See United States v. Virginia Electric & Power
Co., 365 U. S. 624, 633.
By failing to value the improvements in place over
their useful life-taking into account the possibility that
the lease might be renewed as well as the possibility that
it might not-the Court of Appeals in this case failed
to recognize what a willing buyer would have paid for
the improvements. If there had been no condemnation,
Almota would have continued to use the improvements
during a renewed lease term, or if it sold the improvements
to the fee owner or to a new lessee at the end of
the lease term, it would have been compensated for the
buyer's ability to use the improvements in place over
their useful life. As Judge Friendly wrote for the Court
of Appeals for the Second Circuit:
"Lessors do desire, after all, to keep their properties
leased, and an existing tenant usually has the inside
track to a renewal for all kinds of reasons--avoidance
of costly alterations, saving of brokerage commissions,
perhaps even ordinary decency on the part
of landlords. Thus, even when the lease has expired,
the condemnation will often force the tenant
to remove or abandon the fixtures long before he
would otherwise have had to, as well as deprive him
ALMOTA FARMERS ELEVATOR & WHSE. CO. v. U. S. 475
470 Opinion of the Court
of the opportunity to deal with the landlord or a
new tenant-the only two people for whom the fixtures
would have a value unaffected by the heavy
costs of disassembly and reassembly. The condemnor
is not entitled to the benefit of assumptions,
contrary to common experience, that the fixtures
would be removed at the expiration of the stated
term." United States v. Certain Property, Borough
of Manhattan, 388 F. 2d, at 601-602 (footnote
omitted).
It seems particularly likely in this case that Almota
could have sold the leasehold at a price that would
have reflected the continued ability of the buyer to use
the improvements over their useful life. Almota had an
unbroken succession of leases since 1919, and it was in
the interest of the railroad, as fee owner, to continue leasing
the property, with its grain elevator facilities, in
order to promote grain shipments over its lines. In a
free market, Almota would hardly have sold the leasehold
to a purchaser who paid only for the use of the facilities
over the remainder of the lease term, with Almota retaining
the right thereafter to remove the facilities-in effect,
the right of salvage. "Because these fixtures diminish in
value upon removal, a measure of damages less than their
fair market value for use in place would constitute a
substantial taking without just compensation. '[I] t is
intolerable that the state, after condemning a factory or
warehouse, should surrender to the owner a stock of
secondhand machinery and in so doing discharge the full
measure of its duty.'" United States v. 1,132.50 Acres
of Land, 441 F. 2d 356, 358.2
2 The compensation to which Almota is entitled is hardly "totally
set free from [its] property interest,'' as the dissent suggests. Post,
at 484. The improvements are assuredly "private property" that
the Government has "taken" and for which it acknowledges it must
pay compensation. The only dispute in this case is over how those
476 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
United States v. Petty Motor Co., 327 U.S. 372, upon
which the Government primarily relies, does not lead to
a contrary result. The Court did indicate that the measure
of damages for the condemnation of a leasehold is to
be measured in terms of the value of its use and occupancy
for the remainder of the lease term, and the Court
refused to elevate an expectation of renewal into a compensable
legal interest. But the Court was not dealing
there with the fair market value of improvements. Unlike
Petty Motor, there is no question here of creating
a legally cognizable value where none existed, or of compensating
a mere incorporeal expectation.3 The petitioner
here has constructed the improvements and seeks
only their fair market value. Petty Motor should not be
improvements are to be valued, not over whether Almota is to
receive additional compensation for business losses. Almota may
well be unable to operate a grain elevator business elsewhere; it
may well lose the profits and other values of a going business, but
it seeks compensation for none of that. Mitchell v. United States,
267 U. S. 341, did hold that the Government was not obliged to pay
for business losses caused by condemnation. But it assuredly did
not hold that the Government could fail to provide fair compensation
for business improvements that are taken-dismiss them as
worth no more than scrap value-simply because it did not intend
to use them. Indeed, in Mitchell the Government paid compensation
both for the land, including its "adaptability for use in a particular
business," id., at 344, and for the improvements thereon.
3 Hence, this is not a case where the petitioner is seeking compensation
for lost opportunities, see United States ex rel. TVA v.
Powelson, 319 U. S. 266, 281-282; Omnia Commercial Co. v. United
States, 261 U. S. 502. The petitioner seeks only the fair value of the
property taken by the Government.
Nor is this a case where compensation is to be paid for "the
value added to fee lands by their potential use in connection with
[Government] permit lands," United States v. Fuller, post, p. 488,
at 494, for neither action by the Government nor location adjacent to
public property contributed any element of value to Almota's
leasehold interest.
ALMOTA FARMERS ELEVATOR & WHSE. CO. v. U. S. 477
470 Opinion of the Court
read to allow the Government to escape paying what a
willing buyer would pay for the same property.
The Government argues that it would be unreasonable
to compensate Almota for the value of the improvements
measured over their useful life, since the Government
could purchase the fee and wait until the expiration of
the lease term to take possession of the land! Once it
has purchased the fee, the argument goes, there is no
further expectancy that the improvements will be used
during their useful life since the Government will assuredly
require their removal at the end of the term.
But the taking for the dam was one act requiring proceedings
against owners of two interests.5 At the time of that
"taking" Almota had an expectancy of continued occupancy
of its grain elevator facilities. The Government
must pay just compensation for those interests "probably
within the scope of the project from the time the
4 It was established at oral argument that while the Government
had contracted to acquire the railroad's interest, it had not acquired
the fee at the time of the taking of the leasehold, nor did it have possession
at the time of the trial or appeal.
5 "It frequently happens in the case of a lease for a long term
of years that the tenant erects buildings or puts fixtures into the
buildings for his own use. Even if the buildings or fixtures are
attached to the real estate and would pass with a conveyance
of the land, as between landlord and tenant they remain personal
property. In the absence of a special agreement to the contrary,
such buildings or fixtures may be removed by the tenant at any
time during the continuation of the lease, provided such removal
may be made without injury to the freehold. This rule, however,
exists entirely for the protection of the tenant, and cannot be
invoked by the condemnor. If the buildings or fixtures are atta('hed
to the real estate, they must be treated as real estate in determining
the total award. But in apportioning the award, they are treated
as personal property and credited to the tenant." 4 P. Nichols,
Eminent Domain § 13.121 [2J (3d rev. ed. 1971) (footnotes omitted).
478 OCTOBER TERM, 1972
Opinion of the Court 409 u. s.
Government was committed to it." United States v.
Miller, 317 U. S., at 377. Cf. United States v. Reynolds,
397 U. S., at 16-18. It may not take advantage
of any depreciation in the property taken that is attributable
to the project itself. Id., at 16; United
States v. Virginia Electric & Power Co., 365 U. S., at
635-636. At the time of the taking in this case, there
was an expectancy that the improvements would be
used beyond the lease term. But the Government
has sought to pay compensation on the theory that
at that time there was no possibility that the lease would
be renewed and the improvements used beyond the lease
term. It has asked that the improvements be valued as
though there were no possibility of continued use.0 That
is not how the market ·would have valued such improvements;
it is not what a private buyer \vould have paid
Almota.
"The constitutional requirement of just compensation
derives as much content from the basic equitable principles
of fairness, United States v. Commodities Trading
Corp., 339 U. S. 121, 124 (1950), as it does from technical
concepts of property law." United States v. Fuller,
post, at 490. It is, of course, true that Almota should
be in no better position than if it had sold its leasehold
to a private buyer. But its position should surely
be no worse.
The judgment before us is reversed and the judgment
of the District Court reinstated.
6 Similarly, the dissent today would value the petitioner's interest
after the Government has condemned the underlying fee, and
thus after the value of the petitioner's interest has bern diminislwd
because the risk of nonrenewal of the lease has materialized. But
there was only one "taking," and at the time of that "taking" there
was not only a risk that the lease would not be renewed, but a
possibility that it would be and that the improvements would be
used over their useful life.
ALMOTA FARMERS ELEVATOR & WHSE. CO. v. U. S. 479
470 PowELL, J., concurring
MR. JUSTICE POWELL, with whom MR. JusTICE DouGLAS
joins, concurring.
I join the opinion of the Court, but add a few words
to indicate what I find implicit in its rejection of the
Government's claim to act as if it were Almota's landlord.
It is clear, first of all, that the market value of improvements
placed on a leasehold interest will vary depending
in major part upon the probable future conduct of the
landlord. In this case, based on the experience of nearly
half a century and the evident self-interest of the landlord
railroad, this conduct could be predicted with considerable
confidence. There was every expectation that
the improvements would continue to have significant
value beyond the term of the present lease. In a transaction
between a willing buyer and a willing seller, there
can be no doubt that this value would have been accorded
appropriate weight.
On different facts, the market value of Almota's interest
might have been significantly lower. If, for example,
the railroad had relocated its tracks before the Government
entered the picture, the leasehold improvements
would have been nearly valueless in the market. A risk
which Almota took in erecting those improvements,
the risk that the railroad would relocate its tracks,
would have proved a poor one. The risk would have
been substantially the same if, independently of the
present navigation project, the Government had purchased
the railroad with the intention of operating it, and
thereafter had decided to relocate it or to discontinue
operation. Under those circumstances, the Government
could properly have acted as an ordinary landlord, and
its lessees could have been expected to bear the risk that
it would put its land to a new use.
Here, however, the Government held no interest in the
land until its navigation project required the acquisition
of both the fee and the leasehold interests. If, at that
480 OCTOBER TERM, 1972
REHNQUIST, J., dissenting 409 U.S.
point, the Government had condemned both interests in
a single proceeding, or in separate proceedings, Almota
would have been entitled to compensation for the value
of the improvements beyond the present lease term. Almota
bore the risk that the railroad would change its
plans, but should not be forced to bear the risk that
the Government would condemn the fee and change
its use. Where multiple properties or property interests
are condemned for a particular public project, the Government
must pay pre-existing market value for each.
Neither the Government nor the condemnee may take
advantage of "an alteration in market value attributable
to the project itself." United States v. Reynolds, 397
U.S. 14, 16 (1970); cf. United States v. Virginia Electric
& Power Co., 365 U. S. 624, 635-636 (1961); United
States v. Miller, 317 U.S. 369,377 (1943).
The result should not be different merely because the
Government arranged to acquire the fee interest by negotiation
rather than by condemnation. Apart from
cases where, as in United States v. Rands, 389 U. S. Ul
(1967), the Government has a property interest antedating
but within the bounds of its present project, it
would be unjust to allow the Government to use "salami
tactics" to reduce the amount of one property owner's
compensation by first acquiring an adjoining piece of
property or another interest in the same property from
another property owner. While United States v. Petty
Motor Co., 327 U.S. 372 (1946), arguably establishes an
exception to this principle, I subscribe to the Court's
narrow construction of that case.
MR. JusTICE REHNQUIST, with whom THE CHIEF
JUSTICE, MR. JUSTICE WHITE, and MR. JusTICE BLACKMUN
join, dissenting.
Petitioner is entitled to compensation for so much
of its private "property" as was taken for public use.
ALMOTA FARMERS ELEVATOR & WHSE. CO. v. U. S. 481
470 REHNQUIST, J., dissenting
The parties concede that petitioner's property interest
here taken was the unexpired portion of a 20-year lease
on land owned by the Oregon-Washington Railroad
& Navigation Co. near Colfax, Washington. The Court
recognizes the limited nature of petitioner's interest
in the real property taken, but concludes that it
was entitled to have its leasehold and improvements
valued in such a way as to include the probability that
petitioner's 20-year lease would have been renewed by
the railroad at its expiration.
There is a plausibility about the Court's resounding
endorsement of the concept of "fair market value" as
the touchstone for valuation, but the result reached by
the Court seems to me to be quite at odds with our
prior cases. Even in its sharply limited reading of Unite.d
States v. Petty Motor Co., 327 U. S. 372 (1946), the
Court concedes that the petitioner's expectation of having
its lease renewed upon expiration is not itself an interest
in property for which it may be compensated. But
the Court permits the same practical result to be reached
by saying that, at least in the case of improvements,
the fair market value may be computed in terms of a
willing buyer's expectation that the lease would be
renewed.
In Unite.d States v. Petty Motor Co., supra, the Government
acquired by condemnation the use of a structure
occupied by tenants in possession under leases for
various unexpired terms. The Court held that the measure
of damages for condemnation of a leasehold is the
value of the tenant's use of the leasehold for the
remainder of the agreed term, less the agreed rent. The
Court considered the argument, essentially the same
raised by petitioner here, that a history of past renewal
of the leases to existing tenants creates a compensable
expectancy, but held that the right to compensation
should be measured solely on the basis of the remainder
482 OCTOBER TERM, 1972
REHNQUIST, J., dissenting 409 U.S.
of the tenant's term under the lease itself. Id., at 380.
In so deciding, the Court stated:
"The fact that some tenants had occupied their
leaseholds by mutual consent for long periods of
years does not add to their rights. Emery v. Boston
Terminal Co., 178 Mas.s. 172, 185, 59 N. E. 763
[per Holmes, C. J.]:
" 'It appeared that the owners had been in the
habit of renewing the petitioners' lease from time
to time . . . . Changeable intentions are not an
interest in land, and although no doubt such intentions
may have added practically to the value of
the petitioners' holding, they could not be taken
into account in determining what the respondent
should pay. They added nothing to the tenants'
legal rights, and legal rights are all that must be
paid for. Even if such intentions added to the
saleable value of the lease, the addition would
represent a speculation on a chance, not a legal
right.'" Id., at 380 n. 9.
The holding in Petty was consistent with a long line
of cases to the effect that the Fifth Amendment does
not require, on a taking of a property interest, compensation
for mere expectancies of profit, or for the frustration
of licenses or contractual rights that pertain to the
land, but that are not specifically taken and that are not
vested property interests. Omnia Commerc-ial Co. v.
United States, 261 U. S. 502, 510 (1923); Sinclair Pipe
Line Co. v. United States, 152 Ct. Cl. 723, 728, 287 F. 2d
175, 178 (1961); Chicago, M., St. P. & P.R. Co. v. Chicago,
R. I. & P. R. Co., 138 F. 2d 268, 270-271 (CA8
1943), cert. denied, 320 U.S. 804 (1944).
While the inquiry as to what property interest is taken
by the condemnor and the inquiry as to how that property
interest shall be valued are not identical ones, they
ALMOTA FARMERS ELEVATOR & WHSE. CO. v. U. S. 483
470 REHNQUIST, J., dissenting
cannot be divorced without seriously undermining a number
of rules dealing with the law of eminent domain
that this Court has evolved in a series of decisions
through the years. The landowner, after all, is interested,
not in the legal terminology used to describe the property
taken from him by the condemnor, but in the amount
of money he is to be paid for that property. It will
cause him little remorse to learn that his hope for a
renewal of a lease for a term of years is not a property
interest for which the Government must pay, if in the
same breath he is told that the lesser legal interest that
he owns may be valued to include the hoped-for renewal.
The notion of "fair market value" is not a universal
formula for determining just compensation under the
Fifth Amendment. In United States v. Miller, 317 U.S.
369, 374 (1943), the Court said of market value:
"Respondents correctly say that value is to be
ascertained as of the date of taking. But they
insist that no element which goes to make up value
as at that moment is to be discarded or eliminated.
We think the proposition is too broadly stated."
It is quite apparent that the property on which the
owner operates a prosperous retail establishment would
command more in an open market sale than the fair
value of so much of the enterprise as was "private property"
within the meaning of the Fifth Amendment. Yet
Mitchell v. United States, 267 U. S. 341 (1925), stands
squarely for the proposition that the value added to the
property taken by the existence of a going business is
no part of the just compensation for which the Government
must pay for taking the property:
"No recovery therefor can be had now as for a
taking of the business. There is no finding as a
fact that the Government took the business, or
that what it did was intended as a taking. If the
484 OCTOBER TERM, 1972
REHNQUIST, J., dissenting 409 U.S.
business was destroyed, the destruction was an unintended
incident of the taking of land." Id., at
345.
More recently, in United States ex rel. TVA v. Powelson,
319 U. S. 266, 283 (1943), the Court generalized
further:
"That which is not 'private property' within the
meaning of the Fifth Amendment likewise may be
a thing of value which is destroyed or impaired
by the taking of lands by the United States. But
like the business destroyed but not 'taken' in the
Mitchell case it need not be reflected in the award
due the landowner unless Congress so provides."
In either Mitchell or Powelson, the result would in
all probability have been different had the Court applied
the reasoning that it applies in this case. Here, too,
the improvements on the property are not desired by
the Government for the project in question, but the
taking of petitioner's leasehold interest prevents its continuing
to have their use for the indefinite future as it
had anticipated. The Court says that although its
"property" interest would have expired in 7½ years,
the market value of that interest may be computed on
the basis of expectancies that do not rise to the level
of a property interest under the Fifth Amendment.
If permissible methods of valuation are to be thus
totally set free from the property interest that they
purport to value, it is difficult to see why the same
standards should not be applied to a going business.
Although the Government does not take the going business,
and although the business is not itself a "property"
interest within the Fifth Amendment, since purchasers
on the open market would have paid an added increment
of value for the property because a business was located
on it, it may well be that such increment of value is
ALMOTA FARMERS ELEVATOR & WHSE. CO. v . U. S. 485
470 REHNQUIST, J., dissenting
properly included in a condemnation award under the
Court's holding today. And it will assuredly make no
difference to the property owner to learn that destruction
of a going business is not compensable, if he be
assured that the property concededly taken upon which
the business was located may be valued in such a way as
to include the amount a purchaser would have paid
for the business.
The extent to which the Court's decision in this case
will unsettle condemnation law is obscured by the fact
that the parties, motivated no doubt by condemnation
lawyers' well-known propensity to enter into factual
stipulations that present abstract questions of valuation
theory for decision, have stipulated as to amounts
to be awarded depending on which party prevails. But
the underlying difficulty with petitioner's theory was
lucidly demonstrated by the late Judge Madden in his
opinion for the Court of Appeals in this case, ref erring
to the similar holding of the Court of Appeals for the
Tenth Circuit in Scully v. Unite,.d States, 409 F. 2d 1061
(1969):
"If the law were to go into the business of awarding
compensation for an expectancy which never
materialized, because the sovereign 'took' the subject
of the expectancy, should, in Scully, supra,
e. g., the one year lessees be compensated for the
loss of a five year occupancy, a 50 year occupancy,
a perpetual occupancy? In our instant case, was
the stipulation based upon some actuarial computation
such as the prospective life of the buildings
and machinery, or the life of the railroad, or upon
free-ranging guesswork?" United States v. 22.95
Acres of Land, 450 F. 2d 125, 129 (CA9 1971).
The Court's conclusion gains no support from its citation
of the recognized principle that the Government
486 OCTOBER TERM, 1972
REHNQUIST, J., dissenting 409 U.S.
may not take advantage of any depreciation in the property
taken that is attributable to the project itself, United
States v. Reynol,ds, 397 U. S. 14 ( 1970); United States v.
Miller, 317 U. S. 369 (1943). The value of petitioner's
property ta.ken could not be diminished by the fact that
the river improvement and navigation for which the
Government took its property might have had a depressing
effect on pre-existing market value. But the
Government makes no such contention here. While,
under existing principles of constitutional eminent
domain law, the value of petitioner's property was not
subject to diminution resulting from the effect on market
value of the improvement that the Government proposed
to construct, it was subject to the hazard of nonrenewal
of petitioner's leasehold interest. The fact that
the Government has condemned the underlying fee for
the same project, and has therefore made the risk of
nonrenewal a certainty, undoubtedly diminishes the
market value of petitioner's leasehold interest. But the
diminution results, not from any depressing effect of
the improvement that the Government will construct
after having taken the leasehold, but from a materialization
of the risk of transfer of ownership of the underlying
fee to which its value was always subject.
In at least partially cutting loose the notion of "just
compensation" from the notion of "private property"
that has developed under the Fifth Amendment, the
Court departs from the settled doctrine of numerous
prior cases that have quite rigorously adhered to the
principle that destruction of value by itself affords no
occasion for compensation. United States v. Fuller, post,
p. 488; United States v. Rands, 389 U. S. 121 (1967).
" [DJamage alone gives courts no power to require compensation
where there is not an actual taking of property."
United States v. Willow River Power Co., 324
U. S. 499, 510 (1945). "[T]he existence of value alone
ALMOTA FARMERS ELEVATOR & WHSE. CO. v. U. S. 487
470 REHNQUIST, J., dissenting
does not generate interests protected by the Constitution
against diminution by the government .... " Reichelderfer
v. Quinn, 287 U. S. 315, 319 (1932). While the
Court purports to follow this well-established principle
by requiring the compensation paid to be determined on
the basis of private property actually taken, its endorsement
of valuation computed in part on an expectancy
that is no part of the property taken represents a departure
from this settled doctrine. I therefore dissent.
488 OCTOBER TERM, 1972
Opinion of the Court 409U.S.
UNITED STATES v. FULLER ET ux.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 71-559. Argued October 18, 1972-Decided January 16, 1973
In a condemnation proceeding brought by the United States,
respondents made a claim, which the District Court and Court
of Appeals upheld, to compensation for enhanced value on the
open market because of use of the condemned fee lands in conj
unction with adjoining federal lands for which respondents held
permits under the Taylor Grazing Act. Held: The Fifth Amendment
requires no compensation for any value added to the fee
lands by the permits, which are revocable and, by the Act's
terms, create no property rights. Pp. 490--494.
442 F. 2d 504, reversed.
REHNQUIST, J., delivered t he opm1on of the Court, in which
BURGER, C. J., and STEWART, WHITE, and BLACKMUN, JJ., joined.
POWELL, J., filed a dissenting opinion, in which DouoLAs, BRENNAN,
and MARSHALL, JJ., joined, post, p. 494.
Harry R. Sachse argued the cause for the United States.
With him on the briefs were Soli,citor General Griswold,
Assistant Attorney General Frizzell, Raymond N. Zagone,
and Jacques B. Gel in.
Frank Haze Burch argued the cause for respondents.
With him on the brief was Daniel Cracchwlo.
Francis Gallagher filed a brief for the Montana Public
Lands Council as amicus curiae urging affirmance.
MR. JusTICE REHNQUIST delivered the opinion of the
Court.
Respondents operated a large-scale "cow-calf" ranch
near the confluence of the Big Sandy and Bill Williams
Rivers in western Arizona. Their activities were conducted
on lands consisting of 1,280 acres that they
UNITED STATES v. FULLER 489
488 Opinion of the Court
owned in fee simple (fee lands), 12,027 acres leased
from the State of Arizona, and 31,461 acres of federal
domain held under Taylor Grazing Act permits issued
in accordance with § 3 of the Act, 48 Stat. 1270, as
amended, 43 U. S. C. § 315b. The Taylor Grazing Act
authorizes the Secretary of the Interior to issue permits
to livestock owners for grazing their stock on Federal
Government lands. These permits are revocable by the
Government. The Act provides, moreover, that its
provisions "shall not create any right, title, interest, or
estate in or to the lands." Ibid.
The United States, petitioner here, condemned 920
acres of respondents' fee lands. At the trial in the District
Court for the purpose of fixing just compensation
for the lands taken, the parties disagreed as to whether
the jury might consider value accruing to the fee lands
as a result of their actual or potential use in combination
with the Taylor Grazing Act "permit" lands. The
Government contended that such element of incremental
value to the fee lands could neither be taken into consideration
by the appraisers who testified for the parties
nor considered by the jury. Respondents conceded that
their permit lands could not themselves be assigned any
value in view of the quoted provisions of the Taylor
Grazing Act. They contended, however, that if on the
open market the value of their fee lands was enhanced
because of their actual or potential use in conjunction with
permit lands, that element of value of the fee lands could
be testified to by appraisers and considered by the jury.
The District Court substantially adopted respondents'
position, first in a pretrial order and then in its
charge to the jury over appropriate objection by the
Government.
On the Government's appeal, the Court of Appeals
for the Ninth Circuit affirmed the judgment and approved
the charge of the District Court. 442 F. 2d 504.
490 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
That court followed the earlier case of United States v.
Jaramillo, 190 F. 2d 300 (CAlO 1951), and distinguished
our holding in United States v. Rands, 389 U. S. 121
(1967). The dissenting judge in the Ninth Circuit
thought the issue controlled by Rands, supra. We
granted certiorari. 404 U. S. 1037 ( 1972).
Our prior decisions have variously defined the "just
compensation" that the Fifth Amendment requires to
be made when the Government exercises its power of
eminent domain. The owner is entitled to fair market
value, United States v. Miller, 317 U. S. 369, 374
( 1943), but that term is "not an absolute standard
nor an exclusive method of valuation." United States
v. Virginia Electric & Power Co., 365 U. S. 624, 633
(1961). The constitutional requirement of just compensation
derives as much content from the basic equitable
principles of fairness, United States v. Commodities
Trading Corp., 339 U.S. 121, 124 (1950), as its does from
technical concepts of property law.
The record shows that several appraiser witnesses for
respondents testified that they included as an element
of the value that they ascribed to respondents' fee lands
the availability of respondents' Taylor Grazing Act permit
lands to be used in conjunction with the fee lands.
Under the District Court's charge to the jury, the jury
was entitled to consider this element of value testified
to by the appraisers. This Court has held that generally
the highest and best use of a parcel may be found to
be a use in conjunction with other parcels, and that any
increment of value resulting from such combination may
be taken into consideration in valuing the parcel taken.
Olson v. United States, 292 U. S. 246, 256 (1934). The
question presented by this case is whether there is an
exception to that general rule where the parcels to be
aggregared with the land taken are themselves owned
UNITED STATES v. FULLER 491
488 Opinion of the Court
by the condemnor and used by the condemnee only
under revocable permit from the condemnor.
To say that this element of value would be considered
by a potential buyer on the open market, and is
therefore a component of "fair market value," is not
the end of the inquiry. In United States v. Miller, supra,
this Court held that the increment of fair market value
represented by knowledge of the Government's plan to
construct the project for which the land was taken was
not included within the constitutional definition of "just
compensation." The Court there said:
"But [respondents] insist that no element which goes
to make up value ... is to be discarded or eliminated.
We think the proposition is too broadly
stated .... " 317 U. S., at 374.
United States v. Cors, 337 U.S. 325 (1949), held that
the just compensation required to be paid to the owner
of a tug requisitioned by the Government in October
1942, during the Second World War, could not include
the appreciation in market value for tugs created by the
Government's own increased wartime need for such vessels.
The Court said: "That is a value which the government
itself created and hence in fairness should
not be required to pay." Id., at 334. A long line of
cases decided by this Court dealing with the Government's
navigational servitude with respect to navigable
waters evidences a continuing refusal to include, as an
element of value in compensating for fast lands that
are taken, any benefits conferred by access to such benefits
as a potential portsite or a potential hydro-electric
site. United States v. Rands, supra; United States v.
Twin City Power Co., 350 U. S. 222 (1956); United
States v. Commodore Park, 324 U. S. 386 (1945).
492 OCTOBER TERM, 1972
Opinion of the Court 409U.S.
These cases go far toward establishing the general
principle that the Government as condemnor may not
be required to compensate a condemnee for elements of
value that the Government has created, or that it
might have destroyed under the exercise of governmental
authority other than the power of eminent domain. If,
as in Rands, the Government need not pay for value
that it could have acquired by exercise of a servitude
arising under the commerce power, it would seem a
fortiori that it need not compensate for value that it
could remove by revocation of a permit for the use of
lands that it owned outright.
We do not suggest that such a general principle can
be pushed to its ultimate logical conclusion. In United
States v. Miller, supra, the Court held that "just compensation"
did include the increment of value resulting from
the completed project to neighboring lands originally
outside the project limits, but later brought within them.
Nor may the United States "be excused from paying just
compensation measured by the value of the property at
the time of the taking" because the State in which the
property is located might, through the exercise of its
lease power, have diminished that value without paying
compensation. United States ex rel. TVA v. Powelson,
319 u. s. 266, 284 (1943).
"Courts have had to adopt working rules in order to
do substantial justice in eminent domain proceedings."
United States v. Miller, supra, at 375. Seeking as
best we may to extrapolate from these prior decisions
such a "working rule," we believe that there is a significant
difference between the value added to property by a
completed public works project, for which the Government
must pay, and the value added to fee lands by a
revocable permit authorizing the use of neighboring
lands that the Government owns. The Government
UNITED STATES v. FULLER 493
488 Opinion of the Court
may not demand that a jury be arbitrarily precluded
from considering as an element of value the proximity of
a parcel to a post office building, simply because the
Government at one time built the post office. But here
respondents rely on no mere proximity to a public building
or to public lands dedicated to, and open to, the
public at large. Their theory of valuation aggregates
their parcel with land owned by the Government to form
a privately controlled unit from which the public would
be excluded. If, as we held in Rands, a person may not
do this with respect to property interests subject to the
Government's navigational servitude, he surely may not
do it with respect to property owned outright by the Government.
The Court's statement in Rands respecting
portsite value is precisely applicable to respondents' contention
here that they may aggregate their fee lands with
permit lands owned by the Government for valuation
purposes:
"[I]f the owner of the fast lands can demand port
site value as part of his compensation, 'he gets the
value of a right that the Government in the exercise
of its dominant servitude can grant or withhold as it
chooE€s. . . . To require the United States to pay
for this ... value would be to create private claims
in the public domain.'" 389 U. S., at 125, quoting
United States v. Twin City Power Co., 350 U. S., at
228.
We hold that the Fifth Amendment does not require the
Government to pay for that element of value based on
the use of respondents' fee lands in combination with
the Government's permit lands.
The Court of Appeals based its holding in part on its
conclusion that although the Fifth Amendment might
not have required the Government to pay compensation
494 OCTOBER TERM, 1972
POWELL, J., dissenting 409 U.S.
of the sort permitted by the trial court's charge to the
jury, the history of the Taylor Grazing Act indicated that
Congress had intended that such compensation be paid.
Congress may, of course, provide in connection with condemnation
proceedings that particular elements of value
or particular rights be paid for even though in the absence
of such provision the Constitution would not require
payment. United States v. Gerlach Live Stock
Co., 339 U. S. 725 (1950). But we do think the factors
relied upon by the Court of Appeals fall far short of
the direction contained in the Reclamation Act of 1902,
32 Stat. 388, as amended, that payment be made for rights
recognized under state law, which was determinative of
the outcome in Gerlach. The provisions of the Taylor
Grazing Act quoted supra make clear the congressional
intent that no compensable property right be created in
the permit lands themselves as a result of the issuance
of the permit. Given that intent, it would be unusual,
we think, for Congress to have turned around and authorized
compensation for the value added to fee lands
by their potential use in connection with permit lands.
We find no such authorization in the applicable congressional
enactments.
Reversed.
MR. JusrICE PowELL, with whom MR. JUSTICE DouGLAS,
MR. JUSTICE BRENNAN, and MR. JuSTICE MARSHALL
join, dissenting.
I dissent from a decision which, in my view, dilutes
the meaning of the just compensation required by the
Fifth Amendment when property is condemned by the
Government. As a full understanding of the facts is
necessary, I will begin by restating them.
This is a condemnation proceeding brought by the
United States to acquire title to 920 of 1,280 acres of land,
owned in fee by respondents, which is within the area to
UNITED STATES v. FULLER 495
488 PowELL, J., dissenting
be flooded by a dam and reservoir project in Arizona.
At the time of the taking respondents used this fee land
as a base for a cattle operation known as a "cow-calf"
ranch. A dependable source of water allowed intense
cultivation of the fee land to provide the basic source of
feed for the cattle. In connection with their fee land,
respondents used 31,461 acres of adjacent public land on
which they held revocable grazing permits issued under
the Taylor Grazing Act. 43 U. S. C. § 315 et seq.1 The
public land was used for grazing during favorable seasons,
and roads running across the public land connected respondents'
three parcels of fee land.
The permits held by respondents on the public land
accorded exclusive but revocable grazing rights to respondents.
By the terms of the Act, the issuance of a
permit does not "create any right, title, interest, or estate
in or to the lands." 43 U. S. C. § 315b. Nonetheless,
grazing permits are of considerable value to ranchers
and serve a corresponding public interest in assuring the
"most beneficial use" of range lands. Hatahley v. United
States, 351 U.S. 173, 177 (1956). Respondents' permits
had not been revoked at the time of the taking, nor, so
far as the record reveals, have they yet been revoked.
The record also shows that only a small fraction of
the public grazing land will be flooded in the dam
and reservoir project. Thus, the public land which
respondents assert gave added value to their fee land
remains substantially intact and available for Ta.ylor
Grazing Act purposes.
The District Court allowed respondents to introduce
testimony as to the market value of the fee land which
took into consideration its proximity to this public
1 In addition, respondents grazed their cattle on 12,027 acres of
land leased from the State, but this land is not relevant to the controversy
now before us.
496 OCTOBER TERM, 1972
PowELL, J., dissenting 409 U.S.
land. In relevant part, the District Court instructed
the jury as follows:
"During the course of this trial, reference has been
made to grazing permits held by the defendants on
public land. You are instructed that such permits
are mere licenses which may be revoked and are not
compensable as such. However, should you determine
that the highest and best use of the property
taken is a use in conjunction with those permit lands,
you may take those permits into consideration in
arriving at your value of the subject land, keeping
in mind the possibility that they may be withdrawn
or canceled at any time without a constitutional
obligation to pay the compensation therefor.
"Evidence has been introduced of defendants' use
of their deeded land which is being taken, in conjunction
with surrounding land owned by the United
States, for which defendants have grazing permits,
and land belonging to the State of Arizona, which
defendants leased. In fixing the fair market value
of the fee land being taken and the compensation to
be awarded, you are not to award defendants any
compensation for the land owned by the United
States or the State of Arizona. However, in determining
the value of the fee land and in awarding
compensation to the owners, you should consider
the availability and accessibility of the permit and
leased land and its use in conjunction with the fee
land taken and give to the fee land such value as,
in your judgment, according to the evidence, should
be given on account of such availability and accessibility
of the permit and leased land, if any. You
should also consider the possibility that the permits
on the United States land could be withdrawn at
any time without constitutional obligation to pay
compensation therefor and determine the effect you
488
UNITED STATES v. FULLER 497
PowELL, J., dissenting
feel such possibility, according to the evidence,
would have upon the value of the fee land." App.
26-27.
I have reproduced this extensive excerpt to underline
the careful manner in which the condemnation jury
was instructed. Contrary to the implication in the
Government's framing of the question in this case; the
jury was not allowed to include "the value of revocable
grazing permits." The instruction expressly stated that
"such permits are mere licenses which may be revoked
and are not compensable as such." The emphasis of
the instruction was on the location of the fee land,
with the resulting "availability and accessibility" of the
adjacent public grazing land. I find the instruction to
be an appropriate statement of the applicable principles
of just compensation.
The opinion of the Court recognizes that the just
compensation required by the Fifth Amendment when
the Government exercises its power of eminent domain
is ordinarily the market value of the property taken.
United States v. Miller, 317 U. S. 369, 374 ( 1943). It
is commonplace, in determining market value-whether
2 As stated by the Government, the question presented by this
case is:
"Whether the owner of l:wd taken by the United States is entitled
to have included in the measure of his compensation the value of
revocable grazing permits on adjoining fednal land issued under
an Act of Congress which specifies that such grazing permits create
no 'right, title, interest, or estate in or to the lands.'" Brief for
United States 2.
More accurate, in light of the District Court's instruction, is respondents'
statement of the question:
"Whether, in determining the compensation due an owner of land
taken by the United States, the jury may consider the availability
and accessibility of public lands, so long as consideration is also
given the possibility that. the grazing permits on the public land may
be withdrawn." Brief for Respondents 1- 2.
498 OCTOBER TERM, 1972
POWELL, J., dissenting 409 U.S.
in condemnation or in private transactions--to consider
such elements of value as derive from the location of
the land. But today the Court enunciates an exception
to these recognized principles where the value of the
land to be condemned may be enhanced by its location
in relation to Government-owned property. The Court
relies on two lines of cases which, indeed, are said to go
far toward establishing
"the general principle that the Government as
condemnor may not be required to compensate a
condemnee for elements of value that the Government
has created, or that it might have destroyed
under the exercise of governmental authority other
than the power of eminent domain." Ante, at 492.
Applying this new principle to the present case,
the Court now holds that since the Government "created"
an element of value by owning grazing land and making
it available under the Taylor Grazing Act, and since it has
the power to "destroy" this element of value by barring
respondents and others from the land, the condemnation
jury must ignore the fact that respondents' land is adjacent
to public land. Under this formulation, it is quite
immaterial that the grazing land remains substantially
intact, and that the Government has taken no actionand
none is shown to be contemplated in the recordto
convert such land to some other use. The test is
not whether the Government has in fact put its property
to some other use or removed it entirely; rather, it
is quite simply whether the Government has the power
to do this.
Neither of the lines of cases on which the Court relies
seems apposite. The first includes United States v.
Miller, supra, in which the Court held that the Government
need not pay for an increase in value occaUNITED
STATES v. FULLER 499
488 POWELL, J., dissenting
sioned by the very project for which the land was condemned,
and United States v. Cars, 337 U.S. 325 (1949),
in which the Court held that in condemning tugboats
during wartime the Government need not offer compensation
for an increase in value attributable to its own
extraordinary wartime demand for such craft. These
cases support only the modest generalization that
compensation need not be afforded for an increase in
market value stemming from the very Government undertaking
which led to the condemnation.
The other cases on which the Court relies, United
States v. Rands, 389 U. S. 121 (1967), and United States
v. Twin City Power Co., 350 U.S. 222 (1956), deal with
the condemnation of lands adjacent to navigable waters.
In Rands, the condemnee owned land on the Columbia
River which the United States condemned "in connection
with the John Day Lock and Dam Project, authorized
by Congress as part of a comprehensive plan for the
development of the Columbia River." 389 U. S., at 122.
Relying on the "unique position" of the Government "in
connection with navigable waters," ibid., the Court held
that no special element of value could be accorded the
land by virtue of its possible use as a port. In Twin City,
the condemnee was holding land on the Savannah River
as a potential hydroelectric powersite. The Government
condemned the land as part of a major flood control,
navigation, and hydroelectric project. By a bare
majority vote, the Court held that the condemnee was
not entitled to the "special water-rights value" of the
land as a potential powersite, distinguishing other cases
with the comment:
"We have a different situation here, one where the
United States displaces all competing interests and
appropriates the entire flow of the river .... " 350
U. S., at 225.
500 OCTOBER TERM, 1972
PoWELL, J., dissenting 409 u. s.
The water rights cases may be subject to varying interpretations,
but it is important to remember when interpreting
them that they cut sharply against the grain of
the fundamental notion of just compensation, that a
person from whom the Government takes land is entitled
to the market value, including location value, of the
land. They could well be confined to cases involving
the Government's "unique position" with respect to
"navigable waters." 3 At most, these cases establish a
principle no broader than that the Government need
not compensate for location value attributable to the
proximity of Government property utilized in the same
project. In Rands, as in Twin City, the river adjacent
to the property condemned was the focal point of the
development project which led to the condemnation.
The Government simply decided to put the river to
a new use and in connection with that new use condemned
adjacent land.
To understand why compensation is not required in
such cases, it is important to distinguish the Government's
role as condemnor from its role as property
owner. While as condemnor the Government must pay
market value, as property owner it may change the use
of its property a.s if it were a private party, without
paying compensation for the loss in value suffered by
neighboring land.
3 Arguably, then, these are water rights cases and nothing more.
Suitable sites for hydroelectric plants or port facilities are important
natural resources, highly valuable but limited in number, over
which the Government has peculiar historical and constitutional
sway. On this view, while the Government has equal authority
over Taylor Grazing Act land and other Government-owned property,
proximity to such property may appropriately be treated differently
from proximity to navigable water for the purpose of measuring
just compensation. This wa>1 one of the bases on which the court
below distinguished the water cases from the present case, 442 F.
2d 504, 507 (CA9 1971), and in my ,·iew is an alternative ground
for affirming the judgment below.
UNITED STATES v. FULLER 501
488 PowELL, J., dissenting
When the Government condemns adjoining parcels
of privately owned land for the same project, it may
not take advantage of a drop in market value of one
parcel resulting from the decision to condemn another.
When, however, as in Rands and Twin City, a project
encompasses not only parcels of private land, but also
the public property which enhances the value of the
private land, a more difficult question is presented. In
each of those cases, the Government held a dominant
servitude over the flow of a river, and it condemned
adjacent private lands in connection with a decision
to exercise its servitude. Arguably, the measure of compensation
for the taking of the private lands should
have included the value of the riparian location unaffected
by the Government's decision to exercise its
own rights in the river. But this result would have
impinged on the Government's right to use the river
by raising the cost of any new use which required the
condemnation of private land.
Accordingly, in those cases the Court excluded evidence
of riparian location value since the Government
was exercising its lawful power to appropriate "the
entire flow of the river."
"The proper exercise of this power [ over navigable
waters] is not an invasion of any private property
rights in the stream or the lands underlying it, for
the damage sustained does not result from taking
property from riparian owners within the meaning
of the Fifth Amendment but from the lawful exercise
of a power to which the interests of riparian owners
have always been subject." United States v. Rands,
389 U. S., at 123.
In any event, the present case is quite different. Respondents'
lands were condemned not because the Government
as property owner decided to put its grazing
land to some other use and needed additional land, but
502 OCTOBER TERM, 1972
PowELL, J., dissenting 409 u. s.
rather because the Government wanted respondents' land
for a project which left the grazing land substantially
intact and available.4
The Government's role here is not an ambiguous oneit
is simply a condemnor of private land which happens
to adjoin public land. If the Government need not pay
location value in this case, what are the limits upon the
principle today announced? Will the Government be
relieved from paying location value whenever it condemns
private property adjacent to or favorably located
with respect to Government property? 5 Does the principle
apply, for example, to the taking of a gasoline
station at an interchange of a federal highway, or to
the taking of a farm which in private hands could continue
to be irrigated with water from a federal reservoir?
The majority proposes to distinguish such cases with
the "working rule" that
"there is a significant difference between the value
added to property by a completed public works
project, for which the Government must pay, and
the value added to fee lands by a revocable permit
• In two cases decided together involving the condemnation of
ranch land used in connection with Taylor Grazing Act land, a panel
of the Court of Appeals for the Tenth Circuit followed a similar
analysis in awarding location value in one case, United States v.
Jaramillo, 190 F. 2d 300 (1951), but not in the other, United States
v. Cox, 190 F. 2d 293 (1951). In Jaramillo, the court stated:
"By appropriate condemnation proceedings ... the Government
took appellee's fee and leased land a.s a part of a total of 20,061 acres,
to be used for war purposes. But, unlike the Cox and Beasley cases,
the project did not contemplate the acquisition of the forest land
covered by appellee's permit." (Emphasis added.) Id., at 301.
5 If so, the contrast between condemnation proceedings and other
transactions would be stark: the enhancement of value stemming
from public highway;;, parks, buildings, and recreational facilities
is commonly recognized for purposes of taxation, mortgaging, and
private sales.
488
UNITED STATES v. FULLER 503
POWELL, J., dissenting
authorizing the use of neighboring lands which the
Government owns." Ante, at 492.
The Court can hardly be drawing a distinction between
Government-owned "completed public works" and
Government-owned parks and grazing lands in their
natural state. The "working rule" as articulated can,
therefore, only mean that the respondents' revocable
permit to use the neighboring lands is regarded by the
Court as the distinguishing element. This is an acceptance
of the Government's argument that the added
value derives from the permit and not from the favorable
location with respect to the grazing land.6 The
answer to this, not addressed either by the Government
or the Court, is that the favorable location is the central
fact. Even if no permit had been issued to these respondents,
their three tracts of land-largely surrounded
by the grazing land-were strategically located and logical
beneficiaries of the Taylor Grazing Act. In determining
the market value of respondents' land, surely this location-
whether or not a permit had been issued 7-would
enter into any rational estimate of value. This is precisely
the rationale of the District Court's jury instruction,
which carefully distinguished between the revocable
permits "not compensable as such" and the "availability
and accessibility" of the grazing land. It is this distinction
which the Court's opinion simply ignores.
Finally, I do not think the Court's deviation from the
market-value rule can be justified by invocation of long-
6 See n. 2, supra.
1 Even if, as the Government's argument suggests is possible,
the permits held by respondents had been withdrawn as a prelude
to this condemnation, the Taylor Grazing Act contemplates their
issuance in the public interest and the record discloses no other private
landowners as favorably located to qualify for permits as these
respondents.
504 OCTOBER TERM, 1972
PowELL, J., dissenting 409 U.S.
established "basic equitable principles of fairness."
Ante, at 490. It hardly serves the principles of fairness
as they have been understood in the law of just
compensation to disregard what respondents could have
obtained for their land on the open market in favor
of its value artificially denuded of its surroundings.8
I would affirm the judgment of the Court of Appeals.
8 Respondents' witnesses valued the land at figures up to nearly a
million dollars, while the Government's expert witness assigned it a
value of $136,500. In what was manifestly a compromise, the jury
awarded $350,000.
ROBINSON v. NEIL 505
Opinion of the Court
ROBINSON v. NEIL, WARDEN
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
No. 71-6272. Argued December 6, 1972-Decided January 16, 1973
Waller v. Florida, 397 U. S. 387, which bars on the ground of double
jeopardy two prosecutions, state and municipal, based on the same
act or offense, is fully retroactive. Pp. 506-511.
452 F. 2d 370, vacated and remanded.
REHNQUIST, J., delivered the opinion for a unanimous Court.
BRENNAN, J., filed a separate opinion, in which DOUGLAS and
MARSHALL, JJ., joined, post, p. 511.
James D. Robinson argued the cause for petitioner.
With him on the brief was Jerry H. Summers.
Bart C. Durham III, Assistant Attorney General of
Tennessee, argued the cause for respondent. With him
on the brief were David M. Pack, Attorney General, and
William C. Koch, Jr., Assistant Attorney General.
MR. JusTICE REHNQUIST delivered the opinion of the
Court.
In 1962 petitioner was tried and convicted in the
Chattanooga municipal court of three counts of assault
and battery in violation of a city ordinance. He was
fined $50 and costs on each count. He was later indicted
by the grand jury of Hamilton County, Tennessee, which,
out of the same circumstances giving rise to the municipal
trial, charged him with three offenses of assault with
intent to commit murder in violation of state law. The
petitioner pleaded guilty to the state charges and received
consecutive sentences of three to 10 years for
two offenses and three to five years for the third offense.
He is presently in the custody of the respondent warden
of the Tennessee State Penitentiary.
506 OCTOBER TERM, 1972
Opinion of the Court 409U. S.
In 1966 the petitioner unsuccessfully sought habeas
corpus relief in state courts on the ground that the second
convictions for state offenses violated his federal constitutional
guarantee against twice being placed in jeopardy
for the same offense. In 1967 federal courts denied
a similar request for habeas corpus relief. Robinson v.
Henderson, 268 F. Supp. 349 (ED Tenn. 1967), aff'd,
391 F. 2d 933 (CA6 1968). In 1970 the petitioner
renewed his claims for habeas relief, basing his arguments
on this Court's intervening decisions in Benton v.
Maryland, 395 U. S. 784 (1969), and Waller v. Florida,
397 U. S. 387 (1970). Holding that Waller was to be
accorded retrospective effect, the District Court granted
the petitioner habeas corpus relief. 320 F. Supp. 894
(ED Tenn. 1971). The Sixth Circuit reversed ( 452 F.
2d 370 (1971)) and we granted certiorari to decide the
retroactivity of Waller v. Florida. 406 U.S. 916 (1972).
The Fifth Amendment's guarantee that no person be
twice put in jeopardy for the same offense was first held
binding on the States in Benton v. Maryland, supra.
Our subsequent decision in Waller v. Florida, supra, held
that the scope of this guarantee precluded the recognition
of the "dual sovereignty" doctrine with respect to
separate state and municipal prosecutions. Waller involved
the theft of a mural from the City Hall of St.
Petersburg, Florida. The petitioner there was first tried
and convicted of violating city ordinances with respect
to the destruction of city property and breach of the
peace. Subsequently, he was convicted of grand larceny
in violation of state law involving the same theft. The
Court stated :
"the Florida courts were in error to the extent
of holding that-
" 'even if a person has been tried in a municipal court
for the identical offense with which he is charged
505
ROBINSON v. NEIL 507
Opinion of the Court
in a state court, this would not be a bar to the
prosecution of such person in the proper state
court.'" 397 U. S., at 395.
Prior to this Court's 1965 decision in Linkletter v.
Walker, 381 U. S. 618, there would have been less
doubt concerning the retroactivity of the Waller holding.
For, until that time, both the common law and
our own decisions recognized a general rule of retrospective
effect for the constitutional decisions of this Court,
e.g., Norton v. Shelby County, 118 U.S. 425,442 (1886),
subject to limited exceptions of a nature such as those
stated in Chicot County Drainage District v. Baxter
State Bank, 308 U. S. 371 (1940). In Linkletter, the
Court, declaring that it was charting new ground (381
U. S., at 628 and n. 13), held that with respect to new
constitutional interpretations involving criminal rights
"the Constitution neither prohibits nor requires retrospective
effect." Id., at 629. Linkletter and succeeding
cases established a set of factors for determining
which constitutional rules were to be accorded retrospective
and which prospective effect only."* The District
Court and the Sixth Circuit in this case applied the factors
enunciated by these cases to the Waller holding. The
Sixth Circuit held, contrary to the conclusion of the District
Court, that Waller is not to be applied retroactively.
We do not believe that this case readily lends itself
to the analysis established in Linkletter. Certainly, there
is nothing in Linkletter or those cases following it to
indicate that all rules and constitutional interpretations
arising under the first eight Amendments must be subjected
to the analysis there enunciated. Linkletter itself
announced an exception to the general rule of retro-
*See Desist v. United States, 394 U. S. 244 (1969), which carefully
examined all of the cases decided since Linkletter and more
fully enunciated the guiding criteria of those cases.
508 OCTOBER TERM, 1972
Opinion of the Court 409U. S.
activity in a decision announcing that the exclusionary
rule of Mapp v. Ohio, 367 U. S. 643 (1961), would be
given prospective effect only. Linkletter, and the other
cases relied upon by the Sixth Circuit, dealt with those
constitutional interpretations bearing on the use of evidence
or on a particular mode of trial. Those procedural
rights and methods of conducting trials, however, do
not encompass all of the rights found in the first eight
Amendments. Guarantees that do not relate to these
procedural rules cannot, for retroactivity purposes, be
lumped conveniently together in terms of analysis. For
the purpose and effect of the various constitutional guarantees
vary sufficiently among themselves so as to affect
the necessity for prospective rather than retrospective
application.
Linkletter indicated, for instance, that only those procedural
rules affecting "the very integrity of the factfinding
process" would be given retrospective effect. 381
U. S., at 639. In terms of some nonprocedural guarantees,
this test is simply not appropriate. In Furman
v. Georgia, 408 U. S. 238 (1972), for example, this
Court held that in the situation there presented imposition
of the death penalty was not constitutionally permissible.
Yet, while this holding does not affect the
integrity of the factfinding process, we have not hesitated
to apply it retrospectively without regard to whether
the rule meets the Linkletter criteria. E. g., Walker v.
Georgw, 408 U. S. 936.
The prohibition against being placed in double jeopardy
is likewise not readily susceptible of analysis under
the Linkletter line of cases. Although the Court has
not handed down a fully reasoned opinion on the retroactivity
of Benton v. Maryland, it has indicated that
it is retroactive without examination of the Linkletter
criteria. North Carolina v. Pearce, 395 U.S. 711 (1969);
Ashe v. Swenson, 397 U.S. 436, 437 n. 1 (1970). These
ROBINSON v. NEIL 509
505 Opinion of the Court
decisions do not directly control the question of whether
Waller should be given retrospective effect but they bear
upon its disposition.
The guarantee against double jeopardy is significantly
different from procedural guarantees held in the Linkletter
line of cases to have prospective effect only. While
this guarantee, like the others, is a constitutional right
of the criminal defendant, its practical result is to prevent
a trial from taking place at all, rather than to prescribe
procedural rules that govern the conduct of a trial. A
number of the constitutional rules applied prospectively
only under the Linkletter cases were found not to affect
the basic fairness of the earlier trial, but to have been
directed instead to collateral purposes such as the deterrence
of unlawful police conduct, Mapp v. Ohio, supra.
In Waller, however, the Court's ruling was squarely directed
to the prevention of the second trial's taking place
at all, even though it might have been conducted with
a scrupulous regard for all of the constitutional procedural
rights of the defendant.
We would not suggest that the distinction that we
draw is an ironclad one that will invariably result in
the easy classification of cases in one category or the
other. The element of reliance embodied in the Linkletter
analysis will not be wholly absent in the case
of constitutional decisions not related to trial procedure,
as indeed this case when contrasted with Furman
illustrates.
In Furman v. Georgia, supra, our mandate was tailored
so as to deny to the State only the authority to impose
a punishment that we held unconstitutional, without the
necessity of a redetermination of the factual question
of whether the offense had in fact been committed.
Thus, the prejudice to the State resulting from the
necessity of an entirely new trial because of procedures
newly found to be constitutionally defective, with the
510 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
attendant difficulties of again assembling witnesses
whose memories would of necessity be dimmer for the
second trial than for the first, was not present. That
which was constitutionally invalid could be isolated and
excised without requiring the State to begin the entire
factfinding process anew.
The application of Waller retrospectively may, on the
other hand, result in a form of prejudice to the State
because, in reliance upon the "dual sovereignty" analogy,
the municipal prosecution may have occurred first and
the sentence already have been served prior to the commencement
of the state prosecution. If the offense involved
was a serious one under state law, as it apparently
was in this case, the defendant may have been unintentionally
accorded a relatively painless form of immunity
from the state prosecution. But the Court's opinion in
Waller makes clear that the analogy between state and
municipal prosecutions, and federal and state prosecutions
permitted in Bartkus v. Illinois, 359 U. S. 121
( 1959), had never been sanctioned by this Court and
was not analytically sound. Since the issue did not
assume federal constitutional proportions until after
Benton v. Maryland held the Double Jeopardy Clause
applicable to the States, this Court had not earlier had
occasion to squarely pass on the issue. But its decision
in Waller cannot be said to have marked a departure
from past decisions of this Court. Therefore, while
Waller-type cases may involve a form of practical prejudice
to the State over and above the refusal to permit
the trial that the Constitution bars, the justifiability
of the State's reliance on lower court decisions supporting
the dual sovereignty analogy was a good deal more
dubious than the justification for reliance that has
been given weight in our Linkletter line of cases. We
intimate no view as to what weight should be accorded
'
ROBINSON v. NEIL 511
505 Opinion of BRENNAN, J.
to reliance by the State that was justifiable under the
Linkletter test in determining retroactivity of a nonprocedural
constitutional decision such as Waller.
We hold, therefore, that our decision in Waller v. Florida
is to be accorded full retroactive effect. We refrain
from an outright reversal of the judgment below, however,
because statements of counsel at oral argument
raised the issue of whether the state and municipal
prosecutions were actually for the same offense. We
therefore vacate the judgment of the Court of Appeals
and remand the case so that respondent may have an
opportunity to present this issue there or in the District
Court.
It i,s so oridered.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE
DOUGLAS and MR. JUSTICE MARSHALL concur.
Although I otherwise join the opinion of the Court,
I would reverse the judgment of the Court of Appeals
outright. I adhere to my view that, regardless of the
similarity of the offenses, the Double Jeopardy Clause
of the Fifth Amendment, which is applicable to the
States through the Fourteenth Amendment, Benton v.
Maryland, 395 U. S. 784 (1969), requires the prosecution,
except in most limited circumstances not present
here, "to join at one trial all the charges against a
defendant that grow out of a single criminal act, occurrence,
episode, or transaction." Ashe v. Swenson, 397
U. S. 436, 453-454 (1970) (BRENNAN, J., concurring);
see Grubb v. Okl,ahoma, post, p. 1017 (1972) (BRENNAN,
J., dissenting); Miller v. Oregon, 405 U. S. 1047
(1972) (BRENNAN, J., dissenting); Harris v. Washington,
404 U. S. 55, 57 (1971) (separate statement of
DOUGLAS, BRENNAN, and MARSHALL, JJ.). Under this
"same transaction" test, a11 charges against petitioner
should have been brought in a single prosecution.
512 OCTOBER TERM, 1972
Syllabus 409 U.S.
GOOSBY ET AL. v. OSSER ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
No. 71-6316. Argued December 6-7, 1972-
Decided January 17, 1973
Philadelphia County prisoners unable to make bail or being held on
nonbailable offenses brought this class action, asserting the unconstitutionality
of Pennsylvania Election Code provisions denying
them the right to vote. When the Commonwealth (but not the
municipal) officials who were named as defendants conceded the
Code provisions' unconstitutionality, the District Judge ( deeming
the Commonwealth officials the principal defendants) ruled the
case nonjusticiable as not involving an Art. III case or controversy,
and dismissed the complaint. The Court of Appeals, though
differing as to justiciability, affirmed on the ground that petitioners'
constitutional claims were wholly insubstantial under
McDonald v. Board of Election Comm'rs, 394 U.S. 802, and ruled
that a three-judge district court was therefore not required under
28 U. S. C. § 2281. Held:
1. The Commonwealth officials' concession did not foreclose the
existence of an Art. III case or controversy since the municipal
officials continue to assert the right to enforce the challenged Code
provisions. Pp. 516-517.
2. McDonald, supra, unlike the situation alleged here, did not
deal with an absolute prohibition against voting by the prisoners
there involved, and that decision does not "foreclose the subject"
of petitioners' challenge to the Pennsylvania statutory scheme.
The case may, if appropriate, therefore be heard by a three-judge
district court. Pp. 518-523.
452 F. 2d 39, reversed and remanded.
BRENNAN, J., delivered the opinion for a unanimous Court.
Ann S. Torregrossa argued the cause for petitioners
pro hac vice. With her on the briefs was Elliot B. Platt.
Peter W. Brown, Deputy Attorney General, argued the
cause for respondents Commonwealth of Pennsylvania
GOOSBY v. OSSER 513
512 Opinion of the Court
et al. With him on the brief were J. Shane Creamer,
Attorney General, and Thomas J. Oravetz and Edward
J. Weintraub, Deputy Attorneys General. John Mattioni
argued the cause and filed a brief for municipal
respondents.
Briefs of amici curiae urging reversal were filed by
Jack Greenberg and Stanley A. Bass for the NAACP
Legal Defense and Educational Fund, Inc., et al., and by
Samuel Rabinove, Michael von Moschzisker, Wilbur
Bourne Ruthrauff, A. Harry Levitan, and Carolyn Temin
for the American Jewish Committee et al.
MR. JusTICE BRENNAN delivered the opinion of the
Court.
The question is whether 28 U. S. C. § 2281 l required
the convening of a three-judge court in the District Court
for the Eastern District of Pennsylvania to hear this
case. It is a class action brought by and on behalf of
persons awaiting trial and confined in Philadelphia
County prisons because either unable to afford bail or
because charged with nonbailable offenses. The complaint
alleges that provisions of the Pennsylvania Election
Code, in violation of the Equal Protection and
Due Process Clauses of the Fourteenth Amendment,
absolutely deny petitioners' class the right to vote in
1 Title 28 U. S. C. § 2281 provides:
"An interlocutory or permanent injunction restraining the enforcement,
operation or execution of any State statute by restraining the
action of any officer of such State in the enforcement or execution of
such statute or of an order made by an administrative board or
commission acting under State statutes, shall not be granted by any
district court or judge thereof upon the ground of the unconstitutionality
of such statute unless the application therefor is heard and
determined by a district court of three judges under section 2284 of
this title."
514 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
that they neither permit members of the class to leave
prison to register and vote, nor provide facilities for
the purpose at the prisons, and in that they expressly
prohibit persons "confined in penal institutions" from
voting by absentee ballot.2 The complaint names as
defendants two Commonwealth officials, the Attorney
General and Secretary of State of Pennsylvania, and
certain municipal officials of the County and City of
Philadelphia: the City Commissioners of Philadelphia
who constitute the Board of Elections and Registration
Commission of the City and County of Philadelphia,
the Voting Registration Supervisor for the City and
County, and the Superintendent of Prisons for the
County.
On oral argument before a single judge on petitioners'
motion for a temporary restraining order, the Commonwealth
officials appeared by a Deputy Attorney General,
who conceded that the challenged provisions of the Election
Code, as applied to petitioners' class, were unconstitutional
under the Fourteenth Amendment. The municipal
officials, on the other hand, vigorously defended
the constitutionality of the provisions as so applied. The
single judge deemed the contrary view of the municipal
officials to be irrelevant, as he regarded the Commonwealth
officials to be the "principal defendants." See
2 Pa. Stat. Ann., Tit. 25, § 623-1 et seq. (1963 and Supp. 1972-
1973); § 2602 (w) (12) (Supp. 1972--1973). Several elections, including
the 1972 presidential election, have been held since this act.ion
was filed, but this does not render the case moot. See Moore v.
Ogilvie, 394 U. S. 814 (1969). Similarly, the case is not rendered
moot because some of the named petitioners have lost their status
as class members by being released on bail, discharged, acquitted, or
convicted. See McDonald v. Board of Election Comm'rs, 394 U. S.
802, 803 n. 1 (1969); Lee v. Washington, 390 U.S. 333 (1968), aff'g
263 F. Supp. 327 (MD Ala. 1966).
GOOSBY v. OSSER 515
512 Opinion of the Court
n. 3, infra. He therefore ruled that the concession on behalf
of the Commonwealth officials meant there was no
case or controversy before the court as required by Art.
III of the Constitution, and dismissed the complaint.3
On petitioners' appeal, the Court of Appeals for the Third
Circuit affirmed. 452 F. 2d 39 ( 1971). We do not, however,
read the per curiam opinion of the Court of Appeals
as resting the affirmance on agreement with the single
judge that the concession of the Commonwealth officials
meant there was no case or controversy before the court.
Rather, we read the per curiam opinion as either implying
disagreement with the single judge on that question, or
as at least assuming that a case or controversy existed,
for the opinion states that, in the view of the Court of
Appeals, petitioners' constitutional claims were wholly
insubstantial under McDonald v. Board of Election
Comm'rs, 394 U. S. 802 (1969), in which circumstance,
3 The unpublished transcript of the oral opinion of the single
judge reads in pertinent part as follows:
"It has been stated that no Federal Court has jurisdiction to pronounce
any statute, either of the State or of the United States void
because irreconcilable with the Constitution except as it is called
upon to adjudge the legal rights of litigants in actual contr°'·ersies.
"Now, in the instant case the Attorney General, as the chief legal
officer of the Commonwealth, obviously represents, as Counsel have
stated in their arguments this morning, the 'principal' Defendant or
Defendants. The position taken by the remaining Defendants
seems to be the result of the fact that the Attorney General has not,
in accordance with his past practice, rendered an opinion together
with suggested procedures, plans, etc., covering the subject matter
of the opinion.
"It is, therefore, our conclusion that in the posture of this case
as it presently exists ... there is no controversy in the sense in
which that term is used by the Courts, and we find ourselves compelled
to, therefore, dismiss the complaint. It is so ordered." App.
85.
516 OCTOBER TERM, 1972
Opinion of the Court 409U.S.
the Court of Appeals held, Bailey v. Pattersorn, 369
U. S. 31 (1962), was authority that 28 U. S. C. § 2281
did not require the assembly of a three-judge court and
that dismissal by the single judge was therefore proper,
452 F. 2d, at 40. A petition for rehearing en bane
was denied, three judges dissenting. We granted certiorari,
408 U. S. 922 (1972). We reverse the judgment
of the Court of Appeals and remand with direction to
enter an appropriate order pursuant to 28 U. S. C. § 2281
for the convening of a three-judge court to hear this
case.
I
The single judge clearly erred in holding that the concession
of the Commonwealth officials foreclosed the
existence of a case or controversy. All parties are in
accord that Pennsylvania law did not oblige the municipal
officials to defer to the concession of the Commonwealth
officials, or otherwise give the Commonwealth
officials a special status as "principal defendants." 4 Indeed,
the brief filed in this Court by the Commonwealth
officials forthrightly argues that "[ t]he District Court
made an egregious error. The Attorney General and
the Secretary of the Commonwealth are not the only
defendants in this case. The City Commissioners of
Philadelphia, the Voting Registration Supervisor, the
Registration Commission, and the Superintendent of
Prisons for Philadelphia County are also parties. These
parties have contested vigorously the issues raised by
petitioners both in the District Court and on appeal.
• Thus, this is not a situation in which a State confesses error and
represents that the error will be corrected without need for further
court action. See, e. g., Titmus v. Tinsley, 370 U. S. 964 (1962);
McKissick v. Durham City Board of Education, 176 F. Supp. 3
(MDNC 1959); Jeffers v. Whitley, 197 F. Supp. 84 (MDNC 1961);
Kelley v. Board of Education, 139 F. Supp. 578 (MD Tenn. 1956).
GOOSBY v. OSSER 517
512 Opinion of the Court
They have provided adversity of interest, and will
sharply define the issues, to the extent they are not
already clear." Brief for Respondents Commonwealth
of Pennsylvania et al. 4-5.5
Thus, there is satisfied the requisite of Art. III that
"[t]he constitutional question ... be presented in the
context of a specific live grievance." Golden v. Zwickler,
394 U. S. 103, 110 (1969). As between petitioners and
the municipal officials, the District Court was "called
upon to adjudge the legal rights of litigants in actual
controversies," Liverpool, N. Y. & P. S. S. Co. v. Commissioners
of Emigration, 113 U. S. 33, 39 (1885), and
"the interests of [petitioners' class] require the use of ...
judicial authority for [petitioners'] protection against
actual interference." United Public Workers of America
v. Mitchell, 330 U. S. 75, 90 (1947). Since the municipal
officials persist in their asserted right to enforce
the challenged provisions of the Election Code, there is
a "real and substantial controversy" "touching the legal
relations of parties having adverse legal interests," Aetna
Life Ins. Co. v. Haworth, 300 U.S. 227, 240-241 (1937),
in which circumstance the concession of the Commonwealth
officials could not have the effect of dissipating
the existence of a case or controversy. Cf. In re Metropolitan
Railway Receivership, 208 U. S. 90, 107-108
(1908).
5 We also read respondents' brief as rejecting the view of the single
judge that the municipal officials must defer to the commonwealth
officials' concession pending the issuance of a formal opinion of the
Attorney General on the question of the constitutionality of the
statutes.
Insofar as the single judge may have rested his finding of the absence
of a case or controversy on the alleged diffirult_v of formulating
a remedy, he also erred. See Louisiana v. United States, 380
U. S. 145, 154 (1965); Brown v. Board of Education, 349 U. S. 294,
300 (1955).
518 OCTOBER TERM, 1972
Opinion of the Court 409U. S.
II
The Court of Appeals also erred. We disagree with
its holding that McDonald v. Board of Election Comm'rs,
supra, rendered petitioners' constitutional claims wholly
in substantial.
Title 28 U. S. C. § 2281 does not require the convening
of a three-judge court when the constitutional
attack upon the state statutes is insubstantial. "Constitutional
insubstantiaUty" for this purpose has been
equated with such concepts as "essentially fictitious,"
Bailey v. Patterson, 369 U. S., at 33; "wholly insubstantial,"
ibid.; "obviously frivolous," Hannis Distilling
Co. v. Baltimore, 216 U. S. 285, 288 (1910); and
"obviously without merit," Ex parte Poresky, 290 U. S.
30, 32 (1933). The limiting words "wholly" and "obviously"
have cogent legal significance. In the context of
the effect of prior decisions upon the substantiality of constitutional
claims, those words import that claims are
constitutionally insubstantial only if the prior decisions
inescapably render the claims frivolous; previous decisions
that merely render claims of doubtful or questionable
merit do not render them insubstantial for the
purposes of 28 U. S. C. § 2281. A claim is insubstantial
only if " 'its unsoundness so clearly results from the previous
decisions of this court as to foreclose the subject
and leave no room for the inference that the questions
sought to be raised can be the subject of controversy.' "
Ex parte Poresky, supra, at 32, quoting from Hannis
Distilling Co. v. Baltimore, supra, at 288; see also Levering
& Garrigues Co. v. Morrin, 289 U. S. 103, 105-106
(1933); McGilvra v. Ross, 215 U. S. 70, 80 (1909).
Under this test, it is clear that McDonald is not a prior
decision of this Court that "foreclose[s] the subject" of
petitioners' constitutional attack upon the Pennsylvania
statutory scheme; it is demonstrably not a decision that
GOOSBY v. OSSER 519
512 Opinion of the Court
"leave[s] no room for the inference that the question
sought to be raised [by petitioners] can be the subject
of controversy."
In McDonald, appellants were a class of pretrial detainees
in Cook County, Illinois, already registered to
vote, who sought to vote only by absentee ballot. Their
timely applications to the Cook County Board of Election
Commissioners for absentee ballots were denied
on the ground that pretrial detainees were not included
among those persons specifically permitted by the Illinois
Election Code to vote by absentee ballot. Appellants
brought suit alleging that in that circumstance
the Illinois Election Code denied them equal protection
of the laws, particularly as the Code provided absentee
ballots for those "medically incapacitated," and for pretrial
detainees who were residents of Cook County but
incarcerated outside of Cook County.0
The threshold question presented in McDonald was
"how stringent a standard to use in evaluating the
classifications made rby the Illinois absentee ballot provisions]
and whether the distinctions must be justified
by a compelling state interest .... " 394 U. S., at 806.
In resolving this question, the Court analyzed the Illinois
scheme in light of our decisions that required the
application of the more stringent compelling state interest
test when either a fundamental right, such as the
right to vote, was allegedly infringed, Reynolds v. Sims,
377 U.S. 533 (1964); Harper v. Virginia Board of Elec-
6 The Illinois absentee voting statute, Ill. Rev. Stat., c. 46, §§ 19-1
to I 9-3 ( 1971), made absentee voting available to four classes of persons:
( 1) those who were absent from their county of residence for any
reason; (2) those who were "physically incapacitated"; (3) those
whose observance of a religious holiday prevented attendance at the
polls; and ( 4) those who served as poll watchers in precincts other
than their own on election day. See McDonal,d v. Board of Election
Comm'rs, supra, at 803-804.
520 OCTOBER TERM, 1972
Opinion of the Court 409 u. s.
tions, 383 U. S. 663 (1966); Carrington v. Rash, 380
U. S. 89 (1965), or when the statutory classifications
were drawn on the basis of suspect criteria, such as
wealth or race, Harper v. Virginia Board of Elections,
supra; McLaughlin v. Florida, 379 U.S. 184, 192 (1964);
Douglas v. California, 372 U. S. 353 (1963). 394 U. S.,
at 807. Our analysis led us to conclude that neither
situation was presented by the Illinois absentee voting
provisions. We held that "the distinctions made by
Illinois' absentBe provisions are not drawn on the basis
of wealth or race," ibid., and, with respect to the alleged
infringement of appellants' right to vote, that:
"[T]here is nothing in the record to indicate that
the Illinois statutory scheme has an impact on appellants'
ability to exercise the fundamental right
to vote. It is th us not the right to vote that is at
stake here but a claimed right to receive absentee
ballots. Despite appellants' claim to the contrary,
the absentee statutes, which are designed to make
voting more available to some groups who cannot
easily get to the polls, do not themselves deny
appellants the exercise of the franchise; nor, indeed,
does Illinois' Election Code so operate as a whole,
for the State's statutes specifically disenfranchise
only those who have been convictBd and sentenced,
and not those similarly situated to appellants.
[Citation omitted.] Faced as we are with a constitutional
question, we cannot lightly assume, with
nothing in the record to support such an assumption,
that Illinois has in fact precluded appellants
from voting." Id., at 807-808. (Emphasis
supplied.)
For all that appeared, Illinois might make the franchise
available by other means:
"Appellants agree that the record is barren of any
indication that the State might not, for instance,
512
GOOSBY v. OSSER 521
Opinion of the Court
possibly furnish the jails with special polling booths
or facilities on election day, or provide guarded
transportation to the polls themselves for certain
inmates, or entertain motions for temporary reductions
in bail to allow some inmates to get to the polls
on their own." Id., at 808 n. 6.
Thus, "[s] ince there is nothing in the record to show
that appellants are in fact absolutely prohibited from
voting by the State . . ." id., at 808 n. 7, we concluded
that the Illinois absentee ballot provisions were
to be tested by the "more traditional standards for evaluating
... equal protection claims," id., at 808, and that
under those standards the provisions could not be said
to be arbitrary or unreasonable, particularly since "there
is nothing to show that a judicially incapacitated, pretrial
detainee is absolutely prohibited from exercising
the franchise." Id., at 809.
Petitioners' constitutional challenges to the Pennsylvania
scheme are in sharp contrast. Petitioners allege 7
that, unlike the appellants in McDonald, the Pennsylvania
statutory scheme absolutely prohibits them from
voting, both because a specific provision affirmatively excludes
"persons confined in a penal institution" from voting
by absentee ballot, Pa. Stat. Ann., Tit. 25, § 2602 (w)
7 "The existence of a substantial question of constitutionality must
be determined by the allegations of the bill of complaint.." Ex
parte Poresky, 290 U. S. 30, 32 (1933). In the present procedural
posture of petitioners' case, the allegations of their complaint must
be deemed to be true. Boddie v. Connecticut, 401 U. S. 371, 373
(1971); Gomillion v. Lightfoot, 364 U.S. 339,341 (1960). In addition
to the allegations that they are absolutely prohibited from
voting, petitioners allege that the Pennsylvania statute creates
classifications based on wealth and race, that the denial of the right
to vote is an impermissible consequence of pretrial detention in
violation of due process of law, and that the Pennsylvania statute's
specific exclusion of pretrial detainees from the definition of a
"qualified absentee voter" is unconstitutional even under the less
stringent rational relationship test applied in McDonald.
522 OCTOBER TERM, 1972
Opinion of the Court 409 u. s.
(12) (Supp. 1972-1973), and because requests by members
of petitioners' class to register and to vote either by
absentee ballot, or by personal or proxy appearance at
polling places outside the prison, or at polling booths and
registration facilities set up at the prisons, or generally by
any means satisfactory to the election officials, had been
denied. Thus, petitioners' complaint alleges a situation
that McDonald itself suggested might make a different
case.
This is not to say, of course, that petitioners are as a
matter of law entitled to the relief sought. We neither
decide nor intimate any view upon the me.rits.8 It suffices
that we hold that McDonald does not "foreclose
the subject" of petitioners' challenge to the Pennsylvania
statutory scheme. The significant differences between
that scheme and the Illinois scheme leave ample "room
for the inference that the questions sought to be raised
[by petitioners] can be the subject of controversy." See
supra, at 518, 519.
We therefore conclude that this case must be "heard
and determined by a district court of three judges .... "
28 U. S. C. § 2281. The judgment of the Court of Appeals
is therefore reversed and the case is remanded with
direction to enter an appropriate order pursuant to that
section for the convening of a three-judge court to hear
and determine the merits of petitioners' constitutional
claims, see Kennedy v. Mendoza-Martinez, 372 U. S.
144, 153 (1963); Idlewild Bon Voyage Liquor Corp. v.
8 The per curiam opinion of the Court of Appeals states: "We
have carefully considered each of the contentions raised by the
[petitioners] and find them to be without merit." 452 F. 2d 39, 41.
In view of the result we reach, the Court of Appeals was without
jurisdiction to render this holding insofar as it implies an adjudication
of the merits of petitioners' constitutional contentions. Stratton
v. St. Louis Southwestern R. Co., 282 U.S. 10 (1930). C. Wright,
The Law of Federal Courts 193 (2d ed. 1970).
GOOSBY v. OSSER 523
512 Opinion of the Court
Epstein, 370 U. S. 713 (1962); Borden Co. v. Liddy, 309
F. 2d 871, 876 ( CA8 1962) , cert. denied, 372 U. S. 953
(1963); R'iss & Co. v. Hoch, 99 F. 2d 553, 555 (CAIO
1938); see also C. Wright, The Law of Federal Courts
190-191 (2d ed. 1970), or, if deemed appropriate, to abstain
from such determination pending state court proceedings.
See Lake Carriers' Assn. v. MacMullan, 406
u. s. 498, 509-513 (1972).
It is so ordered.
524 OCTOBER TERM, 1972
Opinion of the Court 409 U.S.
HAM v. SOUTH CAROLINA
CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLIN A
No. 71-5139. Argued November 6, 1972-Decided January 17, 1973
Petitioner, a civil rights worker, claims that the trial resulting in
his drug conviction (which was affirmed by the South Carolina
Supreme Court) was not fair because of the trial court's refusal
to examine jurors on voir dire as to possible prejudice arising from
the fact that petitioner is a Negro and that he wears a beard.
Held: The trial court's refusal to make any inquiry of the jurors
as to racial bias after petitioner's timely request therefor denied
petitioner a fair trial in violation of the Due Process Clause of
the Fourteenth Amendment. Its refusal to inquire as to particular
bias against beards, after it had make inquiries as to bias
in general, was not constitutional error. Pp. 526-529.
256 S. C. 1, 180 S. E. 2d 628, reversed.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C. J., and BRENNAN, STEWART, WHITE, BLACKMUN, and
POWELL, JJ., joinc>d. DouGLAs, post, p. 529, and MARSHALL, JJ.,
post, p. 530, filed opinions concurring in part and dissenting in part.
Jonathan Shapiro argued the cause for petitioner.
With him on the brief were Jack Greenberg, James M.
Nabrit Ill, and Anthony G. Amsterdam.
Timothy G. Quinn, Assistant Attorney General of
South Carolina, argued the cause for respondent. With
him on the brief was Daniel R. McLeod, Attorney General.
MR. JUSTICE REHNQUIST delivered the opinion of the
Court.
Petitioner was convicted in the South Carolina trial
court of the possession of marihuana in violation of
state law.1 He was sentenced to 18 months' confinement,
and on appeal his conviction was affirmed by a divided
1 S. C. Code § 32-1506 ( 1962).
HAM v. SOUTH CAROLINA 525
524 Opinion of the Court
South Carolina Supreme Court. 256 S. C. 1, 180 S. E.
2d 628 ( 1971). We granted certiorari limited to the
question of whether the trial judge's refusal to examine
jurors on voir dire as to possible prejudice against petitioner
violated the latter's federal constitutional rights.
404 u. s. 1057 (1972).
Petitioner is a young, bearded Negro who has lived
most of his life in Florence County, South Carolina. He
appears to have been well known locally for his work
in such civil rights activities as the Southern Christian
Leadership Conference and the Bi-Racial Committee of
the City of Florence. He has never previously been
convicted of a crime. His basic defense at the trial was
that law enforcement officers were "out to get him"
because of his civil rights activities, and that he had
been framed on the drug charge.
Prior to the trial judge's voir dire examination of
prospective jurors, petitioner's counsel requested the
judge to ask jurors four questions relating to possible
prejudice against petitioner.2 The first two questions
sought to elicit any possible racial prejudice against
Negroes; the third question related to possible prejudice
2 The four questions sought to be asked are the following:
"I. Would you fairly try this case on the basis of the evidence
and disregarding the defendant's race?
"2. You have no prejudice against negroes? Against black people?
You would not be influenced by the use of the term 'black'?
"3. Would you disregard the fact that this defendant wears a
beard in deciding this case?
"4. Did you watch the television show about the local drug problem
a few days ago when a local policeman appeared for a long
time? Have you heard about that show? Have you read or heard
about recent newspaper articles to the effect that the local drug
problem is bad? Would you try this case solely on the basis of
the evidence presented in this courtroom? Would you be influenced
by the rircumstances that the prosecution's wit,ness, a police officer,
has publicly spoken on TV about drugs?"
526 OCTOBER TERM, 1972
Opinion of the Court 409 u. s.
against beards; and the fourth dealt with pretrial publicity
relating to the drug problem. The trial judge,
while putting to the prospective jurors three general
questions as to bias, prejudice, or partiality that are
specified in the South Carolina statutes,3 declined to ask
any of the four questions posed by petitioner.
The dissenting justices in the Supreme Court of South
Carolina thought that this Court's decision in Aldridge
v. United States, 283 U. S. 308 (1931), was binding on
the State. There a Negro who was being tried for the
murder of a white policeman requested that prospective
jurors be asked whether they entertained any racial
prejudice. This Court reversed the judgment of conviction
because of the trial judge's refusal to make such
an inquiry. Mr. Chief Justice Hughes, writing for the
Court, stated that the "essential demands of fairness"
required the trial judge under the circumstances of that
case to interrogate the veniremen with respect to racial
prejudice upon the request of counsel for a Negro criminal
defendant. Id., at 310.
The Court's opinion relied upon a number of state
court holdings throughout the country to the same effect,
but it was not expressly grounded upon any constitutional
requirement. Since one of the purposes of the
Due Process Clause of the Fourteenth Amendment is
to insure these "essential demands of fairness," e. g.,
Li,senba v. California, 314 U. S. 219, 236 (1941), and
since a principal purpose of the adoption of the Fourteenth
Amendment was to prohibit the States from
3 S. C. Code § 38-202 (1962). The three questions asked of all
prospective jurors in this case were, in substance, the following:
"l. Have you formed or expressed any opinion as to the guilt or
innocence of the defendant, Gene Ham?
"2. Are you conscious of any bias or prejudice for or against him?
"3. Can you give the State and the defendant a fair and impartial
trial?"
HAM v. SOUTH CAROLINA 527
524 Opinion of the Court
invidiously discriminating on the basis of race, Slaughter-
House Cases, 16 Wall. 36, 81 (1873), we think that the
Fourteenth Amendment required the judge in this case
to interrogate the jurors upon the subject of racial prejudice.
South Carolina law permits challenges for cause,
and authorizes the trial judge to conduct voir dire examination
of potential jurors. The State having created
this statutory framework for the selection of juries, the
essential fairness required by the Due Process Clause
of the Fourteenth Amendment requires that under the
facts shown by this record the petitioner be permitted
to have the jurors interrogated on the issue of racial
bias. Cf. Groppi v. Wisconsin, 400 U.S. 505,508 (1971);
Bell v. Burson, 402 U. S. 535, 541 (1971).
We agree with the dissenting justices of the Supreme
Court of South Carolina that the trial judge was not
required to put the question in any particular form,
or to ask any particular number of questions on the
subject, simply because requested to do so by petitioner.
The Court in Aldridge was at pains to point out, in a
context where its authority within the federal system
of courts allows a good deal closer supervision than does
the Fourteenth Amendment, that the trial court "had
a broad discretion as to the questions to be asked," 283
U. S., at 310. The discretion as to form and number
of questions permitted by the Due Process Clause of the
Fourteenth Amendment is at least as broad. In this
context, either of the brief, general questions urged by the
petitioner would appear sufficient to focus the attention
of prospective jurors on any racial prejudice they might
entertain.
The third of petitioner's proposed questions was addressed
to the fact that he wore a beard. While we
cannot say that prejudice against people with beards
might not have been harbored by one or more of the
potential jurors in this case, this is the beginning and
528 OCTOBER TERM, 1972
Opinion of the Court 409U.S.
not the end of the inquiry as to whether the Fourteenth
Amendment required the trial judge to interrogate
the prospective jurors about such possible prejudice.
Given the traditionally broad discretion accorded to the
trial judge in conducting voir dire, Aldridge v. United
States, supra, and our inability to constitutionally distinguish
possible prejudice against beards from a host
of other possible similar prejudices, we do not believe
the petitioner's constitutional rights were violated when
the trial judge refused to put this question. The inquiry
as to racial prejudice derives its constitutional stature
from the firmly established precedent of Aldridge and
the numerous state cases upon which it relied, and
from a principal purpose as well as from the language
of those who adopted the Fourteenth Amendment. The
trial judge's refusal to inquire as to particular bias
against beards, after his inquiries as to bias in general,
does not reach the level of a constitutional violation.
Petitioner's final question related to allegedly prejudicial
pretrial publicity. But the record before us contains
neither the newspaper articles nor any description
of the television program in question. Beoause of this
lack of material in the record substantiating any pretrial
publicity prejudical to this petitioner, we have no occasion
to determine the merits of his request to have
this question posed on voir dire.4
• The record indicates that there was a brief colloquy between
petitioner's counsel and the trial judge, in which the former apparently
offered newspaper accounts and an editorial in support of
his request that the question be propounded; the judge responded
that he did not consider the items submitted prejudicial. The Supreme
Court of South Carolina, discussing prejudicial publicity in
the context of petitioner's claim that he was entitled to a change
of venue, stated that "[t]he two newspaper clippings and one editorial
concerning drug abuse did not name the defendant or refer in
any way to his trial."
HAM v. SOUTH CAROLINA 529
524 Opinion of DouGLAS, J.
Because of the trial court's refusal to make any inquiry
as to racial bias of the prospective jurors after
petitioner's timely request therefor, the judgment of
the Supreme Court of South Carolina is
Reversed.
MR. JUSTICE DouGLAS, concurring in part and dissenting
in part.
I concur in that portion of the majority's opinion
that holds that the trial judge was constitutionally
compelled to inquire into the possibility of racial prejudice
on voir dire. I think, however, that it was an abuse of
discretion for the trial judge to preclude the defendant
from an inquiry by which prospective jurors' prejudice
to hair growth could have been explored.
It is unquestioned that a defendant has the constitutional
right to a trial by a neutral and impartial jury.
Criminal convictions have been reversed when the limitations
on voir dire have unreasonably infringed the
exercise of this right. Aldridge v. United States, 283
U. S. 308. Such reversals have not been limited to
incidents where the defendant was precluded from inquiring
into possible racial prejudice. In both Morford
v. United States, 339 U. S. 258, and Dennis v. United
States, 339 U. S. 162, defendants were held to have the
right to inquire into possible prejudices concerning the
defendants' alleged ties with the Communist party. In
Aldridge v. United States, supra, at 313, this Court made
it clear that voir dire aimed at disclosing "prejudices
of a serious character" must be allowed.
Prejudices involving hair growth are unquestionably of
a "serious character." Nothing is more indicative of the
importance currently being attached to hair growth by the
general populace than the barrage of cases reaching the
courts evidencing the attempt by one segment of society
officially to control the plumage of another. On the
530 OCTOBER TERM, 1972
Opinion of MARSHALL, J. 409 U.S.
issue of a student's right to wear long hair alone there
are well over 50 reported cases, Olff v. East Side Union
High Sclwol, 404 U. S. 1042. In addition, the issue of
plumage has surfaced in the employment-discrimination
context, Roberts v. General Mills, Inc., 337 F. Supp.
1055 (ND Ohio); Conard v. Goolsby, 350 F. Supp. 713
(ND Miss.), as well as the military area, Friedman v.
Froehlke, 5 S. S. L. R. 3179 (Mass.).
The prejudices invoked by the mere sight of nonconventional
hair growth are deeply felt. Hair growth
is symbolic to many of rebellion against traditional society
and disapproval of the way the current power
structure handles social problems. Taken as an affirmative
declaration of an individual's commitment to a
change in social values, nonconventional hair growth
may become a very real personal threat to those who
support the status quo. For those people, nonconventional
hair growth symbolizes an undesirable lifestyle
characterized by unreliability, dishonesty, lack of
moral values, communal ("communist") tendencies, and
the assumption of drug use. If the defendant, especially
one being prosecuted for the illegal use of drugs, is not
allowed even to make the most minimal inquiry to expose
such prejudices, can it be expected that he will receive a
fair trial?
Since hair growth is an outward manifestation by which
many people determine whether to apply deep-rooted
prejudices to an individual, to deny a defendant the right
to examine this aspect of a prospective juror's personality
is to deny him his most effective means of voir dire
examination.
MR. JUSTICE MARSHALL, concurring in part and dissenting
in part.
I, too, concur in that portion of the majority's opinion
which holds that the trial judge was constitutionally compelled
to inquire into the possibility of racial prejudice on
HAM v. SOUTH CAROLINA 531
524 Opinion of MARSHALL, J.
voir dire. I also agree that, on this record, we cannot
say that the judge was required to ask questions about
pretrial publicity. I cannot agree, however, that the
judge acted properly in totally foreclosing other reasonable
and relevant avenues of inquiry as to possible
prejudice.
Long before the Sixth Amendment was made applicable
to the States through the Due Process Clause of
the Fourteenth Amendment, see Duncan v. Louisiana,
391 U. S. 145 (1968), this Court held that the right to
an "impartial" jury was basic to our system of justice.
"In essence, the right to jury trial guarantees
to the criminally accused a fair trial by a panel
of impartial, 'indifferent' jurors. The failure to
accord an accused a fair hearing violates even the
minimal standards of due process. . . . In the
language of Lord Coke, a juror must be as 'indifferent
as he stands unsworne.' Co. Litt. 155b. His
verdict must be based upon the evidence developed
at the trial. Cf. Thompson v. City of Louisville, 362
U. S. 199. This is true, regardless of the heinousness
of the crime charged, the apparent guilt of the offender
or the station in life which he occupies. It
was so written into our law as early as 1807 by Chief
Justice Marshall in 1 Burr's Trial 416 (1807). 'The
theory of the law is that a juror who has formed
an opinion cannot be impartial.' Reynolds v. United
States, 98 U. S. 145, 155." Irvin v. Dowd, 366 U. S.
717, 722 (1961) (footnote omitted).
See also Turner v. Lou-isiana, 379 U. S. 466, 471-473
(1965); Glasser v. United States, 315 U. S. 60, 84- 86
(1942).
We have never suggested that this right to impartiality
and fairness protects against only certain classes of prejudice
or extends to only certain groups in the population.
It makes little difference to a criminal defendant whether
532 OCTOBER TERM, 1972
Opinion of MARSHALL, J. 409 u. s.
the jury has prejudged him because of the color of his
skin or because of the length of his hair. In either
event, he has been deprived of the right to present his
case to neutral and detached observers capable of rendering
a fair and impartial verdict. It is unsurprising,
then, that this Court has invalidated decisions reached
by juries with a wide variety of different prejudices.
See, e. g., Witherspoon v. Illinois, 391 U. S. 510 (1968);
Irvin v. Dowd, supra; Morford v. United States, 339
U. S. 258 (1950).
Moreover, the Court has also held that the right to
an impartial jury carries with it the concomitant right
to take reasonable steps designed to insure that the jury
is impartial. A variety of techniques is available to
serve this end, see Groppi v. Wisconsin, 400 U. S. 505,
509-511 (1971); Sheppard v. Maxwell, 384 U. S. 333,
357-363 (1966), but perhaps the most important of
these is the jury challenge. See, e. g., Johnson v. Louisiana,
406 U. S. 356, 379 (1972) (opinion of POWELL, J.);
Swain v. Alabama, 380 U. S. 202, 209- 222 (1965). Indeed,
the first Mr. Justice Harlan, speaking for a unanimous
Court, thought that the right to challenge was "one
of the most important of the rights secured to the
accused" and that " [ a] ny system for the empanelling of
a jury that [prevents] or embarrasses the full, unrestricted
exercise by the accused of that right, must be condemned."
Pointer v. United States, 151 U.S. 396,408 (1894). See
also Lewis v. United States, 146 U.S. 370, 376 (1892).
Of course, the right to challenge has little meaning
if it is unaccompanied by the right to ask relevant questions
on voir dire upon which the challenge for cause
can be predicated. See Swain v. Alabama, supra, at
221. It is for this reason that the Court has held
that "[p]reservation of the opportunity to prove actual
bias is a guarantee of a defendant's right to an impartial
jury," Dennis v. United States, 339 U. S. 162,
HAM v. SOUTH CAROLINA 533
524 Opinion of MARSHALL, J.
171-172 (1950), and that the Court has reversed criminal
convictions when the right to query on voir dire
has been unreasonably infringed. See, e. g., Aidridge v.
United States, 283 U. S. 308 (1931). Contrary to
the majority's suggestion, these reversals have not been
confined to cases where the defendant was prevented
from asking about racial prejudice. See, e.g., Morford v.
United States, supra. Cf. Dennis v. United States,
supra.1
I do not mean to suggest that a defendant must be
permitted to propound any question or that limitless
time must be devoted to preliminary voir dire. Although
the defendant's interest in a jury free of prejudice is
strong, there are countervailing state interests in the
expeditious conduct of criminal trials and the avoidance
of jury intimidation. These interests bulk larger as
the possibility of uncovering prejudice becomes more
attenuated. The trial judge has broad discretion to
refuse to ask questions that are irrelevant or vexatious.2
Thus, where the claimed prejudice is of a novel
character, the judge might require a preliminary showing
of relevance or of possible prejudice before allowing
the questions.
But broad as the judge's discretion is in these matters,
I think it clear that it was abused in this case. The
defense attorney wished to ask no more than four questions,
which would have required a scant 15 additional
1 Indeed, it was not so confined in Aldridge itself, upon which
the majority heavily relies. Aldridge pointed out that "[t]he right
to examine jurors on the voir dire as to the existence of a dis•
qualifying state of mind, has been upheld with respect to other
races than the black race, and in relation to religious and other
prejudices of a serious character." 283 U.S. 308, 313 (1931).
2 I also agree with the majority that the judge may properly
decline to ask the question in any particular form or ask any
particular number of questions on a subject.
534 OCTOBER TERM, 1972
Opinion of MARSHALL, J. 409 U.S.
minutes of the court's time. The inquiries, directed
inter alia to possible prejudice against people with beards,
were obviously relevant, since the defendant was in fact
bearded. Moreover, the judge afforded petitioner no
opportunity to show that there were a significant number
of potential jurors who might be prejudiced against
people with beards. At minimum, I think such an opportunity
should have been provided. I cannot believe that
in these circumstances an absolute ban on questions designed
to uncover such prejudice represents a proper
balance between the competing demands of fairness and
expedition.
It may be that permitting slightly more extensive voir
dire examination will put an additional burden on the
administration of justice. But, as Mr. Chief Justice
Hughes argued 40 years ago, "it would be far more injurious
to permit it to be thought that persons entertaining
a disqualifying prejudice were allowed to serve as
jurors and that inquiries designed to elicit the fact of disqualification
were barred. No surer way could be devised
to bring the processes of justice into disrepute." Aldridge
v. United States, 283 U. S., at 315.
I would therefore hold that the defendant in this case,
and subject to the limitations set out above, had a constitutionally
protected interest in having the judge propound
the additional question, in some form, to the jury.
GOMEZ v. PEREZ 535
Per Curiam
GOMEZ v. PEREZ
APPEAL FROM THE COURT OF CIVIL APPEALS OF TEXAS,
FOURTH SUPREME JUDICIAL DISTRICT
No. 71-575. Argued December 6, 1972-Decided January 17, 1973
Texas law denying right of paternal support to illegitimate children
while granting it to legitimate children violates the Equal Protection
Clause of the Fourteenth Amendment. Cf. Levy v. Louisiana,
391 U. S. 68; Weber v. Aetna Casualty & Surety Co., 406 U. S.
164.
466 S. W. 2d 41, reversed and remanded.
Stanley Dalton Wright argued the cause for appellant.
With him on the brief were Melvin N. Eichelbaum and
Harry B. Adams Ill.
Joseph Jaworski, by invitation of the Court, 408 U. S.
942, argued the cause and filed a brief as amicu.s curiae
in support of the judgment below.
Norman Dorsen, Melvin L. Wulf, and Sanfor-.d Jay
Rosen filed a brief for the American Civil Liberties Union
as amic11,S curiae urging reversal.
Crawford C. Martin, Attorney General, Nola White,
First Assistant Attorney General, Alfred Walker, Executive
Assistant Attorney General, and J. C. Davis and
Pat Bailey, Assistant Attorneys General, filed a brief for
the State of Texas as amicus curiae urging affirmance.
PER CURIAM.
The issue presented by this appeal is whether the laws
of Texas may constitutionally grant legitimate children
a judicially enforceable right to support from their natural
fathers and at the same time deny that right to
illegitimate children.
In 1969, appellant filed a petition in Texas District
Court seeking support from appellee on behalf of her
536 OCTOBER TERM, 1972
Per Curiam 409U. S.
minor child. After a hearing, the state trial judge found
that appellee is "the biological father" of the child, and
that the child "needs the support and maintenance of
her father," but concluded that because the child was
illegitimate "there is no legal obligation to support the
child and the Plaintiff take nothing." The Court of Civil
Appeals affirmed this ruling over the objection that this
illegitimate child was being denied equal protection of
law. 466 S. W. 2d 41. The Texas Supreme Court refused
application for a writ of error, finding no "reversible
error." We noted probable jurisdiction. 408
U.S. 920.
In Texas, both at common law and under the statutes
of the State, the natural father has a continuing and
primary duty to support his legitimate children. See
Lane v. Phillips, 69 Tex. 240,243, 6 S. W. 610,611 (1887);
Tex. Fam. Code § 4.02 (1970) (husband's duty).' That
duty extends even beyond dissolution of the marriage,
Tex. Rev. Civ. Stat., Art. 4639a (Supp. 1972-1973);
Hooten v. Hooten, 15 S. W. 2d 141 (Tex. Ct. Civ. App.
1929), and is enforceable on the child's behalf in civil
proceedings and, further, is the subject of criminal sanctions.
Tex. Penal Code § 602. The duty to support
exists despite the fact that the father may not have
custody of the child. Hooten v. Hooten, supra. The
Court of Civil Appeals has held in this case that nowhere
in this elaborate statutory scheme does the State recognize
any enforceable duty on the part of the biological
father to support his illegitimate children and that, absent
a statutory duty to support, the controlling law is the
1 Section 4.02 became effective after the r-ommPnrPmPnt. of appellant's
suit, but the provision is identical (except for punctuation)
to its predecessor, Tex. Rev. Civ. Stat., Husband and Wife, Art. 4614,
in 1 Tex. Laws, c. 309, p. 736 (60th Legislature, Reg. Sess. 1967).
Section 4.02 was enacted as part of a codification of Texas family
law.
GOMEZ v. PEREZ 537
535 Per Curiam
Texas common-law rule that illegitimate children, unlike
legitimate children, have no legal right to support from
their fathers. See also Home of the Holy Infancy v.
Kaska, 397 S. W. 2d 208 (Tex. 1965); Lane v. Phillips,
supra, at 243, 6 S. W., at 611; Bjorgo v. Bjorgo, 391 S. W.
2d 528 (Tex. Ct. Civ. App. 1965). It is also true that
fathers may set up illegitimacy as a defense to prosecutions
for criminal nonsupport of their children. See
Curtin v. State, 155 Tex. Cr. R. 625, 238 S. W. 2d 187
(1950); Boover v. State, 96 Tex. Cr. R. 179, 256 S. W.
929 ( 1923).
In this context, appellant's claim on behalf of her
daughter that the child has been denied equal protection
of the law is unmistakably presented. Indeed, at argument
here, the attorney for the State of Texas, appearing
as amicus curiae, conceded that but for the fact that
this child is illegitimate she would be entitled to support
from appellee under the laws of Texas.2
We have held that under the Equal Protection Clause
of the Fourteenth Amendment a State may not create
a right of action in favor of children for the wrongful
2 Tr. of Oral Arg. 24. There was some question at argument
whether the statutory scheme relating to paternal support of children
was properly drawn into question in the state courts. In the circumstances
of this case, we need not resolve the question. First,
the State of Texas asserts no prejudice from appellant's apparent
failure to explicitly draw attention to the individual statutes that
make up the so-called Texas rule regarding support of legitimate
and illegitimate children. On the contrary, the State asserted here
that it was prepared to meet appellant's constitutional attack on
its statutes on the merits. Tr. of Oral Arg. 28. Second, under our
cases, "the unrestricted notation of probable jurisdiction of the appeal
is to be understood as a grant of the writ" of certiorari on "nonappealable"
issues presented in the case. Mishkin v. New York, 383
U.S. 502, 512 (1966). Appellant's federal claim, which was rejected
in the state courts, that her child was being denied equal protection
of laws is, therefore, properly before us in any event.
538 OCTOBER TERM, 1972
STEWART, J., dissenting 409 U.S.
death of a parent and exclude illegitimate children from
the benefit of such a right. Levy v. Lou-isiana, 391 U. S.
68 (1968). Similarly, we have held that illegitimate
children may not be excluded from sharing equally with
other children in the recovery of workmen's compensation
benefits for the death of their parent. Weber v.
Aetna Casualty & Surety Co., 406 U. S. 164 (1972).3
Under these decisions, a State may not invidiously discriminate
against illegitimate children by denying them
substantial benefits accorded children generally. We
therefore hold that once a State posits a judicially enforceable
right on behalf of children to needed support
from their natural fathers there is no constitutionally
sufficient justification for denying such an essential right
to a child simply because its natural father has not
married its mother. For a State to do so is "illogical
and unjust." Id., at 175. We recognize the lurking
problems with respect to proof of paternity. Those
problems are not to be lightly brushed aside, but neither
can they be made into an impenetrable barrier that
works to shield otherwise invidious discrimination.
Stanley v. lllino-is, 405 U. S. 645, 656-657 (1972);
Carrington v. Rash, 380 U. S. 89 (1965).
The judgment is reversed and the case remanded for
further proceedings not inconsistent with this opinion.
It -is so ordered.
MR. JUSTICE STEWART, with whom MR. JusTICE REHNQUIST
joins, dissenting.
This case came here as an appeal, on the representation
that the Texas courts had sustained the constitutionality
of § 4.02 of the Texas Family Code and
3 See also Davis v. Richardson, 342 F. Supp. 588 (Conn.), aff'd,
post, p. 1069 (1972); Griffin v. Richardson, 346 F. Supp. 1226 (Md.),
aff'd, post, p. 1069 ( 1972).
GOMEZ v. PEREZ 539
535 STEWART, J., dissenting
Articles 602 and 602-A of the Texas Penal Code,
over a challenge to those statutes under the Equal Protection
Clause of the Fourteenth Amendment. We
noted probable jurisdiction, 408 U. S. 920, to consider
whether the alleged discrimination between legitimate
and illegitimate children, in terms of the support obligations
of their biological fathers, denied equal protection
to illegitimate children under the principles of Weber v.
Aetna Ca..sualty & Surety Co., 406 U. S. 164; Glona v.
American Guarantee & Li,ability Insurance Co., 391
U. S. 73; and Levy v. Louisi,ana, 391 U. S. 68.
Upon the submission of briefs and oral argument, it
became clear that neither statute had been the actual
subject of litigation in the courts of Texas. Hence, this
is not properly an appeal under 28 U. S. C. § 1257 (2):
I would, therefore, dismiss the appeal for want of jurisdiction,
and treat "the papers whereon the appeal was
taken" as a petition for writ of certiorari. 28 U. S. C.
§ 2103.
The parties were not prepared to submit this case as
one challenging the common-law treatment of illegitimates
in Texas, and failed to provide this Court with a
sufficient understanding of Texas law with respect to
such matters as custodial versus noncustodial support
obligations, legitimation, common-law marriage, and the
effect of a Texas statute, § 4.02 of the Family Code,
which became law after this litigation had begun. With
the issues so vaguely drawn and the alleged discriminations
so imprecise, I would dismiss the writ of certiorari
as improvidently granted.
540 OCTOBER TERM. 1972
Syllabus 409 U.S.
INDIANA EMPLOYMENT SECURITY DIVISION
ET AL. v. BURNEY
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF INDIANA
No. 71-1119. Argued December 7, 1972-Decided January 17, 1973
There being no named representative of the class except appellee,
settlement of appellee's claim for benefits in this class a.ction challenging
Indiana's system of administering unemployment insurance
raises a question as to whether this case has become moot.
347 F. Supp. 218, vacated and remanded.
Darrel K. Diamond, Deputy Attorney General of
Indiana, argued the cause for appellants. With him
on the briefs was Theodore L. Sendak, Attorney
General.
Ivan E. Bodensteiner argued the cause for appellee.
With him on the brief were Stephen P. Berzon, Stefan M.
Rosenzweig, and Fred H. Altshuler.
Briefs of amici curiae urging reversal were filed by
Evelle J. Younger, Attorney General, Elizabeth Palmer,
Assistant Attorney General, and Asher Rubin, Deputy
Attorney General, for the State of California, and by
Harry T. Ice for College University Corp. et al.
Briefs of amici curiae urging affirmance were filed by
J. Albert Woll, Laurence Gold, and Thomas E. Harris
for the American Federation of Labor and Congress of
Industrial Organizations, and by Dennis R. Yeager,
E. Richard Larson, Howard I. Rosenberg, James H. Seckinger,
John M. Levy, Marttie Louis Thompson, Joseph A.
Matera, C. Christopher Brown, and C. Lyonel Jones for
National Employment Law Project et al.
INDIANA EMPLOYMENT DIVISION v. BURNEY 541
540 Per Curiam
PER CURIAM.
We noted probable jurisdiction in this case, 406 U. S.
956, to review the judgment of a three-judge district
court, holding that Indiana's system of administering
unemployment insurance was in conflict with § 303
(a) (1) of the Social Security Act, 49 Stat. 626, as
amended, 42 U. S. C. § 503 (a)(l).1 Before the threejudge
court entered its injunction, Indiana's practice was
to discontinue unemployment benefits upon a determination
of ineligibility, that determination taking place
without the benefit of a full hearing for the erstwhile
beneficiary.
After several months of effort, however, the class representative
in this litigation, Mrs. Burney, succeeded
in obtaining a reversal of the initial determination of
ineligibility.2 She has now received full retroactive
compensation.
The full settlement of Mrs. Burney's financial claim
raises the question whether there continues to be a case
or controversy in this lawsuit. Though the appellee purports
to represent a class of all present and future recip-
'The three-judge court was convened pursuant to 28 U. S. C.
§§ 2281, 2284, to consider the prayer for an injunction against enforcement
of the Indiana statute, Ind. Ann. Stat. § 52-1542a (e) (Supp.
1970), on the grounds that it violated the appellee's right to due
process under the Fourteenth Amendment. The District Court did
not reach this issue.
2 The District Court entered a temporary restraining order against
the appellants on May 7, 1971. Presumably, the appellee's payments
were then restored pending the outcome of her hearing before a
referee, which took place on July 1, 1971. On July 13, 1971, the
referee affirmed the determination of ineligibility. Mrs. Burney
then appealed to the Division Review Board. After the judgment
and injunction were entered by the District Court, the Review
Board reversed the referee and awarded payments to Mrs. Burney.
This latter determination was unrelated to the injunction.
542 OCTOBER TERM, 1972
MARSHALL, J., dissenting 409 u. s.
ients of unemployment insurance, there are no named
representatives of the class except Mrs. Burney, who has
been paid. Cf. Bailey v. Patterson, 369 U. S. 31, 32-33.
Accordingly, the judgment is vacated and the case is
remanded to the District Court to consider whether it
has become moot.
It is so ordered.
MR. JUSTICE MARSHALL, with whom MR. JusTICE
BRENNAN joins, dissenting.
I consider the remand ordered by the Court to be
pointless. The only issue in this case is the right of
a recipient of unemployment insurance benefits to a
full evidentiary hearing before those benefits are terminated
as the result of an administrative determination
of ineligibility. The Court evidently concludes that
this action may be moot as to Mrs. Burney since she
has now received a full evidentiary hearing and settlement
of her claim, and as to the affected class since
Mrs. Burney is its only named representative in this
action. I think it clear on the record before us, however,
that nothing has occurred at either the administrative
or judicial level since Mrs. Burney entered this
suit that would suffice to moot her claim or that of the
class.
Mrs. Burney's benefits were suspended beginning the
week of March 23, 1971. On April 2, 1971, some three
weeks before Mrs. Burney sought leave to intervene in
this action,1 she invoked the existing Indiana appeal pro-
1 This action was originally brought to declare invalid the J nrii,rn:;i.
statutory provision that an unemployed individual found initially
to be eligible by the Division authorities would have his benefits suspended
upon appeal by the employer of the eligibility determination.
That issue was effectively resolved against the Division by this
Court's decision in California Dept. of Human Resources Development
v. Java, 402 U. S. 121 (1971), which was handed down while
INDIANA EMPLOYMENT DIVISION v. BURNEY 543
540 MARSHALL, J., dissenting
cedure, see Ind. Stat. Ann. § 52-1542a (e) (Supp. 1970),
now Ind. Stat. Ann.§ 52-1542a (e) (Supp. 1972), and requested
an administrative hearing. She received such
a hearing on July 1, 1971, while this action was still
pending in the District Court. Although the hearing
referee affirmed the suspension order, on December 6,
1971, the Division Review Board reversed the referee
and held that Mrs. Burney's benefits had been erroneously
suspended. Meanwhile, on October 27, 1971, the District
Court granted summary judgment in favor of Mrs.
Burney and the affected class.
Certainly the full administrative hearing that Mrs.
Burney received during the pendency of this case in
the District Court cannot be considered to be an indication
that Indiana has voluntarily chosen to provide
henceforth the pre-termination hearing that Mrs. Burney
claims is required under both § 303 (a) (1) of the Social
Security Act, 42 U. S. C. § 503 (a)(l), and the Due
Process Clause. So far as appears, the hearing afforded
Mrs. Burney was nothing more than the post-termination
hearing for which provision is already made in Indiana
law.2
this case was pending in the District Court, and it is not presented
on this appeal. On May 7, 1971, the District Court allowed
Mrs. Burney to intervene in this action in order to raise the further
issue whether a pre-termination hearing is necessary where the
Division seeks to suspend payment of benefits because it has determined
that a person who was initiaUy eligible to receive unemployment
benefits has since become ineligible.
2 At the same time Mrs. Burney sought to intervene, she requested
a temporary restraining order reinstating her benefits.
On May 7, 1971, the District Court issued such an order directing
that Mrs. Burney's benefits be reinstated and not be again
suspended "without a prior, due process hearing." In light of the
chronology ·of events in this case it appears that Mrs. Burney received
only the regular post-termination hearing for which Indiana
law provides. But even if the July 1 hearing was the product of
544 OCTOBER TERM, 1972
MARSHALL, J., dissenting 409 U.S.
Nor can I accept any suggestion that Mrs. Burney's
attack upon appellants' failure to provide a pre-termination
hearing may be moot merely because she has
received a full post-termination hearing and settlement
of her claim since entering this litigation.3 A determination
of mootness based on this line of reasoning
would effectively bar the full and final litigation of
whether a pre-termination hearing is legally required,
while leaving Indiana free to continue to provide Mrs.
Burney and other beneficiaries of unemployment insurance
with only post-termination hearings.
It is, by now, clear that a claim is not moot if it is
"capable of repetition, yet evading review." Southern
Pacific Terminal Co. v. ICC, 219 U. S. 498, 515 (1911);
see Moore v. Ogilvie, 394 U. S. 814, 816 (1969). It is
entirely possible that Mrs. Burney will, in the future,
become employed and then once more become unemployed.
If this action is deemed to be moot and the
existing state procedure remains intact, she then may
encounter the same problem of suspension of benefits
without a prior hearing that she has encountered in
this instance. And, inevitably, the post-termination
administrative process will again be completed before
final legal relief may be obtained as to the pre-termination
hearing question. Indeed, this sequence of events
might repeat itself any number of times for Mrs. Burney
the temporary restraining order, such compliance with the court
order would not moot this case. See, e. g., Bakery Sales Drivers
Local Union No. 33 v. Wagshal, 333 U.S. 437,442 (1948); Dakota
County v. Glidden, 113 U.S. 222, 224, (1885).
3 It particularly bears noting that in California Dept. of Human
Human Resources Development v. Java, supra, at 123-124, which
involved a related pre-termination hearing claim, see n. l, supra,
the Court never even suggested that there was any problem of mootness,
although both appellees had received full post-termination administrative
hearings during the pend.ency of the litigation.
INDIANA EMPLOYMENT DIVISION v. BURNEY 545
540 MARSHALL, J., dissenting
if the mere provision of the post-termination hearing
and settlement of her particular claim were considered
sufficient to moot the issue whether a pre-termination
hearing is required. The principle that a federal court
will not pass upon a moot controversy does not require
us to set in motion such a litigious merry-go-round
where, as here, there is a short-lived controversy of a
potentially recurring character.
It is no answer that there are other beneficiaries of
unemployment insurance whose benefits may be terminated
in advance of a full hearing and who might therefore
institute litigation concerning the timing issue.
Such litigation can be expected to fare no better, or worse,
in terms of problems of mootness, than this case. As
with Mrs. Burney's claim, the post-termination administrative
process will invariably be completed before a
final adjudication is obtained. In fact, appellants indicate
that the post-termination hearing procedure has
been speeded up significantly since Mrs. Burney's administrative
appeal was processed.4
It is true that the District Court entered an injunction
ordering Indiana to provide pre-termination hearings,
and that injunction is currently in effect since no stay
has been entered. As a result, pre-termination hearings
are presently being provided in Indiana.5 But this
certainly does not moot the case, for it is well established
that compliance with a court order pendente lite does
not moot the underlying controversy, see, e. g., Bakery
Sales Drivers Local Union No. 33 v. Wagslw,l, 333 U. S.
437, 442 (1948); Dakota County v. Glidden, 113 U. S.
222, 224 ( 1885). A determination of mootness would
require that the decision below be vacated and the action
dismissed. See, e. g., SEC v. Medical Committee for
4 See Reply Brief for Appellants 8.
5 See Brjef for Appellee 6.
546 OCTOBER TERM, 1972
MARSHALL, J., dissenting 409 U.S.
Human Rights, 404 U. S. 403, 407 (1972); United States
v. W. T. Grant Co., 345 U. S. 629, 632 (1953). Under
such circumstances, appellants would be "free to return
to [ their J old ways." Ibid. For a case to be moot it
must be "absolutely clear that the allegedly wrongful
behavior could not reasonably be expected to recur."
United States v. Concentrated Phosphate Export Assn.,
393 U.S. 199, 203 (1968). In this case, appellants have
hardly provided such assurance--as is evident from the
very fact that this appeal was taken from the adverse
decision below.
In my view, then, this case remains viable as to both
Mrs. Burney and the affected class. Accordingly, I see
no need for the remand ordered by the Court." On the
merits, I would affirm the judgment of the District Court
in light of our decision in Goldberg v. Kelly, 397 U. S.
254 (1970). See Torres v. New York Dept. of Labor,
405 U. S. 949 (1972) (statement of DouGLAS, BRENNAN,
and MARSHALL, JJ.).
6 I can see the purpose of a remand to a district court for consideration
of possible mootness where the Court identifies disputed
factual issues the resolution of which affects the continuing viability
of the particular claim. See, e. g., Johnson v. New York State
Education Dept., ante, p. 75. But here the Court fails to identify
any such factual issue. Indeed, there do not appear to be any
factual issues in dispute as to the administrative developments subsequent
to Mrs. Burney's intervention in this suit. Under such circumstances,
this Court is as competent as a district court to resolve
initially the issue of mootness, and in the past it has proceeded to
do so, see, e. g., SEC v. Medical Committee for Human Rights, 404
U. S. 403 (1972); United States v. Concentrated Phosphate Export
Assn., 393 U.S. 199, 202-204 (1968).
REPORTER'S NOTE
The next page is purposely numbered 801. The numbers between
546 and 801 were intentiollillly omitted, in order to make it possible
to publish the orders in the current preliminary print of the United
States Reports with permanent page numbers, thus making the
official citations immediately available.

ORDERS FROM END OF OCTOBER TERM, 1971
THROUGH JANUARY 15, 1973
JULY 7, 1972*
M isceUaneous Order
No. A-1320. ATCHISON, TOPEKA & SANTA FE RAILWAY
Co. ET AL. v. WICHITA BoARD OF TRADE ET AL.
D. C. Kan.
On consideration of the appellants' application for
stay, the appellees' reply to the application, and the
affidavits and memoranda filed in support of the application
and reply, IT IS ORDERED:
(1) That, subject to the condition set forth in paragraph
2 herein, the judgment of the United States District
Court for the District of Kansas entered in this
matter on June 8, 1972, be and hereby is stayed pending
a final determination of the s,ppeal by this Court.
(2) That, as a condition of the foregoing stay, each
railroad collecting in-transit grain inspection charges
under the challenged tariffs shall immediately take steps,
including publication of appropriate provisions in applicable
tariffs, to do the following:
(a) keep accurate accounts in detail of all amounts
hereafter received during the existence of the stay
by reason of in-transit grain inspection charges,
specifying by whom and in whose behalf such
amounts are paid; and
(b) in the event the order suspending the charges
is affirmed by this Court, refund (with interest) of
*[REPORT ER'S NOTE: The Court had been convened in Special
Term on this date to consider applications for stays in Nos. A-23
and A- 24. See ante, p. l.]
801
802 OCTOBER TERM, 1972
July 7, 1972, Cases Dismissed in Vacation 409 U.S.
such amounts to persons in whose behalf such
amounts were paid, without the necessity for such
persons to make applications for refunds. In the
event this Court's action should be other than in
affirmance of the results reached by the District
Court, this Court may make such further order
concerning the disposition of the aforesaid amounts
as the Court may deem appropriate.
CASES DISMISSED IN VACATION
No. 72-5139. HERRMANN v. UNITED STATES. C. A.
9th Cir. Petition for writ of certiorari dismissed August
28, 1972, under Rule 60 of the Rules of this Court.
No. 72---5051. BETHEA ET AL. v. UNITED STATES. C. A.
4th Cir. Petition for writ of certiorari dismissed as to
petitioner Brunson, August 30, 1972, under Rule 60 of
the Rules of this Court.
No. 71-771. LAZARD FRERES & Co. ET AL. v. ROSENFELD
ET AL. C. A. 2d Cir. Petition for writ of certiorari
dismissed September 1, 1972, under Rule 60 of
the Rules of this Court. Reported below: 445 F. 2d
1337.
No. 71-6747. IN RE KNIGHT. C. A. 1st Cir. Petition
for writ of certiorari dismissed September 1, 1972,
under Rule 60 of the Rules of this Court.
No. 71-553. THORNTON ET AL. V. PRICHARD ET AL.
Appeal from D. C. E. D. Va. dismissed September 18,
1972, under Rule 60 of the Rules of this Court. [Probable
jurisdiction noted, 405 U. S. 1063.] Reported
below: 330 F, Supp. 1138.
No. 72---5092. HARVELL v. UNITED STATES. C. A. 7th
Cir. Petition for writ of certiorari dismissed September
18, 1972, under Rule 60 of the Rules of this Court.
ORDERS
409U. S. October 3, 5, 1972
OCTOBER 3, 1972
Miscellaneous Or,der
803
No. A-362. BRIDGE v. NEW JERSEY. Super. Ct. N. J.
Application for stay presented to MR. JUSTICE DouGLAS,
and by him referred to the Court, denied. MR. Jus-
TICE DOUGLAS would grant stay.
OCTOBER 5, 1972
Miscellaneous Orders
No. A-325. AMERICAN PARTY OF TEXAS ET AL. V.
BULLOCK, SECRETARY OF STATE OF TEXAS. D. C. w. D.
Tex. Application for temporary restraining order, presented
to MR. JUSTICE DOUGLAS and by him referred
to the Court, denied. Reported below: 349 F. Supp.
1272.
MR. JusrrcE DouGLAS, dissenting.
The American Party, seeking to get on the Texas ballot
for this year's election, brought an action which asked
a three-judge federal court to hold provisions of the Texas
election laws unconstitutional.
Texas has four methods of nominating candidates.
First, those whose party's gubernatorial candidate
polled more than 200,000 votes in the last general election
may be nominated through primaries. Election Code,
Art. 13.02 ( 1967). Second, those whose party's candidates
polled less than 200,000 votes but more than 2%
of the total votes cast for governor may be nominated
by primaries or by nominating conventions. Election
Code, Art. 13.45 subd. 1 (Supp. 1972). Third, those
whose party's candidates polled less than 2% of the total
gubernatorial vote and those whose party did not have a
nominee for governor in the last general election may be
nominated by convention only or by fulfilling the requirements
of Art. 13.45 subd. 2 of the Election Code (Supp.
1972). Fourth, nonpartisan and independent candidates
804 OCTOBER TERM, 1972
DouGLAS, J., dissenting 409 U.S.
may appear on the ballot after meeting the requirements
of Art. 13.50 of the Election Code.
The American Party falls in the third category. In
order to get its nominees printed on the ballot it must
meet the following requirements:
It must by the previous September declare its intention
to nominate by convention. That entails a
statewide party organization with an executive committee.
It also requires the filing with the Secretary of
State by February of the names of the candidates; it
requires the filing of party rules by March. It requires
the holding of precinct conventions on the day of the primary
and the holding of county conventions the following
week and a state convention on a day certain.
The American Party must in addition do the following:
(1) It must furnish a list of participants in each precinct
convention with the names, addresses, and registration
certificate numbers of qualified voters attending
such conventions. The names on the list must total at
least 1 % of the total votes cast for governor at the last
preceding general election.
(2) If the number of qualified voters attending the
precinct conventions is less than 1 % , there must be filed
a petition requesting that the names of the nominees be
printed on the election ballot, signed by a sufficient number
of additional qualified voters to make a combined
total of at least 1 % of the total votes cast for governor
in the last election.
(3) No person who <luring the voting year voted at
any primary election or participated in any convention
of any other party may attend the minority party convention
or sign the petition. If he does, he is subject
to criminal penalties.
( 4) The petition may not be circulated until after the
date set for the holding of the major parties' primaries.
Signatures must be certified before 20 days after the date
ORDERS 805
803 DouGLAS, J., dissenting
of the party's convention, which in 1972 gave it approximately
53 days to gather signatures.
(5) Each person who signs a petition must be administered
an oath before a notary public at the time he
signs.
This election scheme is not as severe or oppressive as
the one we condemned in Williams v. Rhodes, 393 U. S.
23; nor is it as benign as the one we approved in Jenness
v. Fortson, 403 U. S. 431.
While Texas requires only 1 % of the voters for governor
to endorse the new party, that requirement must
be met by obtaining signatures of those attending precinct
conventions, supplemented, if need be, by signatures
obtained after the primaries. But all cross-over signing
is barred and it is supported by criminal sanctions.
Moreover, the supplemental signatures can be obtained
only after the major parties have held their primaries.
And only a 55-day period is available for obtaining the
necessary signatures.
While the requirement of 1 % of the total vote for
governor may be less than Georgia's requirement of 5%
of those eligible to vote in the last election for the filling
of the office the candidate is seeking, the Texas machinery
for launching a minority party is almost as
cumbersome and involved as the one we struck down in
Williams v. Rhodes.
The minority party must be statewide even though
its appeal may be essentially to urban voters or to rural
voters, as the case may be. That requirement did not
appear in Georgia's scheme.
In Georgia 180 days was allowed for circulating a
nominating petition; in Texas, less than 60 days.
In Georgia the minority party had to meet the same
deadline as did candidates running in the primaries of
the regular parties. In Texas the regular parties first
have their primaries; only then can a minority party
806 OCTOBER TERM, 1972
October 5, 1972 409 U.S.
solicit signatures for its candidates. Moreover, no one
who voted in a primary is eligible to sign the petition
for the minority party.
The minority party therefore must draw its support
from the ranks of those who were either unwilling or
unable to vote in the primaries of the established parties.
The minority party therefore cannot compete with the
regular parties; it must be content with the leftovers to
get on the ballot.
We said in Jenness v. Fortson, supra, at 438, "Georgia's
election laws, unlike Ohio's, do not operate to freeze
the status quo." Texas, though not as severe as Ohio,
works in that direction. It therefore seems to me, at
least prima facie, to impose an invidious discrimination
on the unorthodox political group.
Perhaps full argument would dispel these doubts. But
they are so strong that I would grant the requested stay
so that candidates for the American Party may get on the
Texas ballot for next month's presidential election. To
do so it must be certified by the Secretary of State no
later than October 6. We cannot possibly decide the
merits by that date. But if the American Party is on the
ballot, the voting and associational rights which we have
been alert to protect will be honored; and if meanwhile
the merits are reached and we affirm the three-judge
court, holding the Texas scheme constitutional, the ballots
will not be counted. That was the way Justice
Black avoided the dilemma in a Florida case;• and I
would follow his course here.
No. A-370. WHITCOMB, GOVERNOR OF INDIANA, ET AL.
V. COMMUNIST PARTY OF INDIANA ET AL. D. C. N. D.
Ind. Motion of applicants for emergency stay presented
to MR. JUSTICE REHNQUIST, and by him referred to the
Court, denied as moot. Cross motion of Communist
*See Davis v. Adams, 400 U. S. 1203.
ORDERS 807
409 U.S. Ortobn 5, 6, 10, 1972
Party of Indiana et al. to petition for mandate to enforce
prior order of United States District Court also denied.
MR. JcsncE D01:GLAS would treat motion of Communist
Party of Indiana et al. as jurisdictional statement and
postpone question of jurisdiction to hearing of case on
the merits.
OCTOBER 6, 1972
Miscellaneous Order
Xo. A-374. PATTANI ET AL. v. MEYERS E'l' AL. C. A.
3d Cir. Application for temporary restraining order presented
to MR. JcSTICE BRENNAN, and by him referred to
the Court, denied.
OCTOBER 10, 1972
Affirmed on Appeal
No. 71-1235. CRAIG, COMMISSIONER OF SocIAL SERVICES,
ET AL. v. GILLIARD ET AL. Appeal from D. C. \V. D.
N. C. Motion to dispense with printing motion to affirm
granted. J udgmcnt affirmed. Reported below: 331 F.
Supp. 587.
No. 71-1363. DAVIS 1<;r AL. v. CINEMA CLASSICS, LTD.,
I Ne., ET AL.; and
No. 71-1364. BUSCH, DISTRICT ATTOHNEY OF Los
ANGELES COUNTY, ET AL. V. CINEMA CLASSICS, LTD.,
INC., ET AL. Affirmed on appeals from D. C. C. D. Cal.
MR. JPSTICE STEWART would note probable jurisdiction
and set cases for oral argument. Reported below: 339
F. Supp. 43.
No. 71-1416. HOLSHOUSER v. ScoTT, GovERNOR OF
NORTH CAROLINA, ET AL. Affirmed on appeal from D. C.
M. D. N. C. Reported below: 335 F. Supp. 928.
Xo. 71-1560. TEXAS BOARD OF BARBER EXAMINERS
ET AL. v. BOLTON ET AL. Affirmed on appeal from D. C.
N. D. Tex.
808 OCTOBER TERM, 1972
October 10, 1972 409 U.S.
No. 71-1399. INTERSTATE COMMERCE COMMISSION v.
GOLD KIST, INC., ET AL.;
No. 71-1404. REFRIGERATED TRANSPORT Co., INc. v.
GOLD KIST, INC., ET AL.; and
No. 71-1407. AMERICAN TRUCKING AssNs., INC. V.
Gow KIST, INc., ET AL. Affirmed on appeals from
D. C. N. D. Ga. MR. JUSTICE STEWART and MR. JuSTICE
BLACKMUN would note probable jurisdicti~n and set
cases for oral argument. Reported below: 339 F. Supp.
1249.
No. 71-1676. ARCHER ET AL. v. SMITH, GOVERNOR OF
TEXAS, ET AL. Affirmed on appeal from D. C. W. D.
Tex. Reported below: 343 F. Supp. 704.
No. 71-1683. WASHINGTON STATE LABOR CouNCIL,
AFL-CIO, ET AL. v. PRINCE Er AL. Affirmed on appeal
from D. C. W. D. Wash.
No. 72-45. NATIONAL AssocIATION OF LETTER CARRIERS,
AFL-CIO, ET AL. V. NATIONAL ALLIANCE OF POSTAL
& FEDERAL EMPLOYEES ET AL. Affirmed on appeal from
D. C. D. C. Reported below: 341 F. Supp. 370.
No. 71-1592. AUERBACH ET AL. v. MANDEL, GOVERNOR
OF MARYLAND, ET AL. Appeal from D. C. Md. Renewed
motion to expedite denied. Judgments affirmed.
No. 71-1664. EssEx, SUPERINTENDENT OF PUBLIC INSTRUCTION,
ET AL. v. WOLMAN ET AL. Affirmed on appeal
from D. C. S. D. Ohio. MR. JusTICE WHITE would
note probable jurisdiction and set case for oral argument.
Reported below: 342 F. Supp. 399.
No. 71-6791. BRISCOE v. KLEINDIENST, ATTORNEY
GENERAL, ET AL. Affirmed on appeal from D. C. D. C.
MR. JusTICE DouGLAS and MR. JUSTICE BRENNAN would
note probable jurisdiction and set case for oral argument.
Reported below: 356F. Supp. 1292.
ORDERS 809
409U.S. October 10, 1972
No. 71-6902. MooRE ET AL. v. HAUGH, WARDEN,
ET AL. Affirmed on appeal from D. C. N. D. Iowa.
MR. JusTICE DouGLAS would note probable jurisdiction
and set case for oral argument. Reported below:
341 F. Supp. 1263.
No. 72-46. UTE MouNTAIN TRIBE OF INDIANS v.
NAVAJO TRIBE OF INDIANS. Affirmed on appeal from
D. C. N. M. MR. JUSTICE DouGLAS would note probable
jurisdiction and set case for oral argument.
No. 72-36. WILLIAMS v. DEMOCRATIC PARTY OF
GEORGIA ET AL. Appeal from D. C. N. D. Ga. Motions
to dispense with printing jurisdictional statement and
motion to dismiss or affirm granted. Judgment affirmed.
MR. JUSTICE DouGLAS would dismiss appeal as moot.
MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL
would note probable jurisdiction and set case for oral
argument.
No. 72--83. STERRETT ET AL. v. MoTHERs' & CHILDREN'S
RIGHTS ORGANIZATION ET AL. Appeal from
D. C. N. D. Ind. Motion of appellees for leave to proceed
in forma pauperis granted. Judgment affirmed.
No. 72-114. GAUNT ET AL. v. BROWN, SECRETARY OF
STATE OF OHIO, ET AL. Appeal from D. C. S. D. Ohio.
Motion to dispense with printing jurisdictional statement
granted. Judgment affirmed. Reported below:
341 F. Supp. 1187.
Vacated and Remanded on Appeal
No. 70-5083. NEWMAN v. NEWMAN. Appeal from
Sup. Ct. La. Motion for leave to proceed in forma
pauperis granted. Judgment vacated and case remanded
for further consideration in light of Boddie v. Connecticut,
401 U. S. 371 (1971).
810 OCTOBER TERM, 1972
October 10, 1972 409 u. s.
Appeals Dismissed
No. 71-1027. BAKER ET AL. v. NELSON. Appeal from
Sup. Ct. Minn. dismissed for want of substantial federal
question. Reported below: 291 Minn. 310, 191 N. W.
2d 185.
No. 71-1132. MAYOR OF BALTIMORE ET AL. v. SILVER
ET ux. Appeal from Ct. App. Md. dismissed for want
of substantial federal question. Reported below: 263
Md. 439, 283 A. 2d 788.
No. 71-1445. SPECTER, DISTRICT ATTORNEY OF PHILADELPHIA
COUNTY V. TUCKER, SECRETARY OF THE COMMONWEALTH,
ET AL. Appeal from Sup. Ct. Pa. dismissed
for want of substantial federal question. Reported below:
448 Pa. 1, 293 A. 2d 15.
No. 71-1530. RETZA v. FoRTlINE. Appeal from Ct.
App. Ohio, Cuyahoga County, dismissed for want of
substantial federal question.
No. 71-1681. SURETY SAVINGS & LOAN AssN. v. WISCONSIN
DEPARTMENT OF TRANSPORTATION, DIVISION OF
HIGHWAYS. Appeal from Sup. Ct. Wis. dismissed for
want of substantial federal question. Reported below:
54 Wis. 2d 438, 195 N. W. 2d 464.
No. 72-61. SNOHOMISH COUNTY BOARD OF EQUALIZATION
ET AL. V. WASHINGTON STATE DEPARTMENT OF
REVENUE ET AL. Appeal from Sup. Ct. Wash. dismissed
for want of substantial federal question. Reported
below: 80 Wash. 2d 262, 493 P. 2d 1012.
No. 72-88. MESA VERDE Co. v. BOARD OF COUNTY
COMMISSIONERS OF MONTEZUMA COUNTY ET AL. Appeal
from Sup. Ct. Colo. dismissed for want of substantial
federal question. Reported below: - Colo. -, 495
P. 2d 229.
ORDERS 811
409 u. s. October 10, 1972
No. 72-91. DAVIS v. NEW YoRK. Appeal from App.
Term, Sup. Ct. N. Y., 1st Jud. Dept., dismissed for want
of substantial federal question.
No. 72-5065. CRAWFORD v. MISSOURI. Appeal from
Sup. Ct. Mo. dismissed for want of substantial federal
question. Reported below: 478 S. W. 2d 314.
No. 71-1109. NORRIS ET AL. v. JORDAN ET AL.; and
No. 71-1439. NORRIS ET AL. V. JORDAN ET AL. Appeals
from D. C. N. D. Ohio. Motion to defer consideration
denied. Appeals dismissed for want of
jurisdiction.
No. 71-1186. FRY's Foon STORES, INc., ET AL. v.
CALIFORNIA. Appeal from Sup. Ct. Cal. dismissed.
No. 71-1233. BRIDGEFORTH v. ILLINOIS; and
No. 71-6422. DAVIS v. ILLINOIS. Appeals from Sup.
Ct. Ill. Motions to dispense with printing jurisdictional
statement and to dismiss in No. 71-1233 granted.
Motion to supplement jurisdictional statement in No.
71- 6422 granted. Appeals dismissed for want of substantial
federal question. MR. JusTICE DouGLAS would
note probable jurisdiction and set cases for oral argument.
Reported below: 51 Ill. 2d 52, 281 N. E. 2d 617.
No. 71-1402. COLEMAN v. LOUISIANA. 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. Reported below:
260 La. 897, 257 So. 2d 652.
No. 71-1616. RoNwIN v. FAIR EMPLOYMENT PRACTICES
COMMISSION (FRESNO STATE COLLEGE, REAL
PARTY IN INTEREST). Appeal from Ct. App. Cal., 5th
App. Dist., dismissed for want of jurisdiction. Treating
the papers whereon the appeal was taken as a petition
for writ of certiorari, certiorari denied.
812 OCTOBER TERM, 1972
October 10, 1972 409 u. s.
No. 71-6423. HousE v. HousE. Appeal from C. A.
4th Cir. dismissed for want of jurisdiction. Treating
the papers whereon the appeal was taken as a petition
for writ of certiorari, certiorari denied.
No. 71-6568. CLARK v. DELAWARE. Appeal from
Sup. Ct. Del. dismissed for want of jurisdiction. Treating
the papers whereon the appeal was taken as a petition
for writ of certiorari, certiorari denied. Reported
below: - Del. - , 287 A. 2d 660.
No. 71-6624. TILLMAN 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. Reported
below: 13 Md. App. 570, 284 A. 2d 259.
No. 71-6643. PICKING v. YATES ET AL. Appeal from
Ct. App. Md. dismissed for want of jurisdiction. Treating
the papers whereon the appeal was taken as a petition
for writ of certiorari, certiorari denied. Reported
below: 265 Md. 1,288 A. 2d 146.
No. 71-6668. NIEDER v. MERCURY FEDERAL SAVINGS
& LOAN AssN. 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.
No. 72-133. BERNSTEIN ET AL. V. NATIONWIDE Mu-
TUAL INSURANCE Co. Appeal from C. A. 4th Cir. dismissed
for want of jurisdiction. Treating the papers
whereon the appeal was taken as a petition for writ
of certiorari, certiorari denied. Reported below: 458 F.
2d 506.
No. 71-6264. ANDERSON v. MUNICIPAL CouRT, SAN
DIEGO JUDICIAL DISTRICT, ET AL. Appeal from D. C.
S. D. Cal. dismissed for want of jurisdiction.
ORDERS 813
409 u. s. October 10, 1972
Xo. 72-5107. DAWLEY v. CouNTY OF SACRAMENTO.
Appeal from Ct. App. Cal., 3d App. Dist., dismissed
for want of jurisdiction. Treating the papers whereon
the appeal was taken as a petition for writ of certiorari,
certiorari denied.
No. 71-1482. FLEMING ET AL. v. BosToN SAFE DEPOSIT
& TRGST Co. ET AL. Appeal from Sup. Jud. Ct.
Mass. dismissed for want of substantial federal question.
MR. JUSTICE DouGLAS would note probable jurisdiction
and set case for oral argument. Reported below: --
Mass. -, 279 N. E. 2d 342.
No. 71-1651. NEWBERN, ExECUTRix, E'l' AL. v. ALABAMA.
Appeal from Ct. Civ. App. Ala. dismissed for
want of substantial federal question. MR. JUSTICE DouGLAS
would note probable jurisdiction and set case for
oral argument. Reported below: See 46 Ala. App. 210,
239 So. 2d 780.
No. 71-6520. JACK ET AL. v. CALIFORNIA. Appeal
from App. Dept., Super. Ct. Cal., County of Santa
Clara, dismissed for want of substantial federal question.
MR. JUSTICE DouGLAS would note probable jurisdiction
and set case for oral argument.
Ko. 72- 5070. KELLEY v. Io,,-A DEPARTMENT OF SocIAL
SERVICES. Appeal from Sup. Ct. Iowa dismissed for
want of substantial federal question. MR. JusnCE
DoGGLAS would note probable jurisdiction and set case
for oral argument. Reported below: 197 N. W. 2d 192.
No. 72 20. MoTTELER, ADMINISTRATRIX v. J. A. JONES
CONSTRUCTION Co. Appeal from C. A. 7th Cir. dismissed
for want of jurisdiction. Treating the papers
whereon the appeal was taken as a petition for writ of
certiorari, certiorari de11ied. MR. JusrrcE Dot:GLAS would
note probable jurisdiction and set case for oral argument.
Reported below: 457 F. 2d 917.
814 OCTOBER TERM, 1972
October 10, 1972 409 TJ. s.
No. 72-92. BUTCHER ET AL. v. TowNsHrP OF GROSSE
ILE ET AL. Appeal from Sup. Ct. Mich, dismissed for
want of substantial federal question. MR. JusTICE
STEWART would dismiss appeal for want of a properly
presented federal question. Reported below: 387 Mich.
42, 194 N. W. 2d 845.
No. 72-5080. BuNcH v. CITY OF CINCINNATI. Appeal
from Sup. Ct. Ohio dismissed for want of substantial
federal question. MR. JUSTICE DouGLAS and MR. Jus-
TICE MARSHALL would note probable jurisdiction and set
case for oral argument.
No. 72-5133. BucHANAN v. TEXAS. Appeal from Ct.
Crim. App. Tex. dismissed for want of substantial federal
question. MR. JUSTICE BRENNAN and MR. JusTICE
BLACKMUN would note probable jurisdiction and set case
for oral argument. Reported below: 480 S. W. 2d 207.
Certiorari Granted~ Vacated and Remanded
No. 71-1302. SUPERINTENDENT OF FIELD UNIT No. 9
v. TERRY. C. A. 4th Cir. Motion of respondent for
leave to proceed in forrna pauperis and certiorari granted.
Judgment vacated and case remanded for further consideration
in light of Colten v. Kentucky, 407 U. S. 104.
No. 71- 1548. IN RE LEARY. Super. Ct. Div., Gen. Ct.
of Justice, Couuty of \Vake, N. C. Certiorari granted,
judgment vacated, and case remanded for further consideration
in light of Jackson v. Indiana, 406 U. S. 715.
MR. JusncE DouGLAS dissents from vacating and remanding
this case.
No. 71- 6773. DUNCAN v. UNITED STATES. C. A. 9th
Cir. Motion for leave to proceed in forma pauperis and
certiorari granted. Judgment vacated and case remanded
for further consideration in light of Gelbard v. United
States, 408 U. S. 41. Reported below: 456 F. 2d 1401.
ORDERS 815
409 u. s. October 10, 1972
No. 71-6460. GAUSE v. ARIZONA. Sup. Ct. Ariz.
Motion for leave to proceed in forma pauperis and certiorari
granted. Judgment vacated and case remanded for
further consideration in light of Stewart v. Massachusetts,
408 U. S. 845. Reported below: 107 Ariz. 491, 489 P. 2d
830.
No. 71-6570. KETOLA v. UNITED STATES. C. A. 9th
Cir. Motion for leave to proceed in forma pauperis and
certiorari granted. Upon representations of the Solicitor
General, set forth in his Memorandum for the United
States filed June 16, 1972, judgment vacated and case
remanded for further consideration in light of position
presently asserted by the Government. Application for
bail denied without prejudice to renewal of application
to the Court of Appeals. Reported below: 455 F. 2d 83.
No. 72- 5009. WEBB v. UNITED STATES. C. A. 9th Cir.
Motion for leave to proceed in f orma pauperis and certiorari
granted. Judgment vacated and case remanded
for further consideration in light of Gelbard v. United
States, 408 U. S. 41.
No. 72-28. NORTHERN STATES PowER Co. v. IHRKE
ET ux. C. A. 8th Cir. Certiorari granted, judgment
vacated, and case remanded with instructions to dismiss
case as moot. MR. JUSTICE POWELL took no part in the
consideration or decision of this case. Reported below:
459 F. 2d 566.
No. 72- 5110. MARTINEZ-FRAUSTO v. UNITED STATES.
C. A. 9th Cir. Motion for leave to proceed in f orma
pauperis and certiorari granted. Upon representations
of the Solicitor General, set forth in his Memorandum
for the United States filed September 6, 1972, judgment
vacated and case remanded for further consideration
in light of the position presently asserted by the Government.
Reported below: 463 F. 2d 231.
816 OCTOBER TERM, 1972
October IO, 1972 409 u. s.
No. 72- 34. O'BRIEN ET AL. v. BROWN ET AL. C. A.
D. C. Cir. Motions to dispense with printing petition
and respondents' brief granted. Certiorari granted, judgment
vacated, and case remanded with directions to
dismiss case as moot. Reported below: 152 e. S. App.
D. C. 157, 469 F. 2d 563.
No. 72-35. KEANE ET AL. V. NATIONAL DEMOCRATIC
PARTY ET AL. C. A. D. C. Cir. Motions t-0 dispense
with printing petition and respondents' brief granted.
Certiorari granted, judgment vacated, and case remanded
to determine whether case has become moot. Reported
below: 152 U. S. App. D. C. 157, 469 F. 2d 563.
Miscellaneous Orders
No. A- 1165, October Term, 1971. IN RE DISBARMENT
OF MORTON. It having been reported to this
Court that William M. Morton, Jr., of St. Joseph, Missouri,
has been disbarred from the practice of law in all
of the courts of the State of Missouri, and this Court
by order of May 15, 1972 [ 406 U. S. 914], having
suspended the said William M. Morton, Jr., from the
practice of law in this Court and directed that a rule
issue requiring him to show cause why he should not
be disbarred;
And it appearing that the said rule was duly issued
and served upon the respondent and that the time
within which to file a return has expired;
IT IS ORDERED that the said William M. Morton, Jr.,
be, and he is hereby, disbarred from the practice of
law in this Court and that his name be stricken from
the roll of attorneys admitted to practice before the
Bar of this Court.
No. 36, Orig. TEXAS v. LOUISIANA. Exceptions to
Report of Special Master set for oral argument in due
course. [For earlier orders herein, see, e. g., 406 U. S.
941.J
ORDERS 817
409 U.S. October 10, 1972
No. A-271. XoN-RESIDENT TAXPAYERS AssocIATION
OF PENNSYLVANIA AND NEW JERSEY ET AL. V. ML"RRAY,
SHERIFF, ET AL. D. C. E. D. Pa. Application for injunction
presented to MR. JUSTICE DouGLAS, and by him
referred to the Court, denied. MR. JPSTICE DOUGLAS
would grant the application. Reported below: 347 F.
Supp. 399.
No. 56, Orig. VrnGINIA v. INTERNATIONAL Arn TRANSPORT
AssN. ET AL. Motion of Metropolitan Washington
Board of Trade for leave to file a brief as arnicus curiae
granted. Motion for leave to file bill of complaint
denied. Washington v. General Motors Corp., 406 U. S.
109. MR. JusTICE POWELL took no part i11 the consideration
or decision of these motions.
No. 70-18. RoE ET AL. v. \VAoE, DISTRICT ATTORNEY
OF DALLAS CoGNTY. Appeal from D. C. N. D. Tex.;
and
No. 70-40. DoE ET AL. v. BOLTON, ATTORNEY GENERAL
OF GEORGIA, ET AL. Appeal from D. C. X. D. Ga.
[Restored to calendar, 408 U. S. 919.] Motion of California
Committee to Legalize Abortion et al. for leave
to file a brief as amici curiae granted.
No. 70-106. HEFFERNAN, GcARDIAN v. DoE ET AL.
Appeal from D. C. N. D. Ill. Motion of appellant to
consolidate with ~'o. 70-18 [Roe v. Wade] and No.
70-40 [Doe v. Bolton] for oral argument denied.
No. 71--485. GoITSCHALK, AcTING COMMISSIONER OF
PATENTS v. BENSON ET AL. C. C. P. A. [ Certiorari
granted, 405 U. S. 915,.] Motion of Association of Data
Processing Service Organizations, Software Products and
Service Section, for leave to participate in oral argument
as amicus curiae denied. MR. JcsTrCE STEWART, MR.
JusTICE BLACKMUN, and MR. JusTICE PowELL took no
part in the consideration or decision of this motion.
818 OCTOBER TERM, 1972
October IO, 1972 409 U.S.
No. 71-36. CALIFORNIA ET AL. v. LARUE ET AL. Appeal
from D. C. D. C. Cal. [Probable jurisdiction noted,
404 U. S. 999.] Motion to permit two counsel to argue
on behalf of appellees granted.
No. 71- 123. NATIONAL LABOR RELATIONS BOARD v.
BURNS INTERNATIONAL SECURITY SERVICES, INC. , ET AL.;
and
No. 71-198. BURNS INTERNATIONAL SECURITY SERVICES,
INC. V. NATIONAL LABOR RELATIONS BOARD ET AL.,
406 U . S. 272. Motion to recall judgment denied.
No. 71-366. TIDEWATER OIL Co. v. UNITED STATES
ET AL. C. A. 9th Cir. [Certiorari granted, 405 U. S.
986.] Motion of the Solicitor General to permit A. Raymond
Randolph, Jr., to argue orally pro hac vice on
behalf of the United States granted.
No. 71-507. KEYES ET AL. v. SCHOOL DrsTR1CT No. 1,
DENVER, COLORADO, ET AL. C. A. 10th Cir. [Certiorari
granted, 404 U. S. 1036.] Joint motion for additional
time for oral argument granted and 15 minutes allotted
for that purpose to each side. MR. JusTICE WHITE
took no part in the consideration or decision of this
motion.
No. 71-575. GOMEZ v. PEREZ. Appeal from Ct. Civ.
App. Tex., 4th Sup. Jud. Dist. [Probable jurisdiction
noted, 408 U. S. 920.J Motion of appellant to dispense
with printing appendix and to proceed on original record
granted. Motion of American Civil Liberties Union for
leave to file a brief as amicus curiae granted.
No. 71-666. UNITED SrATES v. GLAXO GROUP LTD.
ET AL. Appeal from D. C. D. C. [Probable jurisdiction
noted, 405 U. S. 914.] Motion of appellant for additional
time for oral argument granted and 15 minutes
allotted for that purpose. Appellees also allotted 15
additional minutes for oral argument.
ORDERS 819
409U. S. October 10, 1972
No. 71-651. CALIFORNIA v. KmvnA ET AL. Sup. Ct.
Cal. [Certiorari granted, 405 U. S. 1039.] Motion to
permit showing of motion picture during oral argument,
to permit two counsel to argue orally, and for additional
time for oral argument denied. Motion of National
Legal Aid & Defender Assn. for leave to dispense with
printing amicus curiae brief granted.
No. 71-685. LEHNHAUSEN, DIRECTOR, DEPARTMENT
OF LOCAL GOVERNMENT AFFAIRS OF ILLINOIS V. LAKE
SHORE AuTo PARTS Co. ET AL.; and
No. 71-691. BARRETT, CouNTY CLERK OF CooK
CouNTY, ILLINOIS, ET AL. v. SHAPIRO ET AL. Sup.
Ct. Ill. [Certiorari granted, 405 U. S. 1039.] Motion
of American National Bank & Trust Co. of Chicago et al.,
as members of Corporate Fiduciaries Assn. of Illinois,
for leave to file a brief as amici curiae granted. Motion
of Proviso Township High School District #209 et al.
for leave to file a brief as amici curiae granted, but motion
to participate in oral argument as amici curiae denied.
Motion of Charles Marshall, State's Attorney,
County of DeKalb, Illinois, for leave to intervene in No.
71-685 denied.
No. 71- 829. MouRNING v. FAMILY PUBLICATIONS
SERVICE, INC. C. A. 5th Cir. [Certiorari granted, 405
U. S. 987.] Motion of National Consumer Law Center,
Inc., for leave to dispense with printing amicus curiae
brief granted. Motion of the Solicitor General for leave
to participate in oral argument as amicus curiae in support
of petitioner granted and 15 minutes allotted for
that purpose. Respondent also allotted 15 additional
minutes for oral argument.
No. 71-1182. MATTZ v. ARNETT, DIRECTOR, DEPARTMENT
OF FISH AND GAME. Ct. App. Cal., 1st App. Dist.
The Solicitor General is invited to file a brief in this case
expressing the views of the United States. Reported
below: 20 Cal. App. 3d 729, 97 Cal. Rptr. 894.
820 OCTOBER TERM, 1972
October 10, 1972 409 u. s.
No. 71-834. McCLANAHAN v. ARIZONA TAx COMMISSION.
Appeal from Ct. App. Ariz. [Probable
jurisdiction noted, 406 U. S. 916.] Motion of the
Solicitor General for leave to participate in oral argument
as amicus curiae in support of appellants granted
and 15 minutes allotted for that purpose. Appellee allotted
15 additional minutes for oral argument.
No. 71-863. CoLUMBIA BROADCASTING SYSTEM, INc.
v. DEMOCRATIC NATIONAL COMMITTEE;
No. 71-864. FEDERAL CoMMUNICATIONS COMMISSION
ET AL. v. BUSINESS EXECUTIVES' MOVE FOR VIETNAM
PEACE ET AL. ;
No. 71-865. PosT-NEWSWEEK STATIONS, CAPITAL
AREA, INC. v. BUSINESS EXECUTIVES' MOVE FOR VIETNAM
PEACE; and
No. 71-866. AMERICAN BROADCASTING Cos., lNc. v.
DEMOCRATIC NATIONAL COMMITTEE. C. A. D. C. Cir.
[Certiorari granted, 405 U.S. 953.] Motion of Columbia
Broadcasting System, Inc., and Post-Newsweek Stations,
Capital Area, Inc., for additional time for oral argument
granted and 7½ minutes allotted to petitioners for that
purpose. Respondents also alloted 7½ additional minutes
for oral argument.
No. 71-991. OTTER TAIL PowER Co. v. UNITED STATES.
Appeal from D. C. Minn. [Probable jurisdiction noted,
406 U. S. 944.l Motion of appellant for additional time
for oral argument denied. Motion of Federal Power
Commission for leave to participate in oral argument as
amicus curiae denied. Mn. JUSTICE BLACKMUN and MR.
JUSTICE PowELL took no part in the consideration or
decision of these motions.
No. 71-1672. GuTHRIE ET AL. v. ALABAMA BY-PRODUCTS
Co. ET AL. C. A. 5th Cir. The Solicitor General
is invited to file a brief in this case expressing the views
of the United States. Reported below: 456 F. 2d 1294,
ORDERS 821
·!09 U.S. October 10, 1972
No. 71-1021. EMPLOYEES OF THE DEPARTMENT OF
PUBLIC HEALTH AND \VELFARE OF MISSOURI ET AL. v.
DEPARTMENT OF PUBLIC HEALTH AND WELFARE OF MissouaI
ET AL. C. A. 8th Cir. l Certiorari granted, 405
U. S. 1016.J The Solicitor General is invited to file a
brief in this case expressing the views of the United
States.
No. 71-1031. TONASKET v. WASHINGTON ET AL. Appeal
from Sup. Ct. \Vash. [Probable jurisdiction noted,
407 U. S. 908.] Motion of appellant for additional time
for oral argument denied.
No. 71-1119. INDIANA EMPLOYMENT SECURITY DIVISION
ET AL. v. BURNEY. Appeal from D. C. N. D. Ind.
[Probable jurisdiction noted, 406 U. S. 956.] Motion
of College-University Corporation of Indianapolis, Indiana,
et al. for leave to file a brief as amici curiae granted.
Motion of California Department of Human Resources
Development for leave to argue orally as amicus curiae
denied.
No. 71- 1136. TILLMAN ET AL. v. WHEATON-HAVEN
RECREATION AssN., INC., ET AL. C. A. 4th Cir. [Certiorari
granted, 406 U. S. 916.1 Motion of Montgomery
County, Maryland, for leave to participate in oral argument
as arnicus curiae denied.
No. 71-1192. GOLDSTEIN ET AL. v. CALIFORNIA. App.
Dept., Super. Ct. Cal., County of Los Angeles. [Certiorari
granted, 406 U. S. 956.] Motion of Custom Recording
Co., Inc., et al. for leave to file a brief as amici
curiae granted.
No. 72-434. BYRN, GUARDIAN v. NEW YoRK CITY
HEALTH & HOSPITALS CORP. ET AL. Appeal from Ct.
App. N. Y. Motion of appellant to expedite consideration
denied. Reported below: 31 N. Y. 2d 194, 286
N. E. 2d 887.
822 OCTOBER TERM, 1972
October 10, 1972 409 U.S.
No. 71-1332. SAN ANTONIO INDEPENDENT ScHOOL
DISTRICT ET AL. v. RoDRIGUEZ ET AL. Appeal from D. C.
W. D. Tex. [Probable jurisdiction noted, 406 U. S.
966.] Motions of John Serrano, Jr., et al.; American
Civil Liberties Union et al.; \.Vilson Riles, Superintendent
of Public Instruction of California, et al.; NAACP Legal
Defense Fund et al. ; Mayor of Baltimore et al.; National
Education Assn. et al.; Houston L. Flournoy, Controller
of California; and Wendell Anderson, Governor
of Minnesota, et al., for leave to file briefs as arnici
curiae granted. Motions of John Serrano, Jr., Pt al.
and Wendell Anderson, Governor of Minnesota, et al.
for leave to participate in oral argument as amici curiae
denied.
No. 71- 1586. Woon v. GoonsoN, JUDGE. Cir. Ct.
Ark., Miller County. Motion to defer consideration of
petition for writ of certiorari granted.
No. 71-6278. ALMEIDA-SANCHEZ v. UNITED STATES.
C. A. 9th Cir. [Certiorari granted, 406 U. S. 944.J
Motion of Luke McKissack for leave to file a brief as
amicus curiae granted.
No. 71-6516. BRADEN V. 30TH JUDICIAL CIRCUIT
COURT OF KENTUCKY. C. A. 6th Cir. [Certiorari
granted, 407 U. S. 909.] Motion of M. Curran Clem,
Esquire, to permit John M. Famularo, Esquire, to argue
pro hac vice on behalf of respondent granted. Motion
of American Civil Liberties Union for leave to file a
brief as ami.cus curiae granted. Reported below: 454
F. 2d 145.
No. 71-1531. NOLAN V. JUDICIAL COUNCIL OF THE
THIRD CrncurT OF THE UNITED STATES ET AL. Motion
for leave to file petition for writ of prohibition and/ or
mandamus denied. MR. JUSTICE BRENNAN took no part
in the consideration or decision of this motion.
ORDERS 823
409 U.S. October 10, 1972
No. 72-190. SMITH ET AL. v. BOARD OF EDUCATION,
INDEPENDENT SCHOOL DISTRICT No. 1, TuLsA CouNTY,
OKLAHOMA, ET AL. C. A. 10th Cir. Motion to advance
denied. Reported below: 459 F. 2d 720.
No. 72-482. MARCHETTI v. UNITED STATES. C. A.
4th Cir. Motion of petitioner to expedite consideration
denied. Reported below: 466 F. 2d 1309.
No. A--320 (72- 521). IRISH NoRTHEHN Arn CoMMITTEE
V. ATTORNEY GENERAL OF THE UNITED STATES.
C. A. 2d Cir. Application for stay presented to MR.
JusTICE MARSHALL, and by him referred to the Court,
granted. Should petition for writ of certiorari be denied,
stay is to terminate automatically. Should petition for
writ of certiorari be granted, stay is to remain in effect
pending the sending down of the judgment of this Court.
No. 71-6603. HousE v. SMITH, \VARDEN; and
No. 72-5054. GrnsoN v. WAINWRIGHT, CORRECTIONS
DIRECTOR. Motions for leave to file petitions for writs
of habeas corpus denied.
No. 71-6564. NEWELL V. BOHANON, U. S. DISTRICT
JUDGE;
No. 72-5034. DOYLE v. UNITED STATES DISTRICT
CovRr FOR THE DISTRICT OF MINNESOTA ET AL.; and
No. 72-5035. BEY v. UNITED STATES COURT OF APPEALS
FOR THE THIRD CrncuIT. Motions for leave to
file petitions for writs of mandamus denied.
No. 71-1655. FALKNER v. SUPREME Cou RT OF F LORIDA
ET AL. Motion to dispense with printing petition
granted. Motion for leave to file petition for writ of
prohibition and/ or mandamus denied.
No. 71- 6510. LEVY ET AL. v. UNITED STATES Cou RT
OF APPEALS FOR THE FIFTH CIRCUIT ET AL. Motion
for leave to file petition for writ of prohibition and/ or
mandamus denied.
824 OCTOBER TERM, 1972
October 10, 1972 409 U.S.
No. 71-288. LAIRD, SECRETARY OF DEFENSE, ET AL. v.
TATUM ET AL., 408 U. S. 1. :Motion to withdraw opinion
of this Court denied. Motion to recuse, nunc pro tune,
presented to MR. JusTICE REHNQUIST, by him denied."'
Memorandum of MR. J USTICE REHNQUIST.
Respondents in this case have moved that I disqualify
myself from participation. While neither the Court nor
any Justice individually appears ever to have done so,
I have determined that it would be appropriate for me
to state the reasons which have led to my decision with
respect to respondents' motion. In so doing, I do not
wish to suggest that I believe such a course would be
desirable or even appropriate in any but the peculiar
circumstances present here.1
Respondents contend that because of testimony that
I gave on behalf of the Department of Justice before
the Subcommittee on Constitutional Rights of the Judiciary
Committee of the United States Senate at its
hearings during the 92d Cong., 1st Sess., on Federal Data
Banks, Computers and the Bill of Rights (hereinafter
Hearings), and because of other statements I made in
speeches related to this general subject, I should have
* [ REPORTER';; Non;: See also post, p. 901.]
1 In a motion of this kind, there is not apt to be anything akin to
the "record" that supplies the factual basis for adjudication in
most litigated matters. The judge will presumably know more
about the factual background of his involHment in matters that
form the basis of the motion than do the movants, but with the
passage of any time at all his recollection will fade except to the
extent it is refreshed by transcripts such as those available here.
If the motion before me turned only on disputed factual inferences,
no purpose would be served by my detailing my own recollection of
the relevant facts. Since, however, the main thrust of respondents'
motion is based on what seems to me an incorrect interpretation of
the applicable statute, I believe that this is the exceptional case
where an opinion is warranted.
ORDERS 825
824 Memorandum of REHNQUIST, J.
disqualified myself from participating in the Court's
consideration or decision of this case. The governing
statute is 28 U. S. C. § 455, which provides:
"Any justice or judge of the United States shall
disqualify himself in any case in which he has a
substantial interest, has been of counsel, is or has
been a material witness, or is so related to or connected
with any party or his attorney as to render
it improper, in his opinion, for him to sit on the
trial, appeal, or other proceeding therein."
Respondents also cite various draft provisions of
Standards of Judicial Conduct prepared by a distinguished
committee of the American Bar Association, and adopted
by that body at its recent annual meeting. Since I do
not read these particular provisions as being materially
different from the standards enunciated in the statute,
there is no occasion for me to give them separate
consideration. 2
Respondents in their motion summarize their factual
contentions as follows:
"Under the circumstances of the instant case, MR.
JusTICE REHNQUIST's impartiality is clearly questionable
because of his appearance as an expert witness
for the Justice Department in Senate hearings
inquiring into the subject matter of the case, because
of his intimate knowledge of the evidence
underlying the respondents' allegations, and because
of his public statements about the lack of merit in
respondents' claims."
Respondents are substantially correct in characterizing
my appearance before the Ervin Subcommittee as an
"expert witness for the Justice Department" on the sub-
2 See S. Exec. Rep. No. 91- 12, Nomination of Clement F. Haynsworth,
Jr., 10-11.
826 OCTOBER TERM, 1972
Memorandum of REHNQUIST, J. 409 l}. S.
ject of statutory and constitutional law dealing with
the authority of the Executive Branch to gather information.
They are also correct in stating that during the
course of my testimony at that hearing, and on other
occasions, I expressed an understanding of the law, as
established by decided cases of this Court and of other
courts, which was contrary to the contentions of respondents
in this case.
Respondents' reference, however, to my "intimate
knowledge of the evidence underlying the respondents'
allegations" seems to me to make a great deal of very
little. When one of the Cabinet departments of the
Executive Branch is requested to supply a witness for
the congressional committee hearing devoted to a particular
subject, it is generally confronted with a minor
dilemma. If it is to send a witness with personal knowledge
of every phase of the inquiry, there will be not one
spokesman but a dozen. If it is to send one spokesman
to testify as to the department's position with respect
to the matter under inquiry, that spokesman will frequently
be called upon to deal not only with matters
within his own particular bailiwick in the department,
but with those in other areas of the department with
respect to which his familiarity may be slight. I commented
on this fact in my testimony before Senator
Ervin's Subcommittee:
"As you might imagine, the Justice Department, in
selecting a witness to respond to your inquiries, had
to pick someone who did not have personal knowledge
in every field. So I can simply give you my
understanding .... " Hearings 619.
There is one reference to the case of Tatum v. Laird
in my prepared statement to the Subcommittee, and one
reference to it in my subsequent appearance during a
ORDERS 827
.S24 Memorandum of REHNQUI8T, .T.
colloquy with Senator Ervin. The former appears as
follows in the reported hearings:
"However, in connection with the case of Tatum v.
Laird, now pending in the U. S. Court of Appeals
for the District of Columbia Circuit, one printout
from the Army computer has been retained for the
inspection of the court. It will thereafter be
destroyed." Hearings 601.
The second comment respecting the case was in a discussion
of the applicable law with Senator Ervin, the
chairman of the Subcommittee, during my second
appearance.
My recollection is that the first time I learned of
the existence of the case of Laird v. Tatum, other than
having probably seen press accounts of it, was at the
time I was preparing to testify as a witness before the
Subcommittee in March 1971. I believe the case was
then being appealed to the Court of Appeals by respondents.
The Office of the Deputy Attorney General,
which is customarily responsible for collecting material
from the various divisions to be used in preparing the
Department's statement, advised me or one of my staff
as to the arrangement with respect to the computer
print-out from the Army Data Bank, and it was incorporated
into the prepared statement that I read to
the Subcommittee. I had then and have now no personal
knowledge of the arrangement, nor so far as I
know have I ever seen or been apprised of the contents
of this particular print-out. Since the print-out had
been lodged with the Justice Department by the Department
of the Army, I later authorized its transmittal
to the staff of the Subcommittee at the request of the
latter.
828 OCTOBER TERM, 1972
:v1emorandum of REHNQUIST, .J. 409 u. s.
At the request of Senator Hruska, one of the members
of the Subcommittee, I supervised the preparation of a
memorandum of law, which the record of the hearings
indicates was filed on September 20, 1971. Respondents
refer to it in their petition, but no copy is attached, and
the hearing records do not contain a copy. I would
expect such a memorandum to have commented on the
decision of the Court of Appeals in Laird v. Tatum,
treating it along with other applicable precedents in
attempting to state what the Department thought the
law to be in this general area.
Finally, I never participated, either of record or in
any advisory capacity, in the District Court, in the
Court of Appeals, or in this Court, in the Government's
conduct of the case of Laird v. Tatum.
Respondents in their motion do not explicitly relate
their factual contentions to the applicable provisions of
28 U. S. C. § 455. The so-called "mandatory" provisions
of that section require disqualification of a Justice
or judge "in any case in which he has a substantial
interest, has been of counsel, is or has been a material
witness .... "
Since I have neither been of counsel nor have I been
a material witness in Laird v. Tatum, these provisions
are not applicable. Respondents refer to a memorandum
prepared in the Office of Legal Counsel for the
benefit of MR. JUSTICE WHITE shortly before he came
on the Court, relating to disqualification. I reviewed
it at the time of my confirmation hearings and found
myself in substantial agreement with it. Its principal
thrust is that a Justice Department official is disqualified
if he either signs a plea.ding or brief or "if he actively
participated in any case even though he did not sign a
pleading or brief." I agree. In both United States v.
United States Di,strict Court, 407 U. S. 297 ( 1972), for
which I was not officially responsible in the Department
ORDERS 829
824 Memorandum of REHNQUIST, J.
but with respect to which I assisted in drafting the brief,
and in S&E Contractors v. United States, 406 U. S. 1
( 1972), in which I had only an advisory role which terminated
immediately prior to the commencement of the
litigation, I disqualified myself. Since I did not have
even an advisory role in the conduct of the case of Laird
v. Tatum, the application of such a rule would not require
or authorize disqualification here.
This leaves remaining the so-called discretionary portion
of the section, requiring disqualification where the
judge "is so related to or connected with any party or
his attorney as to render it improper, in his opinion, for
him to sit on the trial, appeal, or other proceeding
therein." The interpretation and application of this section
by the various Justices who have sat on this Court
seem to have varied widely. The leading commentator
on the subject is John P. Frank, whose two articles, Disqualification
of Judges, 56 Yale L. J. 605 (1947), and Disqualification
of Judges: In Support of the Bayh Bill,
35 Law & Contemp. Prob. 43 (1970), contain the principal
commentary on the subject. For a Justice of this Court
who has come from the Justice Department, Mr. Frank
explains disqualification practices as follows:
"Other relationships between the Court and the Department
of Justice, however, might well be different.
The Department's problem is special because
it is the largest law office in the world and has cases
by the hundreds of thousands and lawyers by the
thousands. For the most part, the relationship of
the Attorney General to most of those matters is
purely formal. As between the Assistant Attorneys
General for the various Departmental divisions,
there is almost no connection." Supra, 35 Law &
Contemp. Prob., at 47.
Indeed, different Justices who have come from the Department
of Justice have treated the same or very
830 OCTOBER TERM, 1972
Memorandum of REHNQUIST, J. 409 U.S.
similar situations differently. In Schneiderman v.
United States, 320 U.S. 118 (1943), a case brought and
tried during the time Mr. Justice Murphy was Attorney
General, but defended on appeal during the time that
Mr. Justice Jackson was Attorney General, the latter
disqualified himself but the former did not. 320 U. S.,
at 207.
I have no hesitation in concluding that my total lack
of connection while in the Department of Justice with
the defense of the case of Lair.d v. Tatum does not
suggest discretionary disqualification here because of my
previous relationship with the Justice Department.
However, respondents also contend that I should disqualify
myself because I have previously expressed in
public an understanding of the law on the question of the
constitutionality of governmental surveillance. While
no provision of the statute sets out such a provision for
disqualification in so many words, it could conceivably
be embraced within the general language of the discretionary
clause. Such a contention raises rather squarely
the question of whether a member of this Court, who
prior to his taking that office has expressed a public
vie.w as to what the law is or ought to be, should later
sit as a judge in a case raising that particular question.
The present disqualification statute applying to Justices
of the Supreme Court has been on the books only since
1948, but its predecessor, applying by its terms only to
district court judges, was enacted in 1911. Mr. Chief
Justice Stone, testifying before the Judiciary Committee
in 1943, stated:
"And it has always seemed to the Court that when
a district judge could not sit in a case because of
his previous association with it, or a circuit court
of appeals judge, it was our manifest duty to take
the same position." Hearings Before Committee
on the Judiciary on H. R. 2808, 78th Cong., 1st Sess.,
824
ORDERS 831
Memorandum of REHNQUIST, J.
24 (1943), quoted in Frank, supra, 56 Yale L. J., at
612 n. 26.
My impression is that none of the former Justices of
this Court since 1911 have followed a practice of disqualifying
themselves in cases involving points of law
with respect to which they had expressed an opinion or
formulated policy prior to ascending to the bench.
Mr. Justice Black while in the Senate was one of the
principal authors of the Fair Labor Standards Act;
indeed, it is cited in the popular-name index of the
1970 edition of the United States Code as the "Black-
Connery Fair Labor Standards Act." Not only did
he introduce one of the early versions of the Act,
but as Chairman of the Senate Labor and Education
Committee he presided over lengthy hearings
on the subject of the bill and presented the favorable
report of that Committee to the Senate. See
S. Rep. No. 884, 75th Cong., 1st Sess. (1937). Nonetheless,
he sat in the case that upheld the constitutionality
of that Act, United States v. Darby, 312
U. S. 100 (1941), and in later cases construing it,
including Jewell Ridge Coal Corp. v. Local 6167, UMW,
325 U. S. 161 (1945). In the latter case, a petition for
rehearing requested that he disqualify himself because
one of his former law partners argued the case, and
Justices Jackson and Frankfurter may be said to have
implicitly criticized him for failing to do so.3 But to
my knowledge his Senate role with respect to the Act
was never a source of criticism for his participation in the
above cases.
Mr. Justice Frankfurter had, prior to coming to this
Court, written extensively in the field of labor law. The
Labor Injunction which he and Nathan Green wrote was
considered a classic critique of the abuses by the fed-
3 See denial of petition for reheadng in Jewell Ridge Coal Corp.
v. Local 6167, UMW, 325 U.S. 897 (1945) (Jackson, J., concurring).
832 OCTOBER TER:VI, 1972
Memorandum of REHNQUIST, J. 409 Cs.
eral courts of their equitable jurisdiction in the area of
labor relations. Professor Sanford II. Kadish has stated:
"The book was in no sense a disinterested inquiry.
Its authors' commitment to the judgment that the
labor injunction should be neutralized as a legal
weapon against unions gives the book its energy and
direction. It is, then, a brief, even a 'downright
brief' as a critical reviewer would have it." Labor
and the Law, in Felix Frankfurter The Judge 153,
165 (W. Mendelson ed. 1964).
Justice Frankfurter had not only publicly expressed his
views, but had when a law professor played an important,
perhaps dominant, part in the drafting of the Norris-
LaGuardia Act, 47 Stat. 70, 29 U. S. C. §§ 101-115. This
Act was designed by its proponents to correct the abusive
use by the federal courts of their injunctive powers in
labor disputes. Yet, in addition to sitting in one of the
leading cases interpreting the scope of the Act, United
States v. Hutcheson, 312 U. S. 219 (1941), Justice Frankfurter
wrote the Court's opinion.
Mr. Justice Jackson in McGrath v. Kristensen, 340 U.S.
162 (1950), participated in a case raising exactly the
same issue that he had decided as Attorney General (in
a way opposite to that in which the Court decided it).
340 U. S., at 176. Mr. Frank notes tha.t Mr. Chief Justice
Vinson, who had been active in drafting and preparing
tax legislation while a member of the House of Representatives,
never hesitated to sit in cases involving that
legislation when he was Chief Justice.
Two years before he was appointed Chief Justice of
this Court, Charles Evans Hughes wrote a book entitled
The Supreme Court of the United States (Columbia
University Press, 1928). In a chapter entitled Liberty,
Property, and Social Justice he discussed at some length
the doctrine expounded in the case of Adkins v. Children's
Hospital, 261 U.S. 525 (1923). I think that one
ORDERS 833
824 Memorandum of REHNQUIST, J.
would be warranted in saying that he implied some
reservations about the holding of that case. See pp.
205, 209-211. Nine years later, Mr. Chief Justice Hughes
wrote the Court's opinion in West Coast Hotel Co. v.
Parrish, 300 U.S. 379 (1937), in which a closely divided
Court overruled Adkins. I have never heard any suggestion
that because of his discussion of the subject in
his book he should have recused himself.
Mr. Frank summarizes his view of Supreme Court
practice as to disqualification in the following words:
"In short, Supreme Court Justices disqualify when
they have a dollar interest; when they are related
to a party and, more recently, when they are related
to counsel; and when the particular matter was in
one of their former law offices during their association;
or, when in the government, they dealt with
the precise matter and particularly with the precise
case; otherwise, generally no." Supra, 35 Law &
Contemp. Prob., at 50.
Not only is the sort of public-statement disqualification
upon which respondents rely not covered by the
terms of the applicable statute, then, but it does not
appear to me to be supported by the practice of previous
Justices of this Court. Since there is little controlling
authority on the subject, and since under the existing
practice of the Court disqualification has been a matter
of individual decision, I suppose that one who felt very
strongly that public-statement disqualification is a highly
desirable thing might find a way to read it into the
discretionary portion of the statute by implication. I
find little to commend the concept on its merits, ho\vever,
and I am, therefore, not disposed to construe the statutory
language to embrace it.
I do not doubt that a litigant in the position of
respondents would much prefer to argue his case be834
OCTOBER TER:'v1, 19i2
Memorandum of REHNQUIST, J. 409 U.S.
fore a Court none of whose members had expressed
the views that I expressed about the relationship between
surveillance and First Amendment rights while
serving as an Assistant Attorney General. I would
think it likewise true that counsel for Darby would
have preferred not to have to argue before Mr. Justice
Black; that counsel for Kristensen would have preferred
not to argue before Mr. Justice Jackson;• that
counsel for the United States would have preferred not
to argue before Mr. Justice Frankfurter; and that counsel
for West Coast Hotel Co. would have preferred a Court
which did not include Mr. Chief Justice Hughes.
The Term of this Court just past bears eloquent witness
to the fact that the Justices of this Court, each
seeking to resolve close and difficult questions of constitutional
interpretation, do not reach identical results.
The differences must be at least in some part due to
differing jurisprudential or philosophical propensities.
MR. JusTICE DOUGLAS' statement about federal district
judges in his dissenting opinion in Chandler v. Judicial
Council, 398 U.S. 74, 137 (1970), strikes me as being
equally true of the Justices of this Court:
"Judges are not fungible; they cover the constitutional
spectrum; and a particular judge's emphasis
may make a world of difference when it comes to
rulings on evidence, the temper of the courtroom,
the tolerance for the proffered defense, and the
like. Lawyers recognize this when they talk about
'shopping' for a judge; Senators recognize this when
they are asked to give their 'advice and consent'
to judicial appointments; laymen recognize this
4 The fact that Mr. Justice Jackson reversed his earlier opinion
after sitting in Kristensen does not seem to me to bear on the
disqualification issue. A judge will usually be required to make
any decision as to disqualification before reaching any determination
as to how he will vote if he does sit.
824
ORDERS 835
Memorandum of REHNQUIST, J.
when they appraise the quality and image of the
judiciary in their own community."
Since most Justices come to this bench no earlier than
their middle years, it would be unusual if they had not
by that time formulated at least some tentative notions
that would influence them in their interpretation of
the sweeping clauses of the Constitution and their interaction
with one another. It would be not merely unusual,
but extraordinary, if they had not at least given
opinions as to constitutional issues in their previous
legal careers. Proof that a Justice's mind at the time
he joined the Court was a complete tabula rasa in the
area of constitutional adjudication would be evidence of
lack of qualification, not lack of bias.
Yet whether these opinions have become at all widely
known may depend entirely on happenstance. With respect
to those who come here directly from private life,
such comments or opinions may never have been publicly
uttered. But it would be unusual if those coming from
policymaking divisions in the Executive Branch, from
the Senate or House of Representatives, or from positions
in state government had not divulged at least some
hint of their general approach to public affairs, if not
as to particular issues of law. Indeed, the clearest case
of all is that of a Justice who comes to this Court from
a lower court, and has, while sitting as a judge of the
lower court, had occasion to pass on an issue that later
comes before this Court. No more compelling example
could be found of a situation in which a Justice had
previously committed himself. Yet it is not and could
not rationally be suggested that, so long as the cases be
different, a Justice of this Court should disqualify himself
for that reason. See, e. g., the statement of Mr. Justice
Harlan, joining in Lewis v. Manufacturers National
Bank, 364 U.S. 603,610 (1961). Indeed, there is weighty
authority for this proposition even when the cases are
836 OCTOBER TERM, 1972
Memorandum of REHNQUIST, J. 409 u. s.
the same. Mr. Justice Holmes, after his appointment to
this Court, sat in several cases which reviewed decisions
of the Supreme Judicial Court of Massachusetts rendered,
with his participation, while he was Chief Justice of
that court. See Worcester v. Street R. Co., 19.6 U. S.
539 (1905), reviewing 182 Mass. 49 (1902); Dunbar v.
Dunbar, 190 U. S. 340 (1903), reviewing 180 Mass. 170
(1901); Glidden v. Harrington, 189 U. S. 255 (1903),
reviewing 179 Mass. 486 (1901); and Williams v. Parker,
188 U.S. 491 (1903), reviewing 174 Mass. 476 (1899).
Mr. Frank sums the matter up this way:
"Supreme Court Justices are strong-minded men,
and on the general subject matters which come before
them, they do have propensities; the course of
decision cannot be accounted for in any other way."
Supra, 35 Law & Contemp. Prob., at 48.
The fact that some aspect of these propensities may
have been publicly articulated prior to coming to this
Court cannot, in my opinion, be regarded as anything
more than a random circumstance that should not by
itself form a basis for disqualification.5
Based upon the foregoing analysis, I conclude that
the applicable statute does not warrant my disqualification
in this case. Having so said, I would certainly
concede that fair-minded judges might disagree about the
matter. If all doubts were to be resolved in favor of disqualification,
it may be that I should disqualify myself
5 In terms of propriety, rather than disqualification, I would
distinguish quite sharply between a public statement made prior
to nomination for the bench, on the one hand, and a public statement
made by a nominee to the bench. For the latter to express
any but the most general observation about the law would suggest
that, in order to obtain favorable consideration of his nomination,
he deliberately was announcing in advance, without benefit of
judicial oath, briefs, or argument, how he would decide a particular
question that might come before him as a judge.
ORDERS 837
824 Memorandum of lh;HNQuJ:c;T, .J.
simply because I do regard the question as a fairly debatable
one, even though upon analysis I would resolve
it in favor of sitting.
Here again, one's course of action may well depend
upon the view he takes of the process of disqualification.
Those federal courts of appeals that have considered
the matter have unanimously concluded that a federal
judge has a duty to sit where not disqualified which is
equally as strong as the duty to not sit where disqualified.
Edwards v. United States, 334 F. 2d 360, 362
n. 2 (CA5 1964); Tynan v. United States, 126 U.S. App.
D. C. 206, 376 F. 2d 761 (1967); In re Union Leader
Corp., 292 F. 2d 381 (CAI 1961); Wolfson v. Palmieri,
396 F. 2d 121 (C'A2 1968); Simmons v. United States,
302 F. 2d 71 (CA3 1962); Pnited States v. Hoffa, 382
F. 2d 856 (CA6 1967); Tucker v. Kerner, 186 F. 2d 79
(CA7 1950); Walker v. Bishop, 408 F. 2d 1378 (CAS
1969). These cases dealt with disqualification on the
part of judges of the district courts and of the courts of
appeals. I think that the policy in favor of the "equal
duty" concept is even stronger iu the case of a Justice of
the Supreme Court of the United States. There is no
way of substituting Justices on this Court as one judge
may be substituted for another in the district courts.
There is no higher court of appeal that may review an
equally divided decision of this Court and thereby establish
the law for our jurisdiction. See, e. g., Tinker v. Des
Moines School D'istrict, 258 F. Supp. 971 (SD Iowa, 1966).
affirmed by an equally divided court, 383 F. 2d 988
(CA8 1967), certiorari granted and judgment reversed,
393 U. S. 503 (1969). While it can seldom be predicted
with confidence at the time that a Justice addresses himself
to the issue of disqualification whether or not the
Court in a particular case will be closely divided, the
disqualification of one .Justice of this Court raises the
possibility of an affirrnance of the judgment below by an
838 OCTOBER TERM, 1972
Memorandum of REHNQUIST, J. 409U. S.
equally divided Court. The consequence attending such
a result is, of course, that the principle of law presented
by the case is left unsettled. The undesirability of such
a disposition is obviously not a reason for refusing to disqualify
oneself where in fact one deems himself disqualified,
but I believe it is a reason for not "bending over
backwards" in order to deem oneself disqualified.
The prospect of affirmance by an equally divided
Court, unsatisfactory enough in a single case, presents
even more serious problems where companion cases
reaching opposite results are heard together here. During
the six months in which I have sat as a Justice of
this Court, there were at least three such instances.6
Since one of the stated reasons for granting certiorari
is to resolve a conflict between federal courts of appeals,
the frequency of such instances is not surprising. Yet
affirmance of each of such conflicting results by an
equally divided Court would lay down "one rule in
Athens, and another rule in Rome" with a vengeance.
And since the notion of "public statement" disqualification
that I understand respondents to advance appears
to have no ascertainable time limit, it is questionable
when or if such an unsettled state of the law could be
resolved.
The oath prescribed by 28 U. S. C. § 453 that is
taken by each person upon becoming a member of the
federal judiciary requires that he "administer justice
without respect to persons, and do equal right to the
poor and to the rich," that he "faithfully and impartially
discharge and perform all the duties incumbent upon
(him] ... agreeably to the Constitution and laws of
the United States." Every litigant is entitled to have
his case heard by a judge mindful of this oath. But
neither the oath, the disqualification statute, nor the
6 Branzburg v. Hayes, 408 U. S. 665 (1972); Gelbard v. United
States, 408 U. S. 41 (1972); Evansville Airport v. Delta Airlines
Inc., 405 U.S. 707 (1972).
ORDERS 839
409U. S. October 10, 1972
practice of the former Justices of this Court guarantees
a litigant that each judge will start off from dead center
in his willingness or ability to reconcile the opposing
arguments of counsel with his understanding of the
Constitution and the law. That being the case, it is
not a ground for disqualification that a judge has prior
to his nomination expressed his then understanding
of the meaning of some particular provision of the
Constitution.
Based on the foregoing considerations, I conclude that
respondents' motion that I disqualify myself in this
case should be, and it hereby is, denied.7
Probable Jurisdiction Noted or Postponed
No. 71-1476. GAFFNEY V. CuMMINGS ET AL. Appeal
from D. C. Conn. Probable jurisdiction noted. Reported
below: 341 F. Supp. 139.
No. 72-77. NoRwooo ET AL. v. HARRISON ET AL.
Appeal from D. C. N. D. Miss. Probable jurisdiction
noted. Reported below: 340 F. Supp. 1003.
7 Petitioners in Gravel, v. United States, 408 U. S. 606 ( 1972),
have filed a petition for rehearing which asserts as one of the
grounds that I should have disqualified myself in that case.* Because
respondents' motion in Laird was addressed to me, and
because it seemed to me to be seriously and responsibly urged, I
have dealt with my reasons for denying it at some length. Because
I believe that the petition for rehearing in Gravel, insofar as it
deals with disqualification, possesses none of these cha.racteristics,
there is no occasion for me to treat it in a similar manner. Since
such motions have in the past been treated by the Court as being
addressed to the individual Justice involved, however, I do venture
the observation that in my opinion the petition insofar as it relates
to disqualification verges on the frivolous. While my peripheral
advisory role in New York Times Co. v. United States, 403 U. S. 713
( 1971), would have warranted disqualification had I been on the
Court when that case was heard, it could not conceivably warrant
disqualification in Gravel, a different case raising entirely different
constitutional issues.
*[REPORTER'S NOTE: See post, p. 902.J
840 OCTOBER TERM, 1972
October 10, 1972 409U. S.
No. 71- 1637. CITY OF BURBANK ET AL. v. LOCKHEED
Arn TERMINAL, INc., ET AL. Appeal from C. A. 9th
Cir. Probable jurisdiction noted. Reported below: 457
F. 2d 667.
No. 71-1694. FRONTIERO ET vrn v. LAIRD, SECRETARY
OF DEFI~NSE , ET AL. Appeal from D. C. M. D. Ala.
Probable jurisdiction noted. Reported below: 341 F.
Supp. 201.
No. 72-147. BULLOCK, SECRETARY OF STATE OF TEXAS,
ET AL. v. REGESTER ET AL. Appeal from D. C. W. D.
Tex. Probable jurisdiction noted. Reported below: 343
F. Supp. 704.
No. 72-11. PALMORE v. UNITED STATES. Appeal from
Ct. App. D. C. Motion to dispense with printing jurisdictional
statement granted. Further consideration of
question of jurisdiction postponed to hearing of case
011 the merits. Reported below: 290 A. 2d 573.
Certiorari Granted
No. 71 - 1428. HENSLEY v. MUNICIPAL CouRT, SAN
JOSE-MILPITAS JUDICIAL DISTRICT, SANTA CLARA COUNTY.
C. A. 9th Cir. Certiorari granted. Reported below:
453 F. 2d 1252.
No. 71- 1459. UNITED STATES v. LITTLE LAKE MISERE
LAND Co. , INC., ET AL. C. A. 5th Cir. Certiorari granted.
Reported below: 453 F. 2d 360.
No. 71 - 1598. HODGSON, SECRETARY OF LABOR v. ARNHEIM
& NEELY, INc., ET AL. C. A. 3d Cir. Certiorari
granted. Reported below: 444 F. 2d 609.
No. 71-1665. UNITED STATES v. CARTWRIGHT, EXECUTOR.
C. A. 2d Cir. Certiorari granted. Reported
below: 457 F. 2d 567.
ORDERS 841
409U.S. October 10, 1972
No. 71-1698. UNITED STATES v. BISHOP. C. A. 9th
Cir. Certiorari granted. Reported below: 455 F. 2d
612.
No. 72-10. MooR ET AL. v. CouNTY OF ALAMEDA ET
AL. C. A. 9th Cir. Certiorari granted. Reported below:
458 F. 2d 1217.
No. 71-1442. COLGROVE v. BATTIN, U. S. DISTRICT
JuDGE. C. A. 9th Cir. Motion of International Association
of Insurance Counsel for leave to file a. brief
as amicus curiae and certiorari granted. Reported below:
456 F. 2d 1379.
No. 71-6481. DAVIS v. UNITED STATES. C. A. 5th
Cir. Motion for leave to proceed in forma pauperis and
certiorari granted. Reported below: 455 F. 2d 919.
No. 71-6698. MORRIS v. RrcHARDSON, SECRETARY OF
HEALTH, EDUCATION, AND WELFARE. C. A. 4th Cir.
Motion for leave to proceed in forma pauperis and certiorari
granted. Reported below: 455 F. 2d 775.
No. 71-6742. HURTADO ET AL. V. UNITED STATES.
C. A. 5th Cir. Motion for leave to proceed in f orma
pauperis and certiorari granted. Reported below: 452
F. 2d 951.
Certiorari Denied. (See also Nos. 71-1402, 71-1616,
71-6423, 71-6568, 71-6624, 71-6643, 71-6668, 72-20,
72-133, and 72-5107, supra.)
No. 71-1168. STRECKFUS STEAMERS, INc., ET AL. v.
CITY OF ST. Louis ET AL. St. Louis Ct. App. Mo.
Certiorari denied. Reported below: 472 S. W. 2d 660.
No. 71- 1175. FORKS ET AL. v. CITY OF WARSAW.
Sup. Ct. Ind. Certiorari denied. Reported below: 257
Ind. 237,273 N. E. 2d 856.
842 OCTOBER TERM, 1972
October 10, 1972 409 U.S.
No. 71- 1231. PACE v. PACE. Ct. App. Cal., 2d App.
Dist. Certiorari denied.
No. 71- 1236. ALABAMA v. RENNOw; and
No. 71-6263. RENNOW v. ALABAMA. Ct. Crim. App.
Ala. Certiorari denied. Reported below: 47 Ala. App.
419, 255 So. 2d 602.
No. 71 - 1357. REYNOLDS v. UNI'l'ED STATES; and
No. 71- 1358. STAMP v. UNITED STATES. C. A. D. C.
Cir. Certiorari denied. Reported below: 147 F S. App.
D. C. 340, 458 F. 2d 759.
Xo. 71-1360. KABINTO ET AL. v. UNITED STATES.
C. A. 9th Cir. Certiorari denied. Reported below: 456
F. 2d 1087.
No. 71-1373. LACOB v. UNITED STATES. C. A. 7th
Cir. Certiorari denied.
"tfo. 71- 1376. GEOGHEGAN & MATHIS, INC. v. COMMISSIONER
OF INTERNAL REVENUE. C. A. 6th Cir. Certiorari
denied. Reported below: 453 F. 2d 1324.
No. 71- 1378. INTERCONTINENTAL INDCSTRIEs , INc.
V. AMERICAN STOCK EXCHANGE ET AL. C. A. 5th Cir.
Certiorari denied. Reported below: 452 F. 2d 935.
No. 71-1382. ScHROUD v. MILWAUKEE Cou NTY DEPARTMENT
OF PUBLIC WELFARE. Sup. Ct. Wis. Certiorari
denied. Reported below: 53 Wis. 2d 650, 193
!'\. W. 2d 671.
No. 71-1387. HrKEN v. UNITED STATES. C. A. 8th
Cir. Certiorari denied. Reported below: 458 F. 2d 24.
No. 71 - 1390. BENTER v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. Reported below: 457 F. 2d 1174.
No. 71- 1391. SMITH, WARDEN v. HrATT. C. A. 5th
Cir. Certiorari denied. Reported below: 455 F. 2d 979.
ORDERS 843
409 U.S. October 10, 1972
No. 71-1393. DANIEL ET ux. v. UNITED STATES. C. A.
6th Cir. Certiorari denied. Reported below: 454 F. 2d
1166.
No. 71-1397. MIAMI POLICE BENEVOLENT ASSN., INC.
v. ADAMS ET AL. C. A. 5th Cir. Certiorari denied.
Reported below: 454 F. 2d 1315.
No. 71-1403. FoRBES LEASING & FINANCE CORP. v.
LEBOWITZ. C. A. 3d Cir. Certiorari denied. Reported
below: 456 F. 2d 979.
No. 71-1405. DEMOCRATIC NATIONAL COMMITTEE V.
FEDERAL COMMUNICATIONS COMMISSION ET AL. C. A.
D. C. Cir. Certiorari denied. Reported below: 148
U. S. App. D. C. 383, 460 F. 2d 891.
No. 71-1413. BROWN ET AL. v. UNITED STATES. C. A.
1st Cir. Certiorari denied. Reported below: 457 F. 2d
731.
No. 71-1418. LoMAYAKTEWA ET AL. v. CORCORAN,
U. S. DISTRICT JUDGE, ET AL. C. A. D. C. Cir. Certiorari
denied.
No. 71-1432. DIRECT MAIL ADVERTISING AssN., INc.,
ET AL. v. UNITED STATES POSTAL SERVICE ET AL. C. A.
D. C. Cir. Certiorari denied. Reported below: 147 U.S.
App. D. C. 394, 458 F. 2d 813.
No. 71-1436. BLAND v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 458 F. 2d 1.
No. 71-1438. CECERE v. UNITED STATES; and
No. 71-1568. DECARLO v. UNITED STATES. C. A. 3d
Cir. Certiorari denied. Reported below: 458 F. 2d 358.
No. 71-1440. WENGER v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. Reported below: 457 F. 2d 1082.
No. 71-1455. BuRSTEN v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 453 F. 2d 605.
844 OCTOBER TERM, 1972
October 10, 1972 409 U.S.
No. 71-1463. MILLIKEN, GovERNOR OF MICHIGAN,
ET AL. v. BRADLEY ET AL. C. A. 6th Cir. Certiorari
denied.
Xo. 71-1467. FLYNN v. BOARD OF EXAMINERS, BOARD
OF EorcATION 01'' THE CITY OF NEw YORK. App. Div.,
Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied.
No. 71 - 1468. BosLEY ET vx. v. GRAND LODGE OF ANCIENT
FREE & ACCEPTED MASONS OF MARYLAND. Ct.
App. Md. Certiorari denied. Reported below: 263 Md.
303, 283 A. 2d 587.
No. 71-1480. ALEXANDER v. PNITED STATES. C. A.
2d Cir. Certiorari denied.
No. 71-1481. COLLINS ET AL. v. AVERY ET AL. C. A.
5th Cir. Certiorari denied.
No. 71 - 1484. FINK ET ux. v. UNITED SrATES. Ct. Cl.
Certiorari denied. Reported below: 197 Ct. Cl. 187, 454
F. 2d 1387.
No. 71-1485. HARNESS v. KENTUCKY. Ct. App. Ky.
Certiorari denied. Reported below: 475 S. W. 2d 485.
Xo. 71 - 1486. HART, DBA SAN DIEGO CABINETS, ET
AL. V. NATIONAL LABOR RELATIONS BOARD. C. A. 9th
Cir. Certiorari denied. Reported below: 453 F. 2d 215.
No. 71-1488. WACHOVIA BANK & TRrsT Co. v. HARRIS,
TRUSTEE. C. A. 4th Cir. Certiorari denied. Reported
below: 455 F. 2d 841.
No. 71-1489. PLASTILINE, INc. v. NATIONAL LABOR
RELATIONS BOARD. C. A. 4th Cir. Certiorari denied.
No. 71-1490. BETHLEHEM MINES CORP. ET AL. v.
UNITED MINE WORKERS OF AMERICA E"r AL. C. A. 3d
Cir. Certiorari denied. Reported below: 456 F. 2d
1233.
ORDERS 845
409 u. s. October 10, 1972
No. 71-1492. DYAL v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 456 F. 2d 800.
No. 71-1493. FHAGEN ET AL. v. MrLLER, COMMISSIONER
OF MENTAL HYGIENE, ET AL. Ct. App. N. Y.
Certiorari denied. Reported below: 29 N. Y. 2d 348,
278 N. E. 2d 615.
No. 71-1494. TuscANY FABRICS, INc. v. UNITED
STATES. C. C. P.A. Certiorari denied. Reported below:
59 C. C. P. A. (Cust.) 77, 454 F. 2d 1188.
No. 71-1496. CASANOVA GUNS, INC. v. SHULTZ, SECRETARY
OF THE TREASURY, ET AL. C. A. 7th Cir. Certiorari
denied. Reported below: 454 F. 2d 1320.
No. 71-1497. BECK V. CONNECTICUT GENERAL LIFE
INSURANCE Co. C. A. 5th Cir. Certiorari denied. Reported
below: 456 F. 2d 1040.
No. 71-1498. INTERNATIONAL ASSOCIATION OF MACHINISTS
& AEROSPACE WORKERS ET AL. V. NORTHEAST
AIRLINES, INC. C. A. 1st Cir. Certiorari denied.
No. 71-1499. DEvcoN CORP. v. WooDHILL CHEMICAL
SALES CORP. C. A. 1st Cir. Certiorari denied. Reported
below: 455 F. 2d 830.
No. 71-1500. KNox ET AL. v. UNITED STATES. C. A.
5th Cir. Certiorari denied. Reported below: 458 F.
2d 612.
No. 71- 1504. PANOTEX PIPE LINE Co. ET AL. v. PHILLIPS
PETROLEUM Co. ET AL. C. A. 5th Cir. Certiorari
denied. Reported below: 457 F. 2d 1279.
No. 71-1506. FrcHMAN v. UNITED STATES. Ct. Cl.
Certiorari denied.
No. 71-1508. CHONG YuK WAH v. UNITED STATES.
C. A. 1st Cir. Certiorari denied.
846 OCTOBER TERM, 1972
October 10, 1972 409 U.S.
No. 71-1507. MoNROE, DBA NoRTH AREA REFUSE
Co. v. CussEN. C. A. 9th Cir. Certiorari denied. Reported
below: 454 F. 2d 1151.
No. 71-1515. RonovrcH v. VNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 455 F. 2d 1225.
No. 71-1516. HARRELL v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 458 F. 2d 655.
No. 71-1518. HANDY v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 454 F. 2d 885.
No. 71-1519. BROWN ET AL. v. ScOTr. C. A. 8th Cir.
Certiorari denied. Reported below: 454 F. 2d 693.
No. 71- 1520. KIRKPATRICK v. WrscoNSIN DEPARTMENT
OF NATURAL RESOURCES. Sup. Ct. Wis. Certiorari
denied. Reported below: 53 Wis. 2d 522, 192
N. W. 2d 856.
No. 71-1521. HEATH ET AL. v. UNITED STATES. C. A.
6th Cir. Certiorari denied.
No. 71-1524. LAY ET AL. v. CITY OF KINGSPORT, TENNESSEE,
ET AL. C. A. 6th Cir. Certiorari denied. Reported
below: 454 F. 2d 345.
No. 71-1526. EISENSTADT, SHERIFF v. BAKER; and
No. 71- 1679. BAKER v. ErsENSTADT, SHERIFF. C. A.
1st Cir. Certiorari denied. Reported below: 456 F. 2d
382.
No. 71-1527. FLORIDA MACHINE & FOUNDRY Co. ET
AL. V. NATIONAL LABOR RELATIONS BOARD. C. A. D. C.
Cir. Certiorari denied.
No. 71-1533. BELLO ET AL. v. UNITED STATES. C. A.
1st Cir. Certiorari denied.
No. 71-1557. NATIONAL SURETY CoRP. v. UNITED
STATES. Ct. Cl. Certiorari denied.
ORDERS 847
409 u. s. October 10, 1972
No. 71--1535. TRAVELERS INDEMNITY Co. v. ERICKSON'S,
INC. C. A. 5th Cir. Certiorari denied. Reported
below: 454 F. 2d 884.
No. 71-1540. CITIZENS ORGANIZED FOR THE PRESERVATION
OF OUR ENVIRONMENT ET AL. V. RICHFIELD BOARD
OF ZONING APPEALS ET AL. Sup. Ct. Ohio. Certiorari
denied.
No. 71-1551. RosNER v. DccHESS Music CORP. ET AL.
C. A. 9th Cir. Certiorari denied. Reported below: 458
F. 2d 1305.
No. 71-1552. HoovER ET AL. v. WYANDOTTE CHEMICALS
CORP. C. A. 5th Cir. Certiorari denied. Reported
below: 455 F. 2d 387.
No. 71-1555. JOHNSTON ET ux. v. BYRD. Sup. Ct.
Ala. Certiorari denied. Reported below: 288 Ala. 156,
258 So. 2d 866.
No. 71-1559. BAXTER ET AL. v. RAILWAY EXPRESS
AGENCY, INC., AKA REA EXPRESS, ET AL. C. A. 6th Cir.
Certiorari denied. Reported below: 455 F. 2d 693.
Xo. 71- 1561. HEYMAN ET AL. v. KLINE. C. A. 2d
Cir. Certiorari denied. Reported below: 456 F. 2d 123.
No. 71-1564. THOMPSON v. AMrs Er AL. Sup. Ct.
Kan. Certiorari denied. Reported below: 208 Kan. 658,
493 P. 2d 1259.
No. 71-1565. RAIMONDI v. UNITED STATES. C. A. 1st
Cir. Certiorari denied. Reported below: 459 F. 2d 639.
No. 71-1569. SINGH v. IMMIGRATION AND NATURALIZATION
SERVICE ET AL. C. A. 9th Cir. Certiorari denied.
Reported below: 456 F. 2d 1092.
No. 71- 1570. HOBBS v. CUSTOM FINANCE Co. ET AL.
C. A. 4th Cir. Certiorari denied.
848 OCTOBER TERM, 1972
October 10, 1972 409 U.S.
No. 71-1571. NoSSER ET AL. V. BRADLEY ET AL. C. A.
5th Cir. Certiorari denied. Reported below: 456 F. 2d
835.
No. 71-1575. LEVINE v. UNITED SrATES ET AL. C. A.
9th Cir. Certiorari denied.
No. 71 - 1576. ANDREA$ v. UNITED STATES. C. A. 8th
Cir. Certiorari denied. Reported below: 458 F. 2d 491.
No. 71-1578. BERGER v. COLUMBIA BROADCASTING SYSTEM,
INC. C. A. 5th Cir. Certiorari denied. Reported
below: 453 F. 2d 991.
No. 71-1580. CATALDO ET ux. v . UNIT.Im STATES.
C. A. 2d Cir. Certiorari denied.
No. 71 - 1589. SINGER Co. v. GREENE. C. A. 3d Cir.
Certiorari denied. Reported below: 461 F. 2d 242.
~o. 71-1590. HAMLETT v. CoNco, INc. C. A. 4th
Cir. Certiorari denied.
No. 71-1591. WASHINGTON URBAN LEAGl!E, INC. V.
PUBLIC SERVICE COMMISSION OF THE DISTRICT OF COLUMBIA
ET AL. Ct. App. D. C. Certiorari denied.
No. 71- 1593. ARONOW v. CALIFORNIA. App. Dept.,
Super. Ct. Cal., County of Santa Clara. Certiorari
denied.
No. 71-1594. SALVAGGIO v. UNITED STATES. C. A.
2d Cir. Certiorari denied.
No. 71-1595. MIDDLEBROOKS v. UNITED FlTATEs. C. A.
5th Cir. Certiorari denied. Reported below: 457 F.
2d 657.
No. 71-1599. CooK COUNTY COLLEGE TEACHERS
UNION , LOCAL 1600, AMERICAN FEDERATION OF TEACHERS,
AFL-CI-0, ET AL. v. BYRD ET AL. C. A. 7th Cir.
Certiorari denied. Reported below: 456 F. 2d 882.
ORDERS 849
409 U.S. OctobN 10, 1972
Xo. 71-1597. FEDERAL PowER COMMISSION v. GREENE
CouNTY PLANNING BOARD ET AL. C'. A. 2d Cir. Certiorari
denied. Reported below: 455 F. 2d 412.
No. 71-1600. UNION CAMP CORP. v. DYAL ET AL.
C. A. 5th Cir. Certiorari denied. Reported below: 460
F. 2d 678.
No. 71-1606. KARLIN v. AvIS ET AL. C. A. 2d Cir.
Certiorari denied. Reported below: 457 F. 2d 57.
No. 71- 1609. REGENTS O:F THE UNIVERSITY OF CALIFORNIA
v. KARST ET AL. Ct. App. Cal., 2d App. Dist.
Certiorari denied.
Xo. 71- 1610. MEHRTENS, U. S. DISTRICT JUDGE v.
PROTECTIVE COMMITTEE FOR INDEPENDENT STOCKHOLDF,
RS OF TMT TRAILER FERRY, INC., ET AL. C. A. 5th
Cir. Certiorari denied. Reported below: 457 F. 2d 100,
103, and 104.
No. 71-1611. W. R. BEAN & SoN, INc. v. NATIONAL
LABOR RELATIONS BOARD. C. A. 5th Cir. Certiorari
denied. Reported below: 450 F. 2d 93.
Xo. 71-1615. KNAPP ET u x. v. MIAMI MEMORIAL
PARK, INC., ET AL. Sup. Ct. Fla. Certiorari denied.
No. 71-1619. BAKER v. NEW YORK. Ct. App. N. Y.
Certiorari denied. Reported below: 30 X. Y. 2d 252,
282 N. E. 2d 614.
No. 71- 1621. EsTATE OF MONTGOMERY ET AL. v. CoMMISSIONER
OF INTERNAL REVENUE. C . A. 5th Cir. Certiorari
denied. Reported below: 458 F. 2d 616.
No. 71-1622. HOLLAND v. HOLLAND. Sup. Ct. Ohio.
Certiorari denied.
Xo. 71-1629. EDWAHDR v. UNITED STATES. C. A. 6th
Cir. Certiorari denied.
850 OCTOBER TERM, 1972
October 10, 1972 409 l'.. s.
No. 71-1630. KELLOGG Co. v. NATIONAL LABOR RELATIONS
BOARD. C. A. 6th Cir. Certiorari denied. Reported
below: 457 F. 2d 519.
Xo. 71-1632. CAST OPTICS CoRP. v. NATIONAL LABOR
RELATIONS BOARD ET AL. C. A. 3d Cir. Certiorari denied.
Reported below: 458 F. 2d 398.
No. 71-1640. BANK OF AMERICA XATIONAL TRUST &
SAVINGS ASSN. v. UNITED STATES. C. A. 9th Cir. Certiorari
denied. Reported below: 457 F. 2d 931.
No. 71-1643. SCHULTE ET AL. v. OKLAHOMA CITY.
Sup. Ct. Okla. Certiorari denied. Reported below: 494
P. 2d 638.
No. 71-1644. STEINER v. COMMISSIONER OF INTERNAL
REVENUE. C. A. D. C. Cir. Certiorari denied.
No. 71-1650. C & G BoAT Co., INC., ET AL. v. CRESCENT
RIVER PORT PILOTS ASSN. ET AL. C. A. 5th Cir.
Certiorari denied. Reported below: 456 F. 2d 1290.
No. 71-1653. McFARLAND v. KNAPP Er AL. C. A. 2d
Cir. Certiorari denied. Reported below: 457 F. 2d 881.
No. 71-1657. ScoTT v. MARYLAND. Ct. App. Md.
Certiorari denied.
No. 71- 1660. THOMPSON ET vrn v. BOARD OF CoMMISSIONERS
oF THE OAK BROOK PARK DrsTRICT OF Du-
PAGE COUNTY ET AL. App. Ct. Ill., 2d Dist. Certiorari
denied.
No. 71-1661. MOVEABLE OFFSHORE, INc. v. HALL.
C. A. 5th Cir. Certiorari denied. Reported below: 455
F. 2d 633.
No. 71-1662. ATLANTIC-RrcHFIELD Co. v. CHERRY
ET AL. C. A. 5th Cir. Certiorari denied. Reported
below: 456 F. 2d 1310.
ORDERS 851
409 U.S. October 10, 1972
No. 71-1659. MILDER v. UNITED STATES. C. A. 8th
Cir. Certiorari denied.
No. 71-1663. MANFREDONIA v. UNITED STATES. C. A.
2d Cir. Certiorari denied. Reported below: 459 F. 2d
1392.
No. 71-1667. LovE v. UNITED STATES. C. A. 6th
Cir. Certiorari denied. Reported below: 460 F. 2d 310.
No. 71-1670. BERTRAM YACHT SALES, INc. v. MoRoN
ET AL. C. A. 5th Cir. Certiorari denied. Reported
below: 458 F. 2d 500.
No. 71-1671. KANSAS CITY v. WEBB ET AL. Sup.
Ct. Mo. Certiorari denied. Reported below: 484 S. W.
2d 817.
No. 71-1673. SAILOR ET AL. v. UNITED STATES. C. A.
6th Cir. Certiorari denied.
No. 71-1677. TUCKER v. BITONTI. Sup. Ct. Conn.
Certiorari denied. Reported below: 162 Conn. 626, 295
A. 2d 545-.
No. 71-1678. PRIGNANO v. ILLINOIS. App. Ct. Ill.,
1st Dist. Certiorari denied. Reported below: 2 Ill. App.
3d 1063, 278 N. E. 2d 128.
No. 71-1682. DENNETT v. UNITED STATES ET AL.
C. A. 10th Cir. Certiorari denied.
No. 71-1685. UNITED BROTHERHOOD OF CARPENTERS
& JOINERS OF AMERICA, LOCAL 169, ET AL. V. UNITED
STATES. C. A. 7th Cir. Certiorari denied. Reported
below: 457 F. 2d 210.
No. 71-1686. HARDY, AcTING WARDEN v. VurTcH.
C. A. 4th Cir. Certiorari denied.
No. 71-1689. MUIRHEAD v. SPANN. Sup. Ct. Miss.
Certiorari denied. Reported below: 259 So. 2d 698.
852 OCTOBER TERM, 1972
October 10, 1972 409U. S.
No. 71-1687. EAST TEXAS STEEL CASTINGS Co., INc.
v. NATIONAL LABOR RELATIONS BOARD. C. A. 5th Cir.
Certiorarj denied. Reported below: 457 F. 2d 879.
No. 71-1688. MUIRHEAD v. HINDS CouNTY DEMOCRATIC
EXECUTIVE COMMITTEE ET AL. Sup. Ct. Miss.
Certiorari denied. Reported below: 259 So. 2d 692.
No. 71-1692. ANNORENO ET AL. V. UNITED STATES.
C. A. 7th Cir. Certiorari denied. Reported below: 460
F. 2d 1303.
No. 71-1693. IRWIN v. EAGLE STAR INSURANCE Co.,
LTD. C. A. 5th Cir. Certiorari denied. Reported below:
455 F. 2d 827.
No. 71-1696. BARTON v. OREGON. Sup. Ct. Ore. Certiorari
denied. Reported below: See 8 Ore. App. 186,
492 P. 2d 828.
No. 71-1697. PACIFIC MARITIME ASSN. V. NATIONAL
LABOR RELATIONS BOARD ET AL. C. A. 9th Cir. Certiorari
denied. Reported below: 457 F. 2d 572.
No. 71-1703. KosHER v. WASHINGTON STATE BAR
AssN. Sup. Ct. Wash. Certiorari denied.
No. 71-1704. BoRROWDALE ET AL. v. BoARD OF JuNIOR
COLLEGE DISTRICT No. 515 ET AL. Sup. Ct. Ill. Certiorari
denied. Reported below: See 3 Ill. App. 3d 1006,
279 N. E. 2d 754.
No. 71-1706. SHELTON v. TENNESSEE. Ct. Crim.
App. Tenn. Certiorari denjed. Reported below: -
Tenn. Cr. App.-, 479 S. W. 2d 817.
No. 71-1707. CouNTY COLLECTOR OF CooK COUNTY
Er AL. v. NoRTHWESTERN UNIVERSITY. Sup. Ct. Ill.
Certiorari denied. Reported below: 51 Ill. 2d 131, 281
N. E. 2d 334.
ORDERS 853
409 U.S. October 10, 1972
No. 71-1708. BunZANOSKI ET AL. v. SABOLSKY ET AL.
C. A. 3d Cir. Certiorari denied. Reported below: 457
F. 2d 1245.
No. 71-5610. ROLLINS ET AL. v. OHIO. Sup. Ct. Ohio.
Certiorari denied.
No. 71-5769. RonRIGUEZ v. OLSON ET AL. C. A. 7th
Cir. Certiorari denied.
Xo. 71-6127. OSBORNE ET AL. v. NoBLES. Ct. App.
Ga. Certiorari denied. Reported below: 124 Ga. App.
454, 184 S. E. 2d 207.
No. 71-6155. JOSHUA v. MICHIGAN. Sup. Ct. Mich.
Certiorari denied.
No. 71-6226. DESSllS v. PENNSYLVANIA. C. A. 3d
Cir. Certiorari denied. Reported below: 452 F. 2d 557.
Xo. 71-6243. A.Mos v. McCARTHY. C. A. 9th Cir.
Certiorari denied.
No. 71-6260. MACLEOD v. SLAYTON, PENITENTIARY
SGPERINTENDENT. C. A. 4th C'ir. Certiorari denied.
No. 71-6301. ENRIQUEZ v. BETO, CORRECTIONS DIRECTOR.
C. A. 5th Cir. Certiorari denied.
Xo. 71-6309. RALLS v. M1ssouR1. K. C. Ct. App.
Mo. Certiorari denied. Reported below: 4 72 S. W. 2d
642.
No. 71-6321. THOMAS v. BEro, CoRRECTIONS DmEc-
TOR. C. A. 5th Cir. Certiorari denied. Reported below:
452 F. 2d 1072.
Xo. 71-6329. EsTEs v. 1'"°0RTHCRoss ET AL. C. A. 6th
Cir. Certiorari denied.
No. 71-6349. \VEAVER v. TEXAS. C. A. 5th Cir. Certiorari
denied. Reported below: 453 F. 2d 1226.
854 OCTOBER TERM, 1972
October 10, 1972 409 u. s.
No. 71-6368. PHILLIPS v. PITCHEss, SHERIFF. C. A.
9th Cir. Certiorari denied. Reported below: 451 F.
2d 913.
No. 71-6370. FERGUSON v. CARDWELL, WARDEN. C. A.
6th Cir. Certiorari denied. Reported below: 452 F. 2d
1011.
No. 71-6380. ALLERS v. UNITED STATES. C. A. 8th
Cir. Certiorari denied. Reported below: 453 F. 2d 1244.
No. 71-6390. HARDING V. WARDEN, MARYLAND PENITENTIARY.
C. A. 4th Cir. Certiorari denied.
No. 71-6396. HowARD v. SIGLER, WARDEN. C. A.
8th Cir. Certiorari denied. Reported below: 454 F.
2d 115.
No. 71-6407. THOMAS v. CARDWELL, WARDEN. C. A.
6th Cir. Certiorari denied.
No. 71-6412. WARD v. CALIFORNIA. Ct. App. Cal.,
5th App. Dist. Certiorari denied.
Xo. 71-6413. WILSON, AKA GRIFFIN v. GAFFNEY,
WARDEN, ET AL. C. A. 10th Cir. Certiorari denied.
Reported below: 454 F. 2d 142.
No. 71-6414. HUMPHREY v. UNITED STATES. C. A.
5th Cir. Certiorari denied. Reported below: 456 F.
2d 683.
No. 71-6417. JACKSON v. CALIFORNIA. Ct. App. Cal.,
1st App. Dist. Certiorari denied.
No. 71-6420. CRANFORD v. NEw MEXICO. Sup. Ct.
N. M. Certiorari denied. Reported below: 83 ~- M.
294, 491 P. 2d 511.
No. 71-6430. TOWNSEND v. TWOMEY, WARDEN. C. A.
7th Cir. Certiorari denied. Reported below: 452 F.
2d 350.
ORDERS 855
409 lT. S. Ortob<>r 10, 1972
No. 71-6437. DAVIS v. MISSISSIPPI. Sup. Ct. Miss.
Certiorari denied. Reported below: 255 So. 2d 916.
No. 71- 6441. ADAMS v. \YAINWRIGHT, CORRECTIONS
DIRECTOR. C'. A. 5th Cir. Certiorari denied. Rf'portcd
below: 453 F. 2d 416.
Xo. 71 - 6457. GAITO v. ScHNl'PP ET AL. C. A. 3d
Cir. Certiorari denied.
No. 71-6461. CHRISMAN v. FIELD, MEN'S COLONY
SrPERTNTENDENT, ET AL. C'. A. 9th Cir. Certiorari
denied. Reported below: 448 F. 2d 175.
No. 71 - 6464. MuRRAY v. CITY OF CrNCINNATI. Sup.
Ct. Ohio. Certiorari denied.
No. 71 - 6466. LAwu:ss v. MARYLAND. Ct. Sp. App.
Md. Certiorari denied. Reported below: 13 Md. App.
220, 283 A. 2d 160.
No. 71- 6486. MAYS v. PENNSYLVANIA. C. A. 3d Cir.
Certiorari denied.
No. 71- 6487. MEDINA v. UNITED STATES. C. A. 3d
Cir. Certiorari denied. Reported below: 455 F. 2d 461.
Ko. 71- 6495. C'ALDRONE v. GAFFNEY, WARDEN. C. A.
10th Cir. C'Prtiorari denied.
No. 71-6496. BAKER v. GAFFNEY, \VARDEN. C. A.
10th Cir. Certiorari denied.
No. 71-6503. EcKF.RT V. CLERK'S OFFICE OF THE u. s.
DISTRICT C'Ol'RT. C. A. 3d Cir. Certiorari denied.
Xo. 71-6506. DoYLE v. DoYLK Ct. Civ. App. Tex.,
9th Sup. Jud. Dist. Certiorari denied. Reported below:
482 S. W. 2d 285.
Xo. 71-6509. HIGGINS v. ILLINOIS. Sup. Ct. Ill.
Certiorari dt>nied. Reported below: 50 Ill. 2d 221, 278
X. E. 2d 68.
856 OCTOBER TERJ\J, 1972
October 10, 1972 409 u. s.
No. 71-6511. RHODES v. HAYNES, WARDEN. C. A.
4th Cir. Certiorari denied.
No. 71-6521. SAILER v. CRAVEN, WARDEN. Sup. Ct.
Cal. Certiorari denied.
No. 71- 6523. JACOBS v. PENNSYLVANIA. Sup. Ct. Pa.
Certiorari denied. Reported below: 445 Pa. 364, 284
A. 2d 717.
No. 71-6524. KIRK v. UNITED STATES. C. A. 4th Cir.
Certiorari denied.
No. 71-6529. ARCHER v. UNITED STATES. C. A. 10th
Cir. Certiorari denied. Reported below: 455 F. 2d 193.
No. 71-6532. FORRESTER v. UNITED STATES. C. A.
5th Cir. Certiorari denied. Reported below: 456 F. 2d
905.
No. 71-6537. JOHNSON v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 455 F. 2d 932.
No. 71-6540. GRENE v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 455 F. 2d 376.
No. 71- 6543. HAMPTON v. UNITED STATES. C. A. 7th
Cir. Certiorari denied. Reported below: 457 F. 2d 299.
No. 71-6546. NUNLEY v. UNITED STATES. C. A. 10th
Cir. Certiorari denied.
No. 71-6547. LEwrs v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 457 F. 2d 502.
No. 71-6549. TAYLOR v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 456 F. 2d 1101.
No. 71-6552. ATKIN, AKA ATKINSON v. UNITED
STATES. C. A. D. C. Cir. Certiorari denied.
No. 71-6555. ROBINS v. UNrrED STATES. C. A. 8th
Cir. Certiorari denied. Reported below: 453 F. 2d 1374.
ORDERS 857
409 U.S. October 10, 1972
No. 71-6551. SKJ,;ELS v. RrcHARDSON, SECRETARY OF
HEALTH, EDUCATION, AND ·WELFARE. C. A. 5th Cir.
Certiorari denied. Reported below: 453 F. 2d 882.
No. 71-6556. TELIO v. ILLINOIS. App. Ct. Ill., 1st
Dist. Certiorari denied. Reported below: 1 Ill. App.
3d 526, 275 N. E. 2d 222.
Xo. 71-6557. FLOURNOY v. ILLINOIS. App. Ct. Ill.,
1st Dist. Certiorari denied. Reported below: 1 Ill.
App. 3d 918, 275 N. E. 2d 289.
No. 71-6558. WoRKMAN v. UNITED STATES. C. A.
9th Cir. Certiorari denied. Reported below: 454 F.
2d 1124.
Xo. 71-6565. MORAN v. UNITED STATES. C. A. 1st
Cir. Certiorari denied.
No. 71-6567. MANNS v. ILLINOIS. App. Ct. Ill., 5th
Dist. Certiorari denied. Reported below: 1 Ill. App.
3d 871, 274 N. E. 2d 194.
No. 71-6569. LOWTHER v. UNITED STATES. C. A.
10th Cir. Certiorari denied. Reported below: 455 F.
2d 657.
No. 71-6572. WILLIAMS v. VNITED STATES. C. A.
9th Cir. Certiorari denied. Reported below: 455 F.
2d 361.
No. 71-6575. McQUEEN v. UNITED STATES. C. A.
3d Cir. Certiorari denied. Reported below: 458 F. 2d
1049.
Xo. 71- 6576. HAVELOCK v. UNITED STATES. C. A.
10th Cir. Certiorari denied.
No. 71-6583. LUALLEN v. XE1L, \VARDEN. C. A.
6th Cir. Certiorari denied. Reported below: 453 F.
2d 428.
858 OCTOBER TERM, 1972
October 10, 1972 409 U.S.
No. 71--6580. GrnBONEY v. UNITED STATES. C. A.
4th Cir. Certiorari denied.
No. 71-6582. GROOMS v. UNITED STATES. C . A. 7th
Cir. Certiorari denied. Reported below: 454 F. 2d 1308.
No. 71-6584. JOHNSON v. UNITED STATES. C. A. 9th
Cir. Certiorari denied.
No. 71-6585. BucHOWIECKI-KORTKIEwicz v. IMMIGRATION
AND NATURALIZATION SERVICE. C. A. 9th Cir.
Certiorari denied. Reported below: 455 F. 2d 972.
No. 71-6586. CHITWOOD v. UNITED STATES. C. A.
6th Cir. Certiorari denied. Reported below: 457 F.
2d 676.
No. 71-6587. BREDY v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 455 F. 2d 1382.
No. 71-6588. RANDAZZO v. UNITED STATES. C. A.
5th Cir. Certiorari denied. Reported below: 4.57 F.
2d 1058.
No. 71-6594. TYLER v. PARKS. C. A. 8th Cir. Certiorari
denied.
No. 71-6610. VALENTINE v. UNITED STATES. C. A.
4th Cir. Certiorari denied.
No. 71-6611. CARTER v. UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF SOUTH CAROLINA ET AL.
C. A. 4th Cir. Certiorari denied.
No. 71-6612. EcKERT v. SENATE OF THE UNITED
STATES ET AL. C. A. 3d Cir. Certiorari denied.
No. 71-6614. ESTRADA v. UNITED STATES. C. A. 7th
Cir. Certiorari denied. Reported below: 457 F. 2d 255.
No. 71-6615. BEHNING v. ILLINOIS. C. A. 7th Cir.
Certiorari denied.
ORDERS 859
409 U.S. October 10, 1972
No. 71-6619. THOMAS v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 455 F. 2d
469.
No. 71-6629. HENKEL v. UNITED STATES. C. A. 3d
Cir. Certiorari denied. Reported below: 451 F. 2d 777.
No. 71-6631. HELTON v. FLORIDA. Dist. Ct. App.
Fla., 1st Dist. Certiorari denied. Reported below: 257
So. 2d 917.
No. 71-6634. BEANE v. RICHARDSON, SECRETARY OF
HEALTH, EDUCATION, AND WELFARE. C. A. 9th Cir.
Certiorari denied. Reported below: 457 F. 2d 758.
No. 71-6637. JOHNSON v. MrssouRr. Sup. Ct. Mo.
Certiorari denied. Reported below: 476 S. \V. 2d .516.
No. 71-6639. Sc10RTINO v. UNITED STATES. C. A.
2d Cir. Certiorari denied. Reported below: 452 F. 2d
1135.
No. 71--6640. MADISON v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. Reported below: 458 F. 2d 974.
Xo. 71-6641. WYSOCKI v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 457 F. 2d 1155.
No. 71-6646. GUERIN v. CALIFORNIA. Ct. App. Cal.,
2d App. Dist. Certiorari denied. Reported below: 22
Cal. App. 3d 775, 99 Cal. Rptr. 573.
No. 71-6648. GONZALEZ v. NEw YoRK. Ct. App.
N. Y. Certiorari denied. Reported below: 30 N. Y.
2d 28, 280 N. E. 2d 882.
No. 71-6650. GooDWIN v. UNITED STATES. C. A. 10th
Cir. Certiorari denied. Reported below: 455 F. 2d 710.
No. 71-6651. COPELAND v. UNITED STATES. C. A. 6th
Cir. Certiorari denied.
860 OCTOBER TERM, 1972
October 10, 1972 409 U.S.
No. 71-6653. NuNN v. Cox, ACTING WARDEN. C. A.
6th Cir. Certiorari denied.
No. 71-6654. STEVENSON v. MONTANYE, CORRECTIONAL
SUPERINTENDENT. C. A. 2d Cir. Certiorari
denied.
No. 71-6656. MACHADO v. UNITED STATES. C. A.
9th Cir. Certiorari denied. Reported below: 457 F.
2d 1372.
No. 71-6657. SANDERS v. UNITED STATES. C. A. 3d
Cir. Certiorari denied. Reported below: 459 F. 2d 86.
No. 71-6659. KoRCZAK v. DIVISION OF EMPLOYMENT,
COLORADO DEPARTMENT OF LABOR AND EMPLOYMENT, ET
AL. Sup. Ct. Colo. Certiorari denied.
No. 71-6660. PACK, AKA PARKER v. UNITED STATES.
C. A. 4th Cir. Certiorari denied.
No. 71-6662. CARROLL v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 452 F. 2d 1199.
No. 71-6663. HARRIS v. ILLINOIS. C. A. 7th Cir.
Certiorari denied. Reported below: 457 F. 2d 191.
Xo. 71- 6664. VILLAUERDA v. UNITED STATES. C. A.
2d Cir. Certiorari denied.
No. 71-6666. SCHLANGER v. SEAMANS, SECRETARY OF
THE Arn FORCE, ET AL. C. A. D. C. Cir. Certiorari
denied.
No. 71- 6667. McDONNELL v. UNITED STATES. C. A.
8th Cir. Certiorari denied. Reported below: 457 F.
2d 1049.
No. 71- 6669. SIDDLE v. OHIO. Sup. Ct. Ohio. Certiorari
denied. Reported below: 28 Ohio St. 2d 135,
276 N. E. 2d 641.
ORDERS 861
,109 u. s. Octobn 10, 1972
No. 71-6665. RAY v. BRIERLEY, WARDEN. C. A. 3d
Cir. Certiorari denied.
No. 71-6671. BRADLEY v. CARDWELL, WARDEN. C. A.
6th Cir. Certiorari denied.
No. 71-6672. MATTHEWS v. FLORIDA-VANDERBILT DEVELOPMENT
CORP. ET AL. C. A. 5th Cir. Certiorari
denied. Reported below: 454 F. 2d 194.
No. 71-6673. GOLDEN v. HENDERSON, WARDEN. C. A.
5th Cir. Certiorari denied. Reported below: 456 F.
2d 376.
No. 71-6674. LIPSCOMB v. UNITED STATES BoARD
OF PAROLE. C. A. 5th Cir. Certiorari denied.
No. 71-6675. COPP v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 459 F. 2d 73.
No. 71-6676. MATHERS v. RHAY, PENITENTIARY Su-
PERINTENDENT. C. A. 9th Cir. Certiorari denied.
No. 71-6677. ALLAHD v. UNITED STATES. C. A. 3d
Cir. Certiorari denied. Reported below: 458 F. 2d
1136.
No. 71-6678. YEATON v. WEISENBURG. C. A. 9th
Cir. Certiorari denied. Reported below: 457 F. 2d 803.
N"o. 71-6680. FERGUSON v. VIRGINIA. Sup. Ct. Va.
Certiorari denied. Reported below: 212 Va. 745, 187
S. E. 2d 189.
No. 71-6681. COSTANZA v. NEW JERSEY. C. A. 3d
Cir. Certiorari denied.
No. 71-6683. SAILER v. CALIFOHNIA ADULT AUTHORITY.
Ct. App. Cal., 3d App. Dist. Certiorari denied.
No. 71-6685. HART v. UNITED STATES. C. A. 10th
Cir. Certiorari denied. Reported below: 457 F. 2d 1087.
862 OCTOBER TEmvI, 1972
October 10, 1972 409 U.S.
No. 71-6684. BROWN v. WISCONSIN STATE DEPARTMENT
OF PUBLIC WELFARE. C. A. 7th Cir. Certiorari
denied. Reported below: 457 F. 2d 257.
No. 71-6686. ELLISON v. OKLAHOMA. Ct. Crim. App.
Okla. Certiorari denied. Reported below: 493 P. 2d
837.
No. 71-6688. LARA v. HARRIS, WARDEN, ET AL. C. A.
10th Cir. Certiorari denied.
:Xo. 71-6691. ZIMMER v. GAFFNEY, WARDEN. C. A.
10th Cir. Certiorari denied.
No. 71-6692. CARTER v. ROBERTS, U. S. DISTRICT
JUDGE. C. A. 5th Cir. Certiorari denied.
No. 71-6695. RANDALL v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 454 F. 2d
1132.
No. 71-6696. PERWIN v. NEw JERSEY. Sup. Ct. N. J.
Certiorari denied. Reported below: 60 N. J. 138, 286
A. 2d 511.
No. 71-6697. BATISTA v. UNITED STATES; and
No. 71-6715. LOPEZ v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 453 F. 2d 749.
No. 71-6699. ALBIDREZ v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 456 F. 2d 1288.
No. 71-6701. HARRISON v. UNITED STATES. C. A.
2d Cir. Certiorari denied. Reported below: 460 F.
2d 270.
No. 71-6702. TARLTON v. WoLFE. C. A. 5th Cir.
Certiorari denied. Reported below: 457 F. 2d 512.
~o. 71-6704. INGRAHAM v. FLORIDA. Dist. Ct. App.
Fla., 3d Dist. Certiorari denied. Reported below: 256
So. 2d 521.
ORDER~
-109 l 1. S. Ortohrr 10, 19i2
Xo. 71-6703. JOHNSON V. TWOMEY, WARDEN. C'. A.
7th Cir. Certiorari denied.
Xo. 71-6705. LAMONGE v. PNITED STATES. C. A.
6th Cir. Certiorari denied. Reported below: 458 F.
2d 197.
Ko. 71-6706. MIDDLETON v. l'NITED STATES. C. A.
5th Cir. Certiorari denied. Reported below: 458 F.
2d 482.
No. 71-6707. Cox v. GAFF~EY , WARDEN. C. A. 10th
Cir. Certiorari denied. Reported below: 459 F. 2d 50.
No. 71-6708. CIOTTI v. UNITED STATES. C. A. 3d
Cir. Certiorari denied. Reported below: 457 F. 2d 1027.
Xo. 71-6709. KAYE v. l'NITED STATES. C. A. 9th Cir.
Certiorari denied. Reported below: 457 F. 2d 878.
Ko. 71-6710. BLACKWOOD v. l:NITED STATES. C. A.
2d Cir. Certiorari denied. Reported below: 456 F. 2d
526.
No. 71 6712. ENGLE, AKA TENNANT v. UNITED STATES.
C. A. 6th Cir. Certiorari denied. Reported below: 458
F. 2d 1021.
No. 71 - 6713. MITMAN v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 459 F. 2d 451.
!'\o. 71-6714. RIVERA v. "UNITED STATES. C. A. 5th
Cir. Certiorari denied.
No. 71-6716. TORRES v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 457 F. 2d 810.
Xo. 71-6717. ROBINSON v. l'NITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 457 F. 2d 1304.
No. 71-6718. CLEAVES v. PARKER. C. A. 6th Cir.
Certiorari denied.
864 OCTOBER TERM, 1972
October 10, 1972 409U. S.
No. 71-6719. BROWN v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 459 F. 2d 319.
No. 71-6722. MARTIN v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 459 F. 2d 1009.
No. 71- 6723. CHAIS-SHULMAN v. BANK OF AMERICA
ThusT No. 54212. C. A. 9th Cir. Certiorari denied.
Reported below: 456 F. 2d 253.
No. 71-6725. SANCHEZ v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. Reported below: 459 F. 2d 100.
No. 71- 6726. LoBON V. GOVERNMENT OF THE CANAL
ZONE; and
No. 71 - 6727. LOBON V. GOVERNMENT OF THE CANAL
ZONE. C. A. 5th Cir. Certiorari denied. Reported
below: 457 F. 2d 511.
No. 71-6728. BAILEY v. UNITED STATES. C. A. D. C.
Cir. Certiorari denied.
No. 71- 6729. WEAVER V. CALIFORNIA DEPARTMENT
OF CORRECTIONS ET AL. C. A. 9th Cir. Certiorari denied.
No. 71-6730. WILKES v. UNITED STATES. C. A. 9th
Cir. Certiorari denied.
No. 71- 6731. DrxoN v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 460 F. 2d
309.
No. 71-6733. GALI v. CALIFORNIA. Ct. App. Cal.,
1st App. Dist. Certiorari denied.
No. 71-6735. KENNEDY, AKA THOMAS, ET AL. v.
UNITED STATES. C. A. 10th Cir. Certiorari denied.
Reported below: 457 F. 2d 63.
No. 71-6736. DAVIS v. BETO, CORRECTIONS DIRECTOR.
C. A. 5th Cir. Certiorari denied. Reported below:
457 F. 2d 511.
ORDERS 86,5
109 u. s. October 10, 1972
No. 71-6737. DONOHOE v. UNITED STATES. C. A.
10th Cir. Certiorari denied. Reported below: 458 F.
2d 237.
No. 71-6738. DENNIS v. UNITED STATES. C. A. 6th
Cir. Certiorari denied.
No. 71- 6744. RODRIGUEZ v. UNITED STATES. C. A.
9th Cir. Certiorari denied. Reported below: 459 F.
2d 983.
No. 71-6745. McCRAY v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 458 F. 2d 389.
No. 71-6746. EvANS ET AL. v. UNITED STATES. C. A.
4th Cir. Certiorari denied. Reported below: 459 F.
2d 481.
No. 71-6748. CASTILLO v. UNITED STATES. C. A. 4th
Cir. Certiorari denied.
:'.'l'o. 71-6749. PARKS v. UNITED STATES. C. A. 8th
Cir. Certiorari denied.
No. 71-6750. HAMMONDS v. M1ssouRr. C. A. 8th
Cir. Certiorari denied.
No. 71-6751. DAWN, DBA GAME Co. v. STERLING
DRUG, INC., ET AL. Ct. App. Cal., 2d App. Dist. Certiorari
denied.
No. 71-6753. ScoGIN v. UNITED STATES. C. A. 8th
Cir. Certiorari denied. Reported below: 459 F. 2d
182.
No. 71-6754. VAN PELT v. D1CosrMO. C. A. 9th
Cir. Certiorari denied.
No. 71-6756. CUNNINGHAM v. A. S. ABELL Co. Ct.
App. Md. Certiorari denied. Reported below: 264
Md. 649, 288 A. 2d 157.
866 OCTOBER TER:VI, 1972
October 10, 1972 409 U.S.
No. 71-6755. MORLAND v. UNITED STATES. C. A.
10th Cir. Certiorari denied.
No. 71-6761. ScoTT v. UNITED STATES. C. A. 10th
Cir. Certiorari denied. Reported belo,v: 457 F. 2d 848.
No. 71-6762. CARNATHAN v. TEXAS. Ct. Crim. App.
Tex. Certiorari denied.
No. 71-6766. HoRD v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 459 F. 2d 1003.
No. 71-6771. MITCHELL v. UNITED STATES. C. A.
6th Cir. Certiorari denied. Reported below: 457 F.
2d 513.
No. 71-6772. LOPEZ v. UNITED STATES. C. A. 2d Cir.
Certiorari denied. Reported below: 457 F. 2d 396.
No. 71-6775. BvRDETrn v. SHORE ET AL. C. A. 6th
Cir. Certiorari denied.
No. 71-6776. JORDAN v. FLORIDA. Dist. Ct. App. Fla.,
2d Dist. Certiorari denied.
No. 71-6779. LEwrs v. CALIFORNIA. Ct. App. Cal.,
1st App. Dist. Certiorari denied.
No. 71-6780. MANSOUR v. NEw JERSEY. Sup. Ct.
N. J. Certiorari denied.
No. 71-6782. ELLIS v. UNITED STATES. C. A. 2d Cir.
Certiorari denied. Reported below: 461 F. 2d 962.
No. 71-6783. RYAN v. UNITED STATES. C. A. 8th Cir.
Certiorari denied.
No. 71-6784. PENDERGRAFT v. TURNER ET AL. C. A.
4th Cir. Certiorari denied.
No. 71-6785. KNUDSEN v. PENNSYLVANIA. Sup. Ct.
Pa. Certiorari denied. Reported below: 443 Pa. 412,
278 A. 2d 881.
ORDERS 867
--109 U.S. October 10, 1972
No. 71-6786. CRow v. EYMAN, WARDEN, ETAL. C. A.
9th Cir. Certiorari denied. Reported below: 459 F. 2d
24.
No. 71-6787. BRccE v. UNITED STATES. C. A. 4th
Cir. Certiorari denied. Reported below: 458 F. 2d 511.
No. 71-6788. BROWNE v. COl\IMISSIONER OF INTERNAL
REVENUE. C. A. 5th Cir. Certiorari denied. Reported
below: 456 F. 2d 799.
No. 71-6792. GARDNER v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 454 F. 2d 534.
No. 71-6793. KRIKMANIS v. MONTGOMERY ET AL.
C. A. 1st Cir. Certiorari denied.
No. 71-6794. BoYD v. UNITED STATES. C. A. 3d Cir.
Certiorari denied. Reported below: 457 F. 2d 1358.
~fo. 71-6795. TATE v. l:NITED STATES. C. A. 6th Cir.
Certiorari denied.
No. 71-6796. SHAFFER v. PENNSYLVANIA. Sup. Ct.
Pa. Certiorari denied. Reported below: 447 Pa. 91,288
A. 2d 727.
No. 71- 6797. CURTIS v. NATIONAL LABOR RELATIONS
BOARD. C. A. 2d Cir. Certiorari denied.
No. 71-6798. ARD ET AL. v. l;mrED STATES. C. A. 4th
Cir. Certiorari denied. Reported below: 458 F. 2d 36.
No. 71-6801. QUINN v. GAGNON, WARDEN. C. A. 7th
Cir. Certiorari denied.
~O. 71-6802. JONES V. FIELD, MEN'S COLONY SUPERINTENDENT.
C. A. 9th Cir. Certiorari denied.
No. 71-6804. SANTANA v. UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT OF XEW YORK.
C. A. 2d Cir. Certiorari denied.
868 OCTOBER TERM, 1972
October 10, 1972 409 U.S.
No. 71-6805. LEWIS v. OHIO ET AL. Sup. Ct. OhiQ.
Certiorari denied.
No. 71-6806. RosENBERG v. UNITED STATES. C. A.
5th Cir. Certiorari denied. Reported below: 458 F.
2d 1183.
No. 71-6807. CoLE v. UNITED SrATES; and
No. 71-6808. COLE v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 457 F. 2d 1141.
No. 71-6809. MORTON v. HAYNES, TRAINING CENTER
SUPERINTENDENT. C. A. 8th Cir. Certiorari denied.
No. 71-6810. BATTS v. CALIFORNIA. Sup. Ct. Cal.
Certiorari denied.
No. 71 - 6811. Ross v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 458 F. 2d
1144.
No. 71-6813. FERMIN V. RICHARDSON , SECRETARY OF
HEALTH, EDUCATION, AND WELFARE. C. A. D. C. Cir.
Certiorari denied. Reported below: 149 U. S. App. D. C.
122, 461 F. 2d 1208.
No. 71-6814. LEBRUN v . CUPP, WARDEN. C. A. 9th
Cir. Certiorari denied.
No. 71- 6815. BowERS ET AL. v. UNITED STATES. C. A.
5th Cir. Certiorari denied. Reported below: 458 F. 2d
1()45.
No. 71-6816. EARP v. CuPP, WARDEN. C. A. 9th
Cir. Certiorari denied. Reported below: 453 F. 2d 378.
No. 71-6817. DORROUGH v. UNITED STATES. C. A.
5th Cir. Certiorari denied.
No. 71- 6820.
C. A. 10th Cir.
459 F. 2d 297.
STIDHAM ET AL. V. UNITED STATES.
Certiorari denied. Reported below:
ORDERS 869
409U.S. October 10, 1972
No. 71-6818. BARBER v. UNITED STATES. C. A. 10th
Cir. Certiorari denied. Reported below: 456 F. 2d 164.
No. 71-6819. NELSON V. BUTLER, PRISON SUPERINTENDENT.
C. A. 2d Cir. Certiorari denied.
No. 71-6821. KNIGHT v. UNITED STATES. C. A. 1st
Cir. Certiorari denied.
No. 71-6822. ALLEN v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 457 F. 2d 1361.
No. 71-6823. SMITH v. UNITED STATES. C. A. 8th
Cir. Certiorari denied. Reported below: 460 F. 2d
1236.
No. 71-6828. LAuCHLI v. UNITED STATES ETAL. C. A.
7th Cir. Certiorari denied.
No. 71-6829. GAUTHIER v. MASSACHUSETTS. Sup.
Jud. Ct. Mass. Certiorari denied. Reported below:
- Mass.-, 280 N. E. 2d 426.
No. 71-6831. CAGLE v. HARRIS, WARDEN. C. A. 10th
Cir. Certiorari denied.
No. 71-6832. HALL v. SNYDER ET AL. C. A. 7th Cir.
Certiorari denied.
No. 71-6833. SINGAL v. Two UNKNOWN NAMED PATROLMEN
Er AL. C. A. 6th Cir. Certiorari denied.
No. 71-6834. GREER v. UNITED STATES. C. A. 6th
Cir. Certiorari denied.
No. 71-6835. KASEY ET UX. V. COMMISSIONER OF INTERNAL
REVENUE. C. A. 9th Cir. Certiorari denied.
Reported below: 457 F. 2d 369.
No. 71-6838. HOLMES ET AL. v. LAIRD, SECRETARY OF
DEFENSE, ET AL. C. A. D. C. Cir. Certiorari denied.
Reported below: 148 U.S. App. D. C. 187,459 F. 2d 1211.
870 OCTOBER TERM, 1972
October 10, 1972 409 U.S.
No. 71-6837. DORSEY v. UNITED STATES. C. A. 3d
Cir. Certiorari denied. Reported below: 462 F. 2d 361.
No. 71-6842. MALLORY v. UNITED STATES. C. A.
10th Cir. Certiorari denied. Reported below: 460 F. 2d
243.
No. 71-6843. DOYAL v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 456 F. 2d 1292.
No. 71-6845. THOMAS v. UNITED STATES. C. A. D. C.
Cir. Certiorari denied. Reported below: 149 U.S. App.
D. C. 368, 463 F. 2d 314.
No. 71-6846. VARNELL v. BETO, CORRECTIONS DIRECTOR.
C. A. 5th Cir. Certiorari denied.
No. 71-6847. MARTIN v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 453 F. 2d 1370.
No. 71-6848. PARKER v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 457 F. 2d 512.
No. 71- 6849. JACKSON v. CONNECTICUT. Sup. Ct.
Conn. Certiorari denied. Reported below: 162 Conn.
440,294 A. 2d 517.
No. 71-6850. BROWN ET AL. v. NoRTH CAROLINA.
Sup. Ct. N. C. Certiorari denied. Reported below: 280
N. C. 588, 187 S. E. 2d 85.
No. 71- 6851. HEBAH, ADMINISTRATRIX v. UNITED
STATES. Ct. Cl. Certiorari denied. Reported below:
197 Ct. Cl. 729, 456 F. 2d 696.
No. 71-6855. GRANDI, AKA RICOLLET V. UNITED
STATES. C. A. 2d Cir. Certiorari denied. Reported below:
424 F. 2d 399.
No. 71-6862. DICANIO v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. Reported below: 456 F. 2d
1335.
ORDERS 871
409U.S. October 10, 1972
No. 71-6854. MASTERS v. HARRIS, WARDEN. C. A.
10th Cir. Certiorari denied.
No. 71-6857. MARTIN v. UNITED STATES. C. A. 2d
Cir. Certiorari denied.
No. 71-6859. MuNNs v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 457 F. 2d 271.
No. 71-6860. CHRISTIAN v. NEW YORK STATE BOARD
OF PAROLE. Ct. App. N. Y. Certiorari denied.
No. 71-6861. DOCKERY v. CALIFORNIA. C. A. 9th Cir.
Certiorari denied.
No. 71-6864. SUDDUTH v. UNITED STATES. C. A.
10th Cir. Certiorari denied. Reported below: 458 F.
2d 1222.
No. 71-6865. ALSTON v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 460 F. 2d 48.
No. 71-6866. COLEMAN v. UNITED STATES. C. A.
8th Cir. Certiorari denied. Reported below: 460 F. 2d
1038.
No. 71-6867. LARA v. TEXAS. Ct. Crim. App. Tex.
Certiorari denied. Reported below: 480 S. W. 2d 661.
No. 71-6868. PARTON v. TENNESSEE. Ct. Crim. App.
Tenn. Certiorari denied. Reported below: - Tenn.
Cr. App.-, 483 S. W. 2d 753.
No. 71-6870. MATHIS v. LAIRD, SECRETARY OF DEFENSE.
C. A. 5th Cir. Certiorari denied. Reported
below: 457 F. 2d 926.
No. 71-6871. LucAs v. OHIO. Sup. Ct. Ohio. Certiorari
denied.
No. 71-6873. NEELY V. FIELD, U. S. DISTRICT JUDGE,
ET AL. C. A. 4th Cir. Certiorari denied.
872 OCTOBER TERM, 1972
October 10, 1972 409 U.S.
No. 71-6874. MITCHELL v. NELSON, WARDEN. C. A.
9th Cir. Certiorari denied.
No. 71-6875. MORAN V. TUITION PLAN OF NEW HAMPSHIRE,
INC. C. A. 3d Cir. Certiorari denied. Reported
below: 456 F. 2d 1030.
No. 71-6876. BAILES ET ux. v. SouTHERN FARM Be-
REAU CASUALTY INSURANCE Co. ET AL. Sup. Ct. La.
Certiorari denied. Reported below: 261 La. 106, 259
So. 2d 29.
No. 71-6878. RoBINSON v. MAMMOTH LIFE & Acer-
DENT INSURANCE Co. C. A. 7th Cir. Certiorari denied.
Reported below: 454 F. 2d 698.
No. 71-6881. WILLIAMS v. OHIO. Sup. Ct. Ohio.
Certiorari denied.
No. 71-6882. JAMES v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 459 F. 2d
443.
No. 71-6883. FAIR v. HODGES ET AL. C. A. 5th Cir.
Certiorari denied.
No. 71-6884. HuDSON v. UNITED STATES. C. A. 4th
Cir. Certiorari denied. Reported below: 460 F. 2d 1262.
No. 71-6887. WILLIAMS v. UNITED STATES. C. A.
D. C. Cir. Certiorari denied.
No. 71-6889. MooRE v. UNITED STATES. C. A. 9th
Cir. Certiorari denied.
No. 71- 6890. KARTSONIS v. DISTRICT UNEMPLOYMENT
COMPENSATION BoARD. Ct. App. D. C. Certiorari
denied. Reported below: 289 A. 2d 370.
No. 71-6905. DOYAL v. DEPARTMENT OF THE TREASURY,
BUREAU' OF CusToMs, ET AL. C. A. 5th Cir. Certiorari
denied. Reported below: 456 F. 2d 799.
ORDERS 1'73
409 u. s. October 10, 19i2
No. 71-6891. HAUFF v. UNITED STATES. C. A. 7th
Cir. Certiorari denied. Reported below: 461 F. 2d 1061.
No. 71-6892. SAILER v. CRAVEN, \VARDEN. C. A. 9th
Cir. Certiorari denied. Reported below: 458 F. 2d 1362.
No. 71-6896. LATHROP v. °C"NITED STATES. C. A. 3d
Cir. Certiorari denied. Reported below: 460 F. 2d 761.
Xo. 71-6900. PATTERSON v. SMITH, WARDEN. C. A.
5th Cir. Certiorari denied.
No. 71-6901. MoRRow v. UNITED STATES. C. A. 9th
Cir. Certiorari denied.
No. 71-6903. NEASE v. l:'NITED STATES C. A. 6th Cir.
Certiorari denied. Heported below: 458 F. 2d 1361.
No. 71-6904. TUBBS v. UNITED STATES. C. A. 7th Cir.
Certiorari denied. Reported below: 461 F. 2d 43.
No. 71-6906. SPRINGER v. UNITED STATES. C. A. 7th
Cir. Certiorari denied. Reported below: 460 F. 2d 1344.
No. 71-6907. WATSON v. STYNCHCOMBE, SHERIFF.
C. A. 5th Cir. Certiorari denied.
No. 71-6910. THORNLEY v. UNITED STATES. C. A.
9th Cir. Certiorari denied. Reported below: 460 F. 2d
1188.
No. 71-6911. MEDINA v. UNITED STATES. C. A. 3d
Cir. Certiorari denied. Reported below: 459 F. 2d 546.
No. 71-6912. PASQUA v. °NEW YoRK. App. Div., Sup.
Ct. N. Y., 1st Jud. Dist. Certiorari denied.
No. 71- 6913. JOHNSON v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 460 F. 2d 1203.
No. 71- 6924. OBSTEIN v. NEW JERSEY. Sup. Ct. N. J.
Certiorari denied. Reported below: 60 N. J. 353, 289 A.
2d 798.
874 OCTOBER TERM, 1972
October 10, 1972 409 u. s.
No. 71-6915. K1LE v. UNITED STATES. C. A. 6th Cir.
Certiorari denied.
No. 71- 6916. DAHL v. UNITED STATES Er AL. C. A.
7th Cir. Certiorari denied.
No. 71-6917. ScoPES v. NEW YORK. C. A. 2d Cir.
Certiorari denied.
No. 71-6919. BmcH v. LAVALLEE, WARDEN. C. A. 2d
Cir. Certiorari denied.
No. 71-6921. MIRANDA v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. Reported below: 458 F. 2d 1179.
No. 71- 6922. LowRY v. UNITED STATES. C. A. 2d
Cir. Certiorari denied.
No. 72-2. PALMER ET AL. v. UNITED STATES. C. A.
6th Cir. Certiorari denied.
No. 72- 3. LoNG MANUFACTURING Co. v. LILLISTON
IMPLEMENT Co. C. A. 4th Cir. Certiorari denied. Reported
below: 457 F. 2d 1317.
No. 72-4. CHEMICAL CARRIERS, INc., ET AL . v. ANDREWS,
EXECUTRIX. C. A. 3d Cir. Certiorari denied.
Reported below: 457 F. 2d 636.
No. 72-5. KOHN, TRUSTEE, ET AL. v. AMERICAN
METAL CLIMAX, INc., ET AL.; and
No. 72-132. ROAN SELECTION TRUST LTD. ET AL. V.
KOHN, TRUSTEE, ET AL. C. A. 3d Cir. Certiorari denied.
Reported below: 458 F. 2d 255.
No. 72-9. BONKOWSKI v. COMMISSIONER OF INTERNAL
REVENUE. C. A. 7th Cir. Certiorari denied. Reported
below: 458 F. 2d 709.
No. 72-26. DALY v. ALABAMA. Ct. Crim. App. Ala.
Certiorari denied. Reported below: 47 Ala. App. 681,
260 So. 2d 412.
ORDERS 875
409 U.S. October 10, 1972
No. 72-7. FIRESTONE v. TIME, INc. C. A. 5th Cir.
Certiorari denied. Reported below: 460 F. 2d 712.
No. 72-13. SEGURA v. UNITED STATES. C. A. 2d Cir.
Certiorari denied. Reported below: 456 F. 2d 1336.
No. 72-14. CARLTON v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 459 F. 2d 1390.
No. 72-15. ScHAACK v. UNITED STATES. C. A. 7th
Cir. Certiorari denied.
Xo. 72-18. ENGLE v. UNITED STATES. C. A. 8th Cir.
Certiorari denied. Reported below: 458 F. 2d 1017.
No. 72-27. BITTNER v. NEBRASKA. Sup. Ct. Neb.
Certiorari denied. Reported below: 188 Neb. 298, 196
N. W. 2d 186.
No. 72-30. EGAN v. UNITED STATES. C. A. 2d Cir.
Certiorari denied. Reported below: 459 F. 2d 997.
No. 72-31. HONOLULU RAPID TRANSIT Co., LTD. v.
PUBLIC UTILITIES COMMISSION OF HAWAII ET AL. C. A.
9th Cir. Certiorari denied. Reported below: 459 F. 2d
551.
No. 72-33. WILLIAMS v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. Reported below: 458 F. 2d 1406.
No. 72-38. SouTHWESTERN BELL TELEPHONE Co. v.
FRANKE ET AL. Sup. Ct. Mo. Certiorari denied. Reported
below: 479 S. W. 2d 472.
No. 72-43. COHN v. l:NlTED STATES. C. A. 2d Cir.
Certiorari denied.
No. 72--47. HAYDEN PUBLISHING Co., INC., ET AL. v.
VAN VALKENBURGR, NooGER & NEVILLE, INc. Ct. App.
N. Y. Certiorari denied. Reported below: 30 N. Y. 2d
34, 281 N. E. 2d 142.
876 OCTOBER TERM, 1972
October 10, 1972 409 U.S.
No. 72-39. REDERI A/ B NoRDST.JERNAN ET AL. v.
RIVERA ET AL. C. A. 1st Cir. Certiorari denied. Reported
below: 456 F. 2d 970.
No. 72-50. RAILEX CORP. v. SPEED CHECK Co., INc.
C. A. 5th Cir. Certiorari denied. Reported below: 457
F. 2d 1040.
No. 72-51. MICHAUD ET AL. v. UNITED STATE(3. C. A.
3d Cir. Certiorari denied. Reported below: 458 F. 2d
953.
N 0. 72-52. SKIL CORP. V. LUCERNE PRODUCTS, INC.
C. A. 6th Cir. Certiorari denied.
No. 72-57. SHELCO, INC., ET AL. v. Dow CHEMICAL
Co. ET AL. C. A. 7th Cir. Certiorari denied.
No. 72-58. NATIONAL ASSOCIATION OF SECURITIES
DEALERS, INC. v. HARWELL ET AL. C. A. 5th Cir. Certiorari
denied. Reported below: 459 F. 2d 461.
No. 72-63. DICKSON v. UNITED STATES. C. A. 4th
Cir. Certiorari denied. Reported below: 462 F. 2d 184.
No. 72-65. JOHN B. WHITE, INC. V. COMMISSIONER
OF INTERNAL REVENUE. C. A. 3d Cir. Certiorari denied.
Reported below: 458 F. 2d 989.
No. 72-66. CLARK EQUIPMENT Co. v. WIRTH. C. A.
9th Cir. Certiorari denied. Reported below: 457 F. 2d
1262.
No. 72-68. LANE v. UNITED STATES. C. A. 8th Cir.
Certiorari denied. Reported below: 464 F. 2d 593.
No. 72-70. LEFKOWITZ, ATTORNEY GENERAL OF NEW
YORK v. WEISS ET AL. C. A. 2d Cir. Certiorari denied.
No. 72-78. GrFFORD ET AL. v. ALLEN ET ux. C. A.
4th Cir. Certiorari denied. Reported below: 462 F. 2d
615.
ORDERS 877
409 U.S. October 10, 1972
No. 72- 71. HILLIARD ET AL. v. PENNSYLVANIA. Sup.
Ct. Pa. Certiorari denied.
No. 72-73. KLEVE v. RETAIL CREDIT Co. Sup. Ct.
Ohio. Certiorari denied.
Xo. 72-80. HELTSLEY ET AL. v. DISTRICT No. 23,
UNITED MINE w ORKERS OF Al\-IERICA, ET AL. Ct. App.
Ky. Certiorari denied. Reported below: 477 S. W. 2d
134.
No. 72-85. Q1rrnTANA v. UxITED STATES. C. A. 10th
Cir. Certiorari denied. Reported below: 457 F. 2d 874.
No. 72-87. HARRIS ET AL. v. UNITED STATES. C. A.
5th Cir. Certiorari denied. Reported below: 460 F. 2d
1041.
No. 72-89. CARTER ET AL. v. CITY OF FoRT WoRTH ET
AL. C. A. 5th Cir. Certiorari denied. Reported below:
456 F. 2d ,572.
No. 72-94. JACQGES v. LOUISIANA STATE BAR AssN.
Sup. Ct. La. Certiorari denied. Reported below: 260
La. 803, 257 So. 2d 413.
No. 72-98.
C. A. 8th Cir.
F. 2d 540.
SCHNEIDER ET AL. v. UNITED STATES.
Certiorari denied. Reported below: 459
No. 72- 99. LUTHER v. ALABAMA. Ct. Crim. App.
Ala. Certiorari denied. Reported below: 47 Ala. App.
647, 259 So. 2d 857.
No. 72-101. AVENI v. RICHMAN, TRUSTEE IN BANKRUPTCY.
C. A. 6th Cir. Certiorari denied. Reported
below: 458 F. 2d 972.
No. 72-102. Al'NT Mrn, INc. v. FJELL-OttANJE LINES
ET AL. C. A. 7th Cir. Certiorari denied. Reported below:
458 F. 2d 712.
878 OCTOBER TERM, 1972
October 10, 1972 409 P. S.
No. 72-100. MARTIN v. UNITED STATES. C. A. 6th
Cir. Certiorari denied. Reported below: 459 F. 2d 300.
No. 72-103. LLERENA v. UNrrEo STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 459 F. 2d 949.
No. 72-106. BRADSHAW v. THOMPSON ET AL. C. A.
6th Cir. Certiorari denied. Reported below: 454 F. 2d
75.
No. 72-107. SPEARS v. HOUGH. C. A. 8th Cir. Certiorari
denied. Reported below: 458 F. 2d 529.
No. 72-110. EAGLE STAR INSCRANCE GROUP v.
WALKER, ADMINISTRATOR, ET AL. C. A. 3d Cir. Certiorari
denied.
No. 72---112. ZEGERS, INC. v. ZEGERS. C. A. 7th Cir.
Certiorari denied. Reported below: 458 F. 2d 726.
No. 72-113. STERLING DRUG, INC. v. SINGER ET vrn.
C. A. 7th Cir. Certiorari denied. Reported below: 461
F. 2d 288.
No. 72-122. BISHOP, EXECUTRIX v. UNrrED STATES.
C. A. 5th Cir. Certiorari denied.
No. 72-123. GUTHRIE v. ARIZONA. Sup. Ct. Ariz.
Certiorari denied. Reported below: 108 Ariz. 280, 496
P. 2d 580.
Ko. 72- 125. RE•J ET AL. v. MuNICIPAL CouRr OF THE
Los ANGELES JUDICIAL DISTRICT, CouNTY OF Los ANGELES.
Ct. App. Cal., 2d App. Dist. Certiorari denied.
No. 72- 126. BOYER BRos., INC. v. NATIONAL LABOR
RELATIONS BOARD. C. A. 3d Cit·. Certiorari denied.
Reported below: 448 F. 2d 555.
No. 72-127. SHERIS ET AL. v. SHERIS Co. ET AL. Sup.
Ct. Va. Certiorari denied. Reported below: 212 Va.
825, 188 S. E. 2d 367.
ORDERS 879
409 U.S. October 10, 1972
No. 72-138. ANDERSON ET AL. V. LECON PROPERTIES,
INC. C. A. 8th Cir. Certiorari denied. Reported below:
457 F. 2d 929.
No. 72-139. PEARSON v. FLORIDA; and
No. 72-140. PEARSON v. FLORIDA. Dist. Ct. App.
Fla., 3d Dist. Certiorari denied. Reported below: 254
So. 2d 573.
No. 72-143. BRATRuo v. DUNNING, TRUSTEE IN BANKRUPTCY.
C. A. 9th Cir. Certiorari denied. Reported
below: 456 F. 2d 414.
No. 72-144. WEST TENNESSEE ACLU ET AL. v. CITY
OF MEMPHIS ET AL. C. A. 6th Cir. Certiorari denied.
Reported below: 454 F. 2d 1162.
No. 72-155. BALLANTYNE V. CENTRAL RAILROAD OF
NEW JERSEY. C. A. 3d Cir. Certiorari denied. Reported
below: 460 F. 2d 540.
No. 72-161. ROSE V. COMMISSIONER OF INTERNAL
REVENUE. C. A. 6th Cir. Certiorari denied. Reported
below: 459 F. 2d 28.
No. 72-162. DODSON ET AL. v. GRAHAM ET AL. C. A.
5th Cir. Certiorari denied. Reported below: 462 F. 2d
144.
No. 72-170. MooRE v. BoARD OF TRUSTEES, CARSONTAHOE
HOSPITAL, ET AL. Sup. Ct. Nev. Certiorari
denied. Reported below: 88 Nev. 207, 495 P. 2d 605.
No. 72-203. LITTON BusINESS SYSTEMS, INc. v.
MONROE LoDGE No. 770, INTERNATIONAL AssocIATION
OF MACHINISTS & AEROSPACE WORKERS, AFL-CIO.
C. A. 4th Cir. Certiorari denied.
No. 72-230. FREESE, EXECUTRIX v. UNITED STATES.
C. A. 10th Cir. Certiorari denied. Reported below:
455 F. 2d 1146.
OCTOBER TERM, 1972
October 10, 1972 409 U.S.
No. 72-165. ENYART v. ASHLAND DrscoUNT Co. ET
AL. C. A. 6th Cir. Certiorari denied.
No. 72-235. McKY v. HocHFELDER ET AL. C. A.
7th Cir. Certiorari denied.
No. 72-5003. CORCORAN v. UNITED STATES. Ct. Cl.
Certiorari denied.
No. 72-5005. ABSHIRE v. UNITED STATES. C. A.
9th Cir. Certiorari denied.
No. 72-5006. ROBINS v. UNITED STATES. C. A. 10th
Cir. Certiorari denied. Reported below: 461 F. 2d 248.
No. 72-5008. ABBAMONTE v. UNITED STATES. C. A.
2d Cir. Certiorari denied.
No. 72-5011. HOHENSEE v. SCIENTIFIC LIVING, INc.,
ET AL. Sup. Ct. Pa. Certiorari denied.
No. 72-5012. EATON ET AL. v. UNITED STATES. C. A.
7th Cir. Certiorari denied. Reported below: 458 F. 2d
704.
No. 72- 5013. SMITH v. CuPP, WARDEN. C. A. 9th
Cir. Certiorari denied. Reported below: 457 F. 2d 1098.
N 0. 72-5015. PRESTON v. UNITED STATES. C. A. 7th
Cir. Certiorari denied. Reported below: 463 F. 2d 544.
No. 72-5016. CLARK v. UNITED STATES. C. A. 8th
Cir. Certiorari denied. Reported below: 459 F. 2d 977.
No. 72-5017. ANDERSON v. PARKER, CouLTER, DALEY
& WHITE ET AL. C. A. 1st Cir. Certiorari denied.
No. 72-5018. BREWER v. UNITED STATES; and
No. 72-5061. GARR v. UNITED STATES. C. A. 5th Cir.
Certiorari denied. Reported below: 461 F. 2d 487.
No. 72-5021. WEST v. UNITED STATES. C. A. 4th Cir.
Certiorari denied.
409U.S.
ORDERS
October 10, 1972
881
No. 72- 5023. RAWLS v. SECRETARY OF THE INTERIOR
ET AL. C. A. 9th Cir. Certiorari denied. Reported below:
460 F. 2d 1200.
No. 72- 5025. MILLER v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 460 F. 2d 293.
No. 72-5027. ZAMORA-YEscAs v. UNITED STATES.
C. A. 9th Cir. Certiorari denied. Reported below: 460
F. 2d 1272.
No. 72-5028. SCHOEFIELD v. UNITED STATES. c. A.
D. C. Cir. Certiorari denied. Reported below: 150
U.S. App. D. C. 380, 465 F. 2d 560.
No. 72-5029. WEAVER v. UNITED STATES. C. A. 6th
Cir. Certiorari denied. Reported below: 459 F. 2d 473.
No. 72- 5032. ATKINSON v. NORTH CAROLINA; and
No. 72- 5087. ATKINSON v. NORTH CAROLINA. Sup.
Ct. N. C. Certiorari denied. Reported below: 281 N. C.
51 and 52, 187 S. E. 2d 702 and 703.
No. 72-5036. CHAPA v. 1020 N. QuINCEY STREET,
LTD., ET AL. C. A. 4th Cir. Certiorari denied.
No. 72-5037. WILSON v. LASH, WARDEN. C. A. 7th
Cir. Certiorari denied. Reported below: 457 F. 2d 106.
No. 72-5040. SCHAFER v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 461 F. 2d 856.
No. 72-5041. HILLIARD v. CALIFORNIA. C. A. 9th
Cir. Certiorari denied.
No. 72-5042. DEFARLO ET AL. v. CALIFORNIA. Ct.
App. Cal., 2d App. Dist. Certiorari denied.
No. 72- 5043. WARRINER v. WISEHEART ET AL. C. A.
5th Cir. Certiorari denied.
No. 72-5046. FoRD v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 461 F. 2d 534.
882 OCTOBER TERM, 1972
October 10, 1972 409U. B.
No. 72-5048. DAMERON v. V°NITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 460 F. 2d 294.
No. 72-5049. RAMSDELL v. UNITED STATES. C. A.
10th Cir. Certiorari denied. Reported below: 458 F.
2d 161.
No. 72-5051. BETHEA v. UNITED STATES. C. A. 4th
Cir. Certiorari denied.
No. 72-5052. Cox v. McNAMARA ET AL. Ct. App. Ore.
Certiorari denied. Reported below: 8 Ore. App. 242,
493 P. 2d 54.
No. 72-5055. COLLINS v. MARYLAND. Ct. Sp. App.
Md. Certiorari denied. Reported below: 14 Md. App.
674, 288 A. 2d 221.
No. 72-5056. LoNG V. ALLDREDGE, WARDEN , ET AL.
C. A. 3d Cir. Certiorari denied. Reported below: 455
F. 2d 466.
No. 72-5057. THACKER V. SLAYTON , PENITENTIARY
SUPERINTENDENT, ET AL. C. A. 4th Cir. Certiorari
denied.
No. 72-5060. D1oos v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 458 F. 2d 1407.
No. 72-5064. REILLY v. CAuLDWELL -WINGATE Co.,
INC., ET AL. C. A. 2d Cir. Certiorari denied. Reported
below: 465 F. 2d 1405.
No. 72-5067. WIMBERLEY ET AL. V. LYNCH, ATTORNEY
GENERAL OF CALIFORNIA, ET AL. C. A. 9th Cir.
Certiorari denied. Reported below: 460 F. 2d 316.
No. 72-5074. Puco v. UNITED STATES. C. A. 2d Cir.
Certiorari denied.
No. 72-5078. TROY v. KANSAS ET AL. C. A. 10th
Cir. Certiorari denied.
ORDERS 883
409 U.S. October 10, 1972
No. 72--5076. ESKRIDGE v. UNITED STATES. C. A.
9th Cir. Certiorari denied. Reported below: 456 F.
2d 1202.
No. 72-5081. GRIFFITH V. GOVERNMENT OF THE
CANAL ZONE. C. A. 5th Cir. Certiorari denied. Reported
below: 459 F. 2d 1036.
No. 72--5083. BRADLEY v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 460 F. 2d 529.
No. 72--5084. PEEL ET AL. v. NICHLOS ET AL. C. A.
5th Cir. Certiorari denied. Reported below: 460 F.
2d 1068.
No. 72--5086. CRUTCH, AKA JENKINS V. UNITED
STATES. C. A. 2d Cir. Certiorari denied. Reported
below: 461 F. 2d 1200.
No. 72--5088. WALKER v. UNITED STATES. C. A. 6th
Cir. Certiorari denied.
No. 72--5093. GAINES v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. Reported below: 460 F. 2d 176.
No. 72--5097. RICHERSON v. FNITED STATES. C. A.
10th Cir. Certiorari denied. Reported below: 461 F. 2d
935.
No. 72- 5098. VERDuzco-MACIAS v. UNITED STATES.
C. A. 9th Cir. Certiorari denied. Reported below: 463
F. 2d 105.
No. 72-5101. SERZYSKO v. CHASE MANHATTAN BANK.
C. A. 2d Cir. Certiorari denied. Reported below: 461
F. 2d 699.
No. 72--5105. HARKINS v. UNITED STATES. C. A. 6th
Cir. Certiorari denied.
No. 72--5106. SMITH v. UNITED STATES. C. A. 10th
Cir. Certiorari denied.
884 OCTOBER TERM, 1972
October 10, 1972 409U.S.
No. 72- 5102. SPAULDING v. UNITED STATES. C. A.
5th Cir. Certiorari denied. Reported below: 462 F. 2d
1346.
No. 72-5111. HARRISON v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 461 F. 2d 1127.
No. 72- 5115. RICHARDSON V. MASSACHUSETTS. Sup.
Jud. Ct. Mass. Certiorari denied. Reported below: -
Mass.-, 282 N. E. 2d 95.
No. 72-5124. FoucHEY v. UNITED STATES. C. A. 8th
Cir. Certiorari denied. Reported below: 462 F. 2d 585.
No. 72-5129. HARRIS v. UNITED STATES. C. A. 10th
Cir. Certiorari denied.
No. 72- 5140. TRAHAN v. CuPP, WARDEN. Sup. Ct.
Ore. Certiorari denied.
No. 72-5142. BUENO V. BETO, CORRECTIONS DIRECTOR.
C. A. 5th Cir. Certiorari denied. Reported below:
458 F. 2d 457.
No. 72- 5153. LEAVITT v. HowARD, WARDEN. C. A.
1st Cir. Certiorari denied. Reported below: 462 F. 2d
992.
No. 72-5,156. SANDERS ET AL. v. TEXAS. Ct. Crim.
App. Tex. Certiorari denied. Reported below: 482
S. W. 2d 648.
No. 71 - 1012. NEIL, WARDEN v. PHILLIPS. C. A. 6th
Cir. Motion of respondent for leave to proceed in forma
pauper-is granted. Certiorari denied. Reported below:
452 F. 2d 337.
No. 71-1065. WAINWRIGHT, CORRECTIONS DIRECTOR
v. Ross. C. A. 5th Cir. Motion of respondent for
leave to proceed in forma pauperis granted. Certiorari
denied. Reported below: 451 F. 2d 298.
ORDERS 885
409 U.S. October 10, 1972
X o. 71-1148. SMITH, WARDEN v. SMITH. C. A. 5th
Cir. Motion of respondent for leave to proceed in fonna
pauperis granted. Certiorari denied. Reported below:
454 F. 2d 572.
No. 71-1324. ILLINOIS v. RAYMOND. C. A. 7th Cir.
Motion of respondent for leave to proceed in jorrna
pauperis granted. Certiorari denied. Reported below:
455 F. 2d 62.
No. 71-1579. BROWN, DIRECTOR, VIRGINIA DEPARTMENT
OF \:VELFARE AND INSTITUTIONS, ET AL. V. WOOLFOLK
ET AL. C. A. 4th Cir. Motion of respondents for
leave to proceed in forma pauperis granted. Certiorari
denied. Reported below: 456 F. 2d 652.
No. 71-1588. FLORIDA v. ROBERSON. Sup. Ct. Fla.
Motion of respondent for leave to proceed in f orma
pauperis granted. Certiorari denied. Reported below:
258 So. 2d 257.
No. 71-1626. McMANN, WARDEN v. WRIGHT. C. A.
2d Cir. Motion of respondent for leave to proceed in
f orrna pauperis granted. Certiorari denied. Reported
below: 460 F. 2d 126.
No. 71-1636. ELLIOTT, WARDEN v. TAYLOR. C. A.
5th Cir. Motion of respondent for leave to proceed
in forrna pauperis granted. Certiorari denied.
No. 71-1695. MANUFACTURERS NATIONAL BANK OF
DETROIT v. HARRIS. C. A. 6th Cir. Motion of respondent
for leave to proceed in forma pauperis granted. Certiorari
denied. Reported below: 457 F. 2d 631.
~o. 72- 17. LAVALLEE, CORRECTIONAL SUPERINTENDENT
v. FITZGERALD. C. A. 2d Cir. Motion of respondent
for leave to proceed in forma pauperis granted.
Certiorari denied. Reported below: 461 F. 2d 601.
886 OCTOBER TERM, 19i2
October 10, 1972 409 U.S.
No. 72-8. NEw JERSEY ET AL. v. WOODARD. C. A.
3d Cir. Motion of respondent for leave to proceed
in forma pauperis granted. Certiorari denied.
No. 71- 1279. SINCLAIR v. SPATOcco, AKA REED, ET
AL. C. A. 9th Cir. Certiorari denied. Ma. JUSTICE
DOUGLAS would grant certiorari. Reported below: 452
F. 2d 1213.
No. 71-1306. PENDERGRAFT v. CooK , PENITENTIARY
SUPERINTENDENT. C. A. 5th Cir. Certiorari denied.
Ma. JUSTICE DOUGLAS would grant certiorari. Reported
below: 446 F. 2d 1222.
No. 71 - 1359. JuDICE ET AL. v. UNITED STATES. C. A.
5th Cir. Certiorari denied. MR. J ·LTSTICE DoeoLAs would
grant certiorari. Reported below: 457 F. 2d 414.
No. 71- 1361. SIMMS v. WYOMING. Sup. Ct. Wyo.
Certiorari denied. MR. JUSTICE DOUGLAS would grant
certiorari. Reported below: 492 P. 2d 516.
No. 71- 1452. PANAS v. UNITED STATES. C. A . 7th
Cir. Certiorari denied. Ma. JusTICE DOUGLAS would
grant certiorari.
No. 71- 1453. BROWN v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. MR. JUSTICE DOUGLAS would
grant certiorari. Reported below: 456 F. 2d 983.
No. 71- 1469. GHASSEMI ET AL. v. UNITED STATES
ET AL. C. A. 2d Cir. Certiorari denied. MR. JUSTICE
DOUGLAS would grant certiorari.
No. 71-1473. DEAN ET AL. v. UNITED STATES. C. A.
6th Cir. Certiorari denied. MR. JUSTICE DOUGLAS
would grant certiorari.
No. 71-1501. RUGGIRELLO v. UNITED STATES. C. A.
6th Cir. Certiorari denied. MR. JusTrCE DocGLAS would
grant certiorari. Reported below: 454 F. 2d 725.
ORDERS 887
409 u. 8. October 10, 1972
No. 71-1491. Two TRACTS OF LAND ET AL. V. TENNESSEE
VALLEY AUTHORITY. C. A. 6th Cir. Certiorari
denied. MR. JusTICE DouGLAS would grant certiorari.
Reported below: 456 F. 2d 264.
No. 71-1538. BLANK v. UNITED STATES. C. A. 6th
Cir. Certiorari denied. MR. JUSTICE DOUGLAS would
grant certiorari. Reported below: 459 F. 2d 383.
No. 71-1573. PELTZMAN V. NATIONAL LABOR RELATIONS
BOARD. C. A. 2d Cir. Certiorari denied. MR.
JusTICE DouGLAS would grant certiorari.
No. 71-1574. JALIL v. HAMPTON, CHAIRMAN, UNITED
STATES CIVIL SERVICE COMMISSION. C. A. D. C. Cir.
Certiorari denied. MR. JusTICE DOUGLAS would grant
certiorari. Reported below: 148 U. S. App. D. C. 415,
460 F. 2d 923.
No. 71-1603. MrLNARIK ET AL. v. M-S COMMODITIES,
INc., ET AL. C. A. 7th Cir. Certiorari denied. MR.
JUSTICE DouGLAS would grant certiorari. Reported
below: 457 F. 2d 274.
No. 71-1608. JOHNSON ET AL. v. MORTON, SECRETARY
OF THE INTERIOR, ET AL. C. A. 5th Cir. Certiorari
denied. MR. JusTICE DouGLAS would grant certiorari.
Reported below: 456 F. 2d 68.
No. 71-1614. LowRY ET AL. v. UNITED STATES. C. A.
10th Cir. Certiorari denied. MR. JUSTICE DOUGLAS
would grant certiorari. Reported below: 455 F. 2d 657.
No. 71-1624. LEw1s v. STRACHAN SHIPPING Co. ET
AL. C. A. 5th Cir. Certiorari denied. MR. JUSTICE
DouGLAS would grant certiorari. Reported below: 460
F. 2d 1108.
No. 71-6431. NASH v. TEXAS. Ct. Crim. App. Tex.
Certiorari denied. MR. JUSTICE DOUGLAS would grant
certiorari. Reported below: 477 S. W. 2d 557.
888 OCTOBER TERM, 1972
October 10, 1972 409 U.S.
No. 71-1646. NATIONAL LABOR RELATIONS BOARD v.
MAY DEPARTMENT STORES Co. C. A. 9th Cir. Certiorari
denied. MR. JUSTICE DouGLAS would grant certiorari.
Reported below: 454 F. 2d 148.
No. 71-6448. BASTION v. LouISIANA. Sup. Ct. La.
Certiorari denied. MR. JUSTICE DouGLAS would grant
certiorari.
No. 71-6476. KILBOURNE v. LoursrANA. Sup. Ct. La.
Certiorari denied. MR. JusTICE DouGLAS would grant
certiorari. Reported below: 260 La. 569, 256 So. 2d 6aO.
No. 71-6490. McINTYRE v. XORTH CAROLINA. Sup.
Ct. N. C. Certiorari denied. MR. JUSTICE DOUGLAS
would grant certiorari. Reported below: 280 N. C. 220,
185 S. E. 2d 633.
No. 71-6500. DOHERTY v. UNITED STATES. C. A.
9th Cir. Certiorari denied. MR. JusTICE DouGLAS would
grant certiorari.
No. 71-6508. ScoTT ET AL. v. UNITED STATES. C. A.
5th Cir. Certiorari denied. MR. JUSTICE DouGLAS would
grant certiorari. Reported below: 458 F. 2d 670.
No. 71-6554. MILLER v. OKLAHOMA. Ct. Crim. App.
Okla. Certiorari denied. MR. JusTICE DouGLAS would
grant certiorari.
No. 71-6566. WARE v. UNITED STATES. C. A. 7th
Cir. Certiorari denied. MR. JUSTICE DOUGLAS would
grant certiorari. Reported below: 457 F. 2d 828.
No. 71- 6598. FUGATE v. GAFFNEY. C. A. 8th Cir.
Certiorari denied. MR. JUSTICE DOUGLAS would grant
certiorari. Reported below: 453 F. 2d 362.
No. 71-6617. FARRIES ET AL. v. UNITED STATES. C. A.
3d Cir. Certiorari denied. MR. JUSTICE DOUGLAS would
grant certiorari. Reported below: 459 F. 2d 1057.
ORDERS 889
409 U.S. October 10, 1972
No. 71-6711. LEAL ET AL. v. UNITED STATES. C. A.
9th Cir. Certiorari denied. MR. JUSTICE DouGLAS would
grant certiorari. Reported below: 460 F. 2d 385.
No. 71-6741. KELLY ET AL. v. UNITED STATES. C . A.
2d Cir. Certiorari denied. MR. JUSTICE DOUGLAS would
grant certiorari.
No. 71-6760. LASCH v. RICHARDSON, SECRETARY OF
HEALTH, EDl'CATION, AND WELFARE. C. A. 7th Cir.
Certiorari denied. MR. JuSTICE DOUGLAS would grant
certiorari. Reported below: 457 F. 2d 435.
No. 71-6764. EvANs v. MosELEY, WARDEN. C. A.
10th Cir. Certiorari denied. MR. J u sTICE Dou GLAS
would grant certiorari. Reported below: 455 F. 2d 1084.
No. 71-6781.
Cir. Certiorari
grant certiorari.
LEANO v. UNITED STATES. C. A. 9th
denied. MR. JUSTICE DouGLAS would
Reported below: 457 F. 2d 1208.
No. 71-6825. DYKES v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. MR. JUSTICE DOUGLAS would
grant certiorari. Reported below: 460 F. 2d 324.
No. 72-37. HOFF v. UNITED STATES. C. A. 2d Cir.
Certiorari denied. MR. JUSTICE DouGLAS would grant
certiorari. Reported below: 461 F. 2d 846.
No. 72-49. FRANKEL Er AL. v. SECURITIES AND Ex-
CHANGE COMMISSION ET AL. C. A. 2d Cir. Certiorari
denied. Mn. JUSTICE DouGLAS would grant certiorari.
Reported below: 460 F. 2d 813.
No. 72-60. ERDMANN v. STEVENS ET AL. C. A. 2d
Cir. Certiorari denied. MR. JusTICE DouGLAS would
grant certiorari. Reported below: 458 F. 2d 1205.
No. 72--116. RAGLAND v. VOLPE, SECRETARY OF TRANSPORTATION,
ET AL. C. A. 5th Cir. Certiorari denied.
MR. JcSTICE Dot·GLAS would grant certiorari.
890 OCTOBER TERM, 1972
October 10, 1972 409 U.S.
No. 72-108. OSTROWSKI v. OHIO. Sup. Ct. Ohio.
Certiorari denied. MR. JusTICE DOUGLAS would grant
certiorari. Reported below: 30 Ohio St. 2d 34, 282 N. E.
2d 359.
No. 72-5152. BYRD v. LYKES BROTHERS STEAMSHIP
Co., INC. C. A. 5th Cir. Certiorari denied. MR. Jus-
TICE Dou GLAS would grant certiorari. Reported below:
461 F. 2d 1264.
No. 71-1345. CRISMON v. UNITED STATES. C. A. 8th
Cir. Motion to supplement petition granted. Certiorari
denied.
No. 71-1394. CALIFORNIA HIGHWAY COMMISSION ET
AL. v. LA RAZA UNIDA OF SOUTHERN ALAMEDA COUNTY
ET AL. Petitioner for certiorari before judgment to C. A.
9th Cir. Motion to dispense with printing respondents'
brief granted. Certiorari denied. Reported below : See
337 F. Supp. 221.
No. 71-1401.
No. 71-1451.
and
SMITH, TRUSTEE V. BAKER ET AL.;
IANNOTTI, TRUSTEE V. BAKER ET AL.;
No. 71-1539. NEW YORK, NEw HAVEN & HARTFORD
RAILROAD COMPANY FIRST MORTGAGE 4% BONDHOLDERS
COMMITTEE v. BAKER ET AL. C. A. 2d Cir. Certiorari
denied. MR. JUSTICE DouGLAS would grant certiorari.
MR. JusTICE BLACKMUN took no part in the consideration
or decision of these petitions. Reported below: 457 F.
2d 683.
No. 71-1429. PARTICULAR CLEANERS, INC., ET AL. v.
COMMONWEALTH EDISON Co. C. A. 7th Cir. Certiorari
denied. MR. JusTICE DouGLAS would grant certiorari.
MR. JUSTICE PowELL took no part in the consideration
or decision of this petition. Reported below: 457 F. 2d
189.
409U.S.
ORDERS
October 10, 1972
891
No. 72-6. INTERSTATE COMMERCE COMMISSION ET AL.
v. BURLINGTON NORTHERN, INc. C. A. D. C. Cir. Certiorari
denied. MR. JuSTICE DouGLAS would grant certiorari.
MR. JusTICE PowELL took no part in the consideration
or decision of this petition. Reported below:
149 U.S. App. D. C. 176, 462 F. 2d 280.
No. 71-1471. PENSEC v. UNITED STATES. C. A. 3d
Cir. Motion to dispense with printing petition granted.
Certiorari denied. Reported below: 456 F. 2d 435.
No. 71-1483. MASELLI v. CALIFORNIA. Ct. App. Cal.,
4th App. Dist. Motion to dispense with printing petition
granted. Certiorari denied.
No. 71~1525. HOULE ET AL. v. DuvALL, COMMISSIONER
OF LABOR. Sup. Ct. N. H. Motion to dispense with
printing petition granted. Certiorari denied. Reported
below: 111 N. H. 333, 287 A. 2d 418.
No. 71-1620. ESTATE OF WITKOWSKI V. UNITED
STATES. C. A. 5th Cir. Motion to dispense with printing
petition granted. Certiorari denied. Reported
below: 451 F. 2d 1249.
No. 71-1666. HuIE ET AL. v. UNITED STATES. C. A.
5th Cir. Motion to dispense with printing petition
granted. Certiorari denied. Reported below: 458 F.
2d 875.
No. 72-22. GODWIN v. FEDERAL LAND BANK OF
HousTON. C. A. 5th Cir. Motion to dispense with
printing petition granted. Certiorari denied.
No. 72-23. GODWIN v. WooDWARD, JUDGE, ETAL. C. A.
5th Cir. Motion to dispense with printing petition
granted. Certiorari denied.
No. 72-97. IN RE HAMPDEN VALLEY CONSTRUCTION
Co., INC. C. A. 1st Cir. Motion to dispense with
printing petition granted. Certiorari denied.
892 OCTOBER TERM, 1972
October 10, 1972 409 U.S.
No. 72-130. CHAMBERLAIN v. CHAMBERLAIN. Ct.
App. D. C. Motion to dispense with printing petition
granted. Certiorari denied. Reported below: 287 A.
2d 530.
No. 71-1505. ASKEW, GovERNOR OF FLORIDA, ET AL.
v. AEROJET-GENERAL CORP. C. A. 5th Cir. Motion
to strike petitioners' reply brief and certiorari denied.
Reported below: 453 F. 2d 819.
No. 71-1514. BERGER v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. MR. JusTICE STEWART would
grant certiorari.
No. 71-1522. ALLGOOD ET AL. v. BREWER ET AL. C. A.
4th Cir. Certiorari denied. MR. JusTICE PowELL took
no part in the consideration or decision of this petition.
Reported below: 456 F. 2d 943.
No. 71-1605. PAN AMERICAN MATCH INC. v. SEARS,
ROEBUCK & Co. ET AL. C. A. 1st Cir. Certiorari denied.
MR. JusTICE POWELL took no part in the consideration
or decision of this petition. Reported below: 454
F. 2d 871.
No. 71-1627. BROTHERHOOD OF RAILWAY, AIRLINE &
STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS &
STATION EMPLOYEES ET AL. v. REA EXPRESS, INC. C. A.
5th Cir. Certiorari denied. MR. JusTICE POWELL took
no part in the consideration or decision of this petition.
Reported below: 459 F. 2d 226.
No. 71-1649. A-T-O, INc., ET AL. v. SPERRY RAND
CORP.; and
No. 71-1700. SPERRY RAND CoRP. v. A-T-O, INc.,
ET AL. C. A. 4th Cir. Certiorari denied. MR. JusTICE
POWELL took no part in the consideration or decision
of these petitions. Reported below: 447 F. 2d 1387
and 459 F. 2d 19.
ORDERS 893
409 U.S. October 10, 1972
No. 71-1628. POWER AUTHORITY OF NEW YORK V.
FADEL ET AL. Ct. App. N. Y. Certiorari denied. MR.
JusTICE PowELL took no part in the consideration or
decision of this petition. Reported below: 29 N. Y. 2d
790, 281 N. E. 2d 838.
No. 71-1658. SEABOARD COAST LINE RAILROAD Co. v.
McDANIEL. Dist. Ct. App. Fla., 1st Dist. Certiorari
denied. MR. JusTICE PowELL took no part in the consideration
or decision of this petition. Reported below:
254 So. 2d 15.
No. 71-1680. LOUISVILLE & NASHVILLE RAILROAD Co.
ET AL. V. RODES, TRUSTEE IN BANKRUPTCY, ET AL.;
No. 72-21. METROPOLITAN GovERNMENT OF NASHVILLE
ET AL. V, RODES, TRUSTEE IN BANKRUPTCY, ET AL.;
No. 72-24. KoPPERS Co., lNc. v. RODES, TRUSTEE
IN BANKRUPTCY, ET AL.; and
No. 72--62. W'rLsoN CouNTY, TENNESSEE v. RODES,
TRUSTEE IN BANKRUPTCY, ET AL. C. A. 6th Cir. Certiorari
denied. MR. JusTICE POWELL took no part in
the consideration or decision of these petitions. Reported
below: 463 F. 2d 73.
No. 71-6803. ECHEVERRIA v. UNITED STATES. C. A.
4th Cir. Certiorari denied. MR. JUSTICE PowELL took
no part in the consideration or decision of this petition.
No. 72-93. AMERICAN OIL Co. ET AL. v. CITY OF
PHILADELPHIA ET AL. C. A. 3d Cir. Certiorari denied.
MR. JUSTICE POWELL took no part in the consideration
or decision of this petition.
No. 72-174. CITY COUNCIL OF THE CITY OF CHICAGO
ET AL. v. CousINs ET AL. C. A. 7th Cir. Certiorari
denied. MR. JUSTICE MARSHALL took no part in the
consideration or decision of this petition. Reported
below: 466 F. 2d 830.
894 OCTOBER TERM, 1972
October 10, 1972 409 U.S.
No. 71-1546. STAPLETON ET AL. v. UNITED STATES.
C. A. 3d Cir. Certiorari denied. MR. JusTICE MARSHALL
took no part in the consideration or decision of this
petition. Reported below: 454 F. 2d 1210.
No. 71-6895. GRADSKY v. UNITED STATES. C. A.
5th Cir. Certiorari denied. MR. JUSTICE MARSHALL
took no part in the consideration or decision of this
petition. Reported below: 434 F. 2d 880.
No. 71-1596. PENNSYLVANIA ET AL. v. UNITED STATES
ET AL. C. A. 3d Cir. Certiorari denied. MR. JUSTICE
BLACKMUN took no part in the consideration or decision
of this petition. Reported below: 455 F. 2d 989.
No. 71-1604. PORT OF HousTON AUTHORITY OF HARRIS
COUNTY, TEXAS V. INTERNATIONAL ORGANIZATION OF
MASTERS, MATES & PILOTS, AFL-CIO, ET AL. C. A. 5th
Cir. Motion of Republic of Liberia for leave to file a
brief as amicus curiae granted. Certiorari denied. Reported
below: 456 F. 2d 50.
No. 71-1617. SCHMITZ v. SocrnTE INTERNATIONALE
POUR PARTICIPATIONS lNDUSTRIELLES ET COMMERCIALES,
S. A. C. A. D. C. Cir. Certiorari denied. MR. JUSTICE
WHITE took no part in the consideration or decision of
this petition.
No. 71-1635. KEISTER v. FROEHLKE, SECRETARY OF
THE ARMY, ET AL. C. A. 3d Cir. Motion to dispense
with printing petition granted. Certiorari denied. MR.
JUSTICE DouGLAS would grant certiorari. Reported below:
462 F. 2d 471.
No. 71-1638. NELSON ET AL. v. DUNCAN; and
No. 72-5128. DUNCAN v. NELSON ET AL. C. A. 7th
Cir. Motion of respondent in No. 71-1638 for leave to
proceed in forma pauperis granted. Certiorari denied.
MR. JUSTICE DouGLAS would grant certiorari.
ORDERS 895
409U.S. October 10, 1972
No. 71-1633. LARSEN v. Arn CALIFORNIA. C. A. 9th
Cir. Motion to proceed as a veteran granted. Certiorari
denied. Reported below: 459 F. 2d 52.
No. 71-1654. McKINNEY v. CITY OF BIRMINGHAM.
Ct. Crim. App. Ala. Certiorari denied, it appearing that
the judgment below rests upon an adequate state ground.
No. 71-1701. WHITE v. CENTRAL CHARGE SERVICE,
INC. Ct. App. D. C. Motion for leave to proceed on
typewritten papers granted. Certiorari denied. Reported
below: 285 A. 2d 305.
No. 71-6305. RETTIG v. ILLINOIS. Sup. Ct. Ill. Certiorari
denied. MR. JUSTICE DOUGLAS and MR. JusTICE
MARSHALL would grant certiorari and reverse judgment.
Turner v. Louisiana, 379 U.S. 466 (1965), and Gonzales
v. Beto, 405 U.S. 1052 (1972). MR. JusTICE BLACKMUN
would grant certiorari, vacate judgment, and remand case.
Turner v. Louisiana, supra, and Gonzales v. Beto, supra.
Reported below: 50 Ill. 2d 317, 278 N. E. 2d 781.
No. 71-6415. CHERRY v. HENDERSON, WARDEN. C. A.
5th Cir. Certiorari denied. MR. JUSTICE WHITE would
grant certiorari.
No. 71-6451. HARRIS v. CALIFORNIA. Ct. App. Cal.,
1st App. Dist. Certiorari denied. MR. JusrrcE MARSHALL
would grant certiorari.
No. 71-6467. THOMAS v. CALIFORNIA. Ct. App. Cal.,
1st App. Dist. Certiorari denied. Mn. JusrICE MARSHALL
would grant certiorari.
No. 71-6767. WASHINGTON v. JACOBS, HOSPITAL Su-
PERINTENDENT. C. A. D. C. Cir. Certiorari denied.
THE CHIEF JUSTICE took no part in the consideration or
decision of this petition. Reported below: 147 U. S.
App. D. C. 366, 458 F. 2d 785.
896 OCTOBER TERM, 1972
October 10, 1972 409 u. s.
No. 71-6528. MORNINGSTAR v. UNITED STATES. C. A.
4th Cir. Certiorari denied. MR. JUSTICE BRENNAN,
MR. JUSTICE STEWART, and MR. JUSTICE BLACKMUN
would grant certiorari, vacate judgment, and remand
case for further proceedings in light of the memorandum
of the Solicitor General, filed June 7, 1972, stating that
the prejeopardy dismissal of the indictment was appealable,
not to the Court of Appeals, but directly to this
Court. See United States v. International Minerals &
Chemical Corp., 402 U.S. 558 (1971) , and United States
v. Fabrizio, 385 U.S. 263 (1966). Reported below: 456
F. 2d 278.
No. 71-6536. GuY v. UNITED STATES. C. A. 8th Cir.
Certiorari denied. Motion to recuse presented to MR.
JusTICE BLACKMUN and MR. JUSTICE REHNQUIST by
them severally denied. Reported below: 456 F. 2d 1157.
No. 72-19. WEISS ET AL. v. CITY OF CHICAGO. Sup.
Ct. Ill. Certiorari denied. MR. JusTICE DouGLAS would
grant certiorari and reverse judgment. Coates v. City of
Cincinnati, 402 U. S. 611 (1971). Reported below: 51
Ill. 2d 113, 281 N. E. 2d 310.
No. 72-29. MATHEWS v. UNITED STATES. C. A. 3d
Cir. Certiorari denied. MR. JUSTICE DOUGLAS would
grant certiorari and reverse judgment. Lemke v. United
States, 346 U.S. 325 (1953). Reported below: 462 F. 2d
182.
No. 72-134. McCLURE v. SALVATION ARMY. C. A.
5th Cir. Motion of National Organization for Women
for leave to file a brief as amicus curiae granted. Certiorari
denied for reason that petition not timely filed.
Reported below: 460 F. 2d 553.
ORDERS 897
409 u. s. October 10, 1972
Rehearing Denied
No. 1469, October Term, 1970. HoMART DEVELOPMENT
Co. V. DIAMOND ET AL., 402 U. S. 988, 404 U. S.
874, 405 U. S. 981. Motion for leave to file third petition
for rehearing denied. MR. JusTICE BLACKMUN would
call for a response pursuant to Rule 58 (3).
No. 40, Orig. PENNSYLVANIA v. NEw YORK ET AL.,
407 U. S. 206 and 223;
No. 68-5006. W'RIGHT v. BETO, CORRECTIONS DIRECTOR,
408 U. S. 934;
No. 68-5013. SCOLERI V. PENNSYLVANIA, 408 U. S.
934;
No. 68-5022. KRUCHTEN v. EYMAN, WARDEN, 408
U. S. 934;
No. 68-5023. SMITH v. TEXAS, 408 U. S. 934;
No. 69-3. PARK v. GEORGIA, 408 U. S. 935;
No. 69-5001. MOORE v. ILLINOIS, 408 U. S. 786;
No. 69-5006. SULLIVAN v. GEORGIA, 408 U. S. 935;
No. 69- 5015. MANOR v. GEORGIA, 408 U. S. 935;
No. 69-5026. ROBLES V. CALIFORNIA, 406 U. S. 972;
No. 69-5027. CcMMINGS v. GEORGIA, 408 U. S. 935;
No. 69-5032. ARKWRIGHT V. GEORGIA, 408 U.S. 936;
No. 69-5039. LEE, AKA KING v. GEORGIA, 408 U. S.
936;
No. 69-5043. HUFFMAN v. BETO, CORRECTIONS DIRECTOR,
408 U. S. 936;
No. 69-5045. THACKER v. GEORGIA, 408 U. S. 936;
No. 69-5049. WILLIAMS v. GEORGIA, 408 U. S. 936;
No. 70--3. WALKER V. GEORGIA, 408 U. S. 936;
No. 70--295. FIRST NATIONAL CITY BANK v. BANCO
NACIONAL DE CUBA, 406 U. s. 759;
No. 70--303. UNITED STATES v. KoRMAN ET AL., 406
U. S. 952; and
~o. 70-322. IN RE WARREN, 408 U.S. 942. Petitions
for rehearing denied.
898 OCTOBER TERM, 1972
October 10, 1972 409 U.S.
No. 70-5008. DAvrn, AKA DAVIS v. TEXAS, 408 U. S.
937;
No. 70-5011. THAMES v. TEXAS, 408 U. S. 937;
N 0. 70-5022. TEA v. TEXAS, 408 U. s. 937;
No. 70-5024. FARRELL v. STOVALL ET AL., 407 U. S.
901;
No. 70-5031. SELLARS v. BETO, CoRRECTIONS DIRECTOR,
408 U. S. 937;
°No. 70-5044. JACKSON V. BETO, CORRECTIONS DIRECTOR,
408 U. S. 937;
No. 70-5064. JEFFERSON ET AL. V. HACKNEY, COMMISSIONER
OF PUBLIC WELFARE, ET AL., 406 U. S. 535;
No. 70-5065. MILLER v. GEORGIA, 408 U. S. 938;
No. 70-5066. WrLLIAMS v. SMITH, WARDEN, 408 U. S.
938;
No. 70-5067. MORALES v. TExAs, 408 U. S. 938;
No. 70-5069. McKENZIE v. TEXAS, 408 U. S. 938;
No. 70-5079. HENDERSON v. GEORGIA, 408 U. S. 938;
No. 71-249. ORR v. TRINTER ET AL., 408 U.S. 943;
No. 71- 308. UNITED STATES v. BYRUM, EXECUTRIX,
408 U. S. 125;
No. 71-473. WEG v. UNITED STATES, 406 U. S. 962;
No. 71- 506. UNITED STATES ET AL. v. MrnwEsT VmEO
CORP., 406 U. s. 649;
No. 71- 1111. MusE v. NORTH CAROLINA, 406 U. S.
974;
No. 71-1147. FORD MOTOR Co. v. ELLIPSE CoRP., 406
U.S. 948;
No. 71-1164. W ATTs v. MYLrus, 406 U. S. 906 _:
No. 71-1206. DEPUGH v. UNITED STATES, 407 U. S.
920;
No. 71 - 1214. STEIN v. UNITED STATES, 408 U. S.
922; and
No. 71- 1227. MASTROTATARO V. UNITED STATES, 406
U. S. 967. ' Petit.ions for rehearing denied.
ORDERS 899
409 U.S. October 10, 1972
No. 71-1257. MooRE ET AL. v. UNITED STATES, 407
u. s. 910;
No. 71-1270. McKEE v. UNITED STATES, 407 U. S.
910;
No. 71-1280. B. FORMAN Co., INC., E'l' AL. v. COMMISSIONER
OF INTERN AL REVENUE, 407 U. s. 934:
No. 71-1295. WENGER v. UNITED STATES, 407 F. S.
920;
o. 71- 1307. SAMUELS V. 'CNITED STATES, 407 u. S.
920;
No. 71-1330. KATZ v. UNITED STATES, 408 U.S. 923;
No. 71-1379. WATTS v. TEAGLE ET AL., 407 U.S. 920;
No. 71-1383. PooLEY v. MISSISSIPPI, 408 U. S. 928;
No. 71-1457. MONSANTO Co. v. ROHM & HAAS Co.,
407 U. S. 934;
No. 71- 1466. GoRSALITZ v. OLIN MATHIESON CHEMICAL
CORP., 407 u. S. 921;
No. 71-1549. BLANKNER V. CITY OF CHICAGO, 408
U.S. 931;
No. 71-5228. CURRY v. TEXAS, 408 U. S. 939;
No. 71-5744. PHELAN v . BRIERLEY, WARDEN, 408
U. S. 939;
No. 71-5972. ESGATE V. ENGLISH, SHERIFF, 406
U. S. 959;
No. 71-6025. Hooo v. BuRNETT ET AL. , 405 U. S.
1068;
No. 71-6068. STANLEY v. TEXAS, 408 U. S. 939;
No. 71-6158. FoGGY v. ARIZONA ET AL., 407 U.S. 915;
No. 71-6164. LEVY v. UNITED STATES DISTRICT CouRT
FOR THE SOUTHERN DISTRICT OF FLORIDA ET AL., 406 U. S.
916;
No. 71-6183. MATTHEWS v. TEXAS, 408 U. S. 940;
No. 71-6210. ANSLEY v. GEORGIA, 408 U.S. 929; and
No. 71-6256. ALERS V. SUPERIOR COURT OF PUERTO
Rico, 406 U. S. 914. Petitions for rehearing denied.
900 OCTOBER TERM, 1972
October 10, 1972 409 U.S.
No. 71-6342. ·WALTON v. VIRGINIA, 408 U. S. 925;
No. 71-6344. QuATTRUCCI v. UNITED STATES, 406
U. S. 960;
No. 71-6391. FREEMAN v. UNITED STATES, 406 U . S.
975;
No. 71-6400. NASH v. AMERADA HESS CORP. ET AL . .
406 U.S. 948;
No. 71-6418. KRIKMANIS v. WHITE, MAYOR OF Bos-
TON, ET AL., 406 U. S. 961;
No. 71 - 6443. Cr,ARK v. JOHNSON ET AL .. 407 U. S.
913;
No. 71- 6452. ECKERT V. CITY OF PHILADELPHIA,
PENNSYLVANIA, ET AL., 406 U. S. 970;
No. 71 - 6474. ERWING v. UNITED STATES, 407 U. S.
922;
No. 71- 6519. BLAUNER v . UNITED STATES, 407 U. S.
920;
No. 71-6538. HUCKABAY V. WOODMANSEE, JUDGE, ET
AL., 407 U. S. 926;
No. 71- 6573. GERARDI v. UNITED STATES DISTRICT
COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA ET AL.,
407 U. S. 919;
No. 71 - 6578. PILLIS ET AL. V. GOVERNOR OF VIRGINIA
ET AL., 407 u. S. 923;
No. 71- 6600. IN RE WAYLAND, 407 U.S. 924; and
No. 71-6630. PILLIS ET AL. v. SrATE BOARD OF ELECTIONS
ET AL., 408 U. S. 927. Petitions for rehearing
denied.
No. 68-5008. MILLER v. MARYLAND, 408 U. S. 934;
Ko. 69-5013. MEFFORD v. WARDEN, MARYLAND PENITENTIARY,
408 U. 8. 935;
No. 69- 5025. KELBACH ET AL. v. UTAH, 408 U. S.
935; and
No. 70-5046. JOHNSON V. MARYLAND, 408 e. S. 937.
Motions for leave to file petitions for rehearing denied.
ORDERS 901
409 U.S. October 10, 1972
No. 70-5062. CuNNINGHAM v. WARDEN, MARYLAND
PENITENTIARY, 408 U. S. 938;
No. 70-5326. ARRINGTON v. MARYLAND, 408 U. S.
938;
No. 71-5008. BARTHOLOMEY v. MARYLAND, 408 U. S.
938;
No. 71 - 5192. TuLL v. WARDEN, MARYLAND PENITENTIARY,
408 U.S. 939;
No. 71-5197. STRONG v. MARYLAND, 408 U. S. 939;
No. 71-5689. NACHBArR v. HERMAN, 405 U. S. 931;
No. 71-6109. NEGRON v. AGNEW, STATE HosPITAL
DIRECTOR, 406 U. S. 968;
No. 71 - 6120. SHIELDS v. UNITED STATES, 406 U. S.
910;
No. 71- 6137. GILMORE v. MARYLAND, 408 U. S. 940;
No. 71- 6341. DmGs v. UNITED STA'IES, 406 U.S. 952;
No. 71 - 6242. BRADLEY v. WrNGO, WARDEN, 406 U. S.
915;
No. 71-6257. OwrNGs v. SECRETARY OF THE Arn FoRCE,
406 U. S. 926;
No. 71-6480. T1LLI v. DAVIS ET AL., 407 U. S. 908.
Motions for leave to file petitions for rehearing denied.
No. 71-183. AGUA CALIENTE BAND oF M1ssrnN INDIANS
ET AL. V. COUNTY OF RIVERSIDE, CALIFORNIA, 405
U. S. 933, 1033;
No. 71- 5428. LIPSCOMB v. UNITED STATES, 404 U. S.
1021 , 406 U.S. 911; and
No. 71-5531. LIPSCOMB V. WARDEN, ATLANTA PENITENTIARY,
ET AL. , 404 u. S. 1005, 1064. Motions for
leave to file second petitions for rehearing denied.
~o. 71-288. LAIRD, SECRETARY oF DEFENSE, ET AL. v.
TATUM ET AL., 408 U. S. 1. Petition for rehearing
denied.*
*[Ri,:PORTER's KOTE: See also ante, p. 824.)
902 OCTOBER TERM, 1972
October 10, 1972 409 U.S.
No. 69- 5003. FURMAN v. GEORGIA;
No. 69-5030. JACKSON v. GEORGIA; and
No. 69 - 5031. BRANCH v. TEXAS, 408 U.S. 238. Motion
of Committee of State Chief Justices (retired) for
leave to file a brief as amiew, curiae in support of rehearing
granted. Petitions for rehearing denied.
No. 70-5039. FUENTES v. SHEVIN, ATTORNEY GENERAL
OF FLORIDA , ET AL., 407 U.S. 67. Motion of National
Consumer Law Center, Inc., for leave to file a brief as
amicu.s curiae in opposition to petitions for rehearing
denied. Petitions for rehearing denied. MR. JUSTICE
POWELL and MR. JUSTICE REHNQUIST took no part in the
consideration or decision of these petitions and this
motion.
No. 70-5138. PARHAM ET AL. V. CORTESE ET AL., 407
U. S. 67. Petition for rehearing denied. MR. JUSTICE
POWELL and MR. JUSTICE REHNQUIST took no part in the
consideration or decision of this petition.
No. 71-315. DEEPSOUTH PACKING Co., INc. v.
LAITRAM CORP., 406 U. S. 518. Motion for leave to supplement
petition for rehearing granted. Petition for
rehearing denied.
No. 71-573. LAIRD, SECRETARY OF DEFENSE, ET AL.
v. NELMS ET AL., 406 U. S. 797. Petition for rehearing
denied. MR. JUSTICE DOUGLAS took no part in the consideration
or decision of this petition.
No. 71 - 1017. GRAVEL v . UNITED STATES; and
No. 71 - 1026. UNITED STATES v. GRAVEL, 408 U. S.
606. Motion to recuse, presented to MR. JUSTICE REHNQUIST,
by him denied.* Petition for rehearing denied.
No. 71-1169. MOBIL OrL CoRP. v. MATZEN ET AL.
Petition for rehearing denied. MR. JUSTICE STEWART
and MR. JUSTICE POWELL took no part in the consideration
or decision of this petition.
*[REPORTER'S NOTE: See also ante, p. 839 n. 7.]
ORDERS 903
409 U.S. October 10, 1972
No. 71-1179. AMoco PRODUCTION Co. v. WAECHTER
ET AL.;
No. 71-1188. CITIES SERVICE OIL Co. v. MATZEN ET
AL.; and
No. 71-1326. FEDERAL PowER COMMISSION v. MOBIL
OIL CORP. ET AL., 406 U. S. 976. Petitions for rehearing
denied. MR. JUSTICE STEWART and MR. JusTICE PowELL
took no part in the consideration or decision of these
petitions.
No. 71-1232. LANDERMAN ET AL. V. COMMISSIONER
OF INTERNAL REVENUE, 406 U. S. 967. Motion to dispense
with printing petition for rehearing granted. Motion
for leave to file petition for rehearing denied.
No. 71-1291. CHANDLER, U. 8. DISTRICT JUDGE V.
BATTISTI, CHIEF JUDGE, U.S. DISTRICT COURT, 406 U.S.
956. Petition for rehearing denied. MR. JUS'I'ICE
MARSHALL took no part in the consideration or decision
of this petition.
No. 71-1411. Lu v. SIDA OF HAWAII, !Ne., ET AL.,
408 U. S. 930. Motion to dispense with printing petition
for rehearing granted. Petition for rehearing denied.
No. 71-1435. STATE DEPARTMENT OF HEALTH AND
REHABILITATIVE SERVICES OF FLORIDA ET AL. v. ZARATE
ET AL., 407 U. S. 918. Petition for rehearing or in the
aiternative for clarification of lower court opinion 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
District of Columbia Circuit beginning December 4 ,
1972, and ending December 8, 1972, 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.
904 OCTOBER TERM, 1972
October 12, 16, 1972
OCTOBER 12, 1972
Dismissal Under Rule 60
409 U.S.
No. 72- 273. NORTHERN ACCEPTANCE TRUST 1065 V.
BRINKERHOFF ET AL. C. A. 9th Cir. Petition for writ
of certiorari dismissed under Rule 60 of the Rules of
this Court.
OCTOBER 16, 1972
Affirmed on Appeal
No. 71- 1447. DAVIDSON, SECRETARY, MARYLAND DEPARTMENT
OF EMPLOYMENT AND SOCIAL SERVICES, ET
AL. v. FRANCIS ET AL. Appeal from D. C. Md. Motion
of appellees for leave to proceed in forma pauperis
granted. Judgment affirmed. Reported below: 340 F.
Supp. 351.
No. 71- 1547. C & H TRANSPORTATION Co., lNc., ET
AL. v. INTERSTATE COMMERCE COMMISSION; and
No. 72-149. UNITED STATES v. INTERSTATE COMMERCE
COMMISSION (INTERNATIONAL TRANSPORT, INC., CASE).
Affirmed on appeal from D. C. W. D. Mo. Reported
below: 337 F. Supp. 985.
No. 71-6774. SIMPSON v. OATES ET AL. Affirmed on
appeal from D. C. E. D. Cal.
No. 72- 25. AMERICAN YEARBOOK Co., INC. V. ASKEW,
GOVERNOR OF :FLORIDA, ET AL. Affirmed on appeal from
D. C. M. D. Fla. MR. JUSTICE BRENNAN and MR. Jus-
TICE WHITE would note probable jurisdiction and set
case for oral argument. MR. JUSTICE BLACKMVN took
no pa.rt in the consideration or decision of this case.
Reported below: 339 F. Supp. 719.
No. 72-150. UNITED STATES v. INTERSTATE COMMERCE
COMMISSION (AcE DORAN HAULING Co. CAsE). Affirmed
on appeal from D. C. W. D. Pa. MR. JUSTICE
DOUGLAS would note probable jurisdiction and set case
for oral argument. Reported below: 345 F. Supp. 743.
ORDERS 905
409U.S. October 16, 1972
Appeals Dismissed
No. 71 - 1408. AERO MAYFLOWER TRANSIT Co. , INC. ,
ET AL. v. UNITED STATES ET AL. Appeal from D. C.
S. D. Ind.; and
No. 71-1419. HUTTER ET ux. v. KoRZEN. Appeal
from Sup. Ct. Ill. Motion to supplement jurisdictional
statement in No. 71-1408 granted. Appeals dismissed
for failure to docket cases within time prescribed by
Rule 13 ( 1) of the Rules of this Court.
MR. JUSTICE DOUGLAS , dissenting.
These cases, here on appeal, are dismissed by the Court,
as being out of time under our Rules. I dissent from
that disposition.
We held in United Public Workers v. Mitchell, 330
U. S. 75, 84--86, that the Rules of this Court determine
the effect of untimely docketing. Only the filing of the
notice of appeal is jurisdictional. Docketing is prescribed
by Rule 13 ( 1), and this Court in case after case
has in its discretion waived the strictures of that rule.
Up to now it has, _indeed, been more concerned with disposing
of cases as justice may require rather than finding
technical ways to avoid decision of knotty questions.
In the Aero Mayflower Transit Co. case the threejudge
court entered its judgment on December 29, 1971,
and Aero Mayflower filed its notice of appeal on February
14, 1972, within the 60-day period prescribed by
28 U. S. C. § 2101 (a) but did not docket its case within
the subsequent 60-day period. Instead, it filed its jurisdictional
statement on April 28, 1972, 14 days out of
time.
In the Hutter case the notice of appeal was filed on
February 17, 1972, following denial by the Illinois Supreme
Court of Hutter' s motion to reconsider on January
18, 1972. This was timely under§ 2101 (c). Dock906
OCTOBER TERM, 1972
DouGLAS, J., dissenting 409 U.S.
eting on May 1, 1972, however, did not occur within the
period provided by Rule 13 (1). but was 14 days late.
The delay in each of these appeals was much shorter
than that which occurred in Johnson v. Florida, 391
U. S. 596, where we entertained an appeal that was not
docketed until 56 days after the time provided in Rule
13 (1) expired. 391 U. S., a.t 598 n.
In Durham v. United States, 401 U.S. 481 (1971), the
Court considered a petition for certiorari in which the
opinion of the Court of Appeals was filed on November
12, 1969, rehearing was denied on March 5 1970, and
the petition was filed on September 26, 1970. Under
Rule 22 (2) that applied in that case, the petition was
more than five months out of time. Only MR. JUSTICE
BLACKMUN dissented.
Our Rules are only guidelines for litigants and we do
disservice to the administration of justice by exalting
them as Baron Parke doubtless would have done. Our
experience with our Rules shows that lateness in docketing
may be due to slow delivery of the mail ( which is
even worse today than it was 10 years ago), to snowstorms'
that stop or slow up all traffic, to sickness of
1 Teague v. Regional, Comm'r of Customs, 394 U. S. 977, 984,
was a case in which a petition for certiorari was filed two days
after the 90-day statutory period had elapsed, the delay being caused
by a snowstorm. Justice Blark wrote in dissent:
"It might be well to imagine for a moment what would have
happened if some Senator or Representative had suggested an amendment
to 'clarify' the proposed § 2101 (c) by stating that a petition
filed after the 90-day period will not be out of time 'when the delay
is caused solely by an interruption of the mail service due to snowstorms.'
It is conceivable that more than a few members of Congress
would consider such an amendment an insult to this Court's
intelligence and would feel it unnecessary to lead this Court by the
hand on such matters of elementary common sense. It is impossible,
however, to believe that any of them would have regarded
an amendment to the opposite effect as properly reflecting the purpose
of the statute, and yet this opposite amendment, ruling a petiORDERS
90i
409U.S. Octobrr 16, 19i2
counsel, or to other accidents that make untimely docketing
that normally would be on time. Before we penalize
litigants for late docketing of appeals we should have a
case that shows palpable neglect.2
No. 71-1554. UNITED STATES CHAMBER OF CoMMERCE
v. FRANCIS ET AL. Appeal from D. C. Md. Motion
of appellee Wright for leave to proceed in fonna pauperis
granted. Motion for consolidation with No. 71-1447
[Davidson v. Francis, supra] and for other relief denied.
Appeal dismissed for want of jurisdiction. Reported
below: See 340 F. Supp. 351.
No. 71-6740. LLOYD ET AL. V. THIRD JUDICIAL DISTRICT
CocRT IN AND FOR SALT LAKE CouNTY. Appeal
from Sup. Ct. Utah dismissed, it appearing that the
judgment below rests upon an adequate state ground.
Reported below: 27 Utah 2d 322, 495 P. 2d 1262.
No. 72-189. KISLEY, TRADING AS FALLS C'HVRCH
HEALTH CENTER, ET AL. V. CITY OF FALLS CHURCH ET
AL. Appeal from Sup. Ct. Va. dismissed for want of
substantial federal question. Reported below: 212 Va.
693, 187 S. E. 2d 168.
tion out of time under these circumstances, is precisely the amendment
that the Court today tacitly engrafts onto § 2101 ( c).
"I would not adopt any such pointlessly harsh interpretation of
the statute, one that furthers no congressional objective whatsoever
and denies litiganls their opportunity to seek review in this Court
on the basis of atmospheric events wholly beyond their control.
This is a return to all the cruel technicalities of common-law pleading,
and then some .... "
2 In many of our cases we have entertained petitions, though
docketed after expiration of the time prescribed in our Rules: Smith
v. Mississippi, 373 U. S. 238; Arnold v. North Carolina, 376 U. S.
i73; Mazzie v. United States, 37.5 U. S. 32 ; Robison v. United
States, 390 U.S. 198; Nelson v. United States, 392 U.S. 303; Ful,ler
v. Alaska, 393 U. S. 80; Banks v. California, 382 U. S. 420; Long v.
Parker, 384 U.S. 32; Serio v. ['nited States, 392 U.S. 305.
908 OCTOBER TERM, 1972
October 16, 1972 409 U.S.
No. 72-5252. HowARD v. ALLEN. Appeal from Sup.
Ct. Ohio dismissed for want of substantial federal question.
Reported below: 30 Ohio St. 2d 130, 283 N. E.
2d 167.
No. 72-5161. SAFFIOTI v. UNITED STATES. Appeal
from C. A. 2d Cir. dismissed for want of jurisdiction.
Treating the papers whereon the appeal was taken as
a petition for writ of certiorari, certiorari denied.
No. 72-5294. HILL ET AL. 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. Reported
below: 51 Ill. 2d 418, 283 N. E. 2d 225.
Certiorari Grante,d-Vacate-d and Remanded
No. 72-5026. GAGLIE v. UNITED STATES. C. A. 9th
Cir. Motion for leave to proceed in forma pauperis
and certiorari granted. Judgment vacated and case
remanded for further consideration in light of position
presently asserted by the Government.
Miscellaneous Or.ders
No. A-294 (72-492). FRIED v. UNITED STATES. C. A.
2d Cir. Application for continuance of bail and stay
of mandate presented to MR. JusTICE MARSHALL, and
by him referred to the Court, denied.
No. A-349. STONE ET AL. v. MAINE. Sup. Jud. Ct.
Maine. Application for bail presented to MR. JUSTICE
DOUGLAS, and by him referred to the Court, denied.
Reported below: 294 A. 2d 683.
No. A-360 (72-730). MARKLE ET AL. v. ABELE ET AL.
D. C. Conn. Application for stay presented to THE
CHIEF JUSTICE, and by him referred to the Court,
granted. MR. JusTICE DouGLAS would deny the application.
Reported below: 351 F. Supp. 224.
ORDERS 909
409U.S. October 16, 1972
No. A-377. BOARD OF EDUCATION OF MEMPHIS CITY
SCHOOLS ET AL. V. NORTHCROSS ET AL. D. C. w. D.
Tenn. Application for stay presented to MR. JusTICE
STEWART, and by him referred to the Court, denied.
Reported below: See 341 F. Supp. 583.
No. A-393. SLOBODIAN v. NEW JERSEY. Sup. Ct.
N. J. Application for bail presented to MR. JusTICE
BRENNAN, and by him referred to the Court, denied.
No. 9, Orig. UNITED STATES v. LOUISIANA ET AL.
(LOUISIANA BOUNDARY CASE). Motion of State of Louisiana
for entry of a supplemental decree (No. 4) as to
the United States granted [see ante, p. 17]. Motion
of the United States for leave to file an account of
funds released from impoundment pursuant to supplemental
decree (No. 3) of December 20, 1971 [ 404 U . S.
388] , granted. MR. JUSTICE MARSHALL took no part
in the consideration or decision of these motions.
No. 58, Orig. AMERICAN PARTY ET AL. v. NEW YORK
ET AL. Motion for temporary restraining order denied.
No. 70-2. UNITED STATES v. 12 200-FT. REELS OF
SUPER 8MM. FILM ET AL. (PALADINI, CLAIMANT). Appeal
from D. C. C. D. Cal. [Probable jurisdiction noted,
403 U. S. 930.] Motion of First Amendment Lawyers'
Assn. for leave to file untimely brief as a.micus curiae
in support of appellees granted. Motion of Joel Hirschhorn
for leave to participate in oral argument as ami cus
curiae in support of appellees denied.
No. 70-40. DoE ET AL. v. BoLTON, ATTORNEY GENERAL
OF GEORGIA, ET AL. Appeal from D. C. N . D. Ga.
[Restored to calendar, 408 U. S. 919.] Motion of appellants
for leave to present late authorities granted.
No. 72- 5238. KocHEL v. MARYLAND. Motion for
leave t-0 file petition for writ of habeas corpus denied.
910 OCTOBER TERM, 1972
October 16, 1972 4091T. S.
No. 71-653. GrnsoN ET AL. v. BERRYHILL Er AL.
Appeal from D. C. M. D. Ala. [Probable jurisdiction
noted, 408 U. S. 920.] Motion to dispense with printing
appendix granted.
No. 71-718. McGINNIS, CORRECTION COMMISSIONER,
ET AL. v. ROYSTER ET AL. Appeal from D. C. S. D. N. Y.
[Probable jurisdiction noted, 405 U. S. 986.] Motion to
permit G. Jeffery Sorge, Esquire, to argue pro hac vice
in place of James J. McDonough for appellees granted.
No. 71-1134. RoADEN v. KENTUCKY. Ct. App. Ky.
[Certiorari granted, 406 U. S. 905.] Motion of Charles
H. Keating, Jr., for leave to file a brief as amicus curiae
granted. Motion of First Amendment Lawyers' Assn.
for leave to file untimely brief as amicus curiae in support
of petitioner denied. Motion of Joel Hirschhorn for
leave to participate in oral argument as amicus curiae in
support of petitioner denied.
No. 71-1136. TILLMAN ET AL. v. WHEATON-HAVEN
RECREATION AssN., INC., ET AL. C. A. 4th Cir. [Certiorari
granted, 406 U. S. 916.] Motion of respondent
McIntyre for additional counsel to participate in oral
argument granted but motion for additional time for oral
argument denied.
No. 71-1192. GoLDSTEIN ET AL. v. CALIFORNIA. App.
Dept., Super. Ct. Cal., County of Los Angeles. [Certiorari
granted, 406 U. S. 956.] Motions of American
Federatio_n of Musicians et al. and Recording Industry
Association of America, Inc., for leave to file briefs as
amici curiae granted.
No. 72-549. SCHOOL BOARD OF RICHMOND, VIRGINIA,
ET AL. V. STATE BOARD OF EDUCATION OF VIRGINIA ET AL.
C. A. 4th Cir. Motion to advance and for pendente lite
relief denied. Reported below: 462 F. 2d 1058.
ORDERS 911
409 U.S. October 16, 1972
No. 71-1315. ALEXANDER ET AL. v. VIRGINIA. Sup.
Ct. Va. [Certiorari granted, 408 U. S. 921.] Motion of
First Amendment Lawyers' Assn. for leave to file untimely
brief as amicus curiae in support of petitioners
granted. Motion of Joel Hirschhorn for leave to participate
in oral argument as amicus curiae in support of
petitioners denied.
No. 72-5038. CHAVEZ ET AL. V. FRESHPICT FOODS,
INc., ET AL. C. A. 10th Cir. The Solicitor General is
invited to file a brief expressing the views of the United
States. Reported below: 456 F. 2d 890.
Probable Jurisdiction Noted
No. 71-1523. HUNT v. McNArn, GovERNOR OF SouTH
CAROLINA, ET AL. Appeal from Sup. Ct. S. C. Probable
jurisdiction noted. Reported below: 258 S. C. 97,
187 S. E. 2d 645.
No. 72-75. GEORGIA ET AL. v. UNITED STATES. Appeal
from D. C. N. D. Ga. Probable jurisdiction noted.
Reported below: 351 F. Supp. 444.
No. 71-1583. BROWN, SECRETARY OF STATE OF CALIFORNIA
v. CHOTE. Appeal from D. C. N. D. Cal. Motion
of appellee for leave to proceed in jorma pauperis
granted. Probable jurisdiction noted. Reported below:
342 F. Supp. 1353.
Certiorari Granted
No. 71-1005. MrcHIGAN v. PAYNE. Sup. Ct. Mich.
Motion of respondent for leave to proceed in j orma
pauperis and certiorari granted. Reported below: 386
Mich. 84, 191 N. W. 2d 375.
No. 71-1585. UNITED STATES v. RUSSELL. C. A. 9th
Cir. Motion of respondent for leave to proceed in forma
pauperis and certiorari granted. Reported below: 459
F. 2d 671.
012 OCTOBER TERM, 1972
October 16, 1972 4091! . s.
No. 72-95. TOLLETT, WARDEN v. HENDERSON. C. A.
6th Cir. Motion of respondent for leave to proceed
in forma pauperis and certiorari granted. Reported below:
459 F. 2d 237.
No. 71-6732. CHAFFIN v. STYNCHCOMBE, SHERIFF.
C. A. 5th Cir. Motion for leave to proceed in f orma
pauperis and certiorari granted. Reported below: 455
F. 2d 640.
Certiorari Denied. (See also Nos. 72-5161 and 72-5294,
supra.)
No. 71-1566. BLASECKI ET AL. v. CITY OF DURHAM,
NORTH CAROLINA, ET AL. C. A. 4th Cir. Certiorari
denied. Reported below: 456 F. 2d 87.
No. 71-1572. BowLING ET AL. v. CALIFORNIA. Ct.
App. Cal., 2d App. Dist. Certiorari denied.
No. 71-1618. OTTO v. KosoFSKY ET AL. Ct. App. Ky.
Certiorari denied. Reported below: 476 S. W. 2d 626.
No. 71-1705. BoMBACINO v. ILLINOIS. Sup. Ct. Ill.
Certiorari denied. Reported below: 51 Ill. 2d 17, 280
N. E. 2d 697.
No. 71-5601. SWEENEY v. CouNTY OF MONROE ET AL.
Ct. App. N. Y. Certiorari denied.
No. 71-6185. MALLARD v. OKLAHOMA. Ct. Crim.
App. Okla. Certiorari denied. Reported below: 490
P. 2d 1383.
No. 71-6298. GABRIELSON v. lowA. Sup. Ct. Iowa.
Certiorari denied. Reported below: 192 N. W. 2d 792.
No. 71-6326. BLAKE v. COINER, WARDEN. C. A. 4th
Cir. Certiorari denied.
No. 71-6~44. VANDERBURGH v. NEw YoRK . . App.
Div., Sup. Ct. N. Y., 4th Jud. Dept. Certiorari denied.
ORDERS 913
409 U.S. October 16, 1972
No. 71-6517. DOTSON v. LoursIANA. Sup. Ct. La.
Certiorari denied. Reported below: 260 La. 471, 256
So. 2d 594.
No. 71-6724. PATTERSON v. OHIO. Sup. Ct. Ohio.
Certiorari denied. Reported below: 28 Ohio St. 2d 181,
277 N. E. 2d 201.
No. 71-6~ ~- BooNE ET AL. v. CALIFORNIA. Ct. App.
Cal., 1st App. Dist. Certiorari denied.
No. 71-6739. EVANS v. ARKANSAS. C. A. 8th Cir.
Certiorari denied.
No. 71-6765. FINCHER v. VIRGINIA. Sup. Ct. Va.
Certiorari denied. Reported below: 212 Va. 552, 186
S. E. 2d 75.
No. 71-6768. DAVIS v. SUPERIOR CouRT oF Los ANGELES
CouNrY. Ct. App. Cal., 2d App. Dist. Certiorari
denied.
No. 71-6839. GoMORI v. OHIO. Sup. Ct. Ohio.
Certiorari denied.
No. 71-6856. SMITH v. UNITED STATES. C. A. 4th
Cir. Certiorari denied.
No. 71-6872. LOVINGOOD v. Ross, ParsoN FARM
SUPERINTENDENT. C. A. 4th Cir. Certiorari denied.
No. 71-6898. SMITH v. UNITED STATES. C. A. 4th
Cir. Certiorari denied.
No. 71- 6908. HOLIDAY v. UNITED STATES. C. A. 3d
Cir. Certiorari denied. Reported below: 457 F. 2d 912.
No. 71-6909. PICKERELL v. CALIFORNIA. Sup. Ct.
Cal. Certiorari denied.
No. 71-6923. RONSTADT v. CALIFORNIA. Ct. App.
Cal., 2d App. Dist. Certiorari denied.
914 OCTOBER TER:VI, 1972
October 16, 1972 409 U.S.
No. 71-6925. HANDLEY ET AL. v. ILLINOIS. Sup. Ct.
Ill. Certiorari denied. Reported below: 51 Ill. 2d 229,
282 N. E. 2d 131.
No. 72-40. GONZALES v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 461 F. 2d
1000.
No. 72-54. PLAQUEMINE EQUIPMENT & MACHINE Co.
ET AL. v. NEUMAN, DEPUTY COMMISSIONER, BUREAU OF
EMPLOYEES' COMPENSATION, u. s. DEPARTMENT OF
LABOR. C. A. 5th Cir. Certiorari denied. Reported
below: 460 F. 2d 1241.
No. 72-74. BARRETT ET AL. v. K u NzIG, ADMINISTRATOR,
GENERAL SERVICES ADMINISTRATION, ET AL. C. A.
6th Cir. Certiorari denied. Reported below: See 331
F. Supp. 266.
No. 72-82. TOME0 v. UNITED STATES. C. A. 10th
Cir. Certiorari denied. Reported below: 459 F. 2d 445.
No. 72-118. KROPKE v. UNITED STATES;
No. 72-119. STAPLETON V. UNITED STATES;
No. 72-120. KuNz v. UNITED STATES;
No. 72-121. MURPHY v. UNITED STATES; and
No. 72-128. STERNKOPF v. UNITED STATES. C. A. 3d
Cir. Certiorari denied. Reported below: 462 F. 2d
1205.
No. 72-131. GRANT ET AL. v. UNITED STATES. C. A.
2d Cir. Certiorari denied. Reported below: 462 F. 2d 28.
No. 72-141. GREENSEID ET AL. v. STEWART, SUPERINTENDENT
OF INSURANCE. Ct. App. N. Y. Certiorari
denied. Reported below: 30 N. Y. 2d 730, 284 N. E.
2d 152.
No. 72-142. RUISI ET AL. v. UNITED STATES. C. A.
2d Cir. Certiorari denied. Reported below: 460 F.
2d 153.
ORDERS 915
409 U.S. October 16, 1972
No. 72-152. MING v. UNITED STATES. C. A. 7th
Cir. Certiorari denied. Reported below: 466 F. 2d 1000.
No. 72-153. GNoss ET AL. v. YouNG ET AL. Sup.
Ct. Cal. Certiorari denied. Reported below: 7 Cal. 3d
18, 496 P. 2d 445.
No. 72-156. ZARATE v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 458 F. 2d 514.
No. 72-168. ANDERSON v. UNITED STATES. C. A. 6th
Cir. Certiorari denied.
No. 72- 183. CRAWFORD v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 462 F. 2d 597.
No. 72-186. MuNCHAK v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. Reported below: 460 F. 2d 1407.
No. 72-188. MARTINEZ-VILLANUEVA ET AL. v. UNITED
STATES. C. A. 9th Cir. Certiorari denied. Reported
below: 463 F. 2d 1336.
No. 72-194. LANDIS TOOL Co., DIVISION OF LITTON
INDUSTRIES 1J. NATIONAL LABOR RELATIONS BOARD. C. A.
3d Cir. Certiorari denied. Reported below: 460 F. 2d
23.
No. 72-197. WoMACK. ExECUTOR, ET AL. v. FAIR ET AL.
Sup. Ct. Tenn. Certiorari denied. R eported below:
- Tenn.-, 482 S. W. 2d 555.
No. 72-199. ROMANO v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. Reported below: 460 F. 2d
1198.
No. 72 206. CoLQUITT CouNTY BOARD OF EnuCATION
ET AL. v. HARRINGTON ET AL. C. A. 5th Cir. Certiorari
denied. Reported below: 460 F. 2d 193.
No. 72--5022. ·WRIGHT v. UNITED STATES. C. A. 3d
Cir. Certiorari denied. R eported below: 461 F. 2d 586.
916 OCTOBER TERM, 1972
October 16, 1972 409U. S.
No. 72-209. VLAHAKIS v. ScHOSTAK ET AL. App. Ct.
Ill., 1st Dist. Certiorari denied. Reported below: 133
Ill. App. 2d 690,274 N. E. 2d 655.
No. 72-211. LEwRoN TELEVISION, INC. v. UNITED
NETWORK, INc., FORMERLY JAYMAC, INc. C. A. 2d Cir.
Certiorari denied. Reported below: 459 F. 2d 556.
No. 72-5033. BULLARD v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 458 F. 2d 17.
No. 72-5047. SANDERS v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 469 F. 2d 1406.
No. 72-5062. HuRD v. SLAUGHTER ET AL. C. A. 9th
Cir. Certiorari denied.
No. 72-5071. VoN PERRY v. TEXAS. C. A. 5th Cir.
Certiorari denied. Reported below: 456 F. 2d 879.
No. 72-5077. SMITH v. NEW JERSEY. Super. Ct.
N. J. Certiorari denied.
No. 72-5085. JACKSON v. CALIFORNIA. Ct. App. Cal.,
4th App. Dist. Certiorari denied.
No. 72-5091. BENNETT v. RUNDLE, WARDEN, ET AL.
C. A. 3d Cir. Certiorari denied.
No. 72-5094. DOBBS v. ANDERSON, WARDEN. C. A.
10th Cir. Certiorari denied.
No. 72-5096. PATURSO v. MANCUSI, CORRECTIONAL
SUPERINTENDENT. C. A. 2d Cir. Certiorari denied.
No. 72-5103. WroN v. UNITED STATES. C. A. 10th
Cir. Certiorari denied.
No. 72-5104. WION v. UNITED STATES. C. A. 10th
Cir. Certiorari denied.
No. 72-5108. BRUDNEY v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 463 F . 2d 376.
ORDERS 917
409 U.S. October 16, 1972
No. 71-1386. Omo AFL--CIO, UNITED AUTOWORKERS
OF OHIO, ET AL. v. INSURANCE RATING BOARD ET AL. C. A.
6th Cir. Certiorari denied. Reported below: 451 F. 2d
1178.
MR. JUSTICE DOUGLAS, dissenting.
I would grant certiorari in this case.
The District Court dismissed petitioners' complaint,
which alleged that respondents had engaged in an illegal
combination and conspiracy in the fixing of automobile
insurance premiums in violation of the Sherman Antitrust
Act, 26 Stat. 209, as amended, 15 U. S. C. § 1
et seq., for lack of subject matter jurisdiction due to the
exemption of the insurance industry from antitrust laws
by § 2 of the McCarran-Ferguson Act, 59 Stat. 34, 15
U. S. C. § 1012.
The McCarran-Ferguson Act provides, in part, that
the Sherman Antitrust Act "shall be applicable to the
business of insurance to the extent that such business
is not regulated by State law." In FTC v.
National Casualty Co., 357 U. S. 560, 563, after examining
the statute and its legislative history, we held
that federal regulation as to advertising practices was
prohibited in those States which were regulating such
practices under their own laws. We indicated, however,
that the grant of exclusive regulatory power to the State
would be ineffective if the state statutory provisions
which purported to regulate were a "mere pretense" of
regulation.
In the instant case the petitioners allege that the
state statutory scheme is such a "mere pretense" of regulation.
This allegation is based on the following factors:
Although rating organizations are required to be examined
at least once every five years under the statutory
scheme, the state Department of Insurance has examined
only two rate bureaus in the last five years, and only
six examinations have been conducted in the last 20
918 OCTOBER TERM, 1972
October 16, 1972 409U. S.
years. The Insurance Rating Board, composed of 129
insurance companies which write approximately 17%
of the automobile liability insurance and approximately
22% of the physical damage insurance in the
State, is permitted under the statutory scheme to determine
the amount of any rate increase and institute that
increase at a date picked by it. Review of that determination
may occur only upon the challenge of the state
Department of Insurance, which has never challenged
an increase, and which in fact does not even employ an
actuary so as to be able to examine the increase.
A governmental regulatory agency which, in contradiction
of a statutory direction, only rarely exercises its
examinatory powers; which has never exercised its power
of review of rate increases; and which does not even
employ the personnel which would be necessary to exercise
the power would prima facie seem to be no more
than a "mere pretense" of regulation. Perhaps a full
hearing would show otherwise. But enough has been
tendered to make the trial court's dismissal of the complaint
improper and this petition a clear grant.
No. 72-5109. HILL v. GAUVIN ET AL. C. A. 5th Cir.
Certiorari denied. Reported below: 457 F. 2d 511.
No. 72-5112. BRYANT v. UNITED STATES. C. A. D. C.
Cir. Certiorari denied.
No. 72-5113. ENOCH v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 455 F. 2d
1382.
No. 72-5114. TREVINO v. UNITED STATES. C. A. 5th
Cir. Certiorari denied.
No. 72-5121. DONOVAN v. UNITED STATES. C. A. 2d
Cir. Certiorari denied.
No. 72-5122. WILKE v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 450 F. 2d 877.
ORDERS 919
409U. S. October 16, 1972
No. 71-1532. CHONGRIS ET AL. V. CORRIGAN ET AL.
Sup. Ct. Ohio. Certiorari denied. Reported below: 29
Ohio St. 2d 39, 278 N. E. 2d 658.
MR. JuSTICE DOUGLAS, dissenting.
In 1946, this Court articulated the standard to be
applied in testing flight patterns over private property
against the Just Compensation Clause of the Fifth
Amendment. United States v. Causby, 328 U. S. 256.
We held that "the :flight of airplanes, which skim the
surface but do not touch it, is as much an appropriation
of the use of the land as a more conventional entry upon
it." We noted that the important factor is whether
the intrusion impinges on "the owner's full enjoyment
of the property and ... his exploitation of it." Id.,
at 264-265. And, in 1962, we reiterated that standard.
Griggs v. Allegheny County, 369 U. S. 84.
State after State, in the years since Causby, has come
to the conclusion that airport zoning schemes that impose
height restrictions on the use of the land located below the
flight paths of approaching and departing aircraft are unconstitutional
efforts to avoid the costs properly incident
to the use of airport facilities, and that the imposition of
such regulations upon private property constitutes a
"taking" prohibited by the Constitution. Yara Engineering
Corp. v. Newark, 132 N. J. L. 370, 40 A. 2d 559
( 1945) ; Ackerman v. Port of Seattle, 55 Wash. 2d 400,
348 P. 2d 664 (1960); Indiana Toll Road Comm'r., v.
Jankovich, 244 Ind. 574, 193 N. E. 2d 237 (1963); Roark
v. Caldwell, 87 Idaho 557, 394 P. 2d 641 (1964); Jackson
Municipal Airport Authority v. Evans, 191 So. 2d 126
(Miss. 1966); and Sneed v. County of Riverside, 218 Cal.
App. 2d 205, 32 Cal. Rptr. 318 (1963). Lower Ohio
courts agreed. Hageman v. Bd. of Trustees, 20 Ohio
App. 2d 12, 251 N. E. 2d 507 (Montgomery Co., 1969);
23 Ohio Misc. 93, 259 N. E. 2d 162 (Common Pleas,
Montgomery Co., 1968).
920 OCTOBER TERM, 1972
DouGLAR, .J., dissenting 409 U.S.
Yet a quarter of a century after Causby, the Supreme
Court of Ohio has sustained the Airport Zoning Statutes
contained in Chapter 4563 of the Ohio Revised Code.
It accomplishes this tour de force through the application
of Euclid v. Ambler Realty Co., 272 U.S. 365. Reasoning
that zoning regulations always involve some restriction
on the uses to which land may be put, the court
balanced "the loss of use against the benefits to society
thus obtained." Village of Willoughby Hills v. Corrigan,
29 Ohio St. 2d 39, 46, 278 N. E. 2d 658, 663 (1972). It
is a nice question when police power comes to an end as a
justification for public taking of private property. Is it
when the public at large is benefited at the expense of an
owner of private property who has refrained from using
his land in a way that is not obnoxious to his neighbors?
Arguably eminent domain principles then apply; and,
although the public may force upon the property owner
the public need for his land, compensation is due him.
The Court's denial of the petition for certiorari in this
case suggests that " [ w] e are in danger of forgetting that
a strong public desire to improve the public condition is
not enough to warrant achieving the desire by a shorter
cut than the constitutional way of paying for the
change." Pennsylvania Coal Co. v. Mahon, 260 U. S.
393,416 (Holmes, J.).
The present case tenders some of the issues present
when the government seeks a scenic easement so as to
bar the erection of towers or other high structures. We
said in Causby:
"The path of glide for airplanes might reduce a
valuable factory site to grazing land, an orchard
to a vegetable patch, a residential section to a wheat
field. Some value would remain. But the use of
the airspace immediately above the land would limit
the utility of the land and cause a diminution in its
value." 328 U. S., at 262.
ORDERS 921
409U. S. October 16, 1972
Whether there has been a diminution in value of petitioners'
property is not clear from the present record.
Whether the zoning regulations themselves constitute a
taking is necessarily involved, as is the question of the
appropriate remedy for an aggrieved property owner.
These are all important questions of public importance
throughout the country and lead me to conclude that the
petition should be granted and the case put down for
oral argument.
No. 72-5123. DAVIS v. UNITED STATES. C. A. 5th Cir.
Certiorari denied. Reported below: 461 F. 2d 83.
No. 72-5127. LACA~E ET AL. v. UNITED STATES. C. A.
5th Cir. Certiorari denied. Reported below: 457 F. 2d
1075.
No. 72-5130. SALAZAR v. NEw MEXICO. C. A. 10th
Cir. Certiorari denied.
No. 72-5131. LEWIS v. UNITED STATES. C. A. 3d Cir.
Certiorari denied. Reported below: 459 F. 2d 315.
No. 71-1537. NEBRASKA STATE BOARD OF EDUCATION
ET AL. V. SCHOOL DISTRICT OF HARTINGTON, AKA SCHOOL
DISTRICT No. 8, CEDAR CouNTY. Sup. Ct. Neb. Certiorari
denied. Reported below: 188 Neb. 1, 195 N. W.
2d 161.
MR. .JusTICE DouGLAS, with whom MR. JusTICE MARSHALL
concurs, dissenting.
I would grant this petition for certiorari and put the
case down for oral argument. It involves alleged violations
of the First Amendment which are applicable to
the States by reason of the Fourteenth Amendment; and
the violations, on the papers before us, seem to me to be
of the kind that we struck down in Lemon v. Kurtzman,
403 U. S. 602.
What happened was this: The school district made application
to the State for financial aid in instructing stu922
OCTOBER TERM, 1972
DouGLAS, J., dissenting 409 u. s.
dents in remedial reading and remedial mathematics.
The application stated that the school district was leasing
the facilities of the Cedar Catholic High School as
a place to conduct this project. The students from both
the public school and the private school would attend
these classes.
The lease provided that no objects, pictures, or other
articles having a religious connotation would be visible
in the classroom.
This action was instituted in the Nebraska courts when
the state authorities refused to undertake the project.
The Supreme Court of Nebraska, by a divided vote, approved
the project over the objection that it violated
the First Amendment. 188 Neb. 1, 195 N. W. 2d 161.
Under the project as approved, state funds will be channeled
into this parochial school. In this case, as in
Lemon v. Kurtzman, the State is supplying funds for
instruction in parochial schools leading to a degree of
entanglement between government and religion which
runs counter to our opinions.
If a State can finance two courses in a parochial school,
there is no reason and logic why it cannot finance the
teaching and learning of an entire curriculum. In
Sanders v. Johnson, 403 U. S. 955, we affirmed a district
court decision (319 F. Supp. 421) that held invalid a
program whereby the State had contracted with parochial
schools for the "purchase" by the State of "secular
educational services" to be supplied to the children. The
contract in that case is different only in scope and in
form from the present one. There is no provision in the
lease for surveillance of the use of the premises except
for making sure that no objects, pictures, or other articles
having a religious connotation are present in the classrooms.
Yet, those teaching in a parochial school may be
members of that faith or under compelling pressures. In
light of the command of the First Amendment, the State
ORDERS 923
921 DouGLAs, J., dissenting
in each case must see that all courses of instruction
are confined to the "secular" area and do not trench on
religious tenets or doctrine. To police this statutory
standard would require the exercise of broad powers of
surveillance by the State. As stated by the District
Court in the Sanders case:
"In the present case, the parochial school function
which is funded is the entirety of secular 'instruction'
itself. In order to confine assistance to this rather
amorphous use, the Act would introduce state supervision
into virtually every nook and cranny of a
school's administration. Perhaps this is logically
necessary. If a conscientious public official is to be
certain that tax dollars are spent only for activities
which are proper secular subcategories of the school's
instruction, he must engage in a program of inspecting
and monitoring which even the copious specifications
of the Act and its open-ended supplementary
regulations only begin to suggest." 319 F. Supp.,
at 431.
The District Court went on to say:
"[T] he detailed plan which the legislature has
enacted to separate, purchase, 'promote,' and regulate
the contents of secular instruction goes well
beyond a theoretical 'subsidy' and brings the potentiality
of mutually-damaging involvement to life.
Public officials must investigate curricula, materials,
and manner of teaching in detail, case by case;
oversee the training of teachers; and audit financial
records. By doing so, they might disentangle the
last thread of religious doctrine from all secular instruction;
but by this very process, they would certainly
enmesh the state in continuous conflict with
churches over the effectiveness with which governmental
investigating and policing machinery would
be operated." Id., at 432.
924 OCTOBER TERM, 1972
Opinion of BRENNAN, J. 409 U.S.
The necessity for surveillance is necessarily imp lied.*
Denial of certiorari here does not appear consistent
with our affi.rmance of Sanders. These considerations
lead me to vote to take this case and put it down for
oral argument so that the entire plan may be carefully
examined against the requirements of the First
Amendment.
MR. JUSTICE BRENNAN,
The situation, as I see it, is not that portrayed in my
Brother DOUGLAS' dissent. Hartington, Nebraska, is a
small town 1 where neither the public nor the parochial
schools offered remedial reading and remedial mathe-
*That was the view of Chief Justice White, joined by Justice
Spencer of the Supreme Court of Nebraska, as stated in his dissenting
opm10n:
"In summary, it seems to me, over and beyond the other reasons
touched on in this dissent, that this act, this scheme, this procedure
requires that the state will be amidst the daily affairs of a religious
school. It must be remembered that we are not dealing with
something as simple as a bus ride, or a textbook, or a mere lease
agreement; we have here an innovative program of noble purpose
and it carries with it those highly feared risks of conflict and
divisiveness which history has shown follow any close proximity
between government a.nd religion.
"If this statute, and the state action asked to be taken under it,
is constitutionally permissible, then I see no obstruction or impediment
to the state and the federal government taking complete and
literal control of the contracting schools and making their entire
secular curricula part of its public system for all purposes, including
the hiring of teachers, the renting of the physical facilities, and
perhaps the admission of students. Such action plainly runs afoul
of the state and federal Constitutions. We must remember that
the real test of constitutionality is not what is actually done under
the act but what the act authorizes." 188 Neb. 1, 13, 195 K. '\V.
2d 161, 168.
1 The population of Hartington, according to the 1970 census,
is 1,581. The Hartington public schools had a total enrollment
of 572 pupils during the 1969-1970 school year.
ORDERS 925
921 Opinion of BRENNAN, J.
matics courses.2 The school district decided to avail itself
of the benefits of the federally financed courses in such
subjects provided under the Federal Elementary and Secondary
Education Act of 1965, 79 Stat. 27, and submitted
a grant proposal, as required by that Act, adequate to provide
the courses for all educationally deprived children
within the school district-91 public school and 48 parochial
school children. But there was a problem of space
because there were no available classrooms in the public
schools.3 There were, however, two unused classrooms in
the Hartington Cedar Catholic High School and the
school district proposed to lease one classroom full time
and the second classroom half time at an annual rent of
$200 for the full-time classroom and $100 for the half-time
classroom. The lease provided that the classrooms
would be used only for carrying on the project under the
Federal Elementary and Secondary Education Act of
1965; that the Hartington School District would have
full control over the classrooms and the educational programs;
and that no objects, pictures, or other articles
having a religious meaning or connotation would be in
the classrooms. The lease represented the complete extent
of the relations between the school district and the
parochial school. There is not the slightest suggestion
that this was a subterfuge to make a subsidy to the
2 The lease agreement states that:
"[T] he above described project for said courses does not and will
not duplicate or replace, either in whole or in part, any course of
study in the present curricula of either the public schools or the
private schools in Hartington and its environs ... . "
3 The Superintendent of the Hartington Public Schools, in a letter
to the State Board of Education, indicated that a consolidation of
rural school districts into the Hartington School District had increased
total enrollment in Hartington's public schools from 394
students in 1967-1968 to 572 students in 1969-1970. As a consequence,
the school district was making preparations to conduct three
kindergarten classes in the city auditorium. R. 10.
926 OCTOBER TERM, 1972
October 16, 1972 409 u. s.
parochial school, or anything except an arrangement motivated
solely by the lack of space in the public schools.
Thus, the school district would have no part whatever
in the curriculum of the parochial school either by way
of subsidy of its costs through financing of teaching or
otherwise. The remedial reading and remedial mathematics
courses would operate completely independently
of that curriculum and of the Catholic school administration.
My Brother DouGLAS relies on Sanders v. Johnson,
403 U.S. 955 (1971), aff'g 319 F. Supp. 421 (Conn. 1970).
The situation there is poles apart from this. That was
an undisguised subsidy in the form of "purchasing"
"secular educational services" from parochial schools and
was patently invalid under our decision in Lemon v.
Kurtzman, Earley v. DiCenso, and Robinson v. DiCenso,
403 U. S. 602 (1971). I have heretofore expressed my
view that the First Amendment does not render unconstitutional
"every vestige, however slight, of cooperation
or accommodation between religion and government."
Abington School District v. Schempp, 374 U. S. 203, 294
(1963) (concurring opinion). The accommodation involved
in this case would not trespass beyond permissible
bounds. For this reason, I join in denying the petition
for certiorari.
No. 71-1582. FELTS v. SEABOARD CoAsT LINE RAILROAD
Co. ; and
No. 72- 163. ADKINS V. KELLY'S CREEK RAILROAD
Co. C. A. 4th Cir. Certiorari denied. MR. JUSTICE
PowELL took no part in the consideration or decision
in No. 71-1582. Reported below : No. 72-163, 458 F.
2d 26.
MR. JUSTICE DOUGLAS, dissenting.
These cases present recurring problems under § 6 of
the Federal Employers' Liability Act, 35 Stat. 66, as
amended, 45 U. S. C. § 56.
ORDERS 927
926 DouGLAS, J., dissenting
In No. 72-163, Adkins, an employee, lost a part of his
left leg while attempting to repair a broken rail. Kelly's
Creek was a carrier by rail wholly owned by Warners
Collieries Co., a mining company. The jury returned
a verdict for Adkins in the amount of $117,568.44. The
District Court granted a defense motion for judgment
n. o. v.; and the Court of Appeals affirmed. 458 F. 2d 26.
In No. 71-1582, Felts was a Pullman conductor who
reported for work on the Seaboard Silver Comet Train
out of Richmond, Virginia. He was injured while trying
to open the trap door which would allow passengers
to leave or to board the car. The jury returned a verdict
for Felts which the District Court set aside; and
the Court of Appeals affirmed.
These two cases are classic examples of the type of
cases memorialized in our many FELA controversiesa
page in our history highlighted by Rogers v. Missouri
Pac. R. Co., 352 U. S. 500, where we said:
"Under this statute the test of a jury case is
simply whether the proofs justify with reason the
conclusion that employer negligence played any
part, even the slightest, in producing the injury or
death for which damages are sought. It does not
matter that, from the evidence, the jury may also
with reason, on grounds of probability, attribute the
result to other causes, including the employee's contributory
negligence. Judicial appraisal of the
proofs to determine whether a jury question is presented
is narrowly limited to the single inquiry
whether, with reason, the conclusion may be drawn
that negligence of the employer played any part at
all in the injury or death. Judges are to fix their
sights primarily to make that appraisal and, if that
test is met, are bound to find that a case for the
jury is made out whether or not the evidence allows
the jury a choice of other probabilities. The statute
928 OCTOBER TERM, 19i2
DouGLAs, J.1 dissenting 409 u. s.
expressly imposes liability upon the employer to
pay damages for injury or death due 'in whole or
in part' to its negligence." Id., at 506-507.
Trial by jury is "part and parcel of the remedy afforded
railroad workers" under FELA. Bailey v. Central
Vermont R. Co., 319 U. S. 350, 354. The question
whether the plaintiff was an employee of the carrier turns
on factual elements, to be resolved by the jury under
appropriate instructions. Baker v. Texas & P. R. Co.,
359 U. S. 227.
In Felts, while the conductor was a Pullman employee
he was under instructions that " [ w] hile on cars, on
trains, in stations and yards, or on other railroad property"
he was also "subject to instructions of the train conductor
and officials of the railroad companies." The Seaboard
train conductor had control and supervision over
Felts, the Pullman conductor, and had authority to make
him perform the assigned duties and to remove him if he
did not. In other like situations the question whether
an employee of one firm had become in performance of
his work an employee of a railroad was a jury question.*
We so held in Baker v. Texas & P.R. Co., supra, which
should be controlling here.
In Adkins the defense, sustained by the lower courts,
was that the carrier and its insurance company had settled
the claim with the employee. Here again the question
whether a carrier sued under FELA should be estopped
to plead limitations, Glus v. Brooklyn Eastern
District Terminal, 359 U. S. 231, or has obtained a valid
release from the injured employee, Dice v. Akron,
C. & Y. R. Co., 342 U. S. 359, is a question for the jury.
*See Cimorelli v. New York Central, R. Co., 148 F. 2d 575;
Byrne v. Pennsylvania R. Co., 262 F. 2d 906; M~souri-Kansas-Texas
R. Co. v. Hearson, 422 F. 2d 1037.
ORDERS 929
409U. S. October 16, 1972
The history of FELA litigation shows how narrow,
prejudiced judicial constructions of the Act in time subtly
amended it, so as to deprive it of its original beneficent
purpose of protecting the men who risk life and limb to
keep our rail carriers operating. See Rogers v. Missouri
Pac. R. Co., supra, at 507-509.
The emasculation that the judiciary made of this important
social legislation led eventually to the revision of
the Act by Congress in 1939 (Rogers v. Missouri Pac. R.
Co., supra, at 510) so that litigation under it could start
with a new mandate rather than with the crippling construction
given by the courts. Tiller v. Atlantic Coast
Line R. Co., 318 U. S. 54, 63-68. It was in that tradition
that Rogers, Bailey, Baker, Glus, and a host of other
cases were decided. If the voice of Hugo Black were
still heard and heeded, these two cases would be granted
and reversed outright. That would be my vote. But
at the very least we should put these cases down for
argument. Our rejection of them means the start of a
dark and disastrous retreat from the humanitarian purposes
of this Act of Congress and a renewal of the ancient
judicial art of emasculation of remedial legislation.
No. 71-1602. CRAVEN, WARDEN v. CARMICAL. C. A.
9th Cir. Motion of respondent for leave to proceed in
forma pauperis granted. Certiorari denied.
No. 71-1652. SARNOFF ET AL. v. SHULTZ, SECRETARY
OF THE TREASURY, ET AL. C. A. 9th Cir. Certiorari
denied. Reported below: 457 F. 2d 809.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN
concurs, dissenting.
Petitioners brought this suit for an injunction against
disbursements under certain sections of the Foreign Assistance
Act of 1961, 75 Stat. 424, as amended, §§ 510,
610, 614 (a), 22 U. S. C. §§ 2318, 2360, 2364 (a). Re930
OCTOBER TERM, 1972
DouGLAS, J., dissenting 409U.S.
spondents, as agents of the Chief Executive, made the
disbursements in pursuit of our military venture in
Vietnam.* Their request for a three-judge court was
denied, and the Court of Appeals affirmed, 457 F. 2d 809,
saying that the complaint tendered a "political question"
beyond judicial cognizance.
This would be a difficult case under the regime of
Frothingham v. Mellon, 262 U. S. 447, whose broad language
denied a federal taxpayer standing to challenge
the constitutionality of a federal statute. But Frothingham
was greatly narrowed by our 1968 decision in Flast
v. Cohen, 392 U.S. 83. Flast held that federal taxpayers
have standing if the constitutionality of the taxing or
spending claims of Art. I, § 8, of the Constitution were
squarely involved and if the taxpayer can show that
"the challenged enactment exceeds specific constitutional
limitations imposed upon the exercise of the congressional
taxing and spending power and not simply that
the enactment is generally beyond the powers delegated
to Congress by Art. I, § 8." Id., at 102-103.
In Fla.st the challenged expenditures were said to have
violated the Establishment and Free Exercise Clauses
of the First Amendment. Here they are said to contravene
the provision in Art. I, § 8, cl. 11, which gives
Congress the power to "declare War." No declaration of
war has been made respecting Vietnam. Hence the question
can be phrased in terms of the constitutionality of
the use of funds to pursue a "Presidential war."
The action here, as in Flast, is a challenge by federal
taxpayers of a violation of a specific constitutional provision.
Actions of the Congress and of the Executive
Branch are involved here as in Fla.st. The question is
*I have previously filed dissents in various cases tendering this
question, the Court having consistently refused to entertain them.
See, e. g., Holmes v. United States, 391 U. S. 936; Hart v. United
States, 391 U. S. 956; McArthur v. Clifford, 393 U. S. 1002.
ORDERS 931
929 DouGLAS, J., dissenting
therefore no more "political" in this case than in Fl.ast.
There has in the past been much confusion over the
distinction between a "political" question and one that
is "justiciable." We dispelled much of that confusion in
Baker v. Carr, 369 U.S. 186,217, when we said:
"It is apparent that several formulations which
vary slightly according to the settings in which the
questions arise may describe a political question, although
each has one or more elements which identify
it as essentially a function of the separation of
powers. Prominent on the surface of any case held
to involve a political question is found a textually
demonstrable constitutional commitment of the issue
to a coordinate political department; or a lack
of judicially discoverable and manageable standards
for resolving it; or the impossibility of deciding
without an initial policy determination of a kind
clearly for nonjudicial discretion; or the impossibility
of a court's undertaking independent resolution
without expressing lack of the respect due coordinate
branches of government; or an unusual need
for unquestioning adherence to a political decision
already made; or the potentiality of embarrassment
from multifarious pronouncements by various departments
on one question."
We added that a bona fide controversy "as to whether
some action denominated 'political' exceeds constitutional
authority" cannot be rejected by the courts. Ibid.
Whether after full argument and deliberation we would
hold that this case falls in the category of Flast v. Cohen
is unknown. But certainly the issue is important and
substantial. The provisions in Art. I, § 8, cl. 11, which
give Congress, not the President, the power to "declare
War" is a specific grant of power that impliedly bars
its exercise by the Executive Branch. And the power
932 OCTOBER TERM, 1972
October 16, 1972 409 U.S.
is so pervasive in its reach that it may affect the lives,
the property, and the well-being of the entire Nation.
Arguably the principles announced in Flast v. Cohen
control this case.
I would therefore grant the petition and put the case
down for oral argument.
No. 72-368. BENSINGER, CORRECTIONS DIRECTOR,
ET AL. v. Doss. C. A. 7th Cir. Motion of respondent
for leave to proceed in forma pauperis granted. Certiorari
denied. Reported below: 463 F. 2d 576.
Ko. 71-1656. AcHTENBERG v. UNITED STATES. C. A.
8th Cir. Certiorari denied. Reported below: 459 F. 2d
91.
MR. JusTICE DouGLAS, dissenting.
I would grant certiorari.
Petitioner was convicted of attempting to destroy
"war material" and "war premises" in violation of 18
U. S. C. § 2153 (a). This section makes it a crime
"when the United States is at war, or in times of national
emergency as declared by the President or by the Congress"
to willfully destroy or attempt to destroy "any war
material, war premises, or war utilities .... " (Emphasis
added.)
A criminal statute which fails to give a person of
ordinary intelligence fair notice that his contemplated
conduct is forbidden is constitutiona1ly infirm. Predicating
criminal liability on conduct engaged in under
special circumstances or at certain times is not constitutionally
infirm, as long as men of common intelligence
are not forced to guess as to a statute's meaning or differ
as to its application. Under the terms of the above
statute, the defendant is prohibited from doing specific
acts at "times of national emergency as declared by the
President." The declared national emergency under
which petitioner was held to have acted is the 1950
ORDERS 933
409 U.S. October 16, 1972
declaration of President Truman issued in response to
the Korean conflict; the resolution by its terms contemplates
termination of the emergency only by act of the
President or by concurrent resolution of Congress, neither
of which has yet been done.
I doubt that many lawyers, let alone laymen, of ordinary
intelligence are aware of the continuing effect of
the 1950 national emergency declaration. Under these
circumstances, it is questionable whether proper notice
of possible criminal liability has been afforded to any
individual prosecuted under 18 U.S. C. § 2153 (a). The
viability of criminal responsibility predicated upon evaluations
of current political temperament or outdated
presidential proclamations is an important issue worthy
of our consideration on the merits.
No. 71-1690. KRESSE ET AL. v. BuTz, SECRETARY OF
AGRICULTURE; and
No. 71-1691. RASMUSSEN, DBA SARIVAL GUERNSEY
FARMS V. BUTZ, SECRETARY OF AGRICULTURE. C. A. 9th
Cir. Motion for leave to amend petition in No. 71-1691
granted. Certiorari denied. MR. JusTICE DouGLAS would
grant certiorari. Reported below: 461 F. 2d 595.
No. 71-6512. MARCOVICH v. UNITED STATES. C. A.
9th Cir. Certiorari denied. Ma. JusTICE DouGLAS would
grant certiorari. Reported below: 454 F. 2d 138.
K 0. 71-6544. WALLACE V. WARNER, SECRETARY OF THE
NAVY, ET AL. C. A. 9th Cir. Certiorari denied. MR.
JUSTICE DouGLAS would grant certiorari. Reported
below: 451 F. 2d 1374.
N 0. 72-81. VETERANS AND RESERVISTS FOR PEACE IN
VIETNAM V. REGIONAL COMMISSIONER OF CUSTOMS, REGION
II, ET AL. C. A. 3d Cir. Certiorari denied. MR.
JusTICE DOUGLAS would grant certiorari. Reported
below: 459 F. 2d 676.
934 OCTOBER TERM, 1972
October 16, 1972 409 u. s.
No. 71-6606. WETTEROFF ET AL. v. GRAND, TRUSTEE.
C. A. 8th Cir. Certiorari denied. MR. JUSTICE DouGLAS
would grant certiorari. Reported below: 453 F. 2d 544.
No. 71-6869. DORADO ET AL. v. KERR, CHAIRMAN,
CALIFORNIA ADULT AUTHORITY. C. A. 9th Cir. Certiorari
denied. Mn. JUSTICE DOUGLAS would grant certiorari.
Reported below: 454 F. 2d 892.
No. 72-64. DEMOULIN ET AL. v. CITY OF DENVER
ET AL. Sup. Ct. Colo. Certiorari denied. MR. JUSTICE
DouGLAS would grant certiorari. Reported below: 177
Colo. 129,495 P. 2d 203.
No. 72-145. NOLAND ET AL. v. DESOBRY. C. A. 6th
Cir. Certiorari denied. MR. JusTICE DOUGLAS would
grant certiorari.
No. 72-146. HUNTER, DBA COURIER V. UNITED STATES.
C. A. 4th Cir. Certiorari denied. MR. JusTICE DouGLAS
would grant certiorari. Reported below: 459 F. 2d 205.
No. 72-198. MoRTON INTERNATIONAL, INc. v. SouTHERN
PACIFIC TRANSPORTATION Co. Sup. Ct. Utah. Certiorari
denied. MR. JUSTICE DOUGLAS would grant certiorari.
Reported below: 27 Utah 2d 256, 495 P. 2d 31.
No. 71-6489. McLAMORE v. SouTH CAROLINA ET AL.
Sup. Ct. S. C. Certiorari denied. Reported below: 257
S. C. 413, 186 S. E. 2d 250.
MR. JUSTICE DOUGLAS, dissenting.
I vote to hear this case because of the importance of
the question raised.
A prisoner sentenced in the State of South Carolina, in
any case in which confinement is the punishment, can be
sent (1) to a county to work on its chain gang (if the
county maintains one) (2) or in the alternative to the
Department of Corrections and then to the local jail
ORDERS 935
934 DouGLAS, .T., dissenting
or state penitentiary.' Under the statute, an elected
official, the County Supervisor, makes the choice. There
are no statutory criteria by which he is to make his choice.
Petitioner was sentenced under S. C. Code Ann. § 17-
554 and assigned to the chain gang of Richland County,
South Carolina. Under the Post Conviction Relief
Statute of South Carolina he sought review of two questions:
( 1) whether the chain gang was cruel and unusual
punishment prohibited by the Eighth and Fourteenth
Amendments, and (2) whether the sending of certain
prisoners to the penitentiary where some rehabilitative
services are available and others to the chain gang where
none exists is a denial of equal protection of the laws
under the Fourteenth Amendment.
On April 28, 1971, the relief in both areas was denied
and the decision was affirmed by the Supreme Court of
South Carolina, 257 S. C. 413, 186 S. E. 2d 250 (1972).
The case is here on certiorari.
The delineation of just what conditions constitute
cruel and unusual punishment is not well defined. But
we know from Weems v. United States, 217 U. S. 349
(1910), that the concept is not rigid but progressive; that
it acquires meaning as the public becomes enlightened.
1 S. C. Code Ann.§ 17-554 (1962):
"Able-bodied male convicts to work on county or municipal chain
gangs.-In every case in which imprisonment is provided as the
punishment, in whole or in part, for any crime, all able-bodied male
convicts shall be sentenced to hard labor on the public works of the
county in which convicted, if such county maintains a chain gang,
without regard to the length of service, and in the alternative to imprisonment
in the county jail or State Penitentiary at hard labor . . ..
In any case the presiding judge shall have the power, by special
order, to direct that any person convicted before him be confined
in the State Penitentiary if it is considered unsafe or unwise for
such convict to be committed to the county chain gang."
Whether the exclusion of women raises an equal protection claim
is not raised by the present petition.
936 OCTOBER TERM, 1972
DouGLAS, J., dissenting 409 U.S.
Id., at 378. As Mr. Chief Justice Warren said, "the words
of the Amendment are not precise, and ... their scope is
not static. The Amendment must draw its meaning from
the evolving standards of decency that mark the progress
of a maturing societi' Trap v. Dulles, 356 U. S. 86, 100-
101 (1958).
Does the chain gang fit into our current concept of
penology? If not, does it violate the Eighth Amendment?
This is an important question never decided by
the Court.
The second point is of equal importance. South Carolina
creates two classes of prisoners, those who work on
the chain gang, and those who are sent to the penitentiary.
The latter are under the Department of Corrections
and have counseling, psychiatric service, and educational
and vocational programs, although no penitentiary
has all the programs that are available within
the system. Those assigned to the chain gang have
none of the rehabilitative services made available by
the Corrections Department. As I have said, there
are no statutory standards for the County Supervisor to
use in determining where each man goes; the decision is
entirely within his discretion to treat one type of offender
differently from another though the two are in the
same class, and though each be found guilty of the same
crime and sentenced to serve the same number of years.
A State can, of course, create different classes of prisoners
and treat them differently as long as those classes
are created for legitimate state aims. And if the basis
on which groups so defined bears a reasonable relation to
the purpose, the class will survive. See Gulf, C. & S. F.
R. Co. v. Ellis, 165 U. S. 150, 158. The courts must
determine whether the classification is reasonable in light
of its purpose. For this Court to refuse to make the decision
in this case allows a procedure to exist which
ORDERS 937
409 u. s. October 16, 1972
arguably has many aspects of involuntary servitude for
some, while others of the same class are treated in a more
enlightened way.2
No. 71-6888. HADLEY v. ALABAMA. Sup. Ct. Ala.
Certiorari denied. Reported below: 288 Ala. 293, 259
So. 2d 853.
MR. JUSTICE DOUGLAS, dissenting.
I vote to hear this case because I assume that equal
protection and due process of law under our Constitution
apply to the rich as well as to the poor, to whites as well
as to the rninorities.1
In Alabama a certified transcript or sufficient statement
of the evidence must be filed within 60 days from
the taking of an appeal or from the trial court's ruling on
2 Wilson v. Kelley, 294 F. Supp. 1005, aff'd per cttriam, 393 l l. S.
266, is not determinative of the present case. The Wilson case, so
far as material here, only held that work camps are not per se unconstitutional,
saving, however, a prisoner's right to raise "the
question of his own particular treatment as being a violation of his
constitutional rights," 294 F. Supp., at 1012. No such question was
reached in that case, as only a class action was involved.
For a recent account of the dark chapter resulting from the Court's
decisions last century that the paramount duty to protect civil rights
rested with the States, not the Federal Government, see Scott,
Justice Bradley's Evolving Concept of the Fourteenth Amendment
From the Slaughterhouse Cases to the Civil Rights Cases, 25 Rutgers
L. Rev. 552 (1971).
1 In Johnson v. Committee on Examinations, 407 U. S. 915, the
Court last Term denied a petition for certiorari in a case from
Arizona where a white candidate for admission to the Bar claimed
discrimination against him as compared with the treatment accorded
black candidates. It seems that the passing grade on the Arizona bar
examination is 70. Petitioner alleged that he got below 70 and was
rejected, while the blacks were admitted whose grades were likewise
below 70 and no better than his own. I dissented from the denial of
certiorari in that case. Like the present one, it seemed to be a case
of reverse discrimination.
938 OCTOBER TERM, 1972
DOUGLAS, J., dissenting 409 U.S.
a motion for new trial, whichever is later.2 Petitioner
filed his transcript three days beyond the deadline. The
Alabama Court of Criminal Appeals dismissed his appeal
as out of time. Hadley v. State, 47 Ala. App. 738, 259
So. 2d 853 (1971).
The Supreme Court of the State of Alabama affirmed,
with three justices dissenting. Ex parte Hadley, 288 Ala.
293, 259 So. 2d 853 (1972). Under the case law of the
Supreme Court of Alabama, had petitioner been an indigent,
such tardiness would not have prevented appeal.
In Leonard v. State, 43 Ala. App. 454, 192 So. 2d 461
(1966), the transcript of evidence was filed approximately
sixteen days after its due date. The court did not dismiss
for tardiness but laid down a new procedure:
"[T]his court will not honor requests to strike where a
lower court ... has ordered a free transcript. See Rule
48." Id., at 457, 192 So. 2d, at 463. Such motion to
dismiss was also denied in Brummitt v. State, 44 Ala.
App. 78, 203 So. 2d 133 ( 1967), where the court allowed
a late filing on a showing of indigency the day after
defendant's arrest, although no formal adjudication of
indigency was ever made.
The question petitioner Hadley raises here and raised
in the Alabama Supreme Court below, is whether by case
law, a State can give more time for filing of a transcript
2 Code of Alabama, Title 7, § 827 ( 4) ( 1960) :
"The court reporter's certified transcript shall be filed with the
clerk within sixty days from the date of the taking of the appeal
or within sixty days from the date of the court's ruling on the motion
for a new trial, whichever date is later; and any succinct statement
of the evidence made in lieu of such transcript, as authorized in
section 827 (3) hereof, shall be filed with the clerk within sixty days
from the date of the taking of the appeal, or within sixty days from
the date of the court's ruling on the motion for a new trial, whichever
date is later. Provided, that this perjod may be extended by
the trial court for cause."
ORDERS 939
937 DoUGLAS, J., dissenting
for a person without funds than for a person of wealth.3
The exception for indigents was created by Rule 48 of
the Supreme Court of Alabama which puts within the
court's discretion the power to hear appeals in cases
where the transcript filing is late but within time for
taking an appeal.4 Such was the case here. The spirit
of the Rule is a generous and progressive one. Although
not written to create classes of appellants, the courts
have added that feature. The class is defined by wealth.
We have held that a class based on wealth is inherently
suspect. Willi.ams v. Illinois, 399 U.S. 235 (1970); Tate
v. Short, 401 U. S. 395 ( 1971) ; Boddie v. Connecticut,
401 U. S. 371 (1971); Harper v. Virgini.a Bd. of Elections,
383 U. S. 663 ( 1966). And when a suspect classification
is made in such a manner as to impair a fundamental
right, the burden on the State to prove a compelling
state interest is a heavy one. While there is no
constitutional right to appeal, a State may not grant
appellate review in such a way as to discriminate between
those appellants who are wealthy and those who are
poor. Griffin v. Illinois, 351 U.S. 12, 18 (1956).
Alabama's law seems to be out of line with that principle.
I would therefore grant the petition and put the
case down for oral argument.
3 Petitioner obtained private counsel at trial and paid personally
for the transcript, but was without counsel on appeal.
4 Supreme Court of Alabama Rule 48:
"In cases at law where the court reporter's transcript of the evidence
is not filed with the clerk of the circuit court within the time
prescribed by law, but is filed within the time for taking an appeal, it
will be considered by this court if no objection thereto is presented
upon the submission of the cause; and it may be so considered in
the discretion of the court, even though the point as to the delay be
presented on appeal, unless counsel objecting thereto shall point out,
with supporting affidavit, material omissions or defects in such
certified transcript which should or would have been the subject of
contest before the trial judge; in which latter event the certified
transcript is not to be considered."
940 OCTOBER TERM, 1972
October 16, 1972 409 U.S.
No. 72-53. FRANCIS v. "C°NITED STATES. C. A. 10th
Cir. Certiorari denied. Reported below: 457 F. 2d 553.
MR. JusTICE DouGLAS, dissenting.
This petition on its face seems to me to be one we
should grant and reverse the judgment below on the basis
of Sicurella v. United States, 348 U. S. 385. At the very
least we should put the case down for oral argument.
Petitioner was convicted for failure to report for induction
into the Armed Forces in violation of 50 U. S. C.
App. § 462 (a) and the Court of Appeals affirmed. 457
F. 2d 553.
When classified as I-A, petitioner requested classification
as a conscientious objector. The Board rejected
his request on five grounds:
"1. Left Church. Religion is not thoroughly understood.
"2. Appears insincere in his I-O request. Possibly
coached.
"3. Could help a wounded man, but wouldn't in battle.
"4. Decision to fill out SSS 150 and apply for I-O status
came after he fell behind academically.
"5. Won't take military orders. Appears that he is
against taking any orders."
The first reason seems plainly untenable as a ground
for denying the I- O classification. Two years earlier
petitioner had joined the Church of Christ. But the fact
that he left it is irrelevant to his I-O status. His tie to
a church is irrelevant to his claim, because purely ethical
or moral grounds, though unrelated to any church, are
adequate, if sincerely believed. United States v. Seeger,
380 U. S. 163; Welsh v. United States, 398 U. S. 333.
The third ground is also plainly insufficient. It is true
as the Government says that the extent to which petitioner
would be willing to help the wounded is relevant as
to whether he should be assigned to Class I- A- O for nonORDERS
941
409 U.S. October 16, 1972
combatant service. Yet one's objection to all military
service may well include even that part of military service
that one can serve in a noncombatant capacity. That
apparently was the point of petitioner's willingness to
help an injured man, except in battle. It underlines his
asserted belief that service even in a noncombatant capacity
infringes upon his beliefs. The fifth ground stated
by the Selective Service Board is really part and parcel
of petitioner's asserted objection to all military service.
In Sicurella v. United States, 348 U. S., at 392, it was
impossible to say on what grounds the Selective Service
Board made the classification. One ground being illegitimate,
we set aside the conviction, for the integrity of
the system demanded that the Board rely on some legitimate
ground. We followed that course in Clay v. United
States, 403 U. S. 698, 703--704, where concededly two
of the three grounds on which the Board denied relief
were not valid ones. And we noted that, since Sicurella,
that rule had become the established practice of federal
courts, when dealing with the criminal sanction of the
Selective Service Laws. Id., at 705.
I see no way to distinguish this case from Sicurella and
Clay and would therefore grant certiorari and reverse.
Or, as I said, at the very least we should grant certiorari
and put the case down for oral argument.
No. 72-96. MEMPHIS LIGHT, GAs & WATER D1vrsION
v. FEDERAL PowER COMMISSION ET AL. C. A. D. C. Cir.
Certiorari denied. MR. JUSTICE PowELL took no part in
the consideration or decision of this petition. Reported
below: 149 U. S. App. D. C. 238, 462 F. 2d 853.
No. 72-105. CAPITAL AssrsTANCE CORP. v. UNITED
STATES ET AL. C. A. 9th Cir. Motion to dispense with
printing petition granted. Certiorari denied. Reported
below: 460 F. 2d 256.
942 OCTOBER TERM, 1972
October 16, 20, 24, 1972 409 u. s.
No. 72-151. HENDERSON, WARDEN v. FAVRE. C. A.
5th Cir. Motion of respondent for leave to proceed
in forma pauperis granted. Certiorari denied. MR. Jus-
TICE BLACKMUN would grant certiorari. Reported below:
464 F. 2d 359.
No. 72-204. SOLOMON v. SEABOARD CoAsT LINE RAILROAD
Co. Sup. Ct. Va. Certiorari denied. MR. JUSTICE
DouGLAS would grant certiorari. MR. JUSTICE PowELL
took no part in the consideration or decision of this
petition.
No. 72-207. COLE ET AL. v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. MR. JUSTICE MARSHALL took no
part in the consideration or decision of this petition. Reported
below: 463 F. 2d 163.
OCTOBER 20, 1972
Miscellaneous Order
No. A-406. ScoTT v. NEW JERSEY. Sup. Ct. N. J.
Application for stay of execution and enforcement of
judgment of conviction presented to MR. JUSTICE BRENN
AN, and by him referred to the Court, denied. Reported
below: See 62 N. J. 68,299 A. 2d 66.
OCTOBER 24, 1972
Affirmed on Appeal
No. 70-15. SwEETENHAM ET AL. v. GILLIGAN, Gov-
ERNOR OF OHIO, ET AL. Affirmed on appeal from D. C.
S. D. Ohio. MR. JuSTICE DouGLAS, MR. JusTICE BRENNAN,
and MR. JUSTICE MARSHALL would note probable
jurisdiction and set case for oral argument. Reported
below: 318 F. Supp. 1262.
No. 72-12. AMos, SECRETARY OF STATE OF ALABAMA,
ET AL. v. SIMS ET AL. Affirmed on appeal from D. C.
M. D. Ala. Reported below: 336 F. Supp. 924; 340
F. Supp. 691.
409U. S.
ORDERS
October 24, 1972
943
No. 70--48. PRATT ET AL. v. BEGLEY , SECRETARY OF
STATE OF KENTUCKY , ET AL. Affirmed on appeal from
D. C. E. D. Ky. MR. JUSTICE DocGLAS, MR. J u sTICE
BRENNAN , and MR. JusTICE MARSHALL would note probable
jurisdiction and set case for oral argument. Reported
below: 352 F. Supp. 328.
No. 71-1668. MAYES ET AL. v. ELLIS ET AL.; and
No. 71-1684. HILL ET AL. v. MCKEITHEN, GovERNOR
OF Lou1s1ANA, ET AL. Affirmed on appeal from D. C.
E. D. La. MR. JusTICE Dou GLAS would note probable
jurisdiction and set cases for oral argument. Reported
below: 345 F. Supp. 1025.
No. 72-44. F UGATE , STATE HIGHWAY COMMISSIONER
v. POTOMAC ELECTRIC POWER Co. ET AL. Affirmed on
appeal from D. C. E. D. Va. MR. JUSTICE POWELL took
no part in the consideration or decision of this case.
Reported below: 341 F. Supp. 887.
Appeals D'ism'issed
No. 71-1625. KIRSTEL v. MARYLAND. Appeal from
Ct. Sp. App. Md. dismissed for want of substantial
federal question. MR. JusTICE DouGLAS would note probable
jurisdiction and set case for oral argument. Reported
below: 13 Md. App. 482, 284 A. 2d 12.
No. 72-180. NATIONAL SMALL SHIPMENTS TRAFFIC
CONFERENCE, INC., ET AL. V. RINGSBY TRUCK LINES,
INC. , ET AL. Appeal from D. C. Colo. dismissed for want
of jurisdiction.
No. 72- 232. BOROUGH OF EAST RUTHERFORD ET AL. V.
NEW JERSEY SPORTS AND EXPOSITION AUTHORITY ET AL.
Appeal from Sup. Ct. N. J. dismissed for want of substantial
federal question. MR. JUSTICE DouGLAS took
no part in the consideration or decision of this case.
Reported below: 61 N. J. 1, 292 A. 2d 545.
944 OCTOBER TER'.VI, 1972
O<'tob(>r 24, 1972 409 U.S.
No. 72-234. THOMPSON ET AL. v. KANSAS C'ITY PowER
& LIGHT Co. Appeal from Sup. Ct. Kan. 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 would note
probable jurisdiction and set case for oral argument.
Reported below: 208 Kan. 869, 494 P. 2d 1092.
Vacated and Remanded on Appeal
No. 71 -6627. MARTIN v. CITY OF NEw ORLEANS.
Appeal from Sup. Ct. La. Motion for leave to proceed
in f onna pauperis granted. Judgment vacated and case
remanded for further consideration in light of Gooding
v. Wilson, 405 e. S. 518 (1972). See Lewis v. City
of New Orleans, 408 U. S. 913 (1972). THE C'HIEF
JvsTICE. MR. JUSTICE BLACKMT'N, and MR. JrsTICE
REHNQUIST dissent for the reasons expressed in the
several opinions in Rosenfeld v. Xew Jersey, 408 e. S.
901 ( 1972); Lewis v. City of New Orleans, supra; and
Brown v. Oklahoma, 408 e. S. 914 (1972). MR. JrsTICE
PowELL would remand cause for further consideration
only in light of Chaplinsky v. Xew Hampshire, 315 r. S.
568 (1942). Ree concurring opinion in Lewis v. City of
Xew Orleans, supra. Reported below: 260 La. 691, 257
So. 2d 152.
Certiorari Granted-Vacated and Remanded
No. 72-216. SMrLow v. UNITED STATES. C. A. 2d
Cir. On representation of the Solicitor General, set
forth in his Memorandum for the United States, filed
September 28, 1972. certiorari granted. Judgment vacated
and case remanded for further consideration in
light of position presently asserted by the Government.
Reported below: 465 F. 2d 802.
ORDERS 945
409 u. s. Octo~r 24, 1972
Miscellaneous Orders
No. A-263. OXNARD ScHOOL DISTRICT BOARD OF
TRUSTEES ET AL. v. SORIA ET AL. C. A. 9th Cir. Application
for stay presented to MR. JusTICE PowELL, and
by him ref erred to the Court, denied. Reported below:
467 F. 2d 59.
No. A-419 (72-618). AMERICAN PARTY OF FLORIDA
ET AL. V. ASKEW, GO\'ERNOR OF FLORIDA, ET AL. D. C.
N. D. Fla. Application for stay presented to MR. Jus-
'l'ICE PowELL, and by him referred to the Court, denied.
No. 71-485. GOTTSCHALK , ACTING CoMMissIONER OF
PATENTS v. BENSON ET AL. C. C. P. A. [Certiorari
granted, 405 U. S. 915.) Motion of Computer Software
Analysts, Inc., et al. for leave to file an untimely brief
as amici curiae gra.nted. MR. JusTICE STEWART, MR.
JcsTICE BLACKMUN, and MR. JUSTICE POWELL took no
part in the consideration or decision of this motion.
No. 71-1051. PARIS AouLT THEATRE I ET AL. v. SLATON
ET AL. Sup. Ct. Ga. f Certiorari granted, 408 u. s. 921.]
Motion of Charles H. Keating, Jr., for leave to file an
untimely brief as amicus curiae in support of respondent
granted.
No. 71 - 1082. ASKEW, GOVERNOR OF FLORIDA, ET AL. v.
AMERICAN WATERWAYS OPERATORS, INc., ET AL. Appeal
from D. C'. M. D. Fla. [Probable jurisdiction noted,
405 U. S. 1063.] Motion of American Bar Assn. for
leave to file a brief as amicus curiae gra.nted.
No. 71- 1178. GrLF STATES l:"TrLITIES Co. v. FEDERAL
POWER COMMISSION ET AL. C. A. D. C. Cir. [Certiorari
granted, 406 r. S. 956. l Motion of American Public
Power Assn. for leave to file a brief as amicus curiae
granted.
946 OCTOBER TERM, 1972
October 24, 1972 409 U.S.
No. 71-1119. INDIANA EMPLOYMENT SECURITY DIVISION
ET AL. v. BURNEY. Appeal from D. C. N. D. Ind.
[Probable jurisdiction noted, 406 U. S. 956.] Motions
of National Employment Law Project et al., and American
Federation of Labor and Congress of Industrial
Organizations for leave to file briefs as amici curiae
granted.
No. 71-1193. UNITED STATES v. ENMONS ET AL. Appeal
from D. C. E. D. La. [Probable jurisdiction noted,
406 U. S. 916.] Motion of American Newspaper Publishers
Assn. for leave to file a brief as amicus curiae
granted.
No. 71-1585. UNITED STATES v. RussELL. C. A. 9th
Cir. [Certiorari granted, ante, p. 911.) Motion for appointment
of counsel granted. It is ordered that Thomas
H. S. Brucker, Esquire, of Seattle, Washington, be, and
he is hereby, appointed to serve as counsel for respondent
in this case.
No. 72-243. CLEAN Arn COORDINATING COMMITTEE v.
ROTH ADAM FuEL Co. ET AL. C. A. 7th Cir. The Solicitor
General is invited to file a brief expressing the
views of the United States. Reported below: 465 F. 2d
323.
No. 72-160. Dt:RST v. UNITED STATES CouRT OF APPEALS
FOR THE NINTH Crncu1T. Motions to dispense
with printing petition and for leave to use record in No.
72-42 [Durst v. National Casualty Co., Inc., infra]
granted. Motion for leave to file petition for writ of
certiorari denied.
No. 72-136. DuRsT v. UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT ET AL. Motion to dispense
with printing petition for writ of mandamus
granted. Motion for leave to file petition for writ of
mandamus and other relief denied.
ORDERS 947
409 U.S. October 24, 1972
No. 72-159. DuRsT v. UNITED STATES Cou RT OF APPEALS
FOR THE NINTH Crncu1T ET AL. Motions to dispense
with printing petition for writ of mandamus and
for leave to use record in No. 72-42 [Durst v. National
Casualty Co., Inc., infra] granted. Motion for leave to
file petition for writ of mandamus and other relief denied.
No. 72-5185. FAIR v. ROBERTS, CHIEF JUSTICE, Su-
PREME CouRT OF FLORIDA, ET AL. Motion for leave to
file petition for writ of prohibition and/ or mandamus
denied.
Probable Jurisdiction Noted
No. 71-1623. BULLOCK, SECRETARY OF STATE OF TEXAS
v. WEISER ET AL. Appeal from D. C. N. D. Tex. Motion
to dispense with printing motion to dismiss or affirm
granted. Probable jurisdiction noted.
Certiorari Granted
No. 71- 1545. BUTZ, SECRETARY OF AGRICULTURE, ET
AL. v. GLOVER LIVESTOCK CoMMISSION Co., lNc. C. A.
8th Cir. Certiorari granted. Reported below: 454 F. 2d
109.
No. 71-1553. GILLIGAN, GovERNOR OF OHIO, ET AL. v.
MORGAN ET AL. C. A. 6th Cir. Certiorari granted. Reported
below: 456 F. 2d 608.
No. 72-178. STRUCK v. SECRETARY OF DEFENSE ET AL.
C. A. 9th Cir. Certiorari granted. Reported below: 460
F. 2d 1372.
No. 72-90. UNITED STATES v. CHICAGO, BuRLINGTON
& QuINcY RAILROAD Co. Ct. Cl. Cartiorari granted.
MR. JUSTICE POWELL took no part in the consideration
or decision of this petition. Reported below: 197 Ct. CL
264, 455 F. 2d 993.
948 OCTOBER TERM, 1972
October 24, 1972 409 U.S.
Certiorari Denied. (See also No. 72-234, supra.)
No. 71- 1502. FITZHARRIS, CONSERVATION CENTER Su-
PERINTENDENT v. BLAYLOCK. C. A. 9th Cir. Certiorari
denied. Reported below: 455 F. 2d 462.
No. 71-1536. CENTRAL GuLF STEAMSHIP CORP. v.
DENNIS ET AL. C. A. 5th Cir. Certiorari denied. Reported
below: 453 F. 2d 137.
No. 71-1558. KANTNER ET AL. v. HAWAII. Sup. Ct.
Haw. Certiorari denied. Reported below: 53 Haw.
327,493 P. 2d 306.
No. 71- 1675. ADAM v. ILLINOIS. Sup. Ct. Ill. Certiorari
denied. Reported below: 51 Ill. 2d 46, 280 N. E.
2d 205.
No. 71-6826. BAILEY v. NORTH CAROLINA. Sup. Ct.
N. C. Certiorari denied. Reported below: 280 N. C.
264, 185 S. E. 2d 683.
No. 71-6844. JACKSON v. CALIFORNIA. Ct. App. Cal.,
2d App. Dist. Certiorari denied.
No. 72-176. STEVENS v. UNITED STATES. C. A. 7th
Cir. Certiorari denied. Reported below: 461 F. 2d 317.
No. 72-181. J. RAY McDERMOTT & Co., INc. v. THE
MORNING STAR ET AL.; and
No. 72-229. FISH MEAL Co. ET AL. v. J. RAY Mc-
DERMOTT & Co., INc. C. A. 5th Cir. Certiorari denied.
Reported below: 457 F. 2d 815.
No. 72- 182. JIFFY Jt:NE FARMS, INc., ET AL. v. COLEMAN
ET AL. C. A. 5th Cir. Certiorari denied. Reported
below: 458 F. 2d 1139.
No. 72- 184. RAIMONDI v. MARYLAND. Ct. App. Md.
Certiorari denied. Reported below: 265 Md. 229, 288
A. 2d 882.
ORDERS 949
409 u. s. October 24, 1972
No. 72-192. BUFFALO CAB Co., INc. v. NATIONAL LABOR
RELATIONS BoARD. C. A. 5th Cir. Certiorari denied.
Reported below: 458 F. 2d 499.
No. 72-201. STEIN v. CLEVELAND BAR AssN. Sup.
Ct. Ohio. Certiorari denied. Reported below: 29 Ohio
St. 2d 77, 278 N. E. 2d 670.
No. 72-208. CARSON v. UNITED STATES. C. A. 2d Cir.
Certiorari denied. Reported below: 464 F. 2d 424.
No. 72-215. REDERI A/ B SoYA ET AL. v. EVERGREEN
MARINE CORP., S. A., ET AL. C. A. 4th Cir. Certiorari
denied.
No. 72-219. COOK v. UNITED STATES. C. A. 5th Cir.
Certiorari denied. Reported below: 461 F. 2d 906.
No. 72-222. Lou1svILLE & NASHVILLE RAILROAD Co.
V. KENTUCKY EX REL. LUCKETT, COMMISSIONER OF REVENUE.
Ct. App. Ky. Certiorari denied. Reported below:
479 S. W. 2d 15.
No. 72- 224. TANNER ET AL. v. UNITED STATES. C. A.
7th Cir. Certiorari denied. Reported below: 47 F. 2d
128.
No. 72-225. RoDULFA ET AL. v. UNITED STATES ET AL.
C. A. D. C. Cir. Certiorari denied. Reported below:
149 U. S. App. D. C. 154, 461 F. 2d 1240.
No. 72- 226. ANDERSON ET AL. v. CALIFORNIA ET AL.
C . A. 9th Cir. Certiorari denied.
No. 72-228. BANK OF AMERICA NATIONAL TRUS'l' &
SAVINGS ASSN. v. UNITED STATES. Ct. Cl. Certiorari
denied. Reported below: 198 Ct. CL 263, 459 F. 2d 513.
No. 72-236. BuDzANOSKI ET AL. v. UNITED STATES.
C. A. 3d Cir. Certiorari denied. Reported below: 462
F. 2d 443.
950 OCTOBER TERM, 1972
October 24, 1972 409U. S.
No. 72-233. LEBMAN v. UNITED STATES. C. A. 5th
Cir. Certiorari denied.
No. 72-237. RuscH v. ILLINOIS. App. Ct. Ill., 2d
Dist. Certiorari denied. Reported below: 3 Ill. App.
3d 500, 278 N. E. 2d 198.
No. 72-241. BROTHERHOOD OF LoCOMOTIVE FIREMEN
& ENGINEMEN, NOW UNITED TRANSPORTATION UNION V.
INDIANA HARBOR BELT RAILROAD Co. C. A. 7th Cir.
Certiorari denied. Reported below: 458 F. 2d 1077.
No. 72-244. OCCIDENTAL PETROLEUM CORP. ET AL. V.
BUTTES GAS & OIL Co. ET AL. C. A. 9th Cir. Certiorari
denied. Reported below: 461 F. 2d 1261.
No. 72-248. ALGA, INc., DBA MONTGOMERY BooK
MART, ET AL. v. CROSLAND ET AL. C. A. 5th Cir. Certiorari
denied. Reported below: 459 F. 2d 1038.
No. 72-249. CITY OF AKRON v. VILLAGE OF MIDDLEFIELD
ET AL. Sup. Ct. Ohio. Certiorari denied.
No. 72- 367. ESSLING ET AL. V. BRUBACHER, COMMISSIONER
OF ADMINISTRATION OF MINNESOTA. C. A. 8th
Cir. Certiorari denied.
No. 72-5069. KIER v. UNITED STATES. C. A. 9th
Cir. Certiorari denied.
No. 72-5116. REYNOLDS v. WAINWRIGHT, CORRECTIONS
DIRECTOR. C. A. 5th Cir. Certiorari denied. Reported
below: 460 F. 2d 1026.
No. 72-5135. WrLCYNSKI v. ARIZONA. Sup. Ct. Ariz.
Certiorari denied.
No. 72-5136. WEBSTER v. NEw YORK. Ct. App. N. Y.
Certiorari denied.
No. 72-.5143. SINCLAIR v. LOUISIANA. C. A. 5th Cir.
Certiorari denied.
ORDERS 951
409 U.S. October 24, 1972
No. 72-5137. SCHARBROUGH v. CuPP, WARDEN. Sup.
Ct. Ore. Certiorari denied. Reported below: See 7 Ore.
App. 596, 490 P. 2d 529.
No. 72-5141. BENNETT v. UNITED STATES. C. A.
5th Cir. Certiorari denied. Reported below: 461 F. 2d
848.
No. 72-5144. THOMAS v. UNITED STATES. C. A. 5th
Cir. Certiorari denied.
No. 72-5147. BENG-Joc, AKA LEE ET AL. V. UNITED
STATES. C. A. 2d Cir. Certiorari denied.
No. 72-5148. RocHE v. UNITED STATES. C. A. 2d
Cir. Certiorari denied.
No. 72-5149. RocHE v. UNITED STATES. C. A. 2d
Cir. Certiorari denied.
No. 72-5150. GARCIA-TURINO v. UNITED STATES.
C. A. 9th Cir. Certiorari denied. Reported below: 458
F. 2d 1345.
No. 72-5154. BISHOP, AKA SPEER v. UNITED STATES.
C. A. 9th Cir. Certiorari denied. Reported below: 462
F. 2d 127.
No. 72-5155. PARIS ET AL. v. FOREMAN, U. S. DISTRICT
JUDGE. C. A. 7th Cir. Certiorari denied.
No. 72-5158. Sums ET AL. v. UNITED STATES. C. A.
5th Cir. Certiorari denied. Reported below: 463 F. 2d
540.
N 0. 72-5159. HARRIS V. UNITED STATES. C. A. 9th
Cir. Certiorari denied.
No. 72-5160. HAWK v. MICHIGAN. Sup. Ct. Mich.
Certiorari denied.
No. 72- 5164. TYLER v. UNITED STATES. C. A. 10th
Cir. Certiorari denied. Reported below: 459 F. 2d 647.
952 OCTOBER TERM, 1972
October 24, 1972 409U. S.
No. 72-5163. JOHNSON v. UNITED STATES. C. A.
D. C. Cir. Certiorari denied. Reported below: 151
U.S. App. D. C. 162,466 F. 2d 333.
No. 72-5165. DzIALAK v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. Reported below: 463 F. 2d 221.
No. 72-5166. HILL v. UNITED STATES. C. A. 5th Cir.
Certiorari denied. Reported below: 463 F. 2d 235.
No. 72-5167. PIERCE v. GEORGIA. C. A. 5th Cir.
Certiorari denied.
No. 72-5169. LINCOLN v. UNITED STATES. C. A. 6th
Cir. Certiorari denied. Reported below: 462 F. 2d 1368.
No. 72-5171. SrnoNGA v. ADMINISTRATOR OF VETERANS
AFFAIRS. Ct. App. D. C. Certiorari denied.
No. 72-5172. STEAD v. UNITED STATES. C. A. 8th
Cir. Certiorari denied.
No. 72-5173. WADDELL v. NORTH CAROLINA. C. A.
4th Cir. Certiorari denied.
No. 72-5174. GomN v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. Reported below: 464 F. 2d 116.
No. 72- 5176. TRIBBLET v. SALISBURY, CORRECTIONAL
SUPERINTENDENT. C. A. 6th Cir. Certiorari denied.
No. 72-5177. JOHNSON v. UNITED STATES. C. A.
8th Cir. Certiorari denied. Reported below: 462 F.
2d 608.
No. 72-5178. DELUCIA v. NEW JERSEY. Super. Ct.
N. J. Certiorari denied.
No. 72-5181. LANE v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 461 F. 2d 343.
No. 72-5189. BURKLEY v. SLAYTON, PENITENTIARY
SUPERINTENDENT. C. A. 4th Cir. Certiorari denied.
ORDERS 953
409 u. s. October 24, 1972
No. 71-1487. CONFEDERATION LIFE INSURANCE Co. v.
DE LARA ET AL. Sup. Ct. Fla. Certiorari denied. Reported
below: 257 So. 2d 42.
MR. JusTICE BRENNAN, with whom MR. JUSTICE
DoGGLAS concurs, dissenting.
I dissent from the Court's refusal to grant certiorari
to consider whether the Florida Supreme Court's choice
of law in this action on a life insurance contract deprived
petitioner of due process under the Fourteenth Amendment
and the principles established in Home Insurance
Co. v. Dick, 281 U. S. 397 ( 1930).
Petitioner, a Canadian insurance company, issued a
policy of life insurance in 1938 to German Lopez Sanchez,
who was a citizen and resident of Cuba until his death
in 1962. The policy provided that all payments would
be made in United States dollars, which were then recognized
as one of two legal currencies in Cuba. But on
June 30, 1951, the Government of Cuba suspended the
legal tender status of the dollar and decreed that all previously
contracted dollar obligations would henceforth
be payable exclusively in Cuban pesos at the rate of
one peso per dollar. Petitioner concluded that the decree
automatically converted the policy from dollars to pesos,
and on July 1, 1951, it notified the insured that
"[a]ll premiums payable in accordance with this
policy as well as all other liabilities contracted under
the same and in which a reference is made to American
currency, will from now on be payable in Cuban
National currency, at par, in accordance with Law
No. 13 of 1948 and Decree No. 1384 of April 1951."
The insured declined to terminate the policy in light of
this notification, and made all subsequent payments entirely
in pesos. By legislation in 1959 and 1961 the
Cuban Government reconfirmed the 1951 decree and provided
criminal penalties for its violation. Petitioner
954 OCTOBER TERM, 1972
BRENNAN, J., dissenting 409 u. s.
maintains peso reserves in Cuba precisely for the purpose
of meeting its obligations under this and similar contracts,
but it is barred by the Cuban currency laws from
transferring those funds outside of Cuba. Under Cuban
law it thus seems clear that petitioner was obligated to
pay the benefits due under the policy only in Cuba and
only in pesos.
Nevertheless, in this suit brought by respondents,
beneficiaries of the insured who are now living in Florida,
the Supreme Court of Florida held that petitioner's obligations
under the contract should be determined according
to Florida law. And applying the law of that State,
the court concluded that petitioner was obligated to pay
the benefits in Florida and in United States dollars.
De Lara v. Conj ederation Life Assn., 257 So. 2d 42 (Fla.
1971).
Whether the state court correctly applied its own substantive
law is, of course, not in issue here. We are concerned
only with the state court's choice of law. Petitioner
maintains that the Due Process Clause of the
Fourteenth Amendment precludes a State from altering
"substantive obligations arising out of a foreign transaction
having no significant relation to the state." The
general validity of that proposition is clearly established
by Dick, supra, where we held that the
State of Texas was "without power to affect the terms
of the contracts" since " [a] 11 acts relating to the making
of the policy were done in Mexico." In an opinion by
Mr. Justice Brandeis, the Court held that the attempt
by the Texas courts "to impose a greater obligation than
that agreed upon and to seize property in payment of the
imposed obligation violates the guaranty against deprivation
of property without due process of law." 281
U.S., at 408.
In Clay v. Sun Insurance Office, 377 U.S. 179 (1964),
we reaffirmed by implication the validity of Dick, but
ORDERS 955
953 BRENNAN, J., dissenting
concluded that, on the particular facts of that case, the
forum State could reasonably apply its own law. We
distinguished Dick and Hartford Accident & lndem. Co.
v. Delta & Pine Land Co., 292 U.S. 143 (1934), on the
grounds that in the latter the relationship of the forum
State to the transaction was too slight and casual to
permit application of local law, and in the former the
relationship was "wholly lacking." 377 U. S., at 181-182.
The question, therefore, is whether this case is controlled
by Dick and Delta & Pine Land Co. or by Clay. In my
view, the facts of this case warrant plenary review by
this Court of the question whether the obligation of the
parties is governed by Cuban law. Florida has no relationship
to the insurance policy at issue here. The deceased
lived in Cuba until his death in 1962. All premiums
were paid in Cuba. And assets held in reserve
to meet the insurer's obligations were also maintained
in Cuba. Measured under any reasonable choice-of-law
test, these facts argue forcefully against the application
of Florida law.
Respondents maintain, however, that even if the
Florida Supreme Court erred in applying Florida law, the
court could properly have applied the law of Canada
and reached the same result. As a statement of Canadian
law, respondents cite the decision of the Supreme Court
of Canada in Imperial Life Assurance Co. of Canada v.
Colmenares, 1967 Can. L. Rep. 443. And they point
out that the Florida trial court, reasoning that the
contract was made in Toronto, Canada, and that the
lex loci contractus was Canadian law, applied the decision
in Colmenares as an alternative basis for its decision. Petitioner's
head office is, of course, located in Toronto.
But the conclusion of the trial court flies in the face of
the undisputed fact that the policy was negotiated in
Cuba and became effective there; that it was to be performed
in Cuba; that premiums were to be paid there;
956 OCTOBER TER:\1, 1972
October 24, 1972 409 U.S.
that it was drafted in Spanish and in conformance with
Cuban law; that it was issued through petitioner's
Havana office and was notarized there. It may well be
that on this record the Florida Supreme Court perceived
no basis for the conclusion that the contract was in any
sense "made" in Canada.
In any case, the short answer to respondents' contention
is that the Florida Supreme Court relied on Florida
law-and Florida law alone-in disposing of the case.
The court declined to comment on the trial court's alternative
holding, and rested its decision squarely and exclusively
on Confederation Life Assn. v. Vega, 207 So. 2d
33 (Fla. Dist. Ct. App.), aff'd, 211 So. 2d 169 (Fla.),
cert. denied, 393 U. S. 980 (1968), where it had applied
Florida law to determine the obligations of an insurer
under a contract issued to a Cuban. Thus, there is a
substantial question whether the only asserted basis of
the decision of the Florida Supreme Court- application
of Florida law--was erroneous under the Due Process
Clause of the Fourteenth Amendment. And since the
Government of Canada has represented to us that the
decision of the Florida court has significant international
ramifications, considerations of comity provide an additional
and forceful reason for granting the petition for
certiorari and setting the case for oral argument.
No. 72-5190. WOMACK v. CRAVEN, WARDEN. C. A.
9th Cir. Certiorari denied.
No. 72-5191. GREGORY v. UNITED STATES. C. A. 1st
Cir. Certiorari denied. Reported below: 463 F. 2d 600.
No. 71-6679. ALMOND v. SLAYTON, PENITENTIARY Su-
PERINTENDENT. C. A. 4th Cir. Certiorari denied. MR.
JusTICE DouGLAS would grant certiorari.
No. 72-148. RoTHMAN ET AL. v. UNITED STATES.
C. A. 2d Cir. Certiorari denied. MR. JUSTICE DouGLAS
would grant certiorari. Reported below: 463 F. 2d 488.
ORDERS 957
409 U.S. October 24, 1972
No. 71-1645. WEAVER ET ux. v. HuTsoN, TRUSTEE
IN REORGANIZATION. C. A. 4th Cir. Certiorari denied.
Reported below: 459 F. 2d 741.
MR. JusTICE WHITE, dissenting.
Section 70 (b) of the Bankruptcy Act provides in part:
"[A]n express covenant [in a lease] that an assignment
by operation of law or the bankruptcy of a
specified party thereto or of either party shall terminate
the lease or give the other party an election
to terminate the same is enforc[ea]ble." 11 U.S. C.
§ 110 (b).
In Finn v. Meighan, 325 U. S. 300 (1945), the Court
held § 70 (b) fully applicable in c. X reorganization
proceedings despite arguments that enforcement of forfeiture
clauses could deprive the debtor of property vital
to the continuance of the business and so defeat the very
purpose of the reorganization proceedings.* The Court
said:
"There is some suggestion, however, that that provision
is applicable only in ordinary bankruptcy
proceedings and not to reorganizations under Ch. X.
It is pointed out that frequently the value of enterprises
is greatly enhanced by leases on strategic
*The petitioner argued, Brief for Petitioner in No. 953, 0. T. 1944,
pp. 4-5, 11:
"The fundamental purpose of Chapter X of that Act would in many
cases be thwarted if valuable, and often vital, assets were lost by
the very fact of the institution of reorganization proceedings designed
to conserve the debtor's property. . . . In innumerable instances,
corporate contracts, including leases, constitute assets which, in
many cases, are vital to the continuance of the business. Many such
corporate contracts contain clauses of the type involved herein. If
the decision in the instant case of the Circuit Court of Appeals for
the Second Circuit should in such situations be followed, the very
filing and approval of the petition for reorganization would immediately
operate to cancel such executory contracts and thus defeat in
large part the very purpose of the reorganization proceedings .... "
958 OCTOBER TERM, 1972
WHITE, J ., dissenting 409 U.S.
premises and that if forfeiture clauses were allowed
to be enforced, reorganization plans might be seriously
impaired. But Congress has made the forfeiture
provision of § 70 applicable to reorganization
proceedings under Ch. X. . . . Thus we must read
§ 70 (b) as providing that an express covenant is
enforceable which allows the lessor to terminate the
lease if a petition to reorganize the lessee under Ch.
X is approved. Cf. In re Walker, 93 F. 2d 281.
That being the policy adopted by Congress, our duty
is to enforce it." 325 U. S., at 302-303.
In the case before us the Court of Appeals for the
Fourth Circuit refused to apply § 70 (b) in a reorganization
proceeding and to enforce a termination provision
in a lease, because to do so, in its opinion, would emasculate
the reorganization plan. The Court of Appeals relied
on Smith v. Hoboken R. Co., 328 U. S. 123 (1946),
where this Court held that § 70 (b) did not require
recognition of a forfeiture provision in the context of a
railroad reorganization under § 77 because the forfeiture
would deprive the Interstate Commerce Commission of
its statutory function. The Court was careful to distinguish
Finn:
"Finn v. Meighan, supra, involved the forfeiture
of a lease in reorganization proceedings under Ch. X.
But the problem there was not complicated by any
provisions of Ch. X giving to an administrative
agency the functions entrusted to the Interstate
Commerce Commission under § 77. As we stated in
Palmer v. Massachusetts, 308 U. S. 79, 87, ' ... the
whole scheme of § 77 leaves no doubt that Congress
did not mean to grant to the district courts the same
scope as to bankrupt roads that they may have in
dealing with other bankrupt estates." 328 U. S., at
133 n. 5.
ORDERS 959
409 U.S. October 24, 1972
Because the decision of the Court of Appeals appears
to depart from the views of the Court expressed in Finn,
I would grant the petition for certiorari and set the case
for argument.
No. 71-65-18. MARTINEZ v. MANCUSI, CORRECTIONAL
SUPERINTENDENT. C. A. 2d Cir. Certiorari denied. Reported
below: 455 F. 2d 705.
MR. JusncE MARSHALL, with whom MR. JUSTICE
DouGLAS concurs, dissenting.
I dissent. I think petitioner's guilty plea entered in
New York state court was clearly involuntary, particularly
after our decision last Term in Santobello v. New
York, 404 U.S. 257 (1971).
On October 23, 1968, petitioner was charged in an indictment
returned in New York state court with one
count of criminally selling a dangerous drug in the second
degree ' and one count of criminally selling a dangerous
drug in the third degree.2 In November 1968, a second
indictment was returned against petitioner in state court
charging him with a single count of criminally selling a
dangerous drug in the third degree. Prior to the 1969
amendments of the New York Penal Law, criminally
selling a dangerous drug in the second degree was punishable
by a maximum of 15 years' imprisonment, while the
maximum sentence under a third-degree charge was seven
years' imprisonment.3 At arraignment, petitioner pleaded
not guilty to all the charges; the case was set for trial.
On February 17, 1969, the State moved for trial. Before
the proceedings commenced, the prosecutor, the defense
counsel, and the trial judge met in the judge's
1 N. Y. Penal Law§ 220.35 (Supp. 1972-1973).
2 N. Y. Penal Law§ 220.30 (Supp. 1972-1973).
3 See N. Y. Penal Law§ 70.00, subds. 2 (c)-(d) (1967).
960 OCTOBER TERM, 1972
MARSHALL, J., dissenting 409 U.S.
chambers-in the absence of the petitioner-to discuss
the case. When the case was subsequently called for
disposition, the prosecutor began by stating that he
understood petitioner wished to withdraw his earlier pleas
of not guilty and to "enter a plea of guilty to the second
count of [the October 23 indictment] . . . charging
[him] with the crime of Criminally Selling a Dangerous
Drug in the Third Degree." At this point the court interrupted
the prosecutor and the following exchange
occurred:
"The Court: Wait a minute. Third Degree?
"[Prosecutor]: The second count, your Honor, of
[ the first indictment].
"[Defense Counsel]: There are two counts of
Second Degree and one of Third Degree.
"The Court: That is not what I understood.
"(Whereupon a conversation was had off the
record).
"The Court: ... [A]s far as I am concerned,
it may be that two indictments were to be disposed
of through one plea, but it was not a plea to Selling
a Dangerous Drug in the Third Degree. That was
no part of our talk.
"[Defense CounselJ: It was this afternoon, Judge.
"The Court: It was not part of our talk."
Unable to obtain the plea he had expected, defense
counsel requested a one-day adjournment because he was
"not prepared to go to trial."
"The Court: The case will proceed to trial or disposition
right now.
"[Defense Counsel]: ... This case was answered
ready by my office at the February calendar, but I
was not informed until this morning that we were
proceeding. And I would again respectfully request
959
ORDERS 961
MARSHALL, .J ., dissenting
that the court grant me until at least tomorrow
morning.
"The Court: Application denied."
When the defense counsel subsequently turned to the
prosecutor-the same prosecutor who only a moment
before had stated in open court that he understood the
defendant wished to change his pleas of not guilty to a
plea of guilty to the third degree charge-for assistance
in clearing up the confusion, the only response was, "No
comment."
Defense counsel indicated that he was going to withdraw
"because I can't adequately defend this man without
some preparation, and I think the District Attorney
should at least give me that kind of notice." Defense
counsel was given a few moments to speak with petitioner.
Faced with the dilemma of either proceeding
immediately to trial on all three charges with unprepared
counsel or pleading guilty to one count of selling a
dangerous drug in the second degree, petitioner not
unexpectedly chose the latter course as the lesser of two
evils. The usual litany of the plea then followed! In
advance of sentencing, petitioner sought to withdraw his
plea, but this was denied and he received an indefinite
sentence of from five to 15 years' imprisonment. After
appealing his case through the state courts,5 petitioner
sought review of his plea by way of federal habeas corpus.
The District Court denied relief without a hearing, and
4 Indeed, there was only a single slip by petitioner when he indicated
that he had been told what sentence he would receive. Defense
counsel quickly denied this, and petitioner naturally corrected
himself.
5 People v. Martinez, 34 App. Div. 2d 174, 311 !'.. Y. S. 2d 117
(1970), leave to appeal to the New York Court of Appeals was
denied, and a petition for a writ of certiorari was denied by this
Court, 401 U.S. 941 (1971).
962 OCTOBER TERM, 1972
MARSHALL, J., dissenting 409 U.S.
the Court of Appeals affirmed, with one judge dissenting,
455 F. 2d 705 (CA2 1972).
Last Term in Santobello we emphasized the importance
of the plea-bargaining process: "If every criminal charge
were subjected to a full-scale trial, the States and Federal
Government would need to multiply by many times the
number of judges and court facilities," 404 U. S., at 260.
But a guilty plea necessarily involves the waiver of a
variety of fundamental constitutional rights, see, e. g.,
Duncan v. Lou-isiana, 391 U.S. 145 (1968) (right to jury
trial); Pointer v. Texas, 380 U. S. 400 (1965) (right to
confront one's accusers), and the process by which it is
obtained must therefore be governed by a standard of
absolute fairness. The plea must be the result of "a
voluntary and intelligent choice among the alternative
courses of action open to the "defendant." North Carolina
v. Alford, 400 U. S. 25, 31 ( 1970). See also Boykin v.
Alabama, 395 U. S. 238, 242 (1969); Machibroda v.
United States, 368 U. S. 487, 493 (1962). I think it
clear that this petitioner was denied such a choice. To
be sure, it is in the nature of the plea-bargaining process
that some pressure is brought to bear on the defendant
to enter a plea. But here the normal pressures inherent
in the plea-ba.rgaining process were improperly augmented
by both the prosecutor and the trial judge.
In Santobello, supra, at 262, we said "that when a plea
rests in any significant degree on a promise or agreement
of the prosecutor, so that it can be said to be part of
the inducement or consideration, such promise must be
fulfilled." In that decision, we condemned a prosecutor's
failure to abide by the agreement of an associate who had
promised to make no recommendation as to sentence in
return for the guilty plea. What occurred here was far
more serious. It would be naive to deny that, at least
as between defense counsel and the prosecutor, a clear
understanding had been reached in the judge's chambers
ORDERS 963
959 MARSHALL, J., dissenting
that petitioner would be allowed to plead guilty to the
third-degree charge. The prosecutor's opening remarks
in the subsequent proceedings unquestionably indicate
that this was the case. Yet when defense counsel turned
to the prosecutor for corroboration that the deal struck
was indeed for a plea to the less serious charge in the
third degree, he received only the unhelpful "No comment."
This is not fulfillment by the prosecutor of his
promise. And at this juncture it is impossible to assess
what impact affirmative support from the prosecutor
might have had upon the trial judge, who quickly became
unreceptive to the unsupported efforts of defense counsel
to clarify the situation.
I would not stop in this case, however, with the
prosecutor. For the trial judge saw fit to become a
party to the plea negotiations and agreement. Whatever
the considerations when the judge is not a participant
in the plea-bargaining process, it seems to me that
once he has injected himself into that process he must
be held to the same strict standard of fairness as the
prosecutor. This is not to say that the trial judge should
be deprived of his traditional discretion to reject a plea
of guilty; I agree that "[t]here is ... no absolute right
to have a guilty plea accepted," Santobello, supra, at
262, citing Lynch v. Overholser, 369 U.S. 705, 719 (1962).
By the same token, though, a trial judge cannot be
allowed to use his discretion to apply undue pressures
on a defendant. Nothing could be more destructive of
the integrity-and ultimately the viability-of the pleabargaining
process. I do not doubt that in this instance
there was a misunderstanding between the prosecutor
and defense counsel, on the one hand, and the trial
judge, on the other, as to the charge to which petitioner
would be allowed to plead guilty. In light of this confusion
over the plea agreement, the trial judge was justified
in refusing to accept the plea to the third-degree
964 OCTOBER TERM, 19i2
MARSHALL, J., dissenting 409 U.S.
charge. But he certainly was not justified in visiting
the consequences of the misunderstanding and the resulting
confusion on petitioner by compelling him either to
go to trial on all three charges with counsel who was
unprepared or to plead guilty to the more serious charge.
Having been a party to the negotiations and having
thereafter refused to accept the plea that both the other
parties to the negotiations thought was agreed upon, the
trial judge was obligated to allow petitioner to extract
himself from the predicament in which he had been
placed by the misunderstanding that subsequently became
apparent. Consequently, I believe that the judge
should at least have granted the one-day continuance
requested by defense counsel.
It is no answer that defense counsel should have been
prepared to proceed to trial at once because his office
had answered ready to the call of the February calendar.
First, it is not disputed that defense counsel was
not informed until the morning of the proceeding that
the case was to be heard. We cannot ignore that in
these days of crowded dockets, attorneys-as well as
judges-are often forced to juggle unreasonably lurge
case loads. Moreover, regardless of whether defense
counsel technically should have been ready for trial because
the case had previously been answered ready at the
call of the February calendar, counsel undoubtedly could
have made valuable use of the time between the conference
in the judge's chambers and the formal disposition
of the case had he not been under the misimpression
that a bargain had been struck.6 In short, I
question whether defense counsel can be faulted for
his unpreparedness for immediate trial upon discover-
6 Although the record is not entirely clear on this point, it does
appear that a substantial amount of time elapsed between the conference
in the judge's chambns and when petitioner's case was called
for formal disposition.
ORDERS 965
!)59 MARSHALL, .T ., dissenting
ing that a plea to a third-degree charge would not be
accepted. But whatever the justification for defense
counsel's unpreparedness, it was the petitioner, not his
counsel, whom the trial judge forced to bear the consequences.
I cannot accept this penalizing of petitioner
for the conduct of his attorney, given the importance of
the rights at stake. Weighed against the right of effective
assistance of counsel, the request for a one-day
continuance was hardly unreasonable. Previously we
have said:
"The matter of continuance is traditionally within
the discretion of the trial judge, and it is not every
denial of a request for more time that violates due
process even if the party fails to off er evidence or
is compelled to defend without counsel. . . . Contrariwise,
a myopic insistence upon expeditiousness
in the face of a justifiable request for delay can
render the right to defend with counsel an empty
formality .... " Ungar v. Sarafite, 376 U. S. 575,
589 (1964).
And the alternative to proceeding with unprepared counsel
was the waiver of a variety of important constitutional
rights by way of a plea of guilty to a charge as to
which, as a matter of unfettered choice, petitioner was
obviously not prepared to concede guilt. Therefore, I
think- as I have already indicated-granting of the short
continuance 7 requested was incumbent on the trial judge
7 The Court of Appeals majority, in discounting the unpreparedness
of defense counsel and the importance of the continuance, suggested
that "the very request for merely an overnight adjournment
would indicate the lark of complexity of the dPfense." We have
noted, though, that whether or not a continuance would in fact
''havi> been useful to the accused, ... the importance of the assistance
of counsel in a serious criminal charge after arraignment is too
large to permit speculation on its effect." Hawk v. Olson, 326 U. S.
271, 278 (1945).
966 OCTOBER TERM, 1972
October 24, 1972 409U.S.
once he had rejected the plea bargain that everyone
else understood to have been struck. The judge's refusal
to grant the continuance can only be viewed as an
unjustified compounding of the coercive circumstances
under which petitioner's plea was procured.
Hence, I would grant the petition for certiorari and
remand the case with instructions that petitioner's plea
be vacated and he be allowed to replead to the original
charges. In Santobello, the Court declined to direct
that the guilty plea there at issue be vacated and simply
remanded for reconsideration. The broken promise in
Santobello, however, affected only the petitioner's sentence,
not the charge to which he had pleaded guilty.
Here, by contrast, the conduct of the prosecutor and the
trial judge improperly coerced petitioner to plead guilty
to the second-degree charge.
No. 71-6571. ALBERT v. SorTH CAROLINA. Sup. Ct.
S. C. Certiorari denied. MR. JUSTICE DouGLAS would
grant certiorari. Reported below: 257 S. C. 131, 184
S. E. 2d 605.
~o. 71-6830. WEST v. MILLER, STATE WELFARE ADMINISTRATOR,
ET AL. Sup. Ct. Nev. Certiorari denied.
MR. JUSTICE DOUGLAS would grant certiorari. Reported
below: 88 Nev. 105,493 P. 2d 1332.
No. 72-210. NICHOLS v. L"NrTEo STATES ET AL. C. A.
10th Cir. Certiorari denied. MR. JUSTICE DoeGLAS
would grant certiorari. Reported below: 460 F. 2d 671.
No. 72-223. HAHN ET l'X. V. NORWEGIAN AMERICA
LINE. C. A. 7th Cir. Certiorari denied. MR. JusTICE
DouGLAS would grant certiorari.
No. 72-239. CHILDS v. UNITED STATES. C. A. 4th
Cir. Certiorari denied. MR. JusTICE DouGLAS would
grant certiorari. Reported below: 463 F. 2d 390.
409U. S.
ORDERS
October 24, 1972
967
No. 72-187. SQUARED Co. v. HODGSON, SECRETARY OF
LABOR. C. A. 6th Cir. Certiorari denied. MR. JUSTICE
DouGLAS would grant certiorari. Reported below: 459
F. 2d 805.
No. 72-258. LEHMAN v. UNITED STATES. C. A. 7th
Cir. Certiorari denied. MR. JUSTICE DOUGLAS would
grant certiorari. Reported below: 468 F. 2d 93.
No. 72--276. TAYLOR, EXECUTRIX v. UNITED STATES
ET AL. C. A. 9th Cir. Certiorari denied. MR. JUSTICE
DOUGLAS would grant certiorari. Reported below: 459
F. 2d 1007.
No. 72- 5179. POWERS V. KLEINDIENST, ATTORNEY
GENERAL, ET AL. C. A. 9th Cir. Certiorari denied. MR.
JUSTICE DOUGLAS would grant certiorari. Reported below:
463 F. 2d 212.
No. 72--5180. WILLIAMS v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. MR. JUSTICE DouGLAS would
grant certiorari. Reported below: 463 F. 2d 1183.
No. 72-42. DuMT v. NATIONAL CASUALTY Co. ET AL.
C. A. 9th Cir. Motion to dispense with printing petition
granted. Certiorari and other relief denied.
No. 72--191. HUMBLE OrL & REFINING Co. v. CALVERT
ET AL. Sup. Ct. Tex. Certiorari denied. MR. JUSTICE
DOUGLAS would grant certiorari. MR. JUSTICE PowELL
took no part in the consideration or decision of this
petition. Reported below: 478 S. W. 2d 926.
No. 72--213. LATIN AMERICA/ PACIFIC COAST STEAMSHIP
CONFERENCE ET AL. v. FEDERAL MARITIME COMMISSION
ET AL. C. A. D. C. Cir. Motion to dispense
with printing petitioners' reply brief granted. Certiorari
denied. Reported below: 150 U. S. App. D. C. 362, 465
F. 2d 542.
968 OCTOBER TERM, 1972
October 24, 1972 409U. S.
No. 71-6789. SELLARS ET AL. v. BETO, CORRECTIONS
DIRECTOR. C. A. 5th Cir. Motion of National Prison
Project of the American Civil Liberties Union et al. for
leave to file a brief as amici curiae granted. Certiorari
denied. Reported below: 453 F. 2d 661; 456 F. 2d 1303.
MR. JusTICE DouGLAS, with whom MR. JUSTICE BRENNAN
and MR. JUSTICE MARSHALL concur, dissenting.
I vote to hear this case because it raises substantial
questions of law in the area of the Eighth and Fourteenth
Amendments.
Petitioners are inmates of the Texas Department of
Corrections (T. D. C.). They brought a class action
under 42 U. S. C. § 1983, challenging the constitutionality
of:
(1) a T. D. C. regulation barring all inmate assistance
in preparation of legal work;
(2) the primitive conditions of the solitary confinement
as administered by the T. D. C.
The District Court denied relief, Novak v. Beto, 320 F.
Supp. 1206 (SD Tex. 1970).
On appeal, the United States Court of Appeals for the
Fifth Circuit unanimously reversed as to the prohibition
on prisoners' legal assistance, holding that the State had
not met its burden of providing alternatives to assure
access to the courts as required by Johnson v. Avery, 393 u. s. 483 (1969).
A divided court affirmed the constitutionality of the
conditions of solitary confinement. Novak v. B eto, 453
F. 2d 661 (1971). A motion for a rehearing and rehearing
en bane was denied March 8, 1972, six judges dissenting.
Novak v. Beto, 456 F. 2d 1303.
If we are to believe the facts as stated by petitioners,
and for purposes of review we must, a prisoner placed
in solitary confinement in Texas will find himself in a
shockingly primitive condition.
ORDERS 969
968 DouoLAs, J., dissenting
The cell is kept in complete darkness 24 hours a day.
A barred iron gate backed up by a wooden door blocks all
light and prevents any human contact with those in the
hall.1 Within this black interior is a combination toiletwater
basin and a steel bunk. The bunk has no mattress
although the prisoner is given a blanket. The cell is
otherwise bare. The inmate is fed on a bread and water
diet with one full meal every 72 hours.2 He is clothed
only by a cloth gown. In addition to those conditions,
which were considered inhumane at the time of Charles
Dickens, the prisoner has no opportunity to exercise; he
is not permitted correspondence with family, friends, or
lawyer; no visits are allowed and he is allowed no reading
material of any kind.
The prisoner is not seen by a psychologist, psychiatrist,
or counselor before, during, or after confinement to solitary.
And all deprivations involved in solitary confinement
apply uniformly regardless of the individual's background
or criminal record or offense for which he is being
punished.
A prisoner can be kept so confined for 15 days and reconfined
after a two-day respite. Such practices as
above described exist in all of Texas' 14 correctional
facilities.
1 On July 10, 1972, the T. D. C. revised its regulations on the
lighting and diet.
"50.92322 Lighting.
"The solid doors of the solitary cells will be left open. If an inmate
becomes noisy and creates a disturbance the door will be closed.
On some units the open doors create a security problem, and it is not
practical to utilize this procedure. If this occurs, artificial lighting
will be provided during the normal daylight hours."
2 "50.9233 Diet.
"50.92331 Inmates in solitary [confinement] are to be fed twice a
day a hot meal consisting of vegetables from the regular serving line,
and are to be given unlimited drinking water."
970 OCTOBER TERM, 1972
Douaus, J., dissenting 409 u. s.
The petitioners do not question the right of the prison
to isolate inmates for cause but do challenge these
practices.
Weems v. United States, 217 U. S. 349 (1910), was a
landmark in the definition of the Cruel and Unusual Punishment
Clause. Robinson v. California made the Eighth
Amendment binding on the States through the Fourteenth
Amendment. 370 U. S. 660 (1962). We said
that the "dignity of man" was the overriding value preserved
by that clause. Trop v. Dulles, 356 U. S. 86, 100
(1958).
The fitness of punishment is to be judged by applying
evolving standards, for the clause "is not fastened to the
obsolete but may acquire meaning as public opinion becomes
enlightened by a humane justice." 217 U. S., at
378. What those standards are is now tendered. The
extent to which the prohibition against cruel and unusual
punishment will apply in prison must also be determined.
In Haines v. Kerner, 404 U.S. 519 (1972), we held that
a bare allegation of onerous penal conditions is sufficient
to require a hearing.
Lower courts have often dealt with the issue and have
reached divergent results 3 without guidance from us.
See Morales v. Schmidt, 340 F. Supp. 544 (1972).
3 Some lower courts have held that some conditions of imprisonment
constitute cruel and unusual punishment. See Wright v.
McMann, 387 F. 2d 519 (CA2 1967), on remand, 321 F. Supp. 127
(NDNY 1970), affirmed in part and reversed in part, 460 F. 2d 126
(CA2 1972); Hancock v. Avery, 301 F. Supp. 786 (MD Tenn.
1969); Holt v. Sarver, 300 F. Supp. 825 (ED Ark. 1969); Barnes v.
Hocker, No. R 2071 (Nev. Sept. 5, 1969); Jordan v. Fitzharris, 257
F. Supp. 674 (ND Cal. 1966). Contra: Sostre v. McGinnis, 442
F. 2d 178, 192 (CA2 1971); Courtney v. Bi.shop, 409 F. 2d 1185 (CAS
1969); Ford v. Board of Managers, 407 F. 2d 937 tCA3 1969); Krist
v. Smith, 309 F. Supp. 497 (SD Ga. 1970), aff'd, 439 F. 2d 146 (CA5
1971).
ORDERS 971
409 U.S. October 24, November 3, 1972
Denial of the petition here in my view constitutes a
travesty of justice. As Judge Tuttle stated in his dissent:
"I do not hesitate to assert the proposition that the
only way the law has progressed from the days of
the rack, the screw and the wheel is the development
of moral concepts, or, as stated by the Supreme Court
in Trop v. Dulles, the application of 'evolving standards
of decency.'" Novak v. Beto, 453 F. 2d, at
672.4
I would grant this petition and put the case down for
argument.
No. 72-221. SHERDON v. CARMONA ET AL. Ct. App.
Cal., 4th App. Dist. Motion to dispense with printing
petition granted. Certiorari denied.
NOVEMBER 3, 1972
Miscellaneous Order
No. A--467. LAIRD, SECRETARY OF DEFENSE, ET AL. v.
SPOCK ET AL. C. A. 3d Cir. Application for stay of
judgment of the United States Court of Appeals for the
Third Circuit (No. 72-1934) denied. THE CHIEF Jus-
TICE, MR. JUSTICE WHITE, MR. JUSTICE BLACKMUN, and
MR. JUSTICE REHNQUIST would grant the stay. Reported
below: 469 F. 2d 1047.
4 As stated by Judge Kaufman in Wright v. McMann, 387 F. 2d,
at 526:
"We are of the view that civilized standards of humane decency
simply do not permit a man for a substantial period of time to be
denuded and exposed to the bitter cold of winter in northern New
York State and to be deprived of the basic elements of hygiene such
as soap and toilet paper. The subhuman conditions alleged by
Wright to exist in the 'strip cell' at Dannemora could only serve to
destroy completely the spirit and undermine the sanity of the prisoner.
The Eighth Amendment forbids treatment so foul, so inhuman
and so violative of basic concepts of decency."
972 OCTOBER TERM, 1972
NOVEMBER 6, 1972
Affirmed on Appeal
409 u. s.
No. 72-175. FrnELL ET AL. v. BoARD OF ELECTIONS OF
THE CITY OF NEW YoRK ET AL. Affirmed on appeal from
D. C. E. D. N. Y. MR. JUSTICE DOUGLAS would note
probable jurisdiction and set case for oral argument.
Reported below: 343 F. Supp. 913.
No. 72-200. CHIEF OF THE CAPITOL POLICE ET AL. v.
JEANNETTE RANKIN BRIGADE ET AL. Affirmed on appeal
from D. C. D. C. Reported below: 342 F. Supp.
575.
No. 72-251. LoFRrsco ET AL. v. SCHAFFER, SECRETARY
OF STATE OF CONNECTICUT, ET AL. Affirmed on appeal
from D. C. Conn. Reported below: 341 F. Supp. 743.
No. 72-252. KERR MOTOR LINES, INC. v. UNITED
STATES ET AL. Affirmed on appeal from D. C. N. D.
N. Y.
Appeals Di,smissed
No. 71-1584. STAUFFER v. WEEDLUN, DIRECTOR, DEPARTMENT
OF MOTOR VEHICLES, ET AL. Appeal from
Sup. Ct. Neb. dismissed for want of substantial federal
question. MR. JUSTICE DouGLAS would note probable
jurisdiction and set case for oral argument. Reported
below: 188 Neb. 105, 195 N. W. 2d 218.
No. 72-115. CUNNINGHAM ET AL. v. KING CouNTY
BouNDARY REVIEW BOARD ET AL. Appeal from Ct. App.
Wash. dismissed for want of substantial federal question.
Reported below: 6 Wash. App. 385,493 P. 2d 811.
No. 72-318. RAFTER v. NEWARK INSURANCE Co. Appeal
from Ct. App. N. Y. dismissed. Treating the papers
whereon the appeal was taken as a petition for writ of
certiorari, certiorari denied.
ORDERS 973
409 U.S. November 6, 1972
No. 72-240. HARPER v. UNITED STATES. Appeal from
C. A. 1st Cir. Motion to dispense with printing jurisdictional
statement granted. Appeal dismissed for want
of jurisdiction. Treating the papers whereon the appeal
was taken as a petition for writ of certiorari, certiorari
denied.
No. 72-5007. CORRADO v. RHODE ISLAND BAR AssN.
Appeal from Sup. Ct. R. I. dismissed. Treating the
papers whereon the appeal was taken as a petition for
writ of certiorari, certiorari denied.
No. 72-5290. BIRDWELL v. WASHINGTON. Appeal
from Ct. App. Wash. dismissed. Treating the papers
whereon the appeal was taken as a petition for writ of
certiorari, certiorari denied. Reported below: 6 Wash.
App. 284, 492 P. 2d 249.
No. 72-319. KENNECOTT COPPER CORP. ET AL. V.
STATE TAx COMMISSION OF UTAH. Appeal from Sup.
Ct. Utah. Motions of Financial Executives Institute,
Tax Executives Institute, Inc., and Committee on State
Taxation of the Council of State Chambers of Commerce
et al. for leave to file briefs as amici curiae granted. Appeal
dismissed for want of substantial federal question.
MR. JusTICE WHITE would note probable jurisdiction and
set case for oral argument. Reported below: 27 Utah
2d 119, 493 P. 2d 632.
Certiorari Granted-Reversed. (See No. 72-55, ante,
p. 41.)
Miscellaneous Orders
No. A-410 (72-5579). BEKENY ET ux. v. WANDSCHNEIDER,
EXECUTOR, ET AL. C. A. 2d Cir. Application
for stay presented to THE CHIEF JUSTICE, and by
him referred to the Court, denied.
974 OCTOBER TERM, 1972
November 6, 1972 409 u. s.
No. A-428. CooK ET AL. v. CALHOUN ET AL. C. A.
5th Cir. Application for stay presented to MR. JusTICE
PowELL, and by him referred to the Court, denied. MR.
JusTICE MARSHALL took no part in the consideration or
decision of this application.
No. D-1. IN RE DISBARMENT OF KAHN. It is ordered
that Frances Kahn, of New York, New York, be suspended
from the practice of law in this Court and that
a rule issue returnable within 40 days requiring her to
show cause why she should not be disbarred from the
practice of law in this Court.
No. D-2. IN RE DISBARMENT OF ABRAMS. It is ordered
that Hyman Abrams, of New York, New York, be
suspended from the practice of law in this Court and
that a rule issue returnable within 40 days requiring him
to show cause why he should not be disbarred from the
practice of law in this Court.
No. D-3. IN RE DISBARMENT OF KONIGSBERG. It is
ordered that Sidney Konigsberg, of New York, New
York, be suspended from the practice of law in this Court
and that a rule issue returnable within 40 days requiring
him to show cause why he should not be disbarred from
the practice of law in this Court.
No. D-4. IN RE DISBARMENT OF BROUNER. It is ordered
that Samuel B. Brouner, of New York, New York,
be suspended from the practice of law in this Court and
that a rule issue returnable within 40 days requiring
him to show cause why he should not be disbarred from
the practice of law in this Court.
No. 27, Orig. OHIO v. KENTUCKY. Exceptions to
Report of Special Master set for oral argument in due
course. [For earlier orders herein, see, e. g., 406 U. S.
915.]
ORDERS 975
409 U.S. November 6, 1972
No. D-5. IN RE DISBARMENT OP SIGNER. It is ordered
that Burton R. Signer, of Cincinnati, Ohio, be suspended
from the practice of law in this Court and that
a rule issue returnable within 40 days requiring him to
show cause why he should not be disbarred from the
practice of law in this Court.
No. D-6. IN RE DISBARMENT OF YuDow. It is ordered
that Daniel D. Yudow, of New York, New York,
be suspended from the practice of law in this Court and
that a rule issue returnable within 40 days requiring him
to show cause why he should not be disbarred from the
practice of law in this Court.
No. D-7. IN RE DISBARMENT OF SCHERMAN. It is
ordered that Benjamin B. Scherman, of New York, New
York, be suspended from the practice of law in this Court
and that a rule issue returnable within 40 days requiring
him to show cause why he should not be disbarred from
the practice of law in this Court.
No. D-8. IN RE DISBARMENT OF PAvSNER. It is
ordered that Emanuel H. Pavsner, of New York, New
York, be suspended from the practice of law in this
Court and that a rule issue returnable within 40 days
requiring him to show cause why he should not be disbarred
from the practice of law in this Court.
No. 71-92. CoRKEY E:T AL. v. EDWARDS ET AL. Appeal
from D. C. W. D. N. C. Motion to set questions
V, VI, and IV for briefing and oral argument denied.
Reported below: 322 F. Supp. 1248.
No. 71-829. MOURNING v. FAMILY PUBLICATIONS
SERVICE, INC. C. A. 5th Cir. [Certiorari granted, 405
U. S. 987.] Motion of the Solicitor General to permit
A. Raymond Randolph, Jr., Esquire, to present oral
argument -pro hac vice as amicus curiae in support of
petition granted.
976 OCTOBER TERM, 1972
November 6, 1972 409 U.S.
No. 71-708. TRAFFICANTE ET AL. v. METROPOLITAN
LIFE INSURANCE Co. ET AL. C. A. 9th Cir. [Certiorari
granted, 405 U. S. 915.] Motion to permit two counsel
to argue on behalf of respondents granted.
No. 71-850. UNITED STATES v. MARA, AKA MARASOv1cH.
C. A. 7th Cir. [Certiorari granted, 406 U.S. 956.]
Motion of Legal Aid Society of New York for leave to
participate in oral argument as amicus curiae in support
of respondent granted.
No. 71-1031. TONASKET v. WASHINGTON ET AL. Appeal
from Sup. Ct. Wash. [Probable jurisdiction noted.
407 U. S. 908.] Motion of Colville Confederated Tribes
for leave to participate in oral argument as amicus curiae
granted.
No. 71-1082. ASKEW, GovERNOR OF FLORIDA, ET AL.
V. AMERICAN WATERWAYS OPERATORS, INC., ET AL. Appeal
from D. C. M. D. Fla. [Probable jurisdiction noted,
405 U. S. 1063.] Motions to permit two counsel to
argue on behalf of appellants and two counsel to argue
on behalf of appellees granted.
No. 71-1192. GOLDSTEIN ET AL. v. CALIFORNIA. App.
Dept., Super. Ct. Cal., County of Los Angeles. [Certiorari
granted, 406 U. S. 956.] Motion of Information
Industry Assn. for leave to file untimely brief as amicus
curiae granted. Motion of the Attorney General of
California for additional time to participate in oral
argument as amicus curiae denied.
No. 71-1470. LEMON ET AL. v. KURTZMAN, SUPERINTENDENT
OF PUBLIC INSTRUCTION OF PENNSYLVANIA,
ET AL. Appeal from D. C. E. D. Pa. [Probable jurisdiction
noted, 406 U. S. 943.] Motion of Pennsylvania
Association of Independent Schools to permit two counsel
to argue on behalf of appellees denied.
ORDERS 977
409 U.S. November 6, 1972
No. 71-5139. HAM v. SouTH CAROLINA. Sup. Ct.
S. C. [Certiorari granted, 404 U. S. 1057.] Motion
of the Attorney General of South Carolina to permit
Timothy G. Quinn to present oral argument pro Jw.c vice
on behalf of respondent granted.
No. 71-6356. DoE ET AL. v. McMILLAN ET AL. C. A.
D. C. Cir. [Certiorari granted, 408 U. S. 922.] Motion
to permit two counsel to argue on behalf of respondents
granted.
No. 72- 11. PALMORE v. UNITED STATES. Appeal from
Ct. App. D. C. [Probable jurisdiction postponed, ante,
p. 840.] Motion of appellant for leave to proceed
further herein in forma pauperis granted.
N'o. 72-5214. FLOYD V. HENDERSON, WARDEN;
No. 72-5282. BACA v. HARRIS, WARDEN, ET AL. ; and
No. 72-5295. SHELTON v. HENDERSON, WARDEN.
Motions for leave to file petitions for writs of habeas
corpus denied.
No. 71-6827. SAMS v. FRANKEL, U.S. DISTRICT JuDGE.
Motion for leave to file petition for writ of mandamus
denied.
Probable Jurisdiction Noted or Postponed
No. 72-269. LEVITT, COMPTROLLER OF NEW YoRK,
ET AL. V. COMMITTEE FOR PUBLIC EDUCATION & RELIGIOUS
LIBERTY ET AL. ;
No. 72- 270. BRYDGES v. COMMITTEE FOR PUBLIC Enu-
CATION & RELIGIOUS LIBERTY ET AL.; and
No. 72-271. CATHEDRAL ACADEMY ET AL. v. COMMITTEE
FOR PUBLIC EDUCATION & RELIGIOUS LIBERTY ET AL.
Appeals from D. C. S. D. N. Y. Probable jurisdiction
noted. Cases consolidated and a total of one hour allotted
for oral argument. Reported below: 342 F. Supp.
439.
978 OCTOBER TERM, 1972
ovember 6, 1972 409U.S.
No. 72-129. NATIONAL ASSOCIATION FOR THE ADVANCEMENT
OF COLORED PEOPLE, NEW YORK CITY REGION OF
NEW YORK CONFERENCE OF BRANCHES, ET AL. v.
NEW YoRK ET AL. D. C. D. C. Probable jurisdiction
postponed to hearing of case on the merits. MR. JusTICE
MARSHALL took no part in the consideration or decision
of this matter.
Certiorari Granted
No. 71-6757. FONTAINE v. UNITED STATES. C. A.
6th Cir. Motion for leave to proceed in forma pauperis
and certiorari granted.
Certiorari Denied. (See also Nos. 72-240, 72-318, 72-
5007, and 72-5290, supra.)
No. 71-1474. EASON ET AL. v. DANDRIDGE ET AL.; and
No. 71-1601. JEFFERSON PARISH SCHOOL BOARD ET AL.
v. DANDRIDGE ET AL. C. A. 5th Cir. Certiorari denied.
Reported below: 456 F. 2d 552.
No. 71-1544. MAHONEY v. MARYLAND. Ct. Sp. App.
Md. Certiorari denied. Reported below: 13 Md. App.
105, 281 A. 2d 421.
No. 71-1613. McBRIDE v. VIRGINIA. Sup. Ct. Va.
Certiorari denied.
No. 71-5803. GOMEZ v. CALIFORNIA. Sup. Ct. Cal.
Certiorari denied.
No. 71-6122. WILWORDING v. BURRELL ET AL. C. A.
8th Cir. Certiorari denied.
No. 71-6649. FAIR v. SEBESTA. C. A. 5th Cir. Certiorari
denied.
No. 71-6758. DUDLEY v. BRANTLEY, WARDEN. C. A.
7th Cir. Certiorari denied. Reported below: 461 F. 2d
653.
ORDERS 979
409 U.S. November 6, 1972
No. 71-6682. STOCKMAN v. CALIFORNIA. Ct. App.
Cal., 2d App. Dist. Certiorari denied.
No. 71-6759. HUTCHINSON v. CRAVEN, WARDEN.
C. A. 9th Cir. Certiorari denied.
No. 71-6799. CRAWFORD v. TEXAS. Ct. Crim. App.
Tex. Certiorari denied. Reported below: 479 S. W. 2d
682.
No. 71-6840. McLAIN v. ESTELLE, CORRECTIONS DIRECTOR.
C. A. 5th Cir. Certiorari denied. Reported
below: 458 F. 2d 503.
No. 71-6853. TAFOYA, AKA HERRERA v. EYMAN, WARDEN.
C. A. 9th Cir. Certiorari denied. Reported below:
455 F. 2d 1265.
No. 71-6863. KoMES v. CALIFORNIA. App. Dept.,
Super. Ct. Cal., County of Santa Clara. Certiorari
denied.
No. 71-6877. MooRE v. ILLINOIS. Sup. Ct. Ill. Certiorari
denied. Reported below: 51 Ill. 2d 79, 281 N. E.
2d 294.
No. 71- 6914. SNIPES v. MrssouRr. Sup. Ct. Mo.
Certiorari denied. Reported below: 478 S. W. 2d 299.
No. 71-6920. BULLY v. HENDERSON, CORRECTIONAL
SUPERINTENDENT. C. A. 2d Cir. Certiorari denied.
Reported below: 458 F. 2d 1406.
No. 71-6930. TYLER v. SWENSON, WARDEN. C. A.
8th Cir. Certiorari denied.
No. 72-59. UNITED STATES v. HARTFORD ACCIDENT &
INDEMNITY Co. C. A. 9th Cir. Certiorari denied. Reported
below: 460 F. 2d 17.
No. 72-202. IN RE MACLEOD. Sup. Ct. Mo. Certiorari
denied. Reported below: 479 S. W. 2d 443.
980 OCTOBER TERM, 1972
November 6, 1972 409 U.S.
No. 72-86. CLARK SHERWOOD OrL FIELD CONTRACTORS
ET AL. v. SMITH ET AL. C. A. 5th Cir. Certiorari
denied. Reported below: 457 F. 2d 1339.
No. 72-117. IANNELLI v. UNITED SrATEs;
No. 71-6858. SQUIRES, AKA SPEARS v. UNITED STATES;
and
No. 72-5274. TORTORA v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. Reported below: 461 F. 2d 483.
No. 72-173. JACKSONVILLE TERMINAL Co. v. HODGE,
ADMINISTRATRIX. Dist. Ct. App. Fla., 1st Dist. Certiorari
denied. Reported below: 260 So. 2d 521.
No. 72-196. JAVITS V. ASSOCIATION OF THE BAR OF
THE CrTY OF NEw YORK. App. Div., Sup. Ct. N. Y., 1st
Jud. Dept. Certiorari denied. Reported below: 35 App.
Div. 2d 442, 316 N. Y. S. 2d 943.
No. 72-247. NACIREMA OPERATING Co., INc., ET AL. v.
OosTING, DEPUTY COMMISSIONER, BUREAU OF EMPLOYEES'
COMPENSATION, U. s. DEPARTMENT OF LABOR. C. A.
4th Cir. Certiorari denied. Reported below: 456 F. 2d
956.
No. 72-253. PET, INC. v. KYSOR INDUSTRIAL CoRP.
C. A. 6th Cir. Certiorari denied. Reported below: 459
F. 2d 1010.
No. 72-255. NATIONAL AMERICAN BANK OF NEw
ORLEANS v. UNITED STATES. C. A. 5th Cir. Certiorari
denied. Reported below: 463 F. 2d 1168.
No. 72-257. ALVAREZ-FRANCO V. UNITED STATES.
C. A. 9th Cir. Certiorari denied. Reported below: 461
F. 2d 1261.
No. 72-260. MEYER ET AL. v. CrTY OF OKLAHOMA
CITY ET AL. Sup. Ct. Okla. Certiorari denied. Reported
below: 496 P. 2d 789. '
ORDERS 981
409U.S. November 6, 1972
No. 72-259. ALOGDELIS v. BROOKLYN COLLEGE OF THE
CITY UNIVERSITY OF NEW YORK ET AL. App. Div., Sup.
Ct. N. Y., 2d Jud. Dept. Certiorari denied. Reported
below: 39 App. Div. 2d 728, 332 N. Y. S. 2d 414.
No. 72-261. MILLER v. UNITED STATES; and
No. 72-5292. PINEDA ET AL. v. UNITED STATES. C. A.
2d Cir. Certiorari denied.
No. 72-262. O'BRIEN v. UNITED STATES. C. A. 1st
Cir. Certiorari denied.
No. 72-263. AIKIN, AKA AKIN, ET AL. v. UNITED
STATES. C. A. 8th Cir. Certiorari denied. Reported
below: 464 F. 2d 7.
No. 72--265. PENNSYLVANIA v. COHEN. Super. Ct.
Pa. Certiorari denied. Reported below: 221 Pa. Super.
244, 289 A. 2d 96.
No. 72-268. SCHOTT v. CITY OF KINGMAN. C. A.
9th Cir. Certiorari denied. Reported below: 461 F. 2d
593.
No. 72-277. FORTENBERRY v. NEw YORK LIFE INSURANCE
Co. C. A. 6th Cir. Certiorari denied. Reported
below: 459 F. 2d 114.
No. 72-278. CRAVENS ET AL. v. UNITED STATES. C. A.
6th Cir. Certiorari denied.
No. 72-280. MoJAR v. SIGNORELLI ET ux. Super. Ct.
N. J. Certiorari denied.
No. 72-281. LAWRENCE CHRYSLER PLYMOUTH, lNc.
v. CHRYSLER CORP. ET AL. C. A. 7th Cir. Certiorari
denied. Reported below: 461 F. 2d 608.
No. 72-282. BOARD OF EDUCATION OF THE CITY OF
BESSEMER, ALABAMA, ET AL. V. BROWN ET AL. C. A. 5th
Cir. Certiorari denied. Reported below: 464 F. 2d 382.
982 OCTOBER TERM, 1972
November 6, 1972 409 U.S.
No. 72-283. MAHIN, DIRECTOR OF REVENUE OF ILLINOIS
v. MITCHELL ET AL. Sup. Ct. Ill. Certiorari denied.
Reported below: 51 Ill. 2d 452, 283 N. E. 2d 465.
No. 72-284. NORTH CAROLINA STATE PORTS AUTHORITY
v. INTERNATIONAL LONGSHOREMEN's AssN., AFLCIO.
C. A. 4th Cir. Certiorari denied. Reported below:
463 F. 2d 1.
No. 72-285. TIBBITTS ET ux. v. CussEN, TRUSTEE IN
BANKRUPTCY. C. A. 9th Cir. Certiorari denied. Reported
below: 456 F. 2d 1314.
No. 72-286. AMERICAN AIRLINES, INC. v. LocA YNIA
ET AL. C. A. 9th Cir. Certiorari denied. Reported below:
457 F. 2d 1253.
No. 72-289. DIEHL v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 457 F. 2d 511.
No. 72-290. CALIFORNIA v. HALPIN ET AL. Sup. Ct.
Cal. Certiorari denied. Reported below: 6 Cal. 3d 885,
495 P. 2d 1295.
No. 72-291. UNITED STATES FIRE INSURANCE Co. v.
MARINE SULPHUR TRANSPORT CoRP. ET AL.; and
No. 72-344. MARINE SULPHUR TRANSPORT CORP. ET
AL. v. HEARD ET AL. C. A. 2d Cir. Certiorari denied.
Reported below: 460 F. 2d 89.
No. 72-293. GASTON CouNTY DYEING MACHINE Co.
v. BROWN. C. A. 4th Cir. Certiorari denied. Reported
below: 457 F. 2d 1377.
No. 72-296. LEGARI v. UNITED STATES. C. A. 2d Cir.
Certiorari denied. Reported below: 462 F .. 2d 1328.
No. 72-299. PILGRIM EQUIPMENT COMPANY OF Rous-
TON v. TEXAS ET AL. Ct. Civ. App. Tex., 1st Sup. Jud.
Dist. Certiorari denied. Reported below: 473 S. W. 2d
945.
ORDERS 983
409 U.S. November 6, 1972
No. 72-297. PORTNER v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. Reported below: 462 F. 2d 678.
No. 72-301. COMEAUX v. BULLER ET AL. C. A. 5th
Cir. Certiorari denied. Reported below: 458 F. 2d
1407.
No. 72-305. ARVIDSON ET AL. v. DILLINGHAM CORP.,
DBA ALBIN A ENGINE & MACHINE WORKS. C. A. 9th
Cir. Certiorari denied. Reported below: 462 F. 2d 1.
No. 72-306. STANLEY v. TAYLOR. App. Ct. Ill., 4th
Dist. Certiorari denied. Reported below: 4 Ill. App. 3d
98, 278 N. E. 2d 824.
No. 72-310. RAINIER AvENUE CORP. v. CITY OF
SEATTLE. Sup. Ct. Wash. Certiorari denied. Reported
below: 80 Wash. 2d 362, 494 P. 2d 996.
No. 72-311. SPEED v. ILLINOIS. Sup. Ct. Ill. Certiorari
denied. Reported below: 52 Ill. 2d 141,284 N. E.
2d 636.
No. 72-314. KEEFER v. UNITED STATES. C. A. 7th
Cir. Certiorari denied. Reported below: 464 F. 2d 1385.
No. 72-315. NEw YoRK CENTRAL RAILROAD Co. v.
RAINES, SPECIAL ADMINISTRATOR. Sup. Ct. Ill. Certiorari
denied. Reported below: 51 Ill. 2d 428, 283 N. E.
2d 230.
No. 72-320. LIGHTENBURGER ET AL. v. UNITED STATES.
C. A. 9th Cir. Certiorari denied. Reported below: 460
F. 2d 391.
No. 72-323. KHEEL ET AL. v. PORT OF NEW YORK
AUTHORITY ET AL. C. A. 2d Cir. Certiorari denied.
Reported below: 457 F. 2d 46.
No. 72-328. PARTEN ET AL. v. UNITED STATES. C. A.
5th Cir. Certiorari denied. Reported below: 462 F. 2d
430.
984 OCTOBER TERM, 1972
November 6, 1972 409 u. s.
No. 72-324. CARTER v. UNITED STATES. C. A. 6th
Cir. Certiorari denied. Reported below: 462 F. 2d 1252.
~o. 72-325. STECHER v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 463 F. 2d 567.
No. 72-329. ScHRENZEL v. UNITED STATES. C. A. 8th
Cir. Certiorari denied. Reported below: 462 F. 2d 765.
No. 72-333. BIBLE v. CHEVRON OIL Co. ET AL. C. A.
5th Cir. Certiorari denied. Reported below: 460 F. 2d
1218.
No. 72-336. PENAAT v. CITY OF SAN JOSE. Ct. App.
Cal., 1st App. Dist. Certiorari denied. Reported below:
24 Cal. App. 3d 707, 101 Cal. Rptr. 258.
No. 72-337. Ross v. UNITED STATES ET AL. C. A.
9th Cir. Certiorari denied. Reported below: 462 F.
2d 618.
No. 72-340. CANTWELL ET AL. v. BoARD OF TRUSTEES
FOR UTILITIES, CITY OF INDIANAPOLIS, ET AL. C. A. 7th
Cir. Certiorari denied.
No. 72-342. HANDEL v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. Reported below: 464 F. 2d 679.
!\To. 72-5010. HAWKINS v. CONNECTICUT. Sup. Ct.
Conn. Certiorari denied. Reported below: 162 Conn.
514, 294 A. 2d 584.
No. 72-5019. CAREF v. ILLINOIS. Sup. Ct. Ill. Certiorari
denied. Reported below: 51 III. 2d 220, 282
N. E. 2d 1.
No. 72-5024. CAMPBELL v. GEORGIA ET AL. C. A.
5th Cir. Certiorari denied. Reported below: 459 F. 2d
1039.
No. 72--5050. WILSON v. CARDWELL, WARDEN. C. A.
6th Cir. Certiorari denied.
ORDERS 985
409 u. s. November 6, 1972
No. 72-5059. JAMES v. FLORIDA. Dist. Ct. App. Fla.,
1st Dist. Certiorari denied. Reported below: 254 So.
2d 838.
No. 72-5079. PASCHALL v. HASKINS, CORRECTIONAL
SUPERINTENDENT. C. A. 6th Cir. Certiorari denied.
No. 72-5193. MooRE v. UNITED STATES. C. A. 4th
Cir. Certiorari denied.
No. 72--5194. SHEPPARD v. UNITED STATES. C. A. D. C.
Cir. Certiorari denied. Reported below: 149 U.S. App.
D. C. 175,462 F. 2d 279.
No. 72-5197. MARAS v. LIPOW. C. A. D. C. Cir.
Certiorari denied.
No. 72-5198. ROBERTSON v. UNITED STATES. C. A.
6th Cir. Certiorari denied.
No. 72-5201. WRIGHT V. GOVERNMENT OF THE CANAL
ZONE. C. A. 5th Cir. Certiorari denied. Reported below:
460 F. 2d 1402.
N 0. 72-5202. LOPEZ, AKA BELIX v. UNITED STATES.
C. A. 2d Cir. Certiorari denied.
No. 72--5205. REED v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 458 F. 2d
1363.
No. 72-5207. SHELTON v. ESTELLE, CORRECTIONS DIRECTOR.
C. A. 5th Cir. Certiorari denied. Reported
below: 460 F. 2d 1234.
No. 72-5208. DAVIDSON v. UNITED STATES. C. A. 1st
Cir. Certiorari denied.
No. 72- 5211. CARPENTER v. UNITED STATES; and
No. 72-5232. MORRIS v. UNITED STATES. C. A. 10th
Cir. Certiorari denied. Reported below: 463 F. 2d 397.
986 OCTOBER TERM, 1972
November 61 1972 409 U.S.
No. 72-5209. JoNES v. MISSOURI. Sup. Ct. Mo.
Certiorari denied.
No. 72-5212. KERR v. TRAVELERS INSURANCE Co.
C. A. 4th Cir. Certiorari denied.
No. 72-5213. STOKES v. UNITED STATES. C. A. 4th
Cir. Certiorari denied.
No. 72-5215. BRIGGS v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. Reported below: 457 F. 2d 908.
No. 72-5216. LINES v. UNITED STATES. C. A. 8th
Cir. Certiorari denied. Reported below: 461 F. 2d 282.
No. 72--5217. WEBB v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 463 F. 2d
1324.
No. 72-5219. DEVILLE v. RrcHARDSON, SECRETARY
OF HEALTH, EDUCATION, AND WELFARE. C. A. 6th Cir.
Certiorari denied.
No. 72-5220. NINov v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 458 F. 2d 1360.
No. 72--5223. O'CLAIR v. UNITED STATES. C. A. 1st
Cir. Certiorari denied.
No. 72-5224. MARTIN v. WISCONSIN. Sup. Ct. Wis.
Certiorari denied.
No. 72-5225. TURNER ET AL. V. DISTRICT OF COLUMBIA.
Ct. App. D. C. Certiorari denied. Reported below:
290 A. 2d 821.
No. 72-5228. VoEGE v. UNITED STATES. C. A. 8th
Cir. Certiorari denied. Reported below: 464 F. 2d 222.
No. 72-5229. KING v. ALABAMA. Ct. Crim. App. Ala.
Certiorari denied. Reported below: 48 Ala. App. 154,
262 So. 2d 764.
ORDERS 987
409U.S. November 6, 1972
No. 72-5233. PADILLA-PARTIDA V. IMMIGRATION AND
NATURALIZATION SERVICE. C. A. 9th Cir. Certiorari
denied. Reported below: 462 F. 2d 619.
No. 72-5235. SzCZYTKO V. JOHNSON, WARDEN. c. A.
6th Cir. Certiorari denied.
No. 72-5237. CHISUM v. UNITED STATES. C. A. 9th
Cir. Certiorari denied.
I No. 72-5241. JERKINS v. UNITED STATES. C. A. 5th
1 Cir. Certiorari denied. Reported below: 464 F. 2d 1073.
No. 72-5242. GooDMAN v. PENNSYLVANIA. C. A. 3d
Cir. Certiorari denied.
No. 72-5245. STARNES v. CoNNETT, WARDEN. C. A.
5th Cir. Certiorari denied. Reported below: 464 F.
2d 524.
No. 72- 5246. LucCHETTI v. UNITED STATES. C. A.
2d Cir. Certiorari denied.
No. 72-5248.
C. A. 9th Cir.
THOMAS V. NELSON, WARDEN, ET AL.
Certiorari denied.
No. 72-5249. PEAPER v. MARYLAND. Ct. Sp. App.
Md. Certiorari denied. Reported below: 14 Md. App.
201, 286 A. 2d 176.
No. 72-5250. GABBARD v. GABBARD. Ct. App. Ky.
Certiorari denied.
No. 72-5251. PARKER v. NORTH CAROLINA. Sup. Ct.
N. C. Certiorari denied. Reported below: 279 N. C.
168, 181 S. E. 2d 432.
No. 72-5255. KIRK v. UNITED STATES. C. A. 6th
Cir. Certiorari denied. Reported below: 457 F. 2d 400.
No. 72~5263. VALENTINE v. UNITED STATES. C. A.
4th Cir. Certiorari denied. Reported below: See 422
F. 2d 358.
988 OCTOBER TER:VI, 1972
November 6, 1972 409 U.S.
No. 72-5259. DEVERSE v. UNITED STATES. C. A. 8th
Cir. Certiorari denied. Reported below: 464 F. 2d 80.
No. 72-5260. AMMONS v. UNITED STATES. C. A. 8th
Cir. Certiorari denied. Reported below: 464 F. 2d 414.
No. 72-5261. COLLINS v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. Reported below: 462 F. 2d 792.
No. 72- 5262. ·WRIGHT v. PERINI, CORRECTIONAL Su-
PERINTENDENT. C. A. 6th Cir. Certiorari denied. I
No. 72-5264. THACKER v. HENRY, PRISON ADMINISTRATOR,
ET AL. C. A. 4th Cir. Certiorari denied.
No. 72-5266. STORY v. UNITED STATES. C. A. 8th Cir.
Certiorari denied. Reported below: 463 F. 2d 326.
No. 72-5267. \VATERMAN v. ScHUTZER ET AL. C. A.
2d Cir. Certiorari denied.
No. 72- 5268. GRIFFIN ET AL. v. UNITED STATES. C. A.
10th Cir. Certiorari denied. Reported below: 463 F. 2d
177.
No. 72-5271. BROWN v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 462 F. 2d 576.
No. 72--5276. HUNTER v. TEXAS. Ct. Crim. App. Tex.
Certiorari denied. Reported below: 481 S. W. 2d 806.
No. 72- 5277. McCLARD v. UNITED STATES. C. A.
8th Cir. Certiorari denied. Reported below: 462 F. 2d
488.
No. 72- 5280. NoRDLOF v. UNITED STATES. C. A. 7th
Cir. Certiorari denied.
No. 72--5281. THOMPSON v. DEPARTMENT OF THE
ARMY ET AL. C. A. 2d Cir. Certiorari denied.
No. 72- 5285. BARRON v. UNITED STATES. C. A. 6th
Cir. Certiorari denied.
ORDERS 989
409 U.S. November 6, 1972
No. 72-5286. McGEE v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 464 F. 2d 542.
No. 72-5287. WETZEL v. BLACKLEDGE, WARDEN. C. A.
4th Cir. Certiorari denied.
No. 72-5288. HESSLER v. UNITED STATES. C. A. 7th
Cir. Certiorari denied. Reported below: 469 F. 2d 1294.
No. 72-5289. FRIERSON v. SPRUILL, JunGE, ET AL.
C. A. 4th Cir. Certiorari denied.
No. 71-1380. CALDWELL, WARDEN v. MATHIS. C. A.
5th Cir. Motion of respondent for leave to proceed in
forma pauperis granted. Certiorari denied. Reported
below: 455 F. 2d 979.
No. 71- 6550. DAVIDSON v. WARDEN, CALIFORNIA STATE
PRISON AT SAN QUENTIN. Sup. Ct. Cal. Certiorari
denied. MR. JusTICE DouGLAS would grant certiorari.
No. 71-6885. HILLEN v. DIRECTOR, DEPARTMENT OF
SocIAL SERVICE AND HousING ET AL. C. A. 9th Cir.
Certiorari denied. MR. JusTICE DouGLAS would grant
certiorari. Reported below: 455 F. 2d 510.
No. 71-6927. JASHUNSKY v. ILLINOIS. Sup. Ct. Ill.
Certiorari denied. MR. JusTICE DOUGLAS would grant
certiorari. Reported below: 51 Ill. 2d 220, 282 N. E.
2d 1.
No. 72-16. KARR ET AL. v. SCHMIDT ET AL. C. A. 5th
Cir. Certiorari denied. MR. JUSTICE DouGLAS would
grant certiorari. Reported below: 460 F . 2d 609.
No. 72-227. WALLER v. CITY OF ST. PETERSBURG.
Sup. Ct. Fla. Certiorari denied. MR. JusTICE DouGLAS
would grant certiorari. Reported below: 261 So. 2d 151.
No. 72- 238. BmcH v. UNITED STATES. C. A. 2d Cir.
Certiorari denied. MR. JusTICE DouGLAS would grant
certiorari.
990 OCTOBER TERM, 1972
:N' ovember 6, 1972 409 U.S.
No. 72-242. HANLY ET AL. v. KLEINDIENST, ATIORNEY
GENERAL, ET AL. C. A. 2d Cir. Certiorari denied. MR.
JusTICE DouGLAS would grant certiorari. Reported
below: 460 F. 2d 640.
No. 72-295. LEBLANC ET AL. v. SOUTHERN BELL TELEPHONE
& TELEGRAPH Co. ET AL. C. A. 5th Cir. Certiorari
denied. MR. JusTICE DouGLAS would grant
certiorari. Reported below: 460 F. 2d 1228.
No. 72-309. SANDLER v. NATIONAL DIRECTOR OF SELECTIVE
SERVICE ET AL. C. A. 4th Cir. Certiorari denied.
MR. JUSTICE DouGLAS would grant certiorari. Reported
below: 463 F. 2d 1096.
No. 72-316. AzzoNE v. UNITED STATES. C. A. 8th
Cir. Certiorari denied. MR. JusTICE DOUGLAS would
grant certiorari. Reported below: 464 F. 2d 236.
No. 72-330. CAREY ET ux. v. COMMISSIONER OF INTERNAL
REVENUE. C. A. 4th Cir. Certiorari denied.
MR. JusTICE DouGLAS would grant certiorari. Reported
below: 460 F. 2d 1259.
No. 72-5001. JONES v. HASKINS, CORRECTIONAL Su-
PERINTENDENT. C. A. 6th Cir. Certiorari denied. MR.
JUSTICE DouGLAS would grant certiorari. Reported
below: 459 F. 2d 479.
No. 72-5031. CLINTON, ADMINISTRATRIX v. INGRAM
CORP. C. A. 5th Cir. Certiorari denied. MR. JusTICE
DouGLAS would grant certiorari. Reported below: 455
F. 2d 741.
No. 72-5039. BISNO v. MARTIN, DIRECTOR, CALIFORNIA
DEPARTMENT OF SOCIAL WELFARE. Ct. App. Cal., 2d
App. Dist. Certiorari denied. MR. JusTICE DouGLAS
would grant certiorari.
ORDERS 991
409U. S. November 6, 1972
No. 72-5063. JACKSON v. GEORGIA. C. A. 5th Cir.
Certiorari denied. MR. JusTICE DouGLAS would grant
certiorari. Reported below: 461 F. 2d 682.
No. 72-5072. BRAUN v. KANSAS. Sup. Ct. Kan.
Certiorari denied. MR. JUSTICE DOUGLAS would grant
certiorari. Reported below: 209 Kan. 181, 495 P. 2d
1000.
No. 72-5134. Cox V. WOODSON, PENAL INSTITUTIONS
DIRECTOR, ET AL. C. A. 10th Cir. Certiorari denied.
MR. JUSTICE DOUGLAS would grant certiorari.
No. 72-5192. BELL v. UNITED STATES. C. A. 2d Cir.
Certiorari denied. MR. JUSTICE DouGLAS would grant
certiorari. Reported below: 464 F. )2d 667.
No. 72-5210. HURT v. OHIO. Sup. Ct. Ohio. Certiorari
denied. MR. JUSTICE DOUGLAS would grant certiorari.
Reported below: 30 Ohio St. 2d 86, 282 N. E.
2d 578.
No. 72-5222. CARPENTER v. UNITED STATES. C. A.
10th Cir. Certiorari denied. MR. JusTICE DOUGLAS
would grant certiorari. Reported below: 462 F. 2d 1363.
No. 72-5231. FEATHERSTON v. UNITED STATES. C. A.
5th Cir. Certiorari denied. MR. JUSTICE DouGLAS would
grant certiorari. Reported below: 461 F. 2d 1119.
No. 72-5234. KERESTY v. UNITED STATES; and
No. 72-5236. PHILLIPS v. UNITED STATES. C. A. 3d
Cir. Certiorari denied. MR. JUSTICE DouGLAS would
grant certiorari. Reported below: 465 F. 2d 36.
No. 72-5270. NAMMACK V. COMMISSIONER OF INTERNAL
REVENUE. C. A. 2d Cir. Certiorari denied. MR.
JusTICE DOUGLAS would grant certiorari. Reported
below: 459 F. 2d 1045.
992 OCTOBER TERM, 1972
November 6, 1972 409 U.S.
No. 72-5240. THOMAS ET AL. v. UNITED STATES.
Ct. App. D. C. Certiorari denied.* Reported below:
294 A. 2d 164.
MR. JUSTICE DouGLAS, with whom MR. JUSTICE BRENNAN
and MR. JUSTICE MARSHALL concur, dissenting.
On May 27, 1971, a member of the District of Columbia
Metropolitan Police Department obtained from a United
States Magistrate a search warrant on the basis of an
affidavit setting forth sufficient facts to establish probable
cause to believe that narcotics and related contraband
were on specified premises. The warrant was sought
pursuant to 21 U. S. C. § 879 (a)-§ 509 (a) of the Controlled
Substances Act of 1970, 84 Stat. 1274. The warrant
was executed by members of the Metropolitan Police
Force at 9:40 p. m. on May 29, 1971, and resulted in
the seizure of narcotics paraphernalia. The defendants
moved to suppress the evidence on the ground that the
search warrant did not detail any basis for execution at
night, as required by 21 U. S. C. § 879 (a) and D. C.
Code Ann. § 23-521 (f) (5) (Supp. 1972) and that motion
was granted. The District of Columbia Court of
Appeals reversed with one judge dissenting. 294 A. 2d
164.
Petitioners raise two questions that entail an interpretation
of the Controlled Substances Act of 1970. This
Act was passed by Congress to consolidate many of the
then-existing narcotics Acts in order to make a concerted
attack on the drug problem. It was based on the
recommendations of two presidential studies and contains
both rehabilitative and punitive provisions.
The old provisions, 18 U. S. C. §§ 1405 (1) and (2)
(1964 ed.), provided (1) that a search warrant may be
*[REPORTER'S NoTE: The following dissenting opinion of MR.
JUSTICE DouGLAS was filed on November 13, 1972.J
ORDERS 993
992 DoUGLAs, J., dissenting
served at any time of the day or night if the judge or the
United States Commissioner issuing the warrant is satisfied
that there is probable cause to believe that the
grounds for the application exist; and (2) that a search
warrant may be directed to any officer of the Metropolitan
Police of the District of Columbia authorized to
enforce or assist in enforcing a violation of any of such
prov1s10ns.
These sections have now been replaced. 21 U. S. C.
§ 878 provides: "Any officer or employee of the Bureau
of N' arcotics and Dangerous Drug rs] designated by the
Attorney General may ... (2) execute and serve search
warrants, arrest warrants, administrative inspection warrants,
subpenas, and summonses issued under the authority
of the United States."
Section 879 (a) provides that "A search warrant relating
to offenses involving controlled substances may be
served at any time of the day or night if the judge or
United States magistrate issuing the warrant is satisfied
that there is probable cause to believe that grounds exist
for the warrant and for its service at such time." (Emphasis
added.)
Petitioners first contend that since the Congress did
not include the clause allowing the District police to
secure warrants under this provision, they have no power
to do so. But since the police have power under D . C.
Code Ann. § 4-138 (1967) to secure any warrant issued
in the District of Columbia, this contention would seem
to lose merit.
Of more substance is the second assertion. Under
former 18 U. S. C. § 1405 a search warrant could be served
day or night on a showing of probable cause. In the
District of Columbia the requirements for the service
of a warrant in the nighttime required a showing of more
than probable cause. Both parties agree that the warrant
in question did not meet those standards. When Con994
OCTOBER TERM, 1972
DouGLAS, J., dissenting 409 u. s.
gress changed § 1405 and added the phrase "probable
cause to believe that grounds exist for the warrant
and for its service at such time" did § 879 incorporate
§ 23-521 (f)(5) of the D. C. Code?*
Judge Gesell in United States v. Gooding, 328 F. Supp.
1005 ( 1971), ruled that the warrant was not adequate
for a nighttime search and that case is now before the
Court of Appeals for the District of Columbia. I would
hold this case for that decision or grant certiorari and put
it down for argument.
Section 23-521 is an important component in the criminal
procedure amendments of the Court Reform Act of
1970, effective February 1, 1971. There is an indication
that Congress intended that this section should protect
a person against unreasonable invasions of privacy. See
D. C. Code Leg. & Adm. Service, 91st Cong., 2d Sess.,
502 (1970). Since the Court Reform Act did not distinguish
between local and federal prosecutions in its
procedure, it is arguable that the local rules are binding.
Roughly 60% of the search warrants issued in the District
of Columbia are drug related. Congress is not
unaware of this fact. One would expect that if federal
*That section provides in part:
"(f) A search warrant shall contain ... (5) a direction that the
warrant be executed during the hours of daylight or, where the
judicial officer has found cause therefor, including one of the grounds
set forth in section 23-522 ( c) ( 1), an authorization for execution at
any time of day or night."
Section 23-522 ( c) ( 1) provides:
"(c) The application may also contain- (}) a request that the
search warrant be made executable at any hour of the day or night,
upon the ground that there is probable cause to believe that (A) it
cannot be executed during the hours of daylight, (B) the property
sought is likely to be removed or destroyed if not seized forthwith,
or (C) the property sought is not likely to be found except at
certain times or in certain circumstances."
I
ORDERS 995
409 U.S. November 6, 1972
narcotics search warrants were to be excluded from coverage,
it would have said so.
The District of Columbia Court of Appeals, however,
took the position that since § 1405 used the standard of
probable cause for both day and night searches and § 879
was merely its substitute, there is no change in the law.
The majority is supported in its view by the District
Court's opinion in United States v. Green, 331 F. Supp.
44 (1971). The dissent, however, thought that that construction
made the added phrase in§ 879 (a) meaningless.
We should resolve this controversy. As Judge Gesell
stated: "The search warrant statutes of possible application
to narcotics searches in this jurisdiction are a
bramblebush of uncertainties and contradictions. It is
difficult if not impossible to determine the present congressional
intent. This uncertainty should be clarified
immediately, so that future search warrants will not be
invalidated because of misunderstandings as to the applicable
law." United States v. Gooding, supra, at 1008.
No. 72-5243. MAUCHLIN v. UNITED STATES. C. A.
3d Cir. Certiorari denied. MR. JUSTICE DouGLAS would
grant certiorari. Reported below: 464 F. 2d 1280.
No. 71-6743. BRYANT v. NORTH CAROLINA. Sup.
Ct. N. C. Certiorari denied. Reported below: 280 N. C.
551, 187 S. E. 2d 111.
MR. JUSTICE DouGLAS, with whom MR. JusTICE BRENNAN
concurs, dissenting.
I would grant certiorari in this case.
Petitioner was convicted of rape and sentenced to life
imprisonment. At trial petitioner took the stand and
admitted the fact of intercourse, but argued that the
alleged victim had consented. Upon cross-examination
by the State, petitioner was asked if he had talked with
996 OCTOBER TERM, 1972
DOUGLAS, J., dissenting 409 U.S.
two police officers making certain statements while in
custody and admitting his use of force. Petitioner replied
that he had talked with the officers but denied making
the statements. In rebuttal, the State called the two
police officers to the stand. Over petitioner's objection
they testified that petitioner had admitted to them just
after his arrest that he had used force to subdue the victim.
Prior to this testimony, the trial judge instructed
the jury that the testimony was being offered solely for
the purpose of impeaching the defendant, and not as
substantive evidence. There was no allegation that prior
to the time the alleged statement was made to the officers,
petitioner had been advised of his rights under Miranda
v. Arizona, 384 U. S. 436. Nor was there ever any
determination as to the voluntariness of petitioner's
alleged statements.*
A defendant's constitutional right to the fullest opportunity
to meet the accusations against him and to be
free to deny all the elements of the case against him
(Walder v. United States, 347 U. S. 62), must include
the right to remain silent unless he chooses to speak in
the unfettered exercise of his own will. The allowance
of tainted statements to impeach the accused who takes
the stand fetters that choice. The instant case is just
another example of the way Harris v. New York, 401
*The only discussion of voluntariness in the opinion of the Supreme
Court of North Carolina is that, "While there was evidence
he had been given the required warnings, it was admitted he had not
waived his right to counsel, had not been given a voir dire hearing,
and the court had not found facts showing his statements and admissions
were voluntary." North Carolina v. Bryant, 280 N. C.
551, 554, 187 S. E. 2d 111,113 (emphasis added). The North Carolina
Supreme Court never specifically states that petitioner did not.
raise these objections at trial; the decision appears to be based on
the assumption that these issues are irrelevant since the statement
is only being offered for impeachment purposes.
ORDERS 997
409 U.S. November 6, 1972
U. S. 222, compromises these constitutionally guaranteed
rights.
But my objection goes much farther. The instant case
goes a step beyond Harris in allowing the introduction
of illegally obtained statements for the impeachment of
the defendant when the statement was merely a remembered
verbal conversation rather than a typed signed
statement; when the statement was presented as direct
testimony rather than for the purpose of impeachment
by cross-examination; when, although there was an issue
of voluntariness, the statement was permitted without a
prior determination as to its voluntariness; and when the
jury instruction that the statement should not be considered
as substantive evidence did not contain the
admonition that the statement could not be considered as
evidence of guilt.
If Harris is to be extended, we should do so only after
argument and mature deliberation.
No. 72-5258. STONE v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. MR. JUSTICE DouGLAS would
grant certiorari. Reported below: 463 F. 2d 779.
No. 72-5291. WALL v. NEw JERSEY. Super. Ct. N. J.
Certiorari denied. MR. JUSTICE DouGLAS would grant
certiorari.
N 0. 72-294. L. GOLDSTEIN'S SONS, INC. v. TRIO PROCESS
CORP. C. A. 3d Cir. Motion of Ford Motor Co. for
leave to file a brief as amicus curiae granted. Certiorari
denied. Reported below: 461 F. 2d 66.
No. 72-302. PICTURE Music, INC. v. BouRNE, lNc.
C. A. 2d Cir. Motion of Composers & Lyricists Guild
of America, Inc., et al. for leave to file a brief as amici
curiae granted. Certiorari denied. MR. JUSTICE Douo-
LAS would grant certiorari. Reported below: 457 F. 2d
1213.
998 OCTOBER TERM, 1972
November 6, 1972 409 u. s.
No. 72-109. PRESIDENTS COUNCIL, DISTRICT 25, ET
AL. v. CoMMlTNITY ScHooL BoARD No. 25 ET AL. C. A.
2d Cir. Motion of Authors League of America, Inc., for
leave to file a brief as amicus curiae granted. Certiorari
denied. MR. JUSTICE STEWART would grant the petition
for certiorari and set case for oral argument. Reported
below: 457 F. 2d 289.
MR. JusTICE DOUGLAS, dissenting.
A book entitled Down These Mean Streets by Piri
Thomas was purchased by the librarians of three junior
high schools in School District 25 in Queens, New York.
The novel describes in graphic detail sexual and drug and
drug-related activities that are a part of everyday life
for those who live in Spanish Harlem. Its purpose was
to acquaint the youth of Queens with the problems of
their contemporaries in this social setting. The book
was objected t-0 by some parents and, after a public
meeting, the School Board by a vote of 5-3 banned it
from the libraries. A later vote by the Board amended
the order so the book is now kept on the shelves for direct
loan to any parent who wants his or her children to have
access to it. No child can borrow it directly.
This suit was brought on behalf of a principal, a librarian,
and various parents and children who request
that the court declare the resolution adopted by the
Board unconstitutional, and order the defendants to
place the book in normal circulation in the libraries and
enjoin them from interfering with other school libraries
within their jurisdiction which desire to purchase the
book.
Actions of school boards are not immune from constitutional
scrutiny. Meyer v. Nebraska, 262 U. S. 390
(1923); Bartels v. Iowa, 262 U.S. 404 (1923); Epperson
v. Arkansas, 393 U. S. 97 (1968); Tinker v. Des Moines
School Dist., 393 U. S. 503 ( 1969). Academic freedom
has been upheld against attack on various fronts.
I
I
I
I
,I
'
ORDERS 999
998 DouGLAS, .J., dissenting
Sweezy v. New Hampshire, 354 U.S. 234 (1957); Wieman
v. Updegraff, 344 U. S. 183 (1952); Keyi,shian v. Boa-rd
of Regents, 385 U.S. 589 (1967). The First Amendment
involves not only the right to speak and publish, but
also the right to hear, to learn, to know. Martin v.
Struthers, 319 U.S. 141, 143 (1943); Stanley v. Georgia,
394 U. S. 557, 564 (1969); Thomas v. Collins, 323 U.S.
516, 534 (1945); Red Lion Broadcw;ting Co. v. FCC,
395 U. S. 367, 386, 390 (1969). And this Court has
recognized that this right to know is " 'nowhere more
vital' than in our schools and universities," Kleindienst
v. Mandel, 408 U.S. 753, 763 (1972); Shelton v. Tucker,
364 U. S. 479, 487 (1960); Sweezy v. New Hampshire,
354 U.S., at 250 (opinion of Warren, C. J.); Keyishian
v. Board of Regents, 385 U. S., at 603. The
book involved is not alleged to be obscene either under
the standards of Roth v. United States, 354 U. S. 476
(1957), or under the stricter standards for minors set
forth in Ginsberg v. New York, 390 U.S. 629 (1968).
The Board, however, contends that a book with such
vivid accounts of sordid and perverted occurrences is not
good for junior high students. At trial both sides produced
expert witnesses to prove the value or harm
of the novel. At school the children are allowed to discuss
the contents of the book and the social problems it
portrays. They can do everything but read it. This in
my mind lessens somewhat the contention that the subject
matter of the book is not proper.
The First Amendment is a preferred right and is
of great importance in the schools. In Tinker, the
Court held that the First Amendment can only be restricted
in the schools when a disciplinary problem is
raised. No such allegation is asserted here. What else
can the School Board now decide it does not like?
How else will its sensibilities br offended? Are we sending
children to school to be educated by the norms of
1000 OCTOBER TERM, 1972
November 6, 1972 409 U.S.
the School Board or are we educating our youth to shed
the prejudices of the past, to explore all forms of thought,
and to find solutions to our world's problems?
Another requirement of the First Amendment is that
any statute that imposes restrictions on the freedoms
it protects must be narrowly drawn so as to impose
any limitation in only the least restrictive way. N. Y.
Educ. Law § 2590--e (3) (1970) gives the Board power
to "determine matters relating to the instruction of students,
including the selection of textbooks and other instructional
materials ... ," provided they are approved
by the Chancellor. The regulation of the State Commissioner
of Education says that secondary school book
collections "shall consist of books approved as satisfactory
for ( 1) supplementing the curriculum (2) reference
and general information (3) appreciation and ( 4) pleasure
reading," 8 N. Y. Code, Rules & Regs. Educ., s 91.1
(b) ( 1966). Even a casual reading of these regulations
shows that they contain no discrete limitations of the
type spoken of in Cantwell v. Connecticut, 310 U. S. 296
(1940), Speiser v. Randall, 357 U. S. 513 (1958), or
Shelton v. Tucker, supra.
Because the issues raised here are crucial to our national
life, I would hear argument in this case.
N 0. 72-218. F-cGATE, COMMISSIONER, DEPARTMENT OF
HIGHWAYS OF VIRGINIA V. ARLINGTON COALITION ON
TRANSPORTATION ET AL. C. A. 4th Cir. Certiorari denied.
THE CHIEF JUSTICE and MR. JusTICE POWELL
would grant certiorari. Reported below: 458 F. 2d 1323.
No. 72 266. STONE v. STONE ET AL. C. A. 4th Cir.
Motion to dispense with printing petition granted. Certiorari
denied. Reported below: 460 F. 2d 64.
Xo. 72-275. KATZ ET AL. v. ASPINWALL ET AL. C. A.
5th Cir. Certiorari denied. MR. JUSTICE REHNQUIST
took no part in the consideration or decision of this petition.
Reported below: 459 F. 2d 1045.
I
I
ORDERS 1001
409 U.S. November 6, 1972
No. 72-303. NEW HAMPSHIRE BANKERS ASSN. ET AL.
V. NELSON, BANK COMMISSIONER OF NEW HAMPSHIRE,
ET AL. C. A. 1st Cir. Certiorari denied. MR. JusTICE
DOUGLAS and MR. JUSTICE BLACKMUN would grant certiorari.
Reported below: 460 F. 2d 307.
N 0. 72-313. METROPOLITAN COUNTY BOARD OF EDUCATION
OF NASHVILLE AND DAVIDSON COUNTY ET AL. V.
KELLEY ET AL. C. A. 6th Cir. Certiorari denied. MR.
JUSTICE MARSHALL took no part in the consideration or
decision of this petition. Reported below: 463 F. 2d 732.
No. 72-321. SEABOARD CoAsT LINE RAILROAD Co. v.
JACKSON. Dist. Ct. App. Fla., 1st Dist. Certiorari denied.
MR. JUSTICE POWELL took no part in the consideration
or decision of this petition. Reported below: 256
So. 2d 568.
No. 72-327. HooGASIAN ET AL. v. SEARS, ROEBUCK &
Co. Sup. Ct. Ill. Certiorari denied. MR. JusTICE DouGLAS
would grant certiorari. MR. JUSTICE PowELL took
no part in the consideration or decision of this petition.
Reported below: 52 Ill. 2d 301, 287 N. E. 2d 677.
No. 72-339. LAMB ENTERPRISES, INC. v. TOLEDO
BLADE Co. ET AL. C. A. 6th Cir. Certiorari denied.
MR. JusTICE DouGLAS took no part in the consideration
or decision of this petition. Reported below: 461 F. 2d
506.
No. 72-5269. RAYMOND v. UNITED STATES. C. A.
8th Cir. Motion for an order reinstating case No. 71-
6536, Guy v. United States [ante, p. 896], and for simultaneous
consideration denied. Certiorari denied. Reported
below: 456 F. 2d 1157.
Rehearing Denied
No. 71- 1433. BELLISTON ET AL. V. TEXACO INC., 408
U. S. 928. Motion for leave to file petition for rehearing
denied.
1002 OCTOBER TERM, 1972
November 6, 10, 13, 1972 409 U.S.
No. 71-1624. LEWIS v. STRACHAN SHIPPING Co.
ET AL., ante, p. 887;
No. 71-6260. MACLEOD v. SLAYTON, PENITENTIARY
SUPERINTENDENT, ante, p. 853;
No. 71-6536. Guy v. UNITED STATES, ante, p. 896;
No. 71-6564. NEWELL V. BOHANNON, U. S. DISTRICT
JUDGE, ante, p. 823; and
No. 71-6907. WATSON v. STYNCHCOMBE, SHERIFF,
ante, p. 873. Petitions for rehearing denied.
No. 71-1218. HoLMES ET AL. v. UNITED STATES, 407
U. S. 909. Motion to dispense with printing motion for
leave to file petition for rehearing granted. Motion for
leave to file petition for rehearing denied.
NOVEMBER 10, 1972
Miscellaneous Order
No. A-444. PoPKIN v. UNITED STATES. C. A. 1st
Cir. Application for stay presented to MR. JusTICE
BRENNAN, and by him referred to the Court, denied.
MR. JusncE DouGLAS would grant the stay. Reported
below: 460 F. 2d 328.
NOVEMBER 13, 1972
Affirmed on Appeal
No. 72-104. KAPLAN ET AL. v. MILLIKEN, JUDGE, ET
AL. Affirmed on appeal from D. C. W. D. Ky.
No. 72-246. INTERSTATE CoMMERCE COMMISSION v.
IML SEATRANSIT, LTD., ET AL. Affirmed on appeal from
D. C. N. D. Cal. MR. JUSTICE DOUGLAS, MR. JUSTICE
WHITE, and MR. JUSTICE REHNQUIST would note prob-
'
ORDERS 1003
409U.S. November 13, 1972
able jurisdiction and set case for oral argument. Reported
below: 343 F. Supp. 32.
Appeals Dismissed
No. 71-6752. WALKER V. KENTUCKY. Appeal from
Ct. App. Ky. dismissed for want of substantial federal
question. Reported below: 476 S. W. 2d 630.
No. 72-32. WINTER v. PRATT ET AL. Appeal from
Sup. Ct. S. C. dismissed for want of substantial federal
question. Reported below: 258 S. C. 397, 189 S. E. 2d 7.
No. 72-354. ROCKLAND CouNTY BUILDERS AssN.,
lNc., ET AL. v. McALEVEY ET AL.; and
No. 72-369. GOLDEN ET AL. V. PLANNING BOARD OF
THE TowN OF RAMAPO ET AL. Appeals from Ct. App.
N. Y. dismissed for want of substantial federal question.
Reported below: 30 N. Y. 2d 359, 285 N. E. 2d 291.
No. 72-365. REILLEY v. REILLEY. Appeal from Sup.
Ct. App. W. Va. dismissed for want of substantial federal
question.
No. 72-5513. CORRADO, DBA PERRY'S SECOND HAND
PLUMBING v. PROVIDENCE REDEVELOPMENT AGENCY.
Appeal from Super. Ct. R. I. dismissed for want of substantial
federal question.
No. 72- 373. TEXAS EASTERN TRANSMISSION CORP. V.
BENSON, COMMISSIONER 01!' REVENUE. Appeal from
Sup. Ct. Tenn. dismissed for want of substantial federal
question. MR. JusTICE DOUGLAS, MR. JUSTICE STEWART,
and MR. JusTICE WHITE would note probable jurisdiction
and set case for oral argument. Reported below:
- Tenn. -, 480 S. W. 2d 905.
1004 OCTOBER TERM, 1972
November 13, 1972 409 U.S.
Certiorari Granted Vacated and Remanded. (See also
o. 72- 5256, ante, p. 56.)
No. 72-5317. FRAZIER v. NoRTH CAROLINA. Sup. Ct.
N. C. Motion for leave to proceed in forma paitperis
and certiorari granted. Judgment vacated and case remanded
for further consideration in light of Stewart v.
Massachusetts, 408 U. S. 845 (1972). Reported below:
280 N. C. 181 , 185 S. E. 2d 652.
Miscellaneous Orders
No. A-394 (72-5535). DYE v. NEw JERSEY. Sup. Ct.
N. J. Application for bail presented to MR. JUSTICE
STEWART, and by him referred to the Court, denied. MR.
JusTICE DouGLAS would grant bail. MR. JusTICE BRENNAN
took no part in the consideration or decision of this
application. Reported below: 60 N. J. 518, 291 A. 2d
825.
No. A-460. IN RE BERG ET AL. C. A. 9th Cir. Application
for stay of execution of judgment and bail presented
t-0 MR. JusTICE Dm: GLAS, and by him referred to
the Court, denied. MR. JUSTICE DOUGLAS would continue
the stay.
No. 71-1178. GuLF STATES UTILITIES Co. v. FEDERAL
PowER COMMISSION ET AL. C. A. D. C. Cir. [Certiorari
granted, 406 U. S. 956.] Motion of the Solicitor
General for leave to participate in oral argument as
ami.cus curiae in support of respondent cities granted and
15 minutes allotted for that purpose. Petitioner also
allotted 15 additional minutes for oral argument.
No. 72--95. TOLLETT, WARDEN v. HENDERSON. C. A.
6th Cir. [Certiorari granted, ante, p. 912.] Motion of
respondent for appointment of counsel granted. It is
ordered that H. Fred Hoefle, Esquire, of Cincinnati, Ohio,
a member of the Bar of this Court, be, and he is hereby,
appointed to serve as counsel for respondent in this case.
ORDERS 1005
409 U.S. November 13, 1972
No. 71-1192. GOLDSTEIN ET AL. v. CALIFORNIA. App.
Dept., Super. Ct. Cal., County of Los Angeles. [Certiorari
granted, 406 U. S. 956.] Motion of Recording
Industry Association of America, Inc., et al. for leave to
participate in oral argument as amici curiae denied.
No. 71-6757. FONTAINE v. UNITED STATES. C. A.
6th Cir. [Certiorari granted, ante, p. 978.] Motion of
petitioner for appointment of counsel granted. It is
ordered that Steven M. Umin, 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. 72-312. MERRILL LYNCH, PIERCE, FENNER &
SMITH, INc. v. WARE ET AL. Ct. App. Cal., 1st App. Dist.
The Solicitor General is invited to file a brief in this case
expressing the views of the United States. Reported
below: 24 Cal. App. 3d 35, 100 Cal. Rptr. 791.
No. 72-5324. McCRARY v. WAINWRIGHT, CORRECTIONS
DIRECTOR. Motion for leave to file petition for
writ of habeas corpus denied.
No. 72-5336. STEELE v. LAMBROS, JUDGE. Motion
for leave to file petition for writ of mandamus denied.
Probable Jurisdiction Noted
No. 72-214. ATCHISON, TOPEKA & SANTA FE RAILWAY
Co. ET AL. v. WICHITA BOARD OF TRADE ET AL.; and
No. 72-433. INTERSTATE COMMERCE COMMISSION v.
,vICHITA BOARD OF TRADE ET AL. Appeals from D. C.
Kan. Probable jurisdiction noted. Cases consolidated
and a total of one hour allotted for oral argument. Reported
below: 352 F. Supp. 365.
No. 72-350. UNITED STATES v. STATE TAx COMMISSION
OF MISSISSIPPI ET AL. Appeal from D. C. S. D.
Miss. Probable jurisdiction noted. Reported below:
340 F. Supp. 903.
1006 OCTOBER TERM, 1972
November 13, 1972 409 U.S.
Certiorari Denied*
No. 71-1556. McGOWAN v. MISSISSIPPI. Sup. Ct.
Miss. Certiorari denied. Reported below: 258 So. 2d
801.
No. 71-6720. FLETCHER v. MARYLAND. Ct. App. Md.
Certiorari denied. Reported below: 265 Md. 256, 288
A. 2d 885.
No. 71-6880. DAVIS v. CALDWELL, WARDEN. Sup. Ct.
Ga. Certiorari denied. Reported below: 229 Ga. 122,
189 S. E. 2d 423.
No. 71- 6897. ANDERSEN V. REGENTS OF THE UNIVERSITY
OF CALIFORNIA. Ct. App. Cal., 1st App. Dist. Certiorari
denied. Reported below: 22 Cal. App. 3d 763, 99
Cal. Rptr. 531.
No. 7~7. HILL ET ux. v . HILL. Sup. C t . Cal. Certiorari
denied. Reported below: See 23 Cal. App. 3d
760, 100 Cal. Rptr. 458.
No. 72-79. CouNTY BOARD OF ED UCATION OF R1cHMOND
CoUNTY, GEORGIA, ET AL. v. ACREE ET AL.; and
No. 72-167. DRUMMOND ET AL. V. ACREE ET AL. C. A.
5th Cir. Certiorari denied. Reported below: 458 F. 2d
486.
No. 72- 135. PROJANSKY v. UNITED STATES;
No. 72-272. LEAVITT v. UNITED STATES;
No. 72-390. GEIER v. UNITED STATES; and
No. 72-514. BRAININ v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. Reported below: 465 F. 2d 123.
No. 72-157. LoNQUEST v. WYOMING. Sup. Ct. Wyo.
Certiorari denied. Reported below: 495 P. 2d 575.
*[RE PORT ER' S NoTE: For dissenting opinion of MR. J usn cE D ouo-
LAS, filed November 13, 1973, in No. 72-5240, Thomas v. Umted
States, see ante, p . 992.]
ORDERS 1007
409U.S. November 13, 1972
No. 72- 177. MILLER v. SLAYTON, PENITENTIARY Su-
PERINTENDENT. C. A. 4th Cir. Certiorari denied. Reported
below: 457 F. 2d 700.
No. 72-288. POTTS ET AL. v. FLAX ET AL. C. A. 5th
Cir. Certiorari denied. Reported below: 464 F. 2d 865.
No. 72-335. LEFLORE v. ALABAMA EX REL. MooRE.
Sup. Ct. Ala. Certiorari denied. Reported below: 288
Ala. 310, 260 So. 2d 581.
No. 72- 343. LoESER ET AL. v. LoESER. Sup. Ct. Ill.
Certiorari denied. Reported below: 51 Ill. 2d 567, 283
N. E. 2d 884.
No. 72-346. HUMBLE v. UNITED STATES. C. A. 9th
Cir. Certiorari denied.
No. 72- 347. CusTOM RECORDING Co., INc., ET AL. v.
COLUMBIA BROADCASTING SYSTEM, INC. Sup. Ct. S. C.
Certiorari denied. Reported below: 258 S. C. 465, 189
S. E. 2d 305.
No. 72- 353. CERTIFIED GROCERS oF ILLrNors, INc.,
ET AL. v. SPARKLE FooD CENTER, INc., ET AL. Sup. Ct. Ill.
Certiorari denied. Reported below: 51 Ill. 2d 389, 282
N. E. 2d 728.
No. 72- 358. BISHOP v. CoRAL DRILLING, INC. , ET AL.
Sup. Ct. Miss. Certiorari denied. Reported below: 260
So. 2d 463.
No. 72- 360. INTERNATIONAL LoNGSHOREMEN's AssN.
ET AL. v. UNITED STATES. C. A. 4th Cir. Certiorari denied.
Reported below: 460 F. 2d 497.
No. 72- 362. WINCHESTER TV CABLE Co., INC., ET AL.
v. FEDERAL COMMUNICATIONS COMMISSION ET AL. C. A.
4th Cir. Certiorari denied. Reported below: 462 F. 2d
115.
1008 OCTOBER TERM, 1972
November 13, 1972 409 U.S.
No. 72-361. GOTTLIEB v. DuRYEA ET AL. Ct. App.
N. Y. Certiorari denied.
No. 72-363. GRIMES V. NOTTOWAY COUNTY SCHOOL
BOARD ET AL. C. A. 4th Cir. Certiorari denied. Reported
below: 462 F. 2d 650.
No. 72-372. RoAD MATERIALS, INC. v. COMMISSIONER
OF INTERNAL REVENUE. C. A. 4th Cir. Certiorari
denied.
No. 72-374. SWARTHOUT v. OLUND. C. A. 6th Cir.
Certiorari denied. Reported below: 459 F. 2d 999.
No. 72-375. SAN FRANCISCO NEWSPAPER PRINTING
Co., INc., ET AL. v. NATIONAL LABOR RELATIONS BoARD
ET AL. C. A. 9th Cir. Certiorari denied. Reported below:
462 F. 2d 699.
No. 72-377. CAMPBELL v. TEXAS. Ct. Crim. App.
Tex. Certiorari denied. Reported below: 480 S. W. 2d
391.
No. 72-378. HERSH v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 464 F. 2d 228.
No. 72-379. M. J. PIROLLI & SoNs, INC. v. NATIONAL
LABOR RELATIONS BOARD. C. A. 1st Cir. Certiorari
denied.
No. 72-380. PERILLO ET ux. v. UNITED AMERICAN
LrFE INSURANCE Co. C. A. 9th Cir. Certiorari denied.
Reported below: 462 F. 2d 254.
No. 72-381. BASYAP, INc., ET AL. v. DISTRICT OF Co-
LUMBIA REDEVELOPMENT LAND AGENCY ET AL. C. A.
D. C. Cir. Certiorari denied.
No. 72-383. TExAco INc. v. NATIONAL LABOR RELATIONS
BOARD. C. A. 3d Cir. Certiorari denied. Reported
below: 462 F. 2d 812.
ORDERS 1009
409U. S. November 13, 1972
No. 72-384. KANSAI IRON WoRKS, LTD. v. MARUBENIlrnA,
INC., ET AL. Sup. Ct. Wash. Certiorari denied.
Reported below: 80 Wash. 2d 707, 497 P . 2d 1311.
No. 72-387. SCHWARTZ v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. Reported below: 464 F. 2d 499.
No. 72-391. RoBINSON, TuusTEE IN BANKRUPTCY v .
FRASHER ET ux. C. A. 9th Cir. Certiorari denied. Reported
below: 458 F. 2d 492.
No. 72-395. JoHN NuvEEN & Co., INc., ET AL. v.
SANDERS. C. A. 7th Cir. Certiorari denied. Reported
below: 463 F. 2d 1075.
No. 72-420. MONTANO v. UNITED STATES; and
No. 72-5182. GRIFFIN v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 464 F. 2d 1352.
No. 72-5004. Cou sINo v. COULON ET AL. C. A. 6th
Cir. Certiorari denied.
No. 72-5014. CONNORS v. JOHNSON, WARDEN. C. A.
6th Cir. Certiorari denied.
No. 72-5297. CARTER v. MANCUSI, CORRECTIONAL Su -
PERINTENDENT. C. A. 2d Cir. Certiorari denied. Reported
below: 460 F. 2d 1406.
No. 72-5298. CooPER v. UNITED STATES. C . A. 5th
Cir. Certiorari denied. Reported below: 462 F. 2d
1343.
No. 72-5305. HAYS v. CANALE ET AL. C. A. 6th Cir.
Certiorari denied.
No. 72-5306. LABADIE v. MICHIGAN. C. A. 6th Cir.
Certiorari denied.
No. 72-5307. GRAY ET AL. v. UNITED STATES. C. A.
5th Cir. Certiorari denied. Reported below: 462 F. 2d
164.
1010 OCTOBER TERM, 1972
November 13, 1972 409 u. s.
No. 72-5309. BENNETT ET AL. v. UNITED STATES.
C. A. 9th Cir. Certiorari denied.
No. 72-5314. HIBBERD v. CALIFORNIA. Ct. App. Cal.,
2d App. Dist. Certiorari denied.
No. 72-5316. KNOX v. UNITED STATES. C. A. 8th
Cir. Certiorari denied. Reported below: 462 F. 2d 982.
No. 72-5318. DouGLAS v. NIXON, SHERIFF. C. A.
6th Cir. Certiorari denied. Reported below: 459 F. 2d
325.
No. 72-5321. BENNETT v. UNITED STATES. C. A. 10th
Cir. Certiorari denied.
No. 72-5325. CODY v. UNITED STATES C. A. 8th Cir.
Certiorari denied. Reported below: 460 F. 2d 34.
No. 72-5326. GRANTHAM v. NELSON , WARDEN. C. A.
9th Cir. Certiorari denied.
No. 72-5327. MONJE v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 465 F. 2d 141.
No. 72-5330. WOLFE v. PENNSYLVANIA. Sup. Ct. Pa.
Certiorari denied.
No. 72-5332. HAGAN v. CALIFORNIA. Ct. App. Cal.,
3d App. Dist. Certiorari denied.
No. 72-5333. JONES v. UNITED STATES. C. A. 5th C'ir.
Certiorari denied. Reported below: 462 F. 2d 1376.
No. 72-5334. LEBRUN v. OREGON. Sup. Ct. Ore.
Certiorari denied.
No. 72-5335. JACKSON v. WOLFORD. C. A. 6th Cir.
Certiorari denied. Reported below: 460 F. 2d 319.
NO. 72- 5338. WAGNER V. WORKMEN'S COMPENSATION
APPEALS BOARD ET AL. Ct. App. Cal., 2d App. Dist.
Certiorari denied.
ORDERS 1011
409U. S. November 13, 1972
No. 72-5339. EMDY v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 465 F. 2d 378.
No. 72-5340. CHACON v. McCLAIN ET AL. C. A. 9th
Cir. Certiorari denied.
No. 72-5341. SPINKS v. UNITED STATES. C. A. 7th
Cir. Certiorari denied. Reported below: 470 F. 2d 64.
No. 72-5342. Houp v. UNITED STATES. C. A. 8th
Cir. Certiorari denied. Reported below: 462 F. 2d
1338.
No. 72-5344. STROTHER v. UNITED STATES. C. A.
5th Cir. Certiorari denied. Reported below: 458 F. 2d
424.
No. 72-5345. CooK v. UNITED STATES. C. A. 8th Cir.
Certiorari denied. Reported below: 464 F. 2d 251.
No. 72-5514. CORRADO v. PROVIDENCE REDEVELOPMENT
AGENCY. Sup. Ct. R. I. Certiorari denied. Reported
below: 109 R. I. 956, 288 A. 2d 272.
No. 71-1642. FARR v. SUPERIOR CouRT OF CALIFORNIA,
Los ANGELES CouNTY. Ct. App. Cal., 2d App. Dist.
Certiorari denied. MR. JUSTICE DouGLAS would grant
certiorari. Reported below: 22 Cal. App. 3d 60, 99 Cal.
Rptr. 342.
No. 71-6700. VENABLE ET AL. v. TENNESSEE. Ct.
Crim. App. Tenn. Certiorari denied. MR. JusTICE
DOUGLAS would grant certiorari.
No. 72-349. ScARPETTA v. DEMARTINO ET ux. Sup.
Ct. Fla. Certiorari denied. MR. JusTICE DouGLAS would
grant certiorari. Reported below: 262 So. 2d 442.
No. 72- 352. COLLINS v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. MR. JUSTICE DOUGLAS would
grant certiorari.
1012 OCTOBER TERM, 1972
November 13, 1972 409 U.S.
No. 72-355. RussELL, EXECUTRIX v. UNITED STATES.
C. A. 10th Cir. Certiorari denied. MR. JUSTICE DOUGLAS
would grant certiorari. Reported below: 461 F. 2d
605.
No. 72-356. SMITH, TRUSTEE v. BAKER, TRUSTEE,
ET AL. C. A. 3d Cir. Petition for certiorari before judgment
to C. A. 3d Cir. denied. MR. JUSTICE DouGLAS
would grant certiorari.
No. 72-371. NATIONAL LABOR RELATIONS BoARD v.
TAMIMENT, INC. C. A. 3d Cir. Certiorari denied. MR.
JusTICE DOUGLAS would grant certiorari. Reported below:
451 F. 2d 794.
No. 72-382. CARTER ET AL. v. PANAMA CANAL Co.
C. A. D. C. Cir. Certiorari denied. MR. JUSTICE DouGLAS
would grant certiorari. Reported below: 150 U. S.
App. D. C. 198, 463 F. 2d 1289.
No. 72-388. GERACE ET vrn v. CouNTY OF Los ANGELES
ET AL. Ct. App. Cal., 2d App. Dist. Certiorari
denied. MR. JusTICE DOUGLAS would grant certiorari.
No. 72-389. Zizzo v. UNITED STATES ET AL. C. A.
7th Cir. Certiorari denied. MR. JUSTICE DouGLAS would
grant certiorari. Reported below: 470 F. 2d 105.
No. 72-5296. CHAGOIS v. LYKES BROS. STEAMSHIP
Co., INC. C. A. 5th Cir. Certiorari denied. MR. Jus-
TICE DOUGLAS would grant certiorari. Reported below:
457 F. 2d 343.
No. 72-5315. BOATWRIGHT V. HENDRICKS, PRISON
CAMP SUPERINTENDENT. C. A. 5th Cir. Certiorari denied.
MR. JUSTICE DouGLAS would grant certiorari.
No. 72-5328. BROADWAY v. TEXAS. C. A. 5th Cir.
Certiorari denied. MR. J USTICE DouGLAS would grant
certiorari. Reported below: 459 F. 2d 483.
ORDERS 1013
409 U.S. November 13, 1972
No. 72-5337. Nix v. UNITED STATES. C. A. 5th Cir.
Certiorari denied. MR. JUSTICE DouGLAS would grant
certiorari. Reported below: 465 F. 2d 90.
No. 71-6589. SLADE v. VALLEY NATIONAL BANK,
GLENDALE. App. Dept., Super. Ct. Cal., County of
Los Angeles. Motion for leave to dispense with printing
amicus curiae brief by National Legal Aid & Defender
Assn. granted. Certiorari denied. MR. JuSTICE Doua-
LAS would grant certiorari.
N 0. 72-41. WASHINGTON PARISH SCHOOL BOARD
ET AL. v. MosEs ET AL. C. A. 5th Cir. Motion for leave
to dispense with printing respondents' brief granted.
Certiorari denied. Reported below: 456 F. 2d 1285.
No. 72-307. Russo ET AL. v. BYRNE, U. S. District
Judge. C. A. 9th Cir. Certiorari denied. MR. JUSTICE
BRENNAN would grant certiorari.
MR. JusTICE DOUGLAS, dissenting.
I regret that the Court does not take this occasion to
lay down some further ground rules for the conduct of
criminal cases involving electronic surveillance in the
sensitive area which involves both the Fourth and the
Sixth Amendments.
In Alderman v. United States, 394 U. S. 165, we laid
down rules governing the district courts where there
had been electronic surveillance of the defendant in a
criminal case or where in other surveillance his words had
been recorded. Alderman and its descendants made possible
the conduct of criminal trials with fairness to all
sides and with no disturbance to orderly proceedings.
The present case is one of several that have come across
my desk this year involving not the surveillance of a
1014 OCTOBER TERM, 1972
DouaLAS, J., dissenting 409 F.S.
defendant in a criminal case but the surveillance of his
lawyer.
It is time, I think, that we hold that the confidences
of the lawyer-client relationship remain inviolate. It is
also time that we set forth the prescribed procedures in
an Alderman type of opinion.
The problems where the lawyer is involved seem to me
to be as critical as those where the defendant's privacy
under the Fourth Amendment is violated.1 The ruling
1 Wiretapping, which .Justice Holmes called "dirty busine<:S,"
Olm<Jtead v. l'nited States, 277 U.S. 438, 470 (dissentinp;), was put
by .Justice Brandei~ in a con~titutional frame of referl'nCl':
"The makl'~ of our Constitution undertook to secure conditions
favorable to the pursuit of happiness. They recognized the significance
of man's spiritual nature, of his feelings and of his intellect.
They knew that only a part of the pain, pleasure and satisfactions
of life are to be found in material things. They sought t-0 protect
Americans in their beliefs. their thoughts, their emotion~ and their
sensations. They conferred, as agamst the Government, the right
to be let alon-the most comprehensive of rights and thl' right most
valued by <'ivilized men. To protect that right, every unjustifiable
intrusion by the Government upon the privacy of the individual,
whatever the means employed, must be deemed a violation of the
Fourth Amendment." Id., at 478.
And he added:
"Decency, security and liberty alike demand that government
officials shall be subjected to the same rules of conduct that are
commands to the citizen. In a government of Jaws, existence of
the government will be imperilled if it fails to observe the law
S<'rupulously. Our GoYernment is the potent, the omnipresent
teacher. For good or for ill, it tea<'hes the whole people by its example.
Crime is contagious. If the Government becomes a lawbreaker,
it breeds contempt for law; it invites every man to become
a law unto himself; it invites anarchy. To declare that in the administration
of the criminal law the end justifies the means-to dedare
t,hat the Government may commit crimes in order to secure
the conviction of a private criminal-would bring terrible retribution.
Against that pernicious doctrine this Court should resolutely set its
face." Id., at 485.
ORDERS 1015
1013 DouGLAS, J., dissenting
which I made this last summer when I granted the stay
in this case was based on the premise that the teaching
of Alderman would fully apply to a case where the Sixth
Amendment rights of a defendant were imperiled.
We held in United States v. United States District
Court, 407 U. S. 297, that electronic surveillance of internal
security measures was not permissible on the basis
of an order of the Attorney General, but only on judicial
search warrants. We reserved decision "with respect to
activities of foreign powers or their agents." / d., at 322.
·when the argument was held last summer on the stay
order, the prosecution in oral presentation distinguished
that case on the ground that it involved "domestic" surveillance
while the present one involved "foreign" surveillance.
The prosecution seemed reluctant to enlarge
on that distinction, which led me to note in the opinion
I filed granting the stay that we may be dealing only
with a matter of semantics. The prosecution never submitted
to me in camera the logs in question. I have
now seen them, and it appears that the electronic surveillance
was of a telephone of a foreign national and
that the intercepted conversations in this case had nothing
to do "with respect to activities of foreign powers
or their agents," the question we reserved in the previous
case. Ibid. As I understand it, the conversation
was an inquiry by one of the counsel concerning
wholly personal social and commercial matters. It is not
conceivable to me that this conversation is in the "foreign"
field in the sense the word is used in the statutes involved
in the United States District Court case. No
activity of any foreign "agent" is even suggested. We
should therefore take the case to resolve what immunity
the Executive Branch has in setting up schemes of pervasive
surveillance of foreign nationals that is unrelated
to espionage.
1016 OCTOBER TERM, 1972
DOUGLAS, J., dissenting 409 U.S.
It is, however, said that the conversation is utterly
irrelevant to the issues in the present case. How can we
know? Only one immersed in building a case for the
prosecution or constJ-ucting a defense can know whether
an innocuous-appearing conversation would be a "link"
in a chain of evidence which in time would be necessary
or convenient for either the prosecution or the defense.
That is why I feel strongly that, as we held in Alderman
v. United States, supra, the question of relevance must
be submitted for adversary hearing before the trial judge.2
I suspect that if that had been done here, the dispute
that has delayed this trial for some months would have
been quickly resolved. A grave injustice may or may
not ride on the denial of certiorari today. My concern is
2 In Alderman v. United States we read:
"Adversary proceedings are a major aspect of our system of
criminal justice. Their superiority as a means for attaining justice
in a given case is nowhere more evident than in those rases, such
as the ones at bar, where an issue must be decided on the basis of
a large volume of factual materials, and after consideration of the
many and subtle interrelationships which may exist among the farts
reflected by these records. As the need for adversary inquiry is
increased by the complexity of the issues presented for adjudication,
and by the consequent inadequacy of ex parte procedures as a
means for their accurate resolution, the displacement of well-informed
advocacy necessarily becomes less justifiable.
"Adversary proceedings will not magically eliminate all error,
but they will substa.ntially reduce its incidence by guarding against
the possibility that the trial judge, through lack of time or unfamiliarity
with the information contained in and suggested by the
materials, will be unable to provide the scrutiny which the Fourth
Amendment exclusionary rule demands. It may be that the prospect
of disclosure will compel the Government to dismiss some prosecutions
in deference to national security or third-party interests. But
this is a choice the Government concededly faces with respect to
material which it has obtained illegally and which it admits, or
which a judge would find, is arguably relevant to the evidence
offcrrd against the defendant." 394 U. S., at 183-184.
ORDERS 1017
409U.S. November 13, 1972
not that, but the administration of the law. I use the
word law in its largest sense-where the prosecution as
well as the defense is required to live within the spirit
and letter of the constitutional rules designed to keep
Government off the backs of the people and to take no
shortcuts because of public hysteria or political pressures.
That question concerning the applicability of the pretrial
procedures laid out in Alderman to the protection of
Sixth Amendment claims makes this case a singularly appropriate
occasion for laying down the ground rules that
will apply in federal trials.
No. 72-345. RAO V. BOARD OF COUNTY COMMISSIONERS
(PIERCE CouNTY) ET AL. Sup. Ct. Wash. Motion to
dispense with printing petition granted. Certiorari denied.
Reported below: 80 Wash. 2d 695, 497 P. 2d 591.
No. 72-5247. GRUBB v. OKLAHOMA. Ct. Crim. App.
Okla. Certiorari denied. Reported below: 497 P. 2d
1305.
MR. JUSTICE BRENNAN, with whom MR. JusTICE DouGLAS
and MR. JUSTICE MARSHALL concur, dissenting.
Petitioner and Lynette Murphy lived together as husband
and wife in Collinsville, Oklahoma, from September
1970 through the end of January 1971. After leaving
petitioner, Lynette went to live with her sister and
brother-in-law, Lana and Larry Sanders, in Collinsville.
At approximately 8 p. rn. on February 2, 1971, petitioner
went to the Sanders' residence, displayed a gun, and informed
Gary Hany, another occupant, that he intended
to take Lynette with him. After a wait of approximately
45 minutes, Lynette, Lana, and Larry arrived at the
residence. Petitioner told Lynette that if she refused
to go with him he would kill them all. Lynette became
"kind of shook up" and agreed to go. Petitioner then
1018 OCTOBER TERM, 1972
BRENNAN, J., dissenting 409 U.S.
took Larry Sanders' money (three dollars) and car keys,
and left with Lynette in the Sanders' car. After an
extensive chase, petitioner was apprehended by the Oklahoma
police and was charged with kidnaping, two counts
of armed robbery, and unauthorized use of a motor
vehicle.*
Although all of these charges arose out of the "same
transaction or occurrence," they were prosecuted by the
State in two separate proceedings. At the first trial,
petitioner was convicted of the armed robbery of Larry
Sanders. At the second trial, he was convicted of kidnaping
Lynette Murphy, and was acquitted of a charge
of armed robbery of Lana Sanders. Petitioner's contention
that this second prosecution was barred by the provisions
against double jeopardy in both the State and
Federal Constitutions was rejected by the Oklahoma
Court of Criminal Appeals, one judge dissenting. Grubb
v. State, 497 P. 2d 1305 (1972).
I would grant the petition for certiorari and reverse.
I adhere to my view that the Double Jeopardy Clause of
the Fifth Amendment, which is applicable to the States
through the Fourteenth Amendment, Benton v. Maryland,
395 U.S. 784 (1969), requires the prosecution, except
in most limited circumstances not present here, "to
join at one trial all the charges against a defendant that
grow out of a single criminal act, occurrence, episode,
or transaction." Ashe v. Swenson, 397 U. S. 436, 453-
454 (I 970) ( concurring opinion) ; see Miller v. Oregon,
*The charge of unauthorized use of a motor vehicle was dismissed
by the trial court on the ground that it violated petitioner's right
against double jeopardy. The court apparently ruled that the
prosecution for armed robbery of Larry Sanders, which included
the forcible taking of Sanders' car keys, precluded an additional
prosecution for unauthorized use of the vehicle itself.
ORDERS 1019
409U.S. November 13, 1972
405 U. S. 1047 (1972) (dissenting opinion); Harris v.
Washington, 404 U. S. 55, 57 (1971) (concurring opinion).
Under this "same transaction" test, all charges
against petitioner should have been brought in a single
prosecution.
No. 72-5299. SALTER v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. MR. JUSTICE STEWART would
grant certiorari.
Rehearing Denied
No. 71-6594. TYLER v. PARKS, ante, p. 858;
No. 71-6691. ZIMMER v. GAFFNEY, WARDEN, ante,
p. 862;
No. 71-6729. WEAVER v. CALIFORNIA DEPARTMENT
OF CORRECTIONS ET AL., ante, p. 864;
No. 71-6813. FERMIN v. RICHARDSON, SECRETARY OF
HEALTH, EDUCATION, AND WELFARE, ante, p. 868;
No. 71 - 6819. NELSON V. BUTLER, PRISON SUPERINTENDENT,
ante, p. 869;
No. 71-6861. DOCKERY V. CALIFORNIA, ante, p. 871;
and
No. 72-5067. WIMBERLEY ET AL. v. LYNCH , ATTORNEY
GENERAL oF CALIFORNIA, ET AL., ante, p. 882. Petitions
for rehearing denied.
No. 71 -1270. McKEE v. UNITED STATES, 407 U. S.
910, and ante, p. 899. Motion for leave to file second
petition for rehearing denied.
No. 71-1401. SMITH, TRUSTEE v. BAKER ET AL., ante,
p. 890. Petition for rehearing denied. MR. JusTICE
BLACKMUN took no part in the consideration or decision
of this petition.
No. 71-5689. NACHBAUR v. HERMAN, 405 U. S. 931.
Second motion for leave to file petition for rehearing
denied.
1020 OCTOBER TERM, 1972
NOVEMBER 20, 1972
Affirmed on Appeal
409 U.S.
No. 72-334. RosE v. BONDURANT, CHAIRMAN, BoARD
OF BAR EXAMINERS OF NEW MEXICO, ET AL. Affirmed
on appeal from D. C. N. M. MR. JUSTICE STEWART
would vacate judgment and remand case to determine
whether case has become moot. Reported below: 339
F. Supp. 257.
No. 72--413. SIMON v. SARGENT, GOVERNOR OF MASSACHUSETTS,
ET AL. Affirmed on appeal from D. C. Mass.
Reported below: 346 F. Supp. 277.
No. 72--432. MORITT v. ROCKEFELLER, GovERNOR OF
NEW YORK, ET AL. Appeal from D. C. S. D. N. Y. Motion
to dispense with printing jurisdictional statement
granted. Judgment affirmed. MR. JUSTICE DouGLAS
would postpone question of jurisdiction to a hearing of
case on the merits. Reported below: 346 F. Supp. 34.
Appeals Dismissed
No. 71-1478. FALKNER ET ux. v. PASTRANO ET ux.
Appeal from Sup. Ct. Fla. Motion to dispense with
printing jurisdictional statement and motion to dismiss
granted. Appeal dismissed for want of jurisdiction.
Treating the papers whereon the appeal was taken as a
petition for writ of certiorari, certiorari denied. Reported
below: 255 So. 2d 688.
No. 72-412. MARTINEZ V. TEXAS STATE BOARD OF
MEDICAL EXAMINERS. Appeal from Ct. Civ. App. Tex.,
4th Sup. Jud. Dist., dismissed for want of substantial
federal question. Reported below: 476 S. W. 2d 400.
No. 72--415. CoNN-WooD INVESTMENT CORP. ET AL. v.
WORKMEN'S COMPENSATION APPEALS BOARD OF CALIFORNIA
ET AL. Appeal from Ct. App. Cal., 2d App. Dist.,
dismissed for want of substantial federal question.
ORDERS 1021
409 U.S. November 20, 1972
No. 72-5118. MARTIN v. TEXAS. Appeal from Ct.
Crim. App. Tex. 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 S. W. 2d 265.
Other Summary Disposition
No. 71-1133. UPPER PEcos AssN. v. PETERSON, SECRETARY
OF COMMERCE, ET AL. C. A. 10th Cir. [Certiorari
granted, 406 U. S. 944.J Upon consideration of
memorandum for respondents suggesting mootness and
brief in opposition thereto, judgment vacated and case
remanded to determine whether case has become moot.
MR. JUSTICE BRENNAN took no part in the consideration
or decision of this case. Reported below: 452 F. 2d 1233.
Miscellaneous Orders*
No. A-360 (72-730). MARKLE ET AL. V. ABELE ET AL.
D. C. Conn. Motion to vacate stay heretofore granted
by the Court on October 16, 1972 [ante, p. 908], denied.
Reported below: 351 F. Supp. 224.
No. A-457. BORKENHAGEN v. UNITED STATES. C. A.
7th Cir. Application for stay and/ or bail presented to
MR. JUSTICE DOUGLAS, and by him referred to the Court,
denied. MR. JUSTICE DouGLAS would grant the stay.
468 F. 2d 43.
No. 58, Orig. AMERICAN PARTY ET AL. v. NEw YoRK
ET AL. Motion for leave to file bill of complaint denied.
No. 71-1043. HELLER v. NEw YoRK. Ct. App. N. Y.
[Certiorari granted, 406 U. S. 916.] Motion of Charles
H. Keating, Jr., to file untimely brief as amicus curiae
in support of respondent granted.
*For reference to Court's order prescribing Rules of Evidencf'
for United States Courts and Magistrates, Amendmt>nts to the
Federal Rules of Civil Procedure, and Amendments to the Federal
Rules of Criminal Procedure, see post, p. 1132.
1022 OCTOBER TERM, 1972
November 20, 1972 409 u. s.
No. 72-397. BONELLI CATTLE Co. ET AL. v. ARIZONA
ET AL. Sup. Ct. Ariz. The Solicitor General is invited
to file a brief expressing the views of the United States.
MR. JUSTICE REHNQUIST took no part in the consideration
or decision of this order. Reported below: 108 Ariz.
258, 495 P. 2d 1312.
No. 72-400. RosE, WARDEN v. RIVERA. C. A. 6th Cir.
Motion of petitioner to consolidate case with Xos. 71-
1281 [Linder, Warden v. Recor] and 71-1472 [Neil,
Warden v. Pendergrass] denied. Reported below: 465
F. 2d 727.
Certiorari De nied. ( See also Nos. 71-1478 and 72- 5118,
supra.)
No. 71-1567. BERRY v. NORTH CAROLINA. Ct. App.
N. C. Certiorari denied. Reported below: 13 N. C.
App. 310, 185 S. E. 2d 463 .
• o. 71-6824. MORTON v. WYOMING. Sup. Ct. Wyo.
Certiorari denied.
No. 71-6841. SIGMAN v. ILLINOIS. Sup. Ct. Ill.
Certiorari denied. Reported below: 50 Ill. 2d 229, 278
~- E. 2d 73.
No. 71- 6894. MCGHEE v. WOLFF, WARDEN. C. A.
8th Cir. Certiorari denied. Reported below: 455 F. 2d
987.
No. 71 6899. REARDON v. MEACHAM. Sup. Ct. Wyo.
Certiorari denied.
No. 72-396. JOHNS v. JOHNS. C. A. 5th Cir. Certiorari
denied.
No. 72-401. CITIZENS UTILITIES WATER COMPANY OF
ARIZONA v. SUPERIOR COURT OF ARIZONA IN AND FOR THE
COUNTY OF PIMA ET AL. Sup. Ct. Ariz. Certiorari denied.
Reported below: 108 Ariz. 296, 497 P. 2d 55.
ORDERS 1023
409 U.S. November 20, 1972
No. 72--404. DISPOSABLE SERVICES, INC. v. ITT LIFE
INSURANCE COMPANY OF NEw YORK. C. A. 5th Cir.
Certiorari denied. Reported below: 453 F. 2d 218 and
457 F. 2d 972.
No. 72--405. MERRICK v. UNITED STATES. C. A. 10th
Cir. Certiorari denied. Reported below: 464 F. 2d
1087.
No. 72-409. LAURIA v. UNITED STATES. C. A. 2d Cir.
Certiorari denied. Reported below: 464 F. 2d 1129.
No. 72--411. MASONITE CORP. ET AL. v. HENDRY ET AL.
C. A. 5th Cir. Certiorari denied. Reported below: 455
F. 2d 955.
No. 72--423. HADCO PRODUCTS, INC. V. WALTER KIDDE
& Co. C. A. 3d Cir. Certiorari denied. Reported below:
462 F. 2d 1265.
No. 72-424. CITY OF CRYSTAL CrTY v. DEL MONTE
CoRP., DBA DEL MoNTE Foons, INC. C. A. 5th Cir.
Certiorari denied. Reported below: 463 F. 2d 976.
No. 72-427. SuN SHIPBUILDING & DRY DocK Co. v.
UNITED STATES ET AL. Ct. Cl. Certiorari denied. Reported
below: 198 Ct. Cl. 693, 461 F. 2d 1352.
No. 72-428. ALABAMA v. UNITED STATES. Ct. Cl.
Certiorari denied. Reported below: 198 Ct. Cl. 683, 461
F. 2d 1324.
No. 72--429. BOLTON v. CALIFORNIA. Ct. App. Cal.,
2d App. Dist. Certiorari denied.
No. 72-430. Doss v. LEWIS-GALE HOSPITAL, INC.
Cir. Ct. Roanoke, Va. Certiorari denied.
No. 72-437. MADER ET AL. v. ARMEL ET AL. C. A.
6th Cir. Certiorari denied. Reported below: 461 F. 2d
1123.
1024 OCTOBER TERM, 1972
November 20, 1972 409U. S.
No. 72--439. ALEXANDER v. UNITED STATES. C. A.
9th Cir. Certiorari denied. Reported below: 463 F. 2d
18.
No. 72--440. SAEZ v. GOSLEE ET AL. C. A. 1st Cir.
Certiorari denied. Reported below: 463 F. 2d 214.
No. 72--443. CAMPO CORP. ET AL. v. SUPREME JUDICIAL
CouRT OF MASSACHUSETTS. Sup. Jud. Ct. Mass. Certiorari
denied. Reported below: - Mass. - , 285
N. E. 2d 419.
No. 72--445. DuQUESNE BREWING CoMPANY OF PITTSBURGH
v. CONNOR ET AL. Sup. Ct. Pa. Certiorari denied.
No. 42--447. HUTTER ET ux. v. CITY OF CHICAGO.
Sup. Ct. Ill. Certiorari denied.
No. 72--449. CAPITOL TILE & MARBLE, lNc., ET AL. v.
DEESE. C. A. D. C. Cir. Certiorari denied.
No. 72--450. BELLINGHAM STEVEDORING Co. v. DAMPSKIBSAKTIESELSKABET
ET AL. C. A. 9th Cir. Certiora.ri
denied. Reported below: 457 F. 2d 889.
No. 72--454. ESTATE OF HEDRICK v. COMMISSIONER
OF INTERNAL REVENUE. C. A. 9th Cir. Certiorari denied.
Reported below: 457 F. 2d 501.
No. 72--458. HOSPITAL TELEVISION, INC. v. WELLS
TELEVISION, INC., ET AL. C. A. 8th Cir. Certiorari denied.
Reported below: 462 F. 2d 417.
No. 72--460. GARRISON v. SHAW. C. A. 5th Cir.
Certiorari denied. Reported below: 467 F. 2d 113.
No. 72-5020. GAY v. LICENSE BRANCH, REAL ESTATE
COMMISSION OF THE DISTRICT OF COLUMBIA. Ct. App.
D. C. Certiorari denied.
No. 72-5132. REDMAN v. CoNBOY, CORRECTIONAL Su-
PERINTENDENT. C. A. 2d Cir. Certiorari denied.
ORDERS 1025
409 u. s. November 20, 1972
No. 72-5044. HuGHES v. MARYLAND. Ct. Sp. App.
Md. Certiorari denied. Reported below: 14 Md. App.
497, 287 A. 2d 299.
No. 72-5346. RENSING v. ZELKER, CORRECTIONAL Su-
PERINTENDENT. C. A. 2d Cir. Certiorari denied.
No. 72-5347. WYNN v. UNITED STATES. C. A. 4th
Cir. Certiorari denied.
No. 72-5350. DAPPER v. O'CONNOR ET AL. C. A. 9th
Cir. Certiorari denied.
No. 72-5351. NEWELL v. UNITED STATES. C. A. 10th
Cir. Certiorari denied.
No. 72-5352. JOHNSON v. MEACHAM. Sup. Ct. Wyo.
Certiorari denied.
No. 72-5354. BUSTILLO v. UNITED STATES. C. A.
10th Cir. Certiorari denied.
No. 72-5355. MITCHELSON V. HENDERSON, CORRECTIONAL
SUPERINTENDENT. C. A. 2d Cir. Certiorari
denied.
No. 72-5357. PRIORE v. OHIO. Ct. App. Ohio, Cuyahoga
County. Certiorari denied.
No. 72-5360. NAVALLEZ v. UNITED STATES. C. A. 9th
Cir. Certiorari denied.
No. 72-5361. DAVIS v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 464 F. 2d 558.
No. 72-5364. WILLIAMS v. UNITED STATES. C. A,
4th Cir. Certiorari denied.
No. 72-5369. HARBOLT v. ALLDREDGE, WARDEN, ET AL.
C. A. 10th Cir. Certiorari denied. Reported below:
464 F. 2d 1243.
1026 OCTOBER TERM, 1972
November 20, 1972 409U.S.
No. 72-5365. CASSIDY v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 457 F. 2d 813.
No. 72-5366. YEAGER v. CRAVEN, WARDEN. C. A. 9th
Cir. Certiorari denied.
No. 72-5370. CONGROVE v. UNITED STATES DISTRICT
COURT FOR THE EASTERN DISTRICT OF KENTUCKY. c. A.
6th Cir. Certiorari denied.
No. 72-5373. POTTS v. SLAYTON, PENITENTIARY Su-
PERINTENDENT. C. A. 4th Cir. Certiorari denied.
No. 72-5374. ETHINGTON v. UNITED STATES. C. A.
6th Cir. Certiorari denied.
No. 72-5376. JOHNS v. NEW JERSEY. Super. Ct.
N. J. Certiorari denied.
No. 72-5378. PEJOKOVICH V. BOARD OF EDUCATION,
PRINCE GEORGE'S CouNTY, ET AL. Ct. App. Md. Certiorari
denied. Reported below: 265 Md. 488, 290 A.
2d 510.
No. 72-5380. BANKS v. SLAYTON, PENITENTIARY Su-
PERINTENDENT. C. A. 4th Cir. Certiorari denied.
No. 72-5382. KELLER v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 463 F. 2d
1136.
No. 72-5384. ROBERTS v. UNITED STATES. C. A. 7th
Cir. Certiorari denied. Reported below: 466 F. 2d 193.
No. 72-5393. FERRER-VEGA v. UNITED STATES. C. A.
5th Cir. Certiorari denied. Reported below: 464 F. 2d
12.
No. 72-5394. H1TCHCOCK v. GOMES, WARDEN. C. A.
9th Cir. Certiorari denied.
No. 72-5395. BucKLES v. WYOMING. Sup. Ct. Wyo.
Certiorari denied. Reported below: 500 P. 2d 518.
ORDERS 1027
409 U.S. November 20, 1972
No. 72-5396. McBRIDE v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 463 F. 2d 44.
No. 72-5397. LINWOOD ET AL. V. BOARD OF EDUCATION
OF CITY OF PEORIA, ScHOOL DISTRICT No. 150. C. A. 7th
Cir. Certiorari denied. Reported below: 463 F. 2d 763.
No. 72-5402. TATE v. D. C. TRANSIT Co. Ct. App.
D. C. Certiorari denied.
No. 72-5404. LEBRUN v. CUPP, WARDEN. C. A. 9th
Cir. Certiorari denied.
No. 72-5410. BLACK v. UNITED STATES. C. A. 7th
Cir. Certiorari denied.
No. 71-1381. CALDWELL, WARDEN V. THORNTON.
C. A. 5th Cir. Motion of respondent for leave to proceed
in f orma pauperis granted. Certiorari denied. Reported
below: 454 F. 2d 1167.
No. 71-6690. KEENY v. SWENSON, WARDEN. C. A.
8th Cir. Certiorari denied. MR. JUSTICE DOUGLAS
would grant certiorari. Reported below: 458 F. 2d 680.
No. 72-326. CHARLTON v. UNITED STATES ET AL.
C. A. 3d Cir. Certiorari denied. MR. JUSTICE DouGLAS
would grant certiorari. Reported below: 462 F. 2d 59.
No. 72-370. MARCUS ET AL. v. NEw YoRK. Ct. App.
N. Y. Certiorari denied. MR. JUSTICE DouGLAS would
grant certiorari. Reported below; 31 N. Y. 2d 12, 286
N. E. 2d 234.
No. 72-398. WAIT RADIO v. FEDERAL COMMUNICATIONS
COMMISSION. C. A. D. C. Cir. Certiorari denied.
MR. JUSTICE DouGLAS would grant certiorari. Reported
below: 148 U.S. App. D. C. 179, 459 F. 2d 1203.
No. 72-417. WARE ET AL. v. EsTES, SUPERINTENDENT,
DALLAS PUBLIC SCHOOLS, ET AL. C. A. 5th Cir. Certiorari
denied. MR. JusTICE DouGLAS would grant certiorari.
Reported below: 458 F. 2d 1360.
1028 OCTOBER TERM, 1972
November 20, 1972 409 U.S.
No. 72-406. DOMINEY v. DOMINEY. Ct. Civ. App.
Tex., 8th Sup. Jud. Dist. Certiorari denied. MR. Jus-
TICE DouGLAS would grant certiorari. Reported below:
481 S. W. 2d 473.
No. 72---416. SEWARD MOTOR FREIGHT, INc., ET AL. v.
NEBRASKA STATE RAILWAY CoMM'N ET AL. Sup. Ct.
Neb. Certiorari denied. MR. JUSTICE DOUGLAS would
grant certiorari. Reported below: 188 Neb. 223, 196
N. W. 2d 200.
No. 72---418. HAMMOND v. UNITED PAPERMAKERS &
PAPERWORKERS UNION, AFL-CIO, ET AL. C. A. 6th Cir.
Certiorari denied. MR. JUSTICE DouGLAS would grant
certiorari. Reported below: 462 F. 2d 174.
No. 72---431. CLARK ET AL. v. UNITED STATES. Ct. Cl.
Certiorari denied. MR. JUSTICE DouGLAS would grant
certiorari. Reported below: 198 Ct. Cl. 593, 461 F. 2d
781.
No. 72-5353. BROWNSTEIN v. UNITED STATES. C. A.
5th Cir. Certiorari denied. MR. JUSTICE DouGLAS
would grant certiorari. Reported below: 462 F. 2d 1132.
No. 72-5362. HEREDEN v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Ma. JUSTICE DouGLAS would
grant certiorari. Reported below: 464 F. 2d 611.
No. 72-5363. GANT v. UNITED STATES. C. A. 9th Cir.
Certiorari denied. MR. JusTICE Dou GLAS would grant
certiorari. Reported below: 463 F. 2d 216.
No. 72-5399. TATUM v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. MR. JusTICE DouGLAS would
grant certiorari.
No. 72-5409. GEDARRO v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. MR. JUSTICE DouGLAS would
grant certiorari.
ORDERS 1029
409 U.S. November 20, 1972
No. 72-399. WILLIAMS v. HILLIARD. C. A. 6th Cir.
Motion of respondent for leave to proceed in forrna
pauper-is granted. Certiorari denied. Reported below:
465 F. 2d 1212.
No. 72-5073. ZEIGLER v. RrLEY, PENITENTIARY Su-
PERINTENDENT. Ct. App. N. Y. Certiorari denied. MR.
JUSTICE DouGLAS would deny the petition on ground of
mootness.
Rehearing Denied
No. 71-1109. NORRIS ET AL. v. JORDAN Er AL.; and
No. 71-1439. NORRIS ET AL. V. JORDAN ET AL., ante,
p. 811. Motion of appellants for specification of grounds
for finding want of jurisdiction denied. Petition for rehearing
of appellant Kerns denied.
No. 71-1666. Hurn ET AL. v. UNITED STATES, ante,
p. 891;
No. 71- 6487. MEDINA v. UNITED STATES, ante, p. 855;
No. 71-6673. GOLDEN v. HENDERSON, WARDEN, ante,
p. 861;
No. 71-6723. CHAIS-SHULMAN v. BANK OF AMERICA
TRUST No. 54212, ante, p. 864;
No. 71-6786. CROW v. EYMAN, WARDEN, ET AL., ante,
p. 867; and
No. 72-5133. BucHANAN v. TEXAS, ante, p. 814. Petitions
for rehearing denied.
No. 71-1680. LOUISVILLE & NASHVILLE RAILROAD Co.
ET AL. v. RODES, TRUSTEE IN BANKRUPTCY, ET AL., ante,
p. 893. Petition for rehearing denied. MR. JusTICE
PowELL took no part in the consideration or decision of
this petition.
No. 72-5101. SERZYSKO v. CHASE MANHATTAN BANK,
ante, p. 883. Motion to recuse MR. JUSTICE POWELL and
MR. JUSTICE REHNQUIST denied. Petition for rehearing
denied.
1030 OCTOBER TERM, 1972
November 22, 27, December 1, 4, 1972
NOVEMBER 22, 1972
Dismissal Under Rule 60
409U.S.
No. 71-1586. WooD v. GOODSON, JunGE. Cir. Ct. Ark.,
Miller County. Petition for writ of certiorari dismissed
under Rule 60 of the Rules of this Court.
NOVEMBER 27, 1972
Dismissal Under Rule 60
No. 72-536. THIRD BREVOORT CoRP. v. BOARD OF
STANDARDS AND APPEALS OF THE CITY OF NEW YORK
ET AL. Ct. App. N. Y. Petition for writ of certiorari
dismissed under Rule 60 of the Rules of this Court.
DECEMBER 1, 1972
Miscellaneous Order
No. A-555. ADAMS v. MAYLIN. Sup. Ct. La. Application
for stay of execution and enforcement of judgment
presented to MR. JUSTICE DouGLAS, and by him
referred to the Court, denied. MR. JUSTICE DouGLAS
would grant the application.
DECEMBER 4, 1972
Order Appointing Librarian
It is ordered that Edward G. Hudon, be, and he is
hereby, appointed Librarian of this Court in the place
of Henry Charles Hallam, Jr., retired.
Appeals Dismissed
No. 71-6658. ANDERSON ET AL. v. LOUISIANA. 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. MR.
JUSTICE DOUGLAS would note probable jurisdiction and
set case for oral argument. Reported below: 261 La.
244, 259 So. 2d 310.
ORDERS 1031
409 U.S. December 4, 1972
No. 72-484. FELLAND v. SCHAEFER ET AL. Appeal
from Sup. Ct. Minn. dismissed for want of substantial
federal question.
No. 72-516. O'CONNOR ET AL. v. NEw JERSEY ET AL.
Appeal from Super. Ct. N. J. dismissed for want of substantial
federal question. Reported below: See 117 N. J.
Super. 575, 285 A. 2d 270.
No. 72-570. WASHER ONE, INc., DBA IRISH WASHW0MAN,
ET AL. v. KENTUCKY EX REL. DIVISION OF UNEMPLOYMENT
INSURANCE. Appeal from Ct. App. Ky.
dismissed for want of substantial federal question. Reported
below: 482 S. W. 2d 590.
No. 72-546. FINGER LAKES RACING AssN., INC. v.
NEW YORK STATE OFF-TRACK PARI-MUTUEL BETTING
COMMISSION ET AL. Appeal from Ct. App. N. Y. dismissed
for want of substantial federal question. MR.
JusncE DOUGLAS would note probable jurisdiction and
set case for oral argument. Reported below: 30 N. Y. 2d
207, 282 N. E. 2d 592.
No. 72-5412. RuDERER v. UNITED STATES. Appeal
from C. A. 8th Cir. dismissed for want of jurisdiction.
Treating the papers whereon the appeal was taken as a
petition for writ of certiorari, certiorari denied. MR.
JUSTICE BLACKMUN took no part in the consideration
or decision of this case. Reported below: 462 F. 2d 897.
Certiorari D'ism'issed
No. 72-517. PENNSYLVANIA v. LINDE. Sup. Ct. Pa.
It appearing that respondent, a defendant in a state
criminal proceeding, died on November 2, 1972, the petition
for writ of certiorari to the Supreme Court of Pennsylvania,
Western District, is dismissed. Gersewitz v.
New York, 326 U.S. 687 (1945). Reported below: 448
Pa. 230, 293 A. 2d 62.
1032 OCTOBER TERM, 1972
December 4, 1972 409 U.S.
Certiorari Granted- Vacated and Remanded or Reversed.
(See also No. 71-6647, ante, p. 95; and No. 72-72,
ante, p. 100.)
No. 7~5206. ALEXANDER v. HENDERSON , WARDEN.
C. A. 5th Cir. Motion for leave to proceed in forma
pauperis and certiorari granted. Judgment vacated insofar
as it leaves undisturbed the death penalty imposed
and case remanded for further proceedings. See Stewart
v. Massachus etts, 408 U. S. 845 (1972). Reported below:
459 F. 2d 1391.
Miscellaneous Orders. (See also No. 71 - 6883, infra, p.
1051.)
No. 70-279. UNITED STATES ET AL. v. FLORIDA EAST
CoAsT RAILWAY Co. ET AL. Appeal from D. C. M. D.
Fla. [Probable jurisdiction noted, 407 U. S. 908.] Motion
of appellee Seaboard Coast Line Co. to permit two
counsel to argue on behalf of appellees granted. MR.
JUSTICE PowELL took no part in the consideration or
decision of this motion.
No. A- 552 (72-640). OREGON STATE ELKS AssN. ET
AL. v. FALKENSTEIN ET AL. D. C. Ore. Application for
stay of judgment presented to MR. JUSTICE DOUGLAS,
and by him referred to the Court, denied.
MR. JUSTICE DOUGLAS, dissenting.
A three-judge court has declared Oregon's tax exemption
to the Benevolent and Protective Order of Elks
unconstitutional because the Elks Lodge in question practices
racial discrimination in membership selection. The
Elks Lodge seeks to have the judgment of the three-judge
court stayed pending its appeal to this Court, not on the
merits, but from denial of its application to intervene. If
the Elks Lodge could intervene as a matter of right, the
order of the court denying intervention is generally appealable.
Sutphen Estates, Inc. v. United States, 342
ORDERS 1033
1032 DouGLAS, J., dissenting
U.S. 19, 20; Cascade Natural Gas Corp. v. El Paso Natural
Gas Co., 386 U. S. 129, 132-136. The ground of
intervention is the inadequacy of the representation of
their interests by the Oregon tax authorities in the
litigation.
The cases cited above were not appeals from a threejudge
court but appeals from a single district judge in
antitrust cases, where appeal lies to this Court from "the
final judgment." 32 Stat. 823, as amended, 15 U. S. C.
§ 29. Title 28 U. S. C. § 1253, however, gives the right
of appeal to this Court to "any party" where there has
been an order "granting or denying" an injunction by a
three-judge court.
Applicants were not parties; they are only seeking to
be made parties. Whether such persons are "any party"
within the meaning of§ 1253, so far as unsuccessful intervenors
are concerned, seems not to have been decided by
this Court. The Voting Rights Act of 1965, 79 Stat. 437,
42 U. S. C. § 1973 et seq., gives the District Court for the
District of Columbia, sitting in a panel of three, the right
to sit on and determine the issues in those cases. 42
U. S. C. § 1973b. And it is provided that the court is
constituted the same as the other three-judge courts, since
§ 1973b refers to 28 U. S. C. § 2284, under which the
three-judge court in the Oregon case was constituted.
And the Voting Rights Act of 1965 provides that "any
appeal shall lie to the Supreme Court." Ibid. It is
therefore arguable that "any appeal" under the Voting
Rights Act is restricted to those who are parties.
On November 6, 1972, we postponed the question of
jurisdiction to the merits in No. 72-129, NAACP v. New
York. That case raises the question whether the
NAACP, which was denied intervention by a three-judge
court sitting in a case under the Voting Rights Act of
1965, may appeal to this Court. That issue has not been
resolved.
1034 OCTOBER TERM, 1972
December 4, 1972 409 U.S.
Even if we were to decide that applicants are "any
party" within the meaning of § 1253, that section still
permits appeal to this Court only from the grant or denial
of an injunction, whereas the Voting Rights Act refers
to "any appeal." It would appear, then, that regardless
of our decision in NAACP v. New York, the appeal
in this case should have been taken to the Court of Appeals.
In that event, applicants also should apply to
that court for a stay.
Finally, applicants allege that they will lose their
right to appeal on the merits if the final judgment below
has not been stayed, even if they are successful on appeal
from the denial of intervention. That result,
however, is problematical. See Cascade Natural Gas
Corp. v. El Paso Natural Gas Co., supra, where we vacated
the judgment below upon reversing the order denying
intervention.
Since we decided to review NAACP v. New York, I
would grant the stay.
No. 71-1136. TILLMAN ET AL. V. WHEATON-HAVEN
RECREATION AssN., INC., ET AL. C. A. 4th Cir. [Certiorari
granted, 406 U. S. 916.] Motion of respondents
for leave to file supplemental memorandum after oral
argument granted.
No. 71-1178. GULF STATES UTILITIES Co. v. FEDERAL
POWER COMMISSION ET AL. C. A. D. C. Cir. [Certiorari
granted, 406 U. S. 956.] Motion of Public Service
Company of Indiana, Inc., for leave to participate in
oral argument and for additional time denied.
No. 71-1193. UNITED STATES v. ENMoNs ET AL. Appeal
from D. C. E. D. La. (Probable jurisdiction noted,
406 U.S. 916.] Motion of Chamber of Commerce of the
United States for leave to file untimely brief as amicus
curiae granted.
No. 71-1497. BECK v. CoNNECTICUT GENERAL LIFE
ORDERS 1035
409 U.S. December 4, 1972
INSURANCE Co., ante, p. 845. Respondent requested to
file r esponse to petition for rehearing within 30 days.
No. 71-1371. RosARIO ET AL. v. ROCKEFELLER, Gov-
ERNOR OF NEW YORK, ET AL. C. A. 2d Cir. [Certiorari
granted, 406 U. S. 957.] Motion of County Attorney for
Nassau County, New York, for leave to participate in
oral argument denied.
No. 71-1583. BROWN, SECRETARY OF STATE OF CALIFORNIA
v. CHOTE. Appeal from D. C. N. D. Cal. [Probable
jurisdiction noted, ante, p. 911.] It is ordered that
Philip Elman, Esquire, of Washington, D. C., a member
of the Bar of this Court, be, and he is hereby, appointed
to serve as counsel for appellee in this case.
No. 71-6272. RoBINSON v. NEIL, WARDEN. C. A. 6th
Cir. [Certiorari granted, 406 U. S. 916.] Motion of
counsel for petitioner to allow additional time and/ or
division of argument denied.
No. 71-6278. ALMEIDA-SANCHEZ v. UNITED STATES.
C. A. 9th Cir. [Certiorari granted, 406 U.S. 944.] Motion
of Gilbert Foerster for leave to file untimely brief as
amicus curiae granted.
No. 71-6316. GOOSBY ET AL. v. OssER ET AL. C. A.
3d Cir. [Certiorari granted, 408 U. S. 922.) Motion
of Elliot P. Platt and Joseph A. Torregrossa to permit
Ann I. Torregrossa to argue pro hac vice for petitioners
granted. Motion of the Attorney General of Pennsylvania
for divided argument granted and an additional 10
minutes allotted for that purpose. Reported below: 452
F. 2d 39.
No. 72-77. NORWOOD ET AL. v. HARRISON ET AL. Appeal
from D. C. N. D. Miss. [Probable jurisdiction
noted, ante, p. 839.] Motion of appellants for leave to
proceed further herein in forma pauperis granted.
No. 72-5388. ROBINSON V. WAINWRIGHT, CORREC1036
OCTOBER TERM, 1972
December 4, 1972 409 U.S.
TIONs DIRECTOR. Motion for leave to file petition for
writ of habeas corpus denied.
No. 71- 6356. DoE ET AL. v. McMILLAN ET AL. C. A.
D. C. Cir. [Certiorari granted, 408 U.S. 922.] Motion
of Legislative Respondents for further divided argument
granted and an additional five minutes for oral argument
allotted to respondents for that purpose.
No. 72-5377. MAGEE v. SuPERIOR CouRT OF SAN
FRANCISCO COUNTY, CALIFORNIA, ET AL. Motion for leave
to file petition for writ of mandamus and/ or prohibition
denied.
Probable Jurisdiction Noted
No. 72--493. VLANDIS v. KLINE ET AL. Appeal from
D. C. Conn. Motion of appellees for leave to proceed
in forma pauper'is granted. Probable jurisdiction noted.
Reported below: 346 F. Supp. 526.
No. 72-534. UNITED STATES DEPARTMENT OF AGRICULTURE
ET AL. v. MORENO ET AL. Appeal from D. C.
D. C. Motion of appeJlees for leave to proceed in f orma
pauperi-S granted. Probable jurisdiction noted. Reported
below: 345 F. Supp. 310.
Certiorari Granted
No. 72-212. CUPP, PENITENTIARY SUPERINTENDENT
v. MURPHY. C. A. 9th Cir. Certiorari granted. Reported
below: 461 F. 2d 1006.
No. 72-490. McDONNELL DouGLAS CORP. v. GREEN.
C. A. 8th Cir. Certiorari granted. Reported below: 463
F. 2d 337.
No. 72-419. PITTSBURGH PRESS Co. v. PITTSBURGH
COMMISSION ON HUMAN RELATIONS ET AL. Pa. Commw.
Ct. Motion of American Newspaper Publishers Assn.
for leave to file a brief as amicus cur-iae and certiorari
granted. Reported below: 4 Pa. Cornrow. 448, 287 A. 2d
161.
ORDERS 1037
409 u. s. December 4, 1972
No. 72-486. FEDERAL PowER COMMISSION v. MEMPHIS
LIGHT, GAS & WATER DIVISION ET AL.; and
No. 72-488. TEXAS GAS TRANSMISSION CORP. V. MEMPHIS
LIGHT, GAS & w ATER DIVISION ET AL. C. A. D. C.
Cir. Certiorari granted. Cases consolidated and a total
of one hour allotted for oral argument. Reported below:
149 U. S. App. D. C. 238, 462 F. 2d 853.
No. 72-5323. KEEBLE V. UNITED STATES, C. A. 8th
Cir. Motion for leave to proceed in forma pauperis
granted. Certiorari granted limited to Question 2 presented
by the petition which reads as follows: "Whether
the District Court's refusal to give a lesser included offense
instruction under 18 U. S. C. 1153 violated the
Fifth Amendment's due process guarantee." Reported
below: 459 F. 2d 757 and 762.
No. 72-5443. BARNES v. UNITED STATES. C. A. 9th
Cir. Motion for leave to proceed in forma pauperis and
certiorari granted. Reported below: 466 F. 2d 1361.
Certiorari Denied. (See also Nos. 71-6658 and 72-5412,
supra.)
No. 71-1465. ROSENTHAL V. ARKANSAS LOUISIANA
FINANCE CORP, Ct. App. Cal., 2d App. Dist. Certiorari
denied.
No. 71-1648. NAPOLITANO v. WARD, JuSTICE, SUPREME
CouRT OF ILLINOIS, ET AL. C. A. 7th Cir. Certiorari
denied. Reported below: 457 F. 2d 279.
No. 71-6694. WILSON v. DOWNIE, WARDEN. Sup.
Ct. Ga. Certiorari denied. Reported below: 228 Ga.
656, 187 S. E. 2d 293.
No. 72-472. SIMS, GUARDIAN, ET AL. v. lnAHO STATE
DEPARTMENT OF HIGHWAYS ET AL. Sup. Ct. Idaho.
Certiorari denied. Reported below: 94 Idaho 801, 498
P. 2d 1274.
1038 OCTOBER TERM, 1972
December 4, 1972 409 u. s.
No. 71-6777. HESTON v. OHIO. Sup. Ct. Ohio. Certiorari
denied. Reported below: 29 Ohio St. 2d 152, 280
N. E. 2d 376.
No. 72-111. BLOOM ET AL. v. FLORIDA. Dist. Ct. App.
Fla., 3d Dist. Certiorari denied. Reported below: 261
So. 2d 578.
No. 72-231. BrscurTTI v. FLORIDA. Dist. Ct. App.
Fla., 4th Dist. Certiorari denied. Reported below: 253
So. 2d 750.
No. 72-322. THE FLYING FOAM ET AL. v. lRoN ORE
TRANSPORT Co., LTD. C. A. 4th Cir. Certiorari denied.
Reported below: 461 F. 2d 779.
No. 72-422. BENEVENTO ET AL. v. UNITED STATES.
Ct. CI. Certiorari denied. Reported below: 198 Ct. Cl.
772, 461 F. 2d 1316.
No. 72-435. MELANCON v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 462 F. 2d 82.
No. 72-436. PATTERSON v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 465 F. 2d 360.
No. 72-442. LOWENTHAL ET AL. V. TcHEREPNIN ETAL.
C. A. 7th Cir. Certiorari denied. Reported below: 461
F. 2d 544.
No. 72-461. MonLA v. SouTHSIDE HOSPITAL ET AL.
Ct. App. Ariz. Certiorari denied. Reported below: 17
Ariz. App. 54, 495 P. 2d 494.
No. 72-462. FoRD MoToR Co. v. FORTUNATO. C. A. 2d
Cir. Certiorari denied. Reported below: 464 F. 2d 962.
No. 72-494. DELLA CROCE v. NEw YORK. App. Div.,
Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied.
No. 72-467. KAUFMAN v. DIVERSIFnw INDUSTRIES,
ORDERS 1039
409 u. s. December 4, 1972
INC. C. A. 2d Cir. Certiorari denied. Reported below:
460 F. 2d 1331.
No. 72-468. SHATTERPROOF GLAss CoRP. v. GUARDIAN
GLASS Co., INC., ET AL. C. A. 6th Cir. Certiorari denied.
Reported below: 462 F. 2d 1115.
No. 72-471. JOHNSON v. MARYLAND. Ct. Sp. App.
Md. Certiorari denied. Reported below: 14 Md. App.
721, 288 A. 2d 622.
No. 72-473. MAHONEY v. HODGSON, SECRETARY OF
LABOR. C. A. 1st Cir. Certiorari denied. Reported below:
460 F. 2d 326.
No. 72-477. STEPHENSON ET AL. v. LANDEGGER ET AL.
C. A. 2d Cir. Certiorari denied. Reported below: 464
F. 2d 133.
No. 72-479. GARREN ET AL. v. CITY OF WINSTONSALEM,
NoRTH CAROLINA. C. A. 4th Cir. Certiorari
denied. Reported below: 463 F. 2d 54.
No. 72-487. PR1sco v. NEw YORK. Ct. App. N. Y.
Certiorari denied. Reported below: 30 N. Y. 2d 808,
286 N. E. 2d 279.
No. 72-495. STIGLETS v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 463 F. 2d 242.
No. 72-496. BENSON v. NEWMAN ET AL. C. A. 2d
Cir. Certiorari denied. Reported below: 464 F. 2d 689.
No. 72-497. OKLAHOMA v. CHEROKEE NATION ET AL.
C. A. 10th Cir. Certiorari denied. Reported below: 461
F. 2d 674.
No. 72-508. CHARLES C. WILSON, INc., ET AL. v.
MEDICENTERS OF AMERICA, INC. C. A. 5th Cir. Certiorari
denied. Reported below: 461 F. 2d 847.
1040 OCTOBER TERM, 1972
December 4, 1972 409 U.S.
No. 72-499. TREMARCO v. NEw YORK. App. Div.,
Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied.
No. 72-505. PRICE v. UNITED STATES. C. A. 8th Cir.
Certiorari denied. Reported below: 464 F. 2d 1217.
No. 72-509. DrPAOLO v. NEw YORK. Ct. App. N. Y.
Certiorari denied. Reported below: 30 N. Y. 2d 962, 287
N. E. 2d 618.
No. 72-512. BoLT AssoCIATES, INC. v. WESTERN GEOPHYSICAL
COMPANY OF AMERICA ET AL. C. A. 2d Cir.
Certiorari denied. Reported below: 463 F. 2d 101.
No. 72-513. DEROSA v. NEw JERSEY. Sup. Ct. N. J.
Certiorari denied.
No. 72-518. ATWELL v. HARDY ET AL. C. A. 6th Cir.
Certiorari denied.
No. 72-519. AMERICAN MANNEX CORP. v. RozANDS,
SHERIFF, ET AL. C. A. 5th Cir. Certiorari denied. Reported
below: 462 F. 2d 688.
No. 72-526. PERREIRA v. DAMPSKIBSSELSKABET NoRDEN
A/S ET AL. C. A. 5th Cir. Certiorari denied. Reported
below: 461 F. 2d 848.
No. 72-527. POTOMAC SAND & GRAVEL Co. v. GovERNOR
OF MARYLAND ET AL. Ct. App. Md. Certiorari denied.
Reported below: 266 Md. 358, 293 A. 2d 241.
No. 72-530. LEVINE v. LONG ISLAND RAILROAD Co.
ET AL. Ct. App. N. Y. Certiorari denied.
No. 72-531. Dow CHEMICAL Co. v. DIXIE CARRIERS,
INC. C. A. 5th Cir. Certiorari denied. Reported below:
463 F. 2d 120.
No. 72-543. SMITH, ADMINISTRATRIX v. OLSEN &
UGELSTAD. C. A. 6th Cir. Certiorari denied. Reported
below: 459 F. 2d 915.
ORDERS 1041
409 U.S. December 4, 1972
No. 72-533. Lu'ITRELL v. UNITED STATES. C. A. 9th
Cir. Certiorari denied.
N 0. 72-544. BOARD OF EDUCATION OF OKLAHOMA CITY
PUBLIC SCHOOLS ET AL. v. DowELL. C. A. 10th Cir. Certiorari
denied. Reported below: 465 F. 2d 1012.
No. 72-547. LESKIW ET AL. v. LocAL 1470, INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS, AFLCIO-
CLC, ET AL. C. A. 3d Cir. Certiorari denied. Reported
below: 464 F. 2d 721.
No. 72-548. MICHAEL v. GoMES, WARDEN. C. A. 9th
Cir. Certiorari denied. Reported below: 462 F. 2d 626.
No. 72-551. DALY ET AL. v. McCARTHY, CLERK, Su-
PREME CouRT OF MINNESOTA, ET AL. Sup. Ct. Minn.
Certiorari denied. Reported below: 294 Minn. 351, 200
N. W. 2d 913.
No. 72-554. MIMS ET AL. V. YARBOROUGH ET AL. C. A.
4th Cir. Certiorari denied. Reported below: 461 F. 2d
1266.
No. 72-556. Sm HARVEY, INc., ET AL. v. LocAL 810,
STEEL, METALS, ALLOYS & HARDWARE FABRICATORS
& WAREHOUSEMEN, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, w AREHOUSEMEN & HELPERS
OF AMERICA, ET AL. C. A. 2d Cir. Certiorari denied.
Reported below: 460 F. 2d 1.
No. 72- 561. FLORIDA VANDERBILT DEVELOPMJrnT
CoRP., FORMERLY FLORIDA REALTY Co., ET AL. v. CHANDLER
LEASING DIVISION, PEPSICO SERVICE INDUSTRIES LEASING
CORP. C. A. 5th Cir. Certiorari denied. Reported below:
464 F. 2d 267.
No. 72-563. McKY v. UNION BANK & TRUST CoMPANY
OF HELENA, MONTANA, EXECUTOR. C. A. 7th Cir.
Certiorari denied. Reported below: 466 F. 2d 1035.
1042 OCTOBER TERM, 1972
December 4, 1972 409U.S.
No. 72-564. BOARD OF EDUCATION OF CENTRAL DISTRICT
No. 1 OF THE TOWN OF ADDISON ET AL. V. JAMES.
C. A. 2d Cir. ' Certiorari denied. Reported below: 461
F. 2d 566.
No. 72-565. BALDASSARO v. OHIO. Ct. App. Ohio,
Franklin County. Certiorari denied.
No. 72-572. ScHOENLING BREWING Co., INC. v. WuRz-
BURGER HoFBRAu AKTIENGESELLSCHAFT ET AL. C. A. 6th
Cir. Certiorari denied.
No. 72-573. MARSH v. CURRY. C. A. 6th Cir. Certiorari
denied. Reported below: 461 F. 2d 1003.
No. 72-576. ROBINSON ET AL. v. McCoRKLE, CoMMISSIONER,
DEPARTMENT OF INSTITUTIONS AND AGENCIES,
ET AL. C. A. 3d Cir. Certiorari denied. Reported below:
462 F. 2d 111.
No. 72-5030. WOLFE v. M1ss1SSJPPI. Sup. Ct. Miss.
Certiorari denied. Reported below: 260 So. 2d 425.
No. 72-5038. CHAVEZ ET AL. v. FRESHPICT FooDs,
INc., ET AL. C. A. 10th Cir. Certiorari denied. Reported
below: 456 F. 2d 890.
No. 72-5058. LOTZ v. KOLOSKI, WARDEN. C. A. 6th
Cir. Certiorari denied. Reported below: 460 F. 2d
1284.
No. 72-5082. WocHER v. Los ANGELES CITY ScHooL
DISTRICT ET AL. Ct. App. Cal., 2d App. Dist. Certiorari
denied.
No. 72-5089. TAHL v. O'CONNOR, SHERIFF. C. A.
9th Cir. Certiorari denied. Reported below: 460 F. 2d
1068.
No. 72-5100. MILLS v. MARYLAND. Ct. Sp. App, Md.
Certiorari denied.
ORDERS 1043
409 U.S. December 4, 1972
No. 72-5145. NuDo v. BRANTLEY, WARDEN, ET AL.
C. A. 7th Cir. Certiorari denied.
No. 72-5157. KYLE v. UNITED STATES. C. A. 4th Cir.
Certiorari denied. Reported below: 461 F. 2d 1265.
No. 72-5196. WATSON v. NORTH CAROLINA. Sup. Ct.
N. C. Certiorari denied. Reported below: 281 N. C.
221, 188 S. E. 2d 289.
No. 72-5204. TANNER v. TwoMEY, WARDEN, ET AL.
C. A. 7th Cir. Certiorari denied.
No. 72--5356. FORD v. CALIFORNIA STATE PERSONNEL
BOARD. Ct. App. Cal., 2d App. Dist. Certiorari denied.
No. 72-5383. WHITE v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 464 F. 2d
1037.
No. 72-5385. KOTRLIK ET AL. V. UNITED STATES.
C. A. 9th Cir. Certiorari denied. Reported below: 465
F. 2d 976.
No. 72--5387. McEACHERN v. UNITED STATES. C. A.
5th Cir. Certiorari denied. Reported below: 465 F. 2d
833.
No. 72--5392. MARTIN v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 462 F. 2d 60.
No. 72-5400. OVERTON v. UNITED STATES. C. A. 5th
Cir. Certiorari denied.
No. 72-5403. GARRETT v. NEw JERSEY. Super. Ct.
N. J. Certiorari denied.
No. 72-5408. JACKSON v. BOHLINGER. C. A. 1st Cir.
Certiorari denied.
No. 72-5415. WrLSON v. ScOTT, DISTRICT ATTORNEY
OF KENOSHA CouNTY, ET AL. C. A. 7th Cir. Certiorari
denied.
1044 OCTOBER TERM, 1972
December 4, 1972 409U. S.
No. 72-5416. FrnANIAN v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 465 F. 2d 755.
No. 72-5417. MURDOCK v. UNITED STATES. C. A.
D. C. Cir. Certiorari denied. Reported below: 152
U. S. App. D. C. 371, 471 F. 2d 923.
No. 72-5418. PERRY v. CALIFORNIA. Ct. App. Cal.,
3d App. Dist. Certiorari denied.
No. 72-5419. FLINCHUM v. CuNCHFIELD RAILROAD
Co. C. A. 6th Cir. Certiorari denied. Reported below:
460 F. 2d 252.
No. 72-5420. OLDEN v. WILSON, WARDEN, ET AL.
C. A. 9th Cir. Certiorari denied.
No. 72-5421. N1cH0Ls v. PAGE, WARDEN, C. A. 10th
Cir. Certiorari denied.
No. 72-5422. DAILEY v. UNITED STATES. C. A. 10th
Cir. Certiorari denied.
No. 72-5423. TRABER v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 466 F. 2d 483.
No. 72-5424. TAYLOR v. UNITED STATES. C. A. 8th
Cir. Certiorari denied.
No. 72-5425. CooNEY v. UNITED STATES. C. A. 3d
Cir. Certiorari denied. Reported below: 464 F. 2d 497.
No. 72-5427. CARVER v. OHIO. Sup. Ct. Ohio. Certiorari
denied. Reported below: 30 Ohio. St. 2d 280,
285 N. E. 2d 26.
No. 72-5428. STARNES v. HARRIS, WARDEN, ET AL.
C. A. 10th Cir. Certiorari denied.
No. 72-5430. FLETCHER V. BRIERLEY, CORRECTIONAL
SUPERINTENDENT. C. A. 3d Cir. Certiorari denied.
Reported below: 460 F. 2d 444.
ORDERS 1045
409U. S. December 4, 1972
No. 72-5429. GRAYTON v. CONNECTICUT. Sup. Ct.
Conn. Certiorari denied.
No. 72-5433. STOCK v. MARYLAND. C. A. 4th Cir.
Certiorari denied.
No. 72-5435. HuRsT, AKA CLOE v. UNITED STATES.
C. A. 10th Cir. Certiorari denied.
No. 72-5436. LEwrs v. MANCUSI, CoRREcrrnNAL Su-
PERINTENDENT. C. A. 2d Cir. Certiorari denied.
No. 72-5438. WARNER v. UNITED STATES PATENT OFFICE
ET AL. C. A. D. C. Cir. Certiorari denied.
No. 72-5439. EPPERSON v. CALIFORNIA. Ct. App.
Cal., 2d App. Dist. Certiorari denied.
No. 72-5440. WooDs v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 468 F. 2d 1024.
No. 72-5444. JACKSON v. FOLLETTE, WARDEN. C. A.
2d Cir. Certiorari denied. Reported below: 462 F. 2d
1041.
No. 72-5445. HURD v. BAILEY ET AL. C. A. 1st Cir.
Certiorari denied.
No. 72-5446. NELSON v. ZELKER, CORRECTIONAL Su-
PERINTENDENT. C. A. 2d Cir. Certiorari denied. Reported
below: 465 F. 2d 1121.
No. 72-5447. TYLER v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 466 F. 2d 920.
No. 72-5448. WADDELL v. ALLDREDGE, WARDEN. C. A.
5th Cir. Certiorari denied.
No. 72-5449. RATLIFF v. CoINER, WARDEN. C. A.
4th Cir. Certiorari denied.
No. 72-5450. SANDERS v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 464 F. 2d 1067.
1046 OCTOBER TERM, 1972
December 4, 1972 409 U.S.
No. 72-5452. DARAS v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 462 F. 2d 1361.
No. 72-5456. FLORES v. EMPLOYERS' FrnE INSURANCE
COMPANY OF SAN ANTONIO, TEXAS. C. A. 5th Cir.
Certiorari denied. Reported below: 464 F. 2d 1276.
No. 72-5457. STROLLO v. ALLDREDGE, WARDEN. C. A.
3d Cir. Certiorari denied. Reported below: 463 F. 2d
1194.
No. 72-5461. ROGERS v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 466 F. 2d 513.
No. 72-5462. LEE v. TEXAS. C. A. 5th Cir. Certiorari
denied.
No. 72-5463. HILL v. OHIO. Ct. App. Ohio, Summit
County. Certiorari denied.
No. 72-5465. BERRYHILL v. UNITED STATES. C. A.
8th Cir. Certiorari denied. Reported below: 466 F. 2d
621.
No. 72-5466. LEwrs v. NoRrH CAROLINA. Sup. Ct.
N. C. Certiorari denied. Reported below: 281 N. C.
564, 189 S. E. 2d 216.
No. 71-1634. ZEMLIAK v. CALIFORNIA. Ct. App. Cal.,
2d App. Dist. Certiorari denied. MR. JusTICE DOUGLAS
would grant certiorari.
No. 71-6929. KOCHEL v. MARYLAND. C. A. 4th Cir.
Certiorari denied. MR. JUSTICE DOUGLAS would grant
certiorari.
No. 72- 164. HONEYCUTT v. NORTH CAROLINA. Gen.
Ct. Justice, Super. Ct. Div., Cumberland County, N. C.
Certiorari denied. MR. JusTICE DouGLAs would grant
certiorari.
'
ORDERS 1047
409 u. s. December 4, 1972
No. 72-453. ROGER v. UNITED STATES. C. A. 5th Cir.
Certiorari denied. MR. JUSTICE DOUGLAS would grant
certiorari. Reported below: 465 F. 2d 996.
No. 72-469. BRADFORD TOWNSHIP ET AL. v. ILLINOIS
STATE TOLL HIGHWAY AUTHORITY ET AL. C. A. 7th Cir.
Certiorari denied. MR. JusTICE DouGLAS would grant
certiorari. Reported below: 463 F. 2d 537.
No. 72-476. BALDIVID v. UNITED STATES. C. A. 4th
Cir. Certiorari denied. MR. JUSTICE DouGLAS would
grant certiorari. Reported below: 465 F. 2d 1277.
No. 72-500. DAVIS v. OHIO. Sup. Ct. Ohio. Certiorari
denied. MR. JUSTICE DouGLAS would grant certiorari.
Reported below: 30 Ohio St. 2d 312, 285 N. E.
2d 38.
No. 72-504. SLONE v. SUPREME CouRT OF OHIO. Sup.
Ct. Ohio. Certiorari denied. MR. JusTICE DouGLAS
would grant certiorari.
No. 72-553. IN RE SCHWARZ. Sup. Ct. Ill. Certiorari
denied. MR. JusTICE DouGLAS would grant certiorari.
Reported below: 51 Ill. 2d 334, 282 N. E. 2d
689.
No. 72-5053. McCLENAN v. CALIFORNIA. Sup. Ct.
Cal. Certiorari denied. MR. JUSTICE DouGLAS would
grant certiorari.
No. 72-5120. KwITEK ET AL. v. WrscoNSIN. Sup. Ct.
Wis. Certiorari denied. MR. JUSTICE DOUGLAS would
grant certiorari. Reported below: 53 Wis. 2d 563, 193
N. W. 2d 682.
No. 72-5203. CRADLE v. NORTH CAROLINA. Sup. Ct.
N. C. Certiorari denied. MR. JUSTICE DouGLAS would
grant certiorari. Reported below: 281 N. C. 198, 188
S. E. 2d 296.
1048 OCTOBER TERM, 1972
December 4, 1972 409U. S.
No. 72-5386. VINES v. UNITED STATES. C. A. 10th
Cir. Certiorari denied. MR. JUSTICE DOUGLAS would
grant certiorari.
No. 72-5407. KEPHART v. UNITED STATES; and
No. 72-5459. ROTH v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. MR. JUSTICE DOUGLAS would
grant certiorari. Reported below: 466 F. 2d 1111.
No. 72-5458. GRIFFITH v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. MR. JusTICE DouGLAS would
grant certiorari.
No. 71-1699. GODWIN v. Drns, SECRETARY OF STATE
OF TEXAS. C. A. 5th Cir. Motion to dispense with
printing petition granted. Certiorari denied.
No. 72-171. STEWARD v. VIRGINIA. Sup. Ct. Va.
Motion to dispense with printing petition granted. Certiorari
denied.
No. 72-426. COREY V. ATTORNEY GENERAL OF THE
UNITED STATES ET AL. C. A. D. C. Cir. Motion to dispense
with printing petition granted. Certiorari denied.
No. 72-463. SILVER v. CASTLE MEMORIAL HOSPITAL
ET AL. Sup. Ct. Hawaii. Motion to dispense with printing
petition granted. Certiorari denied. Reported below:
53 Haw. 475,497 P. 2d 564.
No. 72-464. ALFAR DAIRY, INC. v. PALM BEACH
COUNTY BOARD OF PUBLIC INSTRUCTION. C. A. 5th Cir.
Motion to dispense with printing petition granted. Certiorari
denied. Reported below: 458 F. 2d 1258.
No. 72- 475. AusTIN v. UNITED STATES;
No. 72-5451. SAVIDGE v. UNITED STATES; and
No. 72-5476. BEEMAN v. UNITED STATES. C. A. 10th
Cir. Certiorari denied. MR. JUSTICE PowELL would
grant certiorari. Reported below: 462 F. 2d 724.
ORDERS 1049
409 U.S. December 4, 1972
No. 72-520. TILLMAN v. NEw JERSEY. Super. Ct.
N. J. Motion to dispense with printing petition granted.
Certiorari denied.
No. 72-478. PERINI, CORRECTIONAL SUPERINTENDENT
v. JOHNS. C. A. 6th Cir. Motions to dispense with
printing petition and respondent's brief granted. Certiorari
denied. Reported below: 462 F. 2d 1308.
No. 72-489. DAUER ET AL. v. CONLEY ET AL. C. A.
3d Cir. Motion of respondents for leave to proceed in
forma paupens granted. Certiorari denied. Reported
below: 463 F. 2d 63.
No. 72-571. ZELKER, CORRECTIONAL SUPERINTENDENT
v. LOPEZ. C. A. 2d Cir. Motion of respondent for leave
to proceed in forma pauperis granted. Certiorari denied.
No. 72-507. GouDIE v. SEARS, ROEBUCK & Co. ET AL.
Ct. App. D. C. Motion to dispense with printing portions
of appendix granted. Certiorari denied. MR. Jus-
TICE POWELL took no part in the consideration or decision
of this motion and petition. Reported below: 290 A. 2d
826.
Rehearing Denied
No. 71-1403. FORBES LEASING & FINANCE CORP. V.
LEBOWITZ, ante, p. 843;
No. 71-1408. AERO MAYFLOWER TRANSIT Co., lNc.,
ET AL. v. UNITED STATES ET AL., ante, p. 905;
No. 71-1419. Hu'ITER ET ux. v. KoRZEN, ante, p. 905;
No. 71-1519. BROWN ET AL. v. SCOTT, ante, p. 846;
No. 71-1547. C & H TRANSPORTATION Co., lNc., ET AL.
v. INTERSTATE COMMERCE COMMISSION; and
No. 72-149. UNITED STATES v. INTERSTATE COMMERCE
COMMISSION (INTERNATIONAL TRANSPORT, INC.,
CASE), ante, p. 904. Petitions for rehearing denied.
1050 OCTOBER TERM, 1972
December 4, 1972 409 u. s.
o. 71-1573. PELTZMAN V. NATIONAL LABOR RELATIONS
BOARD, ante, p. 887;
No. 71 - 1614. LOWRY ET AL. v. rNITED SrATES, ante,
p. 887;
No. 71-1640. BANK OF AMERICA NATIONAL TRUST &
SAVINGS AssN. v. UNITED STATES, ante, p. 850;
No. 71- 1651. NEWBERN , ExECP TRix, ET AL. v. ALABAMA,
ante, p. 813;
No. 71-6329. ESTES V . NORTHCROSS E T AL., ante, p.
853;
No. 71-6431. NASH v. TEXAS, ante, p. 887;
No. 71 - 6464. Ml' RRAY v. CITY OF CINCINNATI, ante,
p. 855;
No. 71-6495. CALDRONE v. GAFFNEY, WARDEN, ante,
p. 855;
No. 71-6518. MARTINEZ v. MANCUSI, CORRECTIONAL
SUPERINTENDENT, ante, p. 959;
No. 71- 6606. WETTEROFF ET AL. v. GRAND, TRUSTEE,
ante, p. 934;
No. 71-6643. PICKING V. YATES ET AL., ante, p. 812;
No. 71-6677. ALLARD v. UNITED STATES, ante, p. 861;
No. 71 - 6680. FERGl' SON V. VIRGINIA, ante, p. 861;
No. 71- 6717. ROBINSON v. UNITED STATES, ante, p.
863;
No. 71 - 6873. NEELY v. FIELD, U. S. DISTRICT JUDGE,
ET AL. , ante, p. 871;
No. 71-6875. MORAN v. TUITION PLAN OF NEw
HAMPSHIRE, INC., ante, p. 872;
No. 72- 134. McCLURE v. SALVATION ARMY, ante, p.
896;
No. 72-148. ROTHMAN ET AL. v. UNITED STATES,
ante, p. 956; and
No. 72-150. UNITED STATES v. INTERSTATE CoMMERCE
COMMISSION ( AcE DORAN HAl' LING Co. CASE) ,
ante, p. 904. Petitions for rehearing denied.
ORDERS 1051
409 U.S. December 4, 11, 1972
No. 72-152. MING v. UNITED STATES, ante, p. 915;
No. 72-156. ZARATE v. UNITED STATES, ante, p. 915;
No. 72-5011. HOHENSEE v. SCIENTIFIC LIVING, INc.,
ET AL., ante, p. 880;
No. 72-5065. CRAWFORD V. MISSOURI, ante, p. 811;
and
No. 72-5158. SIKES ET AL. v. UNITED STATES, ante,
p. 951. Petitions for rehearing denied.
No. 71-1555. JOHNSTON ET ux. V. BYRD, ante, p. 847;
No. 71-1633. LARSEN v. Arn CALIFORNIA, ante, p. 895;
and
No. 71-1655. FALKNER v. SUPREME CouRT OF FLORIDA
ET AL., ante, p. 823. Motions to dispense with printing
petitions for rehearing granted. Petitions for rehearing
denied.
No. 71-6754. VAN PELT v. DICOSIMO, ante, p. 865;
No. 72-2. PALMER ET AL. v. UNITED STATES, ante, p.
874; and
No. 72-5109. HILL V. GAUVIN ET AL., ante, p. 918.
Motions for leave to file petitions for rehearing denied.
No. 71-6883. FAIR V. HODGES ET AL., ante, p. 872.
Application to enjoin respondents from hearing petitioner's
future cases, presented to MR. Jusl'ICE DOUGLAS, and
by him referred to the Court, denied. MR. JUSTICE
DouGLAS would grant the application. Petition for rehearing
denied.
DECEMBER 11, 1972
Affirmed on Appeal
No. 72-506. ROBINSON v. McCORKLE, COMMISSIONER,
DEPARTMENT OF INSTITUTIONS AND AGENCIES, ET AL.
Affirmed on appeal from D. C. N. J.
1052 OCTOBER TERM, 1972
December 11, 1972 409 U.S.
Appeals Dismissed
No. 72-583. BEARDEN V. METROPOLITAN DADE COUNTY.
Appeal from Sup. Ct. Fla. dismissed for want of substantial
federal question. Reported below: 265 So. 2d 48.
No. 72-585. PEPPER & TANNER, !NG. V. INTERNATIONAL
EQUITY CORP. Appeal from Super. Ct. Pa. dismissed
for want of substantial federal question. Reported
below: 222 Pa. Super. ll8, 293 A. 2d 108.
No. 72--588. LOYAL ORDER OF MoosE, LODGE No. 107
V. PENNSYLVANIA HUMAN RELATIONS COMMISSION. Appeal
from Sup. Ct. Pa. dismissed for want of substantial
federal question. Reported below: 448 Pa. 451, 294
A. 2d 594.
No. 72--589. KRAUSE, ADMINISTRATOR v. OHIO. Appeal
from Sup. Ct. Ohio dismissed for want of substantial
federal question. Reported below: 31 Ohio St. 2d 132,
285 N. E. 2d 736.
No. 72-600. CITIES SERVICE GAs Co. v. WESTERN
NATURAL GAS Co. ET AL. Appeal from Sup. Ct. Okla.
dismissed. Treating the papers whereon the appeal was
taken as a petition for writ of certiorari, certiorari denied.
Reported below: 507 P. 2d 1236.
No. 72-5529. IN RE NEGRON. Appeal from Ct. App.
N. Y. dismissed for want of substantial federal question.
MR. JusTICE DouGLAS would note probable jurisdiction
and set case for oral argument.
Vacated and Remanded on Appeal
No. 72--582. LAVINE, COMMISSIONER, DEPARTMENT OF
SOCIAL SERVICES OF NEW y ORK v. SHIRLEY ET AL. Appeal
from D. C. N. D. N. Y. Judgment vacated and
case remanded for further consideration in light of Chapter
687 of the 1972 Laws of New York (N. Y. Soc. Serv.
Law§ 101-a, as amended). Diffenderfer v. Central Baptist
Church, 404 U. S. 412 (1972).
ORDERS 1053
409 u. s. December 11, 1972
Reversed on Appeal
No. 72-5401. CASON v. CITY OF COLUMBUS. Appeal
from Sup. Ct. Ohio. Motion for leave to proceed in
forma pauperis granted. Judgment reversed. Gooding
v. Wilson, 405 U. S. 518 (1972).
MR. JUSTICE POWELL, concurring in the result.
As the court below applied a per se rule, apparently
without regard to the circumstances under which the
words were used, I join in the reversal. See my dissenting
opinion in Rosenfeld v. New Jersey, 408 U. S. 901, 903
( 1972); Lewis v. City of New Orleans, 408 U. S. 913
(1972), and Brown v. Oklahoma, 408 U. S. 914 (1972)
(both concurring in result).
THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, and MR.
JUSTICE REHNQUIST dissent for the reasons expressed in
the several opinions in Rosen! eld v. New Jersey, 408
U. S. 901 (1972); Lewis v. City of New Orleans, 408
U.S. 913 (1972); and Brown v. Oklahoma, 408 U.S. 914
(1972).
Certiorari Granted-Affirmed. (See No. 72-376, ante,
p. 232.)
Certiorari Granted-Vawted and Remanded
No. 72-217. ALLMAN v. MANNS. C. A. 4th Cir.
Motion of respondent for leave to proceed in forma
pauperis and certiorari granted. Judgment vacated and
case remanded for further consideration in light of
Colten v. Kentucky, 407 U. S. 104 (1972).
Miscellaneous Orders
No. A-433 (72-762). REYES v. NEW YORK. Ct. App.
N. Y. Application for bail presented to Ma. JusTICE
DouGLAS, and by him ref erred to the Court, denied. Reported
below: 30 N. Y. 2d 881, 286 N. E. 2d 917.
No. A-556. BERBLING, STATE'S ATTORNEY OF ALEXANDER
COUNTY, ET AL. V. LITTLETON ET AL. C. A. 7th
1054 OCTOBER TERM, 1972
December 11, 1972 409 U.S.
Cir. Application for stay of judgment presented to
MR. JUSTICE REHNQUIST, and by him referred to the
Court, granted insofar as it applies to applicants O'Shea
and Spomer pending the timely filing of a petition for
writ of certiorari. Should such a petition be so timely
filed, this order is to continue pending this Court's action
on the petition. If the petition for writ of certiorari is
denied, this order is to terminate automatically. In the
event the petition for writ of certiorari is granted, this
order is to remain in effect pending the sending down of
the judgment of this Court. Reported below: 468 F. 2d
389.
No. A-580 (72-804). RuCKELSHAUS, ADMINISTRATOR,
ENVIRONMENTAL PROTECTION AGENCY v. SIERRA CLUB
ET AL. C. A. D. C. Cir. Application for stay presented
to THE CHIEF JusTICE, and by him referred to the Court,
granted pending this Court's action on the petition for
writ of certiorari. Should the petition for writ of certiorari
be denied, this order is to terminate automatically.
In the event the petition for writ of certiorari is granted,
this order is to remain in effect pending the sending down
of the judgment of this Court. MR. JUSTICE DouGLAS
would deny the stay.
No. A-600. HAMPTON, CHAIRMAN, U.S. CIVIL SERVICE
COMMISSION, ET AL. V. FITZGERALD ET AL. C. A. D. C.
Cir. Application for extension of time to file petition
for writ of certiorari presented to THE CHIEF JUSTICE,
and by him referred to the Court, granted. It is ordered
that the time for filing such petition be, and the same is
hereby, extended to and including January 13, 1973.
Reported below: 152 U. S. App. D. C. 1, 467 F. 2d 755.
No. 71-1193. UNITED STATES V. ENMONS ET AL. Appeal
from D. C. E. D. La. [Probable jurisdiction noted,
406 U. S. 916.] Motion of appellees for leave to file
supplemental brief after argument granted.
ORDERS 1055
409 U.S. December 11, 1972
No. A-605. HAMPTON, CHAIRMAN, U. S. CIVIL SERVICE
COMMISSION, ET AL. V. FITZGERALD ET AL. C. A.
D. C. Cir. Application for stay of mandate presented
to THE CHIEF Jusr1cE, and by him referred to the Court,
granted pending timely filing of petition for writ of certiorari.
Should such petition be so timely filed, this
order is to continue pending this Court's action on the
petition. If the petition for writ of certiorari is denied,
this order is to terminate automatically. In the event
the petition for writ of certiorari is granted, this order
is to remain in effect pending the sending down of the
judgment of this Court. Reported below: 152 U. S.
App. D. C. 1,467 F. 2d 755.
No. 71-1442. COLGROVE V. BATTIN, U. S. DISTRICT
JUDGE. C. A. 9th Cir. [Certiorari granted, ante, p.
841.] Motion of Nooter Corp. for leave to file a brief
as amicus curiae granted.
No. 72-11. PALMORE v. UNITED STATES. Appeal
from Ct. App. D. C. [Probable jurisdiction postponed,
ante, p. 840.] Motion of appellee for additional time
for oral argument granted and 15 minutes allotted for
that purpose. Appellant also allotted 15 additional minutes
for oral argument.
No. 72-239. CHILDS v. UNITED STATES, ante, p. 966.
Respondent requested to file a response to petition for
rehearing within 30 days.
No. 72--578. Bi:;BLICK v. UNITED STATES. C. A. 7th
Cir. Motion of Chicago Bar Assn. et al. for leave to
file a brief as amici curiae granted.
No. 72-5162. BRADEN v. CAPPS, WARDEN. Motion
for leave to file petition for writ of habeas corpus denied.
No. 72-5493. STRODE v. MrsSISSIPPI. Motion for
leave to file petition for writ of mandamus denied.
1056 OCTOBER TERril, 1972
December 11, 1972 409 U.S.
No. A-603. SCHLESINGER v. LAIRD, SECRETARY OF DEFENSE,
ET AL. C. A. 7th Cir. Application for stay presented
to MR. JusTICE DOUGLAS, and by him referred to
the Court, denied.
MR. JusTICE DOUGLAS, dissenting.
Applicant, a lieutenant in the United States Army
Reserve, has asked this Court for a stay of the order
requiring him to report to Fort Sill, Oklahoma, for active
duty for training, concededly a part of his military obligation.
He claims, however, that he is entitled to a
medical discharge.
Applicant was examined by three physicians at the
Great Lakes Naval Training Center in Illinois. Each
was a specialist in the area in which he conducted his
examination. Purporting to follow Army regulations
governing the standards for retention in the Army, one
determined that applicant has a disqualifying foot condition
and another that he has a disqualifying allergic
condition. The third, a psychiatrist, found that applicant's
psychiatric condition, if further documented,
would render him ineligible for service. Despite these
findings, the Surgeon General, exercising his ex parte discretion
pursuant to Army Regulation 40--501, determined
that applicant is qualified for active duty. The only
substantiation for that decision submitted to the Court
is a letter written by the Surgeon General to Senator
Percy, in which he stated that applicant's problems are
not of sufficient severity to render him unfit under Army
regulations.1
Applicant brought an action in the United States District
Court for the Northern District of Illinois, challenging
the decision of the Surgeon General on the grounds
1 The Surgeon General a.pparently considered earlier phys.ical
examinations of applicant in addition to those conducted at the
Great Lakes Naval Training Center.
ORDERS 1057
1056 DOUGLAS, J., dissenting
that it constituted an abuse of discretion and was without
a basis in fact. While this action was pending, applicant
was ordered to active duty for training.2 Subsequently,
the District Court granted summary judgment for the
Government, finding that the Surgeon General's action
was not arbitrary or capricious. Applicant's appeal from
that judgment is now pending before the United States
Court of Appeals for the Seventh Circuit, which refused
to stay his order to active duty pending appeal.3
Applicant does not challenge the validity of the regulation
allowing the Surgeon General to review the decisions
of examining physicians. And, indeed, it may
be that applicant is in fact qualified for retention and
that the Surgeon General has not abused his discretion.
The difficulty I have with the procedure afforded applicant
is that the record does not disclose any basis for
the Surgeon General's action. When the District Court
concluded that the decision was not arbitrary or capricious
and granted summary judgment for the Government,
it in effect refused to inquire into the basis for
overriding the judgment of the specialists who had examined
applicant. This amounts to a conclusion that the
Surgeon General has unreviewable discretion.
However one views the merits of military service, there
can be no question that it results in very real and severe
restrictions on personal liberty. We have always demanded
that such restraints, at a minimum, accord with
accepted notions of procedural due process. In SEC v.
Chenery Corp., 318 U. S. 80, 94, we stated: "The Commission's
action cannot be upheld merely because findings
2 Tho order to active duty was postponed pending decision by the
District Court. We are told that applicant subsequently was scheduled
to report for active duty on December 6 or 7.
3 Applicant has requested a stay pending his petition to this
Court for a writ of certiorari to the Seventh Circuit to review the
order denying a stay pending appeal.
1058 OCTOBER TERM, 1972
December 11, 1972 409 U.S.
might have been made and considerations disclosed which
would justify its order as an appropriate safeguard for
the interests protected by the Act. There must be such
a responsible finding. . . . For the courts cannot exercise
their duty of review unless they are advised of the considerations
underlying the action under review. . . .
[T]he orderly functioning of the process of review requires
that the grounds upon which the administrative
agency acted be clearly disclosed and adequately sustained."
Certainly, no less protection should be afforded
a person who is subjected to significant restraints on his
personal liberty as a result of administrative action.
Since I conclude that the decision of the Surgeon General
failed to comport with this basic requirement of
procedural due process, I would grant the stay requested.
No. 72-5474. MORTON v. UNITED STATES ET AL. Motion
for leave to file petition for writ of prohibition and/or
mandamus denied.
Probable Jurisdiction Noted
No. 71-1639. BROADRICK ET AL. v. OKLAHOMA ET AL.
Appeal from D. C. W. D. Okla. Probable jurisdiction
noted. Reported below: 338 F. Supp. 711.
No. 72-402. UNITED STATES v. GENERAL DYNAMICS
CORP. ET AL. Appeal from D. C. N. D. Ill. Probable
jurisdiction noted. Reported below: 341 F. Supp. 534.
No. 72-634. UNITED STATES CrvIL SERVICE COMMISSION
ET AL. V . NATIONAL ASSOCIATION OF LETTER CARRIERS,
AFL--CIO, ET AL. Appeal from D. C. D. C. Probable
jurisdiction noted. Reported below: 346 F. Supp.
578.
Certiorari Granted
No. 71-1647. FEDERAL MARITIME COMMISSION V.
SEATRAIN LINES, INC., ET AL. C. A. D. C. Cir. Certiorari
granted. Reported below: 148 U. S. App. D. C. 424,
460 F. 2d 932.
ORDERS 1059
409 U.S. December 11, 1972
No. 72-586. CADY, WARDEN v. DOMBROWSKI. C. A.
7th Cir. Motion of respondent for leave to proceed in
forma pauperis and certiorari granted. Reported below:
471 F. 2d 280.
Certiorari Denied. (See also No. 72-600, supra.)
No. 71-6670. RICHBURG v. LEEKE, CORRECTIONS DIRECTOR.
C. A. 4th Cir. Certiorari denied.
No. 71-6926. SPLINTER v. HANRAHAN, STATE'S ATTORNEY
OF CooK COUNTY. Sup. Ct. Ill. Certiorari denied.
Reported below: 52 Ill. 2d 70, 285 N. E. 2d 129.
No. 72-220. PHELPS DoDGE CoRP. v. AFL-CIO JoINT
NEGOTIATING COMMITTEE FOR PHELPS DODGE ET AL.; and
No. 72-359. NATIONAL LABOR RELATIONS BOARD v.
AFL-CIO JOINT NEGOTIATING COMMITTEE FOR PHELPS
DODGE ET AL. C. A. 3d Cir. Certiorari denied. Reported
below: 470 F. 2d 722.
No. 72-317. GoMEZ v. SUPERIOR CouRT OF CALIFORNIA,
CouNTY OF SAN DIEGO. Ct. App. Cal., 4th App.
Dist. Certiorari denied.
No. 72-332. FIOCCONI ET AL. V. ATIORNEY GENERAL
OF THE UNITED STATES ET AL. C. A. 2d Cir. Certiorari
denied. Reported below: 462 F. 2d 475.
No. 72-491. BRACH v. UNITED STATES; and
No. 72-492. FRIED v. UNITED STATES. C. A. 2d Cir.
Certiorari denied. Reported below: 464 F. 2d 983.
No. 72-503. HARRIS TRUST & SAVINGS BANK ET AL.
v. UNITED STATES. C. A. 7th Cir. Certiorari denied.
Reported below: 470 F. 2d 6.
No. 72-522. ROGERS ET AL. V. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION. C. A. 5th Cir. Certiorari
denied. Reported below: 470 F . 2d 965.
1060 OCTOBER TERM, 1972
December 11, 1972 409 U.S.
No. 72-574. SELLARS v. COMMITTEE ON ADMISSIONS
OF THE DISTRICT OF COLUMBIA COURT OF APPEALS. Ct.
App. D. C. Certiorari denied.
No. 72-577. CAWY BOTTLING Co., !Nc. v. MALTINA
CORP. ET AL. C. A. 5th Cir. Certiorari denied. Reported
below: 462 F. 2d 1021.
No. 72-587. HOLLAND-AMERICA LINE V. FOREIGN
STUDY LEAGUE. Sup. Ct. Utah. Certiorari denied. Reported
below: 27 Utah 2d 442, 497 P. 2d 244.
No. 72-596. ADAMS ET AL. V. EVANSVILLE-VANDERBURGH
SCHOOL CORP. ET AL. C. A. 7th Cir. Certiorari
denied.
No. 72- 597. McDANIEL v. COLORADO. Sup. Ct. Colo.
Certiorari denied. Reported below: - Colo. - , 499
P. 2d 613.
No. 72-602. HARSH BUILDING Co. ET AL. v. BIALAC
ET AL. C. A. 9th Cir. Certiorari denied. Reported below:
463 F. 2d 1185.
No. 72-605. BucKELEW v. ALABAMA. Ct. Crim. App.
Ala. Certiorari denied. Reported below: 48 Ala. App.
411, 265 So. 2d 195.
No. 72-607. GAILLOT v. UNITED STATES DEPARTMENT
OF HEALTH, EDUCATION, AND WELFARE. C. A. 5th Cir.
Certiorari denied. Reported below : 464 F. 2d 598.
No. 72-614. SHAPS v. UNION COMMERCE BANK. Ct.
Civ. App. Tex., 9th Sup. Jud. Dist. Certiorari denied.
Reported below: 476 S. W. 2d 466.
No. 72-5175. MEYER v. WEIL ET AL. C. A. 7th Cir.
Certiorari denied. Reported below: 458 F. 2d 1068.
No. 72-5473. SADLER v. NORTH CAROLINA. C. A.
4th Cir. Certiorari denied.
ORDERS 1061
409 U.S. December 11, 1972
No. 72-626. UNIVERSITY OF ILLINOIS FOUNDATION V.
BLONDER-TONGUE LABORATORIES, INc. C. A. 7th Cir.
Certiorari denied. Reported below: 465 F. 2d 380.
No. 72-639. SOUTHERN PACIFIC TRANSPORTATION Co.
v. SUTTON'S STEEL & SUPPLY, INC., ET AL. C. A. 5th Cir.
Certiorari denied.
No. 72-652. BROWN, EXECUTOR v. UNITED STATES.
C. A. 5th Cir. Certiorari denied. Reported below: 464
F. 2d 512.
No. 72-688. WHITE MOTOR CORP. ET AL. v. STEWART
ET AL. C. A. 10th Cir. Certiorari denied. Reported
below: 465 F. 2d 1085.
No. 72-5075. MYERS v. WASHINGTON. Ct. App.
Wash. Certiorari denied. Reported below: 6 Wash.
App. 557, 494 P. 2d 1015.
No. 72-5095. McINNIS v. CALIFORNIA. Sup. Ct. Cal.
Certiorari denied. Reported below: 6 Cal. 3d 821, 494
P. 2d 690.
No. 72-5151. SMITH v. ESTELLE, CORRECTIONS DIRECTOR.
C. A. 5th Cir. Certiorari denied. Reported
below: 458 F. 2d 1407.
No. 72-5168. WHITNEY v. CRAVEN, WARDEN. C. A.
9th Cir. Certiorari denied. Reported below: 460 F. 2d
1267.
No. 72-5188. HooD v. PURCELL, SHERIFF. Ct. App.
Ore. Certiorari denied. Reported below: 8 Ore. App.
352, 494 P. 2d 461.
No. 72-5478. SALAZAR v. UNITED STATES. C. A. 9th
Cir. Certiorari denied.
No. 72-5483. DRIVER v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 462 F. 2d 808.
1062 OCTOBER TERM, 1972
December 11, 1972 409U. S.
No. 72- 5481. BANKS v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 465 F. 2d
1235.
No. 72-5482. CARBONARO v. UNITED STATES. C . A.
8th Cir. Certiorari denied. Reported below: 461 F . 2d
1108.
No. 72- 5485. DREW v. UNITED STATES. Ct. App.
D. C. Certiorari denied. Reported below: 292 A. 2d
164.
No. 72-5487. ENGLISH ET AL. V. UNITED STATES.
C . A. 9th Cir. Certiorari denied.
No. 72-5488. LEGO v. TWOMEY, WARDEN. C. A. 7th
Cir. Certiorari denied.
No. 72--5489. PERKINS v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. R eported below: 459 F . 2d
1392.
No. 72-5490. BRYANT v. PICKETT, WARDEN. C. A.
7th Cir. Certiorari denied.
No. 72- 5491. RICHARDS v. MARYLAND. Ct. Sp. Ann.
Md. Certiorari denied.
No. 72--5495. DALTON v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 465 F. 2d 32.
No. 72-5498. WHITE v. CARDWELL, WARDEN. C. A.
6th Cir. Certiorari denied.
No. 72--5502. BARTLEY v. KENTUCKY. C. A. 6th Cir.
Certiorari denied. Reported below: 462 F. 2d 610.
No. 72-5511. TRACY v. HAWKS. C. A. 10th Cir.
Certiorari denied.
No. 72-5532. CAMPBELL v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 466 F. 2d 529.
ORDERS 1063
409U.S. December 11, 1972
No. 72-5515. HARMON V. RICHARDSON, SECRETARY OF
HEALTH, EDUCATION, AND WELFARE. C. A. 9th Cir.
Certiorari denied. Reported below: 460 F. 2d 1229.
No. 72-5517. ROONEY ET UX. V, FIRST WISCONSIN
NATIONAL BANK OF MILWAUKEE ET AL. C. A. 7th Cir.
Certiorari denied.
No. 72-5518. KASEY ET UX. V. MOLYBDENUM CORPORATION
OF AMERICA. C. A. 9th Cir. Certiorari denied.
Reported below: 467 F. 2d 1284.
No. 72-482. MARCHETTI v. UNITED STATES. C. A.
4th Cir. Certiorari denied. MR. JUSTICE DouGLAS, MR.
JusTICE BRENNAN, and MR. JUSTICE STEWART would
grant certiorari. Reported below: 466 F. 2d 1309.
No. 72-501. TERMINAL FREIGHT COOPERATIVE AssN.
ET AL. v. NATIONAL LABOR RELATIONS BOARD. C. A. 3d
Cir. Certiorari denied. MR. JUSTICE DOUGLAS would
grant certiorari. Reported below: 447 F. 2d 1099.
No. 72-515. SANTORO ET AL. v. UNITED STATES. C. A.
2d Cir. Certiorari denied. MR. JusTICE DouGLAS would
grant certiorari. Reported below: 464 F. 2d 1202.
No. 72-541. VoN SLEICHTER v. UNITED STATES. C. A.
D. C. Cir. Certiorari denied. MR. JUSTICE DouGLAS
would grant certiorari. Reported below: 153 U.S. App.
D. C. 169, 472 F. 2d 1244.
No. 72-559. WESTERN & SOUTHERN LIFE INSURANCE
Co. v. CoMMISSIONER OF INTERNAL REVENUE. C. A. 6th
Cir. Certiorari denied. MR. JUSTICE DOUGLAS would
grant certiorari. Reported below: 460 F. 2d 8.
No. 72-592. CITIES SERVICE OIL Co., FORMERLY Co-
LUMBIAN FUEL Co. v. UNITED STATES. Ct. CL Certiorari
denied. MR. JUSTICE DouGLAS would grant certiorari.
Reported below: 462 F. 2d 1134.
1064 OCTOBER TERM, 1972
December 11, 1972 409 U.S.
No. 72-5545. IN RE ENGLER. Sup. Ct. Ind. Certiorari
denied.
No. 72-5090. PETERS v. CALIFORNIA. Ct. App. Cal.,
1st App. Dist. Certiorari denied. MR. JUSTICE DouGLAS
would grant certiorari. Reported below: 23 Cal. App.
3d 522, 101 Cal. Rptr. 403.
No. 72-5138. MINOR v. KENTUCKY. Ct. App. Ky.
Certiorari denied. MR. JuSTICE DOUGLAS would grant
certiorari. Reported below: 478 S. W. 2d 716.
No. 72-5486. CROSSON v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. MR. JUSTICE DouGLAS would
grant certiorari. Reported below: 462 F. 2d 96.
No. 72-5492. GLASS v. NEW YORK. Ct. App. N. Y.
Certiorari denied. MR. JusTICE DouGLAS would grant
certiorari.
No. 72-590. ANDERS v. UNITED STATES. Ct. Cl. Motion
of petitioner to strike matter from brief for respondent
denied. Certiorari denied. Reported below: 199
Ct. Cl. 1, 462 F. 2d 1147.
No. 72-599. PHIPPS ET AL. v. AssocrATE FUNDINGS,
INc., ET AL. C. A. 9th Cir. Certiorari denied. MR.
JusTICE WHITE would grant certiorari. Reported below:
464 F. 2d 1136.
No. 72-629. SPENCE ET AL. v. CANTERBURY. C. A.
D. C. Cir. Motion to dispense with printing respondent's
brief granted. Certiorari denied. Reported below: 150
U. S. App. D. C. 263, 464 F. 2d 772.
No. 72-5537. MARKOFF v. NEw YoRK LIFE INSURANCE
Co. Sup. Ct. Nev. Certiorari denied. MR. JUSTICE
POWELL took no part in the consideration or decision of
this petition. Reported below: 88 Nev. 319, 497 P. 2d
904.
ORDERS 1065
409 u. s. December 11, 1972
No. 72-5301. NuGENT v. UNITED STATES. C. A. 2d
Cir. Certiorari denied.
MR. JUSTICE WHITE, with whom MR. JUSTICE DouGLAS
and MR. JusTICE BRENNAN join, dissenting.
Acting on an informant's tip that one "Cherokee" had
a mill for diluting narcotics in a certain apartment building,
police officers secured the consent of the landlord to
search, and then searched the basement area of the building
open to use by both landlord and tenants. In one
storage room they saw a closed but unlocked trunk, on
top of which were a can of milk-sugar, a scale, rubber
bands, and a brown paper bag with a message telling
Cherokee that "we are out of ... action." The trunk
was then opened. Heroin and narcotics paraphernalia
were discovered, seized, and used against Cherokee who
was later arrested and tried.
Whether the search of the trunk and seizure of its contents
squared with the Fourth Amendment is a substantial
question warranting review here. The seizure was
not incident to petitioner's arrest, which occurred later
at another place. The officers were legally in the storage
room by virtue of the landlord's consent, Frazier v.
Cupp, 394 U. S. 731, 740 (1969), but nothing in the
trunk was in plain view as long as the trunk was unopened,
and it would seem that the landlord had no
authority whatsoever to consent to the search of the
trunk or the seizure of its contents, which were petitioner's
effects within the protection of the Fourth
Amendment.
The United States argues that there was probable cause
to search the trunk and a warrant should not be required,
because the items sought could be so easily moved. The
Court has embraced such a rationale in the Carroll-
Chambers line of cases with respect to automobiles, but
1066 OCTOBER TERM, 1972
December 11, 1972 409 U.S.
has expressly questioned this approach with respect to
other movable personal property. See Coolidge v. New
Hampshire, 403 U. S. 443, 461 n. 18 (1971) ("We have
found no case that suggests such an extension of Carroll"
to "containers" that are "equally movable, e. g., trunks,
suitcases, boxes, briefcases, and bags"). Moreover, in
Chimel v. California, 395 U.S. 752 (1969), searches incident
to arrest were limited to the person and immediate
vicinity, even though there is clearly probable cause to
believe that contraband or evidence of crime will be found
elsewhere on the premises where the arrest takes place.
The Court there rejected the argument urged in dissent
that a warrant could be dispensed with to avoid the disappearance
of the property for which there was probable
cause to search.
Because the decision below is arguably at odds with
decisions of this Court, I would grant the petition for
certiorari.
No. 72-5455. SMITH ET AL. v. UNITED STATES. C. A.
10th Cir. Certiorari denied. Reported below: 464 F. 2d
194.
Mn. JUSTICE DouGLAS, with whom MR. JusTICE BRENNAN
concurs, dissenting.
Petitioners were convicted of sexually assaulting a fellow
inmate while incarcerated in the Federal Youth
Center, in violation of 18 U.S. C. § 13 and Colo. Rev. Stat.
Ann. § 40--2-31 (1963). Immediately following the assault,
petitioners were placed in segregated confinement
and were not arraigned until more than five months later,
after an indictment had been returned. They appealed
their convictions, in part on the ground that they had not
been brought promptly before a United States Commissioner
as required by former Rule 5 (a) of the Federal
ORDERS 1067
1066 DOUGLAS, J., dissenting
Rules of Criminal Procedure.* The Court of Appeals for
the Tenth Circuit held that Rule 5 does not apply when
the person affected is "in custody pursuant to an unrelated
valid conviction." Accord, United States v. Reid,
437F. 2d 1166, 1167 (CA71971).
The result below stemmed from a narrow, technical
reading of the word "arrest" in former Rule 5 (a). Since
petitioners "were already in custody for unrelated convictions,"
464 F. 2d 194, 196, according to the Court of Appeals,
they had not been "arrested" for the alleged offense.
The issue presented here is whether former Rule 5 (a)
should be interpreted in this myopic fashion, without
regard to the policies underlying Rule 5 as a whole.
Former Rule 5 (b) required the commissioner, inter
ali,a, to "inform the defendant ... of his right to retain
counsel, of his right to request the assignment of counsel
if he is unable to obtain counsel . . . . He shall also inform
the defendant that he is not required to make a
statement and that any statement made by him may be
used against him." A basic purpose of this rule is to interpose
a judicial officer between the accused and the accuser
early in the process of custodial interrogation. This
procedure insures that the accused is objectively and intelligently
apprised of his rights and helps prevent the
"utilization of intensive interrogation, easily gliding into
the evils of 'the third degree.'" Mallory v. United
*Rule 5 (a) then provided:
"An officer making an arrest under a warrant issued upon a complaint
or any person making an arrest without a warrant shall take
the arrested person without unnecessary delay before the nearest
available commissioner or before any other nearby officer empowered
to commit persons charged with offenses against the laws of the
United States. When a person arrested without a warrant is brought
before a commissioner or other officer, a complaint shall be filed
forthwith."
Rule 5 was amended, effective October 1, 1972. References herein
are to the Rule as it existed at the time of the decision below.
1068 OCTOBER TERM, 1972
December 11, 1972 409 U.S.
States, 354 U. S. 449, 453. The Court of Appeals effectively
has deprived petitioners of the protection afforded
by Rule 5 (b), even though there is no reason to
believe that they were less vulnerable to the overbearing
effects of custodial interrogation. The policies underlying
Rule 5 (b) apply with as much force to the accused
already in custody pursuant to an unrelated conviction
as they do to the accused in custody solely on the basis
of the alleged offense. Indeed, in the case at hand, the
danger of overreaching by prison officials is vividly apparent
from the very fact that petitioners were placed
in segregated confinement. Certainly, it cannot be suggested
that petitioners, because they previously had been
convicted of another offense, were any less entitled to the
rudimentary procedures afforded to a person who stands
accused of a crime.
I would grant the petition for a writ of certiorari solely
to consider whether petitioners should have been arraigned
promptly after the alleged offense.
No. 72-5273. MYERS v. PINNOCK. Sup. Ct. Wash.
Motion to consolidate with No. 72-5075 [Myers v. W a.shington]
granted. Certiorari denied.
Rehearing Deni,ed
No. 71-651. CALIFORNIA V. KRIVDA ET AL., ante, p. 33;
No. 72-42. DURST v. NATIONAL CASUALTY Co. ET AL.,
ante, p. 967;
No. 72-159. DURST v. UNITED STATES CouRT OF APPEALS
FOR THE NINTH CIRCUIT ET AL., ante, p. 947;
No. 72-160. DURST v. UNITED STATES CouRT OF APPEALS
FOR THE NINTH CIRCUIT, ante, p. 946;
No. 72-324. CARTER v. UNITED STATES, ante, p. 984;
No. 72-5150. GARCIA-TURINO v. UNITED STATES, ante,
p. 951; and
No. 72-5171. SrnoNGA v. ADMINISTRATOR OF VETERANS
AFFAIRS, ante, p. 952. Petitions for rehearing denied.
ORDERS 1069
409 u. s. December 11, 18, 1972
No. 72-5289. FRIERSON v. SPRUILL, JuDGE, ET AL.,
ante, p. 989. Petition for rehearing denied.
No. 71-5005. BROOKS V. FLORIDA ET AL., 404 U.S. 956;
No. 71-5075. BROOKS v. FLORIDA, 404 U. S. 956;
No. 71-5207. BROOKS v. WAINWRIGHT, CORRECTIONS
DIRECTOR, 404 U. S. 966; and
No. 71-5311. BROOKS v. WAINWRIGHT, CORRECTIONS
DIRECTOR, 404 U. S. 1020. Motions for leave to file petitions
for rehearing denied.
No. 72-136. DURST v. UNITED STATES CouRT OF APPEALS
FOR THE NINTH CIRCUIT ET AL., ante, p. 946. Motion
for leave to use record in No. 72-42 [Durst v. National
Casualty Co. et al.] in support of rehearing granted.
Petition for rehearing denied.
DECEMBER 18, 1972
Affirmed on Appeal
No. 72--421. RrcHARDSON, SECRETARY OF HEALTH,
EDUCATION, AND WELFARE v. DAVIS. Appeal from D. C.
Conn. Motion of appellee for leave to proceed in forma
pauperis granted. Judgment affirmed. Weber v. Aetna
Casualty & Surety Co., 406 U. S. 164 (1972). THE
CHIEF JusTICE, MR. JUSTICE STEWART, and MR. J USTICE
REHNQUIST would note probable jurisdiction and set
case for oral argument. Reported below: 342 F. Supp.
588.
No. 72-655. RICHARDSON, SECRETARY OF HEALTH,
EDUCATION, AND WELFARE v. GRIFFIN ET AL. Appeal
from D. C. Md. Motion of appellee for leave to proceed
in forma pauperis granted. Judgment affirmed.
THE CHIEF JusncE, MR. JUSTICE STEWART, and MR.
JusTICE REHNQUIST would note probable jurisdiction
and set case for oral argument. Reported below: 346
F. Supp. 1226.
1070 OCTOBER TERM, 1972
December 18, 1972 409U.S.
No. 72--465. LANCE RooFING Co., INc., ET AL. v.
HODGSON, SECRETARY OF LABOR, ET AL. Affirmed on appeal
from D. C. N. D. Ga. :MR. JUSTICE STEWART would
note probable jurisdiction and set case for oral argument.
Reported below: 343 F. Supp. 685.
No. 72--466. FRANK IREY, JR., INc. v. HoDGsoN, SECRETARY
OF LABOR, ET AL. Affirmed on appeal from
D. C. N. D. W. Va. MR. JusTICE STEWART would note
probable jurisdiction and set case for oral argument. Reported
below: 354 F. Supp. 20.
No. 72-610. AcE DoRAN HAULING & RIGGING Co.
ET AL. v. INTERSTATE COMMERCE COMMISSION. Affirmed
on appeal from D. C. W. D. Pa. MR. JuSTICE DouGLAS
dissents from the affirmance. Reported below: 345 F.
Supp. 743.
No. 72-615. GLENOVICH ET AL. v. NOERENBERG, COMMISSIONER
OF FISH AND GAME, ET AL. Affirmed on appeal
from D. C. Alaska. Reported below: 346 F. Supp.
1286.
No. 72-618. AMERICAN PARTY OF FLORIDA ET AL. V.
ASKEW, GOVERNOR OF FLORIDA, ET AL. Affirmed on appeal
from D. C. N. D. Fla.
No. 72-650. STERRETT, ADMINISTRATOR, DEPARTMENT
OF PUBLIC WELFARE, ET AL. v. GAITHER ET AL. Appeal
from D. C. N. D. Ind. Motion of appellees for leave
to proceed in forma pauperis granted. Judgment affirmed.
Reported below: 346 F. Supp. 1095.
Appeals Dismissed
No. 71- 6689. CLARK v. PAYNE. Appeal from C. A.
3d Cir. dismissed for want of jurisdiction. Treating the
papers whereupon the appeal was taken as a petition for
writ of certiorari, certiorari denied. Reported below:
455 F. 2d 516.
ORDERS 1071
409 U.S. December 18, 1972
No. 72-300. HuGGINS ET AL. v. DEMENT ET AL. 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.
MR. JusTICE DouGLAS would note probable jurisdiction
and set case for oral argument. Reported below: 281
N. C. 314, 188 S. E. 2d 898.
No. 72-5170. SAYLES v. NuNzro ET AL., JUDGES. Appeal
from Ct. App. D. C. dismissed for want of substantial
federal question.
No. 72-5549. HIGHT v. TEXAS. Appeal from Ct. Civ.
App. Tex., 1st Sup. Jud. Dist. dismissed for want of substantial
federal question. Reported below: 473 S. W. 2d
348.
Vacated and Remanded on Appeal
No. 71-1261. CooK, DIRECTOR, DEPARTMENT OF LIQUOR
CONTROL, ET AL. v. PETO, DBA LooP CARRY OuT.
Appeal from D. C. S. D. Ohio. Judgment vacated and
case remanded for further consideration in light of California
v. LaRue, ante, p. 109. Reported below: 339
F. Supp. 1300.
Other Summary D'isposition
No. 72-178. STRUCK v. SECRETARY OF DEFENSE ET AL.
C. A. 9th Cir. [Certiorari granted, ante, p. 947.] Judgment
vacated and case remanded to consider issue of
mootness in light of the position presently asserted by
the Government. MR. JUSTICE STEWART would postpone
issue of mootness to hearing of case on the merits.
Miscellaneous Orders*
No. 72-5530. ARNOLD v. OLIVER, JUDGE. Mot10n for
leave to file petition for writ of prohibition demed.
*For reference to Court's order prescribing an amendment to the
Federal Rules of Civil Procedure, see post, p. 1132.
1072 OCTOBER TERlVI, 1972
December 18, 1972 409 U.S.
No. A-565 (72-774). COOPER v. FLORIDA BOARD OF
DENTISTRY. Sup. Ct. Fla. Application for stay presented
to MR. JusTICE DouGLAS, and by him referred to
the Court, denied. Reported below: See 265 So. 2d 432.
No. A-598 (72-5800). DAWSON v. UNITED STATES.
C. A. 8th Cir. Application for stay of execution and
enforcement of mandate presented to MR. JusTICE STEWART,
and by him referred to the Court, denied. Reported
below: 467 F. 2d 668.
No. A-612. ENVIRONMENTAL DEFENSE FUND, INc.,
ET AL. v. FROEHLKE, SECRETARY OF THE ARMY, ET AL.
C. A. 8th Cir. Application for injunction presented to
MR. JusTICE BLACKMUN, and by him referred to the
Court, denied. MR. JUSTICE DOUGLAS would grant the
injunction.
No. A-633. ENVIRONMENTAL DEFENSE FuND, INc.,
ET AL. V. CORPS OF ENGINEERS OF THE UNITED STATES
ARMY ET AL. C. A. 8th Cir. Application for injunction
presented to MR. JusTICE BLACKMUN, and by him referred
to the Court, denied. MR. JusTICE DouGLAS would
grant the injunction. Reported below: 470 F. 2d 289.
No. 71-685. LEHNHAUSEN, DIRECTOR, DEPARTMENT
OF LOCAL GOVERNMENT AFFAIRS OF ILLINOIS v. LAKE
SHORE AuTo PARTS Co. ET AL.; and
No. 71-691. BARRETT, CouNTY CLERK OF CooK
COUNTY, ILLINOIS, ET AL. v. SHAPIRO ET AL. Sup. Ct.
Ill. [Certiorari granted, 405 U. S. 1039.] Motion for
order respecting oral argument granted. It is ordered
that the Attorney General of Illinois be allotted 20
minutes for oral argument on behalf of petitioner in No.
71-685; that the State's Attorney be allotted 10 minutes
for oral argument on behalf of petitioners in No. 71-691;
that counsel for Lake Shore Auto Parts Co. be allotted
20 minutes for oral argument on behalf of respondents
ORDERS 1073
409 U.S. December 18, 1972
in No. 71-685; and that counsel for M. Weil & Sons,
Inc., be allotted 10 minutes for oral argument on behalf
of respondents in No. 71-691.
No. 71-1637. CITY OF BURBANK ET AL. V. LOCKHEED
Arn TERMINAL, lNc., ET AL. Appeal from C. A. 9th Cir.
[Probable jurisdiction noted, ante, p. 840.] Motion of
the Attorney General of California for leave to participate
in oral argument as amicus curiae in support of appellants
granted and 15 minutes allotted for that purpose.
Appellees also allotted 15 additional minutes for
oral argument.
No. 72-730. MARKLE ET AL. v. ABELE ET AL. Appeal
from D. C. Conn. Motion of appellants to expedite consideration
denied.
No. 71- 6778. WILLIAMS V. CALIFORNIA;
No. 72-5522. BLANKENSHIP V. MEACHAM ET AL.; and
No. 72-5527. Sz1JARTO v. NELSON, WARDEN. Motions
for leave to file petitions for writs of habeas corpus
denied.
No. 72-5593. ZENCHAK v. UNITED STATES DISTRICT
CouRT FOR THE WESTERN DISTRICT oF KENTUCKY. Motion
for leave to file petition for writ of mandamus denied.
Probable Jurisdiction Noted
No. 72 - 535. UNITED STATES ET AL. v. STUDENTS CHALLENGING
REGULATORY AGENCY PROCEDURES (SCRAP)
ET AL.; and
No. 72-562. ABERDEEN & RocKFISH RAILROAD Co.
ET AL. V. STUDENTS CHALLENGING REGULATORY AGENCY
PROCEDURES (SCRAP) ET AL. Appeals from D. C.
D. C. Motion of appellee SCRAP for leave to
dispense with printing motion to dismiss or affirm
granted. Probable jurisdiction noted. Cases consolidated
and one hour allotted for oral argument. Motion
1074 OCTOBER TERM, 1972
December 18, 1972 409 U.S.
of Aberdeen & Rockfish Railroad Co. et al. to advance
cases granted. MR. JUSTICE POWELL took no part in the
consideration or decision of the motions and the jurisdictional
statements. Reported below: 346 F. Supp. 189.
Certiorari Granted
No. 71-1417. BOOSTER LODGE No. 405, INTERNATIONAL
ASSOCIATION OF MACHINISTS & AEROSPACE WORKERS,
AFL-CIO v. NATIONAL LABOR RELATIONS BOARD ET AL.;
and
No. 71-1607. NATIONAL LABOR RELATIONS BOARD v.
BOEING Co. ET AL. C. A. D. C. Cir. Certiorari granted.
Cases consolidated and a total of one and one-half hours
allotted for oral argument. Reported below: 148 U. S.
App. D. C. 119, 45-9 F. 2d 1143.
No. 72-624. UNITED STATES v. PENNSYLVANIA INDUSTRIAL
CHEMICAL CoRP. C. A. 3d Cir. Certiorari
granted. Reported below: 461 F. 2d 468.
No. 72-630. HALL ET AL. v. COLE. C. A. 2d Cir. Motion
of respondent for leave to proceed in forma pauperis
granted. Certiorari granted limited to Questions 1 and
2 presented by the petition which read as follows:
"l. Whether a federal court in a Section 102 proceeding,
reviewing an expulsion of a member by a union,
finding his expulsion in violation of Section 101 (a)(2),
and directing his restoration to membership, may also
award the member's attorney reasonable counsel fees.
"2. Whether a federal court in a Section 102 proceeding,
in restoring an expelled member to membership, may
award reasonable counsel fees when it is found that the
member sustained no damages by reason of the expulsion;
additionally found that the union in good faith believed
it had the right to discipline the member for his conduct;
further found no motivation of malice by the union in
its discipline of the member and does not find that the
ORDERS 1075
409U.S. December 18, 1972
member by his conduct aeted in good faith, but instead
concludes the member's conduct was motivated in part
for personal political ambitions."
MR. JusTICE MARSHALL took no part in the consideration
or decision of the motion and petition. Reported
below: 462 F. 2d 777.
Certiorari Denied. (See also Nos. 71-6689 and 72-300,
supra.)
No. 71-1529. PoFF, DBA lsT KING v. DEPARTMENT OF
ALCOHOLIC BEVERAGE CONTROL OF CALIFORNIA ET AL. Ct.
App. Cal., 2d App. Dist. Certiorari denied.
No. 71-1563. BOEING Co. v. NATIONAL LABOR RELATIONS
BOARD ET AL. C. A. D. C. Cir. Certiorari denied.
Reported below: 148 U.S. App. D. C. 119,459 F. 2d 1143.
No. 71-6928. VALENTINE v. CALIFORNIA. Ct. App.
Cal., 2d App. Dist. Certiorari denied.
No. 72- 185. BYRD v. DISTRICT OF COLUMBIA ALCOHOLIC
BEVERAGE CONTROL BOARD. Ct. App. D. C. Certiorari
denied. Reported below: 289 A. 2d 877.
No. 72-195. COLEMAN, DBA CLUB HI DOLLY v. DEPARTMENT
OF ALCOHOLIC BEVERAGE CONTROL OF CALIFORNIA
ET AL. Ct. App. Cal., 2d App. Dist. Certiorari
denied.
No. 72-279. KNox v. ILLINOIS. App. Ct. Ill., 1st
Dist. Certiorari denied. Reported below: 3 Ill. App.
3d 22, 278 N. E. 2d 252.
No. 72-441. WILLIAMS ET AL. v. BoRNEMEIER ET AL.;
and
No. 72-648. MORGAN v. BoRNEMEIER ET AL. C. A.
6th Cir. Certiorari denied.
No. 72-542. SLATKO v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below; 462 F. 2d 1169.
1076 OCTOBER TERM, 1972
December 18, 1972 409 u. s.
No. 72-456. STAR INDUSTRIES, INC. v. UNITED STATES.
C. C. P. A. Certiorari denied. Reported below : 59
C. C. P. A. (Cust.) 159, 462 F. 2d 557.
No. 72-502. IRONS V. COMMISSIONER OF PATENTS.
C. A. D. C. Cir. Certiorari denied. Reported below:
151 U. S. App. D. C. 23, 465 F. 2d 608.
No. 72-523. PLANTATION PATTERNS, INC., ET AL. v.
COMMISSIONER OF INTERNAL REVENUE. C. A. 5th Cir.
Certiorari denied. Reported below: 462 F. 2d 712.
No. 72-545. LIBERTY AMENDMENT COMMITTEE OF
THE U. S. A. v. UNITED STATES ET AL. C. A. 9th Cir.
Certiorari denied.
No. 72-557. SMITH v. UNITED STATES. C. A. 2d Cir.
Certiorari denied. Reported below: 464 F. 2d 1129.
No. 72--567. BEAUCHAMP v. UNITED STATES. C. A.
5th Cir. Certiorari denied. Reported below: 465 F. 2d
700.
No. 72-568. KRAUDE v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 467 F. 2d 37.
No. 72-575. SHAMEIA v. UNITED STATES. C. A. 6th
Cir. Certiorari denied. Reported below: 464 F. 2d 629.
No. 72--578. BuBLICK v. UNITED STATES. C. A. 7th
Cir. Certiorari denied.
No. 72--593. TRAVIS-EDWARDS, INC. v. HODGSON, SECRETARY
OF LABOR. C. A. 5th Cir. Certiorari denied.
Reported below: 465 F. 2d 1050.
No. 72--604. NEw JERSEY ET AL. v. SMITH. C. A. 3d
Cir. Certiorari denied. Reported below: 465 F. 2d 272.
No. 72--653. LAIRD, SECRETARY oF DEFENSE, ET AL. v.
ANDERSON ET AL. C. A. D. C. Cir. Certiorari denied.
Reported below: 151 U.S. App. D. C. 112, 466 F. 2d 283.
ORDERS 1077
409U.S. December 18, 1972
No. 72-611. GOODSON ET AL. V. DAVIS ET AL.; and
No. 72- 612. MAY, AS INTERVENOR ON BEHALF OF
CUSTOM COMPONENT SWITCHES, INC. v. DAVIS ET AL.
Ct. App. Cal., 2d App. Dist. Certiorari denied.
No. 72-613. CARPENTERS DISTRICT CouNCIL OF Hous-
TON AND VICINITY ET AL. V. LINBECK CONSTRUCTION
CoRP. C. A. 5th Cir. Certiorari denied. Reported below:
462 F. 2d 575.
No. 72-616. GuLF OrL CoRP. v. LEHRMAN. C. A. 5th
Cir. Certiorari denied. Reported below: 464 F. 2d 26.
No. 72-651. BERNDT ET AL. v. PAPILSKY. C. A. 2d
Cir. Certiorari denied. Reported below: 466 F. 2d 251.
No. 72-659. OFFENBERG ET u x. v. CALIFORNIA ET AL.
Ct. App. Cal., 4th App. Dist. Certiorari denied.
No. 72-676. CRAIG v. COLORADO. Sup. Ct. Colo.
Certiorari denied. Reported below: - Colo. - , 498
P. 2d 942.
No. 72-5117. CROWE ET AL. v. SouTH CAROLINA. Sup.
Ct. S. C. Certiorari denied. Reported below: 258 S. C.
258, 188 S. E. 2d 379.
No. 72-5183. DODSON v. lowA. Sup. Ct. Iowa. Certiorari
denied. Reported below: 195 N. W. 2d 684.
No. 72-5186. FAIR v. FLORIDA ET AL. C. A. 5th Cir.
Certiorari denied.
No. 72-5200. THOMPSON v. GRAY, WARDEN. C. A.
7th Cir. Certiorari denied.
No. 72-5253. MooN v. SLAYTON, PENITENTIARY Su -
PERINTENDENT. C. A. 4th Cir. Certiorari denied.
No. 72-5254. VALDEZ v. NEw MExrco. Sup. Ct.
N. M. Certiorari denied. Reported below: 83 N. M.
720, 497 P. 231.
1078 OCTOBER TERM, 1972
December 18, 1972 409U.S.
No. 72-5265. PRESSEL v. OREGON. C. A. 9th Cir.
Certiorari denied. Reported below: 460 F. 2d 313.
No. 72-5275. FLINT v. HowARD, WARDEN. Sup. Ct.
R. I. Certiorari denied. Reported below: - R. I. -,
291 A. 2d 625.
No. 72-5284. HILL v. TEXAS. Ct. Crim. App. Tex.
Certiorari denied. Reported below: 480 S. W. 2d 200.
No. 72-5313. DUNK ET AL. V. MANUFACTURERS LIGHT
& HEAT Co. Sup. Ct. Pa. Certiorari denied.
No. 72-5331. SIMPSON v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 457 F. 2d 512.
No. 72-5479. PRESTON v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 464 F. 2d 542.
No. 72-5499. WAY v. UNITED STATES. C. A. 5th Cir.
Certiorari denied. Reported below: 462 F. 2d 1367.
No. 72-5500. CARDILLO v. UNITED STATES. C. A. 1st
Cir. Certiorari denied.
No. 72-5505. STEED v. UNITED STATES. C. A. 9th Cir.
Certiorari denied. Reported below: 465 F. 2d 1310.
No. 72-5510. WILLIAMS v. LOUISIANA. C. A. 5th Cir.
Certiorari denied.
No. 72-5519. SUTHERLAND v. UNITED STATES. C. A.
5th Cir. Certiorari denied. Reported below: 463 F. 2d
641.
No. 72-5523. McMULLEN v. UNITED STATES. C. A.
4th Cir. Certiorari denied.
No. 72-5555. MAGEE v. SUPERIOR CouRT, CnY AND
CouNTY OF SAN FRANCisco. Ct. App. Cal., 1st App.
Dist. Certiorari denied.
ORDERS 1079
409 U.S. December 18, 1972
No. 72-5516. OcHOA v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 463 F. 2d 355.
No. 72-5524. MAGEE v. NELSON, WARDEN. Ct. App.
Cal., 1st App. Dist. Certiorari denied.
No. 72-5533. ARVIN v. SLAYTON, PENITENTIARY Su-
PERINTENDENT. C. A. 4th Cir. Certiorari denied.
No. 72-5534. ALBERT v. WYOMING. C. A. 10th Cir.
Certiorari denied.
No. 72- 5544. KwITEK v. UNITED STATES. C. A. 7th
Cir. Certiorari denied. Reported below: 467 F. 2d 1222.
No. 72-5548. PORTER v. UNITED STATES. C. A. 8th
Cir. Certiorari denied.
No. 72-5551. ANDREWS v. NoRTH CAROLINA. Sup.
Ct. N. C. Certiorari denied.
No. 72-5554. CRATIC v. OHIO. Ct. App. Ohio, Cuyahoga
County. Certiorari denied.
No. 72-5559. STAFFORD v. N. A. A. EMPLOYEES FEDERAL
CREDIT UNION ET AL. C. A. 9th Cir. Certiorari
denied.
No. 72-5577. PAYNE v. ALABAMA. Ct. Crim. App.
Ala. Certiorari denied. Reported below: 48 Ala. App.
401, 265 So. 2d 185.
No. 72-5579. BEKENY ET ux. v. WANDSCHNEIDER,
EXECUTOR, ET AL. C. A. 2d Cir. Certiorari denied.
No. 72-5587. RrTcH ET AL. v. TARRANT COUNTY Hos-
PITAL DISTRICT. Sup. Ct. Tex. Certiorari denied. Reported
below: 480 S. W. 2d 622.
No. 72-254. NEIL, WARDEN v. VENABLE. C. A. 6th
Cir. Motion of respondent for leave to proceed in forma
pauperis granted. Certiorari denied. Reported below:
463 F. 2d 1167.
1080 OCTOBER TERM, 1972
December 18, 1972 409U.S.
No. 72-521. IRISH NORTHERN Arn COMMITTEE v. ATTORNEY
GENERAL OF THE UNITED STATES. C. A. 2d Cir.
Certiorari denied.
MR. JusTICE MARSHALL, with whom MR. JusTICE
DOUGLAS and MR. JusTICE BRENNAN concur, dissenting.
Petitioner is registered as a foreign agent under the
Foreign Agents Registration Act of 1938, 52 Stat. 631, as
amended, 22 U. S. C. § 611 et seq. The District Court
ordered it to comply with the Act by filing, inter alia,
a starement of contributions which included the names
of contributors. The Court of Appeals for the Second
Circuit affirmed in an unreported order.
I believe that the Foreign Agents Registration Act
does not authorize the Attorney General to require lists
of the names and addresses of contributors, as he has
done in 28 CFR § 5.201 (e). Cf. Kent v. Dulles, 357
U. S. 116 (1958).
The Foreign Agents Registration Act sets out an
extensive scheme to regulate the activities of foreign
agents. But the scheme is not all-encompassing. Its
purpose is to inform the American people of the activities
of the agents of foreign principals so that the people
may carefully "appraise them and the purposes for which
they act." H. R. Rep. No. 1470, 89th Cong., 2d Sess., 2
(1966).
Congress has determined that we must know the
extent to which a foreign agent is supported by his
principal so that we may properly evaluate the agent's
interest in the views he presents. To that end, the
statute requires the agent to disclose "[tJhe nature and
amount of contributions, income, money, or thing of
value, if any, that the registrant has received ... from
each such foreign principal .... " 22 U. S. C. § 612 (a)
( 5). Prior to its amendment in 1966, the statute did require
the disclosure of the name and address of "any person
who has ... contributed or paid money or anything of
ORDERS 1081
1080 MARSHALL, J., dissenting
value to the registrant," § 2 (a) (7), 56 Stat. 252. This
provision was omitted in 1966, leaving § 612 (a) (5) as
essentially the only provision requiring disclosure of
contributors.1
The amendments adopted in 1966 were intended to
limit the scope of the previous act and thereby to make
effective enforcement more likely. In language repeated
in each subsequent Committee report on the proposed
revision, the Senate Committee on Foreign Relations
referred to its bill as "better focusing the act on those
individuals performing political or semipolitical activities."
S. Rep. No. 875, 88th Cong., 2d Sess., 1 (1964).2
The Committee said, "Too broadly written for today's
needs, the present act's disclosure provisions have
through the years been too narrowly enforced with the
emphasis placed on subversive or potentially subversive
1 Section 612 (a) (7) requires the disclosure of contributions from
anyone other than the principal "for whom the registrant is acting
. . . under such circumstances as require his registration hereunder."
This provision is intended to prevent the foreign principal
from acting through a facade or alter ego who would register and
then simply act as a channel for funds to an unregistered pt:'rson
who would do all that the principal wanted done. H. R. Rep. No.
1470, 89th Cong., 2d Sess. (1966). The respondent argues that this
section is a broad one. On its face, it is quite narrow. Respondent
says, however, that the legislative history "mahs it clear that Congress
did not intend the provision to be read so narrowly." Brief for
Respondent in Opposition 11. I confess that I cannot read the section
to require anything more than disclosure of contributions "from
each such person." That is, after all, just what the language of the
section purports to require. The legislative history cited by respondent
shows only that Congress intended to cover what the language
of the section covers, the use of registered agents to convey money
to unregistered third parties who would then disburse it within
the United States. I find it hard to interpret this history as providing
any guidance in deciding the case at hand. The only statutory
basis for respondent's action that I can find is § 615.
2 See also S. Rep. No. 143, 89th Cong., 1st Sess., 1 (1965); H. R.
Rep. No. 1470, 89th Cong., 2d Sess., 2 (1966).
1082 OCTOBER TERM, 1972
MARSHALL, J., dissenting 409U. S.
agents." Id., at 5.3 Congress in 1966 deliberately narrowed
the coverage of the statute. I would not read
into it broad coverage, through a general authorization
to the Attorney General, that is inconsistent with the
thrust of the legislation taken as a whole.
The statute no longer requires, in terms, the disclosure
of the names of all contributors.4 But the registrant
must keep "such books of account and other records
with respect to all his activities, the disclosure of which
is required under the provisions of this subchapter . . .
as the Attorney General, having due regard for the national
security and the public interest, may by regulation
prescribe as necessary or appropriate for the enforcement
of the provisions of this subchapter." 22 U. S. C. § 615.
The Attorney General has apparently determined that
the names and addresses of all contributors must be disclosed
to insure full disclosure of contributions from the
foreign principal. 28 CFR § 5.201 ( e). This requirement,
I believe, goes beyond the bounds of the statute.
First, the Attorney General is authorized to require
that records be kept as to "all ... activities, the disclosure
of which is required under the provisions of this
subchapter," 22 U. S. C. § 615. The predicate of a valid
regulation, then, is that it relate to an activity that must
be disclosed by the terms of the Act itself. As I have
noted, nothing in the Act requires the disclosure of the
names of all contributors.
The Act does require that the organization disclose
the extent to which it is controlled financially by its
principal. And disclosure of the names of all contributors
would make it easier for Americans to learn the
degree of control which the foreign principal has over
8 See also S. Rep. No. 143, supra, n. 2, at 5.
4 It does require full disclosure of all expenditures. 22 U. S. C.
§ 612 (a) (8).
ORDERS 1083
1080 MARSHALL, J., dissenting
an organization which solicits their contributions. But
the respondent in this case has given no rea...,QQn to believe
that the foreign principal in this case has contributed
more to the Irish Northern Aid Committee
than has already been disclosed. Indeed, the very nature
of the organization and the principal makes that very
unlikely. For all that appears, the Irish Northern Aid
Committee is a shoestring operation, which raises money
at dances and house parties and sends it to an organization
in Northern Ireland which seems to have few
resources of its own. It is not the well-financed agent
of an established government that sends money to this
country for extensive efforts to influence public opinion.
The case might be different if the Attorney General
had shown some reason to believe that the Irish Northern
Aid Committee had failed to disclose contributions it
had received from its principal. Full disclosure then
might be the only way to discover whether that suspicion
had some basis in fact. Without such a showing, however,
the Attorney General has not established that the
predicate for a valid regulation exists. 5 The regulation
he has promulgated, which does not require any showing
of possible relevance to some disclosure required
by the terms of the Act, is more than the Act permits.
Second, if we were to construe the Act as authorizing
such a broad-ranging inquiry, I would be troubled
by the possibility that Congress had authorized an inquiry
which the First Amendment forbids. Membership
in an organization is protected from disclosure when
the Government's interest in disclosure is outweighed
by the impact on association that disclosure causes.
See NAACP v. Alabama, 357 U.S. 449, 462-464 (1958).
5 The case was submitted to the District Court on affidavits, none
of which revealed any reason for respondent to believe that the
petitioner was receiving undisclosed amounts from its principal.
1084 OCTOBER TERM, 1972
MARSHALL, J., dissenting 409U. S.
This balancing can be done only after careful consideration
is given to the competing interests. Here the
Government's interest is said to be guaranteeing that
the public knows the extent to which petitioner is supported
by its foreign principal. The Committee has
already registered as a foreign agent and is subject to
a wide range of disclosure requirements that I do not
question. It is hard to believe that the increment in
public information provided by disclosure of the names
and addresses of contributors would be great, especially
in a case where the Attorney General has shown no
reason to believe that disclosure would reveal hidden
contributions from the foreign principal.
On the other side, petitioner claims that many of its
contributors are properly fearful for the safety of their
relatives who remain in the turbulent surroundings of
Northern Ireland. On the record developed in the District
Court, based solely on affidavits, we cannot, I
think, make an informed judgment of the impact of
such fears on potential contributors.
The constitutional argument is a difficult one. I would
not assume that Congress had carefully considered it
when enacting a statute which does not, in terms, pose
the constitutional question. The statutory basis for
the Attorney General's requirement that the names of
contributors be disclosed, without any preliminary showing
that such disclosure would advance the ends of the
statute, is rather slender in the first instance. It is
hardly construing the statute to avoid constitutional
doubts to read into it authority for the Attorney General
to adopt regulations that themselves raise constitutional
questions.
I would grant the petition for writ of certiorari and
set the case for oral argument.
ORDERS 1085
409U.S. December 18, 1972
No. 72-529. GREMILLION v. UNITED STATES. C. A.
5th Cir. Certiorari denied. MR. JusTICE MARSHALL
took no part in the consideration or decision of this petition.
Reported below: 464 F. 2d 901.
No. 72-532. KEEVER v. UNITED STATES. C. A. 10th
Cir. Motion for leave to dispense with printing petition
granted. Certiorari denied.
No. 72-594. MATHER v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. MR. JUSTICE DouGLAS would
grant certiorari. Reported below: 465 F. 2d 1035.
No. 72-625. SMITH v. FALCON SEAJ30ARD, INc. C. A.
5th Cir. Certiorari denied. MR. JuSTICE DOUGLAS
would grant certiorari. Reported below: 463 F. 2d 206.
No. 72-680. SCHRADER v. SELECTIVE SERVICE SYSTEM
LOCAL BOARD No. 76 OF W1scoNSIN ET AL. C. A. 7th
Cir. Certiorari denied. MR. JUSTICE DOUGLAS would
grant certiorari. Reported below: 470 F. 2d 73.
No. 72-5146. JOHNSON v. LouISIANA. Sup. Ct. La.
Certiorari denied. MR. JUSTICE DOUGLAS would grant
certiorari. Reported below: 261 La. 620, 260 So. 2d 645.
No. 72-5199. PHILLIPS v. CARR ET AL. C. A. 8th Cir.
Certiorari denied. MR. JUSTICE DouGLAS would grant
certiorari.
No. 72-5230. BoAG v. CRAVEN, WARDEN. C. A. 9th
Cir. Certiorari denied. MR. JusTICE DOUGLAS would
grant certiorari.
No. 72-5239. LEROY v. OHIO. Sup. Ct. Ohio. Certiorari
denied. MR. JusTICE DouGLAS would grant certiorari.
Reported below: 30 Ohio St. 2d 138, 283 N. E.
2d 136.
1086 OCTOBER TERM, 1972
December 18, 1972 409 U.S.
No. 72-5508. RosEMOND v. UNITED STATES. C. A.
4th Cir. Certiorari denied. MR. JusTICE DouGLAS
would grant certiorari.
No. 72-5556. HOOVER v. ESTELLE, CORRECTIONS DIRECTOR.
C. A. 5th Cir. Certiorari denied. MR. JUSTICE
DouGLAS would grant certiorari. Reported below: 467
F. 2d 516.
No. 72-633. COPELAND REFRIGERATION CORP. v. WARRINER
HERMETICS, INc., ET AL. C. A. 5th Cir. Certiorari
denied. MR. JUSTICE STEWART would grant certiorari.
Reported below: 463 F. 2d 1002.
No. 72-5497. CLIZER v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. MR. JusTICE STEWART would
grant certiorari. Reported below: 464 F. 2d 121.
No. 72- 644. D. C. TRANSIT SYSTEM, INC. v. WASHINGTON
METROPOLITAN AREA TRANSIT CoMM'N ET AL.
C. A. D. C. Cir. Motion of respondent Black United
Front for leave to proceed in Jonna pauperis granted.
Certiorari denied. Reported below: 151 U. S. App.
D. C. 223,466 F. 2d 394.
No. 72-5506. JAMES v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. MR. JusTICE DOUGLAS and MR.
JUSTICE STEWART would grant certiorari. Reported below:
464 F. 2d 1228.
No. 72-5405. AL-KARAGHOLI V. IMMIGRATION AND
NATURALIZATION SERVICE. C. A. D. C. Cir. Certiorari
denied.
MR. JUSTICE DouGLAS, dissenting.
Petitioner, a nonimmigrant student, was admitted to
the United States in January 1962, pursuant to § 101 (a)
(15) of the Immigration and Nationality Act, 66 Stat.
167, as amended, 8 U. S. C. § 1101 (a) (15), with authorization
to remain in the country in that status until
ORDERS 1087
1086 DouGLAS, J., dissenting
January 28, 1968. In June 1967, deportation proceedings
were initiated against petitioner on the ground that he
had failed to maintain his student status. These proceedings
were apparently dropped.1
On January 5, 1968, prior to the date of the expiration
of his visa, petitioner filed an application for an extension
of time under the visa for the purpose of continuing
his education. This application was denied by
the Special Inquiry Officer on the ground that the petitioner's
primary interest in remaining in the United
States was to work as a street vendor and not to pursue
his educational interests. Petitioner was granted until
May 21, 1969, to leave the country. On May 13, 1969,
his application for reconsideration, wherein he verified his
admission to the Washington Technical Institute, was
denied.
On March 4, 1970, a deportation hearing was held at
which time petitioner was represented by counsel. The
Special Inquiry Officer found petitioner deport.able. On
appeal, the Board of Immigration Appeals observed that
the principal basis for petitioner's appeal-the denial of
his request for an extension of his student visa-was not
appealable or subject to review.
Title 8 CFR § 214.2 (f)(4), a rule promulgated by the
Immigration and Naturalization Service, indicates that
there is no review available of the decisions on applications
for extensions of student visas. "The applicant
shall be notified of the decision and, if the application
is denied, of the reason therefor. No appeal shall lie
from the decision." In light of this Court's decisions,
1 At the hearing before the Special Inquiry Officer, it was determined
that petitioner had discontinued his education and he was
ordered deported. The Board of Immigration Appeals remanded the
case with directions to the Special Inquiry Officer to reopen the hearing
to consider evidence, which had not been before him, which verified
petitioner's ~tudent status. No further hearing was held.
1088 OCTOBER TERM, 1972
DouGL.\s, J., dissenting 409 U.S.
recognizing the fundamental rights involved in deportation,
this regulation denies applicants due process of law.
As early as 1921 this Court recognized that fundamental
rights were involved in observing that not only
does deportation 2 deprive a person of his liberty, but,
"[i]t may result also in loss of both property and life;
or of all that makes life worth living." Ng Fung Ho v.
White, 259 U. S. 276, 284. Because of the nature of
the deprivation, although deportation is not technically
a criminal penalty, this Court has concluded that
"deportation is a penalty~at times a most serious
one . . . . Meticulous care must be exercised lest the
procedure by which he [the alien] is deprived of that
liberty not meet the essential standards of fairness."
Bridges v. Wixon, 326 U. S. 135, 154. (Emphasis
supplied.)
This Court has held that the denial of a motion to
reopen by the Special Inquiry Officer is reviewable as a
"final order of deportation." Giova v. Rosenberg, 379
U.S. 18; Foti v. Immigration and Naturalization Service,
375 U. S. 217. At least one federal court of appeals has
interpreted these cases to authorize judicial review of a
decision on an issue stemming from a deportation proceeding.
Rose v. Woolwine, 344 F. 2d 993 (CA4).
Contrary to Regulation § 214.2 (f) ( 4), an order of the
Special Inquiry Officer denying an application for an extension
of time under a currently valid visa does operate
as a final order and must be subject to judicial review.
2 That approach is as important in dealing with deportation of
students as it is in other alien cases. These days students are often
political targets of their home country. Both Iran and Taiwan
have been notodous in seeking our aid in deporting students, so that
the students can be executed on their return for their opposed
political ideas. While cancellation of the student visa in these
troubled days may be sought for that purpose, Iraq does not seem to
be the force behind the scenes in the present case.
ORDERS 1089
1086 DouGLAS, J., dissenting
When the extension is denied, a deportation date is set.
The alien is given no recourse to challenge this deportation
other than to leave the country and attempt to regain
entry or to stay in the United States illegally in
hopes of obtaining review in a deportation proceeding.
But, as in the instant case, that review is so limited
as to be nonexistent, when the Board of Immigration
Appeals feels compelled by Regulation§ 214.2 (f)(4) not
to give any consideration to the denial of the extension
or the reasons thereunder.
Such a result would appear to be contrary to the provisions
of the Administrative Procedure Act 3 (5• U. S. C.
§ 704) wherein "[a]gency action made reviewable by statute
and final agency action for which there is no other
adequate remedy in a court are subject to judicial review.
A preliminary, procedural, or intermediate agency action
or ruling not directly reviewable is subject to review on
the review of the final agency action." (Emphasis supplied.)
It is asserted that petitioner was not seeking a
true student status because his main purpose was to work
here. That is a gross distortion of the record. Petitioner
was and is a true student, whether brilliant or
mediocre being not material. He is a penniless student
and works his way through the schools here in the District
of Columbia by being a vendor of articles in the
parks and other places. He has no criminal record; his
mastery of the English language is not superior, and he
has problems understanding the requirements of our laws
and the procedures before our bureaucracy, just as an
American studying in Baghdad would have great difficulty
in toeing the line of Arabic law as construed and
applied by Iraqi officials.
I would grant the petition for certiorari and put the
case down for oral argument.
3 See Sofaer, Judicial Control of Informal Discretionary Adjudication
and Enforcement 72 Col. L. Rev. 1293, 1348 et seq. (1972).
1090 OCTOBER TERM, 1972
December 18, 1972 409 U.S.
No. 72-5535. DYE v. NEw JERSEY. Sup. Ct. N. J.
Certiorari denied. Reported below: 60 N. J. 518, 291
A. 2d 825.
MR. JUSTICE DOUGLAS, dissenting.
Petitioner was convicted of bookmaking in violation of
state law. The evidence from which the conviction
resulted arose primarily from a wiretap of a telephone
on the premises where petitioner was employed. Petitioner
challenges the admissibility of the wiretap product
on the grounds that the judicial authorization was not in
conformity with the state statute authorizing wiretapping
(N. J. Stat. Ann. § 2A:156A-1) and that the wiretap
violated his Fourth Amendment rights.
Pursuant to judicial authorization, a wiretap was placed
on the pay telephone located in the restaurant-bar-liquor
store in which petitioner was employed. The affidavits
supporting the request for authorization of the tap included
the following information: That the police had
been advised that the number of the telephone in question
was listed many times on the toll receipt of another
telephone which was located at a place where there was
"good reason to believe," pursuant to a different investigation,
that bookmaking operations were being
conducted; that police stakeouts in the restaurant-barliquor
store overheard both petitioner and an unidentified
male make a call on the telephone in which betting
information was passed; that petitioner was observed
taking notes from the sports pages of a newspaper and
having guarded conversations with customers; and that
when a reliable informer was requested to call the telephone
number and place a bet, petitioner refused to take
the bet, leading the informer to believe that petitioner
would not deal with strangers.
From the above facts, the law division judge concluded
that sufficient exigent circumstances existed for
ORDERS 1091
1090 DouGLAB, J., dissenting
concluding that traditional investigative techniques
would be unproductive, and issued a warrant which authorized
the placing of a wiretap on the telephone between
the hours of 10 a. m. and 3 p. m., Monday
through Saturday for a 30-day period, with directions
that the interception begin as soon as practicable. The
order also directed that the wiretap be conducted in such
a way as to minimize or eliminate the interception of
communications other than the type described. Those
communications subject to seizure were described as
"communications of Bentley Dye [petitioner] relating
to the offenses of Bookmaking and Conspiracy from telephone
facility number 201-725-9743."
Pursuant to the order, the police placed a wiretap on
the telephone which was operative for 22 days. Over
105 hours of conversations were tapped. A master tape
of those conversations allegedly involving bookmaking
and the conspiracy was made and it ran about 2½ hours.
The recordings of nonrelated communications were
sealed. (No reason is given as to why they were not
destroyed.) On several days when petitioner was not
at work the wiretap remained in effect, recording any calls
made on the telephone.
In Berger v. New York, 388 U. S. 41, 63, this Court
held that "[w]hile '[t]he requirements of the Fourth
Amendment are not inflexible, or obtusely unyielding to
the legitimate needs of law enforcement' ... it is not
asking too much that officers be required to comply with
the basic command of the Fourth Amendment before the
innermost secrets of one's home or office are invaded.
Few threats to liberty exist which are greater than that
posed by the use of eavesdropping devices."
In Berger, the language of the New York statute authorizing
the wiretap was held to be unconstitutionally
broad because authorization thereunder operated as the
issuance of an illegal general warrant. The authoriza1092
OCTOBER TERM, 1972
DouGLAS, J., dissenting 409 U.S.
tion in Berger allowed a wiretap to be placed on the
defendant's business office phone for a period of 60 days.
The authorization was issued on the basis of affidavits
advising the judge that the bases for the suspicions of a
conspiracy to bribe the Chairman of the New York State
Liquor Authority were recorded interviews between a
complainant and the petitioner.
In Berger the Court placed special emphasis on the
Fourth Amendment requirements that there be probable
cause for the belief that a particular offense has been or
is being committed and that the "property" ( conversations)
to be seized be described with particularity. In
addition, the Court found the authorization constitutionally
infirm on the grounds that an authorization for
a period of two months constitutes a series of intrusions
pursuant to a single showing of probable cause and that
the authorization did not establish an intermediate termination
date once the conversation sought was intercepted.
These same concerns dictate a reversal in the instant
case: Only the merest investigation had been undertaken
to establish that a particular offense was being committed,
and part of that investigation, the unsuccessful
attempt by an informer to place a bet, itself negated the
suspicion. Although the authorization order limited the
conversations to be seized, the execution of the order
included seizure of all conversations on the telephone
over the period of the wiretap. Such an invasion of
privacy is even more horrendous since it involves a pay
telephone in a public place where the majority of users
and conversations, as indicated by the 102½ hours of
innocent conversations out of the 105 hours of seized
conversations, will have no relationship to the alleged
criminal activity. Authorization for a 30-day wiretap
would not appear to be any less of a continuing
search than authorization for 60 days, especially in
ORDERS 1093
409 u. s. December 18, 1972
light of the absence of any establishment of an intermediate
termination date once the conversation sought
was intercepted.
It is alleged that the New Jersey statute under which
this wiretap was authorized is for all practical purposes
identical to the federal authorization for wiretapping contained
in Title III of the Omnibus Crime Control and
Safe Streets Act of 1968, 18 U. S. C. § 2510 et seq. If
the authorization of the wiretap in the instant case, which
is the equivalent of a general warrant, is allowed by either
of these statutes, then it is difficult to declare them
constitutional.
I would grant certiorari.
No. 72-5566. EGBERT v. MARTINEZ ET AL. C. A. 10th
Cir. Application for extension of time to file petition
nunc pro tune presented to MR. JusTICE WHITE, and by
him ref ened to the Court, denied. Certiorari denied.
Rehearing Denied
No. 71-1497. BECK V. CONNECTICUT GENERAL LIFE
INSURANCE Co., ante, p. 845;
No. 71-6500. DOHERTY v. UNITED STATES, ante, p.
888;
No. 71-6649. FAIR v. SEBESTA, ante, p. 978;
No. 71-6847. MARTIN v. UNITED STATES, ante, p. 870;
No. 72-240. HARPER v. UNITED STATES, ante, p. 973;
No. 72-319. KENNECOTT COPPER CORP. ET AL. V. STATE
TAX COMMISSION OF UTAH, ante, p. 973;
No. 72-5014. CONNORS v. JOHNSON, WARDEN, ante,
p. 1009; and
No. 72-5351. NEWELL v. UNITED STATES, ante, p.
1025. Petitions for rehearing denied.
No. 71-6540. GRENE v. UNITED STATES, ante, p. 856.
Motion for leave to file petition for rehearing denied.
1094 OCTOBER TERM, 1972
December 21, 1972, January 81 1973
DECEMBER 21, 1972
Dismu,sals Under Rule 60
409 u. s.
No. 72-457. RODRIGUEZ v. SEAMANS, SECRETARY OF
THE Arn FORCE, ET AL. C. A. D. C. Cir. Certiorari dismissed
under Rule 60 of the Rules of this Court. Reported
below: 150 U.S. App. D. C. 1, 463 F. 2d 837.
No. 72-5302. PHILLIPS V. HOUSING AUTHORITY OF
CITY OF PROVIDENCE. Appeal from Sup. Ct. R. I. dismissed
under Rule 60 of the Rules of this Court. Reported
below: 109 R. I. 612, 289 A. 2d 44.
JANUARY 8, 1973
Affirmed on Appeal
No. 72---579. MISSOURI PACIFIC RAILROAD Co. V.
UNITED STATES ET AL. Affirmed on appeal from D. C.
E. D. Mo. MR. JUSTICE DOUGLAS would note probable
jurisdiction and set case for oral argument. Reported
below: 346 F. Supp. 1193.
No. 72---581. KANSAS CITY SOUTHERN RAILWAY Co.
ET AL. v. UNITED STATES ET AL. Affirmed on appeal from
D. C. W. D. Mo. Reported below: 346 F. Supp. 1211.
No. 72-632. NATIONAL MOTOR FREIGHT TRAFFIC
AssN., INc., ET AL. v. UNITED STATES ET AL. Affirmed
on appeal from D. C. D. C.
N 0. 72---723. UNITED STATES V. STATE CORPORATION
COMMISSION OF VIRGINIA ET AL. Affirmed on appeal
from D. C. E. D. Va. MR. JusTICE DOUGLAS would note
probable jurisdiction and set case for oral argument.
MR. JUSTICE POWELL took no part in the consideration
or decision of this appeal. Reported below: 345 F. Supp.
843.
ORDERS 1095
409 u. s. January 8, 1973
No. 72-621. WELLS v. EDWARDS, GovERNOR OF LomsrANA,
ET AL. Affirmed on appeal from D. C. M. D. La.
Reported below: 347 F. Supp. 453.
MR. JusTICE WHITE, with whom MR. JusTICE DouGLAS
and MR. JusTICE MARSHALL join, dissenting.
The Louisiana constitutional provisions, which this
Court today upholds against appellant's renewed constitutional
attack, provide for the election of the State's
Supreme Court Justices from election districts that are
established without regard to population. Voters in five
districts, composed of varying numbers of parishes, elect
one justice each. A sixth district elects two justices.
La. Const., Art. VII, § 9. The record before the District
Court indicated that there was "considerable deviation
between the population of some of the [ election]
districts," 347 F. Supp. 453, 454,1 and that, therefore, the
votes of some qualified voters, depending on the happenstance
of residence, were of less value in electing justices
than others cast elsewhere. But the District Court
refused even to consider this evidence and, relying on a
few isolated sentences in Hadley v. Junior College District,
397 U. S. 50 ( 1970), concluded that "the concept
of one-man, one-vote apportionment does not apply to
the judicial branch of the government." 347 F. Supp.,
at 454. Summary judgment was entered against appellant,
who had attacked the Louisiana scheme under the
Equal Protection Clause of the Fourteenth Amendment.
In Hadley, we held that the one-person, one-vote
principle extended to the election of trustees for a consolidated
junior college district. Mr. Justice Black,
writing for the Court, stated broadly that, as a general
rule, "whenever a state or local government
1 The record indicates that in 1970 the election districts ranged
in population from 369,485 to 682,1172. The two-justice district
had a total population of 1,007,449.
1096 OCTOBER TERM, 1972
WHITE, J., dissenting 409 U.S.
decides to select persons by popular election to perform
governmental functions, the Equal Protection Clause
of the Fourteenth Amendment requires that each qualified
voter must be given an equal opportunity to participate
in that election." 397 U. S., at 56. The District
Court in this case seized upon the phrase "persons ...
to perform governmental functions," and concluded that
such persons were limited to "officials who performed
legislative or executive type duties." 347 F. Supp., at
455.2 I find no such limiting import in the phrase.
Judges are not private citizens who are sought out by
litigious neighbors to pass upon their disputes. They
are state officials, vested with state powers and elected
(or appointed) to carry out the state government's judicial
functions. As such, they most certainly "perform
2 There is language in other district court opinions to the effect
that the one-person, one-vote principle does not apply to the
judiciary. See, e. g., Holshouser v. Scott, 335 F. Supp. 928 CMDNC
1971), aff'd, ante, p. 807; Buchanan v. Rhodes, 249 F. Supp.
860 (ND Ohio), appeal dismissed for want of jurisdiction,
385 U. S. 3 (1966); Stokes v. Fortson, 234 F. Supp. 575
(ND Ga. 1964). See also New York Assn. of Trial Lawyers v.
Rockefeller, 267 F. Supp. 148 (SDNY 1967). The statutory schemes
involved in those cases, howe\'er, differ materially from the Louisiana
provisions at issue here. For example, in Holshouser and
Stokes, district judges were nominated through primaries in districts
with varying populations; the judges were elected, however, on a
statewide basis that conformed to the one-person, one-vote principle.
In this context, the district courts rejected the claim that plaintiffs'
primary votes were "diluted" by the general election. Cf.
Sailors v. Board of Education, 387 U. S. 105 (1967); Dusch v.
Davis, 387 U. S. 112 (1967). In Buchanan, plaintiffs claimed that
the apportionment of trial judges in the State resulted in fewer
judges per capita in urban districts than in rural districts. Plaintiffs
challenged the apportionment on the ground that it denied
them speedy justice, not on the ground that their vote in statewide
elections was diluted.
See generally Note, The Equal-Population Principle: Does It
Apply To Elected Judges?, 47 Notre Dame Law. 316 (1971).
ORDERS 1097
1095 WHITE, J., dissenting
governmental functions." Indeed, this Court held precisely
that nearly a decade ago, in Gray v. Sanders, 372
U. S. 368 (1963), by invalidating Georgia's county unit
system that had been used for counting Democratic
Party primary votes for United States Senator, Governor,
statehouse officers, justices of the Supreme Court,
and judges of the Court of Appeals. Nowhere did we
suggest that the county unit system was any less unconstitutional
for the election of judges than for the
election of governor. On the contrary, with the most
direct language possible, the Court stated:
"The concept of 'we the people' under the Constitution
visualizes no preferred class of voters
but equality among those who meet the basic qualifications.
The idea that every voter is equal to
every other voter in his State, when he casts his
ballot in favor of one of several competing candidates,
underlies many of our decisions." Id., at
379-380.
We have held that a State may dispense with certain
elections altogether (see Sailors v. Board of E,ducation,
387 U. S. 105 ( 1967); cf. Fortson v. Morris, 385 U. S.
231 ( 1966)) and we have suggested that not all persons
must be permitted to vote on an issue that may affect
only a discernible portion of the public, see Kramer v.
Union Free School District, 395 U. S. 621, 632 (1969).
What I had thought the apportionment decisions at least
established is the simple constitutional principle that,
subject to narrow exceptions,3 once a State chooses to
3 For example, in Hadley, Mr. Justice Black conceded the possibility
"that there might be some case in which a State elects
certain functionaries whose duties are so far removed from normal
governmental activities and so disproportionately affect different
groups that a popular election in compliance with Reynolds ...
might not be required." 397 U. S., at 56. See Avery v. Midland
County, 390 U. S. 474, 483-484 (1968).
1098 OCTOBER TERM, 1972
January 8, 1973 409 U.S.
select officials by popular vote, each qualified voter must
be treated with an equal hand and not be subjected to
irrational discrimination based on his residence. See
Reynolds v. Sims, 377 U.S. 533, 554-555 (1964). Nothing
could be plainer from Mr. Justice Black's statement
in Hadley, 397 U. S., at 54-55:
"[W]hile the office of junior college trustee differs
in certain respects from those offices considered in
prior cases, it is exactly the same in the one crucial
factor-these officials are elected by popular vote.
"When a court is asked to decide whether a State
is required by the Constitution to give each qualified
voter the same power in an election open to
all, there is no discernible, valid reason why constitutional
distinctions should be drawn on the basis
of the purpose of the election. If one person's
vote is given less weight through unequal apportionment,
his right to equal voting participation is
impaired just as much when he votes for a school
board member as when he votes for a state legislator.
While there are differences in the powers
of different officials, the crucial consideration is the
right of each qualified voter to participate on an
equal footing in the election process. It should
be remembered that in cases like this one we are
asked by voters to insure that they are given equal
treatment, and from their perspective the harm
from unequal treatment is the same in any election,
regardless of the officials selected."
The judgment of the District Court is questionable
under a decade of this Court's decisions. It at least
warrants plenary review here.
No. 72-660. DAVIS ET AL. V. EDWARDS, GOVERNOR OF
LOUISIANA, ET AL. Affirmed on appeal from D. C. E. D.
La. Reported below: 345 F. Supp. 1025.
ORDERS 1099
409 U.S. January 8, 1973
Appeals Dismissed
No. 71-1577. REXRODE v. VIRGINIA. Appeal from
Sup. Ct. Va. dismissed for want of substantial federal
question.
No. 72-695. KELLEMS ET AL. v. BROWN, TAX COMMISSIONER,
ET AL. Appeal from Sup. Ct. Conn. dismissed
for want of substantial federal question.
No. 72-179. WILKINSON v. WILKINSON. Appeal
from Sup. Jud. Ct. Mass. Motion to dispense with
printing jurisdictional statement and motion of appellee
for leave to proceed in forma paitperis granted. Appeal
dismissed for want of substantial federal question.
No. 72-622. CUTRONE v. KELLY, ADMINISTRATIVE
JuDGE, ET AL. Appeal from App. Div., Sup. Ct. N. Y.,
2d Jud. Dept., dismissed for want of jurisdiction. Treating
the papers whereon the appeal was taken as a petition
for writ of certiorari, certiorari denied. Reported
below: 39 App. Div. 2d 725, 332 N. Y. S. 2d 413.
No. 72- 670. McLEAN TRUCKING Co. v. CouNTY OF
FORSYTH ET AL. 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: 281 N. C. 375, 189
S. E. 2d 194.·
No. 72-640. OREGON STATE ELKS AssN. ET AL. v.
FALKENSTEIN ET AL. Appeal from D. C. Ore. dismissed
for want of jurisdiction.
No. 72-5468. CARR v. TEXAS. Appeal from Ct. Crim.
App. Tex. 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 would note probable jurisdiction and set case
for oral argument. Reported below: 475 S. W. 2d 755 .
1100 OCTOBER TERM, 1972
January 8, 1973 409 U.S.
Certiorari Granted-Vacated and Remanded
No. 72-308. FITZHARRis, WARDEN v. LovE. C. A. 9th
Cir. Motion of respondent for leave to proceed in forma
pauperis and certiorari granted. Judgment vacated and
case remanded with directions to dismiss case as moot.
MR. JUSTICE STEWART and MR. JUSTICE MARSHALL would
deny certiorari. Reported below: 460 F. 2d 382.
M -iscellaneous Orders
No. A-557. ENDERS, DISTRICT ATTORNEY OF ONEIDA
COUNTY, NEW YORK, ET AL. V. ESQUIRE THEATERS OF
AMERICA, INc. D. C. N. D. N. Y. Application for
stay of execution of judgment in case No. 72-CV-450 presented
to THE CHIEF JUSTICE, and by him referred to
the Court, granted pending disposition of case in the
United States Court of Appeals for the Second Circuit.
No. A-605. HAMPTON, CHAIRMAN, U. S. CIVIL SERVICE
COMMISSION, ET AL. V. FITZGERALD ET AL. C. A. D. C.
Cir. Motion of the Solicitor General to dissolve stay
granted. [See ante, p. 1055.J
No. D-1. IN RE DISBARMENT OF KAHN. It having
been reported to this Court that Frances Kahn of New
York, New York, has been disbarred from the practice of
law in all of the courts of the State of New York, and this
Court by order of November 6, 1972 (ante, p. 974), having
suspended the said Frances Kahn from the practice of
law in this Court and directed that a rule issue requiring
her to show cause why she should not be disbarred;
And it appearing that the said rule was duly issued
and served upon the respondent and that the time within
which to file a return has expired;
IT Is ORDERED that the said Frances Kahn be, and she
is hereby, disbarred from the practice of law in this Court
and that her name be stricken from the roll of attorneys
admitted to practice before the Bar of this Court.
ORDERS 1101
409U.S. January 8, 1973
No. A-665. KINGSTON ET AL., JusTICES v. McLAUGHLIN,
JUSTICE, ET AL. D. C. Mass. Application for stay
of judgment presented to MR. JUSTICE DOUGLAS, and by
him referred to the Court, denied. Reported below: 359
F. Supp. 25.
No. D-2. IN RE DISBARMENT OF ABRAMS. It having
been reported to this Court that Hyman Abrams of New
York, New York, has been disbarred from the practice
o-l law in all of the courts of the State of New York, and
this Court by order of November 6, 1972 (ante, p. 974),
having suspended the said Hyman Abrams from the practice
of law in this Court and directed that a rule issue
requiring him to show cause why he should not be
disbarred;
And it appearing that the said rule was duly issued
and served upon the respondent and that the time within
which to file a return has expired;
IT Is ORDERED that the said Hyman Abrams be, and he
is hereby, disbarred from the practice of law in this Court
and that his name be stricken from the roll of attorneys
admitted to practice before the Bar of this Court.
No. D-4. IN RE DISBARMENT OF BROUNER. It having
been reported to this Court that Samuel B. Brouner
of New York, New York, has been disbarred from the
practice of law in all of the courts of the State of New
York, and this Court by order of November 6, 1972 (ante,
p. 974), having suspended the said Samuel B. Brouner
from the practice of law in this Court and directed that
a rule issue requiring him to show cause why he should
not be disbarred;
And it appearing that the said rule was issued and
served upon the respondent and that the time within
which to file a return has expired;
IT Is ORDERED that the said Samuel B. Brouner be,
and he is hereby, disbarred from the practice of law in
1102 OCTOBER TERM, 1972
January 8, 1973 409 U.S.
this Court and that his name be stricken from the roll
of attorneys admitted to practice before the Bar of this
Court.
No. D-8. IN RE DISBARMENT OF PAVSNER. It having
been reported to this Court that Emanuel H. Pavsner of
New York, New York, has been suspended from the practice
of law by the Supreme Court of New York, Appellate
Division, First Judicial Department, for a period of three
years effective March 27, 1972, and until further order
of that court, and such order was duly entered March 30,
1972, and this Court by order of November 6, 1972 (ante,
p. 975), having suspended the said Emanuel H. Pavsner
from the practice of law in this Court and directed that
a rule issue requiring him to show cause why he should
not be disbarred;
And it appearing that the said rule was duly issued
and served upon the respondent, and that a response has
been filed,
IT Is ORDERED that the said Emanuel H. Pavsner be,
and he is hereby, disbarred from the practice of law in
this Court and that his name be stricken from the roll
of attorneys admitted to practice before the Bar of this
Court.
No. 27, Orig. OHIO v. KENTUCKY. Motion of Ed W.
Hancock, Attorney General of Kentucky, for leave to
permit John M. Famularo, Esquire, to argue pro hac vice
granted. [For earlier orders herein, see, e. g., 406 U. S.
915.J
No. 71-1598. HODGSON, SECRETARY OF LABOR v. ARNHEIM
& NEELY, INc., ET AL. C. A. 3d Cir. [Certiorari
granted, ante, p. 840.J Motion of Institute of Real Estate
Management for leave to participate in oral argument
granted and five minutes of respondents' time allotted
for that purpose.
ORDERS 1103
409 u. s. January 8, 1973
No. 50, Orig. VERMONT v. NEW YORK ET AL. Motion
of the United States for leave to intervene referred to
Special Master. [For earlier orders herein, see, e. g.,
408 u. s. 917.]
No. 71-685-. LEHNHAUSEN, DIRECTOR, DEPARTMENT OF
LOCAL GOVERNMENT AFFAIRS OF ILLINOIS V. LAKE SHORE
AUTO PARTS Co. ET AL.; and
No. 71-691. BARRETT, COUNTY CLERK OF COOK
CouNTY, ILLINOIS, ET AL. v. SHAPIRO ET AL. Sup. Ct. Ill.
[Certiorari granted, 405 U. S. 1039.] Motion of Proviso
Township High School District No. 209 et al. for reconsideration
of their motion for leave to participate in oral
argument as amici curiae denied.
No. 71-1021. EMPLOYEES OF THE DEPARTMENT OF
PUBLIC HEALTH AND WELFARE OF MISSOURI ET AL. v. DEPARTMENT
OF PUBLIC HEALTH AND WELFARE OF MrssouRI
ET AL. C. A. 8th Cir. [Certiorari granted, 405
U. S. 1016.] Motion of the Solicitor General for leave
to participate in oral argument as amicus curiae in support
of petitioners granted and 15 minutes allotted for
that purpose. Respondents also allotted 15 additional
minutes for oral argument.
No. 71-1069. AssocIATED ENTERPRISES, INc., ET AL.
v. T0LTEC WATERSHED IMPROVEMENT DISTRICT. Appeal
from Sup. Ct. Wyo. [Probable jurisdiction noted, 407
U. S. 908.] Motion of American Civil Liberties Union
et al. for leave to file a brief as amici curiae granted.
No. 71-6078. LINDA R. S. v. RICHARD D. ET AL. Appeal
from D. C. N. D. Tex. [Probable jurisdiction postponed,
405 U. S. 1064.] Motion of appellant for appointment
of counsel granted. It is ordered that Windle
Turley, Esquire, of Dallas, Texas, a member of the Bar
of this Court, be, and he is hereby, appointed to serve
as counsel for appellant in this case.
1104 OCTOBER TERM, 1972
January 8, 1973 409U.S.
No. 71 -1456. SALYER LAND Co. ETAL. v. TULARE LAKE
BASIN WATER STORAGE DISTRICT. Appeal from D. C.
E. D. Cal. [Probable jurisdiction noted, 408 U. S. 920.J
Motion of American Civil Liberties Union et al. for leave
to file a brief as amid curiae granted.
No. 71-1192. GOLDSTEIN ET AL. v. CALIFORNIA. App.
Dept., Super. Ct. Cal., County of Los Angeles. [Certiorari
granted, 406 U. S. 956.J Motion of respondent
for leave to file supplemental brief after argument
granted.
No. 71-1637. CITY OF BURBANK ET AL. V. LOCKHEED
Arn TERMINAL , INC., ET AL. Appeal from C. A. 9th Cir.
[Probable jurisdiction noted, ante, p. 840.J Motion of
the Solicitor General for leave to participate in oral
argument as amicus curiae in support of appellants
granted and 15 minutes allotted for that purpose. Appellees
also allotted 15 additional minutes for oral
argument.
No. 72-146. HUNTER, DBA COURIER v. UNITED STATES,
ante, p. 934. Respondent requested to file response to
motion for leave to file petition for rehearing within 30
days.
No. 72-552. SATIACUM v. WASHINGTON. Sup. Ct.
Wash. The Solicitor General is invited to file a brief
expressing the views of the United States in this case.
Reported below: 80 Wash. 2d 492, 495 P. 2d 1035.
No. 72-679. UNITED MINE WORKERS OF AMERICA
ET AL. v. YABLONSKI ET AL. C. A. D. C. Cir. Motion of
Paul R. Connolly, Esquire, and .Earl C. Dudley, Jr.,
Esquire, of Washington, D. C., members of the Bar of
this Court, for leave to withdraw as counsel for petitioners
granted. Reported below: 151 r. S. App. D. C. 253,
466 F. 2d 424.
ORDERS
409 u. s. January 8, 1973
No. 72-671. ESPINOZA ET vm v. FARAH MANUFACTURING
Co., INC. C. A. 5th Cir. The Solicitor General is
invited to file a brief expressing the views of the United
States in this case. Reported below: 462 F. 2d 1331.
No. 72-5655. HILL v. HENDERSON, WARDEN. Motion
for leave to file petition for writ of habeas corpus denied.
No. 72-5304.
No. 72-5568.
ET AL.;
BRADLEY V. SUPREME COURT OF INDIANA;
DAVIS v. NEARER, u. s. DISTRICT JUDGE,
No. 72-5671. OLDEN v. CHAMBERS, U. S. CmcuIT
JUDGE, ET AL.; and
No. 72-5672. MuNCASTER v. UNITED STATES. Motions
for leave to file petitions for writs of mandamus
denied.
Probable Jurisdiction Noted
No. 72-658. CITY OF KENOSHA ET AL. v. BRUNO ET AL.
Appeal from D. C. E. D. Wis. Probable jurisdiction
noted. Reported below: 346 F. Supp. 43.
Certiorari Granted
No. 72-394. RrcHARDSON, SECRETARY OF HEALTH, EDUCATION,
AND WELFARE, ET AL. v. HYNSON, WESTCOTT &
DUNNING, INC.;
No. 72-414. HYNSON, WESTCO'I'l' & DUNNING, INC. V.
RICHARDSON, SECRETARY OF HEALTH, EDUCATION, AND
WELFARE, ET AL.;
No. 72-555. RICHARDSON, SECRETARY OF HEALTH, EDUCATION,
AND WELFARE, ET AL. V. BENTEX PHARMACEUTICALS,
INC., ET AL.;
No. 72-666. USV PHARMACEUTICAL CORP. V. RICHARDSON,
SECRETARY OF HEALTH, EDUCATION, AND WELFARE,
ET AL. C. A. 4th Cir.; and
No. 72-528. CIBA CORP. v. RrcHARDSON, SECRETARY
OF HEALTH, EDUCATION, AND WELFARE, ET AL. C. A. 3d
Cir. Reported below: Nos. 72-394 and 72-414, 461 F. 2d
1106 OCTOBER TERM, 1972
January 8, 1973 409U.S.
215; No. 72-555, 463 F. 2d 363; No. 72-666, 461 F. 2d
223; and No. 72-528, 463 F. 2d 225. Motion of American
Public Health Assn. et al. for leave to file a brief as
amici curiae in No. 72-394 granted. Certiorari granted.
Cases consolidated and a total of three hours allotted for
oral argument.
No. 72-656. LoGuE ET AL. v. UNITED STATES. C. A.
5th Cir. Certiorari granted. Reported below: 459 F. 2d
408 and 463 F. 2d 1340.
No. 72-5521. STRUNK, AKA WAGNER v. UNITED STATES.
C. A. 7th Cir. Motion for leave to proceed in forma
pauperis and certiorari granted. Reported below: 467
F. 2d 969.
Certiorari Denied. (See also Nos. 72-622, 72-670, and
72-5468, supra.)
No. 71-1528. SPEARS v. MISSISSIPPI. Sup. Ct. Miss.
Certiorari denied. Reported below: 257 So. 2d 876.
No. 71-6449. ELLINGBURG v. GooDsoN, JuDGE, ET AL.
C. A. 8th Cir. Certiorari denied.
No. 71-6800. D'AMBRA v. NEw YORK. App. Div.,
Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied.
No. 72-292. MARRERO LAND & IMPROVEMENT AssN.,
LTD. v. JEFFERSON PARISH ScHOOL BoARD. Sup. Ct. La.
Certiorari denied. Reported below: 261 La. 1054, 262
So. 2d 39.
No. 72-338. CARROLL, SHERIFF, ET AL. v. McDANIEL
ET AL. C. A. 6th Cir. Certiorari denied. Reported below:
457 F. 2d 968.
No. 72-348. HUTTER ET AL. V. TANCK ET AL. C. A.
7th Cir. Certiorari denied.
ORDERS 1107
409 U.S. January 8, 1973
No. 72-351. MARAMAN v. HARDISTER ET AL. Dist. Ct.
App. Fla., 2d Dist. Certiorari denied.
No. 72-366. VILLAGE OF WALTHILL, NEBRASKA, ET AL.
v. OMAHA TRIBE OF NEBRASKA ET AL. C. A. 8th Cir.
Certiorari denied. Reported below: 460 F. 2d 1327.
No. 72-392. CRAMER ET UX. V. DIRECTOR OF REVENUE.
Sup. Ct. Del. Certiorari denied.
No. 72-393. UNITED TRANSPORTATION UNION V.
UNITED STATES ET AL. C. A. 8th Cir. Certiorari denied.
Reported below: 464 F. 2d 301.
No. 72-444. MISSOURI PACIFIC RAILROAD Co. v. WILLIAM
A. SMITH CoNTRACTING Co., INC. Ct. App. Mo.,
Kansas City District. Certiorari denied. Reported below:
481 S. W. 2d 580.
No. 72-448. DASHER v. BLACKMON, COMMISSIONER,
DEPARTMENT OF REVENUE, ET AL. Sup. Ct. Ga. Certiorari
denied. Reported below: 229 Ga. 289, 191 S. E.
2d 82.
No. 72-474. ScHATTMAN v. TEXAS EMPLOYMENT
COMMISSION ET AL. C. A. 5th Cir. Certiorari denied.
Reported below: 459 F. 2d 32.
No. 72-483. SALAZAR v. UNITED STATES;
No. 72-485. NORMAN v. UNITED STATES;
No. 72-525. COOPER v. UNITED STATES;
No. 72-5454. CooPER v. UNITED STATES; and
No. 72-5563. CooPER v. UNITED STATES. C. A. 10th
Cir. Certiorari denied. Reported below: 464 F. 2d
648.
No. 72-609. KoKAS v. UNITED STATES. C. A. 7th
Cir. Certiorari denied. Reported below: 466 F. 2d 567.
OCTOBER TERM, 1972
January 8, 1973 409 U.S.
No. 72-595. MOTT ET AL., EXECUTORS v. UNITED
STATES. Ct. Cl. Certiorari denied. Reported below:
199 Ct. Cl. 127,462 F. 2d 512.
No. 72-628. MooRE ET AL. v. UNITED STATES. C. A.
5th Cir. Certiorari denied. Reported below: 465 F. 2d
514.
No. 72-636. LoMBARDOZZI v. UNITED STATES. C. A.
2d Cir. Certiorari denied. Reported below: 467 F. 2d
160.
No. 72-642. MAYRUE's SuPER LIQUOR STORES, INC.,
ET AL. V. HODGSON, SECRETARY OF LABOR. C. A. 5th Cir.
Certiorari denied. Reported below: 464 F. 2d 1196.
No. 72-645. BRIOLA v. UNITED STATES. C. A. 10th
Cir. Certiorari denied. Reported below: 465 F. 2d
1018.
No. 72-646. OREE v. UNITED STATES. C. A. 2d Cir.
Certiorari denied. Reported below: 465 F. 2d 1405.
No. 72-657. LOCAL UNION 103, INTERNATIONAL Asso-
CIATION OF BRIDGE, STRUCTURAL & ORNAMENTAL IRON
WORKERS, AFL-CIO, ET AL. v. NATIONAL LABOR RELATIONS
BOARD ET AL. C. A. 7th Cir. Certiorari denied.
Reported below: 465 F. 2d 327.
No. 72-661. LEDES v. NEw YoRK. Ct. App. N. Y.
Certiorari denied. Reported below: 30 N. Y. 2d 816,
286 N. E. 2d 282.
No. 72-662. BATA v. BATA ET AL. Sup. Ct. Pa. Certiorari
denied. Reported below: 448 Pa. 355, 293 A. 2d
343.
No. 72-663. TURNPIKE REALTY Co., INc. v. TowN OF
DEDHAM. Sup. Jud. Ct. Mass. Certiorari denied. Reported
below: - Mass.-, 284 N. E. 2d 891.
ORDERS 1109
409 U.S. January 8, 1973
No. 72-664 .. BECKER v. UNITED STATES. C. A. 7th
Cir. Certiorari denied. Reported below: 466 F. 2d 886.
No. 72-672. PoouE v. RETAIL CREDIT Co. C. A. 4th
Cir. Certiorari denied. Reported below: 453 F. 2d 336.
No. 72-674. BALDWIN-LIMA-HAMILTON CORP. v.
AETNA CASUALTY & SuRETY Co. ET AL. Sup. Ct. Conn.
Certiorari denied. Reported below: 163 Conn. 331, 307
A. 2d 169.
No. 72-678. FoRD, DBA FORD RECORDS v. Fmm MOTOR
Co. C. C. P. A. Certiorari denied. Reported below:
59 C. C. P. A. (Pat.) 1124, 462 F. 2d 1405.
No. 72-697. JEMco, INC. v. NATIONAL LABOR RELATIONS
BOARD. C. A. 6th Cir. Certiorari denied. Reported
below: 465 F. 2d 1148.
No. 72-706. E. A. McQUADE TOURS, INC. v. CONSOLIDATED
Arn TouR MANUAL COMMITTEE ET AL. C. A.
5th Cir. Certiorari denied. Reported below: 467 F . 2d
178.
No. 70--709. RIALTO THEATRE Co. ET AL. v. CITY OF
WILMINGTON ET AL. C. A. 3d Cir. Certiorari denied.
Reported below: 460 F. 2d 281.
No. 72-711. GERNETH ET AL. v. CITY OF DETROIT.
C. A. 6th Cir. Certiorari denied. Reported below: 465
F. 2d 784.
No. · 72-714. CALIFORNIA V. MUNICIPAL COURT FOR
THE SACRAMENTO MUNICIPAL COURT DISTRICT OF SACRAMENTO
COUNTY ET AL. (ALFORD, REAL PARTY IN INTEREST).
Ct. App. Cal., 3d App. Dist. Certiorari denied.
Reported below: 26 Cal. App. 3d 244, 102 Cal. Rptr. 667.
No. 72-728. BERGENTHAL v. CADY, WARDEN. C. A.
7th Cir. Certiorari denied. Reported below: 466 F . 2d
635.
1110 OCTOBER TERM, 1972
January 8, 1973 409 U.S.
No. 72-732. LANCASTER v. NEw YORK. App. Div.,
Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied. Reported
below: 39 App. Div. 2d 776, 332 N. Y. S. 2d 735.
No. 72-735. FILTR0L CORP. ET AL. V. KELLEHER, U.S.
DISTRICT JuDGE. C. A. 9th Cir. Certiorari denied. Reported
below: 467 F. 2d 242.
No. 72-762. REYES v. NEW YoRK. Ct. App. N. Y.
Certiorari denied. Reported below: 31 N. Y. 2d 668, 288
N. E. 2d806.
No. 72-5126. HYDE v. NELSON, WARDEN. C. A. 9th
Cir. Certiorari denied.
No. 72-5226. BASKERVILLE v. HENDERSON, CORRECTIONAL
SUPERINTENDENT. C. A. 2d Cir. Certiorari
denied.
No. 72-5257. SHANK v. PENNSYLVANIA. C. A. 3d
Cir. Certiorari denied. Reported below: 461 F. 2d 61.
No. 72-5303. BIRNBAUM v. NEw JERSEY. Middlesex
County Ct. N. J. Certiorari denied.
No. 72-5310. MATTHEWS v. SMITH ET AL. C. A. 5th
Cir. Certiorari denied.
No. 72-5320. GARDNER v. McCARTHY, MEN's CoLONY
SUPERINTENDENT. Sup. Ct. Cal. Certiorari denied.
No. 72-5349. VALDIVIA v. CALIFORNIA. Ct. App. Cal.,
4th App. Dist. Certiorari denied.
No. 72-5359. PARKER v. W1scoNsIN. Sup. Ct. Wis.
Certiorari denied. Reported below: 55 Wis. 2d 131, 197
N. W. 2d 742.
No. 72-5390. HERRERA v. NEw MEx1co. Ct. App.
N. M. Certiorari denied. Reported below: 84 N. M. 46,
499 P. 2d 364.
ORDERS 1111
409 U.S. January 8, 1973
No. 72-5520. FROMMHAGEN v. HonGSON, SECRETARY
OF LABOR. C. A. 9th Cir. Certiorari denied.
No. 72-5536. JANOSKO v. UNITED STATES. C. A. D. C.
Cir. Certiorari denied.
No. 72-5541. ALLISON v. UNITED STATES. C. A. 9th
Cir. Certiorari denied.
No. 72-5552. JONES v: UNITED STATES. C. A. 8th
Cir. Certiorari denied. Reported below: 464 F. 2d 1118.
No. 72-5553. MOORE v. UNITED STATES. C. A. 3d Cir.
Certiorari denied. Reported below: 466 F. 2d 547.
No. 72-5557. ZWEIG v. UNITED STATES. C. A. 7th
Cir. Certiorari denied. Reported below: 467 F. 2d 1217.
No. 72-5558. WILSON v. UNITED STATES. C. A. 2d
Cir. Certiorari denied.
No. 72-5561. JOHNSON v. UNITED STATES. C. A. 8th
Cir. Certiorari denied. Reported below: 466 F. 2d 537.
No. 72-5562. MEDINA v. SMITH, WARDEN. C. A. 7th
Cir. Certiorari denied.
No. 72-5564. SMITH v. SALINE CouNTY DISTRICT
CouRT. Sup. Ct. Kan. Certiorari denied.
No. 72-5569. ScHNEIDER v. UNITED STATES. C. A.
9th Cir. Certiorari denied.
No. 72-5570. TRIPP v. SLAYTON, PENITENTIARY Su-
PERINTENDENT. C. A. 4th Cir. Certiorari denied.
No. 72-5571. RUSSEK V. GOVERNOR OF MARYLAND ET
AL. Ct. App. Md. Certiorari denied. Reported below:
266 Md. 431, 293 A. 2d 817.
No. 72-5573. JOHNSON v. UNITED STATES. C. A. 8th
Cir. Certiorari denied. Reported below: 466 F. 2d 1206.
1112 OCTOBER TERM, 1972
January 8, 1973 409U. S.
No. 72-5574. BRYANT v. UNITED STATES. C. A. D. C.
Cir. Certiorari denied. Reported below: 153 U. S. App.
D. C. 72,471 F. 2d 1040.
No. 72-5575. HESTER v. BRIERLEY, WARDEN. C. A.
3d Cir. Certiorari denied.
No. 72-5578. VrTORATOS v. CARDWELL, WARDEN.
C. A. 6th Cir. Certiorari denied.
No. 72-5580. O'BRIEN v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 466 F. 2d 517.
No. 72-5583. EscOFIL V. COMMISSIONER OF INTERNAL
REVENUE. C. A. 3d Cir. Certiorari denied. Reported
below: 464 F. 2d 358.
No. 72-5584. IN RE Nix. C. A. 5th Cir. Certiorari
denied. Reported below: 465 F. 2d 377.
No. 72-5585. LASWELL v. UNITED STATES; and
No. 72-5598. BROWN v. UNITED STATES. C. A. 9th
Cir. Certiorari denied.
No. 72-5586. CASSON v. UNITED STATES. C. A. D. C.
Cir. Certiorari denied.
No. 72-5588. McCRAY v. WARDEN, MARYLAND PENITENTIARY.
C. A. 4th Cir. Certiorari denied.
No. 72-5589. KELLY v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 465 F. 2d
1406.
No. 72--5590. ALVAREZ v. UNITED STATES ET AL. C. A.
5th Cir. Certiorari denied. Reported below: 463 F. 2d
1136.
No. 72--5594. TooMEY v. UNITED STATES. C. A. 1st
Cir. Certiorari denied.
No. 72-5595. CHAVEZ v. GIBBONS ET AL. C. A. 9th
Cir. Certiorari denied.
ORDERS 1113
409U. S. January 8, 1973
No. 72-5599. WRENN v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 463 F. 2d 1136.
No. 72-5601. MINER v. TENNESSEE. Ct. Crim. App.
Tenn. Certiorari denied.
No. 72-5602. Ross v. UNITED STATES. C. A. 9th Cir.
Certiorari denied.
No. 72-5603. McCOY v. EGELER, ACTING WARDEN.
C. A. 6th Cir. Certiorari denied.
No. 72-5606. OcHOA v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 466 F. 2d 488.
No. 72-5608. HEINDL v. WASHINGTON TERMINAL Co.
Ct. App. D. C. Certiorari denied.
No. 72-5610. TAYLOR v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 462 F. 2d 1348.
No. 72-5611. MINOR v. CuPP, WARDEN. C. A. 9th
Cir. Certiorari denied. Reported below: 466 F. 2d 1369.
No. 72-5613. KEANE v. SMITH. Sup. Ct. Conn.
Certiorari denied.
No. 72-5614. CHAMPAGNE ET AL. V. PENROD DRILLING
Co. C. A. 5th Cir. Certiorari denied. Reported below:
459 F. 2d 1042 and 462 F. 2d 1372.
No. 72-5615. HousER v. GEARY, SHERIFF, ET AL.
C. A. 9th Cir. Certiorari denied. Reported below: 465
F. 2d 193.
No. 72-5616. CHIODI v. UNITED STATES. C. A. 1st
Cir. Certiorari denied.
No. 72-5620. BAILEY v. TODD. Ct. App. Ga. Certiorari
denied. Reported below: 126 Ga. App. 731, 191
S. E. 2d 547.
1114 OCTOBER TERM, 1972
January 8, 1973 409 u. s.
No. 72-5619. BEECH v. MELANCON ET AL. C. A. 6th
Cir. Certiorari denied. Reported below: 465 F. 2d 425.
No. 72-5621. LUCAS V. WISCONSIN ELECTRIC POWER
Co. ET AL. C. A. 7th Cir. Certiorari denied. Reported
below: 466 F. 2d 638.
No. 72--5623. BRIGHT v. NEw JERSEY. C. A. 3d Cir.
Certiorari denied.
No. 72-5628. BERNSTEIN v. UNITED STATES. C. A.
2d Cir. Certiorari denied.
No. 72-5631. MEANS v. CALIFORNIA. Ct. App. Cal.,
2d App. Dist. Certiorari denied.
No. 72-5633. REILLY v. NELSON, WARDEN. C. A. 9th
Cir. Certiorari denied.
No. 72-5635. ALLEN v. THOMAS. C. A. 4th Cir.
Certiorari denied.
No. 72-5637. SZABO V. WESTMORELAND COUNTY AUTHORITIES
ET AL. C. A. 3d Cir. Certiorari denied.
No. 72--5638. IN RE SwoPE. C. A. 7th Cir. Certiorari
denied. Reported below: 466 F. 2d 936.
N 0. 72-5646. DABNEY v. DISTRICT OF COLUMBIA. Ct.
App. D. C. Certiorari denied.
No. 72-5647. EvANs v. SLAYTON, PENITENTIARY Su-
PERINTENDENT. C. A. 4th Cir. Certiorari denied.
No. 72--5649. MILSTEAD ET AL. v. CALIFORNIA ET AL.
Ct. App. Cal., 2d App. Dist. Certiorari denied.
No. 72--5650. CAMPBELL v. ESTELLE, CORRECTIONS DIRECTOR.
C. A. 5th Cir. Certiorari denied.
No. 72--5696. PLATSIS v. MICHIGAN ET AL. Ct. App.
Mich. Certiorari denied.
ORDERS 1115
409 U.S. January 8, 1973
No. 72-5653. TAYLOR v. SLAYTON, PENITENTIARY Su-
PERINTENDENT. C. A. 4th Cir. CertiorMi denied.
No. 72-5663. AUSBY v. NEW YORK. App. Div., Sup.
Ct. N. Y., 1st Jud. Dept. Certiorari denied.
No. 72-5667. JONES v. CALIFORNIA. Ct. App. Cal.,
3d App. Dist. Certiorari denied.
No. 72-5675. DAv1s v. GoMEs, WARDEN. C. A. 9th
Cir. Certiorari denied.
No. 72-5690. BRYANT v. BAILEY. C. A. 5th Cir.
Certiorari denied. Reported below: 464 F. 2d 560.
No. 72-5700. LoTT v. NEW YORK. Sup. Ct. N. Y.,
New York County. Certiorari denied.
No. 71-1510. Ross, ADMINISTRATIVE JuDGE, ET AL. v.
RADICH. C. A. 2d Cir. Certiorari denied. MR. Jus-
TICE DOUGLAS took no part in the consideration or decision
of this petition. Reported below: 459 F. 2d 745.
No. 72-1. BASKIN ET AL. v. CITY OF MIAMI BEACH.
Cir. Ct. Fla., Dade County. Certiorari denied. MR.
JUSTICE DOUGLAS would grant certiorari.
No. 72-298. COOLEY ET AL. v. ENDICTOR ET AL. C. A.
5th Cir. Certiorari denied. MR. JusTICE DouGLAS
would grant certiorari. Reported below: 458 F. 2d 513.
No. 72-364. DIRECTOR GENERAL, INDIA SUPPLY MISSION
v. THE MARu ET AL. C. A. 2d Cir. Certiorari denied.
MR. JUSTICE DouGLAS would grant certiorari. Reported
below: 459 F. 2d 1370.
No. 72-451. KENNEDY ET AL. V. BUREAU OF NARCOTICS
AND DANGEROUS DRUGS, UNITED STATES DEPARTMENT OF
JUSTICE, ET AL. C. A. 9th Cir. Certiorari denied. MR.
JusTICE DouGLAS would grant certiorari. Reported below:
459 F. 2d 415.
1116 OCTOBER TERM, 1972
January 8, 1973 409 U.S.
No. 72-580. AMERICAN CIVIL LIBERTIES UNION ET AL.
V. LAIRD, SECRETARY OF DEFENSE, ET AL. C. A. 7th Cir.
Certiorari denied. MR. JUSTICE DOUGLAS would grant
certiorari. Reported below: 463 F. 2d 499.
No. 72-584. MARTINO ET AL. v. UNITED STATES. C. A.
5th Cir. Certiorari denied. MR. JUSTICE DouGLAS
would grant certiorari. Reported below: 459 F. 2d 1032.
No. 72-601. COREY v. Avco-LYCOMING DIVISION, Avco
CORP. Sup. Ct. Conn. Certiorari denied. MR. JusTICE
DouGLAS would grant certiorari. Reported below: 163
Conn. 309, 307 A. 2d 155.
No. 72-715. UNITED STATES v. ST. Lours-SAN FRANcrsco
RAILWAY Co. ET AL. C. A. 8th Cir. Certiorari
denied. MR. JusTICE DouGLAS would grant certiorari.
Reported below: 464 F. 2d 301.
No. 72-716. WILBANKS v. ALABAMA. Ct. Crim. App.
Ala. Certiorari denied. MR. JUSTICE DouGLAS would
grant certiorari. Reported below: 48 Ala. App. 754,
266 So. 2d 637.
No. 72-5184. LYNCH v. IowA. Sup. Ct. Iowa. Certiorari
denied. MR. JUSTICE DouGLAS would grant certiorari.
Reported below: 197 N. W. 2d 186.
No. 72-5244. RIGDON v. UNITED STATES. C. A. 6th
Cir. Certiorari denied. MR. JusTICE DOUGLAS would
grant certiorari. Reported below: 459 F. 2d 379.
No. 72-5279. HILLEN v. HAWAII STATE PRISON Su-
PERINTENDENT. C. A. 9th Cir. Certiorari denied. MR.
JUSTICE DouGLAS would grant certiorari.
No. 72-5389. JOHNSON v. VIRGINIA. Sup. Ct. Va.
Certiorari denied. MR. JUSTICE Dou GLAS would grant
certiorari. Reported below: 213 Va. 102, 189 S. E. 2d
678.
ORDERS 1117
409 U.S. January 8, 1973
No. 72-5526. MASSIMO v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. MR. JUSTICE DouGLAS would
grant certiorari. Reported below: 463 F. 2d 1171.
No. 72-5540. KYLE v. UNITED STATES. C. A. D. C.
Cir. Certiorari denied. MR. JusTICE DouGLAS would
grant certiorari. Reported below: 152 U. S. App. D. C.
141, 469 F. 2d 547.
No. 72-5560. MENDEz-Rmz v. UNITED STATES. C. A.
9th Cir. Certiorari denied. MR. JusTICE DouGLAS would
grant certiorari.
No. 72-5567. HENDERSON v. MARONEY, CORRECTIONAL
SUPERINTENDENT, ET AL. Sup. Ct. Pa. Certiorari denied.
MR. JusTICE DouGLAS would grant certiorari.
Reported below: 448 Pa. 411, 293 A. 2d 64.
No. 72-5654. DOTSON v. ALABAMA. Ct. Crim. App.
Ala. Certiorari denied. MR. JUSTICE DouGLAS would
grant certiorari. Reported below: 48 Ala. App. 381, 265
So. 2d 164.
No. 72-5664. MURRAY V. OWENS, RECEPTION CENTER
SUPERINTENDENT, ET AL. C. A. 2d Cir. Certiorari denied.
MR. JUSTICE DOUGLAS would grant certiorari. Reported
below: 465 F. 2d 289.
No. 72-243. CLEAN Arn CooRDINATING COMMITTEE v.
ROTH ADAM FUEL Co. ET AL. C. A. 7th Cir. Certiorari
denied. MR. JUSTICE DOUGLAS and MR. JUSTICE STEWART
would grant certiorari. Reported below: 465 F. 2d
323.
No. 72-250. GOLDSBERRY ET AL. v. HIEBER, JUDGE.
Sup. Ct. Ohio. Motions to dispense with printing petition
and respondent's brief granted. Certiorari denied.
No. 72-5604. McDONALD v. METRO TRAFFIC AND
PARKING COMMISSION ET AL. C. A. 6th Cir. Certiorari
and other relief denied.
1118 OCTOBER TERM, 1972
January 8, 1973 409 U.S.
No. 72-598. FouRNIER v. UNITED STATES. C. A. 5th
Cir. Motion to dispense with printing petition granted.
Certiorari denied. MR. JusTICE DOUGLAS would grant
certiorari. Reported below: 468 F. 2d 952.
No. 72-665. HACKENSACK MEADOWLANDS DEVELOPMENT
COMMISSION v. TRANSCONTINENTAL GAS PIPE
LINE CORP. C. A. 3d Cir. Certiorari denied. MR. Jus-
TICE POWELL took no part in the consideration or decision
of this petition. Reported below: 464 F. 2d 1358.
No. 72-684. STEPHENS, lNc. 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: 464 F. 2d 53.
No. 72-698. HousE v. HousE. Ct. App. Cal., 4th
App. Dist. Motion of respondent to dispense with printing
brief granted. Certiorari denied. MR. JusTICE
DouGLAS would grant certiorari.
Rehearing Denied
No. 71- 1509. UNITED STATES v. JIM ET AL., ante, p.
80;
No. 71-1612. UTAH ET AL. V. JIM ET AL., ante, p. 80;
No. 71-6690. KEENY v. SWENSON, WARDEN, ante, p.
1027;
No. 71-6751. DAWN, DBA GAME Co. v. STERLING DRuG,
INc., ET AL., ante, p. 865;
No. 72-246. INTERSTATE COMMERCE COMMISSION v.
IML SEATRANSIT, LTD., ET AL., ante, p. 1003;
No. 72-266. STONE v. STONE ET AL., ante, p. 1000;
No. 72-299. PILGRIM EQUIPMENT CoMPANY OF Rous-
TON V. TEXAS ET AL., ante, p. 982;
No. 72-337. Ross v. UNITED STATES ET AL., ante, p.
984; and
No. 72-365. REILLEY v. REILLEY, ante, p. 1003. Petitions
for rehearing denied.
ORDERS 1119
409 U.S. January 8, 1973
No. 72---370. MARCUS ET AL. v. NEw YORK, ante, p.
1027;
No. 72---373. TEXAS EASTERN TRANSMISSION CORP. V.
BENSON, COMMISSIONER OF REVENUE, ante, p. 1003;
No. 72---374. SWARTHOUT V. OLUND, ante, p. 1008;
No. 72-381. BASYAP, INC., ET AL. v. DISTRICT OF Co-
LUMBIA REDEVELOPMENT LAND AGENCY ET AL., ante, p.
1008;
No. 72---447. HUTTER ET ux. v. CITY OF CHICAGO, ante,
p. 1024;
No. 72-5064. REILLY v. CAULDWELL-WINGATE Co.,
INc., ET AL., ante, p. 882;
No. 72-5097. RrCHERSON v. UNITED STATES, ante, p.
883;
No. 72-5337. Nix v. UNITED STATES, ante, p. 1013;
No. 72-5342. Houp v. UNITED STATES, ante, p. 1011;
and
No. 72---5394. HITCHCOCK v. GOMES, WARDEN, ante,
p. 1026. Petitions for rehearing denied.
No. 71-1235. CRAIG, COMMISSIONER OF SOCIAL SERVICES,
ET AL. V. GILLIARD ET AL., ante, p. 807;
No. 71-6719. BROWN v. UNITED STATES, ante, p. 864;
No. 72-55. MURCH ET AL. V. MOTTRAM, ante, p. 41;
and
No. 72-5043. WARRINER v. WISEHEART ET AL., ante,
p. 881. Motions for leave to file petitions for rehearing
denied.
Assignment Orders
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 April 16, 1973, and ending
April 20, 1973, and for such further time as may be re1120
OCTOBER TERM, 1972
January 8, 9, 15, 1973 409 U.S.
quired to complete unfinished business, pursuant to 28
U. S. C. § 294 (a), is ordered entered on the minutes of
this Court, pursuant to 28 U. S. C. § 295.
An order of THE CHIEF JUSTICE designating and assigning
Mr. Justice Clark (retired) to perform judicial
duties in the United States Court of Appeals for the
Eighth Circuit beginning June 11, 1973, and ending
June 15, 1973, 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.
JANUARY 9, 1973
Dismissal Under Rule 60
No. 71-715. FoNTHAM ET AL. v. EDWARDS, GovERNOR
OF LourSIANA, ET AL. Appeal from D. C. E. D. La. dismissed
under Rule 60 of the Rules of this Court. Reported
below: 336 F. Supp. 153.
JANUARY 15, 1973
Affirmed on Appeal
No. 72-537. GEORGES ET AL. v. McCLELLAN ET AL.
Appeal from D. C. R. I. Motions of appellees for leave
to proceed in forma pauperis, and of Rhode Island Consumers'
Council for leave to file a brief as amicus curiae,
granted. Judgment affirmed. Reported below: 350
F. Supp. 1013.
No. 72-669. SMITH'S TRANSFER CoRP. v. UNITED
STATES ET AL. Affirmed on appeal from D. C. W. D. Va.
MR. JUSTICE DOUGLAS and MR. JUSTICE REHNQUIST
would note probable jurisdiction and set case for oral
argument.
ORDERS 1121
409 U.S. January 15, 1973
No. 72-687. McLEAN TRUCKING Co. v. UNITED
STATES ET AL. Affirmed on appeal from D. C. M. D.
N. C. MR. JusTICE DouGLAS and MR. JusTICE REHNQUIST
would note probable jurisdiction and set case for
oral argument. Reported below: 346 F. Supp. 349.
Vaoote,d and Remanded on Appeal. (See No. 72-603,
ante, p. 464, and No. 72-691, ante, p. 467.)
Appeals D-ismisse,d
No. 72-446. TOMASINO v. CALIFORNIA. Appeal from
Ct. App. Cal., 2d App. Dist., dismissed for want of jurisdiction.
Treating the papers whereon the appeal was
taken as a petition for writ of certiorari, certiorari denied.
No. 72-833. WILLIAM E. GoETZ & SoNs ET AL. v.
BOARD OF REGENTS, STATE SENIOR COLLEGES, ET AL. Appeal
from C. A. 5th Cir. dismissed for want of jurisdiction.
Treating the papers whereon the appeal was taken
as a petition for writ of certiorari, certiorari denied. Reported
below: 465 F. 2d 432.
No. 72-5612. Bomsco v. NIXON, PRESIDENT OF THE
UNITED STATES, ET AL. Appeal from C. A. 9th Cir. dismissed
for want of jurisdiction. Treating the papers
whereon the appeal was taken as a petition for writ of
certiorari, certiorari denied.
No. 72-749. SUNSET AMUSEMENT Co. ET AL. v. BOARD
OF POLICE COMMISSIONERS OF THE CITY OF Los ANGELES.
Appeal from Sup. Ct. Cal. dismissed for want of substantial
federal question. Reported below: 7 Cal. 3d 64,
496 P. 2d 840.
No. 72-5471. FucHs v. SILVESTER. Appeal from Ct.
App. N. Y. dismissed for want of substantial federal question.
Reported below: 31 N. Y. 2d 154, 286 N. E. 2d
717.
1122 OCTOBER TERM, 1972
January 15, 1973 409 U.S.
Certiorari Granted-Remanded
No. 72-5293. CARTER v. UNITED STATES CouRT OF
APPEALS FOR THE FIFTH CIRCUIT. Motion for leave to
file petition for writ of mandamus denied. Motion for
leave to proceed in forma pa,uperis granted. Treating the
papers submitted as a petition for writ of certiorari,
certiorari granted and case remanded to the United
States Court of Appeals for the Fifth Circuit for further
consideration in light of the memorandum for respondent
filed by the Solicitor General in this Court on December
19, 1972.
Certiorari Granted- Vacated and Remanded
No. 72- 5391. JACKSON v. GEORGIA. Sup. Ct. Ga. Motion
for leave to proceed in f orma pauperi.s and certiorari
granted. Judgment vacated insofar as it leaves undisturbed
the death penalty imposed, and case remanded for
further consideration in light of Stewart v. Massachusetts,
408 U.S. 845 (1972). Reported below: 229 Ga. 191, 190
S. E. 2d 530.
Miscellaneous Orders
No. 40, Orig. PENNSYLVANIA v. NEw YORK ET AL.,
407 U. S. 206. Supplemental report of Special Master
received and ordered filed. Exceptions, with supporting
briefs, may be filed within 30 days.
No. 71-1031. TONASKET V. WASHINGTON ET AL. Appeal
from Sup. Ct. Wash. [Probable jurisdiction noted,
407 U. S. 908.) Motion of appellant for order requiring
briefs upon issue of jurisdiction denied.
No. 71-1553. GILLIGAN, GOVERNOR OF OHro, ET AL. v.
MORGAN ET AL. C. A. 6th Cir. [Certiorari granted, ante,
p. 947.) Motion of Law Revision Center for leave to
file a brief as amic:us curiae granted.
ORDERS 1123
409 U.S. January 15, 1973
No. 70-35. AusTIN ET AL. v. MEYER ET AL. Appeal
from D. C. M. D. Fla. Motion of appellants to reinstate
stay heretofore vacated by order of this Court on June 26,
1972 [ 408 U. S. 919], denied. MR. JusTICE DouGLAS
took no part in the consideration or decision of this
motion.
No. 71-1694. FRONTIERO ET vrn v. LAIRD, SECRETARY
OF DEFENSE, ET AL. Appeal from D. C. M. D. Ala.
[Probable jurisdiction noted, ante, p. 840.] Motion of
appellants to divide oral argument granted.
No. 71-6732. CHAFFIN V. 8TYNCHCOMBE, SHERIFF.
C. A. 5th Cir. [Certiorari granted, ante, p. 912.] Motion
of petitioner for appointment of counsel granted. It
is ordered that Glenn Zell, Esquire, of Atlanta, Georgia,
a member of the Bar of this Court, be, and he is hereby,
appointed to serve as counsel for petitioner in this case.
No. 72--5410. BLACK v. UNITED STATES, ante, p. 1027.
Respondent requested to file response to motion for leave
to file petition for rehearing within 30 days.
No. 72-5372. LUCAS V. WYOMING ET AL. Motion for
leave to file petition for writ of habeas corpus denied.
Probable Juri.sdictwn Postponed
No. 72-792. NEW YORK STATE DEPARTMENT oF SocIAL
SERVICES ET AL. v. DuBLINO ET AL.; and
No. 72-802. ONONDAGA CouNTY DEPARTMENT OF So-
CIAL SERVICES ET AL. v. DUBLINO ET AL. Appeals from
D. C. W. D. N. Y. Motion of appellees for leave to proceed
in forma pauperis granted. Further consideration of
question of jurisdiction postponed to hearing of cases on
the merits. Cases consolidated and a total of one hour
allotted for oral argument. Reported below: 348 F.
Supp. 290.
1124 OCTOBER TERM, 1972
January 15, 1973 409U.S.
Certiorari Granted
No. 71-1182. MATTZ v. ARNEIT, DIRECTOR, DEPARTMENT
OF FISH AND GAME. Ct. App. Cal., 1st App. Dist.
Certiorari granted. Reported below: 20 Cal. App. 3d
729, 97 Cal. Rptr. 894.
No. 72-549. SCHOOL BOARD oF CITY OF R1cHMOND,
VIRGINIA, ET AL. v. STATE BOARD OF EDUCATION OF VIRGINIA
ET AL.; and
No. 72-550. BRADLEY ET AL. v. STATE BOARD OF EDUCATION
OF VIRGINIA ET AL. C. A. 4th C ir. Certiorari
granted. Cases consolidated and a total of one hour
allotted for oral argument. MR. JUSTICE POWELL took no
part in the consideration or decision of these petitions.
Reported below: 462 F. 2d 1058.
No. 72-606. OKLAHOMA V, MASON, ADMINISTRATOR,
ET AL.; and
No. 72-654. UNITED STATES v. MASON, ADMINISTRATOR,
ET AL. Ct. Cl. Certiorari granted. Cases consolidated
and a total of one hour allotted for oral argument.
Reported below: 198 Ct. Cl. 599, 461 F. 2d 1364.
No. 72- 804. RucKELSHAUS, ADMINISTRATOR, ENVIRONMENTAL
PROTECTION AGENCY v, SIERRA CLUB ET AL.
C. A. D. C. Cir. Motions to file briefs as amici curiae
filed by Utah Power & Light Co., Chamber of Commerce
of the United States, American Mining Congress, and
the State of Arizona et al., granted. Certiorari granted.
Certiorari Denied. (See also Nos. 72-446, 72-833, and
72-5612, supra.)
No. 72-560. FIRST NATIONAL BANK OF FAIRBANKS V.
CAMP, COMPTROLLER OF THE CURRENCY, ET AL. C. A.
D. C. Cir. Certiorari denied. Reported below: 151 V. S.
App. D. C. 1, 465 F. 2d 586.
ORDERS 1125
409 U.S. January 15, 1973
No. 72-627. BREZINA CONSTRUCTION Co., INC., ET AL.
v. UNITED STATES. C. A. 10th Cir. Certiorari denied.
Reported below: 464 F. 2d 1141.
No. 72-641. WESTERN INTERNATIONAL HoTELS Co. v.
UNITED STATES ET AL. C. A. 9th Cir. Certiorari denied.
Reported below: 467 F'. 2d 1000.
No. 72-673. GETTY O1L Co. (EASTERN OPERATIONS),
INC. v. RucKELSHAus, ADMINISTRATOR, ENVIRONMENTAL
PROTECTION AGENCY, ET AL. C. A. 3d Cir. Certiorari
denied. Reported below: 467 F. 2d 349.
No. 72-685. FLANNERY v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 467 F. 2d 201.
No. 72-696. BOSLEY ET UX. V. ATLANTIC SEABOARD
CoRP. C. A. 4th Cir. Certiorari denied.
No. 72-712. JONES ET ux. v. UNITED STATES. C. A.
10th Cir. Certiorari denied. Reported below: 466 F. 2d
131.
No. 72-727. CERVANTES v. TIME, INc., ET AL. C. A.
8th Cir. Certiorari denied. Reported below: 464 F. 2d
986.
No. 72-729. FRANKEL v. NEw JERSEY. Super. Ct.
N. J. Certiorari denied. Reported below: 119 N. J.
Super. 579,293 A. 2d 196.
No. 72- 733. MICHIGAN NATIONAL BANK v. SUPERIOR
COURT OF CALIFORNIA, COUNTY OF CONTRA COSTA (KELL,
REAL PARTY IN INTEREST). Ct. App. Cal., 1st App.
Dist. Certiorari denied.
No. 72-742. FIRST NATIONAL BANK AT LUBBOCK ,
TRUSTEE v. UNITED STATES. C. A. 5th Cir. Certiorari
denied. Reported below: 463 F. 2d 716.
1126 OCTOBER TERM, 1972
January 15, 1973 409 U.S.
No. 72-754. DANNING, TRUSTEE IN BANKRUPTCY,
ET AL. v. BRUNSWICK CORP. ET AL. C. A. 9th Cir. Certiorari
denied. Reported below: 466 F. 2d 1010.
No. 72-760. KNOLL ET AL. v. PHOENIX STEEL CoRP.
ET AL. C. A. 3d Cir. Certiorari denied. Reported below:
465 F. 2d 1128.
No. 72-765. MILLER v. BoARD OF LAw EXAMINERS OF
TENNESSEE. Sup. Ct. Tenn. Certiorari denied.
No. 72-778. WILKIN v. SUNBEAM CORP. C. A. 10th
Cir. Certiorari denied. Reported below: 466 F. 2d 714.
No. 72-5195. SMITH v. SUPREME CouRT OF OKLAHOMA.
C. A. 10th Cir. Certiorari denied.
No. 72-5283. PARKER v. SWENSON, WARDEN. C. A.
8th Cir. Certiorari denied. Reported below: 459 F. 2d
164.
No. 72-5311. BROWN v. WYMARD ET AL. C. A. 3d
Cir. Certiorari denied.
No. 72-5322. HINOJOS V. BLACK, CONSERVATION CENTER
SUPERINTENDENT. C. A. 9th Cir. Certiorari denied.
Reported below: 462 F. 2d 621.
No. 72-5371. WILEY v. STONE, CORRECTIONAL SUPERINTENDENT.
C. A. 9th Cir. Certiorari denied.
No. 72-5426. KAHINU v. fuwAu. Sup. Ct. Hawaii.
Certiorari denied. Reported below: 53 Haw. 536, 498
P. 2d 635.
No. 72- 5441. BRYANT v. TEXAS. C. A. 5th Cir. Certiorari
denied. Reported below: 463 F. 2d 1095.
No. 72-5470. CASTANEDA v. CALIFORNIA. Ct. App.
Cal., 3d App. Dist. Certiorari denied.
ORDERS 1127
409U.S. January 15, 1973
No. 72-5501. BuRKHEART v. GOMES, WARDEN. C. A.
9th Cir. Certiorari denied. Reported below: 462 F. 2d
1335.
No. 72-5582. DRIVER v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 466 F. 2d 496.
No. 72-5597. POLLARD ET AL. V. UNITED STATES.
C. A. 10th Cir. Certiorari denied. Reported below: 466
F. 2d 1.
No. 72-5605. DURANT v. UNITED STATES. Ct. App.
D. C. Certiorari denied. Reported below: 292 A. 2d
157.
No. 72-5624. BAUGUESS v. UNITED STATES. C. A. 4th
Cir. Certiorari denied.
No. 72-5626. LEFTWICH v. UNITED STATES. C. A.
2d Cir. Certiorari denied. Reported below: 465 F. 2d
1405.
No. 72-5627. KELLY v. UNITED STATES. C. A. 9th
Cir. Certiorari denied.
No. 72-5634. AYALA v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 465 F. 2d 464.
No. 72-5636. BOYD v. UNITED STATES. C. A. 9th Cir.
Certiorari denied. Reported below: 467 F. 2d 1370.
No. 72-5644. SIDMAN v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 470 F. 2d 1158.
No. 72-5651. BORELLI v. UNITED STATES. C. A. 2d
Cir. Certiorari denied.
No. 72-5656. PETERS v. UNITED STATES. C. A. 8th
Cir. Certiorari denied. Reported below: 456 F. 2d
1157.
1128 OCTOBER TERM, 1972
January 15, 1973 409 U.S.
No. 72-5658. CANTU v. UNITED STATES. C. A. 7th
Cir. Certiorari denied.
No. 72-5660. KocHEL v. McKELDIN ETAL. C. A. 4th
Cir. Certiorari denied.
No. 72-5666. O'ITOMANO v. UNITED STATES. C. A.
1st Cir. Certiorari denied. Reported below: 468 F. 2d
269.
No. 72-5674. AGNEW v. DAMNER. Ct. App. Cal., 4th
App. Dist. Certiorari denied.
No. 72-5678. FERRELL v. OKLAHOMA. C. A. 10th
Cir. Certiorari denied.
No. 72-5679. JACKSON V. ESTELLE, CORRECTIONS DIRECTOR,
ET AL. C. A. 5th Cir. Certiorari denied. Reported
below: 465 F. 2d 1406.
No. 72-5680. QUINONES-ALVARADO V. UNITED STATES.
C. A. 5th Cir. Certiorari denied. Reported below: 464
F. 2d 12.
No. 72-5701. BROUSSARD v. HENDERSON, WARDEN.
C. A. 5th Cir. Certiorari denied.
No. 72-5710. SANDERS ET AL. v. WYMAN, COMMISSIONER,
NEW YORK DEPARTMENT OF SOCIAL SERVICES,
ET AL. C. A. 2d Cir. Certiorari denied. Reported below:
464 F. 2d 488.
No. 72-5716. BENNE'IT V. DISTRICT DIRECTOR OF INTERNAL
REVENUE. C. A. 4th Cir. Certiorari denied.
Repor~d below: 468 F. 2d 584.
No. 72- 5722. CARTER v. SLAYTON, PENITENTIARY Su-
PERINTENDENT. C. A. 4th Cir. Certiorari denied.
No. 72-5723. FORD v. ARIZONA. Sup. Ct. Ariz. Certiorari
denied. Reported below: 108 Ariz. 404, 499 P.
2d 699.
ORDERS 1129
409 U.S. January 15, 1973
No. 72-5731. LINGHAM v. COMMISSIONER OF INTERNAL
REVENUE. C. A. 2d Cir. Certiorari denied.
No. 72--5735. STENGEL v. CITY OF ANAHEIM ET AL.
Ct. App. Cal., 4th App. Dist. Certiorari denied.
No. 72-5736. SMITH v. INDIANA. Sup. Ct. Ind. Certiorari
denied. Reported below: - Ind. - , 285 N. E.
2d 275.
No. 71-6893. GILSON v. MACKLIN, SHERIFF. C. A.
9th Cir. Certiorari denied. MR. JUSTICE DOUGLAS would
grant certiorari.
No. 72--410. BROOKS v. GEORGIA. Ct. App. Ga. Certiorari
denied. MR. JUSTICE DOUGLAS would grant certiorari.
Reported below: 125 Ga. App. 867, 189 S. E.
2d 448.
No. 72-737. WEISS v. WALSH ET AL. C. A. 2d Cir.
Certiorari denied. MR. JusTICE DOUGLAS would grant
certiorari.
No. 72- 5467. KLIER V. WAINWRIGHT, CORRECTIONS
DIRECTOR. C. A. 5th Cir. Certiorari denied. MR. Jus-
TICE DOUGLAS would grant certiorari. Reported below:
464 F. 2d 1245.
No. 72-5617. JORDAN v. UNITED STATES. C. A. 4th
Cir. Certiorari denied. MR. JUSTICE DouGLAS would
grant certiorari. Reported below: 466 F. 2d 99.
No. 72-5643. WREN v. UNITED STATES. C. A. 4th
Cir. Certiorari denied. MR. JusTICE DOUGLAS would
grant certiorari. Reported below: 460 F. 2d 988.
No. 72--386. GERBERDING v. SWENSON, WARDEN.
C. A. 8th Cir. Motion to dispense with printing petition
granted. Certiorari denied. MR. JusTICE DOUGLAS
would grant certiorari.
1130 OCTOBER TERM, 1972
January 15, 1973 409 U.S.
No. 72-5669. TAYLOR v. AmzoNA ET AL. C. A. 9th
Cir. Certiorari denied. MR. JusTICE DouGLAS would
grant certiorari. Reported below: 471 F. 2d 848.
No. 72-5694. GRAHAM ET AL. v. JONES ET AL. C. A.
10th Cir. Certiorari denied. MR. JusTICE DouGLAS
would grant certiorari.
No. 72-5743. HALE ET AL. v. SouTH DAKOTA. C. A.
8th Cir. Certiorari denied. MR. JUSTICE DOUGLAS
would grant certiorari. Reported below: 465 F. 2d 65.
No. 72-5746. MABEY ET AL. v. REAGAN ET AL. C. A.
9th Cir. · Certiorari denied. MR. JUSTICE DouGLAS
would grant certiorari. Reported below: 467 F. 2d 953.
No. 72-699. HAYAKAWA ET AL. v. WoNG ET AL. C. A.
9th Cir. Motion of respondents for leave to proceed in
f orma pauperis granted. Certiorari denied. Reported
below: 464 F. 2d 1282.
No. 72-790. ALABAMA ET AL. v. BRINKS. C. A. 5th
Cir. Motion of respondent for leave to proceed in forma
pauperis granted Certiorari denied. Reported below:
465 F. 2d 446.
No. 72-703. HAY ET vrR v. HOLLIS ET AL. C. A. 5th
Cir. Motion to dispense with printing petition and motion
of respondent Hollis to dispense with printing brief
granted. Certiorari denied. Reported below: 463 F. 2d
1136.
No. 72- 5099. DuBosE v. CRAVEN, WARDEN, ET AL.
C. A. 9th Cir. Certiorari denied. MR. JUSTICE STEWART
would grant certiorari, vacate judgment of the Court of
Appeals, and remand case to the United States District
ORDERS 1131
409 U.S. January 15, 1973
Court for the Southern District of California to hold a
hearing on petitioner's claim.
N 0. 72-5724. RHODES v. NEBRASKA ET AL. C. A.
8th Cir. Certiorari denied. MR. JusTICE BLACKMUN
took no part in the consideration or decision of this
petition.
Rehearing Denwd
No. 72-239. CHILDS v. UNITED STATES, ante, p. 966;
No. 72-5020. GAY v. LICENSE BRANCH, REAL EsTATE
CoMMISSION OF THE DISTRICT OF COLUMBIA, ante, p.
1024;
No. 72-5082. WocRER v. Los ANGELES CITY SCHOOL
DISTRICT ET AL., ante, p. 1042;
No. 72-5350. DAPPER v. O'CONNOR ET AL., ante, p.
1025;
No. 72- 5415. WILSON v. ScOTT, DISTRICT ATTORNEY
OF KENOSHA CouNTY, ET AL., ante, p. 1043; and
No. 72-5495. DALTON v. UNITED STATES, ante, p. 1062.
Petitions for rehearing denied.
No. 71- 1478. FALKNER ET ux. v. PASTRANO ET ux.,
unte, p. 1020; and
No. 72-463. SILVER v. CASTLE MEMORIAL HosPITAL
ET AL., ante, p. 1048. Motions to dispense with printing
petitions granted. 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 Customs and Patent
Appeals for the period January 8 and 9, 1973, 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.
1132 OCTOBER TERM, 1972
REPORTER'S NOTE
Rules of Evidence for United States Courts and Magistrates
( together with related amendments to the Federal
Rules of Civil Procedure* and the Federal Rules of Criminal
Procedure) were prescribed by order of the Court on
November 20, 1972, pursuant to 18 U.S. C. §§ 3402, 3771,
and 3772, and 28 U.S. C. §§ 2072 and 2075, and were reported
to Congress at the beginning of its next regular
session by THE CHIEF JUSTICE on January 4, 1973, and
resubmitted on February 5; 1973.
The rules and amendments were to have become
effective July 1, 1973, as provided in the Court's orders.
However, by the Act of Mar. 30, 1973, Pub. L. 93--12,
87 Stat. 9, the foregoing rules and amendments are to
have no force or effect except to the extent, and with
such amendments, as may be expressly approved by Act
of Congress.
MR. JusTICE DOUGLAS filed a dissenting opinion, set
forth below, to the Court's order of November 20, 1972.
MR. JusTICE DouGLAS, dissenting.
There are those who think that fashioning of rules of
evidence is a task for the legislature, not for the judiciary.
Wigmore thought the task was essentially a judicial
one, 1 J. Wigmore, Evidence 251 et seq. (3d ed.
1940) ; and I share that view, leaving the problem for
case-by-case development by the courts or by Congress.
But my concern with these Rules of Evidence is twofold.
First, I doubt if rules of evidence are within the
purview of the statute under which we are authorized
to submit proposed Rules to Congress. The Act provides
*A further amendment to Fed. Rule Civ. Proc. 43 was prescribed
by the Court's order of December 18, 1972.
STATEMENT OF DOUGLAS, J. 1133
that the Supreme Court shall have the power "to prescribe
by general rules, the forms of process, writs, pleadings,
and motions, and the practice and procedure of
the district courts and courts of appeals of the United
States in civil actions, including admiralty and maritime
cases, and appeals therein, and the practice and procedure
in proceedings for the review by the courts of
appeals of decisions of the Tax Court of the United
States and for the judicial review or enforcement of
orders of administrative agencies, boards, commissions,
and officers." 28 U. S. C. § 2072.
I can find no legislative history that rules of evidence
were to be included in "practice and procedure" as used
in § 2072. The Committee Reports on the original Act
throw no light on the question. H. R. Rep. No. 1829,
73d Cong., 2d Sess.; S. Rep. No. 1049, 73d Cong., 2d
Sess. The words "practice and procedure" in the setting
of the Act seem to me to exclude rules of evidence. They
seem to me to be words of art that describe pretrial
procedures, pleadings, and procedures for preserving objections
and taking appeals.
Second, this Court does not write the Rules, nor supervise
their writing, nor appraise them on their merits,
weighing the pros and cons. The Court concededly is a
mere conduit. Those who write the Rules are members
of a Committee named by the Judicial Conference. The
members are eminent; but they are the sole judges of
the. merits of the proposed Rules, our approval being
merely perfunctory. In other words, we are merely the
conduit to Congress. Yet the public assumes that our
imprimatur is on the Rules, as of course it is.
We are so far removed from the trial arena that we
have no special insight, no meaningful oversight to contribute.
The Rules of Evidence-if there are to be
some-should be channeled through· the Judicial Conference
whose members are much more qualified than we
to appraise their merits when applied in actual practice.
1134 STATEMENT OF DOUGLAS, J.
I also dissent, for reasons set forth by Mr. Justice
Black and me on prior occasions, from the amendments
to the Federal Rules of Civil Procedure and the Federal
Rules of Criminal Procedure. 374 U. S. 865; 368 U. S.
1012; 346 u. s. 946.
REPORTER'S NOTE
The next page is purposely numbered 1201. The numbers between
1134 and 1201 were intentionally omitted, in order to make it possible
to publish in-chambers opinions in the current preliminary
print of the United States Reports with permanent page numbers,
thus making the official citations immediately available.
COUSINS v. WIGODA
Opinion in Chambers
COUSINS ET AL. v. WIGODA
ON APPLICATION FOR STAY
No. A-1. Decided July 1, 1972
1201
Respondent sought in state court a deciaratory judgment that he
had been duly elected as a delegate to t.he Democratic National
Convention scheduled to convene on July 10, 1972, and an injunction
prohibiting applicants from interfering. Applicants obtained
a United States District Court injunction against the injunctive
aspect of the state court action, but that injunction was vacated
by the Court of Appeals. Held: The state courts being available
to applicants for vindication of their constitutional claims,
the application for a stay of the Court of Appeals order is denied.
See: 463 F. 2d 603.
MR. JUSTICE REHNQUIST, Circuit Justice.
Applicants have applied to me as Circuit Justice to stay
an order entered by the Court of Appeals for the Seventh
Circuit on Thursday, June 29, 1972. A divided panel of
that court vacated an injunction issued at applicants'
behest by the District Court for the Northern District of
Illinois and further ordered that its mandate issue immediately.
Because applicants' application raised what
seemed to me to be significant legal issues of importance
not only to them but to the public as a whole, I heard
oral argument of counsel on the application.
In April 1972, following the Illinois primary election,
respondent Wigoda brought an action in the circuit court
of Cook County, Illinois, requesting a declaratory judgment
that he and others had been duly elected as delegates
to the Democratic National Convention in accordance
with Illinois law, and seeking an injunction against
applicants to prohibit them from interfering with or impeding
the functioning of respondent as a duly elected
delegate.
1202 OCTOBER TERM, 1972
Opinion in Chambers 409 U.S.
Applicants removed this action to the United States
District Court, from which it was then remanded to the
state court. Applicants then brought a separate action
in the District Court, alleging that the pendency of the
state court action infringed their associational rights
guaranteed by the First and Fourteenth Amendments to
the United States Constitution. In reliance on 42 l;. S. C.
§ 1983, they sought an injunction against further
prosecution of the state court action. The District Court
heard evidence and enjoined the prosecution of so much
of the state court action as sought injunctive relief against
the applicants, leaving the state court free to proceed
with the declaratory judgment aspect of respondent's action.
Respondent appealed from the order of the District
Court granting injunctive relief, and the Court of
Appeals then entered the order described above vacating
the injunction of the District Court.
Both the state and federal court actions arise out of
disputes between the parties as to what group of delegates
from Illinois shall be seated at the Democratic National
Convention to be held in Miami Beach, Florida,
beginning July 10. Respondent contends that he and
the others whom he seeks to represent were delegates
elected to the convention in accordance with Illinois law
at the Illinois primary election. Applicants contend that
the Illinois delegate selection process does not conform
to standards established by the national Democratic
Party, and that, therefore, they and others associated with
them, rather than respondent, should be seated by the
Democratic National Convention.
Since the Court of Appeals entered its order of June 29,
two additional events have supervened. On June 30, the
circuit court of Cook County in which respondent's original
action was pending entered a temporary restraining
order enjoining applicants from "submitting or causing
to be submitted to the National Democratic Party, the
COUSINS v. WIGODA 1203
1201 Opinion in Chambers
Democratic National Committee or the Credentials Committee
thereof, the name, or names, of any person, or persons,
as prospective delegates to the 1972 Democratic
National Convention" from various Illinois districts.
That order also provided that "except as herein before ordered"
nothing in the order should prevent the applicants
from "speaking on behalf of their challenge before
the Credentials Committee, holding meetings or engaging
in other activities commensurate with their rights of free
speech and association under the First and Fourteenth
Amendments to the United States Constitution." The
circuit court further ordered that the matter be set for
hearing on the motion of respondent for a preliminary
injunction at 11 a. m. on Wednesday, July 5, in that
court.
On June 30, the Credentials Committee of the Democratic
National Convention voted to sustain the challenge
made by applicants and others to respondent and
the delegates associated with him, and to recommend to
the convention that applicants and other delegates associated
with them be seated by the Democratic National
Convention. It is my understanding that this action
on the part of the Credentials Committee is subject to review
by the convention at its meeting in Miami Beach.
At the outset I am faced with a problem which, if not
technically one of authority, is at the very least one of
the scope of my discretion in acting on the application.
The authority of a Circuit Justice to grant a stay in
cases such as this stems from the provisions of 28 U. S. C.
§ 2101 (f), which reads in pertinent part as follows:
"In any case in which the final judgment or decree
of any court is subject to review by the Supreme
Court on writ of certiorari, the execution and enforcement
of such judgment or decree may be stayed
for a reasonable time to enable the party aggrieved
to obtain a writ of certiorari from the Supreme Court.
1204 OCTOBER TERM, 1972
Opinion in Chambers 409 U.S.
The stay may be granted by a judge of the court
rendering the judgment or decree or by a justice
of the Supreme Court .... "
While this case is one in which the judgment of the
Court of Appeals is undoubtedly "subject to review by
the Supreme Court on writ of certiorari," as a practical
matter it will become moot upon the adjournment of the
Democratic National Convention, which customarily
takes place in the la.tter part of the week in which the
convention opens. On June 29. this Court adjourned
until the first Monday in October, as is its annual custom.
There will therefore be no possibility of this
Court's convening and granting a writ of certiorari to
review the judgment below unless THE CHIEF JUSTICE
should determine that a Special Term of Court be convened
in order to hear this case. Such Special Terms
have, to my knowledge, been held only four times in
the recent history of the Court: In 1942 the Court
was convened to consider whether the President had
authority in time of war to exclude enemy aliens from
access to civilian courts, and to order them tried before
military tribunals for acts of sabotage. Ex parte
Quirin, 317 U. S. 1 (1942). A Special Term was convened
in 1953 to hear the Government's motion to vacate
a stay of execution of a death sentence against the
Rosen bergs for espionage, after exhaustive appellate review
of their conviction. Rosenberg v. United States,
346 U. S. 273 { 1953). See also id., at 271. In 1958 a
Special Term was held to review the Little Rock school
desegregation case in time for implementation in the
fall school term. Cooper v. Aaron, 358 U. S. 1 (1958).
Without in any way disparaging the importance of
this case not only to the parties involved in it, but to the
political processes of the country, I simply do not believe
that it is the same type of case which has caused the
Court to convene in Special Term on previous occasions.
COUSIKS v. WIGODA 1205
1201 Opinion in Chambers
Both the presumptive availability of the Illinois courts to
redress any deprivation of applicants' constitutional
rights, which I discuss in more detail below, and the
necessarily highly speculative nature of any connection
between the outstanding order of the state court and the
choice of a presidential candidate by the Democratic
National Convention lead me to conclude that this case
is not comparable to those. I therefore conclude that this
is not a case in which I would be warranted in requesting
THE CHIEF JusTICE to convene a special session of this
Court. See the opinion of Mr. Justice Harlan in chambers
in Travia v. Lomenzo, 86 S. Ct. 7, 15 L. Ed. 2d 46
(1965).
Having so concluded, I must recognize the fact that
were I to grant the stay requested by applicants, the
result would be a determination on the merits of the
federal litigation in their favor without any prospect of
review of my action by the full membership of this Court.
While I think that the provisions of 28 U. S. C. § 2101 (f)
confer upon me the t€chnical authority to grant a stay
in these circumstances, I would be moved to use that
authority only if I were satisfied that the judgment under
review represented the most egregious departure from
wholly settled principles of law established by the decisions
of this Court.
The majority of the panel of the Court of Appeals, in
its opinion released yesterday, relied on the principles of
comity between federal and state courts as enunciated by
this Court's decisions in Younger v. Harris, 401 U.S. 37
(1971), and Mitchum v. Foster, 407 U. S. 225 (1972).
While Younger and its companion cases involved state
criminal prosecutions, the principles of federal comity
upon which it was based are enunciated in earlier decisions
of this Court dealing with civil as well as criminal
matters. See the cases cited in Mitchum, supra, at 243.
The Court in Mitchum, after holding that 42 U. S. C.
1206 OCTOBER TERM, 1972
Opinion in Chambers 409 U.S.
§ 1983, under which petitioners brought this action in the
District Court, was an exception to the provisions of the
Anti-Injunction Act, 28 U. S. C. § 2283, went on to say:
"In so concluding, we do not question or qualify in
any way the principles of equity, comity, and federalism
that must restrain a federal court when asked
to enjoin a state court proceeding." Ibid.
While the test to be applied may be less stringent in civil
cases than in criminal, the cases cited in Mitchum make
clear that the federal courts will not casually enjoin the
conduct of pending state court proceedings of either type.
Applicants make out what must be described as at least
a plausible case that a portion of the decree issued by
the circuit court of Cook County does abridge their associational
rights guaranteed by the First and Fourteenth
Amendments. But the teaching of Younger, supra, and
Mitchum, supra, as I understand them, is that a plausible
claim of constitutional infringement does not automatically
entitle one to avail himself of the injunctive
processes of the federal courts in order to prevent the conduct
of pending litigation in the state courts. The opinion
issued by the Court of Appeals majority specifically
alluded to applicants' failure to allege that they could
not adequately vindicate their constitutional claims in the
Illinois state courts, and I must conclude that those
courts are available to applicants for this purpose.
Mindful, therefore, of the principles of comity enjoined
by our federal system, of the deference due to the judgment
of the Court of Appeals (see Breswick & Co. v.
United States, 75 S. Ct. 912, 100 L. Ed. 1510 (1955)
(Harlan, J., in chambers)), and of the extraordinary burden
which falls upon applicants when they seek a stay
from a single Justice which would in ·effect dispose of
the litigation on its merits, I conclude that they have
failed to meet that burden. An order will therefore be
entered denying the application for a stay of the order
and mandate of the Court of Appeals.
ABERDEEN &: ROCKFISH R. CO. v. SCRAP 1207
Opinion in Chambers
ABERDEEN & ROCKFISH RAILROAD CO. ET AL.
v. STUDENTS CHALLENGING REGULATORY
AGENCY PROCEDURES (SCRAP) ET AL.
ON APPLICATION FOR STAY
No. A-72. Decided July 19, 1972*
SCRAP, a student environmental association, secured from a threejudge
District Court an injunction against the authorization by
the Interstate Commerce Commission (ICC) of a temporary
2.5% freight surcharge to be imposed across the board by most
of the Nation's railroads. The ground for the injunction was
that by adding the surcharge to the cost of transporting recyclable
goods, fewer such goods would be transported, the need would
be met by increased use of natural resources, and there would
therefore be an adverse impact on the environment; hence the
National Environmental Policy Act required that the ICC prepare
an "impact statement" on the surcharge. The District Court
considered the applications for stay of the injunction pending
appeal but, concluding that danger to the environment outweighed
the loss of income and consequent financial threat to the railroads,
the court denied the application. Held: Since it cannot be said
that the District Court's factual evaluation of the necessity for
a stay constituted an abuse of discretion, the applications for stay
must be denied.
See: 346 F. Supp. 189.
MR. CHIEF JusTICE BURGER, Circuit Justice.
These applications request me, as Circuit Justice for
the District of Columbia Circuit, to stay a preliminary
injunction entered by a three-judge United States District
Court for the District of Columbia. The applicants
are the Interstate Commerce Commission and a
long list of railroad companies composing most of the
rail transport in the Nation. Opposing the applications
are the plaintiffs below, Students Challenging Regula-
*Together with No. A-73, Interstate Commerce Commission v.
Students Chal,lenging Regmatory Agency Procedures (SCRAP) et
al., also on application for stay.
1208 OCTOBER TERM, 1972
Opinion in Chambers 409 u. s.
tory Agency Procedures, who describe themselves as
"SCRAP," 1 and a coalition of organizations dedicated
to the protection of environmental resources. The applicants
say that they intend to seek prompt review in
this Court on the merits of the preliminary injunction
entered below.
(1)
The Interstate Commerce Act, 49 U. S. C. § 1 et seq.,
permits increases in railroad freight rates to become
effective without prior approval of the Interstate Commerce
Commission. A carrier may file a proposed tariff
and, after 30 days unless the Commission shortens the
period, the new rate becomes effective as a carrier-made
rate. 49 U. S. C. § 6 (3). The Commission may, however,
choose to suspend the effectiveness of newly filed
rates for as much as seven months, in order to investigate
the lawfulness of the rates. 49 U.S. C. § 15 (7). At the
end of seven months, the carrier-proposed rates go into
effect by operation of law unless the Commission has
completed its investigation and affirmatively disapproved
the new rates. Ibid. Prior decisions of this Court confirm
the Commission's broad discretion in the exercise
of its power of suspension; judicial review of suspension
action or inaction is most severely limited, if not
foreclosed. Arrow Transportation Co. v. Southern R.
Co., 372 U. S. 658 (1963); Board of Railroad Comm'rs
v. Great Northern R. Co., 281 U.S. 412, 429 (1930).
Against this legal background and prodded by an
increasingly precarious financial condition, the railroads,
on December 13, 1971, asked the Commission for leave
to file on short notice a 2.5% surcharge on nearly
1 SCRAP's complaint alleged that it is "an unincorporated association
formed by five law students from the [George Washington University]
National Law Center ... in September 1971" whose "primary
purpose is to enhance the quality of the human environment
for its members, and for all citizens .... "
ABERDEEN & ROCKFISH R. CO. v. SCRAP 1209
1207 Opinion in Chambers
all freight rates. The railroads asked that the surcharge
be effective as of January 1, 1972. The surcharge
was conceived as an interim emergency means of increasing
railroad revenues by some $246 million per
year, a sum the railroads describe as slightly less than
one-sixth of the increased expenses incurred annually
since the last general ratemaking proceedings. Selective
increases on a more permanent basis would follow.
By order dated December 21, 1971, the Commision
denied the railroads' request to make the 2.5%
surcharge effective as of January 1, 1972. The Commission
stated that it was aware of the carriers' need
for additional revenues, but concluded that publication
of the interim surcharge on short notice "would preclude
the public from effective participation" in proceedings
to evaluate the surcharge. 340 I. C. C. 358, 361. The
Commission did, however, rule that the railroads might
refile their proposed surcharge on January 5, 1972, to
be effective no earlier than February 5, 1972.
On January 5, 1972, the railroads filed tariffs to put
the 2.5% surcharge into effect on February 5. SCRAP
and other environmental groups asked the Commission
to suspend the surcharge for the statutory seven-month
period. They opposed the across-the-board surcharge
on the ground that the present railroad rate structure
discourages the movement of "recyclable" i goods in
commerce and that every across-the-board increase would
2 At the time of filing these stay applications, there was disagreement
between the parties over the meaning of the term "recyclable,"
as it pertains to this lawsuit. The railroads apparently understood
the term "in the sense of processing of goods to obtain Pither a prod-
11ct. of the same kind or a previous state of the product." Supplemental
MC'mo of Applicants, filed .July 14, 1972, p. 2. SCRAP's list
of recyclable products, the railroads say, includes products that are
"not recyclable in any sense that the railroads understand that term,
but merely involve the familiar circumstances by which one usable
product is derived from another." Id., at 3. See infra, at 1216.
1210 OCTOBER TERM, 1972
Opinion in Chambers 409 U.S.
further increase disincentives to recycling. The environmental
groups contended that added disincentives to
recycling would result in the increased degradation of
the natural environment by discarded, unrecycled goods
and in the increased exploitation of scarce natural resources.
At a minimum, SCRAP objected to the Commission's
failure to issue an "impact statement" evaluating
the effect of the 2.5% surcharge on the shipment
and use of recyclable materials. SCRAP contended that
such a statement was required by the National Environmental
Policy Act of 1969 (NEPA), 42 U.S. C. § 4321
et seq. Section 102 (2) (C) of NEPA, 83 Stat. 853, requires
an impact statement "in every recommendation
or report on proposals for legislation and other major
Federal actions significantly affecting the quality of the
human environment .... " 42 U. S. C. § 4332 (2)(C).3
·1 Section 102 of NEPA provides, in pertinent part:
"The Congress authorizes and directs that, to the fullest extent
possible: (1) the policies, regulations, and public laws of the United
States shall be interpreted and administered in accordance with the
policies set forth in this chapter, and (2) all agencies of the Federal
Government shall-
"(C) include in every recommendation or report on proposals for
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
ABERDEEN & ROCKFISH R. CO. v. SCRAP 1211
1207 Opinion in Chambers
The railroads took the position that interim application
of the across-the-board surcharge would not "significantly
affect the quality of the human environment"
within the meaning of NEPA. The railroads pointed
out that the 2.5% surcharge would apply equally to
all products; that past experience indicated little likelihood
of reduced shipments of recyclable materials as a
result of the across-the-board rate revision; that the
increase was small relative to the normal increase approved
in general freight rate revision cases; and that
the increase would be short-lived.
By order dated February 1, 1972, the Commission
announced that it would not suspend the 2.5% surcharge.
It would, in effect, allow the surcharge to go
into effect on February 5 and terminate on June 5, 1972.
The order specifically stated the Commission's view that
the surcharge would "have no significant adverse effect
on the movement of traffic by railway or on the quality
of the human environment within the meaning of the
Environmental Policy Act of 1969." The Commission's
order of February 1 further provided that the Commission
would not resume the investigation begun by
its December 21 order until the railroads asked to file
the promised selective 4.1 % rate increase. After that
tariff was filed, on April 24, the Commission suspended
the 4.1 % selective increase for the statutory sevenmonth
period until November 30, 1972. Since the
original June 5 expiration date for the surcharge had
assumed that selective increases would become effecagency
which has jurisdiction by law or special expertise with respect
to any environmental impact involved. Copies of such statement and
the comments and views of the appropriate Federal, State, and local
agencies, which are authorized to develop and enforce environmental
standards, shall be made available to the President, the Council on
Environmental Quality and to the public as provided by section 552
of Title 5, and shall accompany the proposal through the existing
agency review processes .... " ·
1212 OCTOBER TERM, 1972
Opinion in Chambers 409 U.S.
tive by that time, the Commission's order suspending
the 4.1 % selective increase eliminated the June 5
surcharge expiration date. The railroads then modified
the temporary surcharge tariffs so that the 2.5%
surcharge will expire on November 30, 1972, unless the
4.1 % selective increase is approved prior to that
time. The Commission's study of the proposed selective
rate increase is still in progress and will include an
environmental impact statement.
(2)
SCRAP filed suit on May 12, 1972, in the United
States District Court for the District of Columbia, seeking,
among other relief requested, a preliminary injunction
to require the Commission to prevent the railroads
from further collecting the 2.5% surcharge.4 Other
environmental groups and the railroads were allowed
to intervene as a matter of right. The primary thrust
of SCRAP's suit was that the Commission's orders, permitting
and then extending the 2.5% surcharge, constituted
"major Federal action significantly affecting the
quality of the human environment." The plaintiffs
argued that the Commission's action was unlawful because
the Commission had not issued an environmental
impact statement as required by NEPA. On July 10,
1972, the District Court issued a preliminary injunction
enjoining the railroads from collecting the 2.5%
surcharge on shipments originating after July 15, 1972,
"insofar as that surcharge relates to goods being transported
for purposes of recycling, pending further order
of this court." In its opinion, the District Court rejected
the Government's contention that SCRAP and
its fellow plaintiffs lacked standing under this Court's
decision in Sierra Club v. Morton, 405 U.S. 727 (1972).
4 A three-judge court was convened to hear the case. See 28
U. S. C. §§ 2325, 2284.
ABERDEEN & ROCKFISH R. CO. v. SCRAP 1213
1207 Opinion in Chambers
The court's opinion noted that the SCRAP plaintiffs
had alleged "that its members use the forests, streams,
mountains, and other resources in the Washington [D. C.]
area for camping, hiking, fishing and sightseeing, and
that this use is disturbed by the adverse environmental
impact caused by nonuse of recyclable goods." 346 F.
Supp. 189, 195 ( 1972). This allegation, said the District
Court, removed this case from the ambit of Sierra
Club, "where the Sierra Club failed to allege 'that its
members use Mineral King for any purpose, much less
that they use it in any way that would be significantly
affected by the proposed actions of the respondents.' "
405 U. S., at 735.
Having thus dealt with our decision in Sierra Club,
the District Court focused on Arrow Transportation,
supra, and related cases 5 drastically curtailing the jurisdiction
of the federal courts to review the suspension
power of the Interstate Commerce Commission. "The
thrust of the doctrine," reasoned the District Court,
"seems to be that judicial review is available only when
the rates in question are Commission-made rather than
carrier-made." 346 F. Supp., at 196. The District Court
noted that the present case was not one "where the Commission
merely stands silently by and allows carrier-made
rates to take effect without suspension." Ibid. The
Commission had found the surcharge rates just and reasonable,
and it had authored a detailed set of conditions
on approval of the rates without suspension. The District
Court concluded that "[a] suspension decision which
5 E. g., Alabama Power Ca. v. United States, 316 F. Supp. 337
(DC 1969), and Atlantic City Electric Co. v. United States, 306 F.
Supp. 338 (SDNY 1969), both aff'd by an equally divided court,
400 U. S. 73 ( 1970); Electronics Industries Assn. v. United States,
310 F. Supp. 1286 (DC 1970), aff'd, 401 U. S. 967 ( 1971);
Florida Citrus Comm'n v. United States, 144 F. Supp. 517 (ND
Fla. 1956), ,aff'd, 352 U. S. 1021 (1957); Algoma Coal & Coke
Co. v. United States, 11 F. Supp. 487 (ED Va. 1935).
1214 OCTOBER TERM, 1972
Opinion in Chambers 409 u. s.
effectively blackmails the carriers into submitting agencyauthored
rates is functionally indistinguishable from
an agency order setting those rates . . . . [ S] uch orders
are, of course, judicially reviewable." Id., at 197.
Yet the District Court found it unnecessary to decide
the degree of Commission involvement in effectuating
the 2.5% surcharge. The court held that "NEPA
implicitly confers authority on the federal courts to enjoin
any federal action taken in violation of NEP A's
procedural requirements, even if jurisdiction to review this
action is otherwise lacking." Ibid. The federal courts
would have jurisdiction to review, and to enjoin, "even
a mere failure to suspend rates which are wholly carriermade
so long as the review is confined to a determination
as to whether the procedural requisites of NEPA have
been followed." Id., at 197 n. 11. Recognition of this
jurisdiction would not undermine the Arrow decision, because
"judicial insistence on compliance with the nondiscretionary
procedural requirements of NEPA in no
way interferes with the Commission's substantive discretion,"
id., at 198, to suspend rates pending investigation
and final action.
Turning to the merits, the court held that the Commission's
decision not to suspend was a "major federal
action" within the meaning of NEPA. An impact statement
would be required whenever an action "arguably
will have an adverse environmental impact." Id., at 201.
(Emphasis in original.) The Commission could not escape
preparation of a statement by "so transparent a ruse"
as its "single sentence" affirmation that the 2.5% surcharge
would have no significant adverse environmental
effect. This finding is "no more than glorified boilerplate,"
id., at 201 n. 17, and the Commission has failed
to prove its truth.
Finally, the District Court concluded that the balance
of equities in this case tipped in favor of preliminary
ABERDEEN & ROCKFISH R. CO. v. SCRAP 1215
.1207 Opinion in Chambers
relief. Any damage to the environment would likely
be irreparable. But "the damage done the railroads by
granting the injunction, while clearly nonfrivolous, is
not overwhelming." Id., at 201-202. Without opinion,
the District Court declined to stay its preliminary injunction
pending appeal.
(3)
It is likely that the questions to be presented by this
appeal "are of such significance and difficulty that there
is a substantial prospect that they will command four
votes for review" when the full Court reconvenes for
the October 1972 Term. Organized Village of Kake v.
Egan, 80 S. Ct. 33, 35, 4 L. Ed. 2d 34, 37 (1959) (BRENNAN,
J., in chambers). The decision below may present a
serious question of standing to sue for the protection
of environmental interests. Sierra Club. v. Morton,
supra. The decision may be read as undermining our
Arrow decision and in that respect may conflict with
the reasoning of the Second Circuit in Port of New
York Authority v. United States, 451 F. 2d 783 (CA2
1971). Most important, the decision may have the practical
effect of requiring the Commission to file an impact
statement whenever it exercises its statutory suspension
powers. This requirement is significant because
it would likely apply to each of the cluster of
federal agencies presently exercising suspension powers
comparable to that of the Interstate Commerce
Commission.6
"Among suspension prov1s10ns enacted by Congress since 49
U. S. C. § lS (7) arr 49 U.S. C. §§ 316 (g), 318 (e) (Motor Carrier
Act, 1935); 49 U. S. C. §§ 907 (g), (i) (Water Carriers Act);
49 U. S. C. § 1006 (e) (Freight Forwarders Act); 47 U. S. C. § 204
(Federal Communications Art of 19:34); 16 U. S. C. § 824d (e)
(Federal Power Act); 15 U. S. C. § 717c (e) (Natural Gas Act);
and 49 U. S. C. § 1482 (g) (Federal Aviation Act of 1958) . See
Arrow Transportation Co. v. Southern R . f'o., 372 U. S. 658, 666
n. 13 (1963).
1216 OCTOBER TERM, 1972
Opinion in Chambers 409 U.S.
For these reasons, I would not be prepared to conclude
that the Court would dispose summarily of the dispute
underlying these stay applications. I must, therefore,
consider whether allowing or staying the preliminary injunction
is most likely to insure fair treatment for the
interests of the parties and the public until the full Court
acts. On the allegations of the parties some injury will
occur whichever course is taken. Those opposing the stay
naturally point to the large weight to be given to the
District Court's evaluation or "balancing" of the equities.
The harm to the railroads, and to the overall public
interest in maintaining an efficient transportation network,
is immediate and direct. Badly needed revenues
will be lost at once, and there is little likelihood that they
can be recouped. The railroads originally estimated the
loss at $500,000 per month, but they have revised that
estimate upwards by several times since advised by
SCRAP that it attaches an unexpectedly broad interpretation
to the District Court's injunction. Unlike the
District Court, I find it difficult to dismiss this certain
loss of at least one and perhaps several millions of dollars
simply because it is "not overwhelming" relative
to the total revenues to be derived from the surcharge.
Nor is it sufficient to discount the lost revenues because
they might have to be disgorged if found unreasonable by
the Commission at a later date. The chances of such a
ruling are, again, only speculative. As a general premise
for evaluation, the possibility of rebate suggests equally
that shippers would not regard the surcharge as a significant
additional cost.
On the other hand, the District Court was convinced
that harm to the environment might result from allowing
the railroads to collect the 2.5% surcharge on recyclable
goods pending disposition of their appeal in this Court.
The District Court concluded that any such harm would
likely be irreparable, since, as the court explained, "once
ABERDEEN & ROCKFISH R.. CO. v. SCRAP 1217
1207 Opinion in Chambers
raw materials are unnecessarily extracted from the ground
and used, they cannot be returned from whence they
came." 7 346 F. Supp., at 201. This eventuality is
premised on the following projected chain of events:
(a) The railroads will collect the 2.5 percent surcharge
on recyclable, as well as all other materials.
(b) Because recyclable materials are already discriminated
against in freight rates, the surcharge
further increases rate disparities and, in any event,
raises the absolute cost of transporting recyclable
materials, of ten a high proportion of their total
cost.
( c) This increase in cost will result in decreased
demand for recyclable materials.
(d) This decrease in demand will be counterbalanced
by an increased demand for new or unrecycled
materials.
( e) This increased demand for new materials will
result in extraction of natural resources not otherwise
planned.
There is evidence in the record arguably supporting this
forecast of the consequences of increasing freight rates
on recyclable goods in common with others.
Our society and its governmental instrumentalities,
having been less than alert to the needs of our environment
for generations, have now taken protective steps.
These developments, however praiseworthy, should not
lead courts to exercise equitable powers loosely or casually
whenever a claim of "environmental damage" is asserted.
7 In evaluating the possibility of irreparable harm to the environment,
the District Court did not mention the danger of increased
disposal of recyclable materials. The District Court had adverted to
this problem earlier in its opinion. Since the lower court did not
premise its action on this possibility, it apparently concluded that any
short-range harm to the environment caused by increased disposal
would not be irreparable.
1218 OCTOBER TERM, 1972
Opinion in Chambers 409U. S.
The world must go on and new environmental legislation
must be carefully meshed with more traditional patterns
of federal regulation. The decisional process fo~ judges
is one of balancing and it is often a most difficult task.
A District Court of three judges has considered this application
for a stay pending appeal and has concluded
that the stay should be denied. The criteria for granting
a stay of the judgment of such a district court are
stringent, at least when the necessity for a stay turns
upon a refined factual evaluation of its effect. "An order
of a court of three judges denying an interlocutory injunction
will not be disturbed on appeal unless plainly
the result of an improvident exercise of judicial discretion."
United Fuel Gas Co. v. Public Service Comm'n,
278 U. S. 322, 326 (1929); Railway Express Agency v.
United States, 82 S. Ct. 466, 7 L. Ed. 2d 432 (1962)
(Harlan, J., in chambers). I cannot say the District
Court's action can be equated with an abuse of discretion
because it decided that there was danger to the
environment outweighing the loss of income and consequent
financial threat to the railroads. Notwithstanding
my doubts of the correctness of the action of the threejudge
District Court, as Circuit Justice, acting alone, I
incline toward deferring to their collective evaluation and
balancing of the equities.
Reluctantly, I conclude that the applications for stay
pending appeal should be denied.
RUSSO v. BYRNE 1219
Opinion in Chambers
RUSSO ET AL. V. BYRNE, u. s. DISTRICT JUDGE
ON APPLICATION FOR STAY
No. A-150. Decided July 29, 1972
The District Court in an in camera proceeding ruled that intercepted
conversations of applicants' counsel were not relevant to
issues in their federal criminal trial, and the Court of Appeals in
affirming held that the applicants had no standing to raise the
question of relevancy. Held: The issue of relevancy, the resolution
of which determined the issue of standing, required an
adversary hearing, and a sta.y of the criminal trial is appropriate
pending the filing of a petition for a writ of certiorari in this
Court and the Court's action thereon.
MR. JusTICE DouGLAS, Circuit Justice.
The question raised by this application for stay presents
a profoundly important constitutional question not
squarely decided by the Supreme Court but ruled upon
by the District Court and by the Court of Appeals in
a way that is seemingly out of harmony with the import
of our decisions.
The electronic surveillance used by the Government
was represented to me on oral argument as being in the
"foreign" field. No warrant, as required by the Fourth
Amendment and by our decisions, was obtained, only
the authorization by the Attorney General. Such authorization
was held insufficient in our recent decision
in United States v. United States District Court, 407
U. S. 297 ( 1972). It is argued that that case involved
"domestic" surveillance, but the Fourth Amendment and
our prior decisions, to date at least, draw no distinction
between "foreign" and "domestic" surveillance. Whether
such a distinction will eventually be made is for the Court,
not for me, to make. Moreover, in light of the casual
way in which "foreign" as distinguished from "domestic"
1220 OCTOBER TERM, 1972
Opinion in Chambers 409 U.S.
surveillance was used on oral argument it may be that
we are dealing only with a question of semantics. Defendants'
telephonic communications, it seems, were not
tapped, nor were those of their attorney or consultants.
But a conversation or several conversations of counsel
for defendants were intercepted.
The District Court in an in ca?Mra proceeding ruled
that those conversations were not relevant to any issues
in the present trial. The Court of Appeals, as I read
its opinion, ruled that the defendants-i. e., applicants
who make this application-have no "standing" to raise
the question. If, however, the interceptions were "relevant"
to the trial, it would seem they would have
"standing."
Therefore it would seem to follow from the reasoning
of the Court of Appeals that whether or not there was
"standing" would turn on the merits. The case, viewed
in that posture, would seem to require an adversary hearing
on the issue of relevancy. We held, in Alderman v.
United States, 394 U. S. 165, 182 (1969), that the issue
of relevancy should not be resolved in camera, but in an
adversary proceeding. Alderman would be greatly undercut
if the issue of relevancy could be resolved in camera,
and if the trial court ruled against the defendants on the
merits and then determined they had no "standing" to
complain.
I seriously doubt if the ruling of the Court of Appeals
on "standing" accurately states the law. In modern
times the "standing" of persons or parties to raise issues
has been greatly liberalized. Our Court has not squarely
ruled on the precise issue here involved. But it did rule
in Flast v. Cohen, 392 U.S. 83,103 (1968), that one who
complains of a violation of a First Amendment right has
"standing." On oral argument Flast was distinguished
from the present case on the ground that under the Fourth
Amendment only those whose premises have been inRUSSO
v. BYRNE 1221
1219 Opinion in Chambers
vaded or whose conversations have been intercepted have
standing to complain of unconstitutional searches and
seizures. That contention, however, does not dispose of
this case.
The constitutional right earnestly pressed here is the
right to counsel guaranteed by the Sixth Amendment.
That guarantee obviously involves the right to keep the
confidences of the client from the ear of the Government,
which these days seeks to learn more and more of the
affairs of men. The constitutional right of the client, of
course, extends only to his case, not to the other concerns
of his attorney. But unless he can be granted "standing"
to determine whether his confidences have been disclosed
to the powerful electronic ear of the Government, the
constitutional fences protective of privacy are broken
down.
My authority is to grant or deny a stay, not to determine
whether the Court of Appeals is right or wrong on
the merits. If the application presents frivolous questions
it should be denied. If it tenders a ruling out of
harmony with our prior decisions, or questions of transcending
public importance, or issues which would likely
induce this Court to grant certiorari, the stay should be
granted.
I am exceedingly reluctant to grant a stay where the
case in a federal court is barely under way. But conscientious
regard for basic constitutional rights guaranteed by
the Fourth and Sixth Amendments makes it my duty
to do so. I, therefore, order that the trial be stayed for
30 days pending application to this Court for a writ
of certiorari and thereafter stayed pending the determination
of the petition.
If the law under which we live and which controls
every federal trial in the land is the Constitution and the
Bill of Rights, the prosecution, as well as the accused,
must submit to that law.
1222 OCTOBER TERM, 1972
Opinion in Chambers 409 l'. s.
REPUBLICAN STATE CENTRAL COMMITTEE
OF ARIZONA ET AL. V. THE RIPON
SOCIETY INC. ET AL.
ON APPLICATION FOR STAY
No. A-179. Decided August 16, 1972
District Court's injunction prohibiting the 1972 Republican National
Convention from allocating six ''bonus" delegates to its
1976 convention to each State casting it'5 electoral votes for the
Republican presidential nominee in 1972, or electing a Republican
senator, governor, or majority of its congressional delegation at
any election within four years previous to 1976 stayed in light
of criteria set forth in O'Brien v. Brown, ante, p. 1, and to
preserve the issues for judicial review.
See: 343 F. Supp. 168.
MR. JUSTICE REHNQUIST, Circuit Justice.
I am asked to stay the effect of an injunction entered
by the United States District Court for the District of
Columbia, which prohibited the Republican National
Party's 1972 Convention from adopting a certain mode
of allocating delegates to that party's convention in
1976. On August 11, 1972, MR. JusTICE DouGLAS denied
a stay, and that application has been renewed to me.
Since 1948 the Republican National Party has
adopted at each presidential nominating convention a
formula for allocating among the States delegates to the
next convention. This formula has included a "bonus"
of six delegates awarded to each State that cast its electoral
college votes for the Republican presidential nominee
in the previous presidential election, or has elected
a Republican senator, governor, or majority of its
congressional delegation at any election within the
previous four years. Respondents filed suit in the
United States District Court for the District of Columbia,
asking for a declaratory judgment that such a
REPUBLICAN COMMITTEE v. RIPON SOCIETY 1223
1222 Opinion in Chambers
"bonus" system of allocating delegates was unconstitutional,
and asking that the Republican National Party
be enjoined from adopting such a formula at its 1972
nominating convention. The District Court, in reliance
upon Georgw v. National Democratic Party, 145 U. S.
App. D. C. 102, 447 F. 2d 1271 (1971), cert. denied, 404
U. S. 858 (1971), and Bode v. National Democratic
Party, 146 U.S. App. D. C. 373, 452 F. 2d 1302 (1971),
cert. denied, 404 U. S. 1019 (1972), held that allocation
of delegates was state action, and that the complaint
before it was justiciable. Agreeing with the Republican
National Party that, for a system that elects Presidents
by casting a State's electoral votes in a bloc, a bonus
system of delegate allocation is reasonable to encourage
Republican victories within each State, the District Court
nonetheless held the allocation of six delegates without
regard to the size of the State or its electoral college
votes, to be a denial of equal protection. It therefore
entered the following injunction:
"That Defendants are hereby enjoined from adopting
at the 1972 Republican National Convention a
formula for apportionment of delegates to the 1976
Convention which would allocate a uniform number
of bonus delegates to states qualifying for them,
with no relation to the state's electoral college votes,
Republican votes cast in certain specified elections,
or some combination of these factors."
After an appeal was perfected these applicants moved
the United States Court of Appeals for the District of
Columbia Circuit for leave to intervene and for a stay
of the District Court's injunction. Intervention was
granted, but a divided panel of the District of Columbia
Circuit, on August 3, denied a stay without opinion.
Respondents do not now challenge the right of the
applicants, state central committees of the Republican
National Party, to seek a stay from this Court. With the
1224 OCTOBER TERM, 1972
Opinion in Chambers 409 U.S.
Republican National Convention scheduled to commence
August 21, prompt action is requested on the ground
that an unreviewed court injunction threatens direct
intervention with the conduct of the convention, in a
manner similar to that confronting this Court in O'Brien
v. Brown, ante, p. 1.
As we said in O'Brien, supra, an application for a stay
calls "for a weighing of three basic factors: (a) whether
irreparable injury may occur absent a stay; (b) the
probability that the [District Court] was in error in holding
that the merits of these controversies were appropriate
for decision by federal courts; and ( c) the public
interests that may be affected by the operation of the
[injunction]." Applicants contend that to leave the injunction
in effect will work irreparable injury because the
Republican National Party has always allocated delegates
to its next convention at the current convention, and has
no machinery for amending that formula. Therefore,
they say, the injunction will permanently preclude the
adoption of a "bonus" formula, regardless of whether the
District Court is reversed. Respondents allege that no
irreparable injury will occur, because the convention can
either provide amendatory procedures for use in the
event that the bonus formula is not vindicated on appeal,
or it can adopt a contingent delegate allocation plan,
to take into account the pending federal court proceedings.
But to allow the injunction to stand would have
at least some impact on the deliberations and decisions of
the Republican National Convention akin if not identical
to that we found in O'Brien, supra:
"Absent a stay, the mandate of the Court of Appeals
denies to the Democratic National Convention
its traditional power to pass on the credentials of the
California delegates in question. The grant of a
stay, on the other hand, will not foreclose the Con1222
REPUBLICAN COMMITTEE v. RIPON SOCIETY 1225
Opinion in Chambers
vention's giving the respective litigants m both
cases the relief they sought in federal courts."
Id., at 3.
In the case at bar, of course, we deal with a delegateallocation
dispute that retains importance until 1976,
rather than a credentials dispute such as was involved
in O'Brien v. Brown, which would mean nothing after
the close of the 1972 Democratic National Convention.
If the injunction of the District Court were to
compel the 1972 Republican National Convention to
eschew a bonus-allocation formula which it would
otherwise have chosen, this case would be moot.
There would be no controversy left to review. On
the other hand, to stay the injunction pending review
will permit the respondents to make their case before
the convention, and assuming the bonus formula is
adopted, will preserve to applicants judicial review of
the District Court's order declaring the bonus formula
unconstitutional. If that order should be affirmed, I
have no doubt that appropriate remedies are available
to insure that the Republican National Party delegate
allocation is in conformity with the order, or that the
party would take whatever steps are necessary to bring
its allocation formula into conformity with the order.
The fact that a stay here, instead of precluding any judicial
review of the final action of the Republican National
Convention, as could have been the result of the
action taken in O'Brien, supra, preserves these issues for
review in a manner conducive to careful study and consideration
is itself a reason to stay the injunction which
was not present in O'Brien.
A second reason for staying the effect of the District
Court's injunction is drawn from the probability of error
in the result below. The District Court did not have
the benefit of this Court's writing in O'Brien, supra, at
1226 OCTOBER TERM, 1972
Opinion in Chambers 409U.S.
the time it entered its order and injunction There we
said:
"No case is cited to us in which any federal court
has undertaken to interject itself into the deliberative
processes of a national political convention;
no holding of this Court up to now gives support
for judicial intervention in the circumstances presented
here, involving as they do, relationships of
great delicacy that are essentially political in nature.
Cf. Luther v. Borden, 7 How. 1 (1849). Judicial
intervention in this area traditionally has been
approached with great caution and restraint. See
Irish v. Democratic-Farmer-Labor Party of Minnesota.,
399 F. 2d 119 (CA8 1968), affirming 287 F.
Supp. 794 (Minn. 1968), and cases cited; Lynch v.
Torquato, 343 F. 2d 370 (CA3 1965); Smith v. State
Exec. Comm. of Dem. Party of Ga., 288 F. Supp. 371
(ND Ga. 1968). Cf. Ray v. Blair, 343 U. S. 214
(1952). It has been understood since our national
political parties first came into being as voluntary
associations of individuals that the convention itself
is the proper forum for determining intra-party disputes
as to which delegates shall be seated. Thus,
these cases involve claims of the power of the federal
judiciary to review actions heretofore thought
to lie in the control of political parties. Highly
important questions are presented concerning justiciability,
whether the action of the Credentials
Committee is state action, and if so the reach of the
Due Process Clause in this unique context. Vital
rights of association guaranteed by the Constitution
are also involved. While the Court is unwilling
to undertake final resolution of the important constitutional
questions presented without full briefing
and argument and adequate opportunity for de1222
REPUBLICAN COMMITTEE v. RIPON SOCIETY 1227
Opinion in Chambers
liberation, we entertain grave doubts as to the action
taken by the Court of Appeals." Id., at 4--5.
While I have authority to grant a stay in this case, 28
U. S. C. § 1651 (a), Johnson v. Stevenson, 335 U. S. 801
( 1948), the fact that such relief has been successively
denied by the District Court, the Court of Appeals, and
MR. JusTICE DouGLAS counsels circumspection notwithstanding
the foregoing observations. See, e. g., Ex parte
Stickney, 82 S. Ct. 465, 7 L. Ed. 2d 435 (1962) (DouGLAs,
J., in chambers). Weighing these competing and frequently
imponderable factors as best I can, I have concluded
that this case follows so closely on the heels of
O'Brien and resembles it in so many relevant particulars
that the injunctive aspect of the District Court order
should be stayed. Accordingly, I have this day entered
an order staying that portion of the order of the District
Court that enjoins the 1972 Republican National Convention
from adopting this "bonus" formula for allocating
delegates to the 1976 convention.
1228 OCTOBER TERM, 1972
Opinion in Chambers 409 u. s.
DRUMMOND ET AL. V. ACREE ET AL.
ON REAPPLICATION FOR STAY
No. A-250 (72-167). Decided September 1, 1972
Where the lower courts held that an order for the transportation
of students was entered to accomplish desegregation of the elementary
school system of Augusta, Georgia, an application for
stay premised solely on that. portion of § 803 of the Education
Amendments of 1972 prohibiting effectuation of an order for
student busing to achieve a racial balance among students until
all appeals have been exhausted is denied.
See: 458 F. 2d 486.
MR. JusTICE PowELL, Circuit Justice.
This application, filed by parent-intervenors in this
school desegregation case from Richmond County (Augusta),
Georgia, seeks a stay of a judgment of the Court
of Appeals for the Fifth Circuit. That court, on March
31, 1972, affirmed an order of the United States District
Court for the Southern District of Georgia adopting a
plan for the desegregation of 29 elementary schools in
Augusta. Acree v. County Board of Education of Richmond
County, 458 F. 2d 486 (1972). After the Fifth
Circuit's affirmance, I denied a stay because that relief
had not been requested from the appropriate Court of
Appeals as ordinarily required by Rule 27 of the Supreme
Court Rules. Applicants immediately sought a stay from
the Fifth Circuit, which was denied.' Applicants have
now reapplied to me.
This reapplication is premised solely on the contention
that a stay is required under § 803 of the Education
Amendments of 1972. That section reads in pertinent
part as follows:
"[I]n the case of any order on the part of any United
States district court which requires the transfer or
1 A stay was also denied by the United States District Court for
the Southern District of Georgia on August 18, 1972.
1228
DRUMMOND v. ACREE 1229
Opinion in Chambers
transportation of any student ... for the purposes
of achieving a balance among students with respect
to race . . . , the effectiveness of such order shall
be postponed until all appeals . . . have been exhausted
. . . ." Education Amendments of 1972,
Pub. L. 92-318, Tit. VIII, § 803, 86 Stat. 372, 20
U. S. C. § 1653 ( 1970 ed., Supp. II) ( emphasis
added).
By those terms, the statute requires that the effectiveness
of a district court order be postponed pending appeal
only if the order requires the "trans£ er or transportation"
of students "for the purposes of achieving a balance
among students with respect to race." It does not
purport to block all desegregation orders which require
the transportation of students. If Congress had desired
to stay all such orders it could have used clear and explicit
language appropriate to that result.
In § 802, which precedes § 803, Congress prohibited
the use of federal funds to aid in any program for the
transportation of students if the design of the program
is to "overcome racial imbalance" or to "carry out a plan
of raci.al desegregation." Education Amendments of
1972, § 802 (a), 20 U. S. C. § 1652 (a) (1970 ed., Supp.
II) (emphasis added). It is clear from the juxtaposition
and the language of these two sections that Congress
intended to proscribe the use of federal funds for the
transportation of students under any desegregation plan
but limited the stay provisions of § 803 to desegregation
plans that seek to achieve racial balance.
In light of this Court's holding in Swann v. Charlotte-
1Wecklenburg Board of Education, 402 U.S. 1 (1971), it
could hardly be contended that Congress was unaware
of the legal significance of its "racial balance" language.
In that case the school authorities argued that § 407 (a)
of the Civil Rights Act of 1964, 42 U. S. C. § 2000c-6 (a),
restricted the power of federal courts in prescribing a
1230 OCTOBER TERM, 1972
Opinion in Chambers 409 u. s.
method for correcting state-imposed segregation. THE
CHIEF JusTICE's interpretation of § 407 (a), which applies
only to orders "seeking to Mhieve a racial balance,"
is controlling here:
"The proviso in [ § 407 (a) ] 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
schools but with no showing that this was brought
about by discriminatory action of state authorities."
402 U. S., at 17-18 ( emphasis in original).
In short, as employed in § 407 (a), the phrase "achieve
a racial balance" was used in the context of eliminating
"de facto segregation." The Court went on to caution
lower federal courts that, in the exercise of their broad
remedial powers, their focus must be on dismantling dual
school systems rather than on achieving perfect racial
balance: "The constitutional command to desegregate
schools does not mean that every school in every community
must always reflect the racial composition of
the school system as a whole." 402 U. S., at 24. This
was said not in condemnation of existing techniques but
in disapproval of the wooden resort to racial quotas or
racial balance. Nothing in the instant statute or in the
legislative history suggests that Congress used these
words in a new and broader sense. At most, Congress
may have intended to postpone the effectiveness of transportation
orders in "de facto" cases and in cases in which
district court judges have misused their remedial powers.
DRUMMOND v. ACREE 1231
1228 Opinion in Chambers
The question, therefore, must be whether the lower
court order in this case was for the purpose of achieving
a racial balance as that phrase was used in Swann. This
question was resolved in the negative by the Court of
Appeals. Applicants claimed on their appeal that the
District Court order called for " 'forced busing' to achieve
racial balance." 458 F. 2d, at 487. The court rejected
that contention, citing the holding in Swann that bus
transportation is one of the permissible techniques in
effecting school desegregation.2
For the purpose of acting on this application, I accept
the holding of the courts below that the order was
entered to accomplish desegregation of a school system
in accordance with the mandate of Swann and not for
the purpose of achieving a racial balance. The stay application
must, therefore, be denied.
It is so ordered.
2 For a complete history of this litigation see the most recent
opinion of the District Court. Acree v. Drummond, 336 F. Supp.
1275 (SD Ga. 1972).
1232 OCTOBER TERM, 1972
Opinion in Chambers 409 U.S.
TIERNEY v. UNITED STATES
ON APPLICATION F"OR BAIL
No. A-49. Decided September 12, 1972•
Applicants had been granted "use" immunity and were trstifying
before a grand jury when court-approved electronic surveillance
of a telephone result<>d in interception of a conversation of their
attorney. Their refusal thereafter to answer certain questions
propounded by the grand jury resulted in commitment for civil
contempt. The applicants, claiming deprivation of their right
to counsel, appealed the commitment and applied for bail p<>nding
disposition of the app<>als. The Government responded that sinee
the applicants had been granted all the immunity to which they
were con~t itutionally entitled, there was no longer an attorneydient
privilcg<> to be protected. Held: Bail should be granted
under the standard applicable under 28 U. S. C. § 1826 (b),
since thP issues are not frivolous and the app<>als ar<' not takeu
for delay.
MR. JUSTICE DOUGLAS, Circuit Justice.
These are applications for bail which raise the questions
comparable to those presented in In re Beverly,
A-231, in which I granted bail.
In the present cases there was electronic surveillance
of a telephone which a court had approved pursuant to
18 U. S. C. § 2518. During that surveillance a conversation
of applicants' attorney was intercepted.
Applicants were testifying before a grand jury, having
been granted immunity under 18 U. S. C. § 6002 and
§ 6003. On refusing to answer certain questions propounded,
they were committed for civil contempt.
The standard for bail in civil contempt proceedings is
set forth in 28 U. S. C. § 1826 (b) which specifies that
•Together with No. A--80, Reilly et al,, v. United States, also on
application for bail.
TIERNEY v. UNITED STATES 1233
1232 Opinion in Chambers
bail shall be granted if the issues are not frivolous and
if the appeal is not taken for delay. Here the immunity
granted the applicants was a so-called "use" immunity
as distinguished from the "transactional" immunity which
some of us thought was required when the issue was before
us last Term in Ka.stigar v. United States, 406
u. s. 441.
It is now argued that applicants have obtained all the
immunity to which they were constitutionally entitled
and that there is no longer an attorney-client privilege
to be protected. Hence it is argued that the Sixth
Amendment right to counsel which weighed heavily with
me in Russo v. Byrne, ante, p. 1219 (in which I granted
a stay on July 29, 19-72), is not relevant here.
I accept, of course, the Court's decision that only "use"
immunity, not "transactional" immunity, is the constitutional
standard under the Fifth Amendment. The
fact remains, however, that the "leads" obtained from
testimony given after "use" immunity has been granted
can be used to indict and convict the applicants.
It seems to me therefore that the attorney-client privilege
does continue and indeed may be much more vital to
the applicants than it would have been had "transactional"
immunity been the standard adopted by the
Court.
The question remains whether a search warrant issued
for electronic surveillance under the Fourth Amendment
can invade the domain of the Sixth Amendment and
destroy the attorney-client relation. That is an exceedingly
serious question on which this Court has not spoken.
Beyond those two questions there is a further onewhether
on the issue of relevance an in camera proceeding
is adequate or whether an adversary hearing is required.
That is the question central both to the Russo1234
OCTOBER TERM, 1972
Opinion in Chambers 409 U.S.
Ellsberg case, to In re Beverly, and to the present two
cases.
Hence in spite of the fact that my Brother PowELL has
heretofore denied bail in these cases, I have reluctantly
concluded that the requisite for bail in civil contempt
cases, 28 U. S. C. § 1826 (b), has been satisfied here.
COMMUNIST PARTY OF INDIANA v. WHITCOMB 1235
Opinion in Chambers
COMMUNIST PARTY OF INDIANA ETAL. v. WHITCOMB,
GOVERNOR OF INDIANA, ET AL.
ON APPLICATION FOR STAY
No. A-378. Decided October 6, 1972
Motion denominated an application for stay but intended to secure a
partial summary reversal of the District Court's order denied,
since the applicants' right to such relief is not indisputably clear.
MR. JUSTICE REHNQUIST, Circuit Justice.
Applicants have filed a motion denominated an "Application
for Stay of Order of United States District
Court of the Northern District of Indiana, Hammond
Division," which order was entered following a hearing
on their complaint alleging that the oath required by
Indiana law in order for a party to be placed on the ballot
was unconstitutional. An examination of the application,
however, shows that applicants do not seek a stay
of that order, but instead a partial summary reversal of
the District Court order entered on October 4, 1972.
While a Circuit Justice of this Court apparently has
authority under Supreme Court Rule 51 to grant such
relief in the form of a mandatory injunction, usage and
practice suggest that this extraordinary remedy be employed
only in the most unusual case. In order that it
be available, the applicants' right to relief must be indisputably
clear. Applicants do not present such a case,
and their application is therefore denied.
1236 OCTOBER TERM, 1972
Opinion in Chambers 409 U.S.
WESTERMANN ET AL. v. NELSON, ATTORNEY
GENERAL OF ARIZONA
ON MOTION FOR INJUNCTION
'No. A--412. Decided October 20, 1972
The motion for injunction pending appeal of candidates who failro
to secure ballot placement for the November 7, 1972, election
in Arizona is denied because orderly election processes would
likely he disrupted by granting so tardy an application.
MR. JUSTICE DoeGLAS, Circuit Justice.
Petitioners are candidates of the American Independent
Party who complain of their inability to get on the ballot
in Arizona for the November 7, 1972, election.
They brought suit in the District Court but their complaint
was dismissed. They desire to appeal to the Court
of Appeals but were denied a preliminary injunction by
a judge of that court. They now apply to me as Circuit
Justice.
The complaint may have merit. But the time element
is now short and the ponderous Arizona election machinery
is already under way, printing the ballots. Absentee
ballots have indeed already been sent out and
some have been returned. The costs of reprinting all
the ballots will be substantial and it may well be that
no decision on the merits can be reached by the Court
of Appeals in time to reprint the ballots excluding petitioners,
should they lose on the merits.
I have been unable to hear oral argument and have
only the papers of the parties before me.
On the basis of these papers I have concluded that in
fairness to the parties I must deny the injunction, not
because the cause lacks merit but because orderly elecWESTERMANN
v. NELSON 123i
1236 Opinion in Chambers
tion processes would likely be disrupted by so late an
action. The time element has plagued many of these
election cases; but one in my position cannot give relief
in a responsible way when the application is as tardy as
this one.
So I deny the injunction.
1238 OCTOBER TERM, 1972
Opinion in Chambers 409 u. s.
IN RE BERG ET AL.
ON APPLICATION FOR STAY AND BAIL PENDING APPEAL
No. A-460. Decided November 2, 1972
Applicants, who were found in civil contempt after refusing to
testify before a grand jury, have applied for a stay, contending
that they and their attorneys were subjected to illegal electronic
surveillance. The Government denied such surveillance with
respect to the applicants and asserted its unawareness thereof
with respect to the attorneys but did not show that diligent
inquiry had been made. Held: A stay is granted until the matter
can be presented to, and acted on by, the full Court.
MR. JUSTICE DOUGLAS, Circuit Justice.
The Court of Appeals granted a stay in this case until
5:30 p. m. (P. s. t.) today. While the application was
filed here October 28, 1972, I did not desire to act until
the Solicitor General had time to respond. His response
came in yesterday afternoon.
My conclusion is that the case is analogous to the
Ellsberg case (Russo v. Byrne, No. 72-307, 0. T. 1972)
now before the Court; but is more particularly related to
Black v. United States, 385 U. S. 26, and O'Brien v.
United States, 386 U. S. 345.
The issue of electronic surveillance in the present
case raises questions under the Sixth as well as the
Fourth Amendment. Central is the question whether
the unawareness of the prosecution is sufficient to bring
to an end the judicial inquiry or whether some diligent
search of the prosecution is necessary."' In Black a new
*While the prosecution filed affidavits that none of applicants'
conversations was "bugged," there had been no search for any conversations
of their attorneys. It would seem that a client is an
"aggrieved" person within the meaning of 18 U. S. C. §§ 2510 (11)
and 3504 (a) (1) when and if the conversations of his attorney are
"bugged" and used against him.
IN RE BERG
1238 Opinion in Chambrrs
trial was ordered even though the prosecutor did not
know he had in his possession attorney-client conversations
and even though none of them ,...-as used.
I have concluded to grant a stay, good until the matter
can be presented to the full Court and until the Court
acts on it.
1240 OCTOBER TERM, 1972
Opinion in Chambers 409 U.S.
O'BRIEN ET AL. v. SKINNER, SHERIFF, ET AL.
ON APPLICATION FOR STAY
No. A-484. Decided November 6, 1972
Applicants, who are imprisoned after misdemeanor convictions or
while awaiting trial (groups not disfranchised under New York
law), challenge the constitutionality of an absentee voting statute
applicable to those whose confinement in state institutions is
because of physical disability, but not to persons in applicants'
situation. The claim of applicants, which the New York Court of
Appeals rejected, may have merit. and McDonald v. Board of
Election Comm'rs, 394 U. S. 802, on which the State relies, is
distinguishable. However, applicants' delays in submitting their
registration statements to election officials and in filing their application
for stay, together with the absence of information as to
whether a state court stay was sought, compel denial of the
application.
MR. JusTICE MARSHALL, Circuit Justice.
Applicants, 72 prisoners in County Jail in Monroe
County, New York, applied to me in my capacity as a
Circuit Justice for a stay of a New York Court of Appeals
judgment entered November 3, 1972.
The applicants are either convicted misdemeanants or
persons who have been convicted of no crime but are
awaiting trial. New York law makes no provision for
the disfranchisement of these groups. Nonetheless, applicants
allege that they have been prevented from registering
to vote because correctional and election officials
have refused to provide them with absentee ballots, refused
to establish mobile voting and registration equipment
at the prison, and refused to transport them to the
polls. Applicants argue that these restrictions on their
right of franchise are not supported by the sort of "compelling
state interest" that this Court has in the past
O'BRIEN v. SKINNER 1241
1240 Opinion in Chambers
required. See, e. g., Dunn v. Blumstein, 405 U. S. 330
( 1972). They challenge the constitutionality of the
New York statute that permits absentee voting by
persons confined to state institutions by reason of physical
disability but makes no provision for absentee voting
by persons confined to state prisons after misdemeanor
convictions or while awaiting trial.
In response, respondents rely on this Court's decision
in McDonald v. Board of Election Comm'rs, 394 U. S.
802 (1969). In McDonald we held that, under the circumstances
of that case, the mere allegation that Illinois
had denied absentee ballots to unsentenced inmates
awaiting trial in the Cook County jail did not make out
a constitutional claim. I am not persuaded, however,
that McDonald governs this case. Cf. Goosby v. Osser,
452 F. 2d 39 (CA3 1971), cert. granted, 408 U. S. 922
(1972). In McDonald there was "nothing in the record
to indicate that the Illinois statutory scheme [had] an
impact on appellants' ability to exercise the fundamental
right to vote." 394 U. S., at 807. We pointed out that
the record was "barren of any indication that the State
might not, for instance, possibly furnish the jails with
special polling booths or facilities on election day, or
provide guarded transportation to the polls themselves
for certain inmates, or entertain motions for temporary
reductions in bail to allow some inmates to get to the
polls on their own." Id., at 808 n. 6. Here, in contrast,
it seems clear that the State has rejected alternative
means by which applicants might exercise their right to
vote. Deprivation of absentee ballots is therefore tantamount
to deprivation of the franchise itself, and it is
axiomatic that courts must "strictly scrutinize" the discriminatory
withdrawal of voting rights. See, e. g.,
Harper v. Virginia Board of Elections, 383 U. S. 663,
670 (1966).
1242 OCTOBER TERM, 1972
Opinion in Chambers 409 U.S.
Compelling practical considerations nonetheless lead
me to the conclusion that this application must be
denied. Applicants waited until the last day of registration
before submitting their registration statements
to election officials, and they filed this application a scant
four days before the election.
Moreover, neither party submitted to me the Court
of Appeals opinion denying relief until 4 o'clock this
afternoon, and I still do not have before me any written
indication as to whether applicants have applied to the
state court for a stay or as to the state court's disposition
of any such application.
Even if it were possible to arrange for absentee ballots
at this late date, election officials can hardly be expected
to process the registration statements in the remaining
time before the election. It is entirely possible that
some of the applicants are disqualified from voting for
other reasons or that, while qualified to vote somewhere
in the State, they are not qualified to cast ballots in
Monroe County. The States are, of course, entitled to
a reasonable period within which to investigate the
qualifications of voters. See Dunn v. Blumstein, supra,
at 348.
Voting rights are fundamental, and alleged disfranchisement
of even a small group of potential voters is
not to be taken lightly. But the very importance of the
rights at stake militates against hasty or ill-considered
action. This Court cannot operate in the dark, and it
cannot require state officials to do the impossible. With
the case in this posture, I conclude that effective relief
cannot be provided at this late date. I must therefore
deny the application.
FARR v. PITCHESS 1243
Opinion in Chambers
FARR v. PITCHESS, SHERIFF OF LOS ANGELES
COUNTY, CALIFORNIA
ON APPLICATION FOR RELEASE ON OWN RECOGNIZANCE OR
BAIL PENDING APPEAL IN UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
No. A-7O5. Decided January 11, 1973
Commitment for civil contempt of applicant, a reporter who, despite
an order of trial judge barring litigants or their attorneys from
giving certain information to the press, published news story based
on information obtained from attorneys and one other person and
who refused post-trial disclosure to trial judge of informants'
names, involves substantial issues not settled by Branzburg v.
Hayes, 408 U. S. 665, or otherwise, and applicant's release pending
Court of Appeals' decision of applicant's habeas corpus petition
is therefore warranted.
See: 22 Cal. App. 3d 60, 99 Cal. Rptr. 342.
MR. JUSTICE DOUGLAS, Circuit Justice.
Applicant Farr was a reporter for the Los Angeles
Herald Examiner and published stories about the Manson
trial, which were greatly publicized during the trial. The
trial judge in the case had issued orders barring the litigants
and their lawyers from giving certain information
to the press. When the Manson trial was ended, the
trial judge summoned Farr and asked him what the
sources of his information were. Farr acknowledged that
he had received the news story from two of the six attorneys
of record in the Manson case and some of it from
another individual who was subject to the order concerning
publicity but who was not an attorney. Farr
refused to disclose the names and was committed to
prison for civil contempt. He obtained no relief in the
1244 OCTOBER TERM, 1972
Opinion in Chambers 409 U.S.
state courts 1 and then brought federal habeas corpus
which the District Court denied and, pending his appeal
to the Court of Appeals for the Ninth Circuit, he has ap~
plied to me for bail or release on personal recognizance.
Like the three cases decided in Branzburg v. Hayes,
408 U.S. 665, the present case involves civil, not criminal,
contempt. Branzburg, however, involved refusal of a
reporter to testify before a grand jury and reveal the
sources of his news stories. The federal rule is that just
as the power of Congress to commit a recalcitrant witness
for civil contempt ends with the adjournment of that
Congress, Anderson v. Dunn, 6 Wheat. 204, 231, so does
the power of the grand jury end when the grand jury's
term expires. ShiUitani v. United States, 384 U. S. 364,
370-372.
What rule obtains in California is not clear; but it is
intimated that theoretically at least imprisonment for
civil contempt could be for life.
The commitment is defended on the ground that the
trial court, armed with power to keep the trial free from
prejudicial publicity, Sheppard v. Maxwell, 384 U. S.
333, has authority to discipline those who violated its
order barring release of publicity. The necessity to
make Farr talk was therefore held to be compelling.
California has a statute protecting a newsman from
disclosing his sources of news and barring a court from
holding him in contempt for refusal to disclose? The
1 The opinion of the California Court of Appeal, Second Appellate
District, is reported in 22 Cal. App. 3d 60, 99 Cal. Rptr. 342. The
Supreme Court of California denied a hearing on March 27, 1972.
This Court denied certiorari on November 13, 1972. Ante, p. 1011.
2 Calif. Evid. Code § 1070 (Supp. 1972) provides:
"A publisher, editor, reporter, or other person connected with or
employed upon a newspaper, or by a press association or wire sen·-
ice, or any person who has been so connected or employed, cannot
be adjudged in contempt by a court, the Legislature, or any adFARR
v. PITCHESS 1245
1243 Opinion in Chambers
Court of Appeal noted that while Farr had been a newsman
at the time he wrote the story, he had left that
employment when he was questioned by the trial judges.
The Court of Appeal assertedly did not reach the issue
as to whether Farr was covered by the section, holding
instead that to construe the statute as granting immunity
to Farr, in the face of the facts "would be to countenance
an unconstitutional interference by the legislative branch
with an inherent and vital power of the court to control
its own proceedings."
It is argued, in return, that the remedy of criminal
contempt against those subject to the trial court's publicity
order is now out of reach because of the running
of the statute of limitations on criminal contempt 3 and
therefore that the present civil contempt proceedings
against Farr serve no legitimate state interest. I have
received a response from respondent which says that this
is "purely a matter of state concern"-that "there is no
statute of limitations" in California for civil contempts.
Whether this means that Farr could be imprisoned for
life is not clear.
What the merits of the case may be is not in my
province at this stage. The only question is whether
the issue presented is a substantial one. Our Branzburg
ministrative body, for refusing to disclose the source of any infor.
mation procured while so connected or employed for publication in a
newspaper.
"Nor can a radio or television news reporter or other person connected
with or employed by a radio or television station, or any
person who has been so connected or employed, be so adjudged in
contempt for refusing to disclose the source of any information
procured while so connected or employed for news or news com•
mentary purposes on radio or television."
3 Calif. Penal Code § 166 provides that willful disobedience of a
lawfully issued court order is a misdemeanor. Calif. Penal Code
§ 801 provides a one•year period of limitation from the commission of
the crime to the filing of the indictment, information, or complaint.
1246 OCTOBER TERM, 1972
Opinion in Chambers 409 U.S.
decision plainly does not cover it. Our denial of certiorari
imparts no implication or inference concerning
the Court's view of the merits, as Mr. Justice Frankfurter
made clear in Maryland v. Baltimore Radio Show,
338 u. s. 912, 919.
The question, so far as I can tell, is not covered by
any of our prior decisions. The case is a recurring one
where the interests of a fair trial sometimes collide with
the requirements of a free press. A fair trial requires
that a jury be insulated from the barrage of prejudicial
news stories that is sometimes laid down on the courtroom.
It is said that in the present case the Manson
jury was sequestered and so not subject to the kind of
influence we condemned in Sheppard v. Maxwell.
The issue is not free from doubt. Yet since the precise
question is a new one not covered by our prior
decisions, I have concluded in the interest of justice to
release Farr on his personal recognizance pending decision
of his habeas corpus case by the Court of Appeals.
INDEX
ABSENTEE BALLOTS. See Constitutional Law, I, VIII; Justiciability,
1-2.
ABSTENTION. See also Administrative Procedure, 1-2; Antitrust
Acts, 1-2; Judicial Review, 1-2; Procedure, 1-3.
Retention of jurisdiction-Dismissal without prejudice.-In abstaining
so as to permit a state court to pass on an issue of state
law, a district court should retain jurisdiction pending the state proceeding
so that appellants may preserve their right to litigate their
federal claims in federal court at the conclusion of the state proceeding.
American Trial Lawyers v. N. J. Supreme Court, p. 467.
ACCESS TO COURTS. See Bankruptcy Act; Constitutional Law,
v, 3.
ACCOMPLICES. See Constitutional Law, XI, 2.
ACCOUNTANTS. See Constitutional Law, VI; IX; Taxes, 2-3.
ACQUISITION OF CONTROL. See Administrative Procedure,
3; Antitrust Acts, 3.
ACQUITTALS. See Collateral Estoppel; Constitutional Law,
III, 2.
ADJUDICATIONS. See Constitutional Law, IV, 6; Evidence;
Judicial Review, 6.
ADMINISTRATIVE PROCEDURE. See also Antitrust Acts, 1-3;
Interstate Commerce Commission; Judicial Review, 1-2, 7;
Procedure, 1-2.
1. Commodity Exchange Commission-Determination respecting
Exchange's rules violations-Bearing on antitrust laws.-Though the
Commission cannot decide whether the Commodity Exchange Act
and rules immunize conduct from the antitrust laws, the Commission's
determination of whether the Chica.go Mercantile Exchange's
rules were violated as petitioner claims or were followed requires a
factual determination that is within the special competence of the
Commission, and such a determination will greatly aid the antitrust
court in arriving at the essential accommodation between the antitrust
and regulatory regimes. Ricci v. Chicago Mercantile Exchange,
p. 289.
1247
1248 INDEX
ADMINISTRATIVE PROCEDURE-Continued.
2. Compiracy charge-Judicial, abstention-Factual, determination
by administrative agency.-The Court of Appeals correctly determined
that the antitrust proceedings should be stayed until the
Commodity Exchange Commission can pass on the validity of respondents'
conduct under the Commodity Exchange Act. Ricci v.
Chicago Mercantile Exchange, p. 289.
3. Majority stockholder-Control of airline-Improvident management-
Supervi-sion by Civil Aeronautics Board.-The transactions
that Trans World Airlines challenged as violative of the antitrust
laws were under the CAB's control an.cl surveillance and, by virtue
of §§ 408 and 414 of the Federal Aviation Act, had immunity under
the antitrust laws. The Court of Appeals, therefore, erred in holding
that Pan American World Airways v. United States, 371 U. S.
296, is not controlling on the facts involved here. Hughes Tool Co.
v. Trans World Airlines, Inc., p. 363.
ADMIRALTY. See also Jurisdiction, 1, 7.
1. Aircraft crash in navigable waters-Lack of significant relationship
to traditional maritime activity.-Federal admiralty jurisdiction
does not extend to aviation tort claims arising from flights like the
one involved here between points within the continental United
States. Executive Jet Aviation v. City of Cleveland, p. 249.
2. Collision in river channel-Upriver vessel in clear weather-
Downriver vessel in fog-Downriver vessel's sharp turn to port.-
Implicit in that portion of Art. 16 of the Inland Rules of Navigation
that directs a moderate speed for vessels proceeding in foggy
weather, and in the concomitant half-distance rule, is the assumption
that vessels can reasonably be expected to be traveling on
intersecting courses. On the facts of this case, it was totally
unrealistic to anticipate the possibility that the vessels were on
intersecting courses and Art. 16 was not applicable. Union Oil
Co. v. The San Jacinto, p. 140.
3. Takeoff from Cleveland airport-Crash-landing in Lake Erie.-
Neither the fact that an aircraft goes down on navigable
waters nor that the negligence "occurs" while the aircraft is flying
over such waters is sufficient to confer federal admiralty jurisdiction
over aviation tort claims, and in the absence of legislation to the
contrary such jurisdiction exists only when there is a significant
relationship to traditional maritime activity. Executive Jet Aviation
v. City of Cleveland, p. 249.
ADMISSIBILITY. See Constitutional Law, IV, 1, 6; Evidence;
Judicial Review, 4, 6.
INDEX 1249
ADVERSARY HEARINGS. See Bail; Constitutional Law, XI,
1, 4; Standing.
ADVERSARY SYSTEM. See Perjury; Trials, 1.
ADVERSE IMPACTS. See Interstate Commerce Commission;
Judicial Review, 7.
ADVOCATES. See Recusal.
AFFIRMANCES. See Constitutional Law, IV, 6; Evidence;
Judicial Review, 6.
AIR CARRIERS. See Administrative Procedure, 3; Antitrust
Acts, 3.
ALCOHOLIC BEVERAGES. See Constitutional Law, II, 2; XII;
Taxes, 4.
ALGORITHMS. See Patents.
ALLOCATION OF DELEGATES. See Judicial Review, 5.
AMERICAN INDEPENDENT PARTY. See Injunctions.
ANALOG COMPUTERS. See Patents.
ANETH EXTENSION. See Constitutional Law, X, 3; Indian
Lands.
ANSWERS. See Perjury; Trials, I.
ANTITRUST ACTIONS. See Appeals, 1; Expediting Act, 1-2;
Jurisdiction, 3, 5.
ANTITRUST ACTS. See also Administrative Procedure, 1-3;
Judicial Review, 1-2; Procedure, 1-2.
1. Commodity Exchange Commission-Determination respecting
Exchange's rules violations-Bearing on antitrust laws.-Though the
Commission cannot decide whether the Commodity Exchange Act
and rules immunize conduct from the antitrust laws, the Commission's
determination of whether the Chicago Mercantile Exchange's
rules were violated as petitioner claims or were followed requires a
factual determination that is within the special competence of the
Commission, and such a determination will greatly aid the antitrust
court in arriving at the essential accommodation between the antitrust
and regulatory regimes. Ricci v. Chicago Mercantile Exchange,
p. 289.
2. Conspiracy charge-Judicial abstention-Factual determination
by administrative agency.-The Court of Appeals correctly determined
that the antitrust proceedings should be stayed until the
Commodity Exchange Commission can pass on the validity of re1250
INDEX
ANTITRUST ACTS-Continued.
spondents' conduct under the Commodity Exchange Act . Ricci v.
Chicago Mercantile Exchange, p. 289.
3. Majority stockholder-Control of airline-Improvident management-
Supervision by Civil Aeronautics Board.-The transactions
that Trans World Airlines challenged as violative of the antitrust
laws were under the CAB's control and surveillance and, by virtue
of §§ 408 and 414 of the Federal Aviation Act, had immunity under
the antitrust laws. The Court of Appeals, therefore, erred in holding
that Pan American World Airways, Inc. v. United States, 371 U. S.
296, is not controlling on the facts involved here. Hughes Tool Co.
v. Trans World Airlines, p. 363.
APARTMENTS. See Civil Rights Act of 1968; Standing to Sue.
APPEALS. See also Abstention; Bail; Constitutional Law, IV,
4, 6; XI, 4; Evidence; Expediting Act, 1-2; Injunctions;
Judicial Review, 6; Jurisdiction, 3, 5-6; Procedure, 3-5; Removal;
Trials, 4-5.
1. Civil antitrust action-United States as plaintiff-Certification
of order for purpose of interlocutory appeal.-The Expediting Act,
providing that in a civil antitrust action brought by the United
States in a federal district court an appeal from that court's final
judgment will lie only to this Court, lodged exclusive appellate
jurisdiction over such actions in this Court and thus bars the
courts of appeals from asserting jurisdiction over interlocutory orders
covered by 28 U. S. C. § 1292 (b), as well as over other interlocutory
orders specified in § 1292 (a). Tidewater Oil Co. v. United States,
p. 151.
2. Post-conviction relief-Piecemeal collateral attack-Waiver of
right to raise constitutional issue.-Maine could properly provide
that a prisoner seeking post-conviction relief must assert all known
constitutional claims in a single proceeding, and a state prisoner
may not "elect" not to comply with a state court's interpretation
of the statute and claim, as respondent (who had received fair
warni!)g) did here, that he did not have the subjective intent to waive
his constitutional claims. Murch v. Mottram, p. 41.
APPRAISERS. See Constitutional Law, X, 1; Eminent Domain,
1.
ARGUABLE FALSEHOODS. See Perjury; Trials, 1.
ARIZONA. See Constitutional Law, X, 1; Eminent Domain, 1;
Injunctions.
INDEX 1251
ATTORNEY AND CLIENT. See Bail; Constitutional Law, XI,
1, 3-4; Standing.
AUTOMOBILES. See Constitutional Law, IV, 5; Mootness, 2.
AVIATION INDUSTRY. See Administrative Procedure, 3; Antitrust
Acts, 3.
AVIATION TORTS. See Admiralty, 1, 3; Jurisdiction, 1, 7.
BACK PAY. See National Labor Relations Act, 1.
BAIL. See also Constitutional Law, XI, 3-4; Contempt.
Interception of attorney's conversations-Civil contempt.-Where
the Government contended there was no attorney-client privilege to
be protected from surveillance of attorney's telephone under search
warrant because clients were testifying under "use" immunity until
bugging was discovered, when they were committed for civil contempt
for refusing further answers, and where clients applied for bail
pending disposition of their appeals, bail should be granted under
standard applicable under 28 U. S. C. § 1826 (b), since the issues are
not frivolous and the appeals are not taken for delay. Tierney v.
United States (DouGLAS, J., in chambers), p. 1232.
BALANCING OF RACES. See Education Amendments of 1972;
School Desegregation.
BALLOTS. See Injunctions; Judicial Review, 3; Stays, 1-2.
BANK ACCOUNTS. See Perjury; Trials, 1.
BANKRUPTCY ACT. See also Constitutional Law, V, 3; Perjury;
Trials, 1.
Voluntary bankruptcy-Indigent petitioner-Filing f ees.-Access
to courts is not the only conceivable relief available to bankrupts;
the filing-fee requirement does not deny an indigent the equal protection
of the laws, since there is no constitutional right to obtain a
discharge of one's debts in bankruptcy; the right to a discharge in
bankruptcy is not a "fundamental" right demanding a compelling
governmental interest as a precondition to regulation; and there is a
rational basis for the fee requirement. United States v. Kras, p. 434.
BARGES. See Admiralty, 2.
BARS. See Constitutional Law, XII.
BEARDS. See Constitutional Law, IV, 2; Trials, 2.
BENEFICIARIES. See Constitutional Law, X, 3; Indian Lands.
BENEFITS. See Social Security Act.
BETTING. See Criminal Law; Gambling.
1252 INDEX
BIAS. See Constitutional Law, IV, 2-3; Recusal; Trials, 2-3.
BIASED JUDGES. See Constitutional Law, IV, 4; Trials, 4-5.
BILLS OF COMPLAINT. See Jurisdiction, 6; Procedure, 4.
BINARY SYSTEM. See Patents.
BIOLOGICAL FATHERS. See Constitutional Law, V, 1.
BIRDS. See Admiralty, 1, 3; Jurisdiction, 1, 7.
BLACKLISTS. See Civil Rights Act of 1968; Standing to Sue.
BOARD OF ELECTIONS. See Constitutional Law, I; V, 2;
Jnsticiability, 1-2.
"BONUS" DELEGATES. See Judicial Review, 5.
BOOKMAKING BUSINESSES. See Criminal Law; Gambling.
BOOKS AND RECORDS. See Constitutional Law, VI; IX; Taxes,
2-3.
BUGGING ACTIVITIES. See Bail; Constitutional Law, XI, 1,
3-4; Standing.
BURDEN OF PROOF. See Constitutional Law, XI, 2.
BURDENS ON COMMERCE. See Constitutional Law, II, 1-2;
Taxes, 1, 4.
BUSINESS JUSTIFICATIONS. See National Labor Relations
Act, 1.
BUSINESS RECORDS. See Constitutional Law, VI; IX; Taxes,
2-3.
BUSING OF STUDENTS. See Education Amendments of 1972;
School Desegregation.
BYLAWS. See National Labor Relations Act, 2 ; Unions.
BYPASS OF STATE PROCEDURES. See Appeals, 2; Procedure,
5.
CALIFORNIA. See Civil Rights Act of 1968; Constitutional Law,
VII; XII; Contempt; Judicial Review, 3; Jurisdiction, 8;
Mootness, 2; National Labor Relations Act, 1; Standing to
Sue; Stays, 1.
CANDIDATES. See Injunctions.
CARRIERS. See Interstate Commerce Commission; Judicial Review,
7.
CASE OR CONTROVERSY. See Civil Rights Act of 1968; Constitutional
Law, I; V, 2; XII; Jnsticiability, 1-2; Mootness, 1;
Standing to Sue.
INDEX 1253
CENSORSHIP. See Constitutional Law, XII.
CERTIORARI. See Judicial Review, 3; Jurisdiction, 6; Proce•
dure, 4; Stays, 1.
CHALLENGES FOR CAUSE. See Constitutional Law, IV, 2;
Trials, 2.
CHANNELS. See Admiralty, 2.
CHATTANOOGA. See Constitutional Law, III, 1.
CHICAGO MERCANTILE EXCHANGE. See Administrative
Procedure, 1-2; Antitrust Acts, 1-2; Judicial Review, 1-2;
Procedure, 1-2.
CHILDREN. See Constitutional Law, V, 1.
CIVIL AERONAUTICS BOARD. See Administrative Procedure,
3; Antitrust Acts, 3.
CIVIL ANTITRUST ACTIONS. See Appeals, 1; Expediting Act,
1-2; Jurisdiction, 3, 5.
CIVIL CONTEMPT. See Bail; Constitutional Law, VII; XI, 3-4;
Contempt.
CIVIL PROCEEDINGS. See Collateral Estoppel; Constitutional
Law, III, 2.
CIVIL RIGHTS. See also Constitutional Law, IV, 2; Jurisdiction,
2; Trials, 2.
Arrest-Alleged beating by District of Columbia police officer-
Civil action for damages.- The District of Columbia is not a "State
or Territory" within the meaning of 42 U. S. C. § 1983, and the
Court of Appeals therefore erred insofar as that court sustained
respondent's claims for deprivation of civil rights pursuant to that
statute. District of Columbia v. Carter, p. 418.
CIVIL RIGHTS ACT OF 1866. See Civil Rights; Jurisdiction, 2.
CIVIL RIGHTS ACT OF 1968. See also Standing to Sue.
Token integration of apartment complex-Racial, discrimination
allegation by tenants under Act-Complaint of individual injuries.-
The definition in § 810 (a) of the Act of "person aggrieved," as
"any person who claims to have been injured by a discriminatory
housing practice," shows a congressional intention to define standing
as broadly as is permitted by Art. III of the Constitution, and
petitioners, being tenants of the apartment complex, have standing
to sue under § 810(a). Trafficante v. Metropolitan Life Ins., p. 205.
CLASS ACTIONS. See Constitutional Law, I; V, 2; X, 3 ; Indian
Lands; Jurisdiction, 4; Justiciability, 1- 2; Mootness, 1.
1254 INDEX
CLAYTON ACT. See Appeals, 1; Expediting Act, 1-2; Jurisdiction,
3, 5.
COERCION. See National Labor Relations Act, 2; Unions,
COLLATERAL ATTACKS. See Appeals, 2; Procedure, 5.
COLLATERAL ESTOPPEL. See also Constitutional Law, III, 2.
Prior acquit ta/, on smuggling charges-Civil forfeiture proceedings.-
A forfeiture of imported merchandise not included in a declaration
and entry pursuant to the tariff provision in 19 U. S. C. § 1497
is not barred by a prior acquittal under 18 U. S. C. § 545, which
(unlike the civil forfeiture proceeding) requires proof of an intent
to defraud; nor is the forfeiture action barred by the Double
Jeopardy Clause since Congress may impose both a criminal and
civil sanction respect.ing the same act or omission. One Lot Emerald
Cut Stones v. United States, p. 232.
COLLECTIVE-BARGAINING AGREEMENTS. See National Labor
Relations Act, 2; Unions.
COLLISIONS. See Admiralty, 2.
COLUMBIA RIVER. See Admiralty, 2.
COMITY. See Federal-State Relations.
COMMERCE CLAUSE. See Constitutional Law, II, 1-2; Taxes,
1, 4.
COMMERCIAL AIRCRAFT, See Administrative Procedure, 3;
Antitrnst Acts, 3.
COMMODITY EXCHANGE ACT. See Administrative Procedure,
1-2; Antitrust Acts, 1-2; Judicial Review, 1-2; Procedure,
1-2.
COMMON CARRIERS. See Criminal Law; Gambling,
COMMUNICATIONS. See Constitutional Law, XII.
COMMUNIST PARTY. See Stays, 2.
COMPELLING GOVERNMENTAL INTERESTS. See Bankruptcy
Act; Constitutional Law, V, 3.
COMPELLING STATE INTEREST. See Constitutional Law,
VIII.
COMPENSATION. See Constitutional Law, X, 1-3 ; Eminent
Domain, 1-2; Indian Lands.
COMPETITION. See Administrative Procedure, 1- 2; Antitrust
Acts, 1-2; Judicial Review, 1-2; Procedure, 1-2.
INDEX
COMPLAINTS. See Injunctions.
COMPUTERS. See Patents.
1255
CONDEMNATIONS. See Constitutional Law, X, 1-2; Eminent
Domain, 1-2.
CONFESSIONS. See Constitutional Law, IV, 1; Judicial Review,
4.
CONFRONTATIONS. See Constitutional Law, IV, 6; Evidence;
Judicial Review, 6.
CONGRESSIONAL HEARINGS. See Recusal.
CONNECTICUT. See Constitutional Law, II, 2; Taxes, 4.
CONSERVATION. See Interstate Commerce Commission; Judicial
Review, 7.
CONSIGNMENTS. See Constitutional Law, II, 2; Taxes, 4.
CONSOLIDATIONS. See Administrative Procedure, 3; Antitrust
Acts, 3.
CONSPIRACIES. See Administrative Procedure, 1-2; Antitrust
Acts, 1-2; Judicial Review, 1-2; Procedure, 1-2.
CONSTITUTIONAL CLAIMS. See Appeals, 2; Procedure, 5.
CONSTITUTIONAL LAW. See also Bail; Bankruptcy Act; Civil
Rights; Collateral Estoppel; Contempt; Education Amendments
of 1972; Eminent Domain, 1-2; Evidence; Federal-State
Relations; Indian Lands; Judicial Review, 3-6; Jurisdiction,
2, 8; Justiciability, 1-2; School Desegregation; Standing;
Stays, 1-3; Taxes, 1-4; Trials, 2-5.
I. Case or Controversy.
Principal defendants-Other defendants.-Pennsyivania officials'
concession that Pennsylvania Election Code provisions were invalid
did not foreclose the existence of an Art. III case or controversy
since the municipal officials continued to assert the right to enforce
the challenged provisions. Goosby v. Osser, p . 512.
II. Commerce Clause.
1. Gross receipts ta:x-Local, manuf acturer-Out-oj-state customers.-
Proceeds from transactions whereby petitioner creates and
designs reproducible instructional materials in New Mexico for delivery
under contract to out-of-state clients, which the state court
found involved sales of tangible personal property and not rervices
performed in New Mexico, may not be subjected to New Mexico's
gross receipts tax, the imposition of which upon such proceeds con1256
INDEX
CONSTITUTIONAL LAW-Continued.
stitutes an impermissible burden on interstate commerce. Evco v.
Jones, p. 91.
2. State regulation of liquor business.-The requirement that, before
engaging in the liquor business in South Carolina, a manufacturer
do more than merely solicit sales there, is an appropriate
element in the system of regulating the sale of liquor and, given the
provisions of the Twenty-first Amendment, is consonant with the
requirements of the Commerce Clause. Heublein, Inc. v. South
Carolina Tax Comm'n, p. 275.
III. Double Jeopardy.
I. Multiple state prosecutions.-Waller v. Florida, 397 U. S. 387,
which bars on the ground of double jeopardy two prosecutions, state
and municipal, based on the same act or offense, is fully retroactive.
Robinson v. Neil, p. 505.
2. Prior acquittal on smuggling charges-Civil forfeiture proceedings.-
A forfeiture of imported merchandise not included in a
declaration and entry pursuant to the tariff provision in 19 U. S. C.
§ 1497 is not barred by a prior acquittal under 18 U. S. C. § 545,
which (unlike the civil forfeiture proceeding) requires proof of an
intent to defraud; nor is the forfeiture action barred by the Double
Jeopardy Clause since Congress may impose both a criminal and
civil sanction respecting the same act or omission. One Lot Emerald
Cut Stones v. United States, p. 232.
IV. Due Process.
I. Confession-Trial judge's finding of voluntariness.-The trial
court's Jackson v. Denno, 378 U. S. 368, error, if any, was remedied
by the constitutionally adequate evidentiary hearing given respondent
on the voluntariness issue by the St. Louis court, which the
Missouri Supreme Court upheld after concluding from its independent
examination of the record that the confession was voluntary.
The Court of Appeals in this habeas corpus proceeding therefore erred
in holding that respondent was entitled to still another voluntariness
hearing in the state court. Swenson v. Stidham, p. 224.
2. Juror examination on voir dire-Racial prejudice-Beards.-
The trial court's refusal to make any inquiry of the jurors as to
racial bias after petitioner's timely request therefor denied petitioner
a fair trial in violation of the Due Process Clause of the Fourteenth
Amendment. Its refusal to inquire as to particular bias against
beards, after it had made inquiries as to bias in general, was not
constitutional error. Ham v. South Carolina, p. 524.
INDEX 1257
CONSTITUTIONAL LAW-Continued.
3. Trial court's admonition-Intimidation of prisoner witness.-
Trial court's extended admonition to petitioner's only witness to
refrain from lying, coupled with threats of dire consequences if witness
did lie, effectively discouraged the witness from testifying at all
and deprived petitioner of due process of law by denying him the
opportunity to present witnesses in his own defense. Webb v. Texas,
p. 95.
4. Trial before mayor who was responsible for village finances-
Right to impartial proceeding.-Petitioner was denied a trial before a
disinterested and impartial judicial officer as guaranteed by the Due
Process Clause of the Fourteenth Amendment where he was compelled
to stand trial for traffic offenses before the mayor, who was
responsible for village finances and whose court, through fines, forfeitures,
costs, and fees, provided a substantial portion of village
funds. Ward v. Village of Monroeville, p. 57.
5. Vehicle forfeiture procee.dings-M ailing notice to home though
accused known to be in jail.-The procedure followed here did not
comport with due process requirements as the State made no effort
to provide appellant with notice "reasonably calculated" to apprise
him of the pendency of the forfeiture proceedings. Robinson v.
Hanrahan, p. 38.
6. Visual and voice identification-Station-house showup-No
other identification of suspects.-While the station-house identification
may have been suggestive, under the totality of the circumstances
the victim's identification of respondent was reliable and was
properly allowed to go to the jury. Neil v. Biggers, p. 188.
V. Equal Protection of the Laws.
1. Illegitimate chil.d-Natural father's duty to support.-Texas
law denying right of paternal support to illegitimate children while
granting it to legitimate children violates the Equal Protection
Clause of the Fourteenth Amendment. Cf. Levy v. Louisiana, 391
U. S. 68; Weber v. Aetna Ca,sualty & Surety Co., 406 U. S. 164.
Gomez v. Perez, p. 535.
2. Prisoners unable to make bail or held on nonbailable offenses-
Denial of access to registration and voting facilities.-McDonald v.
Board of Election Comm'rs, 394 U. S. 31, unlike the situation
alleged here, did not deal with an absolute prohibition against voting
by the prisoners there involved, and that decision does not "foreclose
the subject" of petitioners' challenge to the Pennsylvania statutory
scheme. The case must therefore be heard by a three-judge district
court. Goosby v. Osser, p. 512.
1258 INDEX
CONSTITUTIONAL LAW-Continued.
3. Voluntary bankruptcy-Indigent petitioner-Filing fees.-Access
to courts is not the only conceivable relief available to bankrupts;
the filing-fee requirement does not deny an indigent the equal
protection of the laws, since there is no constitutional right to obtain
a discharge of one's debts in bankruptcy; the right to a discharge
in bankruptcy is not a "fundamental" right demanding a compelling
governmental interest as a precondition to regulation; and there is
a rational basis for the fee requirement. United States v. Kras,
p. 434.
VI. Fifth Amendment
Internal, Revenue summons-Production of records by accountant
hired to prepare returm.-On the facts of this case, where petitioner
had effectively surrendered possession of the records to the accountant,
there was no personal compulsion ·against petitioner to produce
the records. The Fifth Amendment therefore constitutes no bar to
their production by the accountant, even though the Internal Revenue
Service tax investigation may entail possible criminal as well as civil
consequences. Couch v. United States, p. 322.
VII. First Amendment.
Newspaper reporter-Trial court order barring publicity-Refusal,
to disclose sources.-Coromitment for civil contempt of applicant,
a reporter who, despite an order of trial judge barring litigants or
their attorneys from giving certain information to the press, published
news story based on information obtained from attorneys and one
other person and who refused post-trial disclosure to trial judge
of informants' names, involves substantial issues not settled by
Branzburg v. Hayes, 408 U. S. 665, or otherwise, and applicant's
release pending Court of Appeals' decision of applicant's habeas
corpus petition is therefore warranted. Farr v. Pitchess (DOUGLAS,
J., in chambers), p. 1243.
VIII. Fourteenth Amendment.
Persons awaiting trial-Misdemeanants.-Applicants, who are imprisoned
after misdemeanor convictions or while awaiting trial
(groups not disfranchised under New York law), challenge the constitutionality
of absentee voting statute applicable to those whose
confinement in state institutions is because of physical disability,
but not to persons in applicants' situation. Applicants' delays in
submitting their registration statements to election officials and in
filing their application for stay, together with the absence of information
as to whether a state court stay was sought, compel denial
of the application. O'Brien v. Skinner (MARSHALL, J., in chambers),
p . 1240.
INDEX
CONSTITUTIONAL LAW-Continued.
IX. Fourth Amendment.
1259
Information di.sclosed in tax returns-Expectation of privacy.-
Petitioner, who was aware that much of the information in the summoned
records had to be disclosed in her tax returns, has no legitimate
expectation of privacy that would bar production under either
the Fourth or Fifth Amendment. Couch v. United States, p. 322.
X. Just Compensation.
I. Condemnation-Leased adjacent lands-Revocable Government
permit.s.-The Fifth Amendment requires no compensation for any
value added to the fee lands by the permits, which are revocable and,
by the terms of the Taylor Grazing Act, create no property rights.
United States v. Fuller, p. 488.
2. Improvements by lessee-Government condemnation of leasehold.-
In a condemnation proceeding, the concept of "just compensation"
is measured by what a willing buyer would have paid
for the improvements, taking into account the possibility that the
lease might be renewed as well as that it might not. Almota Farmers
Elevator & Whse. Co. v. United States, p. 470.
3. Indian reservation-Oil and gas wells-Royalties benefiting
Aneth Extension (Navajo Reservation) residents.-As the earlier
statute did not create constitutionally protected property rights in
the residents of the Aneth Extension, the statutory change enlarging
the class of beneficiaries did not constitute a taking of property without
just compensation. United States v. Jim, p. 80.
XI. Sixth Amendment.
I. Criminal trial-Interception of counsel's conversations.-Where
District Court in in camera proceeding ruled that intercepted conversations
of counsel were not relevant to trial issues and Court of
Appeals in affirming held applicants lacked standing to raise relevancy
issue, the issue of relevancy, the resolution of which determined the
issue of standing, required an adversary hearing, and a stay of the
criminal trial is appropriate pending the filing of a petition for a
writ of certiorari in this Court and the Court's action thereon.
Russo v. Byrne (DOUGLAS, J., in chambers), p. 1219.
2. Exculpatory testimony of accomplice-Instructions.-TriaI
court's "accomplice instruction," in effect requiring the jury to decide
that a defense witness' testimony was "true beyond a reasonable
doubt" before considering that testimony in relation to the case,
impermissibly obstructed the right of a criminal defendant to present
exculpatory testimony of an accomplice; and it unfairly reduced the
prosecution's burden of proof, since it is possible that the testimony
1260 INDEX
CONSTITUTIONAL LAW-Continued.
would have created a reasonable doubt in the minds of the jury, but
that it was not considered because the testimony itself was not believable
beyond a reasonable doubt. Cool v. United States, p. 100.
3. Interception of attorney's conversations-Civil contempt.-
Where applicants, who were found in civil contempt after refusing t o
testify before a grand jury, applied for a stay, contending that they
and their attorneys were subjected to illegal electronic surveillance,
and where the Government denied such surveillance as to the applicants
and asserted its unawareness thereof as to the attorneys but
did not show that diligent inquiry had been made, a stay is granted
until the matter can be presented to, and acted on by, the full
Court. In re Berg (DOUGLAS, J., in chambers), p. 1238.
4. Interception of attorney's conversations-Civil contempt.-
Where the Government contended there was no attorney-client privilege
to be protected from surveillance of attorney's telephone under
search warrant because clients were t estifying under "use" immunity
until bugging was discovered, when they were committed for civil contempt
for refusing further answers, and where clients applied for bail
pending disposition of their appeals, bail should be granted under
standard applicable under 28 U.S. C. § 1826 (b) , since the issues are
not frivolous and the appeals are not taken for delay. Tierney v.
United States (DOUGLAS, J., in chambers), p. 1232.
XII. Twenty-first Amendment.
Licensed bars and nightclubs-Sexual, entertainment-Regulation
by Department of Alcoholic Beverage Control.-In the context, not
of censoring dramatic performances in a theater, but of licensing bars
and nightclubs to sell liquor by the drink, the States have broad
latitude under the Twenty-first Amendment to control the manner
and circumstances under which liquor may be dispensed, and here
the conclusion that sale of liquor by the drink and lewd or naked
entertainment should not take place simultaneously in licensed establishments
was not irrational nor was the prophylactic solution unreasonable.
California v. LaRue, p. 109.
CONTEMPT. See also Bail; Constitutional Law, VII ; XI, 3-4.
Newspaper reporter-Trial court order barring publicity-Refusal
to disclose sources.- Commitment for civil contempt of applicant, a
reporter who, despite an order of trial judge barring litigants or
their attorneys from giving certain information to the press, published
news story based on information obta ined from attorneys and
one other person and who refused post-trial disclosure to trial judge
of informants' names, involves substantial issues not settled by
INDEX 1261
CONTEMPT-Continued.
Branzburg v. Hayes, 408 U. S. 665, or otherwise, and applicant's
release pending Court of Appeals' decision of applicant's habeas
corpus petition is therefore warranted. Farr v. Pitche.ss (Doum.As,
J., in chambers), p. 1243.
CONTINENTAL UNITED STATES. See Admiralty, 1, 3; Jurisdiction,
1, 7.
CONTRACT MARKETS. See Administrative Procedure, 1-2;
Antitrust Acts, 1-2; Judicial Review, 1-2; Procedure, 1-2.
CONTRACTS. See Constitutional Law, II, 1; National Labor
Relations Act, 2; Taxes, 1; Unions.
CONTROL OF AIR CARRIERS. See Administrative Procedure,
3; Antitrust Acts, 3.
CONVERSATIONS. See Bail; Constitutional Law, XI, 4.
COOK COUNTY. See Constitutional Law, IV, 5.
CORRECTIONAL OFFICIALS. See Constitutional Law, VIII.
COUNTY WELFARE BOARDS. See Social Security Act.
COURTS. See Abstention; Constitutional Law, IV, 1, 4; Judicial
Review, 4; Procedure, 3; Trials, 4-5.
COURTS OF APPEALS. See Appeals, 1; Expediting Act, 1-2;
Jurisdiction, 3, 5.
CRASHES OF AIRCRAFT. See Admiralty, 1, 3; Jurisdiction,
1, 7.
CREDENTIALS COMMITTEE. See Federal-State Relations; Judicial
Review, 3; Stays, 1.
CREDITORS. See Social Security Act.
CRIMINAL LAW. See also Appeals, 2; Collateral Estoppel; Constitutional
Law, III, 1-2; IV, 1-4, 6; V, 1; VII; XI, 1-2;
Contempt; Evidence; Gambling; Judicial Review, 4, 6; Perjury;
Procedure, 5; Standing; Trials, 1-5.
Travel Act-Rail delivery of racing publication-Bookmaking
operations.-Causing a publication to be carried by a facility of
interstate commerce with an intent to facilitate the operation of an
illegal gambling business is a violation of 18 U. S. C. § 1952. The
exception for "any newspaper or similar publication" contained in
18 U. S. C. § 1953, which prohibits the interstate shipment of certain
gambling paraphernalia, was not intended to be read into § 1952.
Erlenbaugh v. United States, p. 239.
1262 INDEX
CUSTOMERS. See Constitutional Law, II, 1; Taxes, 1.
CUSTOMS. See Collateral Estoppel; Constitutional Law, III, 2.
DAMAGES. See Admiralty, 1, 3; Jurisdiction, 1, 7.
DATA PROCESSING. See Patents.
DEATH ON THE HIGH SEAS ACT. See Admiralty, 1, 3; Jurisdiction,
1, 7.
DEBTS. See Bankruptcy Act; Constitutional Law, V, 3.
DECIMAL SYSTEMS. See Patents.
DECLARATORY JUDGMENTS. See Federal-State Relations;
Judicial Review, 5.
DE FACTO SEGREGATION. See Education Amendments of
1972; School Desegregation.
DEFAULT JUDGMENTS. See Administrative Procedure, 3;
Antitrust Acts, 3.
DELAYS. See Bail; Constitutional Law, XI, 4.
DELEGATES. See Federal-State Relations; Judicial Review, 3,
5; Stays, 1.
DELIBERATE BYPASS OF STATE PROCEDURES. See Appeals,
2; Procedure, 5.
DEMOCRATIC NATIONAL CONVENTION. See Federal-State
Relations; Judicial Review, 3; Stays, 1.
DE NOVO TRIALS. See Constitutional Law, IV, 4; Trials, 4-5.
DEPARTMENT OF JUSTICE. See Recusal.
DEPRIVATION OF CIVIL RIGHTS. See Civil Rights; Jurisdiction,
2.
DESEGREGATION. See Education Amendments of 1972; School
Desegregation.
DIGITAL COMPUTERS. See Patents.
DIRE.CT REVIEW. See Appeals, 1; Expediting Act, 1-2;
Jurisdiction, 3, 5.
DISABILITY INSURANCE. See Social Security Act.
DISCHARGES. See National Labor Relations Act, 1.
DISCHARGES IN BANKRUPTCY. See Bankruptcy Act; Constitutional
Law, V, 3.
INDEX 1263
DISCIPLINARY PROCEEDINGS. See Administrative Procedure,
1-2; Antitrust Acts, 1-2; Judicial Review, 1-2; Procedure, 1-2.
DISCLOSURE OF SOURCES. See Constitutional Law, VII;
Contempt.
DISCRETION. See Interstate Commerce Commission; Judicial
Review, 7.
DISCRIMINATION. See Civil Rights Act of 1968; Constitutional
Law, V, 1; Standing to Sue.
DISCRIMINATORY DISCHARGES. See National Labor Relations
Act, 1.
DISFRANCHISEMENT. See Constitutiona,1 Law, VIII.
DISQUALIFICATION. See Recusal.
DISTRICT OF COLUMBIA. See Civil Rights; Jurisdiction, 2.
DIVESTMENT OF POSSESSION. See Constitutional Law, VI;
IX; Taxes, 2-3.
DOCUMENTS. See Constitutional Law, VI; IX; Taxes, 2-3.
DOMESTIC SURVEILLANCE. See Constitutional Law; XI, 1;
Standing.
DOUBLE JEOP AB.DY. See Collateral Estoppel; Constitutional
La.w, III, 1-2.
DRIVERS' LICENSES. See Mootness, 2.
DRUGS. See Constitutional Law, IV, 2; Jurisdiction, 8; Trials, 2.
DUAL SOVEREIGNTY DOCTRINE. See Constitutional Law,
III, 1.
DUE PROCESS. See Bankruptcy Act; Constitutional Law, I; IV,
1-6; V, 2-3; Evidence; Federal-State Relations; Judicial Review,
3-6; Justiciability, 1-2; Stays, I; Trials, 2-5.
DUES CHECKOFFS. See National Labor Relations Act, 2;
Unions.
DURESS. See Constitutional Law, IV, 3; Trials, 3.
DUTY TO SUPPORT. See Constitutional Law, V, 1.
ECONOMIC DAMAGE. See Civil Rights Act of 1968; Standing
to Sue.
ECONOMIC STRIKERS. See National Labor Relations Act, 1.
EDUCATIONAL PROGRAMS. See Constitutional Law, II, 1;
Taxes, 1.
1264 INDEX
EDUCATION AMENDMENTS OF 1972, See also School Desegregation.
Desegregation of elementary schools-Busing.-Where the lower
courts held that an order for the transportation of students was
entered to accomplish desegregation of the elementary school system
of Atlanta, Georgia, an application for stay premised solely on that
portion of § 803 of the Education Amendments of 1972 prohibiting
effectuation of an order for student busing to achieve a racial balance
among students untjl all appeals have been exhausted is denied.
Dmmmond v. Acree (POWELL, J., in chambers), p. 1228.
ELECTION OF REMEDIES. See Appeals, 2; Procedure, 5.
ELECTIONS. See Constitutional Law; I; V, 2; VIII; Federal-
State Relations; Injunctions; Judicial Review, 3; Justiciability,
1-2; Stays, 1-2.
ELECTORAL VOTES. See Judicial Review, 5.
ELECTRONIC SURVEILLANCE. See Bail; Constitutional Law,
XI, 1, 3-4; Standing.
ELEMENTARY SCHOOLS. See Education Amendments of 1972;
School Desegregation.
EMINENT DOMAIN. See also Constitutional Law, X, 1-2.
1. Condemnation-Leased adjacent lands-Revocable Government
permits.-The Fifth Amendment requires no compensation for any
value added t-0 the fee lands by the permits, which are revocable
and, by the terms of the Taylor Grazing Act, create no property
rights. United States v. Fuller, p. 488.
2. Improvements by lessee-Government condemnat,ion of leasehold.-
In a condemnation proceeding, the concept of "just compensation"
is measured by what a willing buyer would have paid for
the improvements, taking into account the possibility that the lease
might be renewed as well as that it might not. Almota Farmers
Elevator & Whse. Co. v. United States, p. 470.
EMPLOYEES. See Constitutional Law, VI; IX; Taxes, 2-3.
EMPLOYER AND EMPLOYEES. See National Labor Relations
Act, 1-2; Unions.
ENHANCED VALUES. See Constitutional Law, X, 1-2; Eminent
Domain, 1-2.
ENTERTAINMENT. See Constitutional Law, XII.
ENVIRONMENTAL GROUPS. See Interstate Commerce Commission;
Judicial Review, 7.
INDEX 1265
EQUALLY DIVIDED COURT. See Constitutional Law, IV, 6;
Evidence; Judicial Review, 6.
EQUAL PROTECTION or THE LA ws. See Bankruptcy Act;
Constitutional Law, I; V, 1-3; VIII; Education Amendments
of 1972; Justiciability, 1-2; School Desegregation.
EQUITABLE RELIEF. See Jurisdiction, 4.
ERROR. See Constitutional Law, IV, 2; Trials, 2.
ESCAPE PERIODS. See National Labor Relations Act, 2;
Unions.
EVARTS ACT. See Appeals, 1; Expediting Act, 1-2; Jurisdiction,
3, 5.
EVASIVE ANSWERS. See Perjury; Tria.ls, 1.
EVIDENCE. See also Constitutional Law, IV, 1, 6; VI; IX; XI,
2; Judicial Review, 4, 6; Taxes, 2-3.
Visual and voice identification-Station-house showup-N o other
identification of suspects.-While the station-house identification
may have been suggestive, under the totality of the circumstances the
victim's identification of respondent was reliable and was properly
allowed to go to the jury. Neil v. Biggers, p. 188.
EVIDENTIARY HEARINGS. See Mootness, 2.
EXAMINATION OF JURORS. See Constitutional Law, IV, 2;
Trials, 2.
EXCESSIVE SPEEDS. See Admiralty, 2.
EXCLUSION OF EVIDENCE. See Constitutional Law, IV, 6;
Evidence; Judicia.1 Review, 6.
EXCLUSIVE JURISDICTION. See Appeals, 1; Expediting Act,
1-2; Jurisdiction, 3, 5.
EXPECTANCIES. See Constitutional Law, X, 2; Eminent
Domain, 2.
EXPECTATION OF PRIVACY. See Constitutional Law, VI; IX;
Taxes, 2-3.
EXPEDITED REVIEW. See Judicial Review, 3; Stays, 1.
EXPEDITING ACT. See also Appeals, I; Jurisdiction, 3, 5.
I. Civil antitrust action-Appeals from interlocutory orders of federal
district court.-The legislative history of 28 U. S. C. §§ 1292 (a)
and (b) contains no indication of a congressional intent to impair
the original exclusivity of this Court's jurisdiction under the Expediting
Act. Tidewater Oil Co. v. United States, p. 151.
1266 INDEX
EXPEDITING ACT-Continued.
2. Civil antitrust action-United States as plaintiff-Certification
of order for purpose of interlocutory appeal.-The Expediting Act,
providing that in a civil antitrust action brought by the United
States in a federal district court an appeal from that court's final
judgment will lie only to this Court, lodged exclusive appellate
jurisdiction over such actions in this Court and thus bars the courts
of appeals from asserting jurisdiction over interlocutory orders covered
by 28 U. S. C. § 1292 (b), as well as over other interlocutory
orders specified in § 1292 (a). Tidewater Oil Co. v. United States,
p. 151.
EXPERT WITNESSES. See Recusa.l.
EXPLICITLY SEXUAL ENTERTAINMENT. See Constitutional
Law, XII.
EXTRAORDINARY REMEDIES. See Stays, 2.
FAIR HOUSING. See Civil Rights Act of 1968; Standing to Sue.
FAIR MARKET VALUE. See Constitutional Law, X, 1-2;
Eminent Domain, 1-2.
FAIR TRIALS. See Constitutional Law, IV, 2-3; VII; XI, 2;
Contempt; Trials, 2-3.
FALSE ANSWERS. See Perjury; Trials, 1.
FEDERAL ADMIRALTY JURISDICTION. See Admiralty, 1, 3;
Jurisdiction, 1, 7.
FEDERAL AVIATION ACT. See Administrative Procedure, 3;
Antitrust Acts, 3.
FEDERAL FUNDS. See Education Amendments of 1972; School
Desegregation.
FEDERAL HABEAS CORPUS. See Appeals, 2; Procedure, 5.
FEDERAL PAYMENTS. See Social Security Act.
FEDERAL RULES OF CIVIL PROCEDURE. See Bankruptcy
Act; Constitutional Law, V, 3.
FEDERAL-STATE RELATIONS. See also Constitutional Law,
II, 1-2; Criminal Law; Gambling; Taxes, 1, 4.
Primary election-Delegates to national convention.-Where state
court's injunction against interference with elected delegates at
Democratic National Convention was enjoined by District Court,
but Court of Appeals stayed enforcement of District Court's injunction,
and where the state courts are available to applicants for
INDEX 1267
FEDERAL-STATE RELATIONS-Continued.
vindication of their constitutional claims, the application for a stay
of the Court of Appeals order is denied. Cousins v. Wigoda (REHNQUIST,
J., in chambers), p. 1201.
FEDERAL TAXATION. See Constitutional Law, VI; IX; Taxes,
2-3.
FEE LANDS. See Constitutional Law, X, 1 ; Eminent Domain, 1.
FEES. See Bankruptcy Act; Constitutional La.w, V, 3.
FIFTH AMENDMENT. See Bankruptcy Act; Collateral Estoppal;
Constitutional Law, III, 1-2; V, 3; VI; IX; X, 1-3;
Eminent Domain, 1-2; Indian Lands; Taxes, 2-3.
FILING FEES. See Bankruptcy Act; Constitutional Law, V, 3.
FILMS. See Constitutional Law, XII.
FINAL JUDGMENTS. See Appeals, 1; Expediting Act, 1-2;
Jurisdiction, 3, 5.
FINANCIAL ASSISTANCE. See Social Security Act.
FINES. See Constitutional Law, IV, 4; National Labor Relations
Act, 2; Trials, 5-6; Unions.
FIRINGS. See National Labor Relations Act, 1.
FIRST AMENDMENT. See Constitutional Law, VII; Contempt.
FOG SIGNALS. See Admiralty, 2.
FORCED BUSING. See Education Amendments of 1972; School
Desegregation.
FOREIGN CORPORATIONS. See Constitutional Law, II, 2;
Taxes, 4.
FOREIGN SURVEILLANCE. See Constitutional Law, XI, 1;
Standing.
FORFEITURES. See Collateral Estoppel; Constitutional Law,
III, 2; IV, 5.
FOURTEENTH AMENDMENT. See Civil Rights; Constitutional
Law, III, 1; IV, 1-5; V, 1-2; VIII; XII; Education Amendments
of 1972; Judicial Review, 3--4; Jurisdiction, 2, 8; Justiciability,
1-2; School Desegregation; Stays; Trials, 2-5.
FOURTH AMENDMENT. See Bail, Constitutional Law, VI; IX;
XI, 1, 3--4; Jurisdiction, 8; Standing; Taxes, 2-3.
FRANCHISE. See Constitutional Law, I; V, 2; Justiciability, 1-2.
1268 INDEX
FREEDOM OF SPEECH. See Constitutional Law, VII.
FREEDOM OF THE PRESS. See Constitutional Law, VII;
Contempt.
FREEDOM TO RESIGN. See National Labor Relations Act, 2;
Unions.
FREIGHT RATES. See Interstate Commerce Commission; Judicial
Review, 7.
FRIVOLOUS ISSUES. See Bail; Constitutional Law, XI, 4.
FUTURES. See Administrative Procedure, 1-2; Antitrust Acts,
1-2; Judicial Review, 1-2; Procedure, 1-2.
GAMBLING. See also Criminal Law.
Travel Act-Rail delivery of racing publication-Bookmaking operations.-
Causing a publication to be carried by a facility of interstate
commerce with an intent to facilitate the operation of an illegal
gambling business is a violation of 18 U. S. C. § 1952. The exception
for "any newspaper or similar publication" contained in 18
U. S. C. § 1953, which prohibits the interstate shipment of certain
gambling paraphernalia, was not intended to be read into § 1952.
Erlenbaugh v. United States, p. 239.
GAS LEASES. See Constitutional Law, X, 3; Indian Lands.
GENERAL-PURPOSE COMPUTERS. See Patents.
GEORGIA. See Education Amendments of 1972; School Desegregation.
GRAIN ELEVATORS. See Constitutional Law, X, 2; Eminent
Domain, 2.
GRAND JURIES. See Bail; Constitutional Law, XI, 3-4.
GRAZING PERMITS. See Constitutional Law, X, 1; Eminent
Domain, 1.
GRIEVANCES. See National Labor Relations Act, 1.
GROSS RECEIPTS TAX. See Constitutional Law, II, 1; Taxes, 1.
GROSS SEXUALITY. See Constitutional Law, XII.
HABEAS CORPUS. See Appeals; Constitutional Law, III, 1; IV,
1, 6; Evidence; Judicial Review, 4, 6; Procedure, 5.
HALF-DISTANCE RULE. See Admiralty, 2.
HEARINGS. See Constitutional Law, IV, 1; Judicial Review, 4.
HOME ADDRESSES. See Constitutional Law, IV, 5.
HORSE RACING. See Criminal Law; Gambling.
INDEX 1269
HOUSING AND URBAN DEVELOPMENT. See Civil Rights Act
of 1968; Standing to Sue.
HUMAN ENVIRONMENT. See Interstate Commerce Commission;
Judicial Review, 7.
IDENTIFICATIONS. See Constitutional Law, IV, 6; Evidence;
Judicial Review, 6.
ILLEGITIMATE CHILDREN. See Constitutional Law, V, 1;
Jurisdiction, 4.
ILLINOIS. See Administrative Procedure, 1-2; Antitrust Acts,
1-2; Constitutional Law, IV, 5; Criminal Law; Gambling; Judicial
Review, 1-3; Procedure, 1-2, 4; Stays, 1.
ILLINOIS SPORTS NEWS. See Criminal Law; Gambling.
IMMUNITY. See Bail; Constitutional Law, XI, 4.
IMPACT STATEMENTS. See Interstate Commerce Commission;
Judicial Review, 7.
IMPARTIALITY. See Recusal.
IMPARTIAL JUDICIAL OFFICERS. See Constitutional Law,
IV, 4; Trials, 4-5.
IMPROVEMENTS. See Constitutional Law, X, 2; Eminent
Domain, 2.
IN CAMERA PROCEEDINGS. See Bail; Constitutional Law, XI,
1, 4; Standing.
INCOME TAXES. See Constitutional Law, II, 1-2; VI; IX;
Taxes, 1-4.
IN-COURT IDENTIFICATIONS. See Constitutional Law, IV, 6;
Evidence; Judicial Review, 6.
INDEPENDENT CONTRACTORS. See Constitutional Law, VI;
IX; Taxes, 2-3.
INDIANA. See Constitutional Law, XI, 2; Criminal La.w; Gambling;
Mootness, 1 ; Stays, 2.
INDIAN LANDS. See also Constitutional Law, X, 3.
Just Compensation-Indian reservation-Oil and ga.s wells-Royalties
benefiting Aneth Extension (Navajo Reservation) residents.-
As the earlier statute did not create constitutionally protected property
rights in the residents of the Aneth Extension, the statutory
~hangP. enlarging the class of beneficiaries did not constitute a taking
of property without just compensation. United States v. Jim, p. 80.
1270 INDEX
INDICTMENTS. See Constitutional Law, III, 1.
INDIGENTS. See Bankruptcy Act; Constitutional Law, V, 3.
INDIVIDUAL GRIEVANCES. See Jurisdiction, 6; Procedure, 4.
INDIVIDUAL INJURIES. See Civil Rights Act of 1968; Standing
to Sue.
INFORMANTS. See Constitutional Law, VII; Contempt.
INJUNCTIONS. See also Federal-State Relations; Interstate
Commerce Commission; Judicial Review, 5, 7; Jurisdiction, 4;
Stays, 2.
Party on ballot-Complaint dismuised-Tardiness of application
for relief.-The motion for injunction pending appeal of candidates
who failed to secure ballot placement for the November 7, 1972,
election in Arizona is denied because orderly election processes would
likely be disrupted by granting so tardy an application. West.ermann
v. Nelson (DoVGLAS, J., in chambers), p. 1236.
INLAND RULES OF NAVIGATION. See Admiralty, 2.
IN PARI MATEB.IA. See Criminal Law; Gambling.
IN REM PROCEEDINGS. See Constitutional Law, IV, 5.
INSOLVENCY. See Bankruptcy Act; Constitutional Law, V, 3.
INSTALLMENT PAYMENTS. See Bankruptcy Act; Constitutional
Law, V, 3.
INSTRUCTIONAL MATERIALS. See Constitutional Law, II, 1;
Taxes, 1.
INSTRUCTIONS. See Constitutional Law, XI, 2.
INSURANCE. See Jurisdiction, 6; Procedure, 4.
INTEGRATED COMMUNITIES. See Civil Rights Act of 1968;
Standing to Sue.
INTENT TO DEFRAUD. See Collateral Estoppel; Constitutional
Law, III, 2.
INTERCEPTED CONVERSATIONS. See Bail; Constitutional
Law, XI, 1, 3-4; Standing.
INTERLOCUTORY APPEALS. See Appeals, 1; Expediting Act,
1-2; Jurisdiction, 3, 5.
INTERNAL REVENUE. See Constitutional Law, VI; IX; Taxes,
2-3.
INTERRACIAL ASSOCIATIONS. See Civil Rights Act of 1968;
Standing to Sue.
INDEX 1271
INTERSECTING COURSES. See Admiralty, 2.
INTERSTATE COMMERCE. See Constitutional Law, II, 1-2;
Criminal Law; Gambling; Taxes, 1, 4.
INTERSTATE COMMERCE COMMISSION. See also Judicial
Review, 7.
Transportation of recyclable goods-Temporary frei,ght surcharge-
Adverse environmental impact.-Where District Court enjoined railroads'
temporary across-the-board freight surcharge since ICC
had not prepared an "impact statement" as required by § 102 (2) (C)
of the National Environmental Policy Act, and determined that
the certain damage to the environment outweighed the probable
damage to the railroads so that its injunction ought not be stayed,
since it cannot be said that the District Court's factual evaluation
of the necessity for a sta.y constituted an abuse of discretion, the
application for stay must be denied. Aberdeen & Rockfish R. Co.
v. SCRAP (BuRGER, C. J., in chambers), p. 1207.
INTERSTATE COMPACTS. See Jurisdiction, 6; Procedure, 4.
INTERVENTION. See Administrative Procedure, 1-2; Antitrust
Acts, 1-2; Collateral Estoppel; Constitutional Law, III, 2; VI;
IX; Judicial Review, 1-2; Procedure, 1-2; Taxes, 2-3.
INTIMIDATION. See Constitutional Law, IV, 3; Trials, 3.
INTOXICATING LIQUORS. See Constitutional Law, II, 2;
Taxes, 4.
INVENTIONS. See Patents.
INVESTIGATIONS. See Constitutional Law, VI; IX; Taxes,
2-3.
INVIDIOUS DISCRIMINATION. See Constitutional Law, V, 1.
INVOLUNTARY CONFESSIONS. See Constitutional Law, IV, 1;
Judicial Review, 4.
JAILS. See Constitutional Law, IV, 5.
JET AIRCRAFT. See Administrative Procedure, 3; Admiralty,
1, 3; Antitrust Acts, 3; Jurisdiction, 1, 7.
JEWELRY. See Collateral Estoppel; Constitutional Law, III, 2.
JUDGES. See Constitutional La.w, IV, 1, 3-4; Judicial Review, 4;
Recusal; Trials, 3~5.
JUDGMENTS. See Administrative Procedure, 3; Antitrust Acts,
3; Jurisdiction, 4.
JUDICIAL INQUIRIES. See Constitutional Law, XI, 3.
1272 INDEX
JUDICIAL OFFICERS. See Constitutional Law, IV, 4; Trials,
4-5.
JUDICIAL REVIEW. See also Administrative Procedure, 1-2;
Antitrust Acts, 1-2; Appeals, 1; Constitutional Law, IV, 1-2,
6; Evidence; Expediting Act, 1-2; Federal-State Relations;
Interstate Commerce Commission; Jurisdiction, 3, 5, 8; Procedure,
1-2; Stays, 1, 3; Trials, 1.
1. Commodity Exchange Commission-Determination respecting
Exchange's rules violations-Bearing on antitrust laws.-Though the
Commission cannot decide whether the Commodity Exchange Act
and rules immunize conduct from the antitrust laws, the Commission's
determination of whether the Chicago Mercantile Exchange's
rules were violated as petitioner claims or were followed requires a
factual determination that is within the special competence of the
Commission, and such a determination will greatly aid the antitrust
court in arriving at the essential accommodation between the antitrust
and regulatory regimes. Ricci v. Chicago Mercantile Exchange,
p. 289.
2. Conspiracy charge-Judicial abstention-Factual, determination
by administrative agency.-The Court of Appeals correctly determined
that the antitrust proceedings should be stayed until the
Commodity Exchange Commission can pass on the validity of respondents'
conduct under the Commodity Exchange Act. Ricci v.
Chicago Mercantile Exchange, p. 289.
3. Credentials Committee unseating of delegates-Request for expedited
review one week before convention-Availability of convention
as forum.-In view of the probability that the Court of Appeals
erred in deciding on the merits the cases involving seating of
delegates and in view of the traditional right of a political convention
to review and act upon the recommendations of a Credentials
Committee, the judgments of the Court of Appeals must be stayed.
The important constitutional issues cannot be resolved within the
limited time available, and no action is now taken on the petitions
for certiorari. O'Brien v. Brown, p. 1.
4. Due process-Confession-Trial judge's finding of voluntariness.-
The trial court's Jackson v. Denno, 378 U. S. 368, error, if
any, was remedied by the constitutionally adequate evidentiary hearing
given respondent on the voluntariness issue by the St. Louis
court, which the Missouri Supreme Court upheld after concluding
from its independent examination of the record that the confession
was voluntary. The Court of Appeals in this habeas corpus proceeding
therefore erred in holding that respondent was entitled to
INDEX 1273
JUDICIAL REVIEW-Continued.
still another voluntariness hearing in the state court. Swenson v.
Stidham, p. 224.
5. Republican Convention-Allocation of delegates.-District
Court's injunction prohibiting the 1972 Republican National Convention
from allocating six "bonus" delegates to its 1976 convention
to each State casting its electoral votes for the Republican presidential
nominee in 1972, or electing a Republican senator, governor,
or majority of its congressional delegation at any election within four
years previous to 1976 stayed in light of criteria set forth in
O'Brien v. Brown, ante, p. 1, and to preserve the issues for judicial
review. Republican Committee v. Ripon Society (REHNQUIST, J.,
in chambers), p. 1222.
6. State prisoner's appeal-Affirmance by equally divided Court-
Federal habeas corpus proceeding.-This Court's equally divided
affirmance of respondent's state court conviction does not, under 28
U. S. C. § 2244 ( c), bar further federal relief by habeas corpus, since
such an affirmance merely ends the process of direct review but settles
no issue of law. Neil v. Biggers, p. 188.
7. Transportation of recyclable goods-Temporary freight surcharge-
Adverse environmental impact.-Where District Court enjoined
railroads' temporary across-the-board freight surcharge since
Interstate Commerce Commission had not prepared an "impact
statement" as required by § 102 (2) (C) of the National Environmental
Policy Act, and determined that the certain damage to the
environment outweighed the probable damage to the railroads so
that its injunction ought not be stayed, since it cannot be said that
the District Court's factual evaluation of the necessity for a stay
constituted an abuse of discretion, the application for stay must be
denied. Aberdeen & Rockfish R. Co. v. SCRAP (BURGER, C. J., in
chambers), p. 1207.
JURIES. See Constitutional Law, IV, 3; XI, 2; Perjury; Trials,
1, 3.
JURISDICTION. See also Abstention; Administrative Procedure,
1- 2; Admiralty, 1, 3; Antitrust Acts, 1- 2; Appeals, 1; Civil
Rights; Expediting Act, 1-2; Judicial Review, 1-2; Procedure,
1-4.
1. Aircraft crash in navigable waters- Lack of significant relationship
to traditional maritime activity.-Federa1 admiralty jurisdiction
does not extend to aviation tort claims arising from flights like
the one involved here between points within the continental United
States. E,cecutive Jet Aviation v. City of Cleveland, p. 249.
1274 INDEX
JURISDICTION-Continued.
2. Arrest-Alleged beating by District of Columbia police officer-
Civil action for damages.-The District of Columbia is not a "State
or Territory" within the meaning of 42 U. S. C. § 1983, and the
Court of Appeals therefore erred insofar as that court sustained respondent's
claims for deprivation of civil rights pursuant to that
statute. District of Columbia v. Carter, p. 418.
3. Civil antitrust action-United States as plaintiff-Certification
of order for purpose of interlocutory appeal.-The Expediting Act,
providing that in a civil antitrust action brought by the United
States in a federal district court an appeal from that court's final
judgment will lie only to this Court, lodged exclusive appellate
jurisdiction over such actions in this Court and thus bars the courts
of appeals from asserting jurisdiction over interlocutory orders covered
by 28 U. S. C. § 1292 (b), as well as over other interlocutory
orders specified in § 1292 (a). Tidewater Oil Co. v. United States,
p. 151.
4. Class action-Injunctive remedy.-District Court, which granted
appellees an injunction against enforcement of § 203 (a) of the Social
Security Act, erred in assuming jurisdiction under Tucker Act, which
does not authorize suits for equitable relief. Richardson v. Morris,
p. 464.
5. Expediting Act-Civil antitrust action-Appeals from interlocutory
orders of federal district court.-The legislative history of 28
U.S. C. §§ 1292 (a) and (b) contains no indication of a congressional
intent to impair the original exclusivity of this Court's jurisdiction
under the Expediting Act. Tidewater Oil Co. v. United States,
p. 151.
6. Litigation between States over workmen's compensation insurance-
Failure to seek appellate review.-The failure of the State of
Illinms to petition for a writ of certiorari with respect to an adverse
Michigan Supreme Court decision in a case to which Illinois was a
party "vindicat[ing] ... grievances of particular individuals" precludes
recourse to this Court's original jurisdiction as an alternative
to normal appellate review. Illinois v. Michigan, p. 36.
7. Takeoff from Cleveland airport-Crash-landing in Lake Erie.-
Neither the fact that an aircraft goes down on navigable waters nor
that the negligence "occurs" while the aircraft is flying over such
waters is sufficient to confer federal admiralty jurisdiction over aviation
tort claims, and in the absence of legislation to the contrary
such jurisdiction exists only when there is a significant relationship
to traditional maritime activity. Executive Jet Aviation v. City of
Cleveland, p. 249.
INDEX 1275
JURISDICTION-Continued.
8. Warrantless search-Doubt as to basis for state court's dismissal.-
It not being clear whether the judgment of the California
Supreme Court affirming the lower court is based on federal or state
constitutional grounds, or both, and whether this Court has jurisdiction
on review, the judgment is vacated and the cause remanded.
California v. Krivda, p. 33.
JURORS. See Constitutional Law, IV, 2; Trials, 2.
JURY TRIALS. See Constitutional Law, IV, 6; Evidence; Judicial
Review, 6.
JUST COMPENSATION. See Constitutional Law, X, 1-3; Eminent
Domain, 1-2; Indian Lands.
JUSTIOIABILITY. See also Constitutional Law, I; V, 2; Federal-
State Relations; Judicial Review, 3.
1. Principal defendants-Other defendants .-Pennsylvania officials'
concession that Pennsylvania Election Code provisions were invalid
did not foreclose the existence of an Art. III case or controversy since
the municipal officials continued to assert the right to enforce the
challenged provisions. Goosby v. Osser, p. 512.
2. Prisoners unable to make bail or held on nonbailable offenses-
Denial of access to registration and voting facilities.-McDonald v.
Board of Election Comm'rs, 394 U. S. 31, unlike the situation alleged
here, did not deal with an absolute prohibition against voting by
the prisoners there involved, and that decision does not "foreclose
the subject" of petitioners' challenge to the Pennsylvania statutory
scheme. The case must therefore be heard by a three-judge district
court. Goosby v. Osser, p. 512.
KU KLUX KLAN ACT OF 1871. See Civil Rights; Jurisdiction,
2.
LABOR. See National Labor Relations Act, 1; Unions.
LAKE ERIE. See Admiralty, 1, 3; Jurisdiction, 1, 7.
LANDLORDS. See Civil Rights Act of 1968; Constitutional Law,
X, 2; Eminent Domain, 2; Standing to Sue.
LAWFUL STRIKES. See National Labor Relations Act, 1.
LA WYERS. See Perjury; Trials, 1.
LEASES. See Constitutional Law, X, 1-3; Eminent Domain, 1-2;
Indian Lands.
LEGITIMATE CHILDREN. See Constitutional Law, V, 1.
1276 INDEX
LEGITIMATE EXPECTATION OF PRIVACY. See Constitutional
Law, VI; IX; Taxes, 2-3.
LEWD ENTERTAINMENT. See Constitutional Law, XII.
LIABILITY. See Admiralty, 2.
LICENSES. See Constitutional Law, XII; Mootness, 2.
LINEUPS. See Constitutional Law, IV, 6; Evidence; Judicial Review,
6.
LIQUOR BUSINESSES. See Constitutional Law, II, 2; Taxes, 4.
LIQUOR BY THE DRINK. See Constitutional Law, XII.
LIVESTOCK PERMITS. See Constitutional Law, X, 1; Eminent
Domain, 1.
LOCALITY TEST. See Admiralty, 1, 3; Jurisdiction, 1, 7.
MAILING NOTICE. See Constitutional Law, IV, 5.
MAINE. See Appeals, 2; Procedure, 5.
MAINTENANCE-OF-MEMBERSHIP CLAUSES. See National
Labor Relations Act, 2; Unions.
MAJORITY STOCKHOLDERS. See Administrative Procedure,
3; Antitrust Acts, 3.
MANDATORY INJUNCTIONS. See Stays, 2.
MANUALS. See Constitutional Law, II, 1; Taxes, 1.
MANUFACTURERS. See Constitutional Law, II, 2; Taxes, 4.
MARIHUANA. See Constitutional Law, IV, 2; Jurisdiction, 8;
Trials, 2.
MARITIME NEXUS. See Admiralty, 1, 3; Jurisdiction, 1, 7.
MARITIME TORTS. See Admiralty, 1, 3; Jurisdiction, 1, 7.
MARKET VALUE. See Constitutional Law, X, 1- 2; Eminent
Domain, 1-2.
MATERIAL WITNESSES. See Recusal.
MATHEMATICAL PROCEDURES. See Patents.
MAYORS' COURTS. See Constitutional Law, IV, 4; Trials, 4-5.
MEMBERS. See National Labor Relations Act, 2; Unions.
MEMBERSHIPS. See Administrative Procedure, 1- 2; Antitrust
Acts, 1-2; Judicial Review, 1-2; Procedure, 1-2.
"MERE SOLICITATION." See Constitutional Law, II, 2; Taxes,
4.
INDEX 1277
MERGERS. See Administrative Procedure, 3; Antitrust Acts, 3.
METROPOLITAN POLICE DEPARTMENT. See Civil Rights;
Jurisdiction.
MICHIGAN. See Jurisdiction, 6; Procedure, 4.
MINERAL LEASES. See Constitutional Law, X, 3; Indian
Lands.
MINORITIES. See Civil Rights Act of 1968; Standing to Sue.
MINORS. See Constitutional Law, V, 1.
MISDEMEANANTS. See Constitutional Law, VIII.
MISIDENTIFICATION. See Constitutional Law, IV, 6; Evidence;
Judicial Review, 6.
MISSOURI. See Constitutional Law, IV, I; Judicial Review, 4.
MISTRIALS. See Constitutional Law, IV, 3; Trials, 3.
MODERATE SPEEDS. See Admiralty, 2.
MONETARY PENALTIES. See Collateral Estoppel; Constitutional
Law, III, 2.
MONOPOLIES. See Administrative Procedure, 3; Antitrust
Acts, 3.
MOOTNESS. See also Judicial Review, 3; Stays, 1.
I. Ineligible beneficiary-Reversal of initial determination-Retroactive
payment of compensation.-There being no named representative
of the class except appellee, settlement of appellee's claim
for benefits in this class action challenging Indiana's system of administering
unemployment insurance raises a question as to whether
this case has become moot. Indiana Employment Division v. Burney,
p. 540.
2. Revocation of driver's license-Supervening decision.-Supervening
decision regarding whether persons similarly situated are entitled
to evidentiary hearing prior to revocation of driver's license
being given retroactive effect by state courts, case remanded to determine
whether is has become moot. Rivas v. Cozens, p. 55.
MUNICIPAL JUDGES. See Constitutional Law, IV, 4; Trials,
4-5.
MUNICIPAL OFFICIALS. See Constitutional Law, I; V, 2;
Justiciability, 1-2.
MUNICIPAL PROSECUTIONS. See Constitutional Law, III, 1.
NAKED ENTERTAINMENT. See Constitutional Law, XII.
1278 INDEX
NATIONAL ENVIRONMENTAL POLICY ACT. See Interstate
Commerce Commission; Judicial Review, 7.
NATIONAL LABOR RELATIONS ACT. See also Unions.
1. Refusal, to cross picket line-Discharges before replacements
hired-Unfair labor practices.-The unconditional reinstatement of
the employees was proper since their discriminatory discharges prior
to the time their places were filled constituted unfair labor practices
regardless of whether they were economic strikers or unfair labor
practice strikers. NLRB v. International Van Lines, p. 48.
2. Strike-Resignations from union-Resumption of work.-
Where neither the Union-employer contract nor the Union's constitution
or bylaws defined or limited the circumstances under which
a member could resign from the Union, it was an unfair labor practice
for the Union to fine employees who had been Union members
in good standing but who had resigned during a lawful strike authorized
by the members and thereafter returned to work during that
strike. NLRB v. Textile Workers, p. 213.
NATURAL PARENTS. See Constitutional Law, V, 1.
NATURAL RESOURCES. See Interstate Commerce Commission;
Judicial Review, 7.
NAVAJO INDIANS. See Constitutional Law, X, 3; Indian Lands.
NAVIGABLE WATERS. See Admiralty, 1, 3; Jurisdiction, 1, 7.
NAVIGATION. See Admiralty, 2.
NEGATIVE IMPLICATIONS. See Perjury; Trials, 1.
NEGLIGENCE. See Admiralty, 1, 3; Jurisdiction, 1, 7.
NEGROES. See Constitutional Law, IV, 2; Trials, 2.
NET INCOME TAX. See Constitutional Law, II, 2; Taxes, 4.
NEW JERSEY. See Abstention; Procedure, 3; Social Security
Act.
NEW MEXICO. See Constitutional Law, II, 1; Taxes, 1.
NEWSPAPER REPORTERS. See Constitutional Law, VII;
Contempt.
NEWSPAPERS. See Criminal Law; Gambling.
NEW YORK. See Bankruptcy Act; Constitutional Law, V, 3.
NIGHTCLUBS. See Constitutional Law, XII.
NOMINAL PARTIES. See Jurisdiction, 6; Procedure, 4.
NOMINATING CONVENTIONS. See Judicial Review, 5.
INDEX 1279
NONBAILABLE OFFENSES. See Constitutional Law, I; V, 2;
Justiciability, 1-2.
NONFEDERAL GROUNDS. See Jurisdiction, 8.
NONJUDICIAL REMEDIES. See Bankruptcy Act; Constitutional
Law, V, 3.
NONRENEWAL OF LEASES. See Constitutional Law, X, 2;
Eminent Domain, 2.
NOTICE. See Constitutional Law, IV, 5.
NUDITY. See Constitutional Law, XII.
NUMERICAL INFORMATION. See Patents.
OATHS. See Stays, 2.
OHIO. See Admiralty, 1, 3; Constitutional Law, IV, 4; Jurisdiction,
1, 7; Trials, 4-5.
OIL LEASES. See Constitutional Law, X, 3; Indian Lands.
ORDINANCES. See Constitutional Law, IV, 4; Trials, 4-5.
OREGON. See Admiralty, 2.
ORGANIZED CRIME. See Criminal Law; Gambling.
ORIGINAL JURISDICTION. See Jurisdiction, 6; Procedure, 4.
OUT-OF-STATE PURCHASERS. See Constitutional Law, II, 1;
Taxes, 1.
PARENTS. See Constitutional Law, V, 1.
PARI MATER.IA. See Criminal Law; Gambling.
PARTIALITY. See Constitutional Law, IV, 2; Trials, 2.
PARTIES. See Jurisdiction, 6; Procedure, 4.
PARTY RULES. See Judicial Review, 3; Stays, 1.
PATENTS.
Programmed conversion of numerical information-Patentability
vel non-Digital computers.-Respondents' method for converting
numerical information from binary-coded decimal numbers into pure
binary numbers, for use in programming conventional generalpurpose
digital computers, is merely a series of mathematical calculations
or mental steps and does not constitute a patentable
"process" within the meaning of the Patent Act, 35 U. S. C. § 100 (b).
Gottschalk v. Benson, p. 63.
PAUPERS. See Bankruptcy Act; Constitutional Law, V, 3.
1280 INDEX
PAYMENT OF DUES. See National Labor Relations Act, 2;
Unions.
PAYMENTS. See Social Security Act.
PENAL INSTITUTIONS. See Constitutional Law, I; V, 2; Justiciability,
1-2.
PENALTIES. See National Labor Relations Act, 2; Unions.
PENNSYLVANIA. See Constitutional Law, I; V, 2; Justiciability,
1-2.
PERFORMANCES. See Constitutional Law, XII.
PERJURY. See also Constitutional Law, IV, 3; Trials, 1, 3.
Cross-examination-True, but unresponsive, answers-Attorney's
framing of questions.-Federal perjury statute, 18 U. S. C. § 1621,
does not reach a witness' answer that is literally true, but unresponsive,
even as,mming the witness intends to mislead his questioner by
the answer, and even assuming the answer is arguably "false by negative
implication." A perjury prosecution is not, in our adversary
system, the primary safeguard against errant testimony; given the
incongruity of an unresponsive answer, it is the questioner's burden
to frame his interrogation acutely to elicit the precise information
he seeks. Bronston v. United States, p. 352.
PERMANENT DISABILITY. See Social Security Act.
PERMANENT REPLACEMENTS. See National Labor Relations
Act, 1.
PERMIT LANDS. See Constitutional Law, X, 1; Eminent Domain,
1.
PERSONAL PRIVILEGE. See Constitutional Law, VI; IX;
Taxes, 2--3.
PERSONAL PROPERTY. See Constitutional Law, II, 1; Taxes, 1.
PERSONAL RECOGNIZANCE. See Constitutional Law, VII;
Contempt.
PHILADELPHIA. See Constitutional Law, I; V, 2; Justiciability,
1-2.
PHYSICAL DISABILITIES. See Constitutional Law, VIII.
PICKET LINES. See National Labor Relations Act, 1.
PIECEMEAL LITIGATION. See Appeals, 1-2; Expediting Act,
1-2; Jurisdiction, 3, 5; Procedure, 5.
POLICE. See Jurisdiction, 8.
INDEX 1281
POLICE BRUTALITY. See Civil Rights; Jurisdiction, 2.
POLITICAL CONVENTIONS. See Federal-State Relations; Judicial
Review, 3; Stays, 1.
POLITICAL PARTIES. See Injunctions; Stays, 2.
POLLING PLACES. See Constitutional Law, I; V, 2; Justiciability,
1-2.
POLLS. See Constitutional Law, VIII.
POST-CONVICTION RELIEF. See Appeals, 2; Procedure, 5.
POVERTY. See Bankruptcy Act; Constitutional Law, V, 3.
PRECEDENTS. See Constitutional Law, IV, 6; Evidence; Judicial
Review, 4.
PRECIOUS STONES. See Collateral Estoppel; Constitutional
Law, III, 2.
PREJUDICE. See Constitutional Law, IV, 2; Trials, 2.
PREJUDICIAL PUBLICITY. See Constitutional Law, VII;
Contempt.
PRESIDENTIAL ELECTIONS. See Constitutional Law, VIII ;
Injunctions; Judicial Review, 3, 5; Stays, 1.
PRETRIAL IDENTIFICATIONS. See Constitutional Law, IV, 6;
Evidence; Judicial Review, 6.
PRETRIAL PUBLICITY. See Constitutional Law, IV, 2; Trials,
2.
PRIMARIES. See Federal-State Relations; Judicial Review, 3;
Stays, 1.
PRINCIPAL DEFENDANTS. See Constitutional Law, I; V, 2;
Justiciability, 1-2.
PRIOR ACQUITTALS. See Collateral Estoppel; Constitutional
Law, III, 2.
PRISONERS. See Appeals, 2; Constitutional Law, I; IV, 3, 5-6;
V, 2; VIII; Evidence; Judicial Review, 6; Justiciability, 1-2;
Procedure, 5; Trials, 3.
PRIVATE ATTORNEYS GENERAL. See Civil Rights Act of
1968; Standing to Sue.
PRIVATE LITIGANTS. See Jurisdiction, 6 ; Procedure, 4.
PRIVATE PAPERS. See Constitutional Law, VI ; IX ; Taxes,
2-3.
1282 INDEX
PRIVILEGE. See Bail; Constitutional Law, VI; IX; XI, 3-4;
Taxes, 2-3.
PROCEDURE. See also Abstention; Administrative Procedure,
1-2; Antitrust Acts, 1-2; Appeals, 2; Constitutional Law, IV,
4, 6; Evidence; Judicial Review, 1-2, 4; Jurisdiction, 6; Removal;
Stays, 2; Trials, 4-5.
l. Commodity Exchange Commission-Determination respecting
Exchange's rules violations-Bearing on antitrust laws.-Though the
Commission cannot decide whether the Commodity Exchange Act
and rules immunize conduct from the antitrust laws, the Commission's
determination of whether the Chicago Mercantile Exchange's
rules were violated as petitioner elaims or were followed requires a
factual determination that is within the special competence of the
Commission, and such a determination will greatly aid the antitrust
court in arriving at the essential accommodation between the antitrust
and regulatory regimes. Ricci v. Chicago Mercantile Exchange,
p. 289.
2. Conspiracy charge-Judicial abstention-Factual determination
by administrative agency.-The Court of Appeals correctly determined
that the antitrust proceedings should be stayed until the
Commodity Exchange Commission can pass on the validity of respondents'
conduct under the Commodity Exchange Act. Ricci v.
Chicago Mercantile Exchange, p. 289.
3. Federal, court's abstention-Dismissal, without prejudice.-In
abstaining so as to permit a state court to pass on an issue of state
law, a district court should retain jurisdiction pending the state proceeding
so that appellants may preserve their right to litigate their
federal claims in federal court at the conclusion of the state proceeding.
American Trial Lawyers v. N. J. Supreme Court, p. 467.
4. Litigation between States over workmen's compensation insurance-
F'ailure to seek appellate review.-The failure of the State of
Illinois to petition for a writ of certiorari with respect to an adverse
Michigan Supreme Court decision in a case to which Illinois was a
party "vindicat[ingJ ... grievances of particular individuals" precludes
recourse to this Court's original jurisdiction as an alternative
to normal appellate review. Illinois v. Michigan, p. 36.
5. Post-conviction relief-Piecemeal, collateral attack-Waiver of
right to raise constitutional, issue.-Maine could properly provide
that a prisoner seeking post-conviction relief must assert all known
constitutional claims in a single proceeding, and a state prisoner may
not "elect" not to comply with a state court's interpretation of the
statute and claim, as respondent (who had received fair warning)
INDEX 1283
PROCEDURE-Continued.
did here, that h e did not have t he subjective intent to wa ive his
constitutional claims. Murch v. Mottram, p. 41.
PROCEEDS OF SALES. See Constitutional Law, II, 1; Taxes, 1.
PROCESS CLAIMS. See Patents.
PRODUCERS. See Constitutional Law, II, 2; Taxes, 4.
PROPHYLACTIC RULES. See Constitutional Law, I V, 4; XII ;
Trials, 4-5.
PROPOSED TARIFFS. See Interstate Commerce Commission;
Judicial Review, 7.
PROSECUTIONS. See Constitutional Law, III, 1 ; Perjury;
Trials, 1.
PROSECUTORS, See Constitutional Law, XI, 3.
PUBLIC ASSISTANCE. See Bankruptcy Act; Constitutional
Law, V, 3.
PUBLICATIONS. See Criminal Law; Gambling.
PUBLIC DOMAIN. See Constitutional Law, X, 3; Indian Lands.
PUBLIC INTEREST. See Administrative Procedure, 3; Antitrust
Acts, 3.
PUBLICITY. See Constitutional Law, VII; Contempt,
PUBLIC MORALS. See Constitutional Law, XII.
PUBLIC SCHOOLS. See Education Amendments of 1972; School
Desegregation.
PUBLIC STATEMENTS. See Recusal.
PURE BINARY NUMERALS. See Patents.
QUALIFICATION OF VOTERS. See Constitutional Law, VIII.
QUALITY OF ENVIRONMENT. See Interstate Commerce Commission
; Judicial Review, 7.
QUASI IN REM PROCEEDINGS. See Con stitutional Law, V, 5.
QUESTIONS. See Perjury; Trials, 1.
QUOTA SYSTEM. See Judicial Review, 3; Stays, 1.
RACIAL DISCRIMINATION. See Civil Rights Act of 1968;
Standing to Sue.
RACIAL IMBALANCE. See Education Amendments of 1972 ;
S chool Desegregation.
1284 INDEX
RACIAL PREJUDICE. See Constitutional Law, IV, 2; Trials, 2.
RACING. See Criminal Law; Gambling.
RAILROADS. See Constitutional Law, X, 2; Eminent Domain, 2;
Interstate Commerce Commission; Judicial Review, 7.
RANCHES. See Constitutional Law, X, 1; Eminent Domain, 1.
RATES. See Interstate Commerce Commission ; Judicial Review, 7.
REASONABLE DOUBT. See Constitutional Law, XI, 2.
RECORDS. See Constitutional La.w, VI; IX; Taxes, 2-3.
RECUSAL.
Motion that Justice disqual,ify himself-Public statements made
before appointment to Court.-Controlling statute, 28 U.S. C. § 455,
does not require Supreme Court Justice to recuse himself since he
did not participate in the case, either of record or in an advisory
capacity, in any court or in the Government's conduct of case in
which motion to recuse was made. Laird v. Tatum (REHNQUIST, J.,
denial of motion), p. 824.
RECYCLABLE GOODS. See Interstate Commerce Commission;
Judicial Review, 7.
RE-EMPLOYMENT. See National Labor Relations Act, 1.
REFEREES. See Bankruptcy Act; Constitutional Law, V, 3.
REGISTERED BRANDS. See Constitutional Law, II, 2; Taxes, 4.
REGISTRATION STATEMENTS. See Constitutional Law, VIII.
REGULATORY AGENCIES. See Interstate Commerce Commission;
Judicial Review, 7.
REGULATORY SCHEMES. See Constitutional Law, II, 2;
Taxes, 4.
REIMBURSEMENTS. See Social Security Act.
REINSTATEMENT. See National Labor Relations Act, 1.
RELIEF. See Federal-State Relations; Injunctions; Judicial Review,
3; Stays, 1-2.
REMEDIAL SANCTIONS. See Collateral Estoppel; Constitutional
Law, III, 2.
REMEDIES. See Appeals, 2; Bankruptcy Act; Constitutional
Law, V, 3; Procedure, 5.
INDEX 1285
REMOVAL.
Ca,se before state court-Removal, to federal court.-Case remanded
to United States Court of Appeals for reconsideration of its
order of dismissal in light of 28 U. S. C. § 1447 (c). Givens v.
Grant Co., p. 56.
RENEWAL OF LEASES. See Constitutional Law, X, 2; Eminent
Domain, 2.
REPLACEMENTS. See National Labor Relations Act, 1.
REPORTERS. See Constitutional Law, VII; Contempt.
REPUBLICAN NATIONAL CONVENTION. See Judicial Review,
5.
RESIGNATIONS FROM UNIONS. See National Labor Relations
Act, 2; Unions.
RES JUDICATA. See Constitutional Law, IV, 6; Evidence; Judicial
Review, 6.
RESPONSIVE REPLIES. See Perjury; Trials, 1.
RESTRAINING ORDERS. See Appeals, l; Expediting Act, 1-2;
Jurisdiction, 3, 5.
RETAILERS. See Constitutional Law, II, 2; Taxes, 4.
RETROACTIVE BENEFITS. See Social Security Act.
RETROACTIVITY. See Constitutional Law, III, 1; Mootness, 2.
RETURNS. See Constitutional Law, VI; IX; Taxes, 2-3.
REVENUES. See Constitutional Law, IV, 4; Trials, 4-5.
REVERSIBLE ERROR. See Constitutional Law, IV, 2; Trials, 2.
REVOCATIONS. See Mootness, 2.
RIGHT OF APPEAL. See Appeals, 1 ; Expediting Act, 1-2; Jurisdiction,
3, 5.
RIGHT OF FRANCHISE. See Constitutional Law, VIII.
RIGHT TO COUNSEL. See Bail; Constitutional Law, XI, 1, 3-4 ;
Standing.
RIGHT TO REFRAIN FROM UNION MEMBERSHIP. See National
Labor Relations Act, 2; Unions.
RIGHT TO VOTE. See Constitutional Law, I; V, 2; Justiciability,
1-2.
ROYALTIES. See Constitutional Law, X, 3; Indian Lands.
1286 INDEX
RULE OF LOCALITY. See Admiralty, 1, 3; Jurisdiction, 1, 7.
RULE OF SIGHT. See Admiralty, 2.
SALES. See Constitutional Law, II, 1-2; Taxes, 1, 4.
SALVAGE VALUE. See Constitutional Law, X, 2; Eminent
Domain, 2.
SANCTIONS. See Collateral Estoppel; Constitutional Law, III, 2.
SCHOOL DESEGREGATION. See also Education Amendments
of 1972.
Desegregation of elementary schools-Busing-Education Amendments
of 1972.-Where the lower courts held that an order for the
transportation of students was entered to accomplish desegregation
of the elementary school system of Augusta, Georgia, an application
for stay premised solely on that portion of § 803 of the Education
Amendments of 1972 prohibiting effectuation of an order for student
busing to achieve a racial balance among students until all
appeals have been exhausted is denied. Dn.1mmond v. Acree
(POWELL, J., in chambers), p. 1228.
SCHOOLS. See Education Amendments of 1972; School Desegregation.
SCRATCH SHEETS. See Criminal Law; Gambling.
SEAGULLS. See Admiralty, 1, 3; Jurisdiction, 1, 7.
SEARCHES AND SEIZURES. See Constitutional Law, VI;
XI, 3; Jurisdiction, 8; Taxes, 2-3.
IX· '
SEARCH WARRANTS. See Bail; Constitutional Law, XI, 4.
SEATING OF DELEGATES. See Federal-State Relations; Judicial
Review, 3; Stays, 1.
SECRETARY OF AGRICULTURE. See Administrative Procedure,
1, 2; Antitrust Acts, 1, 2; Judicial Review, 1-2; Procedure,
1-2.
SEGREGATION. See Education Amendments of 1972; School
Desegregation.
SELF-INCRIMINATION. See Constitutional Law, VI; IX;
Taxes, 2-3.
SELF-REGULATORY GOALS. See Administrative Procedure,
1-2; Antitrust Acts, 1-2; Judicial Review, 1-2; Procedure,
1-2.
SERVICE OF NOTICE. See Constitutional Law, IV, 5.
INDEX
SERVICES. See Constitutional Law, II, 1; Taxes, 1.
SETTLEMENT OF CLAIMS. See Mootness, 1.
1287
SEXUAL ENTERTAINMENT. See Constitutional Law, XII.
SHERMAN ACT. See Administrative Procedure, 1-2; Antitrust
Acts, 1-2; Judicial Review, 1-2; Procedure, 1-2.
SHIPPING CHANNELS. See Admiralty, 2.
SHOWUPS. See Constitutional Law, IV, 6; Evidence; Judicial
Review, 6.
SIXTH AMENDMENT. See Bail; Constitutional Law, XI, 1-4;
Standing.
SLATE-MAKING GUIDELINES. See Judicial Review, 3; Stays,
1.
SMUGGLING. See Collateral Estoppel; Constitutional Law, III,
2.
SOCIAL SECURITY ACT. See also Jurisdiction, 4; Mootness, 1.
Permanent ,disability-State financial. assistance-Agreement to
reimburse.-A provision in the Social Security Act, 42 U.S. C. § 407,
that prohibits subjecting federal disability insurance benefits and
other benefits to any legal process, bars a State from recovering such
benefits retroactively paid to a beneficiary, and in this case no exception
can be implied on the ground that if the federal payments had
been made monthly there would have been a corresponding reduction
in the state payments. Philpott v. Essex County Welfare Board,
p. 413.
SOURCES OF INFORMATION. See Constitutional Law, VII;
Contempt.
SOUTH CAROLINA. See Constitutional Law, II, 2; IV, 2; Taxes,
4; Trials, 2.
SOVEREIGN IMMUNITY. See Civil Rights; Jurisdiction, 2.
SPECIAL TERMS OF COURT. See Federal-State Relations.
STANDARDS OF JUDICIAL CONDUCT. See Recusal.
STANDING. See also Constitutional Law, XI, 1.
Criminal. trial-Interception of counsel's conversations.-Where
District Court in in camera proceeding ruled that intercepted conversations
of counsel were not relevant to trial issues and Court of
Appeals in affirming held applicants lacked standing to raise relevancy
issue, the issue of relevancy, the resolution of which determined the
1288 INDEX
STANDING-Continued.
issue of standing, required an adversary hearing, and a stay of the
criminal trial is appropriate pending the filing of a petition for a
writ of certiorari in this Court and the Court's action thereon. Russo
v. Byrne (Douous, J., in chambers), p. 1219.
STANDING TO SUE. See also Civil Rights Act of 1968; Interstate
Commerce Commission; Judicial Review, 7.
Token integration of apartment complex-Racial discrimination
allegation by tenants under Civil Rights Act of 1968-Complaint of
individual injuries.-The definition in § 810 (a) of the Act of
"person aggrieved," as "any person who claims to have been injured
by a discriminatory housing practice," shows a congressional
intention to define standing as broadly as is permitted by Art. III
of the Constitution, and petitioners, being tenants of the apartment
complex, have standing to sue under § 810 (a). Trafficante v.
Metropolitan Life Ins., p. 205.
STATE COURTS. See Constitutional Law, IV, I; Federal-State
Relations; Judicial Review, 4; Removal.
STATE INSTITUTIONS. See Constitutional Law, VIII.
STATE LAW ISSUES. See Abstention; Procedure, 3.
STATE PAYMENTS. See Social Security Act.
STATE PRISONERS. See Constitutional Law, IV, 6; Evidence;
Judicial Review, 6.
STATE PROSECUTIONS. See Constitutional Law, III, 1.
STATES. See Civil Rights; Jurisdiction, 2.
STATE TAXATION. See Constitutional Law, II, 1-2; Taxes,
1, 4.
STATE TERRITORIAL LIMITS. See Admiralty, 1, 3; Jurisdiction,
1, 7.
STATUTORY CONSTRUCTION. See Criminal Law; Gambling.
STATUTORY FAULT. See Admiralty, 2.
STAYS. See also Administrative Procedure, 1- 2; Antitrust Acts,
1-2; Constitutional Law, VIII; Judicial Review, 1-3, 5; Procedure,
1-2.
1. Credentials Committee unseating of delegates- Request for expedited
review less than one week before convention-Availability of
convention as forum.-In view of the probability that the Court of
Appeals erred in deciding on the merits the cases involving seating
INDEX 1289
STA YB-Continued.
of delegates and in view of the traditional right of a political convention
to review and act upon the recommendations of a Credentials
Committee, the judgments of the Court of Appeals must be stayed.
The important constitutional issues cannot be resolved within the
limited time available, and no action is now taken on the petitions
for certiorari. O'Brien v. Brown, p. 1.
2. Party on ballot-State oath requirements.-Motion denominated
an application for stay but intended to secure a partial summary reversal
of the District Court's order denied, since the applicants'
right to such relief is not indisputably clear. Communist Party of
Indiana v. Whitcomb (REHNQUIST, J., in chambers), p. 1235.
3. Republican Conventio11r-Allocation of delegates.-District
Court's injunction prohibiting the 1972 Republican National Convention
from allocating six "bonus" delegates to its 1976 convention
to each State casting its electoral votes for the Republican presidential
nominee in 1972, or electing a Republican senator, governor,
or majority of its congressional delegation at any election within four
years previous to 1976 stayed in light of criteria set forth in
O'Brien v. Brown, ante, p. 1, and to preserve the issues for judicial
review. Republican Committee v. Ripon Society (REHNQUIST, J.,
in chambers), p. 1222.
STOCK CONTROL. See Administrative Procedure, 3; Antitrust
Acts, 3.
STRIKES. See National Labor Relations Act, 2; Unions.
STRUCTURES. See Constitutional Law, X, 2; Eminent Domain,
2.
STUDENT BUSING. See Education Amendments of 1972;
School Desegregation.
STUDENT ENVIRONMENTAL ASSOCIATION. See Interstate
Commerce Commission; Judicial Review, 7.
SUBJECTIVE INTENT. See Appeals, 2; Procedure, 5.
SUBSTITUTED SERVICE. See Constitutional Law, IV, 5.
SUGGESTIVE IDENTIFICATION PROCEDURES. See Constitutional
Law, IV, 6; Evidence; Judicial Review, 6.
SUMMARY REVERSALS. See Stays, 2.
SUMMONSES. See Constitutional Law, VI; IX; Taxes, 2-3.
SUPERVENING DECISIONS. See Mootness, 2.
SUPPORT. See Constitutional Law, V, 1.
1290 INDEX
SUPREMACY CLAUSE. See Social Security Act.
SUPREME COURT. See also Appeals, 1; Constitutional Law, IV,
6; Evidence; Expediting Act, 1-2; Judicial Review, 6; Jurisdiction,
3, 5-6; Procedure, 4; Recusal.
I. Assignment of Mr. Justice Clark (retired) to the United States
Court of Appeals for the Second Circuit, p. 1119.
2. Assignment of Mr. Justice Clark (retired) to the United States
Court of Appeals for the Eighth Circuit, p. 1119.
3. Assignment of Mr. Justice Clark (retired) to the United States
Court of Customs and Patent Appeals, p. 1131.
4. Appointment of Librarian, p. 1030.
5. Proceedings in memory of Mr. Justice Harlan, p. v.
6. Proceedings in memory of Mr. Justi~ Byrnes, p. xxx1.
SURCHARGES. See Interstate Commerce Commission; Judicial
Review, 7.
SURVEILLANCE. See Bail; Constitutional Law, XI, 1, 3-4;
Standing.
SWISS BANK ACCOUNTS. See Perjury; Trials, 1.
TANGIBLE PROPERTY. See Constitutional Law, II, 1; Taxes, 1.
TANKERS. See Admiralty, 2.
TARDY APPLICATIONS. See Injunctions.
TARIFFS. See Collateral Estoppel; Constitutional Law, III, 2;
Interstate Commerce Commission; Judicial Review, 7.
TAXES. See also Constitutiona.l Law, III, 1-2; VI; IX.
l. Commerce Clause-Gross receipts tax-Local, manufacturer-
Out-of-state customers.-Proceeds from transactions whereby petitioner
creates and designs reproducible instructional materials in
New Mexico for delivery under contract to out-of-state clients, which
the state court found involved sales of tangible personal property
and not services performed in New Mexico, may not be subjected
to New Mexico's gross receipts tax, the imposition of which upon
such proceeds constitutes an impermissible burden on interstate
commerce. Evco v. Jones, p. 91.
2. Information disclosed in tax returns-Expectation of privacy.-
Petitioner, who was aware that much of the information in the
summoned records had to be disclosed in her tax returns, has no
legitimate expectation of privacy that would bar production under
either the Fourth or Fifth Amendment. Couch v. United States,
p. 322.
3. Internal, Revenue summons-Production of records by accountant
hired to prepare returm.-On the facts of this case, where petiINDEX
1291
TAXES-Continued.
tioner had effectively surrendered possession of the records to the
accountant, there was no personal compulsion against petitioner to
produce the records. The Fifth Amendment therefore constitutes no
bar to their production by the accountant, even though the Internal
Revenue Service tax investigation may entail possible criminal as well
as civil consequences. Couch v. United States, p. 322.
4. Out-of-state manufacturer-Shipment to local, representative-
Transf er to local wholesaler.-Incident to South Carolina's valid
scheme of regulating the sale of liquor within the State, a requirement
that a manufacturer do more, as a condition of doing business,
than merely solicit sales is not impermissible even though it has the
effect of requiring the out-of-state manufacturer to undertake activities
that eliminate its protection under 15 U.S. C. § 381 (a) from
the state income tax. Heublein, Inc. v. South Carolina Tax Comm'n,
p. 275.
TAYLOR GRAZING ACT. See Constitutional Law, X, 1; Eminent
Domain, 1.
TELEPHONE INTERCEPTIONS. See Bail; Constitutional Law,
XI, 1, 3-4; Standing.
TEMPORARY SURCHARGES. See Interstate Commerce Commission;
Judicial Review, 7.
TENANTS. See Civil Rights Act of 1968; Constitutional Law,
X, 2; Eminent Domain, 2; Standing to Sue.
TENNESSEE. See Constitutional Law, IV, 6; Evidence; Judicial
Review, 6.
TERMINATION OF LITIGATION. See Appeals, 1; Expediting
Act, 1-2; Jurisdiction, 3, 5.
TERRITORIAL LIMITS. See Admiralty, 1, 3; Jurisdiction, 1, 7.
TERRITORIES. See Civil Rights; Jurisdiction, 2.
TESTIMONIAL COMPULSIONS. See Constitutional Law, VI;
IX; Taxes, 2-3.
TESTIMONY. See Perjury; Trials, 1.
TEXAS. See Constitutional Law, IV, 3; V, 1; Trials, 3.
THIRTEENTH AMENDMENT. Sec Civil Rights; Jurisdiction, 2.
THREE-JUDGE COURTS. See Constitutional Law, I; V, 2;
Interstate Commerce Commission; Judicial Review, 7; Justiciability,
1-2; Mootness, 1.
TORTS. See Admiralty, 1, 3; Civil Rights; Jurisdiction, 1-2, 7.
1292 INDEX
TOTAL DISABILITY. See Social Security Act.
TRADING IN FUTURES. See Administrative Procedure, 1-2;
Antitrust Acts, 1-2; Judicial Review, 1-2; Procedure, 1-2.
TRADITIONAL MARITIME ACTIVITIES. See Admiralty, 1, 3;
Jurisdiction, 1, 7.
TRAFFIC OFFENSES. See Constitutional Law, IV, 4; Trials,
4-5.
TRANSACTIONAL IMMUNITY. See Bail; Constitutional Law,
XI, 4.
TRANSFERS OF MEMBERSHIPS. See Administrative Procedure,
1-2; Antitrust Acts, 1-2; Judicial Review, 1-2; Procedure,
1-2.
TRANSOCEANIC CROSSINGS, See Admiralty, 1, 3; Jurisdiction,
1, 7.
TRANSPORTATION OF STUDENTS. See Education Amendments
of 1972; School Desegregation.
TRASH. See Jurisdiction, 8.
TRAVEL ACT. See Criminal Law; Gambling.
TREBLE DAMAGES. See Administrative Procedure, 3; Antitrust
Acts, 3.
TRIALS. See also Constitutional Law, IV, l-4, 6; VII; Contempt;
Evidence; Judicial Review, 6; Perjury.
1. Cross-examination-True, but unresponsive, answers-Attorney's
framing of questions.-Federal perjury statute, 18 U. S. C.
§ 1621, does not reach a witness' answer that is literally true, but
unresponsive, even assuming the witness intends to mislead his questioner
by the answer, and even assuming the answer is arguably
"false by negative implication." A perjury prosecution is not, in
our adversary system, the primary safeguard against errant testimony;
given the incongruity of an unresponsive answer, it is the
questioner's burden to frame his interrogation acutely to elicit the
precise information he seeks. Bronston v. United States, p. 352.
2. Due process-Juror examination on voir dire-Racial, prejudice-
Beards.-The trial court's refusal to make any inquiry of the
jurors as to racial bias after petitioner's timely request therefor
denied petitioner a fair trial in violation of the Due Process Clause of
the Fourteenth Amendment. Its refusal to inquire as to particular
bias aga.inst beards, after it had made inquiries as to bias in general,
was not constitutional error. Ham v. South Carolina, p. 524.
INDEX 1293
TRIALS-Continued.
3. Due process-Trial court's admonition-Intimidation of prisoner
witness.-Trial court's extended admonition to petitioner's only
witness to refrain from lying, coupled with threats of dire consequences
if witness did lie, effectively discouraged the witness from
testifying at all and deprived petitioner of due process of law by
denying him the opportunity to present witnesses in his own defense.
Webb v. Texas, p. 95.
4. Traffic offenses-Conviction-Appeal.-A statutory provision
for the disqualification of interested or biased judges did not afford
petitioner a sufficient safeguard, and it is of no constitutional
relevance that petitioner could later be tried de novo in another
court, as he was entitled to an impartial judge in the first instance.
Ward v. Village of Monroeville, p. 57.
5. Trial before mayor who was responsible for village finances-
Right to impartial proceeding.-Petitioner was denied a trial before
a disinterested and impartial judicial officer as guaranteed by the
Due Process Clause of the Fourteenth Amendment where he was
compelled to stand trial for traffic offenses before the mayor, who
was responsible for village finances and whose court, through fines,
forfeitures, costs, and fees, provided a. substantial portion of village
funds. Ward v. Village of Monroeville, p. 57.
TRIBAL LEASES. See Constitutional Law, X, 3; Indian Lands.
TRUSTEES. See Bankruptcy Act; Constitutional Law, V, 3.
TRUTHFULNESS. See Perjury; Trials, 1.
TUCKER ACT. See Jurisdiction, 4.
TUGBOATS, See Admiralty, 2.
TWENTY-FIRST AMENDMENT. See Constitutional Law, II, 2;
XII ; Taxes, 4.
UNCONDITIONAL REINSTATEMENT. See National Labor Relations
Act, 1.
UNDERLYING FEES. See Constitutional Law, X, 2; Eminent
Domain, 2.
UNEMPLOYMENT INSURANCE. See Mootness, 1.
UNFAIR LABOR PRACTICES. See National Labor Relations
Act, 2; Unions.
UNFAIR LABOR PRACTICE STRIKERS. See National Labor
Relations Act, 1.
1294 INDEX
UNIFORM INSURERS LIQUIDATION ACT. See Jurisdiction,
6; Procedure, 4.
UNIONS, See also National Labor Relations Act, 1-2.
Strike-Resignatiom from union-Resumption of work.-Where
neither the Union-employer contract nor the Union's constitution or
bylaws defined or limited the circumstances under which a member
could resign from the Union, it was an unfair labor practice for the
Union to fine employees who had been Union members in good standing
but who had resigned during a lawful strike authorized by the
members and thereafter returned to work during that strike. NLRB
v. Textile Workers, p. 213.
UNLAWFUL CONSPIRACIES. See Administrative Procedure,
1-2; Antitrust Acts, 1-2; Judicial Review, 1-2; Procedure,
1-2.
UNORTHODOX MANEUVERS. See Admiralty, 2.
UNREASONABLE SEARCHES AND SEIZURES. See Constitutional
Law, VI; IX; Taxes, 2-3.
UNRESPONSIVE ANSWERS. See Perjury; Trials, 1.
UNSEATED DELEGATES. See Federal-State Relations; Judicial
Review, 3; Stays, 1.
USEFUL LIFE. See Constitutional Law, X, 2; Eminent Domain,
2.
USE IMMUNITY. See Bail; Constitutional Law, XI, 4.
UTAH. See Constitutional Law, X, 3; Indian Lands.
VEHICLE FORFEITURE STATUTE, See Constitutional Law,
IV, 5.
VILLAGE FINANCES. See Constitutional Law, IV, 4; Trials,
4-5.
VIRGINIA. See Constitutional Law, VI; IX; Taxes, 2-3.
VISIBILITY. See Admiralty, 2.
VOIR DIRE. See Constitutional Law, IV, 2; Trials, 2.
VOLUNTARY BANKRUPTCY. See Bankrupt.cy Act; Constitutional
Law, V, 3.
VOLUNTARY CONFESSIONS. See Constitutional Law, IV, 1;
Judicial Review, 4.
VOTERS. See Constitutional Law, VIII.
INDEX 1295
VOTING. See Constitutional Law, I; V, 2; VIII; Justiciability,
1-2.
WAIVERS. See Appeals, 2; Procedure, 5.
WARRANTLESS SEARCHES. See Constitutional Law, XI, I;
Jurisdiction, 8; Standing.
WASHINGTON. See Admiralty, 2; Constitutional Law, X, 2;
Eminent Domain, 2.
WELFARE. See Social Security Act.
WHOLESALERS. See Constitutional Law, II, 2; Taxes, 4.
WILLING BUYERS. See Constitutional Law, X, 2; Eminent
Domain, 2.
WINNER-TAKE-ALL SYSTEMS. See Judicial Review, 3; Stays,
I.
WITNESSES. See Bail; Constitutional Law, IV, 3, 6; XI, 2-4;
Evidence; Judicial Review, 6; Perjury; Recusal; Trials, 1, 3.
WORDS.
I. "Person aggrieved." § 810 (a), Civil Rights Act of 1968.
Trafficante v. Metropolitan Life Ins., p. 205.
2. "State or Territory." 42 U. S. C. § 1983. District of Columbia
v. Carter, p. 418.
WORKERS. See National Labor Relations Act, 2; Unions.
WORKMEN'S COMPENSATION, See Jurisdiction, 6; Procedure,
4.
U.S. GOVERNMENT PRINTING OFFICE , 1974 0 - 476-905
f