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PROPERTY OF THE
UNITED STATES
GOVERNMENT
UNITED STATES REPORTS
VOLUME 412
CASES ADJUDGED
IN
THE SUPREME COURT
AT
OCTOBER TERM, 1972
MAY 17 THROUGH JUNE 19, 1973
HENRY PUTZEL, jr.
REPORTER OF DECISfONS
UNITED ST A TES
GOVERNMENT PRINTING OFFICE
WASHING TON : 1974
For sale by the Superintendent of Documents, U.S. Government Printing Office
Washington, D.C. 20402 • Price $17.56 (Buckram)
Stock Number 2801-00381
JUS'rICES
OF THE
SUPREME COURT
DURING THE TIME OF THESE REPORTS
\VAIUtEX E. BURGER, CHrnF .JcsTICE.
\VILLIAM 0. DOUGLAS, AssocIATE .JusncE.
\VILLIAM .J. BHE~NAN. JR., AssOCIATE JrnncE.
POTTER STEWART, ASSOCIATE .JL"STICE.
BYR OX R. \VHITE. ASSOCIATE J USTlCE.
THuRGOOD MARSHALL, AssocIATE JusTicE.
HARRY A. BLACKMuN, AssocrATE JusT1cE.
LE\VlS F. POWELL, JR., ASSOCIATE JUSTICE.
WILLIAM H. REHKQUIST, Assoc1ATE JcsTICE.
RETIRED
EARL w ARREN, CHIEF J lTSTICE.
STAXLEY REED, AssocrATE JusTrCE.
TOM C. CLARK, AssOCIATE JusT1CE.
OFFICERS OF THE COURT
RICHARD G. KLEIKDTEKST, ATTOHNE,Y GENERAL.'
ELLIOT L. RICHARDSON, ATTORNEY GENERAL."
ER\VIN N. GRISWOLD, SOLICITOR GENERAL.
MICHAEL RODAK, JR., CLERK.
HENRY PUTZEL, jr., REPORTER OF DECISIONS.
FRANK :M. HEPLER, MARSHAL.
ED\VARD G. HUDON, LIBRARIAN.
1 Attorney Gc·twrnl K)('indienst re,igned effective May 25, 1973.
: :\fr. Elliot L. Hiehan bon, of l\Iassarhu~ett s, was nomina ted to be
At torney General by President Nixon on May 1, 1973. The nomination
was confirmed by t be Senate on M ay 23, 1973 ; he was commissionrd
on :\fay 24, 1973; and took tht> oath of office on 1Iay 25, 197:3.
II[
Sl-PREME COlTRT OF THE "C'NITED STATES
ALLOTMENT OF JUSTICES
It is ordered that the following allotment be made of
the Chirf ,Justice and .Associate Justices of this Court
among the circuits, pursuant to Title 2 , r11ited States
Code, ~ection 42, and that such allotment be entered of
record, viz.:
For the District of Columbia Circuit, \VARREN E.
Bt' RGER, Chief Justice.
For the First Circuit, ,vILLIA~r J. BRENNAN, JR.,
Associate Justice.
For the Second Circuit, THl'RGOOD MARSHALL,
Associate Justice.
For the Third Circuit, WILLIAM J. BRENNAN, .JR.,
Associate Justice.
For the Fourth Circuit, \VARREN E. BuRGEH, Chief
.Justice.
For the Fifth Circuit, LBwIS F. POWELL, Jn., Associate
Justice.
For the Sixth Circuit, POTrER STEWART, Ai::sociate
Justice.
For the Seventh Circuit, WILLIAM H. REHNQUIST,
Ai::wciate Justice.
For the Eighth Circuit, HARRY A. BLACKMUN .
. \.s~ociate Justice.
For the Ninth Circuit, \\' II,LIAM 0. Doe GLAS, Asrnciate
Jw:tice.
For the Tenth Circuit, BYRON R. WHITE, Associate
Justice .
.January 7, 1972.
( For 11€'xt previous allotrnrnt, sep 403 U. S., p. IV.)
IV
TABLE OF CASES REPORTED
NoTE: All undesignated references herein to the United States
Codr are to tllP 1970 rdition.
Ca~es reportecl before page 901 arP those decided with opinions
of thP Court or del'isions prr curiam. Cases reported on page 901
et seq. are thosl' in which orders w(•re entered. Opinions reported
on page 1201 Pt seq. are those written in chamber~ by individual
Justices.
Page
A. V. s................................................. 915
Aberdeen & Rockfish R. Co. v. SCRAP.................... 669
Acarino v. Mishler. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 926
Administrator of NASA v. Williams........................ 950
Administrator of Veterans Affairs; Martin v............... 929
Aetna Life & Casualty Co.; Williams v. . . . . . . . . . . . . . . . . . . . 918
Alabama; Bryant v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 922
Alabama; Kellrn v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 949
Alabama Great Southern R. Co.; REA Express, Inc. v. . . . . . 934
Alameda County; Moor v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 963
Alameda County Supr>rior Court; O'Neill v... . . . . . . . . . . . . . 907
Albert Mirman & Associates; Sayles v. . . . . . . . . . . . . . . . . . . . . . 925
Alcoholic Beverage Control Board; Gia none v. . . . . . . . . . . . . 918
Alcoholic Beverage Control Board; Gianone's Steak House v. 918
Alfveby; Strom v....................................... 940
Alldredge; ::VIartincz v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920
Allen v. Mobile......................................... 909
Allen v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 929
Allstate Insurance Co.; Cope v. . . . . . . . . . . . . . . . . . . . . . . . . . . 905
Alvarez v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921
American Broadcasting Cos. v. Democratic Nat. Corn...... 94
American Concrete Construction Co. v . Brennan........... . 949
American Dairy Assn. v. Rasmussen. . . . . . . . . . . . . . . . . . . . . . 950
American Party of Texas v. White....................... 904
American Radio Assn.; Windward Shipping (London) v ...... 927
"Americans United" Inc.; Walters v....................... 927
American Waterways Operators ; Askew v ................. 933
Anaconda Co.; Corporacion de! Cobre v.................. 923
V
VI TABLE OF CASES REPORTED
Page
An Article of Drug ... " Bentex Ukerine" v. United States.. 938
Ander v. Ander. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
Anderson ; Ward v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 926
Andrade v. Hauck... . .................................. 952
Annunzio v. Hoell en. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 953
Aossey v. Iowa. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 906
Applegate v. New Jerser ............................... 903, 946
Arbaugh's Tiestaurnnt, Inc. v. Smit h....................... 939
Argo v. United States................................... 906
Arizona; Moore v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 906
Arizona; Rojas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 929
Arnett-; Mattz v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 481
Arthur 0. S.; Lillian B. A. v. ............................ 915
Ash; United Stateo v.................................... 926
Askew v. American Waterways Operators.. ................ 933
Association. For labor union, see name of trade.
Atchison, T. & S. F. R. Co. v. \Virhita Bd. of Trade........ 800
Atkins v. United States.................................. 931
Atlanta Gas Light Co.; DeKalb County v................. 940
Atlantic Rirhfif'id Co.; Reibert v ....................... 914,945
Attorney General; Hanly v.............................. 908
Attorney General; Leonhard v............................ 949
Attorney General; Orsinger v ............................ 948
Attorney General; Ruderer v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 964
Attorney General of Indiana v. Dillin .................... 937,949
Attorney General of ~ew .Jer~cy; Helfant v .... . ........... 933
Attorney Geiwrnl of l\"ew ,Jersey; Oldroyd v............... 924
Austin; National Assn. of Ldter Carriers v................ 917
Babcock v. Swen8on. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 952
Baker, In re. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919
Ballard v. California. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
Bannercraft Clothing Co.; Hc·ncgotiation Board v.. . . . . . . . . 904
Barfield v. Harris....................................... 930
Barnes V . united States.................................. 837
Barrow v. United States ............ , ...... ,............. 941
Barry; Stuckholc!Prs' Committee for Moulded Proc!uc-ts v . . . . 940
Bart.on v. Tabasko. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 908
Battle v. United States.................................. 942
Bay Farm Island Reclamation District; Freeman v. . . . . . . . 909
Beckner v. Sears, Roebuck & Co........ ... .............. 913
Bell v. Heim........................................... 914
Bentcx I'harmaceuticals; \Veinbrrger v...... ...... ... ..... 645
"Bentex V!cerinc" v. United States....................... 938
TABLE OF CASES REPORTED
Benton v. United States ................................ .
Berg; Fayne v . ........................................ .
Berkley v. United States ................................ .
Berlin v. United States ................................. .
Berzak; Prezzi v .. .................................... .
Betancourt v. United States ............................ .
Bezak v. Ohio ......................................... .
Big Bend Community Collrgr; Moses Lake School D ist. v . .. .
Billings]ry v. United States .............................. .
Bishop; United States v ... ............................. .
Bithoney v. United States .............................. .
Black v. Illinois ..................... . ............ . ..... .
Black; Oakes v . ....................................... .
Blackburn v. Indiana ................................... .
Blackledge; Lee v . ..................................... .
Blackwell; Tate v . .................................... .
Bland v. llnited States ................................. .
Boag v. Craven ........................................ .
Board of Education of .:vkmphis; Northcross v ............ .
Board of Edu ration of I\'ew York City; Canty v . ......... .
Board of :.\fanagcr~ of Chicago Bar Assn.; Snitoff v . ...... .
Board of Trustees. Univ. of Korth Carolina; G!usman v .... .
Boeing Co.; Labor Board v ............................ ..
Bonafini v. New Jersey ................................. .
Booster Lodge ~o. 405 v. Labor Board ................... .
Bourbon Cirl'uit Court; Rice v .......................... .
Boyd v. New .'\1exi co .................................. .
Boysaw v. Ohio ........................................ .
B. P. 0. E. Lodge No. 2043 v. Ingraham .................. .
Bradley v. Estelle ...................................... .
Bradley v. School Board of Richmond .................... .
Bradley v . State Board of Education of Virginia ........... .
Brandywine-.'\Jain Line Radio v. Federal Com. C;omm'n . . .
Breland v. Texas ................................ . ...... .
Brennan; American Concrete Construction Co. v . .......... .
Brick v. United States .................................. .
Bright v. United States ................................. .
Brotherhood. For labor union, see name of trade.
Brown; Frommhagen v ................................. .
Brown v. Joseph ....................................... .
Brown; Storer v . ...................................... .
Brown v. United States ................................. .
Brown Title Corp.; Ross v . .............................. .
VII
Page
942
914
920
949
930
921
943
934
941
346
938
963
952
925
922
922
909
942
427
907
906
947
67
908
84
937
924
920
913
943
937
92
922
939
949
905
921
904
950
904
937
934
VII( TABLE OF CASES REPORTED
Page
Bruce; Cowan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Bruce v. Virginia... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 941
Brumbaugh v. United States............................. 918
Brumley v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 929
Bruno; Kenosha v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 507
Bryant v. Alabama...................................... 922
Buckles v. Meacham..................................... 926
Budd Co.; Eckert v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 943
Buder; Douglas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 430
Bufalino v. Immigration and Naturalization Service........ 928
Burbank v. Illinois...................................... 951
Burks v. Perk.......................................... 905
Burns v. United States... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921
Burroughs v. United States............................... 929
Business Execs. for Vietnam Peace; Fed. Com. Comm'n v... 94
Business Exe<'8. for 'Vietnam Peace; Post-i',cwsweek Sta. v. . 94
Bustamonte; Schne('k]oth v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
Butler v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 907
Butz v. Glowr Livestor·k Comm'n Co..................... 933
Cady v. Dombrowski. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 903
Calandrillo v. O'Connor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 940
California; Ballard v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
California v. Frito-Lay, Inc.............................. 908
California; Gemmill v................................... 925
California; Goldstein v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 546
California; King v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 963
California v. Krivda..................................... 919
California; Laursen v................................... 915
California; Licon v. . ................. . ................... 931
California; Potter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 922
California; Silverton v... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901
California; Smith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 915
California; Teit(']baum v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 946
California Adult Authority v. Griffin .................... 916,963
California Adult Authority ; M'Clary v . ................. 916, 963
California Secretary of State; Frommhagen v. . . . . . . . . . . . . . 904
California Secretary of State ; Storer v . . . . . . . . . . . . . . . . . . . . . 904
Califomia Superior Court ; .FrePman v. . . . . . . . . . . . . . . . . . . . . 909
California Superior Comt; Kanarek v. . . . . . . . . . . . . . . . . . . . . 938
Campbell v. Georgia. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 933
Cant:,· v . Board of Education of Kew York City. . . . . . . . . . . . 907
Car<l v. lTnitcd States ...... . .. ... ............... . ........ 913
Cardwell v. Workman...... . ............................ 932
TABLE OF CASES REPORTED 1x
Page
Cardwell; Workman v................................... 9:{2
Carleson v. Yf'e-Litt..................................... 924
Carter-Wallace, Inc. v. Otte.............................. 929
Castellon-Duarte v. Immigration and Naturalization Service.. 941
Chaffin v. Stynchcombe.................................. 17
Chavez; Pnited States v................................. 905
Chicago; Yumich v...................................... 913
Chicago Bar Assn.; Snitoff v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 906
Chicago, B. & Q. R. Co.; l,'nitcd S1ates v. . . . . . . . . . . . . . . . . . 401
Chief JudgP, U. S. District Court; Acarino v. . . . . . . . . . . . . . . 926
Chief Justice, Supreme Court of ::V1irhigan; Grossman v..... 944
Chouest; Travelers Insurance Co. v. . . . . . . . . . . . . . . . . . . . . . . 949
CIBA Coq1. v. Weinberger.............................. 640
Ciccone; Niemeyer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 963
Cioffi v. United States................................... 953
City. flee name of cit:v.
Civil Service Comm'n of Moses Lake; Hitchcock v.......... 949
Cleveland v. Ward en . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 952
Cleveland l\fayor; Burks v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 905
Clinchfield Coal Co.; "Williams v.......................... 932
Coffer; Permian Corp. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920
Coffee-Rich, Inc. v. Fielder............................... 963
Cole; Hall v............................................ I
Collector of Rcve1111e of Mo.; Consolidated Freightwa} s v. . . 91!)
Columbia Broadcasting System v. Democratir ~at. Com. . . . !)4
Commissioner v. "Americans United" Inc. . . . . . . . . . . . . . . . . . 927
Commissioner; Essex v ................................ 919,944
Commissioner; L<wvsky v................................ 919
Commis~ionrr v. I\foritz.................................. 906
Commissioner; Rirhter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 925
Commissioner; Hyan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 939
Commissioner; \Valtcrs v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 944
Commissioner; WilBon v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 950
Commission<'r of Education of N. J. v . Public School F11nds.. 916
Commissioner of Health and \Vclfare of Maine v. Graves.... 924
Comrnis~ioner of Internal Hcv<.'nue . Ser Commissioner.
Commisbioncr of :\fental HygiPnr of l\"cw York; DeMundo v . 914
Comrnis~ioner of J\Iental Hyirienc of Xew York v. Gomez. . . . Dl4
Commissioner of P11blie \Vclfore of Texas v. Rodriguez...... 944
Commissioner of ~oeial Srryirrs of :New York; Hagans v.... 938
Commissioner of ~ocial Services of Kew York v. Klein . . . . . . 925
Commissioner of Social Services of Kew York v. Lindsay.... 950
Commonwealth. Sre name of Commonwealth.
X T ARLE OF CASES REPORTED
Pago
Conboy; :VIitchell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 908
Conklin v. Gasaway..................................... 951
Connors v. Harrison. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 906
Consolidated Freightways Corp. v. Gilstrap. . . . . . . . . . . . . . . . 919
Cook v. Ohio. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 942
Cope v. Allstate Insurance Co............................ 90.'i
Copeland v. Estelle..................................... 952
Corporacion del Cobre v. Anaconda Co.................... 923
Corps of Engineers: Environmental Defrnse Fund v. . . . . . . . 931
Corrections Commissioner. See name of commissioner.
County. See name of county.
Court of Appeals. See U. S. Court of Appeals.
Covell; Douglas v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 952
Cowan v. Bruce...................................... . ... 935
Craven; Boag v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 942
Craven; Hyde v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 937
Craven; :'vicKinney v................................... 926
Craven; Reece v. . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . 962
Craven; Spross v....................................... 929
Crenshaw v. James...................................... 952
Culpepper v. rnitcd States..... . ......................... 963
Cummings; Gaffney v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 735
Cundy v. South Dakota. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Cupp v. l\forphy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291
Cupp v. :'{aughtcn....................................... 904
Dagget; Rodrigues v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920
Dailey v. Greem·........................................ 919
Dailey v. Liszka. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919
Dallas; Joiner v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902
David v. llaryland. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 922
Dean v. Gadsden Tirnes Publishing Corp. . . . . . . . . . . . . . . . . . 543
DcBetham v. Vnited States............................... 907
Decker v. Weinstein..................................... 949
DeKalb County v. Atlanta Gas Light Co.................. 940
DeLong Corp. v. Oregon ............................... 944,947
Dcmorratic 1\'ational Com.; American Broadcasting Cos. v.. . 94
Democratic National Com.; Columbia Broadrasting Systrm v. 94
DP l\lund o v. l\1iller. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 914
Denman v. United States................................. 906
Diamond v Unitl'd States .......................... 901,932,934
Diaz-Rodriguez v. United States.......................... 964
Dillin; Metropolitan School Dist. of Lawrence Twnshp. v. . . . 953
Dillin; Sendak v ...................................... 937,949
TABLE OF CASES REPORTED xr
Page
DiMario v. United States................................. 907
Dirrctor, Dept. of Fish and Gamr: t.Tattz v............... 481
Director, Dept. of Public Aid of Illinois v. ,Jordan. . . . . . . . . . 937
Director, Dept. of Public Aid of Illinois v. Townsend. . . . . . . . 914
Director of AgriculturP; Coffee-Rich, Inc. v. . . . . . . . . . . . . . . . 963
Director of penal or correctional institution. See name of
director.
Director of Social WC'lfare v. Yee-Litt..................... 924
District Court. See U. S. District Court.
District Judge. Scf:' U. S. District Judge.
District of Columbia; Kearney v. . . . . . . . . . . . . . . . . . . . . . . . . 906
Dixon v. Young.......................................... 917
Dodge v. Johnson....................................... 931
Doe v. Mc Millan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306
Dom browfki; Cady v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 903
Douglas v. Buder....................................... 430
Douglas v. Covell. . . . . . .. . . . . . . .. . . . . . . . . . . . . .. . . . . . . . . . 952
Dowling; Siln·rs v....................................... 923
Dragonette v. East Clevrland................... . ......... 932
Duckworth v. United Statf's.............................. 921
Duke v. North TC'xas Statr l"ninrsity.................... 932
Dumon v. Kentucky. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Dwyer; Shocrna ker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902, 963
East Cleveln nd; DragonPtte v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
Eckert v. Budd Co.......... . . . . . . . . . . . . . . . . . . . . . . . . . . . 943
Edelman v. Jordan...................................... 937
Edelman v. Townsend.................................... 914
Edll('ational Equality League; l\fayor of Philadelphia v. . . . . 948
Eldridge v. New York................................... 909
England; \'Vestern Draler Management, Inc. v... . . . . . . . . . . . 919
Environrn('ntal Drfense Fund v. Corps of Engineers......... 931
Environmrntal Protection Agency v. Sierra Club. . . . . . . . . . . . 541
Equal Employmrnt Opportunity Comm'n; H. Kessler & Co. v. 939
Escobar v. UnitC'd States................................. 920
Essex v. Walters ...................................... 919, 944
Estelle; Bradley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 943
Estelle; Copeland v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 952
Estelle; Morgan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 942
Estelle; Nanes v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 944
Estelle; Rando v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 944
Estelle; Richardson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 908
Estelle; Scott v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 931
Estelle; Smith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 930
XII TABLE OF CASES REPORTED
Page
Evans v. Johnson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 951
Farese v. Home Savings & Loan Assn...................... 908
Fayne v. Berg. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 914
Federal Com. Comm'n; Brand:vwine-Main Line Radio v.... 922
Federal Com. Comm'n v. Bus. Execs. for Vietnam Peare..... 94
Federal Com. Cornrn'n; Radio-Television, S. A. v........... 939
Federal Power Cornm'n; Gulf States Utilities Co. v. . . . . . . . . 944
Federal Powrr Comm'n; l\fobil Oil Corp. v................. 931
Federal Trade Comm'n; Golden Grain i\facaroni Co. v. . . . . . 918
Federal Trade Comrn'n; Stanley \Yorks v.................. 928
Ferrandina; Shapiro v................................... 945
Field; Neely v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 924
Fielder; Coffee-Rich, Inc. v.............................. 963
Fields v. United States.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
Fisch v. Fnitcd States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921
Fisher v. Graves. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 924
Florida; German v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 908, 944
Florida; Retherford v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 953
Florida; Waller v....................................... 947
Florida Governor v. American Waterways Operators..... 933
Fong v. United States .......... ,......................... 942
Ford Motor Co.; McC!nng v............................. 940
Freeman v. Bay Farm Island Reclamation District. . . . . . . . . . 909
Freeman v. Suprrior Court of California................... 909
Fri v. Sierra Club... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 541
Frito-Lay, Inc.; California v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 908
Frommhagen v. Brown................................... 904
Gadsden Times Publishing Corp.; Dean v. . . . . . . . . . . . . . . . . . 543
Gaffney v. Cumming~.................................... 735
Gardner v. 11-'lcCarthy ................. .......... ... . .. 916,963
Garris v . United States.................................. 919
Gasaway; Conklin v..................................... 951
Gateway Coal Co. v. Mine '\Vorkers ..................... 903,917
Gaus v. United States.................................... 938
Gay v. United States..................................... 944
Gemmill v. California.................................... 925
Georgia; Campbell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 933
Georgia; Guthrie v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9,50
German v. Florida ..................................... 908, 944
Gianone v. Alcoholic Bevnage Control Board.... .......... 918
Gianone's Steak House v. Alcoholic Beverage Control Board. 918
Giant of ?vlaryland v . State's Attorney for P. G. County..... 915
Gilliland, Inc.; Hobart Bros. Co. v . ................... _ . . . 923
TABLE OF CASES REPORTED xnr
Pnge
Gilstrap; Consolidated Freight ways Corp. v.. . . . . . . . . . . . . . . 919
Glover Livestock Comm'n Co.; Butz v.................... 933
Glusman v. Board of Trustees, Univ. of )forth Carolina...... 947
Goguen; Smith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90/i
Goldrn Grain l'vlararoni Co. v. Federal Trade Comm'n....... 918
Goldstein v. California. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 546
Gomez; Miller v........................................ 914
Gooding v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Governor. SC'r name of State.
Graci v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Granger v. United States................................. 929
Graves; Fisher v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 924
Gray v. Shell Oil Co..................................... 943
Grernc; Dailey v ................... , ...... ,, .. , ......... 919
Grccnsph:m v. United States.............................. 9Q:3
Griffin; California Adult Authority v ... . .. .. .... ... .. ... 916,963
Gron v. Viconovir... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 953
Grossman v. Kavanagh. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 944
Gulf Oil Corp; Whitman Center, Inc. v.................... 938
Gulf States Utilities Co. v. Federal Power Comm'n.......... 944
Guthrie v. Georgia. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 950
Hagans v. Lavine....................................... 938
Hag<'n v. United States.................................. 905
Hall v. Cole. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Hall v. United States..................................... 920
Hamilton v. United States................................ 942
Hammer; Slayton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Hanks v. United States.................................. 951
Hanly v. Kleindienst . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 908
Hardy: Hen8lcy v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 906
Harris; Barfield v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 930
Harris v. United States................................... 927
Harrison; Connors v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 906
Hauck; Andrade v....................................... 952
Hauff v. l 1nited States.................................. . 907
Hawkins v. Hawkins..................................... 924
Hawkins v. Wyoming. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 904
Heard v . Unitrd States................................... 921
Heat & Frost Insulators v. Labor Board. . . . . . . . . . . . . . . . . . . . 940
Heim; Bell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 914
Helfant v. Kugler. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 933
Hemphill; Howard v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 918
Henderson; Williams v . ................ . .... ... ... ~. . .. . . 941
XIV TABLE OF CASES REPORTED
Page
Henry v. Warner ..................................... 926, 1201
Hensley v. Hardy....................................... 906
Hernandez v. Veterans' Administration.................... 936
Higgens v. North Carolina................................ 952
Hinson v. North Carolina................................ 931
Hitchcock v. Civil Service Comm'n of Moses Lake.......... 949
H. Kessler & Co. v. Equal Employment Opportunity Comm'n. 939
Hobart Bros. Co. v. Malc-olm T. Gilliland, Inc............ 923
Hoellen; Annunzio v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 953
Home' Savings & Loan Assn.; .Farese v..................... 908
House v. House. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 944
House v. St. Agnes Hospital, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . 963
Howard v. Hemphill. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 918
How Fong v. United States................................ 942
Howlett; Stein v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 925
Hunnicutt v. United States................................ 927
Hutter v. Korzen. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 914
Hyde v. Craven. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 937
Hynson, ·westcott & Dunning v. "\Veinhcrgrr............... 609
Hynson, Wcstrott & Dunning; Weinberger v............... 609
Illinois; Black v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 963
Illinois; Burbank v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 951
Illinois; Kaprelian v..................................... 918
Illinois; Moore v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 943
Illinois; O'Dell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920
Illinois; Prim v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 918
Illinois; Rivera v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 907
lllinois; Sanders v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 922
Illinois Auditor of Public Accounts; Stein v................. 925
Illinois Dept. of Public Aid v. Jordan...................... 937
Illinoi~ Dept. of Pnblir Aid v. Townsend. . . . . . . . . . . . . . . . . . . 914
Immigration and Naturalization Service; Bufalino v........ 928
Immigration and ~aturalization Srn·ice; Castellon-Duarte v. . 941
Indiana; Blackburn v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 925
Indiana; Thompson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 943
Indiana Attorney General v. Dillin ...................... 937,949
Ingraham; B. P. 0. E. Lodge No. 2043 v................... 913
ln re. Se(' nam{' of party.
lnt<.'rnal Re1·ennc Service. ScC' Commissioner.
International. For labor union. see name of trade.
Intrnrn.tional Business Marhincs Corp. v. United States...... 945
Interstate Commerce Comm'n v. "Wichita 13d. of Trndr..... 800
Iowa; Aosscy v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 906
TABLE OF CASES REPORTED xv
Page
Irons v. United States.................................... 951
Isenberg v. United States................................. 941
Itz v. Penick............................................ 925
Jackson v. United States.................................. 951
Jackson v. Zelker. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 950
Jacobs v. United States.................................. 920
.Tames; Crenshaw v...................................... 9.52
Jaynes v. Jaynes ....................................... 931,963
Johnson; Dodge v....................................... 931
Johnson; Evans v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 951
Johnson v. Missouri...................................... 947
Johnson; Rudercr v...................................... 936
Johnson v. \Vyoming..................................... 904
.T oinPr v. Dallas ................. , . . . . . . . . . . . . . . . . . . . . . . . 902
Jones; Rodriguez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 953
Jones v. Swenson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 929
Jones & Son v. Weyerhaeusn Co. . . . . . . . . . . . . . . . . . . . . . . . . 906
.T ordan; Edelman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 937
Joseph; Brown v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 950
Judson v. United States.................................. 9,51
Kaczynski v. United Statt"B.............................. 921
Kanarek v. Supnior Court of California................... 938
Kaplan v. Milliken...................................... 901
Kaprelian v. Illinois............. . . . . . . . . . . . . . . . . . . . . . . . . 918
Kavanagh: Grossman v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 944
Kearney v. District of Columbia.......................... 906
Keeble v. United StateB................................. 205
Kellen v. Alabama. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 949
Kelly v. United States .................................. 923, 927
Kelsaw v. OrC'gon. . ... . ...... . ........................... 947
Kennedy; Phillips v....... . . . ........................... 917
Kennedy v. Wainwright.................................. 950
Kenosha v. Bruno........................................ 507
Kentucky; Dumon v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Kerr; Screen Extras Gnild v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 918
KesBler & Co. v . Equal Employment Opportunity Comm'n . . . . 939
King v. California. . ...................................... 963
King v . U. S. District Court... . ......................... 901
King v. West Virginia. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 915
Kirtz, In re.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 936
Klein; Commissioner of Social SC'rvices of New York v. ..... 925
Klein; Nassau County Medical Center v.................... 925
Klein; Ryan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 924
XVI TABLE OF CASES REPORTED
Page
Kleindienst; Hanly v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 908
Kleindienst; Ruderer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 964
Kline; Vlandis v............... . . . . . . . . . . . . . . . . . . . . . . . . . . 441
Korzen; Hutter v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 914
Krikmanis v. Rockefeller. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 923
Krivda; California v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919
Krull v. United States.................................... 952
Kugler; Helfant v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 933
Kugler; Oldroyd v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 924
Kung How Fong v. United States.......................... 942
Labor Board v. Boeing Co............................... 67
Labor Board; Booster Lodge No. 405 v.................... 84
Labor Board; Heat & Frost Insulators v. . . . . . . . . . . . . . . . . . . . 940
Labor Board; Machinist.;; & Aerosparf' Workers v.......... 84
Labor Board; Monroe Auto Equipment Co. v.............. 928
Labor Board; Simas Bros. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 906
Labor Union. Sec name of trade.
Lambert's Point Docks, Inc.; Thompson v................. 907
Landes v. Pageant-Poseidon, Ltd......................... 914
Landis v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 933
Landry v. l,'nited States................................. 914
Larsen v. Procunier. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920
Lau v. Nichols........................................... 938
Laughlin v. United States................................ 941
Laursen v. California. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 915
La Vallee; Smiley v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 930, 952
Larnn v. United States................................... 942
Lavine; Hagans v........................................ 938
Lavine v. Lindsay. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 950
Lawrence Township School District v. Dillin. . . . . . . . . . . . . . . . 953
Layman v. TollPtt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 908
Leathers; United States v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
LcBosquet; Van Vliet v.................................. 950
Lee v. Blackledge................. . ..................... 922
Lemmo v. Vinrent....................................... 952
Lemons v. United States.................................. 929
Lenny v. ~1cllody. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 923
Leonhard v. Richardson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 949
Letter Carriers v. Austin................................. 917
Lewis v. New Orleans.................................... 926
Lewis v. U.S. Court of Appeals.......................... 917
Licon v. California....................................... 931
Lillian B. A. v. Arthur 0. S. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 915
TABLE OF CASES REPORTED xvn
Page
Linder v. Recor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Lindsay; Lavine v...................................... 950
Lindsey v. United States................................ 905
Liszka; Dailey v....................................... 919
Little Lake .Yiisere Land Co.; United States v.... . . . . . . . . . . 580
Local. For labor union, see name of trade.
Loddy v. Meacham. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 904
Lodge. For labor nnion, see name of trade.
Loether; Rogers v . .................................... 937, 947
Loevsky v. Commissioner................................ 919
Logan v. Western Union Telegraph Co.................... 946
Logue v. United States.................................. 521
Lombardi v. Tauro. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919
Lopez v. ·washington.................................... 928
Louisiana State Board of Medical Examiners; Rosen v. . . . . . 902
Lucas v. Wyoming...................................... 944
Machinists & Aerospace ·workers v. Labor Board.......... 84
Mackey v. United States.................................. 941
Maine; United States v.................................. 936
l\.faine Commissioner of Health and \Velfare v. Graves...... 924
::\falcolm T. Gilliland, Inr.; Hobart Bros. Co. v. . . . . . . . . . . . . 923
Manchester Gas Co.; Roy v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 942
Mancino v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 953
:.\fan din a v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 907
Mangaiameli v. United States.. .. .. . .. .. . . . .. .. .. .. .. . . .. 939
Marburger v. Public Funds for Schools of N. J.......... 916
Marquette University; Reid v............................ 903
Marsino; Reese v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 922
Martin v. Administrator of Veterans' Affairs. . . . . . . . . . . . . . . 929
Martin v. United States................................. 920
Martinez v. Alldredge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920
Martinez; Procunier v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 948
Maryland; David v..................................... 922
::\1aryland; Washington v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 907
Mason; Oklahoma v................ . .. ...... ............ 391
Mason v. Panama Canal Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
Mason; United States v................................. 391
Matlock; United States v .............................. 917, 948
Matney v. l;nited States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921
Mattz v. Arnett......................................... 481
Maxwell v. United States................................ 921
Mayor of Clc\·eland; Burks v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 905
Mayor of New York; Lavine v............................ 950
XVIII TABLE OF CASES IlEPORTED
Pag-e
Mayor of Philadelphia v. Educational Equality League....... 948
.'.\fayor of Wa.•hington; Lopez v.. . . . . . . . . . . . . . . . . . . . . . . . . . 928
McAllister v. Virginia. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 946
McCarthy; Gardner v ................................. 916,963
M'Clary v. California Adult Authority ................... 916,963
McClung v. Ford :VIotor Co.............................. 940
McCune v. Nebraska..................................... 954
McDonald; O'Meara v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 906
M('Donn(']] v. l.Tnited State's.............................. 942
McGrath; United States v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 936
:VIeGuirc Shaft & Tunnrl Corp.; Mine \Vorkers v. . . . . . . . . . . 958
l\1cllwain; Placid Oil Co. v.............................. 923
McKee v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 914
McKinney v. Craven.................................... 926
:VIcLeod v. l~nited State~.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 951
::\1cMillan; Doe v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306
Meacham; Bue kles v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 926
Meacham; Loddy v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 904
Meacham; Reardon v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 922
Meisel v. United States................................... 954
Mellady; Lenny v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 923
Memphis Board of Education; I\rorthcross v............... 427
Mendes v. Railway & Airline Clerks............. . ...... . .. 963
.Mendoza v. United States............................... 905
:.letropolitan School Di~t. of Lawrence Twnshp. v. Dillin. . . . . 953
l\Jeycr v. United States.................................. 929
Meyer v. \Veil.......................................... 914
Miceli v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 903
:Vlichigan v. Payne. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Michigan Supreme Court; Grossman v................ . . . . . 944
l\1iles v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 907
1'liller; DeMundo v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 914
Miller v. Gomez........................................ 914
Milliken; Kaplan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901
.'.\fine Workers; Gateway Coal Co. v ... ................. 903, 917
Mine Workers v. McGuire Shaft & Tunnel Corp........... 958
l\1ine Workers v. Yablonski.............................. 918
Mirman & Associates; Sayll."s v. . . . . . . . . . . . . . . . . . . . . . . . . . . 925
:Mishler; Acarino v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 926
Mississippi Tax Comm'n; United States v................. 363
Missouri; Johnson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 947
:rviissouri Collector of Revenue-; Consolidated Freightways v. 919
Mitchell v. Conboy...................................... 908
TABLE OF CASES REPORTED
::VIixen v. United States ................................. .
Mobile; Allen v ........................................ .
Mobil Oil Corp. v. Federal Pow{'r Comm'n ................ .
Monroe Auto Equipment Co. v. Labor Board ............. .
Montgomery v. United States ........................... .
Moor v. AlamC'da County ............................... .
Moore v. Arizona ...................................... .
Moore v. Illinois ....................................... .
lVfoore; Nelson v . ...................................... .
Morgan v. F.,stelle ....................................... .
Moritz; Commissioner v . ............................•...
Morris v. Sparrow ...................................... .
Morton v. ·wyoming ..................................... .
Mosca v. United States ................................. .
Moses Lake Civil Sf'n·ire Comm'n; Hitchcock v . .......... .
l\foses Lake School Dist. v. Big Bend Community Colleg{' ... .
:Mosley v. Smith ........................................ .
Mueller v. Nixon ....................................... .
Muncaster v. United States ............................. .
l\forphy; Cupp v ...................................... .
Nanes v. Estelle ........................................ .
Nassau County v. United States ......................... .
Nassau County :vredical Cenkr v. Klein ................... .
K ational Aeronautics and Space Adm. v . \Villiams .......... .
National Assn. of L{'tt<'r Carriers v. Austin ............... .
~ational Labor Relations Board. See Labor Board.
XIX
Pnge
906
909
931
928
951
963
906
943
951
942
906
944
941
948
949
93.J.
932
949
963
291
944
922
925
9,50
917
Naughten; Cupp v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 904
Nebraska; 2\frCune v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 954
Neely v. Field.......................................... 924
Neff v. United States.................................... 949
Neil v. Pendergrass. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Nelson v. Moorf'........................................ 951
Nevada; United States v................................ 534
New Jersey; ApplC'gate v .............................. 903,946
Kew Jersey; Bona fini v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 908
New Jrrsey AttornC'y General; Helfant v.................. 933
New Jersey Attorney General; Oldroyd v.................. 924
New Jersey C'ornrn'r of Education v. Public School Funds.. 916
Kew Mexico; Boyd v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 924
New Mexico lkalth & Social Rervires Dept.; Bell v........ 914
New Orleans; Lewis v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 926
Kew York; Eldridge v. ................................. 909
New York; Rance v.................................... 921
xx TABLE OF CASES REPORTED
Page
~ew York; Wheeler v................................... 931
New York City Board of Education; Canty v............. 907
New York Commissioner of .'.Vlental Hygiene; DeMundo v.. 914
New York Commissioner of Mental Hygiene v. Gomez...... 914
New York Commissioner of Social Services; Hagans v....... 938
New York Commissioner of Social Services v. Klein. . . . . . . . . 925
New York Commissioner of Social Services v. Lindsay. . . . . . . 950
New York Governor; Krikmanis v........................ 923
~ew York Mayor; Lavine v................. . ............ 950
Nichols; Lau v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 938
Niemeyer v. Ciccone. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 963
Nixon; Mueller v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 949
Nixon v. United States................................... 943
Noble Drilling Co.; Robbins v............................ 949
Nocerino v. United States................................ 942
North Carolina; Higgens v................................ 952
North Carolina; Hinson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 931
North Carolina; Robinson v.............................. 952
Northcross v. Board of Education of Memphis. . . . . . . . . . . . . . 427
Northern Natural Gas Co. v. United States................. 939
North Texas State University; Duke v.................... 932
Novak v. United States................................... 930
Oakes v. Black. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 952
O'Clair v. United States... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921
O'Connor; Calandrillo v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 940
O'Dell v. Illinois........................................ 920
Office of Economic Opportunity v. Kennedy............... 917
Ohio; Bezak v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 943
Ohio; Boysaw v........................................ 920
Ohio; Cook v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 942
Ohio; Sander v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 907
Oklahoma v. Mason. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391
Old Dominion Branch No. 49G, Letter Carriers v. Austin.. 917
Oldroyd v. Kugler....................................... 924
Oliver v. Shapp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 930
Olson v. United States.................................. 905
O'Meara v. McDonald.................................. 906
Oneida County; Oneida Indian Nation v................... 927
Oneida Indian Nation v. Oneida County. . . . . . . . . . . . . . . . . . . . 927
O'Neill v. Superior Court of Alameda County............. 907
Operating Engineers v. Southern California Testing Lab...... 940
Oregon; DeLong Corp. v ............ . .............. . ... 944, 947
Oregon; Ke!saw v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 947
TABLE OF CASES REPORTED XXI
Page
Oregon; Valentine v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 948
Oregon; Wardius v...................................... 470
Oregon State Highway Comm'n; DeLong Corp. v. . . . . . . . . 944, 947
Orsinger v. Richardson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 948
O'Shea v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 907
Otte; Carter-Wallace, Inc. v . ......................... , . . . 929
Owens v. United States............................... . ... 951
Ownby v. United St.ates.................................. 950
Pageant-Poseidon, Ltd.; Landes v. . . . . . . . . . . . . . . . . . . . . . . . 914
Panama Canal Co. ; :'\1ason v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
Parker v. U. S. Court of Appeals .. , . . . . . . . . . . . . . . . . . . . . . . . 937
Payne; l'vlichigan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 7
Pedersen; Westroads, Inc. v............................. 919
Pendergrass ; Neil v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Penick; I tz v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 925
Pennsylvania v. Stafford ......... , ........................ 943
Pennsylvania; Sullivan v . ..................... , . . . . . . . . . 923
Pennsylvania Governor; Oliver v. . . . . . . . . . . . . . . . . . . . . . . . . . 930
Perini Corp.; Savard v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 943
Perk; Burks v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 905
Perkins v. Standard Oil Co. of California. . . . . . . . . . . . . . . . . . . 940
Permian Corp. v. Coffee................................. 920
Perrcrra v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.50
Petersen v. Spiliotopoulos. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 903
Pfingst v. United States.................................. 941
Philadelphia Mayor v. Edurational Equality LeaguE'......... 948
Phillips v. Kennedy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 917
Placid Oil Co. v . Mdlwain............. . ................. 923
Post-Newsweek Stations v. Bus. Execs. for Vietnam Peace.. 94
Potter v. California..................................... 922
Prezzi v. Berzak. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 930
Prim v. Illinois......................................... 918
Prince Georgr,'s County Attorney; Giant of Maryland v. . . . . 915
ProcuniE'r; L'lrscn v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920
Procunier v. l\fartinez. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 948
Prosch v. V nited States.. . . .. .. .. .. .. .. . .. . . . .. .. .. . . . .. . 927
Public Funds for Schools of J\r . .T.; Marburger v . . . . . . . . . . . 916
Quinn v. United States.................................. 915
Rachal v. United States.................................. 927
Radio-Trlevision, S. A. v. Federal Com. Comm'n............ 939
Railway & Airline Clerks; Mendrs v...... . . . . . . . . . . . . . . . . . 963
Rance v. New York..................................... 921
Rando v. Estelle......................................... 944
XXII TABLE OF CASES REPORTED
Page
Rasmussen; American Dairy Assn. v...................... 950
Ravelli v. U. S. District Court........................... 901
REA Express, Inc. v. Alabama Great Southern IL Co. . . . . . . . 934
Reardon v. Meacham.................................... 922
Recor; Linder v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Reece v. Craven. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 962
Reese v. Marsino....................................... 922
Regester; White v...................................... 755
Reibert v. Atlantic Richfield Co ......................... 914,945
Reid v. Marquette University. .. . . . . . . .. . .. . .. . .. .. . .. .. . 903
Renegotiation Board v. Bannercraft Clothing Co.......... 904
Retherford v. Florida.................................... 953
Rhay; Rhinehart v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 922
Rhinehart v. Rhay...................................... 922
Rice v. Bourbon Circuit Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . 937
Richardson v. Estelle.................................... 908
Richardson; Leonhard v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 949
Richardson; Orsinger v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 948
Richmond School Board; Bradley v. . . . . . . . . . . . . . . . . . . . . . . 937
Richmond School Board v. State Board of Education..... . 92
Richter v. Commissioner... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 925
Rivera v. Illlinois. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 907
Rivera; Rose v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Robbins v. Noble Drilling Co.............................. 949
Robinson v. North Carolina............................... 952
Robinson; United States v................................ 936
Rock; Transportation Union v............................ 933
Rockefeller; Krikmanis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 923
Rodrigues v. Dagget........................ . ........... 920
Rodriguez v. Jones....................................... 95;3
Rodriguez; Vowell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 944
Rogers v. Loethrr. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 937, 94 7
Rojas v. Arizona......................................... 929
Rosciano v. United States..................... . .......... 948
Rose v. Rivera. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935
Rosen v. Louisiana State Board of ::Vledical Examiners. . . . . . 902
Rosenthal v. United States............................... 909
Ross v. Brown Title Corp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
Rowe v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 930
Roy v. Manchester Gas Co... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 942
Ruderer v . .Johnson...................................... 936
Ruderer v. Kleindirnst. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 964
Ruderer v. Sessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 945
TABLE OF CASES REPORTED XXIII
Pago
Ruderer v. United States ............................... 916,945
Ruderer v. U.S. Army Aviation Matrriel Command........ 945
Ruderer v. Vance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 945
Ruggiero v. United States.......... . ..................... 939
Ryan v. Commissioner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 939
Ryan v. Klein.............. . ................ . ........... 924
S.; A. v......................................... . ..... 915
St. Agnes Hospital, Inc.; HonsP v. . . . . . . . . . . . . . . . . . . . . . . . . 963
Sandell; Shaver v....................................... 917
Sander v. Ohio. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 907
Sanders v. Illinois. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 922
Sansanese v. United States................................ 940
Saunders v. Slayton. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 951
Savage v. United States.................................. 930
Savard v. Perini Corp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 943
Sayles v. Albert Mirman & As.sociates...................... 925
Schneckloth v. Bust3monte............................... 218
School Board of R ichmoncl; Bradley v. . . . . . . . . . . . . . . . . . . . 937
School Board of Richmond v. State Board of Education.. . . 92
Schutt v. Tenne3see...................................... 942
Scott v. Estelle. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 931
SCRAP; AbPrdrrn & Rockfish IL Co. v................... 669
SCRAP; United States v................................ 669
Scrren Extrns Guild v. Kerr. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 918
Sears, Roebuck & Co.; Beckner v. . . . . . . . . . . . . . . . . . . . . . . . . 913
Secrt>tary of Agricnltnre v. Glover Li\·estock Comm'n Co. . . . 933
Secretary of HEW v. Bent<'x Pharmacruticals.............. 645
Secretary of HF:\V; CIBA Corp. v....................... 640
Secretary of HEW v. Hynson, Westcott & Dnnning......... 609
Secretary of HE\V; Hynson, Westcott & Dnnning v......... 609
Secretary of HEW; USV Pharmaceutical Corp. v........... 655
Secretary of Labor; American Concrete Constr. Co. v. . . . . . . . 949
SecrPtary of Navy; Henry v ........................... 926, 1201
Secretary of State of California; Frommhagen v... . . . . . . . . 904
Secretary of Sta tr of California ; Storer v. . . . . . . . . . . . . . . . . . 904
Secretary of State of Texas; American Party v. . . . . . . . . . . . . 904
Secretary of State of Texas v. Regester.................... 755
Secretary of Statr of Texas v. Weiser...................... 783
Seib Mfg. Co. v. United States . .. . . . . . . . . . . . . . . . . . . . . . . . . . 928
Sendak v. Dillin ....... . ............................... 937,949
Sessions ; R udcrer v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 945
Seuss v. United States. ................................... 928
Shapiro v. Ferrandina....... . ........................... 945
XXIV TABLE o:r CASES REPORTED
Pago
Sha pp; Oliver v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 930
Shaver v. Sandell....................................... 917
Sheard v. United States.......... . . . . . . . . . . . . . . . . . . . . . . . . 943
Shell Oil Co.; Gray v.................................... 943
Shoemaker v. Dwyer ................................... 902,963
Sierra Club; Fri v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 541
Silvers v. Dowling. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 923
Silverton v. California..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901
Simas Bros. v. Labor Board.............................. 906
Simmons v. ·wetherell.................................... 940
Slayton v. Hammer...................................... 935
Slayton; Saunders v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 951
Smiley v. La Vallee ..................................... 930,952
Smith; Arbaugh's Restaurant, Inc. v...... . . . . . . . . . . . . . . . . 939
Smith v. California. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 915
Smith v. Estelle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 930
Smith v. Goguen........................................ 905
Smith; Mosley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
Smith v. Texas. ........................... .......... ... 916
Smith v. Virginia.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
Snitoff v. Board of Managers of Chicago Bar Assn. . . . . . . . . . 906
Solomon v. Tennessee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 923
South Dakota; Cundy v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Southern California Testing Lab.; Operating Engineers v. . . . 940
Sparrow; Morris v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 944
Spiliotopoulos; Petersen v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 903
Spross v. Craven........................................ 929
Sprouse v. United States................................ 905
Stafford; Pennsylvania v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 943
Standard Oil Co. v. Wright................................ 938
Standard Oil Co. of California; Perkins v . . . . . . . . . . . . . . . . . . 940
Standard Oil Co. of California. v. United States. . . . . . . . . . . . . . 924
Stanfield v. United States................................ 941
Stanley v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 953
Stanley Works v. Federal Trade Comm'n.................. 928
Stansel v. United States................................. 921
State. See name of State.
State Board of Education of Va.; Bradley v . . . . . . . . . . . . . . . 92
State Board of Education of Va.; Richmond School Bd. v.. 92
State's Attorney for P . G. County; Giant of Maryland v... . 915
State Tax Comm'n of Mississippi; United States v.......... 363
Stein v. Howlett. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 925
Stephens Truck Line v. United States. ... .... ....... . .... 901
TABLE OF CASES REPORTED XXV
Pnge
Stockholders' Committee for :\foulded Products v. Barry. . . . 940
Stokes v. U.S. Postal Srrvirc............................. 933
Storer v. Brown........................................ 904
Stover v. Virginia....................................... 953
Stringer v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 943
Strom v. Alfveby. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 940
Stroud v. United States.................................. 930
Strunk v. United States....... . . . . . . . . . . . . . . . . . . . . . . . . . . . . 434
Students Chal'ging Reg. Agcy.; Aberdeen & R.R. Co. v..... 669
Students Chal'ging Reg. Agcy.; United States v.... . . . . . . . . 669
Studt v. United States................................... 920
Stynchcombe; Chaffin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Sullivan v. Pennsylvania................................. 923
Sumida v. United States.................................. 930
Superintendent of penal or correctional institution. See name
of superintendent.
Superior Court of Alameda County; 0';{ cill v. . . . . . . . . . . . . . 907
Superior Court of California; Freeman v... . . . . . . . . . . . . . . . 909
Superior Court of California; Kanarek v. . . . . . . . . . . . . . . . . . . 938
Swenson; Babcock v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 952
Swenson; Jones v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 929
Tabasko; Barton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 908
Tanner v. Twomey....................................... 930
Tate v. Blackwell. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 922
Tauro; Lombardi v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919
Teitelbaum v. California..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 946
Tennessee; Schutt v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 942
Tennessee; Solomon v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 923
Teresi v. United States.................................. 905
Terrell v. United States.................................. 941
Terry v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919
Texas; Breland v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 939
Texas; Smith v......................................... 916
Texas Board of Registration for Engineers; Trimble v . . . . . . 920
Texas Comm'r of Public Welfare v. Rodriguez......... . .... 944
Texas Secretary of State; American Party v... . . . . . . . . . . . 904
Texas SC'cretary of State v. Regester... . . . . . . . . . . . . . . . . . . . 755
Texas Secretary of State v. Weiser........................ 783
Thomas v. United States................................. 932
Thompson v. Indiana.................................... 943
Thompson v. Lambert's Point Docks, Inc......... . ....... 907
Tinder v. Virginia. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902
Tinney; United States v................................. 928
XXVI TABLE OF CASES REPORTED
Page
Tollett; I,ayman v...................................... 908
Townsend; Edelman v.................................. 914
Township. Sec name of township.
Transportation Union v. Rork............................ 933
Trans Texas Bancorporntion; United States v. . . . . . . . . . . . . . 946
Travrlcrs Insurance Co. v. Chouest........................ 949
Trexler v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 929
Trimble· v. Trxas Board of Registration for Engineers...... 920
Tucker v. United States ................................ 929,942
Two v. United States.................................... 931
Twomey; Tanner v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 930
Union. For labor union, sec name of trade
United. For labor union, see name of trade.
United States; Allen v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 929
United States; Alvarez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921
United States; An Article of Drug ... "Bentex Ulcerine" v. . 938
United States; Argo v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 906
United States v. Ash. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 926
United States; Atkins v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 931
United States; Barnes v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 837
United States; Barrow v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 941
United States; Battle v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94:J
United States; "Bentex Ulcerine" v. . . . . . . . . . . . . . . . . . . . . . . . 938
United States; Benton v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 942
United States; Berkley v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920
United States; Berlin v.................................. 949
United States; Betancourt v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921
United States; Billingsley v........... .. . . .. .. . .. . .. .. .. . 941
United States v. Bishop................ . ................. 346
U nitcd States; Bithoney v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 938
United States; Bland v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 909
United States; Ilrick v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 905
United States; Bright v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921
United States; Brown v.................................. 937
United States; Brumbaugh v. ........................... 918
United States; Brumley v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 929
United States; Burns v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921
United States; Burroughs v.. ............................ 929
United States; Butler v..... . .. .. .. . .. . .. . . . .. .. .. . .. . .. 907
United States; Card v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 913
United States v. Chayez. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 905
United States v. Chicago, B. & Q. R. Co..... . ............. 401
United States; Cioffi v. .............................. .... 953
TABLE OF CASES REPORTED XXVIJ
PagP
United States; Culpepper v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 963
United States; DeBet ham v. . . .. . . .. .. . .. .. .. . . . . . . . . . .. 907
United States; Denman v................................ 906
United States; Diamond v ... ...................... 901,932,934
United States; Diaz-Rodriguez v. . . . . . . . . . . . . . . . . . . . . . . . . . 964
United States; Di Mario v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 907
United States; Duckworth v....... . . . . . . . . . . . . . . . . . . . . . . 921
United States; Escobar v................................ 920
United States; Fields v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
United States; Fisch v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921
United States; Fong v. . . . . . .. .. . .. .. .. .. .. . . . .. .. . .. . . . . 942
United States; Garris v....... . . . . . . . . . . . . . . . . . . . . . . . . . . . 919
United States; Gaus v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 938
United States; Gay v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 944
United States; Gooding v................................ 928
U nitcd States; Graci v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
United States; Grangrr v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 929
United States; Grrcnsphan v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 903
United States; Hagen v................... . .............. 905
United States; Hall v................................... 920
United States; Hamilton v............................... 942
United States; Hanks v.................................. 951
United States; Harris v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
United State.g; Hauff v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 907
United States; Heard v....... . .. . .. .. . . . . . .. . . .. .. . .. . . 921
United States; How Fong v............................... 942
United States; Hunnicutt v... .. .. .. . .. . .. .. .. .. . .. .. .. .. 927
United States; International Business Machines Corp. v. . . . . 945
United States; Irons v... ................................ 951
United States; Isenberg v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 941
United States; ,Tarkson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 951
United States; Jacobs v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920
United States_; ,Judson v.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 951
United States; Kaczynski v. . . . . . . . . .. . . . . . .. . . . . . . . . .. . . 921
United States; Keeble v. . .. ............ ....... ...... . ... 205
United States; Kelly v ...... . ... ....................... 923, 927
United States; Krull v................................... 952
United States; Kung How Fong v. . . . . . . . . . . . . . . . . . . . . . . . . 942
United States; Landis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 933
United States; Landry v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 914
United States; Laughlin v . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 941
United States; Lavan v .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 942
United States v. Leathers. ................ . ...... . .. . ..... 932
XXVIII TABLE OF CASES REPORTED
Page
United States; L('mons v................................. 929
United States; Lindsey v................................ 905
United States v. Little Lake Miscre Land Co............... 580
United States; Logue v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 521
United States; Mackey v.................... . ........... 941
United States v. :VIaine. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 936
United States; Mancino v................................ 953
United States; l\fandina v................................ 907
United States; Mangaiameli v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 939
1'nited States; Martin v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920
United States v. l\liason .. .. .. .. . .. .. . .. . .. . . .. . .. . .. . .. .. 391
United States v. Matlock ............................... 917,948
United States; Matney v................................. 921
United States; Maxwell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921
United States; McDonnell v.............................. 942
United States v. McGrath................................ 936
United States; McKee v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 914
United States; ::vicLeod v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 951
United States; Meisel v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 954
United States; Mendoza v.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 905
United States; Meyer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 929
United States; Miceli v.................................. 903
United States; Miles v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 907
United States; Mixen v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 906
United States; Montgomery v............................. 951
United States; Mosca v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 948
United States; Mun caster v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 963
United States; Nassau County v. . . . . . . . . . . . . . . . . . . . . . . . . . 922
United States; Neff v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 949
United States v. Kevada.................................. 534
United States; Nixon v.................................. 943
United States; Nocerino v................................ 942
United States; Northern Natural Gas Co. v................. 939
United States; Novak v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 930
United States; O'Clair v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 921
United States; Olson v................................... 905
United States; O'Shea v.................................. 907
United States; Owens v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 951
United States; Ownby v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 950
United States; Perrerra v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 950
United States; Pfingst v................................. 941
United States; Prosch v................................. 927
United States; Quinn v.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 915
TABLE OF CASES REPORTED XXIX
Pftgf"
United States; Rachal v.................................. 927
United States v. Robinson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 936
United States; Rosciano v................................ 948
United State's; Rosenthal v....... .. .. . . . . . .. .. .. . . ... .. .. 909
United States; Rowe v................................... 930
United States; Ruderer v ..... ......................... 916,945
United St.ates; Ruggiero v................................ 939
United States; Sansanese v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 940
United Stat('s; Savage v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 930
United States; Selb Mfg. Co. v............................ 928
United States; Seuss v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
United States; Sheard v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 943
United States; Sprouse v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 905
United States; Standard Oil Co. of California v. . . . . . . . . . . . . 924
United States; Stanfield v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 941
United States; Stanley v................................. 953
United States; Stansel v................................. 921
United States v. StatP Tax Comm'n of Mississippi.......... 363
United States; Stephens Tru<'k Line v... . . . . . . . . . . . . . . . . . . 901
United States; Stringer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 943
United States; Stroud v.................................. 930
United States; Strunk v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 434
United States v. Students Challenging Reg. Agency......... 669
United States; Studt v.......... . . . . . . . . . . . . . . . . . . . . . . . . . 920
United States; Sumida v................................. 930
United States; Tnesi v.................................. 905
United State.s; Terrell v... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 941
United States; Terry v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919
United States; Thomas v................................. 932
United States v. Tinney. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
United States v. Trans Texas Bancorporation. . . . . . . . . . . . . . . 946
United States; Trexler v................................. 929
United States; Tucker v ............................... 929,942
United States; Two v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 931
United States; Wagner v................................. 434
United States; Walsh v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 941
United States; Washington v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 930
United States; Webb v................................... 902
United States; Wheeler v . ............................. 921, 963
United States; Whitaker v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 953
United States; Wilhelm v....... . . . . . . . . . . . . .. . . . . . . . . . . . . 919
United States; Willis v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 908
United States; Wolfson v................................ 948
XXX TABLE OF CASES REPORTED
Page
United States; Woods v.................................. 951
United States; Wood, Wire & Metal Lathers v............. 939
United States; Wright v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 938
United States; Young v.................................. 929
United States; Zavod v.................................. 948
U.S. Army Aviation :Materid Command; Ruderer v........ 945
U.S. Army Corl)I' of Engrs.: Environmental Defense Fund v.. 931
U. S. Court of Appeals; Lewis v... ....................... 917
U. S. Court of Appeals; Parker v........................ 937
U.S. District Court; King v....... ....................... 901
U. S. Distrirt Court; Ravelli v. . . . . . . . . . . . . . . . . . . . . . . . . . . 901
U.S. District Court Chief Judge; Acarino v............... 926
U.S. District Judge; Dixon v............................ 917
U.S. District Judge; Neely v............................. 924
U.S. District Judge; School Dist. of Lawrence Township v.. 953
U.S. District Judge; Sendak v .......................... 937,949
U. S. ex rel. See name of real party in interest.
U. S. Postal Service; Stokes v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 933
U.S. Post Offire Dept.; Wood v........................... 939
University of North Carolina; Gluf-man v.................. 947
USV Pharmaceutical Corp. v. Weinberger...... . . . . . . . . . . . . 655
Valentine v. Oregon. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 948
Va.nee; Ruderer v........................... ............ 945
Van Vliet v. LeBosquet................................... 950
Veterans' Administration; Hernandez v. . . . . . . . . . . . . . . . . . . . 936
Veterans' Affairs Administrator; Martin v................. 929
Viconovic; Gron v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 953
Vincent; Lemmo v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 952
Virginia; Bruce v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 941
Virginia; McAllister v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 946
Virginia; Smith v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
Virginia; Stover v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 953
Virginia; Tinder v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902
Virginia Board of Education; Bradley v. . . . . . . . . . . . . . . . . . . 92
Virginia Board of Education; Richmond School Board v.... 92
Vlandis v. Kline......................................... 441
Vowell v. Rodriguez...................................... 944
Wagner v. United States................................. 434
Wainwright; Kennedy v................................. 950
Waller v. Florida. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 947
Walsh v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 941
Walters v. "Americans United" Inc....................... 927
Walters; E5sex v ...................................... 919,944
TABLE OF CASES REPORTED
Walters v. Walters ..................................... .
Ward v. Anderson ...................................... .
Warden. See also name of warden.
XXXI
Page
944
926
Warden; Cleveland v.................................... 952
Wardius v. Oregon....................................... 470
Warner; Henry v .................................... 926, 1201
Washington; Lopez v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 928
Washington v. Maryland................................ 907
Washington v. United States.............................. 930
Washington; Washington Kelpers Asm. v................. 924
Washington Kelpers Assn. v. Washington.................. 924
Webb v. United States................................... 902
Weil; Meyer v......................................... 914
Weinberger v. Bent ex Pharmaceuticals.. . . . . . . . . . . . . . . . . . . 645
W cinberger; CIBA Corp. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 640
Weinberger v. Hynson, Westcott & Dunning. . . . . . . . . . . . . . . 609
Weinberger; Hynson, Westcott & Dunning v. . . . . . . . . . . . . . . 609
Weinberger; USV Pharmaceutical Corp. v. . . . . . . . . . . . . . . . . 655
Weinstein; Decker v..................................... 949
Weiser; White v........................................ 783
Western Dealer Management, Inc. v. England. . . . . . . . . . . . . 919
Western Union Telegraph Co.; Logan v................... 946
Westroads, Inc. v. Pedersen.................. . ........... 919
West Virginia; King v.................................. 915
Wetherell; Simmons v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 940
Weyerhaeuser Co.; W. J. ,Tones & Son v.................. 906
Wheeler v. New York.................................... 931
Wheeler v. United States ............................... 921,963
Whitaker v. United States....... . . . . . . . . . . . . . . . . . . . . . . . . . 953
White; American Party of Texas v........................ 904
White v. Regester... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 755
White v. Weiser. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 783
Whitman Center, Inc. v. Gulf Oil Corp................... . . 938
Wichita Board of Trade; Atchison, T. & S. F. R. Co. v...... 800
Wichita Board of Trade; Interstate Com. Comm'n v........ 800
Wilhelm v. United States... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 919
Williams; Administrator of NASA v. . . . . . . . . . . . . . . . . . . . . . . 950
Williams v. Aetna Life & Casualty Co..................... 918
Williams v. Clinchfield Coal Co. . . . . . . . . . . . . . . . . . . . . . . . . . . 932
Williams v. Henderson................................... 941
Willis v. United States ............ ... .................... 908
Wilson v. Commissioner.................................. 950
Windward Shipping (London) v. American Radio Assn...... 927
XXXII TABLE OF CASF.S REPORTED
Page
W. J . Jones & Son v. Weyerhaeuser Co............... . ... 906
Wolfson v. United Rtate~......... . ................ . ...... 948
\ \'ood v. U. S. Post Office- D ept. . . . . . . . . . . . . . . . . . . . . . . . . . . 939
Woods v. Un ited States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 1
Wood, WirP & Mrtal Lathers v. Vnitrd States.............. 939
Workman v. Cardwell............. . .......... . ...... . .... 932
Workman ; Cardwell v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
Wright; Standard Oil C'o v....... . ..................... . . 938
Wright v. United State,;...................... . ........... 938
Wyoming; Hawkins v.... . .......... . ................... 904
Wyoming; Johnson v.... .. .... ... . . ...... . ............. . 904
Wyoming; Luca.-- v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 944
Wyoming; 1forton v........ . .... . .... . ...... . . . ....... . . 941
Yablonski; Mine Workers i,...... .. ..................... 918
Yee-Litt; Carleson v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 924
Young; Dixon v.... . ..... . . .. .......................... 917
Young v. United States...... . ............................ 929
Yumirh v. Chirago...................................... 913
Zavod v. United Rtates............ . ... . .......... . ...... 948
Zelker; Jackson v................. . ................. . . . . 950
TABLE OF CASES CITED
Page
Abate v. Mundt, 403 U. S.
182 749, 751-753, 762, 776-778
Abbott Laboratories v. Gardner,
387 U.S. 136 626--627, 651
Abdul v. United States, 254
F. 2d 292 348, 351, 353-355
Abel v. United States, 362
U. S. 217 245
Abrams v. United States,
250 u. s. 616 183
A.chilli v. United States, 353
U. S. 373 3,55
Adams v. Illinois, 405 U. S.
278 55, 62
Adams v. McCann, 317 U.S.
269 237
Adams v. Park Ridge, 293
F. 2d 585 511-512
Adams v. Williams, 407 u. s. 143 299
Adderley v. Florida, 385
U. S. 39 191
Adickes v. Kress & Co., 398
U.S. 144 179,622
Adkins v. Children's Hospital,
261 U. S. 525 545
Aeolian Co. v. Royal Music
Roll, 196 F. 926 568
Aetna Ins. v. Kennedy, 301
U. S. 389 236
Alabama v. King & Boozer,
314 U. S. 1 386--390
Alabama Power v. United
States, 316 F. Supp. 337 814
Alderman v. United States,
394 U. S. 165 956--958
Amalgamated. For labor
union, see name of trade.
American Commercial Lines
v. Louisville & N. R. Co.,
392 u. 8. 571 132
American Communications
Assn. v. Douds, 339 U. S.
382 176
rage
Amos v. United States, 255
U.S. 313 222,
233-234,244,279,282
Anders v. California, 386 u. s. 738 34
Andrews v. Swartz, 156 U.S.
272 255
Apodaca v. Oregon, 406
U. S. 404
Archer v. Smith, 409 U. S.
50
808 759
Arizona v. California, 283
U. S. 423 723
Arizona v. California, 373
U.S. 546 539
Arizona Grocery v. Atchison,
T. & S. F. R. Co., 284
lJ. S. 370 692,818
Arrow Transp. v. Southern
R. Co., 372 U. S. 658
690-697, 711, 727-734,
818-820, 822, 826, 829
Arsenault v. ::\1assachusetts,
393 U.S. 5 61
Asenap v. United States, 283
F. Supp. 566 397
Ashcraft v. Tennessee, 322
U. S. 143 226
Ashe v. Swenson, 397 U. S.
436 61
Associated Press v. United
States, 326 U.S. 1 155, 183, 187
Atchison, T. & S. F. R. Co.
v. O'Connor, 223 U. S.
280 368
Atchison, T . & S. F. R. Co.
v. Wichita Bd. of Trade,
412 U. S. 800 725,730
Atlantic Citv Electric v.
United States, 306 F.
Supp. 338 814
Auto Workers v. Natzke, 36
Wis. 2d 237 77
Eaker v. Carr, 369 U. S. 186 689
XXXIII
XXXIV TABLE OF CASES CITED
rage
Baldwin v. New York, 399
lT. s. 66 50
Baltimor<' & 0. R. Co. v.
Baugh, 149 U. S. 368 264
Bank of Am<'rica v. Parnell,
352 ll. S. 29 594
Banzhaf v. FCC, 132 lT. 8.
App. D. C. 14 12R, 136
Barber v. Pa~e. 390 U. S.
719 52,237
Barrnblatt v. llnitC'd States,
360 1;. S. 109 327, a34, 340
Barker v. Wingo, 407 U. 8.
514 237, 4:{6-440
Barlow v. Collins. 397 U. 8.
159 686
Barr v. 1Iatteo, 360 r. S.
564 307,310,
318--320,322-.123,342
Barron v. 1fayor of Baltimore,
7 Pet. 243 156
Bates v. Little Rork, 361 r. s. 516 169
Bauer v. O'Donnell 229
U. 8. 1 ' 555
Beartrark v. l;nitf'<l States,
C't. C'l. No. 281 67 397
Bell V. Burson, 402 r. S.
535 446, 457. 461
llell v. Hood, 327 r. S.
678 516
Bell v. School Bd. of Powhatan
County, 321 F. 2d
494 5
Bl'nton v. Maryland, 395
F. S. 784 . 22, 58, 61 , 84~
Bl'rger v. California, 393
lT. S. 314 52, 55
Brrra V . rnited States, 351
lT.S. 131 20R,355,361,911
B1>rry v. State, 61 Ga. App. :us 45
Bibb v. Navajo Freight
Line~ , 359 r. 8. 520 559
Big Ea1?;le v Unitrd State;;,
156 C't. Cl. 665 395
Bison S. S. Corp. v. Fnited
P.tates, 182 F . Supp. 63
691-692
Bivens v. Six Pnknown
Agents, 403 U. S. 388
257,516
Page
Blarkburn v. Alabama, 361
lT. S. 199 225
Bloom v. Illinois, 391 l'. S.
194 50
Board of Countv Comm'r,-
v. United States, 308 U.S.
343 594-595
Board of Re~l'nts v. Roth,
408 ll. S. 564 324,515,517
Board of Trade of Kansas
City v United State,;, 314
F. S. 534 806
Bollman, Ex parte, 4 Cranch
75 253
6
Bo~rh v. Meeker Coop. Light
& Power, 257 Minn. 362
Bo~ton Marine Terminal v.
}{edcriaktiPbolaget Transatlantic,
400 U. S. 62 654
Bouie v. Columbia, 378 U.S.
347 432
Boyd v. Dutton, 405 F. S.
1 237
Boyd v. United States, 116
U. S. 616 228,303 304
Boykin v. Alabama, 395
U.S. 238 232, 23b,278
Boys Markets v. Retail
Clerk,;, 39b "C. 8. 235 959. 961
Brady v. Maryland, 373
l'. S. 83 474
Brady v. United States, 397
F. S. 742 30 31 ,
34,44--45,224,238
Brandenburg v. United
Rtatcs, 7S F. 2d 811 847
Brandywine-Main Line
Ra dio v. FCC, 153 U. S.
App. D. C. 305 158, 163
Branzburg v. Hayes, 408
l'. S. 665 165
Breard v. Alexandria, 341 r. S. G22 201
::!14 Bridges v. California ,
l'. S. 252 15G
Hrimston(' R. Co. v. United
States, 276 l:. 8. 104 812
Brinr11:ar v. United Statc-s,
3:18 U. S. 160 228
Brister v. Wrav Dickinson
Co., 183 La. 562 586
TABLE OF CASES CITED XXXV
Page
Brookhart v. Janis, 384
U.S. 1 237
Brotherhood. For labor
union, sec namC' of trade.
Brown v. Allen, 344 U. S.
443 256,274
Brown v. Louisiana, 383 u. s. 131 194
Brown v. Missis><ippi, 297 r. S. 27q 223
Brown Rhoe Co. v. Commissioner,
339 U. S. 583 404,
407-413,417,421--426
Bruton v. United States,
391 l1. s. 123 41, 52
Bullock v. Regester, 409
U. S. 840 759
Bumper v. North Carolina,
391 U.S. 543 222,
233-234,282-285,2b9
Burlington Trurk Lines v.
United States, 371 U. S.
156 b06
Burn,- v. Richardson, 3~4
U.S. 73 746-753,765, 773-
774, 791,795,797,799
Burrow-Giles Lithographic
Co. v. Sarony, 111 U. R.
53 561
Burton v. Wilmington Parking
Authority, 365 U. R.
715 115,119,
134,150, 172- li4, 179
Busine,,:s Exers.' l\.!ovC' for
Yietnam Peace v. FCC,
146 U. S. App. D. C. 181 97
Bustamontc v. Rrhncrkloth,
44R F. 2d 609 289
Butterworth v. Dempsey,
229 F. Supp. 754 737, 744
Bvrd v. Lane, 39~ F. 2d
750 231
Califorma v. Krivda, 409
F. S. 33 429
California v. LaRue, 409
l'. 8. 109 37q, 515,517
Calvert Cliff~' Corn. v . AEf',
145 U. S. App. D. C. 33
694--696,725
Capitol Records v. Mercury
Rerords, 221 F. 2d 657
56S,575
Carafas v. La.Vallee,
u. s. 234
Carccrano v. Gla.dden,
F. S. 631
Pagf!
391
251
392
50
Carlsen v. l1nited States,
107 F. Supp. 398 691-692, 698
Carnley v. Cochran, 369
lT. S. 506 237,278
Carrington v. Rash, 380
U.S.89 447,450,452,457,461
Carroll v. linited St.ates, 267
U.S. 132 221:1
Carter v. Jury Comm'n, 396
l'. s. 320 761
Carter v. Virginia, 321 U.S.
131 377-378
Casias v. Beto, 459 F. 2d
54
Cefalo v. Mine Workers, 311
F. Supp. 946
Central R. & Banking v.
21
9
6 Pettus, 113 U. S. 116
Chaffin v. Stynchcombe, 412
U. S. 17 50-51, 935
Ch::imbrr.s v. Florida, 309
U. s. 227 225- 226
Chambers v. Maroney, 399
U.S. 42 219
Channel v. United States,
285 F. 2d 217 241
C'herker ;\Iotors v. Chrysler,
405 F. 2d 319 822
Che:;sman v. Teets, 354 U.S.
IW 2~
Chicago, R. I. & P. R. Co.
Y. McGlinn, 114 U.S. 542 370
Chime! v. California, 395
lT. S. 752 50, 2S2,
295-296,298,301- 302
ChriRtoffel v. United Rtates,
338 l1. S. 84 852
CIBA Corp. v. Weinberger,
412 U. S. 640 659
C'IB \-Geigy Corp. v. Richardson,
446 F. 2d 466 643
f'icenia v. La gay, 357 U. S.
50! 475
C'inrinnati, ~- 0. & T . P.R.
Co. v. Fnitcd States (No.
6992 ~D Ohio 1970)
810,831,834
XXXVI TABLE OF CASES CITED
Pag"
Cipres v. United States, 343
F. 2d 95 221
Citizens to Preserve Overton
Park v. Volpe, 401 F. 8.
402 627
City. See name of city.
Clark v. Uebcri:;ee Finanz-
Korp., 332 l:. 8. 480 631
Clark v. lrnited States, 289
~- S. 1 C
Clearfield Trust v. United
States, 318 l1 S. 363
397,592 595,607
Cleveland v. Fnited States,
329 U.S. 14 577
Clewis v. Texas, 386 U. S .
707 248
Close v. 1.Inited States, 130
U.S. App. D. C. 125 532
Cohen v. Prire Comm'n, 337
F. Supp. 1236 694
Cole v. Mancusi, 429 F. 2d
61 231
Collins v. Yosemite Park &
Curry Co., 304 U. S.
518 373-378,385-386
Colten v. Kentucky, 407
U.S. 104 26--27,
29,33,51-52,54
Commissioner v. McKay
Products, 178 F. 2d 639 422
Commissioner of Internal
Revenue. S e e Commissioner.
Committee for Nuclear Responsibility
v. Seaborg,
149 U. S. App. D. C.
380 695-696
Commonwealth. See also
name of Commonwealth.
Commonwealth v. Allen, 443
Pa. 96 63, 65
Commonwealth v. Millard,
1 Mass. 6 844
Compco Corp. v. Day-Brite
Lic;htin~ . 376 F. S. 234
551, 567, 569, 571, 573,
577-579
Condon v. Erickson, 478 F.
2d 684 497, 505
Conductors v. 'Pitney, 326
U.S. 561 819,821,823
Page
Cook v. State, 84 Tenn. 461 844
Cooley v. Wardens, 12 How.
~9 ~3
Coolidge v. New Hampshire,
403 U.S. 443 219, 234-235, 243,
245,269,282,297,302
Coppage v. Kansai;, 236 u. s. 1 544-545
Cox v. Louisiana, 379 U. S.
536 129, 139- 140, 198,200
Cox v. ;',ew Hampshire, 312
U. S. 569 140,198,200
Crampton v. Ohio, 402 U.S.
183 31-34, 44-45
Crow Dog, Ex parte, 109 u. s. 556 209,215
Crutcher v. J oyce, 146 F.
2d 518 399
C'ulombe v. ConnectiC'ut, 367
U. s. 568 224-227, 248
Dalehite v. United States,
346 l'. R. 15 530
Dandridge v. "Willi:llrui, 397 u. s. 471 458
Data Processing Servi re v.
Camp, 397 F. S. 150 686, 702
Davies \\'a.rehouse v. Bowles,
321 F. S. 144 591,605
Davi;; "· ~Iann, 377 l'. S.
678 747,795
Davis ,·. Mississippi, 394
U. S. 721 294-295, 297,301
Davis v. North Carolina, 384
U. S. 737 226--227
Davis v. United States, 328
U. S. 582
219,222,233-234,279
Day v. Woodworth, 13 How.
363 4
Day-Brite Lighting v. Missouri,
342 U. S. 421 544
DeFlumer v. Mancusi, 4-1:i
F. 2d 940 216
Denny v. State, 47 Wis. 2d
541 M
Desist v. l'nited States, 394
U. S. 244 55-58 270
De~tefano v. Woods, 392'
l'. s. 631 50
De Sylva v. Ballentine, 351
L'. S. 570 595-596, 603
TABLE OF CASES CITED XXXVII
Png<>
Detroit v. Murray Corp.,
355 U. S. 489 387
Detroit Edison v. Commissioner,
319 U. S. 98 404,
408-413,416,421 425
D. H. Overmyer Co. v.
Frick Co., 405 l'. S. 174
235,278
Dickey v. Florida, 398 U. S.
30 437
Dor v. Bolton, 410 U. S.
179 902,926
Dombrowski \·. Eastland,
3b7 U. 8. 82 315-316,
318-319,324,327,330
Donnelly v. United States,
228 U. R 243 494,497
Douglas v. California, 372
U. R. 353 24, 34
Duckworth v. Arkansas, 314
F. S. 390 378
Duncan v. Louisiana, 391
F. S. 145 50
Dunn v. Blumstein, 405
U. R. 330 448,450,452,455
Dusch v. Davis, 387 U. S.
112 749
Edwards v. Cuba R. Co.,
268 F. S. 628 407,421
Edwards v. South Carolina,
372 U. S. 229 194,201
F.,dwards v. United States,
375 F. 2d 862 351,360
Elkanirh v. United States,
401 lT. s. 646 50
Elkins v. l:'nited States, 364 I F. S. 206 267
El Pnso v. Simmons, 379
F. S. 497 606
Eber v. Oill Net Number
One, 246 Cal. App. 2d 30 4b4
Ely V, Klahr, 403 r. ~- 108
747,778,795,799
Employees v. Missouri Pub- I hr Health Dept., 411 F. S.
279 237
Em~pak v. United States,
349 U. S. 190 238
Environmrntal Defense Fund
v. Hardin, 428 F. 2d
1093 688
Pnge
EPA v. Mink, 410 U. S. n 100
Erie R. Co. v. Tompkins,
304 U.S. 64 264,591-594
Escobar v United States,
388 F. 2d 661 349
Escobedo v. Illinois, 378
U. R. 478 223,240,248
E,.-;o Standard Oil v. Evans,
345 U.S. 495 387
Estate. See name of estate.
Eustis v. United States, 409
F. 2d 228 351
Eutsler v. United States,
376 F. 2d 634 528
Evans v. Newton, 382 U. S.
296 134,172,179
Ex parte. See name of
party.
Fairchild v. Hughes, 258 e. 8. 126 123
Far East('rn Conf. v. United
States, 342 F. S. 570 654
FarmE'f v. Moses, 232 F.
Supp. 154 175
Farmer,; l;nion v. WDAY,
360 F. 8. 525 104,114
Fa.y "· Noia, 372 U. S. 391
60,66,252-256,264
FCC v. Pottsville Broadcasting,
309 U. S. 134
104-105, 140
FCC v. Sanders Bros .. 309
U. S. 470 104, 135, 140
FCC v . WJR, 337 U. S. 265 381
FPC v. Louisiana Power &
Light, 406 F. S. 621 652
FPC v. Texaco, 377 U.S. 33 620
Fl'C v. Dean Foods, 384
U. S. 597 727
Fein v. Selective Sl'rvice
System, 405 U. S. 365 823
Fergu,;on v. Georgia, 365 u. s. 570 19
Ferguson v. Skrupa, 372
U. S. 726 46S
Fike,;'"· Alabama. 352 F. R
191 226,246,281
First Agr. :fat. Bk. v. Statr
Tax Cornm'n, 392 lT. S.
339 389
XXXVI!l TABLE OF CASES CITED
Page
Fleischmann Corp. v. Maier
Brewing, 386 U. S. 714
4-6,9-11
Flint v. Stone Tracy Co.,
220 P. S. 107 390
Flood v. Kuhn, 407 U. S.
25 400
Florida Lime Growers v.
.Tal'ob~en, 362 l'". S . 73 761
Fonotipia, Ltd. v. Bradley,
171 F . 951 568
Food Employees v. Logan
Valley Plaza, 391 U. S.
308 133- 134, 181, 194-195
Fortson v. Dorsey, 379
P. S. 433 751, 765, 773
Fowler v. Rhode Island, 345 r. R. 67 126,129,201
Frank v. Mangum, 237 U.S.
309 256
Frazier v. Cupp, 394 U. S.
731 245
Frf'f'port Sulphur v. Fnited
States, 199 F. Supp. 913
691--692, 691'\
Fribourg Nav. Co. v. Commissioner,
38.3 U. S. 272 415
Frontiero v. Richardson, 411 u. s. 677 458
Frost-Johnson Lumber v.
8alling's Heirs, 150 La.
7~ 5~
Frozf'n Food Exprt?RS v.
1'nited Sta.tes, 351 1:. S.
ffl ~7
F11f'ntf'S v. Shf'vin , 407 F . 8.
67 236.278,638
Furman v. Georgia, 40~ U. R
238 57
Gaffney v. Cummings, 412
U. 8. 735 763-
764,773,791, 796-79~
Gagnon v . Scarpf'lli, 411
l T. S. 778
Garnf'r v . Louisiana,
lT. S. 157
Garrirnn v . Loui~iana,
F. S. 64
916
368
150, 432
379
193
Gartnrr v. Solonn, 384 F.
2d 34~ 11-14
GAult , In re, 387 F. S.
1 23'~, 91~912
P;ige
Gelbard v. Fnited States,
408 U. S. 41 957
Gf'~f'witz v. New York, 326 r. S. 687 903
Giaccio v. Pennsylvania, 3~2
U. S. 399 22
Gibbons v . Ogden, 9 Wheat.
1 554
Gibson v. Florida Legi.olative
Com., 372 U. S. 539 169
Gideon v. Wainwright, 372
l'. S. 335 52, 62,474
Gilbert v. California, 388 r. s. 253 50, 239
Gillespie v. Oklahoma, 257
l'. S. 501 390
Ginsberg v. New York, 390
F. S. 629 277
Ginsberg & Sons v. Popkin,
2~ F. S. 204 633
Ginzburg v. United States,
38.3 P. S. 463 164
Gitlow v. Xr\\ York, 268
U. R. 652 183
Gla,:ser ,·. L'nitrd States, 315
U. R. W ~7
C:Qrnillion v. Lightfoot, 364
F. 8. 339 751, 754
norman v. Unitf'd Rtatrs,
380 F. 2d 158 231
Governmf'nt of Virgin I~-
lands v. Carmona, 422 F.
2d 95 208
Gowdy v. l 1nited Statrs, 412
F. 2d 525 528
Gravel V. rnited State~, 40h
U. 8. W6 311-
316, 318, 325-326, 32R ,
332-334, 337, 339-341
Graves v. Barnes, 343 F.
Rupp. 70--l 759
Grayned v. Rockford, 408
u. S. 104 129,194,200
Great Northern R. Co. v.
Merc-hants Elevator, 259
l". R. 2S5 821
Oreat Wrstern Drilling v.
~immons, 157 Tex. 268 527
Grern v . United States, 35.5
l'. i-- . li:4 66,235, 23S
Greene County Planning Bd.
V. FPC, 455 F. 2d 412 694
TABLE OF CASES CIT.ED XXXIX
Page
Gregoire v. Biddle, 177 F.
2d 579 342
Gremillion v. NAACP, 366
U. S. 539 169
Griffin v. Illinois, 351 U. S.
12 24,34
Griggs v. Duke Power, 401
U. S. 424 75
Griswold v. Connerticut , 381
U. S. 479 184
Grosjean v. American Press
Co., 297 U. S. 233 192
Gunn v. University Committee,
399 U. S. 383 761
Hague v CIO, 307 1J. S.
496 162,194,514
Haley v. Ohio, 332 U. S.
596 226,248,281
Hallidav v. United States,
394 u. s. 831 54
Ham v. South Carolina, 409
U. S. 524 40
Haner v. United States, 315
F. 2d 792 348
Harper v. Virginia Bd. of
Elections, 383 U. S. 663 689
Harris v. Hendricks, 423 F.
2d 1096 231
Harris v. Nelson, 394 U. S.
286 249
Hauenstein v. Lynham, 100
U.S. 483 4
Haynes v. Washington, 373
U. S. 503 225, 227
Hecht Co. v. Bowles, 321
U. S. 321 732, 734, 962
Heinrr v. Donnan, 285 U. S.
312 446,467
Helvering v. Griffiths, 318
U. S. 371 397
Hrlvering v. Lazarus & Co.,
308 U. S. 252 415
Henshir v. McPherson &:
Citizens Bk., 177 Kan.
458 399
Hernandez v. Texas, 347
U.S. 475 767
Hirks v. Clark, 225 La. 133 601
Hightower v. Maritzky, 194
La. 998 583
Page
Hill v. California, 401 U. S.
797 246
Hillside Com. Church v. Tacoma,
76 Wash. 2d 63 129
Hindcrlider v. La Plata Co.,
304 U. s. 92 538-539
Hines v. Davidowitz, 312
U. S. 52 561
Hodges v. Easton, 106 U. S.
408 235
Hoeper Y. Tax Comm'n,
284 U. S. 206 446
Hohnke v. Commonwealth,
451 S. W . 2d 162 231
Holmes v. Atlanta, 350 U. S.
879 512
Home Bldg. & Loan v.
Blaisdell, 290 U. S. 398
606-607
Hord v. Commonwealth, 450
S. W. 2d 530 65
Hostetter v. Idlewild Liquor,
377 U. S. 324 375,377, 385
Howard v. Lyons, 360 U. S.
593 320,323
Humble Pipl' Line v. Waggonner,
376 U. S. 369 371
Hunter v. Erickson, 393
U. S. 385 179
Hurd v. Hodge, 334 U. S.
24 345
Illinois v. Milwaukee, 406
U. S. 91 538
Illinois v. Sommerville, 410 u. s. 458 39
Inland Steel v. United States,
306 U. S. 153 828
In re. See name of party.
International. For I ab or
union, see name of trade.
International News Service
v. Associated Press, 248
U.S. 215 570
ICC v. Atlantic C. L. R. Co.,
383 U. S. 576 813
ICC v. Chicago, B. & Q. R.
Co., 186 U.S. a20 816
ICC v. Inland Waterways,
319 U. S. 671 806, 812
Ivan V. v. New York, 407
U. S. 2o:3 52, 62
XL TABLE OF CASES CITED
Pai,; ..
.Tarhou v. Denno, 371' U.S.
368 41
James v. Copinger, 441 F.
2d 23 52
James v. Dravo Contracting,
302 u. s. 134 371-372, 601'
JamP" v. United States, 366
U. 8. 213 360-361
Jame:, StPwart & Co. v. 8adrakula.
309 T1. S. 94 370
Jami"on v. TPxas, 318 U. S.
413 194
.Tanko v. Pnited States, 281
F. 2d 156 348
.Tarrrki v. G. D . Searle &
Co., 367 l1 S. 303 633
Jenkins v. Delaware, 395
P. S. 213 53
Jerome v. 20th Crntury Fox,
67 F. Rupp. 736 568
.T. I. Cast> C"o. v. Borak,
377 U. S. 426 7
,Johnson v. Avery, 393 l1. S.
483 24, 34
.Johnson v. Combs, 471 F.
2d R4 42~
Johnson v. New .Jnsey, 384
ll. S. 719 51, 53-!i5, 62
.Johnson v. United States, 333
P. 8. 10 222, 233-234, 243,
279,282,284,301-302
JohnRon v. Yrllow Cab
Transit, 321 U. S. 383 375
Johnson v. Zerbst, 304 U. S.
458 235-237,240.243-246
Jones v. United Statrs, 362
l'. S. 257 278, 297
.To,t>ph E. Sea~ram & Sons
v. Hostetter, 384 F. S.
35 375,378
.To st v. Communicntions
Workers, 13 Cal. App.
3d Supp. 7 77
Judd v. United States, 89
F. R. App. D. C. 64 241
Katz v. United 8tnt~. 389
ll. R. 347 219,222
KHufman v. United Statt>s.
394 U. S. 217 249-250, 256,
2~259,265-266,272
Page
Krlly v. lTnited State~, 125
U. H. App. D. C. 205 208,214
Kendall v. Winsor, 21 How.
~2 5~
Kf•nt v. United States, 383
lI. 8. 541 910-912
Ker v. California, 374 U. S.
23 269
Kilbourn v. Thomp~on, 103
U. S. 16 311-312,
315-316, 318, 326, 330,
332, 334, 340-341, 344
Kilgarlin v. Hill, 386 U. S.
120 743-744, 763,765, 77
Kilfa Crow v. United States,
451 F. 2d 323 207,217
Kirby v. Illinois, 406 U. S.
682 50,288
Kirk v. Board of Rey;ents,
372 Cal. App. 2d 430 453
Kirk v. l'nited States, 270
F. 2d 110 528
Kirkpatrick v. Preisler, 394
U. S. 526
740-742, 762-763, 777-
782. 788-793, 798-799
Kirkwood v. Arena.;,, 243 F.
2d 863 395
Kissinger v. New York
Transit Authority, 274 F .
Supp. 438 129
Knirkerborker v. People, 43
N. Y. 177 844
Knight v. Auriello, 453 F.
2d 852 6,429
Kotrh v. Pilot Comm'rs, 330
U. S. 552 173
Kovacs V. Cooper, 336 r. S.
77 127,194,458
Kuhn v. Fairmont Coal, 215
l1. s. 349 591
Kunz v. New York, 340 U.S.
290 194
Labor Board. See NLRB.
Lambert v. California, 355
F. S. 225 361
u1mont v. Postmastrr General,
381 F. S. 301 184
Leary v. Fnited States, 395
F.'S. 6 446, 841-~6. %1 854
Lee v. Board of Regents,
306 F. Supp. 1097 129
TABLE OF CASES CITED
Page
Lee v. Southern Home Sites,
444 F. 2d 143 6,429
Leeper v. United States, 446
F. 2d 281 231
Leiter Minerals v. California
Co., 241 La. 915
588-590.599-603
Leiter Minerals V. United
States, 352 U.S. 220 588,605
Leiter !-11inerals v. United
States, 224 F. 2d 381 588
Leiter Ylinerals v. United
States, 329 F. 2d 85 584-
585, 587, 590-594, 602
Levine v. Peyton, 444 F. 2d
525 21, 29
Lewis v. Martin, 397 U. S.
552 381
Leyra v. Denno, 347 U. S.
556 257
Linkletter v. Walker, 381
U. S. 618 51, 54-55,
58,62,242,263, 267
Little v. Bowers, 134 U. S.
547 368
Lloyd Corp. v. Tanner, 407
U. S. 551 134, 194-195
Lochner v. New York, 198
U. S. 45 545
Locomotive Engineers v.
M.-K.-T. R. Co, 363
U. S. 528 821
Lombard v. Louisiana, 373 u. s. 267 150, 179
Long v. Rorkwood, 277 U.S.
142 390
Long Island R. Co. v. United
States, 193 F. Supp. 795 699
Louisiana ex rel. Gremillion
v. NAACP, 366 U.S. 539 169
Louis,·ille & N. R. Co. v.
Mottley, 211 U S. 149 511
Louisville & N. R. Co. v .
United States, 238 U.S. 1 813
Lovell v. Griffin, 303 U. S.
444 162
Lucas v. Colorado Gen. Assembly,
377 U . S. 713
76.5, 773- 774
Lurkenbarh S. S. Co. v.
United States, 179 F.Supp.
605 691- 692,698
Page
Lumetta v. United States,
362 F. 2d 644 348
Lynch v. Household Finance,
405 U . S. 538 902
:Machinists v. Gonzales, 356 u. s. 617 75
Ylachinists "· NLRB, 412
U. S. 84; 148 U. S. App.
D. C. 119 68-70
:.\fachinists v. Nix, 415 F. 2d
212 8
Marhinists v. Street, 367
U. S. 740 961
Mahan v. Howell, 410 U. S.
315 741-749,763-765,
774-778, 793- 795, 798
Malloy v. Hogan, 378 U. S.
1 156
Mancusi v. DeForte, 392
U. S. 364 249, 251,302
l\fanual Enterprises v. Day,
370 U. S. 478 168
Manufacturrrs R. Co. v.
United States, 246 U. S.
457 806
:\fapp v. Ohio, 367 U. S.
643 62, 242,267,271, 302
\Turano v. United States, 374
F. 2d 583 66
Marbury v. Madison, 1
Cranch 137 326,338,343
Marchetti v. United States,
390 U. S. 39 237
:Maritime Union, In re, 175
F. 2d 686 78
l\farsch v. Alabama, 326
U. S. 501 133-134, 181, 194
Martin v. Struthers, 319
U. S. 141 184
::vrartin V. United States, 317
F. 2d 753 348,351
'.\Iaryland v. United States,
381 U. S. 41 527
M a r y l a n d Committee Y.
Tawes, 377 U. S. 656
744, 774,795,799
Mason v. United States, 260
U. S. 545 592, 605
l\·fassachusetts v. Mellon, 262
U.S. 447 723
XLII TABLE OF CASE.<:: CITED
Pn/le
'.\fassarhusctt~ v. Mi:,;,~ouri,
30.., l ' . 8. I 53K
::Vfassarh usetts r niver8alist
Con\'l'ntion .... Hildreth &
Hoger,;, 1&1 F. 2d 497 121
1\la~se,· Motors "· l'nited
Stat·£>,, 364 1'. S. 92 415
'.\Iauzy Y. Lrgi~latiw R<>distrir.
ting lid., 4il S. W. 2d
570 758
.\frCabi> Y. Atrhi..,on, T. &
H. F. R. C'o., 235 l1. S.
151 178-179
l\.IrCarthY v. l'nitc<l States,
394 11.· S. 459 238,360
l\.IcClanahan v. Arizona Tax
Comm'n, 411 U. ~- 164 396
!\IrConnell v. Rhay, 393
C 8. 2 52, 61
.\IrCullorh "· l\Iaryland, 4
Wheat. 316 367, 3~0, 60..,
.\IrCmdy ,·. l'nitrd States,
264 r. R. 4..,-l 395
.\IrGautha v. California, 402
C. S. 183 22, :n
.\frliow,ltl \'. ~faryland, 366
U. t-i. 420 61.,9
~Iclntire \·. William Penn
nroadrastin,i:, 151 F. 2d
597 121
;\f. C. Kiser Co. v. Central
of Ga. R. Co., 236 F. 573
691,6%
.\lemom, v. .\1assarh u~rtts,
383 ll. S. 413 Hl4
:\fetralf & Eddy " · Mitrhdl,
269 l'. S. 514 390
l\.1 et ho <list FrdNation "·
F..astland, 141 F. Supp.
729 331-,
'.\1 eyer \ ·. Commonwealth,
472 t-;. W. '2d 479 45
.\Iirhigan V. Parne. 412 r. S.
4i . 935
l\Iilk Wagon Drivers\' . Lake
Valley Product~, 311 F S.
91 961
1\1 i 11 er "· Hrhaffer, No.
17:3606, Hartford Co.,
~uper. Ct. (1971) 740
.\I1llrr &tatr, 259 Cal. App.
~9
.\Jill., v. Alabama, 384 U. S.
214 16R, 1R3
.\Iill~ v. Elertrir Auto-Lite,
396 P. S. 375 4-11, 15
:\liranda ,·. Arizona, 3l->4
l'. R 436 53-
55, 223, 226, 232, 240,
242, 245-247, 281, 286
'.\Ii~si.ssippi v. Johru;on, 4
\Vall. 475 344
l\Iitrhell v. Donovan, 398
C s. 427 761
Mitchell v. Tilghman, 19
Wall. 287 555
:\Iitchell Coal Y. Pennsylvania
R. Co., 230 l1. S.
247 813
.\litcl.rnm v. Foster, 407
l'. s. 225 902
l\Ionroc Y. Pape, 365 ll. S .
167 512- 513 , 516- 517
i\1oon v. '.\laryland, 398 r. S .
319 25-26,35,49, 65,935
Moor v. Alameda County,
411 l 1• S. 693 516
;\foore v. Michigan, 355
F. S. 155 237
Moo~<' Lodge v. lrvis, 407
C. S. 163 119, 141,
150, 172-176, 179-180
.\Ioran, In re, 203 P. S .
96 255
Morgan "· State, 2 ::\Id.
App. 440 231
!\Jorgan v. Virginia, 328
l'. s. 373 559
'.\loss v. CAB, 430 F. 2d
~91 693
.\Iosser v. Darrow, 341 1'. 8.
267 399
l\Iotor Coarh Employees Y.
Lorkridge, 403 r. 8. 274 74
.\Iurray "· Joe Gcrrirk &
Co., 291 r. s 315 370
l\rusirinns v. Wittstein, 379 r . S. 171 8
'.\1~·n s v. Bethli>hem ~hipbldg.
Corp., 303 F 8 . 41 652
TABLE OF CASES CITED XLIII
Page
Naph-Sol Refining v. United
States, 269 F. Supp. 530
692, 699
Nash v. ,viscman, 227 F.
Supp. 552 397
Kashville, C. & St. L. R.
Co. v. Walters, 294 U. S.
405 414
NAACP v. Alabama, 357
U. S. 449 169
KAACP v. Button, 371 U.S.
415 193
NBC v. United States, 319
U. S. 190 103, 126,
135,140,158, 197-198
Kational Equip. Rental v.
Szukhent, 375 L". S. 311 237
NLRB v. Allis-Chalmers
.\'lfg., Co., 388 U. S. 175
71-76.81
NLRB v. Marine Workers,
391 U. S. 418 78
~LRB v. Metropolitan Life
Ins., 380 U. S. 438 807
NLRB v. Radio & TV
Broadcast Engineers, 364 u. s. 573 83
NLRB v. Textile 'Workers,
409 U. S. 213
69,75,82,85,87-90
NLRB v. \Vvman-Gordon
Co., 394 U. S. 759 806-807
Nrbrnska v. Wyoming, 295
U.S. 40 539
Xew Jnsey v. New York,
345 U. S. 369 538-539
Kewman v. Piggie Park
Enterprises, 390 U. S.
400 5-6, 14, 428
Kew York v. Illinois, 274
U. S. 488 723
:\'ew York v. llnited States.
326 U. S. 572 386-387, 608
Kt>w York v. United States,
331 U. S. 284 714
Nrw York v. Fnited States,
337 F. Supp. 150 694, 712, 72,5
New York Times v. Sullivan.
376 U.S. 254 161,172, 183, 192
N rw York Times v. United
States, 403 U. S. 713
139, 165,344
Page
Niemotko v. Maryland, 340
U. S. 268 126, 129,201
North Carolina v. Alford,
400 U. S. 25 30
::'1forth Carolina v. Pearce,
395 u. s. 711
18- 29,32-43,46-66
North Carolina v. Rice, 404
U.S. 244 65
Korth Jersey Newspaper
Guild v. Rakos, 110 I\". J.
Super. 77 77
Oceanic Steam Navigation
v. Stranahan, 214 U. S.
320 368
Odom v. United States, 400
F. s. 23 49, 65
Ocstercich v. Selective Service
Rd., 393 U. S. 233 823
Ohio v. Wyandotte Chemicals,
401 U. S. 493 538
Ohio Bell Tel. v. Public
Utilities Comm'n, 301 u. s. 292 236
Oklahoma Press Pub. v.
Walling, 327 U. S. 186 644
Oklahoma Tax Comm'n v.
Unitrd States, 319 U. S.
,598 394, 396
Olmstead v. United States,
277 U. S. 438 955
O'Reilly v. NLRB, 472 F. 2d
426 70
Oscar l\favcr & Co. v. United
States, 268 F. Supp. 977
692,G98-699
Parific Coast Dairy v. Dept.
of Agriculture, 318 U . S.
285 369-371
Palko v. Connecticut, 302 u. s. 319 183
Panhandle Oil v. Mississippi,
211 e. s. 21s 390
Parden v. Terminal R. Co.,
377 U. S. 184 236
Parker \'. :forth Carolina,
39i U. S. 790 30
Patton v. :forth Carolina,
381 F. 2d 63G 66
Paul v. l lnited States, 371
U. S. 245 368, 370--
3i2, 380,385, 388-389
XLIV TABLE OF CASES CITED
Png~ I PaynP v. Arkan,:as, 356 U. R
560 226,246
Pendngrass v. Neil, 456 F.
2d 469 21, 28-29
Penn Dairies \', :Milk Control
Cornrn'n, 318 U. S.
261 371
Penn,:y]vania v. West Virginia,
262 P. S. S53 559
PeoplP Y. Baze-, 43 Ill. 2d
298 65
Peoplr ,·. Dahlke, 257 Cal.
App. 2d 82 231
Peoplr v. HPnderson, 60 Cal.
2d 482 66
People v. Ibarra, 60 Cal. 2d
460 278
Pc-ople , . Mirhael. 45 Cal.
2d 751 221,231
PeoplP ,·. Payn<', 386 :\1irh.
84 59
People Y. Perez, 62 Cal. 2d
rn9 2~
People ,·. Roberts. 246 Cal.
App. 2d 715 223,231
People , .. Tremayne, 20 Cal.
App. 3d 1006 223
People's Bank v. Calhoun,
102 l'. S. 256 217
PC'rmian Basin Area Rate
Cases, 390 P. S. 747 625,653
Pern· v. Sindermann, 408 u: S. 593 28~, 515, 517
PetPrson v. Greenville, 373
ll. S. 244 179
Pfizer, Inc. v. Richardson,
434 F. 2d 536 623
Pharmaceutical Mfrs. Assn.
v. Finch, 307 F. Supp, 858 619
Pharmaceutical Mfrs. Assn.
v. Richard;.on, 318 F.
Supp. 301 618-619
Phelps v. Harris, IOI F. S.
370 398
Phelp~ Dodge v. ~LRB,
313 U. S. I 77 807
Pirkel,:imPr "· Wainwright,
375 U.S. 2 62
Picknin~ Y. Board of Ed.,
391 11. S .. 563 183
Page
Piemm v. Ray, 386 lT. S.
547 319-320
Pittsburgh & W. Va. R. Co.
v. l'nitt'd States, 281 r. S.
479 819
Plessv v. Fngui-on, 163 r. S.
537 150
Plummer v. Coler, 178 F. S.
115 390, 391\
Poafpybitty v. SkPlly Oil,
390 U. S. 365 399
Polar frp Cream v. Andmvs,
375 r. S. 361 371,390
Poli('<' DPpt. of Chicago v.
?\fo~le ,·. 408 U. R. 92 129,
. 139-140, 193,198,200
Port of K. Y. Authority v.
UnitPd Staff'~, 451 F. 2d
7~ ~8
Post v. Payton, 323 F. Supp.
799 121
Poulos v. New Hampshire,
34ii U. K 395 140,200
Powe!l v. l\IrCormack, 395
U. 8. 486 311,315 316. 320.
326,330,332,340-341
Prei~f'r v. Rodrie;uez, 411
l'. S. 475 260
Procter & Gamble- Co. v.
Lnited Statt>i;, 225 l'. S.
282 827
Pnblir rtilitiPS Comm'n v.
Pollak, 343 U. S. 451 114,
119-120, 127, 133-134,
141, 176, 179-180, 194
R:iilroad C'o. v. Commis.,ioner,:;,
98 lT. 8. 541 368
Railroad Trlegraphers v.
Chirago & N. W. R. Co.,
362 F. R 330 961
Railroad Trainmen \'. Chicago
R. & I. R. Co., 353
T'. S. 30 961
Railro,id TrainmPn v. Howard,
a43 U. 8. 768 961
Railway Emp!oyes v. Hanson,
351 U. S. 225 133
Reade v. Ewing, 205 F. 2d
630 688
Ref'k V. Pate, 367 r. S.
433 226,248
TABLE OF CASES CITED XLV
Page I RFC v. Beaver County, 328
L'". s. 204 595-596, 603,608
Red Lion Broadcastin11; v.
FCC, 395 l'. S. 367 99, 101-
104, 110-112, 121- 123,
130, 134-135, 138, 140,
142-143, 146, 154, 157,
175, 182-186, 189, 196-
198, 204
Reed v. Reed, 404 U. S.
71 458
Reisinger v. Commissioner,
144 F. 2d 475 415
Reitman v. Mulkey, 387
U. R. 369 173, 179
Reynolds v. Sim~, 377 l1. S.
533 742-74~.
748-749, 762 765, 772,
775, 778-779, 781 , 795
Ricci v. Chicago ::½erranti!P
Exch., 409 t:. S. 289 653- 654
Rice v. Santa Fi> Elevator,
331 l'. S. 218 567
Rideau v. Louisiana, 373
U. S. 723 156
Rinaldi v. Yeagl'r, 384 1•. 8.
305 24
Roberts v. Russc-ll, 392 ll. S.
293 52, 55, 61
Robins v. Schonfeld, 326 F.
Supp. 525 9, 14
Robin~on v. Florida, 37h
U. 8. 153 179
Robinson '"· Neil, 409 r. S
505 57, 61, 63
RorllC'ster Tel. v. United
States, 307 ll. 8. 125 827
Rochin v. California, 342
"C. 8. 165 304
Roe v. Wade, 410 U. R.
113 761,902,926
Rolax v. At!antir C. L. R.
Co., 186 F. 2d 473 5
Roman v. Sincork, 377 U. S.
695 777,795
Rosenthall v. Henderson.389
F. 2<1 514 230 I Roth v. United States, 354
U. 8. 476 156.164
Royal Indemnity v. United
States, 313 ll. 8. 289 595
Page
Ruffalo v. Common Council,
3 Wi~. 2d 518 509-510
Ru•so '"· Byrne, 409 U. S.
1219 954-955
Saia v. New York, 334 U.S.
558 201
Sailors v. Board of Ed., 3'-7
U. S. 105 749
Salzb:rndler v. Caputo, 316
F. 2d 445 8
San Antonio School Dist. v.
Rodrip;uez, 411 U. S. 1
458,461
Sanders v. l'nitcd States, 373
U. S. 1 256,262
Sands v. Abelli, 290 F. Supp.
677 9, 14
Ransone v. llnited States,
3b0 l:. 8. 343
208,355-357,359 360
Rantobello v. Nrw York, 404 u. s. 257 31
Schlesinger v. Vi'isconsin, 270
U.S. 230 446
Schrnerber v. California, 384
l:. S. 757 296, 302-303
~clmerkloth v. Bustamante,
412 U. S. 218 300
Schneider v. State, 308 l'. 8.
147 194, 198,200
Schnell v. Chicago, 407 F.
2d 1084 511-512
Schoepflin v. United States,
39 1 F . 2d 390 221
Rcientists' Institute v. A.EC',
156 li. ~- App. D. C. 395 711
Scofirld v. NLRB, 394 11. S.
423 71-78, 8 1
i"rrip~-Howard Radio v.
FCC, 316 U. S. 4
696, 726- 727, 734,819
~eans, Roebuck & Co. v.
Stiff el Co., 376 U. S. 225
551,567,569,571 579
~ecrrtary of Agriculture v.
Fnitcd State-;;, 347 l'. R.
645 ~5.~08,810,817,8.33
SEC' Y. C'hrnery Corp., 318
U. S.M ro7
8EC' '"· C'henery Corp., 332
l'. S. 194 807 808
XJNI TABLE OF CASES CITED
Page
SelleC'k ,·. Hawley, 331 ).fo_
1038 399
Seminole Nation v. l:nited
States, 316 l 1 . S. 286 398
Semmes :Morors v. Ford
:\-fotor Co., 429 F. 2d 1197 822
Seymour v. Superintendent,
368 l l. S. 351 497, 504-505
Shapiro v. Thompson, 394
l'. s. 618 33, 288,
448,450,452,455,458
Shaw Vi'arehouse v. Southern
R. Co., 288 F. 2d 759 813
Sht>lton v. T11rker, 364 l". S.
479 169
Sheppard ,·. Maxwell, 354
l'. S. 333 156
ShPrbert v. Yerner, 374 V. S.
398 288
Shuttle~worth v. Birmingham
, 394 U.S. 147 200
Sibron v. ~ew York, :19:.!
U. S. 40 297
Sierra Club v. Morton, 405 u. s. 727 681, 684-690,
699, 702-703, 722-72:3
Silverthorne Lu rn be r v.
t·nite<l States, 251 U. S.
3S5 302
Simmons v. United States,
390 TT. S. 377
Simpson V. nice, 396 F. 2d
31
499 66
Singer v. l'nited States, 380
t:. S. 24
67th :'.\Iinnesota Senate v.
46
Ileen~, 406 t:. S. 187 795
~kiriotes v. Florida, 313
U.S. 00 ~2
Smith ,._ California, 361
P. S. 147 168
~mith v. Craddick, 471 S. \V.
2d 375 758
Smith v. Hooey, 393 l'. S.
374 438-43[)
Smith v. l'nited States,
3;37 l'. S. 137 238
Smith v. United States, 343
F. 2d 539 847
Southrrn Pacific Co. v. Arizona,
325 P. S. 761 559
Puge
Southrrn Pacific Terminal ,·.
ICC, 219 ll. S. 498 684
Spano v. New York, 360
e. S. 315 223
Sparf v. l'nited States, 156
l'. s. 51 208
Spencl'r v. Texas, 385 U. S.
554 22
::,,pies v. llnited States, 317
U. S. 492 351-361
Sprague v . Ticonic Nat.
Bank, 307 U. S. 161 5-6
Squire ,·. Capoeman, 351
U. S. 1 395-396
Standard Oil v. California,
291 F. S. 242 371
Stanley v. Georgia, 394 U.S.
557 184
Stanle,· ,._ Illinois, 405 l!. S.
645 . 447,451 , 457- 458, 461
Starns , .. ).falkerrnn, 326 F.
Supp. 234
452-453,455-456,467
State. See also name of
State.
State , .. Andrus, 250 La. 765 231
State v. Custer, 251 So. 2d
2~ ~1
State v. Douglas, 260 Ore.
60 231
Statr \·. Forney, 181 Neb.
757 231
State ,._ FostPr , 242 Ore. 101 475
State \·. Kelsaw, 11 Ore.
App. 289 475,478-479
State v. 1IcCarty, 199 Kan.
116 231
Stat'-' v. Oldham, 92 Idaho
124 ~]
State v. Pearce, 266 N. C.
2:34; 26r.. X. C. 707
Stall.' ,·. Pilclwr, 171 N. W.
2d 251
State v. Raymond, 46 Conn.
41
65
345 844
State v. Rentschler, 444
S. W. 2d 453 65
Statr v. Witherspoon, 460
S. W. 2d 281 231
Stein v. ~ew York, 346 U.S.
156 281
TABLE OF CASES CITED XLVII
Pago
Ste\·enson v. United States,
162 u. s. 313 208
Stonom ,·. \Vainwright, 235
So. 2d 545 65
Stovall v. Denno, 388 U. S.
293 49-51, 54, 57
Stroud v. United States, 251
U. S. 15 23-24
Sunderland v. United States,
266 U. S. 226 592-.59:3, 605
Swann v. Adams, 385 U. S.
440 743-744,763, 777-778
Swift v. Tyson, 16 Pet. 1
590-591
Swift Co. v. United States,
111 U. S. 22 368
Talley v. California, 362
U. & 60 lM
Talton v. :i.fayes, 163 U. S.
3i6 210
Tape Industries Assn. v.
Younger, 316 F. Supp.
340 549-550
Taylor v. l\IeKeithen, 40i t!. s. 191 429
Tehan v. Shott, 382 U. S.
406 51, 57, 242
Telescrvice Co. v. Commissioner,
254 F. 2d 105 411,423
Tenney v. Brandhove, 341
U. S. 367 307, 319-320,
324,327,330,336,340
Terrninidlo v. Chicago, 337
U. S. I 183
Terry v. Ohio, 392 U. S.
1 267,294-295,297-299,301
Tt'xas & Pacific R. Co. v.
United States, 286 U. S.
~5 ~l
Thomas ,·. Collins, 323 U. S.
516 192-193
Thompson v. Louisville, 362
U. S. 199 432,851
Thornhill v. Alabama, 310
l i . S. 88 183
Tierney v. United States,
410 U. S. 914 955, 957
Time, Inc. v. Hill, 385 U. S.
374 184
Tinker v. Des Moines School
Dist., 393 U. S. 503 191, 194
Page
Todd v. 11nited States,
U.S. 278
158
216
Tokdo Kewspaper Co. v.
United States, 247 U. S.
402 156
Tot v. United States, 319
U. S. 46:{ 446,
841-842,846,849-850
Trade-Mark Cases, 100 U.S.
82 562
Tran~portation Co. v. Southern
R. Co., 372 U. S. 658 682
Trustee8 , .. Greenough, 105
U.S. 527 6
Turner v. :\-Jemphis, 369 u. s. 350 175
Turner v. Pennsylvania, 338
U. S. 62 227
Turnrr v. L"nited States, 396
U.S. 398 446, 841-842,
845- 846, 850, 85:3-854
rdall V. Tallman, 380 U. S.
1 75
United. For labor union,
see name of trade.
U. A. W. v. Hoosier Cardinal
Corp., 383 U. S. 696 596
Unitrd Church of Christ v.
FCC, 123 l:. S. App. D. C.
328 110,176,702
UnitPd Grocers ,,. United
States, 308 F. 2d 634 411 , 422
United Statrs v. Allegheny
County, 322 U.S. 174 594,608
United States v. Allegheny-
Ludlum Steel, 406 U. S.
742 804
United States v. Associatrd
Press, 52 F. Supp. 362 192
Unitrd States v. Augcnblick,
393 V. S. 348 475
Vnited States v. Bacto-lTnidisk,
394 U. S. 784 632
United States v. Biswell, 406
ll. S. 311 279
United States v. Blalock, 255
F. Supp. 268 231,245
United States v. Brewster,
408 l:. S. 501 311 ,
:n7- 318, 331, 337, 340
United States v. Burnison,
;339 U. S. 87 592,605
XJ,VJII TABLE OF C'ASES CITED
Pag~
UnitC'd StatPs v. C'l'lestine,
215 r. ~- 27'- 497,504
l'11itl'd Stat<'s "· Cer tain
PropC'rty, 306 F. 2d 439 591
l'nit ed StatPs ,. . Chicago,
M, St. P. & P . R. Co.,
294 r. ~- 499 ....01. 814
Fnited 1:-tates "· Coke, 404
F. 2d 836 66
FmtC'd Statt>~ v. ComPr, 137
1'. S. App. D. C. 214 20~
l'11itf'd StatP~ v. CurialP,
414 F. 2d 744 230. 2R6
rmted Rtate.s v. Detroit,
355 r. S. 466 31-17
l'nitPd States v. Dilella, 354
F. 2d 584 844
Pnitcd State'~ "· Dionisio,
4101'.R. 1 294-295,208,303
Uuit<•cl Stat£'~ v. Ewell, 383 r. s. 1m 439
l'nited f:tatt>1- v. Fahey, 411
F. 2cl 1213 348,351
l'11itC'd State,: v. 4>-- lb-,. of
Tea, 35 F. 103 492, 501-502
l'nited StaH•~ v. Fox. 94
1·. S. 315 592,605
l111ited 8tate~ v. Gaine:,.·, :-l80
l'.R.63 i--41-842,h45-'-46,b50
l'nitc-d State,; v. Gardner,
454 F. 2d 534 >--4~
l'nited :-\tat<·~ ,·. Goo~he\',
419 F. 2d 1-ilX • 231
l'uitPd StatP~ \'. Halhm. 304
F. 2d 620 397
Fnitrd ~tate~ v. HaseltinP,
419 F. 2d 579 35 1, :mo
lf11ited Stall's \'. Hill<''-, 256
F. 2d 561 Mi
Fnit<.>d Rtatf's v. Hood, 422
F. 2d 737 844
l'nned State~ ". Hudso11, 7
<'nmrh 32 215
l'uitrd Statl'~ v. .Tark,on,
;390 l'. s. 570 29-:m, 32-33,
35,37-3'-,,44-46
ruitC'd StatPs ,·. John;;ou,
3k.'3 U. S. 169
311,316, :{32, 340
l1nit<.>d 8tates v. Kagarna,
118 U. S. 375 209
Paire
United States v. Lachmann,
469 F. 2d 1043 349
United States v. Leiter Min-
<>ral!>, 381 U. S. 413 584,590
United States v. Ludey, 274
F. S 295 415
rnitrd States v. :Mara, 410
U. S. 19 295
Fnited State!> v. Markis,
352 F. 2d 860 20R
rnited State:; V. Marrese,
336 F. 2d 501 241
l"nitc<l States \'. Matosky,
421 F. 2d 410 360
UnitPd State's v. 1\Iiller, 395
F. 2d 116 287
Fnited 8tatl'R v. Ming, 466
F. 2d 1000 360
rnitcd State~ V. Mitrh<>ll,
4m U. S. 190 595
Fnit<'<l States v. Modrrarki,
2SO F. Supp. 633 231,245
Fnited Statl'~ v. Morgan,
307 P. S. lf-3 827
U11ited State~ v. Muniz,
374 1'. s. 150 528
l'nitcd State~ v. Murdock,
290 F. S. 389 356, 360-361
Fnited ~tatl's v. Muskegon,
355 l'. S. 484 387
Fnited State,- v. Neho Oil
Co., 190 F. 2d 1003
584,586,590
Fnited. States v. N. Y. &
Cuba Mail S. H. Co., 200 u. s. 488 368
United Stat('); v. Nice, 241
U. S. 591 497,505
rnit<'d ~tates v. Kikrasch,
367 F. 2d 740 231
FnitPd States v. 93.970
Am•,-, 360 F. S. 32>! 595
Fnit<>d States v. Noa, 443
F. 2d 144 231
Fnited States v. Paramount
Pirtures, 334 r. R 131
101, 120 , 13:3, l '-2
i:·nited States v. Rirkl'rt,
188 F. 8. 432 395
rnitrd State~ v. Romano,
382 l'. S. 136 84H,42, 48
TABLE OF CASES CITED XLIX
Page
United States v. Russell, 411
U. S. 423 936
United States v. Russo, 413
F. 2d 432 844
United States v. Schipani,
362 F. 2d 825 360
United States v. Schultz, 462
F. 2d 622 848
United States v. Shipp, 203 u. s. 563 627
United States v. Smith, 446
F. 2d 200 844
United States v. Southwestern
Cable Co., 392 U. S.
157 505
United States v. Standard
Oil, 332 U. S. 301 594
United States v. Storer
Broadcasting, 351 U. S.
192 620,625
United States v. Tateo, 377
U. S. 463 23
United States v. U. S. Coin
& Currency, 401 U.S. 715 61
United States v. Vickers, 387
F. 2d 703 231
United States v. Vitiello, 363
F. 2d 240 348,359
United States , .. Wadf', 388
U. S. 218 49, 55,239,288
United States v. Western
Pacific R Co., 3/i2 U. S.
59 821
Fnited States v. Whitaker,
144 U.S. App. D. C. 344 214
l'nited States v. White, 382
F. 2d 445 66
United States v. Winbush,
428 F. 2d 357 844
Unikd States v. Yazell, 382
U. S. 341 595,605
F S. ex rel. SeC' name of
real party in interest.
F. 0. P. ~orplex v. NLRB,
445 F. 2d 155 74
Upjohn Co. v. Finch, 422
F. 2d 944 618
l.Tppt't' Pi'cos Assn. v. Petrrson,
409 lT S. 1021 725
Upper Pecos Assn. v. Stans,
452 F. 2d 123:~ 725
Page
l'.veges v. Pennsylvania, 335
1.,·. S. 437 237
Vale v. Louisiana, 399 U. S.
30 222
Valentine v. Chrcstcnsen, 3Hi
l:'. S. 52 201
Vanderbilt's Will, In re, 190
1foc. 824 399
Vaughan v. Atkinson, 369
U. S. /i27 5
Veterans Foundation v.
Commissioner, 317 F. 2d
456 408,426
Villano v. United States, 310
F. 2d 680 241
Virginian R. Co. v. Systems
Federation, 300 U. S. 515
731,822,826
Virginia Petroleum .T obbers
v. FP~ 104 U.S. App.
D. C. 106 821
Von Moltke v. Gillies, 332
U. S. 708 237,244
\
0Valder v. United States, 347
U. S. 62 270-271
Wallace v. McConnell, 13
Pct. 136 400
\Valier v. Florida, 397 U. S.
387 57, 61
Wallis v. Pan American PPtroleum,
384 U.S. 63 603, 605
Wal sh v. Communications
Workers, 259 iVId. 608 77
\Vard v. Board of Comm'rs
of Love County, 253 U.S.
17 368
Warc!Pn v. Hayden, 387
U.S. 294 251,279,282,477
\Varing v. WDAS, 327 Pa.
433 568
Wflrren v. United States, 311
F. 2d 673 272
Washington v. Texas, 388
U. S. 14 474
\Vatkins v. Unitt>d States,
354 U. S. 17\s 327-
328, 330, 333-334,344
\Vatkins, Ex parte, 3 Pet.
Hl3 253-254
\Veber v. Aetna Casualty,
406 U. S. 164 4/i8
L TABLE OF CASES CITED
Page
,vchrhanc Estate, 41 N. J.
Super, 158 399
Weinberger v. Bentex Pharmaceuticals,
412 U. S. 645
643-644,659
Weinberger v. Hynson, Westcott
& Dunning, 412 U. S.
609 643,649,651,653
\Veiss v. Wiener, 279 U. S.
333 415
Wells v. Rockefeller, 394
U. S. 542 741,778,
782, 790-793, 798-799
Wesberry v. Sanders, 376
U. S. I 741,790, 793
West v. Oklahoma Tax
Comm'n, 334 U. S. 717
392-397
Whecldin v. Wheeler, 373 u. s. 647 320
Whitcomb v. Chavis, 403
U. S. 124 744, 751-754, 765-
766,769,773, 795- 796
White v. Regester, 412 U. S.
755 751-754, 775,798
White v. Weiser, 412 U . S.
783 741,752
Whiteley v. Warden, 401
U. S. 560 249
,vhite Motor Co. v. United
States, 372 U. S. 253 622
White-Smith Music Pub. v.
Apollo Co., 209 U. S. 1 565
,vhitney v. California, 274
U. S. 357
Whitnev Nat. Bank v. Bank
of New Orleans, 379 U. S.
183
411 727
Whitnev Nat. Bank v. Little
Creek Oil, 212 La. 949
585--586
Wilbur v. United States, 281
U . S. 206 497
Wilkuts v. Bunn, 282 U. S.
216 390
Williams v. Florida, 399 u. s. 78 471-472, 474, 478-480
Williams v. McMann, 436
F. 2d 103 27
Page
Williams v. New York, 337
l:. S. 241 21, 56
Williams v. United States,
401 l:. S. 646 50, .57
Williamson v. Lee Optical,
348 U. S. 483 466
Wilson v. United States, 162
U. S. 613 844
Winship, In re, 397 U. S.
358 52,62,474,850,853-854
Wirta v. Alameda-Contra
Costa Transit Dist., 68
Cal. 2d 51 129
Wisconsin v. Constantineau,
400 U. S. 433 324,515
Witherspoon v. Illinois, 391
U.S.510 22,39,42
Witt v. United States, 462
F. 2d 1261 532
Wolf v. Colorado, 338 U. S.
25 242
Worcester v. Georgia, 6 Pet.
515 . 210
Wright v. Rockefeller, 376
U. S. 52
Wyoming v. Colorado,
U. S. 419
752
259
Yablonski v. "'.vline Workers,
150 U. S. App. D. C.
539
2~ 8~.~
Yakus v. United States, 321 u. s. 414 644
Yates v. United States, 367
F. 2d 663 528
Yee Hem v. United States,
268 U. S. 178 846-847
Younger v. Gilmore, 404
U.S. 15 34
Younger v. Harris, 401 U .S.
37 902
Youngstown Sheet & Tube
v. Sawyer, 343 U. S. 579 344
Zap v. United States, 328 u. s. 624 219, 222, 233-234, 279
Zucker v. Panitz, 299 F.
Supp. 102 129
TABLE OF STATUTES CITED
(A) STATUTES OF THE UNITED STATES
Page
1790, May 31, c. 15, 1 Stat.
124 .............. 546
1798, June 18, c. 54, 1 Stat.
566 . .. . .. . .. . . . .. 94
June 25, c. 58, 1 Stat.
570 . . . . . . . . . . . . . . 94
.July 14, c. 74, 1 Stat.
596 . . .. . .. . .. . . .. 94
1802, Apr. 29, c. 36, 2 Stat.
171 .............. 546
1831, Feb. 3, c. 16, 4 Stat.
436 .............. 546
1853, Mar. 3, c. 104, 10 Stat.
226 .............. 481
1855, Mar. 3, c. 204, 10 Stat.
686 .............. 481
1864, Apr. 8, c. 48, 13 Stat.
39 ............... 481
1865, Mar. 3, c. 126, 13 Stat.
540 .............. 546
1867, Feb. 5, c. 28, 14 Stat.
3><5 •...•......... 218
1868, July 27, c. 248, 15 Stat.
198 .............. 481
1869, Apr. 10, c. 16, 16 Stat.
13 ............... 481
1870, July 8, c. 230, 16 Stat.
198 .............. 546
1872, June 1, c. 255, 17 Stat.
196, § 9 ........... 205
1885, :Vlar. 3, c. 341, 23 Stat.
362, § 9 ........... 205
1887, Feb. 4, c. 104, 24 Stat.
379, as amended,
§§ 1, 8~10 ......... 800
§§ 6, 13, 15 ... 669,800
§ 16 . .. . .. . .. ... 1
§§ 216, 218, 307,
406 ........... 669
Feb . 8, c. 119, 24 Stat.
388 .............. 391
§ 6 ............. 481
Page
1889, l\far. 2, c. 405, 25 Stat.
888 .............. 481
1891, Jan. 12, c. 65, 26 Stat.
712 .............. 391
J<'eb. 28, c. 383, 26 Stat.
794 .............. 481
1892, June 17, c. 120, 27
Stat. 52 ........... 481
.July 1, c. 140, 27 Stat.
62 ................ 481
1902,June 17, c. 1093, 32
Stat. 388 .......... 534
1904, Apr. 21, c. 1402, 33
Stat. 189, § 8 ...... 481
1906,1-Iar. 22, c. 1126, 34
Stat. 80 ........... 481
June 28, c. 3572, 34
Stat. 539 .......... 391
.June 30, c. 3915, 34
Stat. 768 .......... 609
1908, May 29, c. 218, 35
Stat. 460 .......... 481
1912, Apr. 18, c. 83, 37 Stat.
86 ............... 391
1914, Oct. 15, c. 323, 38 Stat.
730, as amended,§ 4. 1
1916, Aug. 11, c. 313, 39
Stat. 446, Part 13. . . 800
1927, Feb. 23, c. 169, 44 Stat.
1162, § 18... .. .. .. 94
1929, Feb. 18, c. 257, 45 Stat.
1222 ............. 580
Mar. 2, c. 493, 45 Stat.
1478 ............. 391
1932, Mar. 23, c. 90, 47 Stat.
70 ............... 958
1933, J unc 16, c. 90, 48 Stat.
195, § 204 ......... 401
1934, June 6, c. 404, 48 Stat.
881, as amended,
§§ 9, 14, 18........ 1
LI
LII TABLE OF STATUTES CITED
Page
1934, June 18, c. 576, 48
Stat. 984 .......... 481
June 19, c. 652, 48 Stat.
1064, as amended,
§§ 1, 3, 201-202, 301,
303, 307-310, 312,
315, 318, 326, 396,
501 . . . . . . . . . . . . . . 94
§ 206 . . . . . . . .. . . 1
1935, July 5, c. 372, 49 Stat.
449, as amended,
§§ 7-8 .......... 67, 84
Aug. 9, c. 498, 49 Stat.
543 .............. 669
1936, June 22, c. 690, 49
Stat. 1648 ......... 401
§ 145 ........... 346
1938, June 24, c. 645, 52
Stat. 1034 ......... 391
June 25, c. 675, 52
Stat. 1040, as
amended, §§201,
505 .. 609,640,645,655
§§ 301-304 ... 609, 640
§ 503 ........... 655
§ 701 ........... 609
1940, Sept. 18, c. 722, 54
Stat. 898, §§ 1, 201. 669
Oct. 8, c. 757, 54 Stat.
974 ............... 401
Oct. 9, c. 787, 54 Stat.
10.59 ............. 363
1942, May 16, c. 318, 56
Stat. 284, § 1. . . . . . . 669
Dec. 24, c. 814, 56
Stat. 1081 ......... 481
1944, July 1, c. 358, 58 Stat.
649, § 14 .......... 391
Dec. 20, c. 626, 58
Stat. 838, § 5. . . . . . 401
1946, July 5, c. 540, 60 Stat.
427, as amended,
§ 35 ............. .
1947, June 23, c. 120, 61
Stat. 136, § 101 .. 67. 84
§ 301 ........... 958
Aug. 4, c. 474, 61 Stat.
747 .............. 391
1951, June 19, c. 144, 65
Stat. 75, § 6 ....... 36:3 I 19.56, Aug. 1, c. 809, 70 Stat.
775 .............. 534
Page
1958, May 19, Pub. L. 85-
420, 72 Stat. 121. . . 481
1959, Sept. 14, Pub. L. 86-
257, 73 Stat. 519,
§§ 2, 102-105, 201,
501, 603. . . . . . . . . . . 1
§ 101 .......... 1, 67
Sept. 14, Pub. L. 86-
274, 73 Stat. 557,
§ 1 . . . . . . . . . . . . . . . 94
1962, Oct. 10, Pub. L. 87-
781. 76 Stat. 780,
§§ 102-104, 107 .... 609.
640, 64!i . 65!i
§ 201 . . . . . . . 609, 640
1964, July 2. Pub. L. 88-
352, 78 Stat. 241,
§ 204 ............. 427
Oct. 6. Pub. L. 88-362,
78 Stat. 1008. . . . . . 391
1965, Oct. 20, Pub. L. 89-
272, 79 Stat. 992,
§ 202 et Sf'Q . . . . . . . . 669
1966,Sept. 6. Pub. L. 89-
554, 80 Stat. 378... 94
1967, Nov. 7. Pub. L. 90-
129, 81 Stat. 365, as
amendf'd, § 201 . . . . . 94
1968, Aua;. 15. Pub. L. 90-
487, 82 Stat. 761. .. 800
1970, Jan. 1, Pnb. L. 91-190,
83 Stat. 852, §§ 2,
101-IOS, 202. 204 .. 669
July 24, Pub. L. 91-
353, 84 Stat. 466. . . 94
Aug-. 12, Pub. L. 91-
375, 84 Stat. 719... 94
Au!('. 15, Pub. L. 91-
379, 84 Stat. 796 ,
§§ 209-210 ........ 958
Oct. 26, Pub. L. 91-
512, 84 Stat. 1227 .. fi69
1971, Ort. 15, Pub. L. 92-
140, 85 Stat. 391 ... 546
Dec. 22, Pub. L. 92-
210, 85 Stat. 743 ,
§ 2 ............... 958
1972, Feb. 7, Pub. L. 92-225,
86 Stat. 1, § 103... 94
June 2, Pub. L. 92-
307, 86 Stat. 191 ... 669
TABLE OF STATCTES CITED LIII
Page
1972, June 23, Pub. L. 92-
318, 86 Stat. 235,
§ 718 ............. 427
Aug. 16, Pub. L. 92-
387, 86 Stat. 559 ... 645
1973, Mar. 30, Pub. L. 93-
12, 87 Stat. 9....... 94
Revised Statutes.
§ 355 ................ 363
§ 1979 ... 218,427,441,507
§ 2133 ............... 481
U. S. Code.
Title 4, §§ 105-110 .... 363
Title 5,
§ 552 . . . . . . . . . . . . 94
§§ 554, 556-557. . . . 609
§ 701 et seq .. 609, 909
§ 702 ............ 669
§ 706 ........ 609, 800
Title 12 (Supp. I),
§ 1904 ............. 958
Title 15,
§§ 15, 78i, 78n, 78r,
1117 . . . . . .. .. .. 1
§ 1801 et seq. . . . . . 94
Title 17, §§ 1-2, 4-5, IO,
12-13, 19-20, 24 ..... 546
Title 17 (Supp. I), § 1
et seq .............. 546
Title 18 (1934 ed.),
§317 .............. 837
Title 18 (1946 ed.),
§ 565 .............. 205
Title 18,
§1 .............. 346
§§ 1151, 1162 ...... 481
§§ 1152-1153, 3242,
3501 .......... 205
§ 1464 . .. . .. . . . . . 94
§ 1708 ........... 837
§ 2312 . . . . . . . . . . . 434
§§ 4002, 4042, 4244. 521
§ 6003 ........... 954
Title 21,
§§ 321, 355 .. . ..... 609,
640,645,655
§§ 331-334 .. .. 609, 640
§ 353 ............ 655
§ 371 ............ 609
Page
U. S. Code-Continued.
Title 25,
§ 331 ............ 391
§§ 348a, 461 et seq. 481
Title 26 (1964 ed.),
§ 4704 ............. 837
Title 26,
§§ 118, 167, 362,
1012, 1015, 1052. 401
§§ 6065, 7201-7241. 346
Title 28,
§ 1251 ........... 534
§ 1253 ........... 755
§§ 1331, 1343 ...... 507
§§ 1336, 1651 ...... 800
§§ 1345, 1652 ...... 580
§§ 1346, 2671 ...... 521
§ 1491 ........... 391
§§ 2254-2255 . . . . . . 218
§ 2281 ....... 507, 783
§ 2284 ....... 669,783
§§ 2321-2324 .. 669,800
§ 2325 ........... 669
§ 2675 ........... 306
TitlP 29,
§§ 101 et seq., 185 .. 958
§§ 157-158 ...... 67, 84
§§ 401, 412- 415, 431,
501, 523........ 1
§ 411 ........... 1, 67
Title 40, § 255. . . . . . . . 363
Title 41, § 114 ......... 391
Title 42,
§ 1983 .......... 218,
427,441,507
§ 2000a-3 . . . . . . . . 427
§§ 3251 et seq., 4321,
4331-4335, 4342,
4344 ........... 669
Titk 43, § 614 C't seq .. 534
Titk 44, §§ 301, 501,
701 - 741, 901 -910,
1101-1123, 1701-1722. 306
Title 47,
§§ 151, 153, 201-202,
301, 303, ;)07-310,
312, 315, 318, 326,
396, 501........ 94
§ 206 . .. .. .. . .. .. I
Title 47 (Supp. II) ,
§ 315 . . . . . . . . . . . . . . 94
LIV TABLE OF STATUTES CITED
Page
U. S. Code-Continued.
Title 49,
§§ 1, 8-10, 13 ...... 800
§§ 6, 15 ....... 669,800
§§ 13, 316, 318, 907,
1006 ........... 669
§ 16 . . . . . . . . . . . . . 1
Title 50 App., § 473 ... 363
Alien and Sedition Acts.... 94
Buck Act ................. 363
Campaign Communications
Reform Act. . . . . . . . . . . . . 94
Civil Rights Art of 1964. . . 427
Clavton - Act... . . . . . . . . . . . 1
Co;nmunications Act of
1934 ................. 1, 94
Copyright Act. . . . . . . . . . . . 546
Drug Amendments of 1962. 609,
640, 64.5, 655
Drug Listing Act of 1972 ... 645
Economic Stabilization Act
Amendments of 1971. . . . . 958
Economir Stabilization Act
of 1970 ................. 958
Education Amendments of
1972 .................. 427
Emergency School Aid Act. 427
Federal-Aid Highway Act
of 1944 ................. 401
Federal Food, Drug, and
Cosmetic Act ........... 609,
640, 645, 65,5
Federal Tort Claims Act. . . 521
Freedom of Information
Act . . . . . . . . . . . . . . . . . . . 94
Freight Forwarders Act. ... 669
General Allotment Act of
1887 .............. 391,481
Habeas Corpus Act of 1867. 218
Indian Reorganization Act. 481
Internal Revenue Code of
1939,
§§ 23, 113-114 ......... 401
§§ 145, 2707, 3616, 3809. 346
Intnnal Revenue Code of
1954,
§§ 118, 167, 362, 1012,
1015, 1052 .......... 401
Page
Internal Revenue Code of
1954-Continued.
§ 4704 ............... 837
§§ 6065, 7201-7241 ..... 346
Interstate Commerce Act. . 1,
669,800
Labor Management Relations
Act, 1947 .... 67, 84. 958
Labor-:\Ianagemrnt Reporting
and Disclosure Art of
1959 ................. 1, 67
Landrum-Griffin Act. ..... 1, 67
Lanham Act.............. 1
Mai or Crimes Act of 1885 .. 205
Migratory Bird Conservation
Act.. . . .. . .. . . .. .. . 580
Mis~ion Indian Act. ........ 391
:.fotor Carrier Act, 1935. . . 669
~at ional Environmental Policy
Act of 1969 .......... 669
~ational Industrial Recovery
Act ................. 401
National Labor Relations
Act ................. 67, 84
National Transportation
Policv ................. 669
ewspaper Preservation
Act . . . . . . . . . . . . . . . . . . . 94
".\orris-LaGuardia Act ..... 958
Osage Allotment Act. ... , . 391
Postal Reorganization Act.. 94
Radio Act of 1927. . . . . . . . . 94
Reclamation Act of 1902 ... 534
Resource Rrcovery Act of
1970 .................. 669
Revrnue Act of 1936 ... 346,401
Rules of Decisions Act ..... 580
Second Rernnue Act of
1940 .................. 401
Securities Exchange Act of
1934 . . . . . . . . . . . . . . . . . . 1
United States Grain Standards
Act. . . . . . . . . . . . . . . . 800
Universal 2\1i1itary Training
and Service Act. . . . . . . . . 363
Water Carrier Act ......... 669
(B) CoNSTITt:TIO);'S AKD STATUTES OF THE STATES AND THE
DrsTRICT OF CoLUMJJIA
Alabama. J Arkansas.
Code, Tit. 30, § 7 ..... 543 Stat. Ann. § 43-412 ... 430
TABLE OF STATlTTES CITED L\"
Pnge
California.
Fish & Game Code
§§ 8630, 8664, 8686,
12300 ...... . ...... 481
Penal Code § 475:i .... 218
Penal Code § 653h. . . . 546
Connecticut.
Const., Art. III, §§ 4---6. 735
Laws 1971, Pub. Act
No. 5, §§ 122, 126 ... 441
Gen. Stat. Rev. § 10
329 ........... . ... 441
District of Columbia.
Code Ann. § 16-2301 .. 909
Georgia.
Code Ann. § 26 2502
(1935) ............ 17
Code Ann . §§ 26-1902,
27-2534 . . . . . . . . . . . 17
Louisiana. I
Laws 1938, Arts 'os. 68,
151 ............... 580
Laws 1940, Act No.
3 15 ... . ........... 580
Laws 1958, Act No.
278 ............... 580
Civ. Code Ann., Art.
3460 .............. 580
Rev. Stat. §9:5806 ... 580
~foryland.
L!l.ws 1786-1787, Vol. 2,
r. 23 ... . ........... 546
.:\fos.sa cbusetts.
Acts & Resolves 1751.
Vol. 3, c. 19 ........ 540
Mississippi.
Code Ann.§§ 4153-4154.
10265-01, 10265-0 5,
10265-18, 10265-106. 363
Alcoholi c l3evnage Control
Art ............ 363
Mis,onri.
RE>v . Stat. § 544.lls0 ... 430
Oregon.
Rev. Stat.§§ 133.210,
133.550 ............ 291
Rev. Stat. §§ 133.750 ,
133.755, 135.875, 474.-
020 ............... 470
Pennsylvania.
Stats. 1682- 1801, Vol.
10, p. 132 ; Vol. 12,
p. 483 ..... . .. .. ... . 546
South Dakota.
Comp. Laws Ann. § 22-
18--12 ............. 205
Texae.
Comt., Art. III, §§ 26 ,
28 ................ 755
L1ws 1971, 1st Called
Se:s., r. 12 ......... 783
Wiscongin.
Stat. Ann. § 176 .05 .... 507
(C) TREATY
1866, July 19 , 14 Stat. 799 (Treaty between the United States
and the Cherokee :Jntion of Indian~) ...................... 3!)1

OASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 1972
HALL ET AL. v. COLE
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 72-630. Argued March 21, 1973~Decided l\fay 21, 1973
Respondent, expelled from his union for deliberate and malicious
vilification of union management following his resolutions unsuccessfully
condemning that management's alleged undemocratic
actions and shortsighted policies, regained his union membership
in a suit under § 102 of the Labor-Management Reporting and
Disclosure Act (LMRDA) and was awarded $5,500 in legal fees.
The Court of Appeals affirmed. Held:
1. Respondent's suit under § 102 of the LMRDA vindicated
not only his own rights of free speech guaranteed by the statute
but furthered the interests of the union and its members as well.
As a result, the award to respondent of attorneys' fees under
these circumstances comported with the trial court's inherent
equitable power of making such an award whenever "overriding
considerations indicate the need for such a recovery." Mills v.
Electric Auto-Lite Co., 396 U. S. 375, 391-392. Pp. 4-9.
2. The allowance of counsel fees to the successful plaintiff in
a suit brought under § 102 is not precluded by that statutory
provision and, indeed, is supported by the legislative history of
the LMRDA. Pp. 9-14.
3. Under all the facts of the case, the District Court did not
1
2 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
abuse its discretion in awarding counsel fees to respondent.
Pp. 14-15.
462 F. 2d 777, affirmed.
BRENNAN. J .. delivered the opinion of the Court, in which BURGER,
C. J., and DouGLAS, STEWART, BLACKMUN, and PoWELL, .J.J., joined.
WH:ITE, J., filed a dissenting opinion, in which REHNQUST, J., joined,
post, p. 16. :YlARSHALL, J., took no part in the consideration or
decision of the case.
Howard Schulman argued the cause and filed a brief
for petitioners.
Burton H. Hall argued the cause and filed a brief for
respondent.*
MR. JUSTICE BRENNAN delivered the opinion of the
Court.
This case requires us to consider the propriety of an
award of counsel fees to a successful plaintiff in a suit
brought under § 102 of the Labor-Management Reporting
and Disclosure Act of 1959, 73 Stat. 523, 29 U. S. C.
§ 412.1 On August 6, 1962, at a regular meeting of the
membership of petitioner Seafarers International Union
of North America-Atlantic, Gulf, Lakes and Inland
Waters District, respondent introduced a set of resolutions
alleging various instances of undemocratic actions
and shortsighted policies on the part of union officers.
*J. Albert Woll, Laurence Gold, and Thomas E. Harris filed a
brief for the American Federation of Labor and Congrrss of Industrial
Organizations as amicus curiae urging reversal.
Melvin L. Wulf and Sanford J. Rosen filed a brief for the American
Civil Liberties Union as amicus curiae urging affirmancc.
1 Section 102 of the Act, 29 U. S. C. § 412, provides in pertinent
part:
"Any person whose rights secured by the provisions of 1 his ~uhchaptcr
have been infringed by any violation of this subchapter may
bring a civil action in a district court of the United States for such
relief (including injunctions) as may be appropriate."
HALL v. COLE 3
1 Opinion of the Court.
The resolutions ,vere defeated and, on November 26, 1962,
respondent was expelled from the union on the ground
that his presentation of the resolutions violated a union
rule proscribing "deliberate or malicious vilification with
regard to the execution or the duties of any office or job."
After exhausting his intra-union remedies, respondent
filed this suit under § 102 of the LMRDA, claiming that
his expulsion under these circumstances violated his right
of free speech as secured by § 101 (a) (2) of the Act, 29
U. S. C. § 411 (a) (2).2
On May 27, 1964, the United States District Court for
the Eastern District of New York issued a temporary
injunction restoring respondent's membership in the
union, and the United States Court of Appeals for the
Second Circuit affirmed. 339 F. 2d 881 (1965). Some
five years later, the case came on for trial and the District
Court, finding a violation of respondent's rights
under § 101 (a) (2), ordered him permanently reinstated
to membership in the union and, although denying respondent's
darnages claims." granted him counsel fees in
the sum of $5,500 against the union. The Court of
2 Section 101 (a) (2) of the Act, 29 U. S. C. § 411 (a) (2), provides:
"Every m<'mber of any labor organization shall haw the right to
meet and assemble frer.ly with other members; and to express any
views, argument.s, or opinions; and to express at meetings of tlw
bbor organization his views, upon candidates in an election of the
labor organization or upon any bu~iness properly before the meeting,
subject to the organization's Pstahlishcd and reasonable rules pertaining
to the conduct of meetings : Provided, Tha t nothing herein
shall be construed to impair the right of a labor organization to
adopt and enforce reasonable rules as to the rcspon~ibility of every
member toward tlw organization as an institution and to his refraining
from conduct that would interfere with its performane(' of it$
legal or contrartual obligations."
3 In its unrcportrd opinion, the Distriet Court found that respondent
"suffered no loss of wages as a result of his expulsion from
the union." And although respondrnt '·was deprived of his right
4 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
Appeals affirmed in all respects, 462 F. 2d 777 (1972).
"\Ve granted certiorari limited to the questions whether
( 1) an award of attorneys' fees is permissible under
§ 102 of the LMRDA, and (2) if so, whether such an
award under the facts of this case constituted an abuse
of the District Court's discretion. 409 U. S. 1074. We
affirm.
I
Although the traditional American 4 rule ordinarily
disfavors the allowance of attorneys' fees in the absence
of statutory O or contractual authorization, 6 federal courts,
to attend meetings, and run for union office" during the period of
his expulsion, the District Court concluded that "[t]he record is
barren of any proof on which the court might make a determination
of the value of [these rights]." Finally, the court denied respondent's
claim for punitive damages on the ground that the union's
decision to expel respondent was motivated neither by malice nor
bad faith.
4 The American rule, it might be noted, is more restrictive than
the general rule that prevails in most other nations. Sec, e. g.,
Ehrcnzweig, Reimbursement of Counsel Fees and the Great Societ y,
54 Calif. L. Rev. 792, 793 (1966). Many commentators havr argued
for a "liberalization" of the American rule. Sec, e. g., St.oebuck,
Counsel Fees Included in Costs: A Logical Development, 38 U. Colo.
L. Rev. 202 (1966); Ehrenzweig, supra; Kuenzel, The Attorney's
Fee: Why Not a Cost of Litigation?, 49 Iowa L. Rev. 75 (1963);
McCormirk, Counsel Fees and OthC'r Expenses of Litigation as an
Element of Damages, 15 Minn. L. Rev. 619 (1931); Comment , The'
Allocation of Attorney's Fees After Mills v. Electric Auto-Lite Co.,
38 U. Chi. L. Rev. 316 (1971); Note, Attorney's Fees: Where Shall
the Ultimate Burden Lie'?, 20 Vand. L. Rev. 1216 (1967).
5 See, e. g., Clayton Act, § 4, 38 Stat. 731, 15 U. S. C. § 15;
Communications Act of 1934, § 206, 48 Stat. 1072, 47 u. S. C. § 206;
Interstate Commerce Act, § 16, 34 Stat. 590, 49 U. S. C. § 16 (2);
Securities Exchange Act of 1934, §§ 9 (e), 18 (a), 48 Stat. 890, 897,
15 U. S. C. §§ 78i (e), 78r (a).
6 See, e. g., Fleischmann Distilling Corp. v. Maier Brewing Co.,
386 U. S. 714, 717 (1967); Hauemtein v. Lynham, 100 U. S. 483
(1880); Day v. Woodworth, 13 How. 363 (1852).
I'
L.____
HALL v. COLE 5
1 Opinion of the Court
in the exercise of their equitable powers, may award
attorneys' fees when the interests of justice so require.
Indeed, the power to award such fees "is part of the
original authority of the chancellor to do equity in a
particular situation," Sprague v. Ticonic National Bank,
307 U.S. 161, 166 (1939), and federal courts do not hesitate
to exercise this inherent equitable power whenever
"overriding considerations indicate the need for such a recovery."
Mills v. Electric Auto-Lite Co., 396 U. S. 375,
391-392 ( 1970) ; see Fleischmann Distilling Corp. v. Maier
Brewing Co., 386 U. S. 714, 718 (1967).
Thus, it is unquestioned that a federal court may award
counsel fees to a successful party when his opponent
has acted "in bad faith, vexatiously, wantonly, or for
oppressive reasous .. , 6 J. l\foorc. Federal Practice
1T 54.77 [2], p. 1709 (2d ed. 1972); see, e.g., 1Vewman v.
Piggie Park Enterprises, Inc., 390 U. S. 400, 402 n. 4
(1968); Vaughan v. Atkinson, 369 U.S. 527 (1962); Bell
v. School Bd. of Powhatan County, 321 F. 2d 494 (CA4
1963); Roiax v. Atlantic Coast Line R. Co., 186 F. 2d
473 ( CA4 1951). In this class of cases, the underlying
rationale of ''fee shifting" is, of course, punitive, and the
essential element in triggering the award of fees is therefore
the existence of "had faith" on the part of the
unsuccessful litigant.
Another established exception involves cases in which
the plaintiff's successful litigation confers "a substantial
benefit on the members of an ascertainable class, and
where the court's jurisdiction over the subject matter of
the suit makes possible an award that will operate to
spread the costs proportionately among them." Mills v.
Electric Auto-Lite, supra, at 393-394.' "Fee shifting"
• This exception has its origins in the "common fund" cases, which
have traditionally awarded attorneys' fees tu the successful plaintiff
when his representative action cn,atcs or traces a ·'common fund,"
the economic benefit of which is shared by all members of the class.
6 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
is justified in these cases, not because of any "bad faith"
of the defendant but, rather, because "[t]o allow the
others to obtain full benefit from the plaintiff's efforts
without contributing equally to the litigation expenses
would be to enrich the others unjustly at the plaintiff's
expense." Id., at 392; see also Fleischmann Distilling
Corp. v. Maier Brewing Co., supra, at 719; Trustees v.
Greenough, 105 U. S. 527, 532 (1882). Thus, in Mill,s
v. Electric Auto-Lite Co., supra, we approved an award
of attorneys' fees to successful shareholder plaintiffs in
See, e. g., Centro}, Railroad & Banking Co. v. Pettus, 113 U. S. 116
(1885); Trustees v. Greenough, 105 U. S. 527 ( 1882). In Sprague
v. '.!'iconic NationoJ, Bank, 307 U.S. 161 (1939), the rationale of tlwsf
cases was extended to authorize an award of attorneys' fees to a SllC'-
cessful plaintiff who, although suing on her own behalf rather than as
representative of a class, nevertheless established the right of others
to recover out of specific assets of the same defendant through the
operation of stare decisis. In reaching this result, the Court explained
that the beneficiaries of the plaintiff's litigation could be
made to contribute to the costs of the suit by an order reimbursing
the plaintiff out of the defenda.nt's assets from which the beneficiaries
eventually would reco\•er. Finally, in Mills v. Electric Auto-Lite
Co., 396 U. S. 375 (1970), we held that the rationale of these cases
must logically extend, not only to litigation that confer~ a monetary
benefit on others, but also to litigation " 'which corrPcts or prevent~
an abusf which would be prejudicial to thp rights and interests'"
of those others. Id., at 396, quoting Bosch v. 1'.feeker Cooperative
Light & Power Assn., 257 Minn. 362, 356-367, 101 N. W. 2d 423,
427 (1960).
Citing our decisions in Mills, supra, and Newman v. Piggie Park
Enterprises, Inc., 390 U. S. 400 (1968) , respondent contends that
the award of attorneys' fees in this case might also be justified on the
ground that, by surcessfnlly prosecuting this litigation, respondent
acted as a "'private attorney general,' vindicating a policy that
Congress considered of the highest priority." Id., at 402. ::Se,• al~o
Knight v. Auciello, 453 F. 2d 852 (CAI 1972); Lee v. Southern Home
Sites Corp., 444 F. 2d 14:~ (CA5 1971). ln light of our comlusion
with respect to the " common benefit" rationale, however, we have
no occasion to consider that question.
HALL v. COLE 7
Opinion of the Court
a suit brought to set aside a corporate merger accomplished
through the use of a misleading proxy statement
in violation of § 14 (a) of the Securities Exchange
Act of H.l34, 48 Stat. 895, 15 U.S. C. § 78n (a). In reaching
this result, we reasoned that, since the dissemination
of misleading proxy 1wlicitations jeopardized important
interests of both the corporation a11d " 'the stockholders
as a group,'" 8 the successful enforcement of the statutory
policy necessarily "rendered a substantial service to the
corporation and its shareholders." Mills v. Electric Auto-
Lite Co., supra, at 396. Under these circumstances, reimbursement
of the plaintiffs' attorneys' fees out of the
corporate treasury simply shifted the costs of litigation
to "the class that. has benefited from them and that would
have had to pay them had it brought the suit." Id.,
at 397.
The instant case is C'learly governed by this aspect
of Mills. The Labor-Management Reporting and Disclosure
Act of 1959 was based, in part, on a collgressional
finding "from recent investigations in the labor and
management fields, that then• have been a number of
instances of breach of trust, corruption, disregard of
the rights of individual employees, and other failures
to observe high standards of responsibility and ethical
conduct . . . . " W U. S. C. § 401 (b). In an effort
to eliminate these abuses, Congress recognized that it
was imperative that all union members be guaranteed
at least "minimum standards of democratic process
.... " 9 Thus, Title I 10 of the LMRDA-the "Bill
of Rights of Members of Labor Organizations"- ,vas
specifica11y designed to promote the "full and active par-
8 Mills v. Electric Auto-Lite Co., supra, at 392, quoting J. /. Case
Co. v. Barak, 377 U. S. 426, 432 (1964).
9 105 Cong. Rec. 6471 (1959) (Sen. McClellan).
10 29 U. S. C. §§ 411-415.
8 OCTOBER TERM, 19i2
Opinion of the Court 412 U.S.
ticipation by the rank and file in the affairs of the
union," 11 and, as the Court of Appeals noted, the rights
enumerated in Title I 12 were deemed "vital to the independence
of the membership and the effective and fair
operation of the union as the representative of its membership."
462 F. 2d, at 780. See also International Assn.
of Machinists v. 1Vix, 415 F. 2d 212 (CA5 1969); Salzhandler
v. Caputo, 316 F. 2d 445 (CA2 1963).
Viewed in this context, there can be no doubt that, by
vindicating his own right of free speech guaranteed by
§ 101 (a) (2) of Title I of the LMRDA, respondent necessarily
rendered a substantial service to his union as an
institution and to all of its members. When a union
member is disciplined for the exercise of any of the rights
protected by Title I, the rights of all members of the
union are threatened. And, by vindicating his own right,
the successful litigant dispels the "chill" cast upon the
rights of others. Indeed, to the extent that such lawsuits
contribute to the preservation of union democracy,
they frequently prove beneficial "not only in the immediate
impact of the results achieved but in their implications
for the future conduct of the union's affairs."
Yablonski v. United Mine TVorkers of America, 150 U.S.
App. D. C. 253, 2G0, 466 F. 2d 424,431 (1972). Thus, as
in 1'llills, reimbursement of respondent's attorneys' fees
11 American Federation of Musicians v. Wittstein, 3i9 U. S. 1 il,
182-183 (1964).
12 In addition to the Tit. I guarantee of freedom of speech and
assembly involved in this case, 29 U. S. C. § 411 (a) (2), see n. 2,
supra, Tit. I also guarantee~ equal "political" rights to all union
members, 29 U. S. C. § 411 (a) (1); stability and fairness in the
assessment of dues, initiation fees, and other assessment8, 29 C". S. C.
§ 411 (a) (3); the right of all union members to sue and to participate
in litigation, 29 U. S. C. § 411 (a) (4); and procedural fairness
in the discipline process, 29 U. S. C. § 411 (a) (5).
HALL v. COLE 9
1 Opinion of the Court
out of the union trearnry 1
" simply shifts the costs of litigation
to "the class that has benefited from them and
that would have had to pay them had it brought the
suit." Mills v. Electric Auto-Lite Co., supra, at 397.
See also Yablonski v. United Mine Workers of America,
supra; Robin~ v. Schonfeld, 326 F. Supp. 525 (SDNY
1971); Cefalo v. International Union of District 50
United Mine Workers, 311 F. Supp. 946 (DC 1970);
Sands v. Abelli, 290 F. Supp. 677 (SDNY 1968). We
must therefore conclude that an award of counsel
fees to a successful plaintiff in an action under § 102
of the LMRDA falls squarely within the traditional
equitable power of federal courts to award such fees
v,1henever "overriding considerations indicate the need
for such a recovery.'' Mills v. Electric Auto-Lite Co.,
supra, at 391-392.
II
This does not end our inquiry. however, for even where
"fee-shifting" would be appropriate as a matter of equity,
Congress has the power to circumscribe such relief. In
Fleischmann Distilling Corp. v. Maier Breu.ring Co., supra,
for example, we held that § 35 of the Lanham Act, 60
Stat. 439, 15 U. S. C. § 1117, precluded an award of
attorneys' fees as a separate element of recovery in a
suit for deliberate infringement of a trademark. In
reaching that result, we reasoned that, since § 35 "meticulously
detailed the remedies available to a plaintiff
13 Petitioners contend that the payment of counsel fees out of the
union treasury might deplete union funds to such an extent as to
impair the union's ability to operate as an effective collective-bargaining
agent and to endanger union stability. Although this consideration
is undoubtedly an important one, it is relevant, not to
the power of federal courts to award counsel fees gPnerall~-, but,
rather, to the exercise of the District Court's discr<'tion on a case-bycase
basis. See 11. 23, infra.
IO OCTOBER TER~I, 1972
Opinion of the Court 412 U.S.
who proves that his valid trademark has been infringed,"
Congress must have intended the express remedial provisions
of § 35 "to mark the boundaries of the power to
award monetary relief in cases arising under the Act."
Id., at 719, 721. Petitioners contend that this reasoning
dictates a similar conclusion with respect to § 102 of the
LMRDA. \Ve do not agree. Unlike§ 35 of the Lanham
Act. which specifically '·provided not only for injunctive
relief, but also for compensatory recovery measured by
the profits that accrued to the defendant by virtue of his
infringement, the costs of the action, and damages which
may be trebled," 14 § 102 of the LMRDA broadly authorizes
the courts to grant "such relief (including injunctions)
as may be appropriate." 29 U.S. C. § 412. Thus,
§ 102 does not "meticulously detail the remedies available
to a plaintiff," and we cannot fairly infer from the language
of that provision an intent to deny to the courts
the traditional equitable power to grant counsel fees in
"appropriate" situations.
Petitioners argue further, however, that because Congress
expressly authorized the recovery of counsel fees
in §§ 201 (c) and 501 (b) of the LMRDA, 29 U. S. C.
§§ 431 (c), 501 (b), the absence of a similar express provision
in § 102 indicates an intent to preclude "feeshifting"
in suits brought under that section. Sections
201 ( c) and 501 (b) , which are not a part of Title I, deal
with narrowly defined problems under the Act, and
specifically authorize such limited remedies as an examination
of the union's books and records and an accounting.'
0 By contrast, 102 was premised upon the fact
14 Fleischmann Distilh11g Corp. v. llf.aier Brewing Co., supra, at
719.
1
' Section 201 ( c} provides for the award of counsel fees in a suit
brought by a union member to obtain access to union books, records,
and accounts to verify annual financial statements. 29 U. S. C.
§ 431 ( c). Section 501 (b) authorizes '' fee shifting" in a suit brought
HALL v. COLE 11
1 Opinion of the Court
that Title I litigation llccessarily demands that remedies
"be tailored to fit facts and circumstances admitting of
almost infinite variety,'' ,c and !; 102 was therefore cast
as a broad mandate to the courts to fashion "appropriate"
relief. Indeed, any attempt on the part of Congress to
spell out all of the remedies available under § 102 ,vould
create the "danger that those [remedies] not listed might
be proscribed with the result that the courts ,vould be
fettered in their efforts to 'grant relief according to the
m,cessities of the case.' " Gartner v. Soloner, 384 F. 2d
348. 353 (CA3 1967). See Fleischmann Distilling Corp.
v. Ma·ier Brewing Co., supra. Confronted with a virtually
identical situation in Jhlls, we explained that the inclusion
i11 certain sections of thf' SPruritic-s Exchange Act of
1934 of express provisions for recovery of attorneys' fees
"should not be read as denying to the courts the power
to avi:ard counsel fees in suits under other sections of the
Act ,,,-hen circumstances make such an award appropriate
.... " 396 U. S., at 390-391. That reasoning
is equally persuasive today.1
'
Finally, petitioners call our attention to two isolated
comments in the legislative history of Title I-one by
Senator Goldwater in his testimony before a House Comby
a member against a union offirial to recover damage~ or for an
accounting for the benefit of the union on the ground that the official
is violating his duties. 29 U. S. C. § 501 (b).
rn Gartner"· Solo-net, 3S4 F. 2d 348, :-l53 (CA3 1967).
17 Indeed, 1 he Mills reasoning may be particularly appropriate
with re~pect to the LMRDA. As J>rnfes3or Cox has noted, ''be-
<"ausc much of the bill was written on the floor of the PPnnte or
]louse of Reprcscntati,·es and because many sections contain ealrulated
ambiguities or political compromises ... , thr C'ourt~ would
hr· well advised to sCPk out the underlying rational(• \\'itho11t placing
great ernphasi:; upon close construction of the words," Cox, Internal
Affairs of Labor "L"nions TTndcr the Labor Reform Art of 1959, 58
Mich. L. Rev. 819, 852 (1960).
12 OCTOBER TBR'..\J, 1972
Opinion of the Court 412 u. s.
mittee 18 and the other contained in a dissenting statement
to a House Committee Report 19~expressing the
fear that, in the absence of a specific provision for the
award of counsel fees, such relief would be unavailable
in suits brought under § 102. Although these statements
plainly indicate "a feeling by some members of the Congress
that it would have been desirable and prudent to
spell out unmistakably a right to attorney's fees," they
"hardly amount to a definitive and absolute setting of
the Congressional face against the giving of such incidental
relief by the courts where compatible with
sound and established equitable principles." Yablonski
v. United Mine J-Vorlcers of America, 150 lT. S. App.
D. C., at 258, 466 F. 2d, at 429. See Gartner v. Soloner,
supra, at 352. Indeed, both of these comments expressly
favored the allowance of counsel fees in Title I
litigation, and there is no suggestion anywhere in the
18 In his testimony beforr the House Committee on Education and
Labor, after passage of the Senate version of the Ll\.IRDA, Senator
Goldwater stated that "the bill docs not grant [the union membn],
even where successful in his suit, reasonable counsrl freci or other
costs. lt. thus forces him to assume the entire fiuanrial bmden of
the litigation. For an ordinary rank-and-file union member who
is generally a wage worker, such a litigation thus becomes an impossible
finanrial burden." 105 Cong. Rec. 10095 (1959).
19 In oppo.sing the reporting of the Elliott bill, H. R. 8342, 86th
Cong., 1st Sess. (1959) , to the House, th(' nine dissenting lVIembers
of the House Committee on Education and Labor protested that
"1ulndcr that bill the individual member must shoulder the burden
of litigation costs himself." H. R. Rep. No. 741, 86th Cong., 1st
Sess., 95 (1959). At the end of their critirisms of the Elliott bill,
t.he dissenters explained that "[flor the reasons outlined ab1Jve, we
intend to support . . tlw so-called Landrum-Griffin bill (H. R.
8400 and 8401)." Id., at 98. Thus, although thr, enforcement provision.
9 of the Elliott bill and the Landrum-Griffin bill were Yirtually
identical, the dissenters apparently believed that the latter, which
eventually was enacted, allowed the union member to recovrr counsel
fees.
HALL v. COLE 13
1 Opinion of the Court
legislative history that even a single member of Congress
was opposc<l to such relief or desired the words
"such relief . . . as may bP appropriate" to restrict
the historic equity powers of the federal courts. On
the contrary, there arc numerous expressions by sponsors
and other supporters of the Act indicating that
§ 102 was intended to afford the courts "a wide latitude
to grant relief according to the 11ecessities of the case," 20
and "to give such relief as [the court] deems equitable
under all the circumstances." "1
Moreover, the a\vard of attorneys' fees under § 102 is
clearly consonant with Congress' express desire to adopt
"legislation that will afford necessary protection of the
rights and interests of employees and the public generally
.... " 29 U. S. C. § 401 (b). As the Court of
Appeals recognized:
"~ot to award counsel fees in cases such as this
would be tantamount to repealing the Act itself by
frustrating its basic purpose. It is difficult for
individual members of labor unions to stand up
and fight those who are in charge. The latter
have the treasury of the union at their command
and the paid union counsel at their beck and call
while the member is on his own. . . . An individual
union member could not carry such a heavy
financial burden. Without counsel fees the grant of
federal jurisdiction is but a gesture for few union
members could avail themselves of it." 462 F. 2d,
at 780---781.
Thus, it is simply "untenable to assert that in establishing
the bill of rights under the Act Congress intended to
have those rights diminished by the unescapable fact that
20 105 Cong. Rec. 15548 (1959) (Rep. Elliott).
21 Id., at 6717 (Sen. Kuchel). Sec id., at 15864 et seq. (Rep.
O'Hara); see also 29 U. S. C. §§ 413, 523 (a).
14 OCTOBER TER:\J, 1972
Opinion of the Court 412 U.S.
an aggrieved union member would be unable to finance
litigation .... " Gartner v. Soloner, supra, at 355. See
Yablonski v. United Mine Workers of America, supra,
at 259, 466 F. 2d, at 430; Robins v. Schon! eld, 326 F.
Supp., at ,531; Sands Y. Abelli, 290 F. Supp., at 686; rf.
Newman v. Piggie Park Enterprises, Inc., 390 U. S., at
402. We therefore hold that the allowance of counsel
fees to the successful plaintiff in a suit brought under
§ 102 of the LMRDA is consistent with both the Act and
the historic equitable power of federal courts to grant
such relief in the interests of justice.
III
Finally, petitioners maintain that the award of counsel
fees to respondent under the facts of this case constituted
an abuse of the District Court's discretion. Specifically,
petitioners argue that the District Court's finding
that some of respondent's actions "were, in part,
motivated by [his] political a1nbitions for union office"
represents a finding of "bad faith" on the part of respondent.
The District Court clearly rejected the "logic"
of this contention, and we agree. Title I of the LMRDA
was specifically designed to protect the union member's
right to seek higher office within the union,2" and we can
hardly accept the proposition that the exercise of that
right is tautamou11t to "bad faith.'' See Yablonski v.
Cnited Nline Workers of America, supra, at 259-260, 466
F. 2d, at 430-431.
22 In describing to the Senate the various "offenses" for which a
union member could be expelled under then-existing union constitutions,
Senator McClellan pointed out in particular the "offense" of
·'applying for the position of another union man in office." He
observed, with evident sarcasm, that: " A member had bctt<:r not
do that. The officers have squatters' rights. Members had better
not offer any competition. They had better not seek election. They
had better not aspire to the presidency or the secretaryBhip, or they
will be expelled or di~ciplined." 105 Cong. Rec. 6478 (1959) .
HALL v. COLE 15
1 Opinion of the Court
Petitioners also contend that the award of attorneys·
fees in this case was improper because the District Court,
in denying respondent's claim for punitive damages,
found that "the defendants, in good faith, believed that
they had a right to charge and discipline [respondent]
for his actions." It is clear, hov;;ever. that "bad faith"
may be found, not only in the actions that led to the
lawsuit, but also in the conduct of the litigation. And,
as the Court of Appeals 11otcd, the conduct of this particular
litigation was marked by "the dilatory action of
the union and its officers .... " 462 F. 2d, at 780. Moreover,
although the presence of "bad faith" is essential to
"fee-shifting" under a ''punishment" rationale, neither the
presence nor absence of "bad faith" is in any sense dispositive
where attorneys' fees are awarded to the successful
plaintiff under the "common benefit" rationale recognized
in Mills and operative today. Under that theory. counsel
fees are granted, not because of the "bad faith" of the
defendant but, rather, because the litigation confers substantial
benefits on an ascertainable class of beneficiaries.
In that situatio11, the element of "bad faith" of the defendant
is simply one of many considerations best addressed
to the sound diserction of the District Court.23
Under the facts of this case, ,ve cannot say that the District
Court abused that discretion.
The judgment of the Court of Appeals is
Affirmed.
Mn. JuSTICE MARSHALL took no part m the consideration
or decision of this case.
23 Another such con~ideration io. of course, the extent to which
the payment of the plaintiff's counBel fees out of the union treasury
might impair the union's ability to operate effectively. Sec 11. 13,
supra. Here, petitioners do not, and indeed cannot, contend that the
award of only $5,500 would in any sen~c jPopardize union stability.
16 OCTOBER TERM, 1972
WHITE, J ., dissenting 412 u. s.
MR. JUSTICE WHITE, with whom MR. JUSTICE REHNQUIST
joins, dissenting.
I would need a far clearer signal from Congress than
we have here to permit awarding attorneys' fees in
member-union litigation, which so often involves private
feuding having no general significance. The award
of fees in the occasionally successful and meritorious case
will not be worth the litigation the Court's decision will
invite and foster.
CHAFFrn v. STYNCHCO:MBE 17
Syllabus
CHAFFIK v. STYNCHCOMBE, SHERIFF
CERTIORARI TO THE 1,:NITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 71-6732. Argued February 22, 1973-Decided :\lay 21, 1973
Upon retrial following the reversal of his conviction, petitioner was
again found guilty and scntencPd by the jury to a grcatrr term
than had been imposed by the first jury. After cxhau8ting hi,
state court appeals, petitioner was denied habeas corpus on his
claim that imposing a higher sentence on retrial was unconstitutional,
and the Court of Appeals affirmed. Held: The rrndition
of tt higher sentence by a jur~· upon retrial docs not violate the
Double Jeopardy Clause, North Carolina v. Pearce. 39,5 r. S. 711,
719-721, and does not offend the Due Process ClausP as long as thr
jury is not informed of thr prior sentence and tlw se<'ond senkncc
is not otherwise shown to be a produrt of vindirtivenrss. ?\"or
does the possibility of a higher sentence impermissibly "chill" the
exercise of a criminal defendant's right to challenge his first conviction
by direct appeal or collateral attack. Pp. 23-:35.
455 F. 2d 640, affirmed.
PowELL, J., delivered the opinion of the Court, in which BURGEH,
C. J., and WHITE, BI,ACKMUN, and REHNQUIST, JJ., joined. Do1.;GLAS,
J., filed a dissenting statemrnt, post, p. 35. STEWAHT, J., filed
a dissenting opinion, in which 13RENKAN, J., joined, post, p. 35.
MARSHALL, J., filed a dissmting opinion, post, p. 38.
Glenn Zell, by appointment of the Court, 409 r. S.
1123, argued the cause and filed a brief for petitioner.
Richard E. Hicks argued the cause for respondent. On
the brief were Lewis R. Slaton, Joel M. Fe,ldrnan, and
Carter Goode.'"
*David M. l'ack, Attorney General, prose, and Bart C. Durham,
Assistant Attorney General, filed a brief for the Attorney General of
Tennessee as amicus curiae.
18 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
MR. JusTICE PowELL delivered the opinion of the
Court.
A writ of certiorari was granted in this case to consider
whether, in those States that entrust the sentencing responsibility
to the jury, the Due Process Clause of the
Fourteenth Amendment bars the jury from rendering
higher sentences 011 retrials following reversals of prior
convictions. In Xorth Carolina v. Pearce, 395 U. S. 711
( 1969), this Court established limitations on the imposition
of higher sentences by judges in similar circumstances.
While \Ve reaffirm the underlying rationale of
Pearce that vindictiveness against the accused for having
successfully overturned his conviction has no place in
the resentencing process, whether by judge or jury, we
hold today that due process of law does not require
extension of Pearce-typr restrictions to jury sentencing.
I
Early in 1969, petitioner was tried by a jury in a
Georgia state criminal court on a charge of robbery
by open force or violence, a capital offense at that time.
The jury, which had been instructed that it was empowered
to impose a sentence of death, life imprisonment,
or a term of years,' found petitioner guilty and
sentenced him to 15 years in prison. He appealed to the
Georgia Supreme Court, claiming primarily that the trial
judge had given an erroneous jury instruction as to the
1 Petitioner wa,; indirtnl under a statute that provided for the
following range of puni~hm('nf8:
"Robbery by open forre or ,·iolence shall be punished by death,
unless the jur~· recommends mercy, in which event punishment shall
be imprisonment in the penitentiary for life: Provided, however,
the jury in all ease8 may rcr•ommend that the defendant be imprisoned
in the penitentiary for not less than four years nor longer
thnn 20 yrnrs, in the discretion of the court." Ga. Codr Ann
§ 26-2502 (1935), replaced by Ga. Code Aun.§ 26--1902 (1972).
CHAFFI~ v. STYNCHCOl\IBE 19
17 Opinion of the Court
defendant's burden of proving an alibi defense. His
claim was rejected and his conviction was affirmed.
225 Ga. 602, 170 S. E. 2d 426 (1969). Thereafter, he
renewed that claim in a petition for a writ of habeas
corpus to the United States District Court for the
Northern District of Georgia. The District Court found
petitio11cr's contention meritorious, granted the ,vrit, and
ordered him returned to the state court for retrial.
Upon retrial before a different judge and a new jury,
petitioner was again found guilty. A comparison of the
trial transcripts in the two cases indicates that the trials
were similar in most respects. The case ,vas prosecuted
on both occasions by the same State's attorney and the
same prosecution witnesses testified to the facts surrounding
the alleged robbery. Petitioner, however, was represented
by new counsel and, in addition to repeating his
alibi defense, he interposed an insanity defense not offered
at the former trial. New ,vitnesses were called
to testify for both sides 011 this issue. Also, while petitioner
took the stand and made an uns,vorn statement
in each case, his statement at the latter trial was longer
and contained autobiographical information not presented
to the former jury, including an emotional discussion
of his family background, an account of his
religious affiliation, ,iob history, previous physical injuries,
and a rendition of several religious poems and
songs he had written.2
The jury instructions on the permissible range of punishment
were the same at each trial and the prosecutor
at the second trial urged the jury to sentence petitioner
to death, as he had in his closing argument at the prior
trial.3 This time, however. the jury returned a sentence
2 For a detailed description of the unique unsworn-statement
practice in Georgia see Ferguson v. Georgia, 365 U. S. 570 (1961).
3 During oral argument in this Court, counsel disagreed as to
whether tho prosecutor asked for the death penalty at the first
20 OCTOBER TERl'vI, 1972
Opinion of the Court 412 u. s.
of life imprisonment. The parties agree that the jury was
not aware of the length of the sentence meted out by the
former jury. And, although the jury was informed by
one of petitioner's own witnesses that he had been tried
previously on the same charge,4 the jury was not told
that petitioner had been convicted and that his conviction
had been overturned on collateral attack."
Claiming primarily that it was improper for the State
to allow the jury to render a harsher sentence on retrial,
petitioner appealed again to the State Supreme Court.
That court affirmed the lower court's judgment and refused
to alter petitioner's sentence. 227 Ga. 327, 180
S. E. 2d 741 (I 971). He then filed his second application
for habeas relief in the Federal District Court, arguing
that the higher sentence was invalid under Pearce.
trial. Tr. of Oral Arg. 13, 26, 32-33. At the Court's request, counsel
have filed post-argument affidavits on this question. Although the
dosing arguments themselves were not transcribed, the State prosecutor
states that, while his memory is not entirely clear on the
matter, his notes indicate, and his customary practice suggests, that
he asked for the death scnknce at both trials. Any remaining
doubt is foreclosed by the affidavit filed by the attorney who represented
petitioner during thC' first trial. He states unequivocally that
the prosecutor argued "vigorously" in favor of imposition of the
death penalty during the closing argument in that trial.
·1 During the second trial, petitioner's counsel from the first trial
was called to testify in petitioner's behalf in support of his insanity
defense. The substance of his testimony was that he had an ample
opportunity to study petitioner during thf' prf'vious proceedings and
that he was rom·inced that petitioner was suffering from a "mental
defect." He explained that, despite his own evaluation, he acquiesced
in petitioner's request that he not interpose an insanity defense
at that time.
5 At the most, then, the jury might haYe speculated as to whether
11etitioner's retrial was t hr product of a mistrial or of a reversal
of a prior conviction. Indeed, counsel for respondent indicated at
oral argument that Georgia has many more retrials occasioned by
mistrials than retrials following conviction reversals. Tr. of Oral
Arg. 38.
CHAFFIN v. STYI\'CHCOMBE 21
17 Opinion of the Court
The District Court disagreed and declined to issue the
writ. On appeal to the United States Court of Appeals
for the Fifth Circuit, the District Court's judgment was
affirmed in an opinion holding that the higher sentence
received in this case was not violative of due process.
455 F. 2d 640 (1972). Because two other federal courts
of appeals had held to the contrary that Pearce restrictions
are applicable,6 we granted certiorari to resolve the
conflict. 409 U. S. 912 (1972).
II
Georgia is one of a small number of States that entrust
the sentencing function in felony cases to the jury rather
than to the juclge.7 While much has been written on
the questions whether jury sentencing is desirable 8 and
whether it is compatible with the modrrn philosophy
of criminal sentencing that "the punishment should fit
the offender and not merely the crime," WiUiams v. New
° Compare the Fifth Circuit opinion in the instant case (455 F.
2d 640 (1972)}, and CW3ias v. Beto, 459 F. 2d 54 (CA5 1972), with
Levine v. Peyton, 444 F. 2d 525 (CA4 1971), and PendergrW3s v.
Keil, 456 F. 2d 469 (CA6 1972) (pet. for cert. pending, Ko. 71-
1472). State court decisions on this question appear uniformly to
hold Pearce inapplicable to jury resentt>ncing-. Sec cases discussC'd
in Aplin, Sentence Increases on Retrial After North Carolina v.
!'Paree, 89 U. Cin. L. Rev. 427, 430-432 (1970).
7 Georgia is one of 12 State8 that provide for jury sentencing in
at least some categories of nonca.pital felony cases. Aplin, supra,
n. 6, at 429 and n. 10.
8 See, e. g., Stubbs, Jury Sentencing in Georgia-Time For a
Change?, 5 Ga. St. B. J. 421 (1969); Note, Jury Sentencing in Virginia,
5:cl Va. L. Rev. 968 (1967); President's Commission on Law
Enforcement and Administration of Justice, The C'hallengf of Crime
in a Free Society 145 (1967), and American Bar Association Project
on Standards for Criminal .Justice, Sentencing Alternatives and Procedures
§ 1.1 (Approved Draft 1968) (both recommending the abolition
of .i ury sentencing).
22 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
York, 337 U. S. 241, 247 (1949), this Court has never
expressed doubt about the constitutionality of that practice.
See McGautha v. California, 402 U. S. 183, 196-
208 (1971); Witherspoon v. Illinois, 391 U. S. 510, 519-
520 and 11. 15 (1968); Spencer v. Texas, 385 U. S. 554,
560 (1967); Giaccio v. Pennsylvania, 382 P. S. 399, 405
n. 8 (1966). The States have always enjoyed "wide
lee,vay in dividing responsibility betw·een judge and jury
in criminal cases." Spencer v. Tex,,.:;;, supra, at 560. If a
State concludes that jury sentencing is preferable because,
for iustancP. it guarantees the maintenance of a "link between
contemporary community values and the penal
system," 'Witherspoon v. Illinois, supra, at 519 n. 15, or
because "juries are more likely to act with compassion,
fairness, and understanding than the judge," Stubbs.
Jury Seutencing in Georgia- Time For a Chauge?, 5 Ga.
St. B. J. 421, 426 ( 1969) , nothing in the Due Process
Clause of the Fourteenth Amendment intrudes upon that
choice.
Petitioner does not question this proposition. Instead,
he contends that, although the jury may set the
sentence, its range of discretion must be subjected to
limitations similar to those imposed when the sentencing
function on retrial is performed by the judge. While primary
reliance, therefore, is placed on this Court's recent
opinion in Pearce, petitioner asserts three distinct due
process claims: (A) higher sentences on retrial violate
the double jeopardy provision of the Fifth Amendment,
made binding on the States through the Due Process
Clause of the Fourteenth Amendment, Benton v. Maryland,
395 U.S. 784, 793- 796 (1969); (B) higher sentences
occasioned by vindictiveness on the part of the sentencing
authority violate traditional concepts of fairness in the
criminal process; and (C) the possibility of a higher
sentence, even absent a reasonable fear of vindictiveness,
CHAFF!~ v. STYKCHCO:.\'lBE 23
17 Opinion of the Court
has an impermissible "chilling effect" on the exercise of
the rights to appeal and to attack collaterally a conviction.
Each claim will be considered separately.
A
The question presented in Pearce, arising in the context
of judicial resentencing, was framed as follows: "When
at the behest of the defendant a criminal convict.ion has
been set aside and a new trial ordered, to what extent
does the Constitution limit the imposition of a harsher
sentence after conviction upon retrial?" :-395 e. S., at
713. In addressing first the double jeopardy claim, the
Court recognized the long-accepted power of a State "to
retry a defendant who has succeeded in getting his first
conviction set as.iclf,,' ' id., at 720 ( emphasis in original) ;
United States v. Tateo, 377 U. S. 463 ( 1964), and, as a
"corollary" of that power. "to impose ,vhatever sentence
may be legally authorized, whether or not it is greater
than the sentence imposed after the first conviction."
395 U. S., at 720.
The foundational precedent from which the Court's
view of resentencing discretion derives is Stroud v. United
States, 251 U. S. 15 (1919), a case which, because it involved
jury resentencing, is central to the double jeopardy
claim in the present case. Robert Stroud, popularly
known as "The Birdman of Alcatraz," " was indicted for
the murder of a federal prison guard at Leavenworth,
Kansas. After being convicted and sentenced by a jury
to life imprisonment-, he won a retrial upon a confession
of error by the Solicitor General. His retrial resulted in
another verdict of guilty of murder in the first degree
"See T. Gaddis, Birdrnan of Alcatraz ( 1955); R Stroud, Disrasc~
of Canaries (1935); R. Stroud, Digt>st on tlw DisC'a~cs of Binb
(1939); Stroud v. Dnited States, 283 .F. 2d 137 (('AlO 196(}) ,
c·C'rt. dcnif'd. 365 U. S. 864 ( 1961).
2-1- OCTOBER TETI~l, 1972
Opinion of the Court 412 U.S.
and a sentence, again imposed by the jury, of death.
On a direct appeal, a unanimous Court held that despite
the harsher sentence on retrial Stroud had not been
"placed in second jeopardy within the meaning of the
Constitution." Id., at 18.
The Court in Pearce reaffirmed that decision, emphasizing
that it now constitutes a "'well-established part
of our constitutional jurisprudence' " which rests on the
"premise that the original conviction has, at the defendant's
behest, been wholly nullified and the slate wiped
clean." 395 U. S., at 720-721. Petitioner, relying on
the views of MR. JusTICE DouGLAS and Mr. Justice Harlan
expressed in their separate opinions in Pearce, id., at
72fi, 744, urges the Court to overrule Stroud,' 0 a step
which, for the reasons stated in Pearce, we again decline
to take.
B
Petitioner's second contention focuses on the problem
of vindictiveness. In Pearce it was held that vindictiveness,
manifesting itself in the form of increased sentences
upon conviction after retrial, can have no place in the
resentencing process. Under our constitutional system
it would be impermissible for the sentencing authority
to mete out higher sentences on retrial as punishment
for those who successfully exercised their right to appeal,
or to attack collaterally their conviction.u Those
actually subjected to harsher resentencing as a conse-
10 Brief for Petitioner 9; Tr. of Orn! Arg. 40-41.
11 ·while there is no per se ronstitution:11 right to appral, this
Court has frrquently held that onrr a State establishes an appellate
forum it must assure arress to it upon terms and conditions equally
applicable and available to all. North Carolina v. Pearce, 395 U. S.
711, 724 (1969); Griffin v. Illinois, 351 U. S. 12 (1956); Douglas v.
California, 372 U. S. 353 (1963); Rinaldi v. Yeager, 384 U. S. 305
(1966). Seo also Johnson v. Avery, 393 U.S. 483 (1969).
CHAFFIN v. STYNCHCOi\IBE 25
17 Opinion of the Court
quence of such motivation would be most directly injured,
but the \vrong would extend as well to those who elect not
to exercise their rights of appeal because of a legitimate
fear of retaliation. Thus, the Court held that fundamental
notions of fairness embodied within the concept
of due process required that convicted defendants be
"freed of apprehension of such a retaliatory motivation."
ld., at 725. To that end, the Court concluded that
"whenever a judge imposes a more severe sentence upon
a defendant after a new trial, the reasons for his doing
so must affirmatively appear." ld., at 726. And. as a
further prophylaxis, it was stated that those reasons
must be based upon "objective information concerning
identifiable conduct on the part of the defendant
occurring after the time of the original sentencing proceeding."
Ibid.
Petitioner seeks the extension of the Pearce rationale
to jury sentencing. That decision, as we have said, was
premised on the apparent need to guard against vindictiveness
in the resentencing process. Pearce was
not written with a view to protecting against the mere
possibility that, once the slate is wiped clean and the
prosecution begins anew, a fresh sentence may be higher
for some valid reason associated with the need for flexibility
and discretion in the sentencing process. The
possibility of a higher sentence was recognized and accepted
as a legitimate concomitant of the retrial process.
Id., at 723.
Subsequent cases have dispelled any doubt that
Pearce was premised on the hazard of vindictiveness. In
Moon v. Maryland, 398 U. S. 319 (1970) , a case granted
with a view to determining the retroactivity of Pearce,
the Court ordered the case dismissed as improvidently
granted when it became clear that there was no claim
there that the higher sentence received on retrial was
2G OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
a product of vindictiveness on the part of the sentencing
judge. Because counsel for the reconvicted defendant
eschewed that contention, the Court held that
"there is no claim in this case that the due process standard
of Pearce was violated." Id., at 320. A similar
focus on actual vindictiveness is reflected in the decision
last Term in Colten v. Kentucky, 407 r. S. 104 (1972).
The question in that case was whether the Pearce principle
applied to bar the imposition of a higher sentence
after a de novo trial in those jurisdictions that employ
a two-tier system of trial courts. While noting that
"[ilt may often be that the r de novo "appeal" court]
will impose a punishment more severe than that received
from the inferior court," id., at 117, we were shown
nothing to persuade us that "the hazard of being penalized
for seeking a new trial, which underlay the holding of
Pearce, also inheres in the de novo trial arrangement."
Id., at 116 (emphasis supplied). In short, the Due
Process Clause was not violated because the "possibility
of vindictiveness" ,vas not found to inhere in the twotier
system. Ibid.
This case, then, is controlled by the inquiry into possible
vindictiveness counseled by Pearce, 11,,I oon, and
Colten. The potential for such abuse of the sentencing
process by the jury is, we think, de rninimis in a
properly controlled retrial. The first prerequisite for
the imposition of a retaliatory penalty is knowledge
of the prior sentence. It has been conceded in this
case that the jury was not informed of the prior sentence.
We have no reason to suspect that this is not
customary in a properly tried jury case. It is more likely
that the jury will be aware that there was a prior trial,
but it does not follow from this that the jury will know
whether that trial was on the same charge, or whether it
CHAFFIN v. STY~CHCmIBE 27
17 Opinion of tlw Court
resulted in a conviction or mistrial.12 Other distiuguishing
factors betv,'een jury and judicial sentencing further
diminish the possibility of impropriety in jury sentencing.
A.s was true in Collen, the second sentence is not meted
out by the same judicial authority whose handling of
the prior trial was sufficiently unacceptable to have required
a reversal of the conviction. Thus, the jury,
unlike the judge who has been reversed. will have no
personal stake in the prior conviction and no motivation
to engage in self-vindication. Similarly, the jury is unlikely
to be sensitive to the institutional interests that
might occasion higher sentences by a judge desirous of
discouraging what he regards as meritless appeals.'3
12 See n. 4, supra, and accompanying text. See also 11. 14, infra.
13 Finally, depending upon the cirrumstanees, it may be a desirable
precaution for the trial judge to give the same instructions
on the range of punishment at both trials and for the prosecutor
to seek the same sentence in rach case. See n. 3, supra.
It has been suggested that higher senlPnres on retrial might
result from vindictiveness on the pa.rt of the prosecutor. As punishment
for a successful appeal, for instance, a prosecutor might
recommend to the jury, and strenuously argue in favor of, a higher
sentence than hr prrviously sought. Ko such indication exists
on this record since the proserutor vigorously urged the imposition
of the death penalty at the fir,;t trial. In any event, it would be
erroneous to infer a vindic-tiv<· motin, merely from the severity of
the sentence recommended by the pro~ecntor. Prosecutors often
request more than they can reasonably expect to get, knowing that
the jury will customarily arrive at some compromise sentence.
The prosecutor's strateg-y also might well vary from case to case
depending on ~uch factors as his assessment of the jury's reaction
to the proof and to the testimony of witnesses for and against the
State. Given these practical considerations, and constrained by
the bar against his informing the jury of the facts of prior conviction
and sentence, the possibility that a harsher sentence will be
obtained through prosecutorial malice seems remote. Sec Williams
v. McMann, 4~6 F . 2d 103, 105-IOG (CA2 1970).
28 OCTOBER TEIL\1, 1972
Opinion of the Court 412 U.S.
In light of these considerations, and where improper
and prejudicial information regarding the prior sentence
is withheld,14 there is no basis for holding that jury resentencing
po:;,es any real threat of vindictiveness.15
14 The State agreed at oral argument that it would be improper
to inform the jury of the prior sentence and that Pearce might be
applied in a case in which, either because of the highly publicized
nature of the prior trial or because of some other irregularity, the
_iury was ,m informed. Tr. of Oral Arg. 39. \Ve do not decide,
howpvcr, whether improperly informing the jury would always requirP
limitation of the sentence or whether such error might be cured
by carPful questioning of the jury venire or by a cautionary jury
instruction.
15 Because we have roncluded that jury ~cnknring is not susceptible
of the abuse that prompted the Pearce decision, we need not
consider what remedy would be required if jury sentencing were
subjected to Pearce-type restrittions. It is sufficient here to note
that becaus<' t hP institution of jury sentenC'ing is unlike judicial
sentencing in a number of fundamental ways those restrictions may
not be easil:v mvokecl. Norrnall~-, thnr would be no way for a
jur:v to place on the record th<' reasons for its collectin sentencing
determination, and ordinaril~· tllf' resrntencing jury would not be
informed of an~· ronduct of the accused unless relevant to the
question of guilt. Sec N'ote, supra, n. 8, at 978-980; Stubbs, supra,
n. 8, at 428-429; Lafont, Assessment of Punishment-A Judge or
Jury Funetion?, 38 Tex. L. R<'v. 835, 837-842 (1960). These important.
difff'renr'P:' would not tH' entirely O\'erromc by requiring
that jury trials h<' bifurcated as suggested by the Sixth Circuit in
Pendergrass \'. Xeil, 456 F. 2d, :tt 472 (pet. for <·ert. 1wnding, I\o. 71-
1472). While some jur_Y-smtcncing StaH·s haw adopted bifureatc-d
_iury trials, in which the jury a~sesses the punishment in a scpnrate
proceeding after a wrdict of guilty hns been f(•rnkrPd (see Aplin,
supra, 11. G, at 430, 441-442; Ga. Code Ann. § 27-2534 (1972)) , bifurcation
:ilorw would not wipe away the fundameutal differenres betwren
jury and judicial srntPn('ing. It may make little 8ensP to supply the
jury with informntion about the defendant's eonduct if the goal
of jur~- senteneing is not necessarily to fit the punishment to the
offender. nnd if t hr jury is, therefore-, not eoneerncd about matte-rs
rnnsidered pertinent to judicial sentencing.
Petitioner and recent court of appeals cases suggest that an approximation
of thP !'Paree limitations could be realized either by
CHAFFIN v. STYNCHCO.:VIBE 29
17 Opinion of the Court
C
Petitioner's final argument is that harsher sentences on
retrial are impermissible because, irrespective of their
causes and even conceding that vindictiveness plays no
discernible role,1~ they have a "chilling effect" on the
convicted defendant's exercise of his right to challenge
his first conviction either by direct appeal or collateral
attack. What we have said as to Pearce demonstrates
that it provides no foundation for this claim. To the
contrary, the Court there intimated no doubt about the
constitutional validity of higher sentences in the absence
of vindictiveness despite whatever incidental deterrent
effect they might have on the right to appeal. Colten
likewise represents a view incompatible with petitioner's
contention.
Petitioner relies instead on United States v. Jackson,
390 U. S. 570 ( 1968), in which the Court held unconinstructing
the jury that it may return no verdict higher than the
former sentence, or by empowering the judge to reduce the second
sentence whenever it exceeds the former sentence. Sec Levine v.
Peyton, 444 F. 2d 525 (CA.4 1971); Pendergrass v . .V eil. supra.
Although thrsP alternatives would provide an absolute protection
from the possibility of vindictivrncss, the~· would also intNfnf• with
ordinary sentencing discrctiou in a manner morr intrusive than contemplated
by Pearte. They would achieve, in the name of due
process, the substance of the rc8ult we have declined to approvl' under
the Double Jeopardy Clause.
rn During oral argument, Tr. of Oral Arg. 11-12, petitioner's
counsel seemed to conccdf' the absence of an improp<'r motivation
on the jury's part:
"Question. Did the jury know anything about the first trial?
"[Petitioner's Counsel]. No, they did not.
"Question. Was there any possibility of vindictiveness?
"[Petitioner's Counsel]. There is none, obviously not.
"Question. Why not?
"[Petitionn's Counsel]. Becausf" the jury did not know faboutl
the first sentence."
30 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
stitutional the capital punishment provision of the federal
antikidnaping law. By limiting to the jury the power
to impose a death sentence, the statute "discouraged"
the exercise by the accused of his rights to trial by jury
and to plead not guilty. Id., at 581. The Court found
that the interest of the Government in having the jury
retain the power to render the death penalty could be
realized without this imposition on the rights of the
accused. Therefore, the sentencing structure of the
statute was struck down because it "unnecessarily" and
"needlessly chill[ edJ the exercise of basic constitutional
rights." Id., at 582.17
Jackson did not hold, as subsequent decisions have
made clear, that the Constitution forbids every government-
imposed choice in the criminal process that has
the effect of discouraging the exercise of constitutional
rights. In Brady v. United States, 397 U.S. 742 (1970).
Parker v. North Carolina, 397 U. S. 790 (1970), and
North Carolina v. Alford, 400 U.S. 25 (1970), defendants
entered pleas of guilty in order to avoid the potential
imposition of death sentences by a jury. Each was
dissuaded from exercising his rights to a jury trial and
to plead not guilty. Each was, in that sense. "discouraged"
from asserting his rights, but the Court found
no constitutional infirmity despite the claim in each
case that Jackson compelled a contrary result. Brady
is particularly instructive. The Court there canvassed
several common plea-bargaining circumstances in which
the accused is confrontPd with the "certainty or proba-
17 In Brady v. United States, 397 U. S. 742 (1970), the Court
succinctly articulated the narrow holding in Jackson:
"Because the legitimate goal of limiting the death penalty to cases
in which a jury recommends it could be achieved without pP.nn Ji,.ing
those defendants who plead not guilty and elect a jury trial, the
death penalty provision 'ner,dlessly penalize[ d] the assertion of a
constitutional right.'" Id., at 746 (nnphasis supplied).
CHAFFIK v. STY:'{CHCO~IBE 31
17 Opinion of the Court
bili ty" that, if he determines to exercise his right to
plead innocent and to demand a jury trial, he will receive
a higher sentence than would have followed a waiver of
those rights. 397 U. S., at 751. Although every such
circumstance has a discouraging effect on the defendant's
assertion of his trial rights, the imposition of these difficult
choices was upheld as an inevitable attribute of any
legitimate system which tolerates and encourages the
negotiation of pleas.18
Mr. Justice Harlan's opinion for the Court in Crampton
v. Ohio, a companion case to McGautha v. California,
402 U.S. 183 (1971), deals at some length with the constitutional
problems surrounding the imposition of difficult
choices in the crimina.1 process and is of particular
relevance since it arises in the context of jury sentencing.
Petitioner Crampton attacked the Ohio system of conducting
capital trials. Ohio allmved the jury to determine
guilt and punishment in a single trial and a single
verdict, and Crampton complained that due process required
a bifurcated trial because in a single trial he could
not argue his case for mitigation of punishment to the
jury without forgoing his right to remain silent on the
issue of guilt. Id., at 220-221. Thus, the free exercise
of his Fifth Amendment right to remain silent was
"chilled" by the prospect that a harsher jury sentence
might eHsue.19 The Court did not agree, however, that
the burden imposed on that right was impermissible.
18 The legitimacy of the practice of "plea bargaining," as the
Court noted last Trrm in Santobello v. New York, 404 U. S. 257
(1971), has not been doubted and when' "proprrl:v administered"
it is to be "enrournged" as an "essential" and "desirable" "componrnt
of tlw administration of jnstire." Id., at 2fi0- 261. See also
Brady v. United States, supra, a.t 751-753.
19 The ease wa,; argued on the theory that the Ohio single proreeding
created a '·tension between constitutional rights," 402 U. S.,
at 211, sim1br to that involved in Simmom v. United States, 390
U. S. 377 ( 1968). The Court declined to decide thC' ca~e in those
32 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
In terms pertinent to the case before us today, the
Court in Crampton stated:
"The criminal process, like the rest of the legal system,
is replete with situations requiring 'the making
of difficult judgments' as to which course to follow.
. . . Although a defendant may have a right,
even of constitutional dimensions, to follow whichever
course he chooses, the Constitution does not
by that token always forbid requiring him to choose."
J.d., at 213.
Recognizing that the inquiry, by its very nature, must
be made on a case-by-case basis, the Court indicated that
the "threshold question is whether compelling the election
impairs to an a.ppreciable extent any of the policies
behind the rights involved." Ibid. The choice imposed
by the Ohio system was similar to the choice frequently
faced by a criminal defendant in deciding whether to
assert his right to remain silent. And the fact that the
consequence of silence might be a harsher sentence was
not regarded a.s a distinguishing factor.
These cases, we think, erase any question whether
Jackson might call for abrogation of Georgia's unrestricted
jury-resentencing process. Jury sentencing,
based on each jury's assessment of the evidence it hears
and appraisal of the demeanor and character of
the accused, is a legitimate practice. Supra, at 21-22.
Just as in the guilty-plea cases and Crampton, an
incidental consequence of that practice 20 is that it
terms, 402 U. S., at 212-213, but focused instead on the extent to
which the lack of a bifnrrated proceeding created a burden on the
exercise of the right to remain silent., or, stated differently, encouraged
its waiver. Id., a t 213- 217.
2 0 We reiterate that we are dealing here only with the ca.se in
which jury sentencing is utilized for legitimat e purposes and not
as a means of punishing or penalizing the assertion of protected
rights. Jackson and Pearce are clear and subsequent cases have not
CHAFFIN v. STYNCHCOMBE 33
17 Opinion of the Court
may require the accused to choose vvhether to accept
the risk of a higher sentence or to waive his rights.
We see nothing in the right to appeal or the right to
attack collaterally a conviction, even where constitutional
errors are claimed, which elevates those rights
above the rights to jury trial and to remain silent.
Petitioner was not himself "chilled" in the exercise of
his right to appeal by the possibility of a higher sentence
on retrial and we doubt that the "chill factor" will often
be a deterrent of any significance. Unlike the guiltyplea
situation and, to a lesser extent, the nonbifurcated
capital trial, the likelihood of actually receiving a harsher
sentence is quite remote at the time a convicted defendant
begins to weigh the question whether he will
appeal. Several contingencies must coalesce. First, his
appeal must succeed. Second, it must result in an order
remanding the case for retrial rather than dismissing
outright. Third, the prosecutor must again make the
decision to prosecute and the accused must again select
trial by jury rather than securing a bench trial or negotiating
a plea.21 Finally, the jury must again convict
dulled their forcr: if the only objective of a state practice is to
discourage the assertion of constitutional rights it is "'patently
unconstitutional.'" Shapiro v. Thompson, 394 U. S. 618, 631
(1969).
"' A footnote in the Court of Appeals opinion indicates that petitioner
argued in that court that unrestricted jury resentencing would
have an impermissible "chilling effect" on his right to select a jury
trial upon retrial. 455 F. 2d, at 641 n. 7. Although this argument
is not mentioned in his appellate brief in this Court, petitioner's
counsel touched on it briefly at oral argument. Tr. of
Oral Arg. 13-14. What we have said here regarding the collective
force of Pearce, Colten, the guilty-plea cases, and Crampton
should make clear that this rlaim is without merit. Jackson is not
to the contrary. Unlike that case, the choice here is subject to
considerable speculation. Applying Pearce, the judge may or may
not give a sentence as high as the jury might give. More importantly,
the discouraging effect cannot be said to be "needOCTOBER
TERM, 1972
Opinion of the Court 412 U.S.
and then ultimately the jury or the judge must arrive
at a harsher sentence in circumstances devoid of a genuine
likelihood of vindictiveness. While it may not be wholly
unrealistic for a convicted defendant to anticipate the
occurrence of each of these events,22 especially in the
less." 390 U. S., at 583. The parameters of judge- and jurysentencing
power, given the binding nature of Pearce, can only be
ma.do coterminous by either (1) restricting the jury's power of independent
assessment, or (2) requiring jury sentencing in every felony
case irrespective whether guilt is determined by a bench trial or a
guilty plea after reversal of the conviction. Either alternative would
interfere with concededly legitimate state interests, a.nd thus the burden
imposed on the right to trial by jury is no less "necessary,"
post, at 44--46, than the burdens tolerated in Brady and Crampton.
Where the burden of the choice is as speculative as this one is,
surh incursions upon valid state interests are not justified.
22 In pradiC'al terms, as those closest to the i'riminal appellate
process well know (see Hermann, :Frivolous Criminal Appeals, 47
N. Y. U. L. Rev. 701 (1972); Carrington, Crowded Dockets and
the Courts of Appeals: The Threat to the Function of Review and
the National Law, 82 Harv. L. Rev. 542 (1969)), the likelihood that
a convicted defendant will forgo his right to appeal or to attack
collaterally his ronviction has been diminishing in recent years, in
part as a consequence of deC'isions removing roadblocks and disincentives
to appeal. See, e. g., Griffin v. Illinois, 351 U. S. 12
(1956); Douglas v. California, 372 U. S. 353 (1963); Anders v.
California, 386 U. S. 738 (1967); Johnson v. Avery, 393 U. S. 483
(1969); Younger v. Gilmore, 404 U. S. 15 (1971). Available statistical
evidence, from both the federal and state criminal systrms,
demonstrates that the volume> and rate of appeal have risen steadily
over the last few yearn. In a criminal system in which appeal is
the rule rather t ban the exception, the possibility of a higher sentence
is a remote consideration. See American Bar Association
Projert on Standards for Criminal JustiC'c, Criminal Appeals 19-21
(Approved Draft 1970) (''The trend today is clearly toward a much
higher rate of appeal"); Administrative Office of 1 he U. S. Courts,
1972 Annual Report of the Director II-11 (direct criminal appeals iu
1972 up nearly 25% from 1971); Carrington, .~upra, at 545 (approximately
a 200% increase in federal direct criminal appeals from 1959-
1960 to 1966-1967).
CHAFFIN v. STYNCHCO:\iBE 35
17 STEWART, J., dissenting
infrequent case in which his claim for reversal is strong
and his first sentence was unusually low, we cannot agree
with petitioner that such speculative prospects interfere
with the right to make a free choice whether to appeal.
III
Guided by the precedents of this Court, these are the
conclusions we reach. The rendition of a higher sentence
by a jury upon retrial does not violate the Double Jeopardy
Clause. Nor does such a sentence offend the Due
Process Clause so long as the jury is not informed of
the prior sentence and the second sentence is not otherwise
shown to be a product of vindictiveness. The choice
occasioned by the possibility of a harsher sentence, even
in the case in which the choice may in fact be "difficult,"
does not place an impermissible burden on the right of
a criminal defendant to appeal or attack collaterally his
conviction.
Affirrned.
Mr. JUSTICE DouGLAS dissents for the reasons stated in
his dissenting opinion in Moon v. Maryland, 398 U. S.
319, 321 (1970). He also agrees with J\1R. JusTrc1~
STEWART and YlR. JusT1CE MARSHALL that establishing
one rule for rcsentencing by judges and another for resentencing
by juries burdens the defendant's right to
choose to be tried by a jury after a successful appeal.
United States v. Jackson, 390 "C". S. 570 (1968).
MR. JusTICE STEWART, with whom MR. JUSTICE BRENNAN
joins, dissenting.
In North Carolina v. Pearce, 395 U. S. 711, 725, the
Court held that "vindictiveness against a defendant for
having successfully attacked his first conviction must
play no part in the sentence he receives after a new
trial." As I see it, there is a real danger of such vin36
OCTOBER TER'.VI, 1972
STEWART, J ., dissenting 412 U.S.
dictiveness even when a jury rather than a judge imposes
the sentence after retrial. Because the Court today declines
to require any procedures to eliminate that danger,
even though procedures quite similar to those adopted
in Pearce could readily be applied without sacrificing the
values of jury sentencing, [ must dissent.
The true threat of vindictiveness at a retrial where
the jury metes out the sentence comes from the trial
judge and prosecutor. Either or both might have personal
and institutional reasons for desiring to punish a
defendant who has successfully challenged his conviction.
Out of vindictiveness the prosecutor might well ask for
a sentence more severe than that meted out after the first
trial. and a judge by the manner in which he charges
the jury might influence the jury to impose a higher
sentence at the second trial. In the present case, for
example, \vhile the petitioner was sentenced to 15 years'
imprisonment after his first trial, on retrial the prosecutor
asked the jury to impose the death penalty, and the
judge instructed the jurors that they could inflict that
punishment. It is said that the prosecutor and judge
gave the jury the option to impose capital punishment
at the retrial simply as a tactical move to assure that
the petitioner would again receive at least a 15-year sentence.
But it is not inconceivable in this setting that a
prosecutor or a judge might seek to secure a higher sentence
for a defendant in order to punish him for his
successful appeal.*
"The Court finds the possibility of prosecutorial malice "remote."
Ante, at 27. The only basis for that conclusion appears to be
that the prosecutor may have quite innocent strategic reasons for
requesting an increased sentence after a retrial. But that does
not foreclose the possibility that a prosecutor might have quite
vindictive reasons for seeking a more severe penalty, and it underlines
the extraordinary difficulty :t defendant. would have in attempting
to prove a. retaliatory motivation.
CHAFFIN v. STY:'.'l"CHCOlVIBE 37
17 STEWART, J., di~s<'nting
It was to purge that possibility of retaliation that
Pearce required prophylactic measures for judicial sentencing.
Without such procedures, as the Court pointed
out in Pearce, it would be extremely difficult for a defendant
to establish that his higher sentence was the
result of a retaliatory motivation.
I agree with the Court today that some measures are
ill-suited to eliminating the possibility of retaliation in
a case ,vhere the jury imposes the sentence. For example,
the jury ought not to be told that its sentencing
power is limited by the term imposed at the first trial,
for the jury might then impose a less severe sentence
in reaching a compromise verdict. But there is no reason
why the trial judge should not be compelled to reduce
any sentence imposed by the jury after retrial to that
imposed after the first trial, unless he can affirmatively
set forth the kind of reasons required in Pearce for the
increased sentence. "Those reasons must be based upon
objective information concerning identifiable conduct on
the part of the dPfcndant occurring after the time of the
original sentencing proceeding." 395 r. S., at 726.
As in Pearce, that procedure would serve to minimize
the possibility that vindictiveness had played a role in
the sentence a defendant received after a new trial,
and it would free a convicted man from the fear that a
successful challenge to his conviction might lead to a
vindictively imposed harsher sentence after a second trial.
Since this measure would, at the most, reinstate the
sentence imposed by the original jury, none of the basic
purposes served by jury sentencing would be jeopardized.
I also agree with my Brother MARSHALL that allowing
a more severe sentence to be imposed by a jury on retrial,
when that sentence would be impermissible for a judge
to impose, is an infringement upon a defendant's constitutional
right to a jury trial. See United States v. Jackson,
390 U. S. 570. Requiring that a judge reduce a jury38
OCTOBER TERM, 1972
MARSHALL, J., dissenting 412 u. s.
imposed sentence to that imposed after the first trial,
unless he can make the kind of findings required by
Pearce, would eliminate that illegitimate burden upon
a constitutional right.
MR. JusTICE MARSHALL. dissenting.
I cannot agree with the Court that it is permissible
for a jury, but not for a judge, to give a defendant on
his retrial a sentence more severe than the one he received
in his first trial, without specifying particular
aspects of his behavior since the time of his first trial
that justify the enhanced sentence. Such a rule is defective
in two ways. First, the Court acknowledges
that a jury violates the Constitution when it gives such
a defendant a more severe sentence to punish him for
successfully taking an appeal. Ante, at 26-28. Yet.
when the costs, in terms of other values served by juries,
of the methods of preventing, detecting, and remedying
that kind of violation are balanced against the minor degree
to which restrict-ions on jury resentencing impair the
values served by jury sentencing, the need to vindicate
the constitutional right warrants restrictions on juries
similar to those we placed on judges in l\T orth Caroiina
v. Pearce, 395 U. S. 711 (1969). Second, as in United
States v . .Jackson, 390 l.T. S. 570 (1968), the possibility
that a jury might increase a sentence for reasons that
would be unavailable to a judge unnecessarily burdens
the defendant's right to choose a jury tria1. I therefore
respectfully dissent.
I begin with what appears to be common ground. If
the jury on retrial has been informed of the defendant's
prior conviction and sentence, the possibility is real that
it will enhance his punishment simply because he successfully
appealed. The Court apparently agrees, ante, at
27 n. 13, 28- 29, nn. 14-15, and suggests that a variety of
preventive and remedial measures must be taken to minCHAFFIN
v. STYNCHCmrnE 39
17 MARSHALL, J., dissenting
imize that possibility. Those measures, I believe, are
too intrusive on the process of selecting the jury and
insulating its deliberations from inquiry. In Pearce we
devised a remedy for judicial vindictiveness in sentencing
that was broader than the constitutional vice, because
a remedy more closely tailored to the vice would too
severely intrude on the process by which thf' judge made
his sentencing decisions. A similar remedy is justified
for the same reasons in tho case of jury resentencing.
Of course a jury that does not knmv of a prior conviction
and sentence cannot take them into account
when it resentences the offender. But there is a real
possibility that a jury will know of a prior sentence
and will enhance the punishment it imposes out of
vindictiveness as the Court apparently concedes in limiting
its holding to "properly controlled retrial[s] ."
Ante, at 26. And only whell the possibility of vindictiveness
can confidently be said to be de minimi.s can Pearce
be distinguished. Even in Pearce we acknowledged the
difficulty in establishing that sentences ,vere frequently
enhanced out of vindictiveness. 395 U. S .. at 725 n. 20.
Indeed. we could cite only studies that showed that increased
sentences on rcconviction were "far from rare,"
ibid.; we had before us no evidence at all that vindictiveness
actually played a part in a substantial number of
cases \.vhere sentences were increased.'
1 I assume that the Court would treat jury sentencing as it treated
,iudge sentencing in Pearce if it were presented with tlH· samP kiud
of evidence we drew on in I'earre. Cf. Witherspoon v. Illinois, 391
U. S. 510, 516-518 ( 1968). Because of the differing institutional
positions of judges, who will be repeatedly reviewed by appellate
courts, and juries, which are not continuing bodies, d. Illinois v.
Somerville. 410 C. S. 458, 477 (1973) (:.\IARSHALL, .J. , dis~enting},
evidence supporting tlw infrrcnee that vindictiveness may not infrequently
influence jury derisions would lw cspPcially valuable from
cases in which the evidenre on retrial wns not ~ubstantially different
from the evidence at the first trial.
40 OCTOBER TERM, 1972
MARSHALL, ,J.. dissE:'nting 412 u. s.
Given the possibility of vindictiveness, a defendant is
entitled to a remedy designed to eliminate, or at least
minimize, that possibility. It follows, I believe, that
the defense is entitled to have prospective jurors asked
carefully framed questions designed to explore their
knowledge of a prior conviction and sentence. Cf. Ham
v. South Carohna, 409 F. S. 524 (I 973). But it ·will
inevitably be difficult to frame questions that will do
so without informing the jurors of those facts in the
very act of questioning them. In addition, the right to
have questions asked of prospective jurors would be
meaningless unless the defense could challenge jurors
for cause solely on the basis of the answers to those
questions. Yet nearly all of the States in which jury
sentencing is required have large rural areas, 2 where it
is quite likely that a retrial after a successful appeal will
be a notorious public event. It seems to me probable,
then, that the right recognized by the Court will substantially
impede expeditious selection of juries, for it
will generally be easy to make a threshold showing of local
publicity, and may often so severely limit the number
of available jurors as to raise serious questions of the
representativeness of the jury finally chosen.3
The Court suggests that a curative instruction might
minimize the possibility that the jury will be improperly
influenced by its knowledge of a prior conviction or
2 In addition to Georgia, theBc States include Arkansas, Kentucky,
Missouri, Oklahoma. Tennessee, and Virginia.
3 Even on the Court's analysis, if a defendant must proceed to
trial before a jury that knows of his prior conviction and sentence,
due process would require limitations on the sentence imposed, though
such limitations would not be required in "properly controlled
retrial Ls]." Thus, the Court dof's not today endorse the proposition
that limitations on jury sentencing on a retrial are never required.
See ante, at 28 n. 14. At most, it holds only that, in the absence
of knowledge of the prior conviction and sentence, no limitationi,
are constitutionally compelled.
CHAI1'FIN v. STYKCHCO.MBE 41
17 MAR!'\HALL, J., dissent.ing
sentence. Ante, at 28 n. 14. ,ve have already recogni7.ed,
however, that it is quite unrealistic to believe that instructions
to disregard evidence that a jury might treat
in a manner highly prejudicial to a defendant will often
be followed. Jackson v. Denno, 378 U. S. 368, 388-389
(1964); Bruton v. United States, 391 1). S. 123, 128- 137
(1968). Cf. E. Morgan, Some Problems of Proof Under
the Anglo-American System of Litigation 105 (1956).
And curative instructions may serve only to highlight
the problem. Not every such instruction is ineffective,
of course, but I would not burden the judicial process
with difficult inquiries into the effectiveness of such an
instruction ,vhere, as here, the State's interest in having
sentences imposed by a jury can easily be satisfied without
requiring such inquiries. See infra, at 43.
Finally, a post-sentencing inquiry of a jury that imposes
a more severe seutence might disclose that vindictiveness
played no part in its sentencing decision. But
this could be achieved only by sacrificing the traditional
secrecy of jury deliberations. Cf. Clark v. United States,
289 U. S. 1 ( 1933), and cases cited therein.
Because of the differing institutional positions of judge
and jury,4 and because the jury that sentences also con-
• The Court distinguishes Pearce from this case in part on the
ground that there "the second sentence Lw as] meted out by the
same judicial authority whose handling of the prior trial was sufficiently
unacceptable to have required a reversal of the conviction,"
while here "the jury, unlike thf' judge who has been reversed, will
lia.ve no personal stake m thr prior conviction and no motivation
to engage in self-vindication." Ante, at 27. The Court cannot
mean that Pearce himself was rcsentenred by the same judge who
sentenced him in the first place, for Pearce was tried before two
different judges. See State v. Pearce, 266 K. C. 234, 236, 145 S. E.
2d 918, 920 (1966) (.Tudgc "Williams at first trial); State v. Pearce,
268 K. C. 707,708, 151 S. E. 2d 571,572 (1966) (.Tudge IVIcLaughlin
at second trial). Thus, the only differrnces in this rcspc>ct are institutional,
not personal: juries are not continuing bodies and may
have little interest in deterring appeals or vindi<'ating a ('()llPague.
42 OCTOBER TERJ\I, 1972
MARSHALL, .T., dissenting 412 U.S.
victs and so focuses on the facts of the offense, the question
of applying the limitations imposed by Pearce on
resentencing by judges to resentencing by juries would
surely be a close one, if only the issue of possible vindictiveness
were involved. Since no state interests in
jury sentencing would be impaired to any significant degree
by imposing such limitations, however, the question
should be resolved in favor of limiting the jury's power.
One group of policies underlying jury sentencing derives
from the belief that juries will be more humane
and compassionate than judges: judges, it is said, represent
a centralized government remote from the details
of local life; judges who often must seek re-election may
be unduly swayed by political considerations that have
little impact on jurors; and judges who routinely deal
with criminal cases may become callous and insensitive
to the human problems of defendants. In contrast, the
jury has close ties to the local community, and because it
sits only once and then dissolves, its members ordinarily
have little experience with criminal offenders. Cf.
Note, Jury Sentencing in Virginia, 53 Va. L. Rev.
968, 988--991 (1967). It is somewhat anomalous, however,
to contend that because juries are more compassionate
than judges, they may impose a sentence more
severe than a judge may constitutionally impose. I cannot
understand, therefore, how the belief that juries are
more compassionate than judges justifies a rule that permits
a jury on retrial to impose a sentence more severe
than that imposed by the original jury.
The second policy implicated in jury sentencing is that
the jury serves as a "link between contemporary community
values and the penal system," Witherspoon v.
Illinois, 391 U. S. 510, 519 n. 15 (1968). More accurately
than a judge, the jury reflects the community's
moral attitude toward the particular offender. The jury's
function in sentencing, then, is to make the punishment
CHAFFIN v. STYNCHCOMBE 43
17 MARSHALL, J., dis.senting
fit the crime, not the criminal. Limitations on the sentences
a jury might impose do impair its ability to decide
what punishment fits the crime before it. But in cases
like this one, one jury has already determined what it, as
a representative of community views, thinks is an appropriate
sentence. Indeed, it has done so after a trial in
which reversible error, presumably prejudicial to the
defendant, occurred. Thus, this state interest is not
substantially impaired by limitations designed to preclude
the second jury from imposing a sentence based,
in part, on a desire to punish the defendant for taking
an appeal.
In short, even if only the question of vindictiveness
were involved in the case of jury resentencing, I would
hold that limitations similar to those in Pearce must be
imposed on jury resentencing: alternative methods of
minimizing vindictiveness may seriously impair other
values, and the limitations of Pearce do not greatly affect
the values served by jury sentencing." But vindictiveness
alone is not the only issue here. For, by establish-
5 The Court suggests that. th(' limitations of Pearce cannot easily be
adapted to jury sentencing. Ante, at 28-29, n. 15. But procedures
like bifurcation. special verdicts sta1ing the reasons for the sentence
imposed or stRting that the prior convirtion and sentence were not
taken into account, instructing the jury that thr maximum sentence
available to it is that imposed earlier, or empowering the judge to
reduce the sentf'ncc if it exceeds t he prior sentence, are some obvious
alternativf'.'!. The Court suggests that the first two are inconsistent
with the basic purpose of jury sentencing~making the
punishment fit the crime---and that thf' latter two "would achieve,
in the name of due process, the substance of the re.suit we have
declined to approve 11nder thr Double .Jeopardy Clausr." Ante. at 29
n. 15. The latter point confuses limitations imposf'd by the Constitution
with rhoices a State might make to carry 011t the policies it seeks
to vindicate through jury sentencing; if a State chooses to impose
a maximum limit on resentencing instead of establishing a bifurcated
procedurr, for example, th!' result is not, even in substance, the
result urged undf'r the Double Jeopardy Clause, for it results from
44 OCTOBER TERM, 1972
:MARSHALL, .T ., dissenting 412 U.S.
ing one rule for sentencing by judges and another for
sentencing by juries, the Court places an unnecessary
burden on the defendant's right to choose to be tried by
a jury after a successful appeal.
We held unconstitutional in Unite.d States v. Jackson,
390 U.S. 570 (1968), a sentencing structure that placed
an unnecessary burden on a defendant's right to a jury
trial. The Court today purports to distinguish Jackson
on the ground that subsequent cases show that Jackson
does not make unconstitutional sentencing structures
that impose a burden on the exercise of constitutional
rights as "an incidental consequence." Ante, at 32. Yet
in Jackson we said, "The question is not whether the
chilling effect is 'incidental' rather than intentional; the
question is whether that effect is unnecessary and therefore
excessive." 390 U. S .. at 582. Brady v. United
States, 397 U. S. 742 (1970), and Crampton v. Ohio, 402
U. S. 183 ( 1971), the cases that the Court now relies on,
did not overrule Jackson; nor did they change the constitutional
test. The question is still whether the burden
on the exercise of the right to be tried by a jury is necessary,
not whether it is only incidental to the accomplishment
of some legitimate state purpose.
In Brady, a defendant sought to vacate his guilty plea
on the ground that he had pleaded guilty only to avoid
capital punishment, under a statute that provided for
the death penalty only on the recommendation of the
Jury. The Court viewed his argument as applicable to
choice among alternatives and not from constitutional commands.
Similarly, bifurcation may inject into jury sentencing considerations
that the State thinks are irrelevant to its purposes in establishing
a system in which juries are the sentencing authority, and it may
decide to adopt some other method of complying with the constitutional
requirements. But surely there is no clear conflict between
bifurcation or special verdicts and the purposes of jury
sentencing.
CHAFFIN v. STYNCHCOMBE 45
17 .MARSHALL, J., dissrnting
every kind of inducement that the prosecution offers to
a defendant in order to elicit a plea of guilty. See 397
U. S., at 750--753. Thus, on the Court's analysis, upholding
his challenge would have necessarily invalidated
the widespread practice of plea bargaining, which the
Court thought essential to our system of criminal justice.
The burden on the exercise of a defendant's right not to
incriminate himself was therefore necessary, in the terms
of the analysis required by Jackson.
Similarly, the defendant in Crampton contended that
failure to separate the trial of a capital case into a guiltdetermining
phase and a sentencing phase deterred him
from testifying to facts bearing on sentence alone, for
to testify would have opened him up to impeachment and
to questions bearing on guilt. To the Court, however,
such pressure was indistinguishable from that placed on
him by a very powerful case for the prosecution that
might require rebuttal, or by a large number of other
widely accepted procedural rules. See 402 U. S., at 213-
216. As in Brady, then, the Court could not agree with
the defendant without holding unconstitutional many
procedures that it thought essential to the criminal
process.
Both Brady and Crampton applied the test of necessity.
The Court today does not. as it concedes when
it says that "r where] the burden ... is as speculative
as this one is," constitutional limitations on resentencing
are not justified. Ante, at 34 n. 21. But Jackson,
Brady, and Crampton did not involw assessments of the
relative severity of the burden on the right to choose to be
tried by a jury; 6 they turned on the question of strict
G Georgia permits a defendant to plead not guilty and waive his
right to jury trial. See Berry v. State, 61 Ga. App. 315, 6 S. E. 2d
148 (1939). Of the States with jury sente1wing, apparrntly only
Kentucky does not permit such a waiver. Sec Meyer v. Commonweal,
th, 472 S. \V. 2d 479, 482 (Ky. 1971). Where the prosecution
46 OCTOBER TERl\1, 1972
::VlARSHALL, .T., dissenting 412 u. s.
necessity.' No legitimate state interest is materially advanced
by permitting a second jury to enhance punishment
without limitations like those placed by Pearce on
judge's, and such limitations would not substantially affect
any such interest. Thus, the rule endorsed by the Court
today is not only unnecessary, but it unquestionably burdens
a defendant's choice of jury trial after a successful
appeal."
I believe that Pearce and Jackson require that States
with jury sentencing adopt procedures by which juries
resentencing an offender are precluded from considering
the fact that the off ender successfully appealed in determining
the new sentence, and so I dissent.
must agree to such a waiver, rf. Fed. Rule Crim. Proc. n (a), it
would of course be impermis~ible to refuse agreement solely because
a judge would be re~trirt.cd in resc>ntencing while a jury would not,
cf. Singer v. United States, 380 U. S. 24, 37 (1965).
7 In discussing whether the holding today burdens the right to
appeal, the Court says that for tlw undesired outcome to occur,
"[s]cveral contingencies must coalesce." Thus, "the likelihood of
actually receiving a har8her ~entewe is quite remote at the time
a convicted defendant begins to weigh the question whether he will
appeal." Ante, at 33. But, of the list the Court provides, only
two remain rontingent when the defendant must decide to waive
or insist upon a jury trial-reccnvic-tion and sentence. The Court
acknowledges that in some rases, rwn whrn all the contingencies
must be taken into arrount, the possibility of a harsher sentence
might well affert the derision to appeal. Ante, at 34-35. The
burden will surely be substantial when the eontingencies are reduced
to two.
The Court, in its footnote discussing this argument, does assert
that the burden "cannot be said to be 'needless.'" Ante, at 3:~-34, n. 21.
The sentence> following that assertion docs not supply any reason
why the burden is necessary; it simply statc>s two ways in which
the burden might be eliminated without saying why those alternatives
are so impractical as to make ne<'cssary the burden that
after today's derision, may br placed on the right to j ury trial.
MICHIGAN v. PAY~E 47
Opinion of the Court
MICHIGAN v. PAY~E
CERTIORARI TO THE SUPRE~fE COURT OF MICHIGAN
No. 71-1005. Argued February 22, 1973-Deridrd ]\.fay 21, 1973
The "prophylactic" due 11rocess limitations established by North
Carolina v. Pearce, 39.5 U. S. 711, 723-726, to guard against the
possibility of vindirtivenC'~~ in cases where a judge imposes a more
severe sentence upon a dcfrndant after a new trial, arP not retroactively
applicable to rcs('Iltencing proceedings that, like the one
involved in this case, occurred prior to the date of the Pearce
decision. Pp. 50-57.
386 Mich. 84, 191 ~- W. 2d 375, revrrsrd and remanded.
PowELI,, J., delivered the opinion of the Court, in which BURGER,
C. J., and BRENNAX, 'WHITE, Bl,ACKMUN, and RBIINQUIST, J,J.,
joined. DOUGLAS, .T., filed a dissenting opinion, post. p. 58. ::vlARSHALL,
,J., filed a dissenting opinion. in l'arl Ill of which 8n:wAHT, .T.,
joined, post, p. 59.
John A. Smietanka argued the cause for petitioner.
With him on the briefs were Frank J. Kelley, Attorney
General of Michiga11, Robert A. Derengoski, Solicitor
General, and Ronald J. Taylor.
James R. Xeuhard argued the cause for respondent.
1Vith him on the brief was Arthur J. Tarnow.
MR. JUSTICE POWELL delivered the opinion of the
Court.
A writ of certiorari was granted in this case, 409 U. S.
911 (1972), to decide whether the due process holding of
North Carolina v. Pearce, 395 U.S. 711, 723-726 (1969),
is to be given retroactive effect. For the reasons that
follow, we hold today that this decision is nonretroactive.
I
Respondent, Leroy Payne, pleaded guilty in a county
circuit court in Michigan to a charge of assault with
intent to commit murder in connection with an armed
48 OCTOBER TERNI, 1972
Opinion of the Court 412 U.S.
attack upon two sheriff's deputies. In March 1963 he
was sentenced to a prison term of from 19- to 40 years.
Several years later, respondent's conviction and sentence
were set aside ·when a hearing, ordered by the Michigan
Court of Appeals, disclosed that his confession and subsequent
guilty plea were involuntary. Following a retrial,
at which he exercised his rights to trial by jury and
to plead innocent, respondent again was found guilty on
the same assault charge. On August 30, 1967, he was
resentenced to prison from 25 to 50 years with full
credit for all time served under the prior sentence. During
the resentencing hearing, the judge explained that
the higher sentence was "based on the nature of the
crime and on the impressions which I formed of [respondent]
and of the crime."
Respondent appealed to the Michigan Court of Appeals.
which affirmed his conviction and approved the
higher sentence. 18 :Mich. App. 42, 170 N. W. 2d 523
(1969). While the case was pending before the Michigan
Supreme Court, the trial judge who had presided
over respondent's second trial was requested to submit
an affidavit detailing his reasons for imposing a
higher sentence. The judge's affidavit stated that his
sentencing determination was based primarily on (i) his
personal belief that respondent's attitude since the first
sentencing proceeding had changed from one of regret to
remorselessness, (ii) his view that respondent's alibi defense,
given under oath, was a "tissue of lies," and
(iii) his heightened opportunity to learn of the details
of the crime during the three-day trial.1
1 In his affidavit, the second sentencing judge indicated that a
different judge who presided over respondent's prior guilty plea and
sentencing hearings did not have as good an opportunity to become
fully informed of the details of the "deliberate, cold-bloodrd attack."
In a rnbsequent amendatory affidavit filed by the simH' judge, he
corrected his prior affidavit by sta ting that the first judge did
:MICHIGAK v. PAYNE 49
47 Opinion of the Court
The Michigan Supreme Court, in a 4-to-3 decision,
upheld the conviction but rejected the higher sentence as
violative of the due process restrictions established in
North Carolina v. Pearce, supra. 386 Mich. 84,191 N. W.
2d 375 (1971). The court recognized that this Court
had not yet decided whether Pearce applied to resentencing
proceedings which, as in this case, occurred prior to
Pearce's date of decision.2 While declining to predict
how the retroactivity question would ultimately be resolved,
the Michigan Supreme Court decided to apply
Pearce to the case then before it "pending clarification"
by this Court. Id., at 90 n. 3, 191 N. W. 2d, at 378 n. 2.
Before this Court, the State contends that Pearce should
not be applied retrospectively, but that, even if applicable,
the state supreme court erred in holding the higher sentence
invalid under the Pearce test. Because we hold
today that Pearce does not apply retroactively, we do not
reach the State's second contention.3
have "some limited opportunity to see and hear [respondent]
when he testified as a witness for the prosecution against his accomplice"
in a separate trial. The parties in this case now agree that
the first judge did preside over the trial of respondent's codefrndant
before senteneing respondent and that respondent did testify at that
trial. The parties continue, however, to dispute whether that opportunity
was as complete as the opportunity afforded the second judge,
and, if not, whether this is a permissible consideration in resentencing
under Pearce. Because of the manner in which we dispose of this
ca~c, we need not resolve this ('Qntrov!'fsy. Sec n. 3, infra.
2 This Court has twice previously granted certiorari to resolve this
question, but on each occasion the writ was dismissed as improvidently
granted. Moon v. 1',Iaryland, 398 U. S. 319 (1970) (cert.
granted, 395 U. S. 975 (1969)); Odom v. United States, 400 U.S.
23 (1970) (cert granted, 399 P. S. 904 (1970)).
3 This Court has consistently declined to rea<'h out to resolve unsettled
questions regarding the S('Qpe or meaning of dcri~ions establishing
"new" constitutional requirements in cases in which it holds
any such decisions nonretroaetive. Sec Stovall v. Denno, 388 U. S.
293 (1967) (holding United States v. Wade, 388 U. S. 218 (1967),
.'50 OCTOBER TER:VI, 1972
Opinion of the Court 412 u. s.
II
In Pearce, the Court emphasized that "[i] t can hardly
be doubted" that, while "there exists no absolute constitutional
bar to the imposition of a more severe sentence
upon retrial," it would be entirely impermissible for
judges to render harsher penalties as punishment for
those defendants who have succeeded in getting their
convictions reversed. 395 U. S., at 723. "[Vlindictiveness"
against a defendant for having exercised his
rights to appeal or to attack his conviction collaterally,
the Court held, "must play no part in the sentence [a
defendant] receives after a new trial." Id., at 725. In
so holding, the Court recognized that "fundamental
notions of fairness embodied within the concept of
due process" absolutely preclude the imposition of sentences
based upon such a " 'retaliatory motivation.'"
Chaffin v. Stynchcombe, ante, at 25. :No "new" constitutional
rule was thereby established and it cannot
be questioned that this basic due process protection arand
Gilbert v. California, 388 U. S. 263 (1967), nonrctroactive without
resolving the question whether those cases were applicable to preformal
accusation confrontations, a question later decided in Kirby
v. Illinois, 406 U. S. 682 (1972)); DeStefano v. Woods, 392 U.S.
631 (1968) (holding Duncan v. Louisiana, 391 U. S. 145 (1968),
and Bloom v. Illinois, 391 U. S. 194 ( 1968), nonrctroactivc and
declining to decide whether a summary contempt proceeding that
results in a one-year sentence is a '·serious" offense requiring trial
by jury, a question later decided in Bal,dwin v. l'-.few York, 399 U. S.
66 (1970)); Carcerano v. Gladden (a ('Ompanion case with DeStefano,
in which the Court dcdined to decide whether the right to jury trial
contemplated by Duncan also required a unanimous verdict, a question
later decided in Apodaca v. Oregon, 406 U. S. 404 (1972));
Elkanich v. United States (a companion case with Williams v. United
States, 401 U.S. 646 (1971), holding Chimel v. Cai,ijornia, 395 U.S.
752 (1969), nonretroactive and declining to decide whether the search
was otherwise rompatible with the Chime/ limitations on searches
incident to lawful arrests).
MICHIGAN v. PAYNE 51
47 Opinion of the Court
ticulated in Pearce is available equally to defendants
resentenced before and after the date of decision in that
case. On this point the parties do not disagree.
The dispute in this case centers, instead, around the
"prophylactic" • limitations Pearce established to guard
against the possibility of vindictiveness in the resentencing
process. Those limitations, applicable "whenever a
judge imposes a more severe sentence upon a defendant
after a new trial," 39'5 U. S., at 726, require that the
sentencing judge's reasons "must affirmatively appear,"
and that those reasons "must be based upon objective
information concerning identifiable conduct on the part
of the defendant occurring after the time of the original
sentencing proceeding." Ibid. The question here is
whether these restrictions govern resentencing proceedings
predating Pearce.
The contours of the retroactivity inquiry have been
clearly delineated in numerous decisions over the last
decade. The test utilized repeatedly by this Court to
ascertain whether "new" constitutional protections in the
area of criminal procedure are to be applied retroactively
calls for the consideration of three criteria: "(a) the
purpose to be served by the new standards, (b) the extent
of the reliance by law enforcement authorities on the old
standards, and ( c) the effect on the administration of
justice of a retroactive application of the new standards."
Stovall v. Denno, 388 U.S. 293,297 (1967). See
also Linkletter v. Walker, 381 U.S. 618, 629, 636 (1965);
Tehan v. Shott, 382 U. S. 406, 410-418 (1966); Johnson
v. .Y ew Jersey, 384 U. S. 719, 726-727 (1966).
The two purposes for the resentencing restrictions imposed
by Pearce were to ensure (i) "that vindictiveness
against a defendant for having successfully attacked his
first conviction ... [ would] play no part in the sentence
• Chaffin v. Stynchcombe, ante, at 25; Colten v. Kentucky, 407 U. S.
104, 116, 118 (1972).
52 OCTOBER TERM, 19i2
Opinion of the Court 412 U.S.
he receives after a new trial ... " and (ii) that apprehension
of such vindictiveness would not "deter a defendant's
exercise of the right to appeal or collaterally
attack his first conviction .... " 395 U.S., at 725; Coiten
v. Kentucky, 407 U. S. 104, 116 ( 1972). The latter purpose
is not pertinent to this case, since respondent was
not deterred from exercising his right to challenge his
first conviction. But, in any event, we think it clear
that this function of the ne\v resentencing rules could
be served only in futuro: nothing in Pearce suggests that
the Court contemplated that its decision might provide
a ground for the untimely reopening of appeals by defendants
who decided not to appeal prior to the date of
decision in Pearce.5 See James v. Copinger, 441 F. 2d
23 (CA.4 1971).
The first-articulated purpose of the Pearce rules-to
protect against the possibility that actual vindictiveness
will infect a resentencing proceeding-deserves closer
scrutiny. Unlike the purposes underlying many of the
decisions heretofore accorded retrospective application,°
this purpose does not implicate the " 'fair determination'
of ... guilt or innocence." Roberts v. Russell, 392 U. S.
293, 294 (1968) (emphasis supplied). It does, however,
involve questions touching on the "integrity" of one
aspect of the judicial process. McConnell v. Rhay, 393
U.S. 2, 3 (1968). The Pearce restrictions serve to ensure
5 This is not to suggest, of course, that there may not be specific
cases in which a convicted defendant might show that his initial
waiver of his right. to appeal was involuntary because caused by a
reasonably based fear of actual vindirtive1wss on the part of a particular
judge. Cf. North Carolina v. Pearce, 395 F. S., at 725 n. 20.
6 Sec, e. g., In re Winship, 39i F. S. 358 (1970) (hdd retroactive
in Ivan V. v. New York, 40i U.S. 203 (19i2)); Barber v. !'age, 390
U. S. 719 ( 1968) (held retroactive in Berger v. California, 393 U. S.
314 (1969)); Bruton v. United States, 391 U. S. 123 (1968) (held
retroactive in Roberts v. Russell, 392 U. S. 293 (1968)); Gidl'on v.
Wainwright, 372 U.S. 335 (1963).
MICHIGAN v. PAYNE 53
47 Opinion of the Court
that resentencing decisions will not be based on improper
considerations, such as a judge's unarticulated resentment
at having been reversed on appeal, or his subjective
institutional interest in discouraging meritless appeals.
By eliminating the possibility that these factors might
occasion enhanced sentences, the Pearce prophylactic
rules assist in guaranteeing the propriety of the sentencing
phase of the criminal process. In this protective role,
Pearce is analogous to Miranda v. An:zona., 384 U. S.
436 (1966), in which the Court established rules to govern
police practices during custodial interrogations in order
to safeguard the rights of the accused and to assure the
reliability of statements made during those interrogations.
Thus, the prophylactic rules in Pearce and
11-fi randa. are similar in that each ,.vas designed to preserve
the integrity of a phase of the criminal process. Because
of this similarity, we find that Johnson v. New
Jersey, 384 U. S. 719 (1966), which held Miranda. nonretroactive,
provides considerable guidance here. See
also Jenkins v. Delaware, 395 e. S. 213 (1969).
It is an inherent attribute of prophylactic constitutional
rules, such as those established in Miranda and
Pearce, that their retrospective application will occasion
windfall benefits for some defendants who have suffered
no constitutional deprivation. 1Wiranda's well-known
warning requirements provided a protection "against
the possibility of unreliable statements in every instance
of in-custody interrogation," and thereby covered many
"situations in which the danger [ was] not necessarily
as great as when the accused is subjected to overt and
obvious coercion." Johnson v. N ew Jersey, supra, at
730 (emphasis supplied). Thus, had Miranda been applied
retroactively, it would have required the rpversal
of many convictions in which no serious constitutional
violation had occurred. Id., at 731. Likewise, the retroactive
application of Pearce would require the repudiation
54 OCTOBER TERM, 1972
Opinion of the Court 412 u. s.
of many sentences rendered under circumstances in which
there was no genuine possibility that vindictiveness
played a role. Judicial impropriety in the resentencing
process, albeit intolerable wherever it happens, surely is
not a common practice. Indeed, nothing in Pearce intimates
that the Court regarded it as anything more than
an infrequently appearing blemish on the sentencing
process.7 Absent countervailing considerations rooted in
the purposes underlying a new rule, this factor-that
retroactive application of such broadly protective rules
would occasion reversals in many instances in which no
actual prejudice has been suffered-points toward a ruling
of prospectivity.
N onretroactivity is also suggested by the second similarity
between Miranda and Pearce. While each created
a protective umbrella serving to enhance a constitutional
guarantee, neither conferred a constitutional right that
had not existed prior to those decisions. The right
against use of an involuntary confession long preceded
Miranda just as the right to be free from fundamentally
unfair sentencing considerations predated Pearce. Supra,
at 50. Because these foundational rights remain available
to defendants in pre-Miranda and pre-Pearce cases,
a decision of nonretroactivity is less likely to result in the
continued incarceration of those whose convictions or
sentences rest on unconstitutional acts.8 Linkletter v.
Walker, 381 r. S., at 640 (Black, J., dissenting).
7 The most that ID/LY be said is that the Court in PearcP found that
"increased sentences on reconviction are far from rare," 395 U. S., at
725 Il. 20, and that it was persuadC'd that vindictiveness played
a role in a sufficient number of those cases to "warrant the imposition
of a prophylactic rule." Colten v. Kentucky, 407 F. S., at 116.
8 Sec> Johnson v. New Jersey, 384 U. S. 719 ( 1966). See also 8tovall
v. Denno, 388 U. S., at 299 (in pre-Wade-Gilbert casr.s "it remains
open to all persons to allege and prove ... that the confrontation ...
infringed ' his right to dur process of law"); cf. Halliday v. United
States, 394 U. S. 831, 833 (1969).
MICHIGAN v. PAYNE 55
47 Opinion of the Court
Of course, the question of the impact of particular
decisions on the reliability and fairness of any aspect of
a criminal proceeding is inherently a matter of balancing
"probabilities." Johnson v. New Jersey, 384 U. S., at
729; Adams v. Illinois, 405 U.S. 278, 281 (1972). Yet
in view of the fact that, if retroactive, Pearce would apply
to innumerable cases in which no hint of vindictiveness
appears, coupled with the consideration that due process
claims may always be made in those prior cases in which
some evidence of retaliatory motivation exists,9 we have
little doubt that the "probabilities" in this case preponderate
in favor of a ruling of nonretroactivity.10
Although the remaining factors-reliance and burden
on the administration of justice- have been regarded as
having controlling significance "only when the purpose
of the rule in question did not clearly favor either retroactivity
or prospectivity," Desist v. United States, 394 U. S.
244, 251 (1969), those considerations also support the
nonretroactivity of Pearce. The result in Pearce was
not "foreshadowed" by any prior decision of this Court.11
Indeed, prior to Pearce, resentencing judges were bound
by no requirement that they articulate their reasons and
9 Of course, it remains true that "retaliatory motivation" may be
"difficult to prove in any individual case." North Carolina v. Peare<',
395 U. S., at 72!', n. 20. And, this is certainly one of the rra~cns
why the Court in Pearce adopted prophylactic rules. Similar problems
of proof prompted the decisions in 1',firanda and Wade, but
such problems in themselves were not sufficient to warrant retro-
8pcctive application.
10 \Ve reiterat e here what the Court has repeatedly said in retroactivity
cases: "[W]e do not disparage a constitutional guarantee in
any manner by declining to apply it retroactively." Johnson v.
New J ersey, 384 U.S., at 728; cf. Linkletter v. Walker, 381 U.S. 618,
629 (1965).
11 Compan' Berger v. California, 393 r. S. 314 (1969), and Roberts
v. Russell, 392 U.S. 293 (1968) , with Adams v. Illinois. 405 U.S. 278
(1972), and Johnson v. New Jersey, supra, at 731.
56 OCTOBER TER~l, 1972
Opinion of the Court 412 U.S.
generally enjoyed a wide discretion in terms of the factors
they might legitimately consider. See Williams v. New
York, 337 U. S. 241 (1949). Nor could it be said that
the Court's decision was clearly forecast by any trend
of lower court decisions. In Pearce itself the Court noted
that lower federal and state courts were divided on all of
the questions posed. 395 U.S., at 715 n. 5. Under these
circumstances, judicial reliance on prior law was certainly
justifiable.12
Because of that reliance, it is fair to assume that in
prior years few, if any, judges complied during resentencing
with Pearce's recordation requirement, and that they
often considered a variety of factors relating to the defendant
and his crime which might or might not have
fallen within the Pearce standard. We have been presented
with no statistical indications as to how many
persons received increased penalties after retrials.1 " We
cannot say, however, that the potential interference with
the administration of justice would be insubstantial if
Pearce were applied retroactively. In order to comply
with Pearce, a resentencing judge-assuming he is still
on the bench or otherwise available-would be required
to make a factual determination as to the reasons for
sentences he may have meted out years in the past.
12 \Ve need not disagree with MR . .JusTICE l\IARSHALL's notation,
post, at 66 n. 9, that the result in Pearce was foreshadowed, i.e., that
higher sentences on retrial were being questioned. Our focus hPre,
however, is on the prophylactic measure adopted to achiev!' that
result. As to this, we do not think there is any serious question that
neither the recordation requirement. nor the limitations on matters to
be considered were so clearly forecast as to render a conl rary state
reliance unjustifiable.
13 See Note, Constitutional Law: Increased Sentence and D!'nial
of Credit on Retrial Sustained under Traditional Waiver Theory,
1965 Duke L. J. 395, 399 n. 25 (informal smvey of North Carolina
courts showed that six of 50 reconvicted defendants received higher
sentences).
MICHIGAN v. PAYNE 57
47 Opinion of the Court
Compliance with that requirement would present considerable
difficulties, since judges, like witnesses in criminal
trials, lack infallible memories and perfect records of
their motivations.14 Linkletter v. Walker, 381 U. S., at
637. While we would not shy from imposing these burdens
were ,ve persuaded that it was necessary to do so in
order to effectuate the purposes underlying Pearce, we
have found no such need here. In sum, upon application
of the three-part test, we hold that the
Pea.rce requirements are not to be accorded retroactive
application.15
III
Since the resentencing hearing in this case took place
approximately two years before Pearce was decided, we
hold that the Michigan Supreme Court erred in applying
its proscriptions here. Accordingly, the judgment of
that court is reversed, and the case is remanded for further
proceedings not inconsistent with this opinion.
It is so ordered.
14 Thus, the retroactivity of Pearce would present diffi<'ulties not
encountered in two of the Court's recent decisions holding retroactive
eases involving resentencing: Furman v. Georgia, 408 U. S. 238
(1972) (the "death penalty" case); Robinson v. Neil, 409 U.S. 505
(197:~) (holding Waller v. Florida, 397 U. S. 387 (1970) retroaet.
i\-e). In both cases, "[t]hat which was constitutionally innlid
could be isolated and excised without requiring the State to begin
the entire factfinding process anew." Robinson v. Neil, supra,
at 510.
15 Respondent, relying on Linkletter v. Walker, supra, and Tehan
v. Shott, 382 U.S. 406 (1966), urges the Court to distinguish between
cases, like his, on direct appeal and those arising after a conviction
and sentPnce have become final. \Ve think the above-stated reasons
for applying Pearce prospectively apply with equal force to all cases
in which resentencing proceedings occurred before June 23, 1969, the
date of decision in Pearce. See Stovall v. Denno, 388 U. S., at 300;
Desist v. United States, 394 U. S., at 252; Williams v. United States,
401 U. S., at 651-652.
58 OCTOBER TERM, 1972
DouGLAS, J., dissenting 412 U.S.
MR. JUSTICE DouGLAS, dissenting.
We deal here with the guarantee contained in the
Fifth Amendment, applicable to the States by reason
of the Fourteenth, Benton v. Maryland, 395 U. S. 784,
that no person shall "be subject for the same offence
to be twice put in jeopardy of life or limb." The construction
given that clause was applied retroactively in
North Carolina v. Pearce, 395 U. S. 711; and I think
that Payne as well as Pearce should have the benefit of
the "new" constitutional rule. My views have been at
odds with those of the Court as witnessed by the dissent
of Mr. Justice Black in Linkletter v. Walker, 381 U. S.
618, 640, which I joined, and by my separate dissent in
Desist v. United States, 394 U. S. 244, 255. I could
understand making a "new" constitutional rule applicable
only prospectively. But I cannot bring myself
to making the "new" rule applicable to some but not to
others. If a State has violated the Federal Constitution
in convicting or sentencing a prisoner, I see no way
of denying him relief from that unconstitutional trial or
unconstitutional sentence.
The Double Jeopardy Clause in my view was designed
to discourage the abusive use by the Executive and Judicial
Branches of the awesome power of government over
the individual. J eopardy attaches once the trial starts.
If there is error in that trial and as a result a new trial
is had, the Government cannot impose an added or increased
sentence on the second trial. That is my view,
as explained in }.forth Carolina v. Pearce, supra, at 726-
737. Respondent received a sentence of 19 to 40 years
on his first trial and a greater one of 25 to 50 years on
his second trial. I therefore would affirm the judgment
below.
MICHIGAN v. PAYNE 59
47 MARSHALL, J., dissenting
MR. JusTICE MARSHALL, dissenting.
The Court today holds that no limitations need be
placed on resentencings that occurred before the date of
decision in North Carolina v. Pearce, 395 U. S. 711
( 1969). I believe however, that the State has an obligation
to present to the court reviewing the second conviction
evidence from which that court can determine
whether a new sentence, more severe than that imposed
at a prior trial, resulted in part from the sentencing
authority's desire to punish the defendant for successfully
appealing his first conviction.' I therefore respectfully
dissent.
I
This case raises the issue of retroa.ctivity only because
of the almost unbelievable sluggishness of the appellate
process in Michigan. Payne's second sentence was imposed
on August 30, 1967, nearly two years before Pearce
was decided. However, the Michigan Court of Appeals
did not decide Payne's appeal until July 28, 1969, one
month after the decision in Pearce. The Michigan Supreme
Court considered the case for two more years,
finally deciding it on November 9, 1971. Had the appellate
process in Michigan been at all expeditious, this
Court might have used Payne's case as the vehicle to de-
1 The State did present an affidavit from the sentencing judge in
this case. The Michigan Supreme Court held that it did not satisfy
the requirement of North Carolina v. Pearce, 395 U. S. 711, 726
(1969), that more severe sentences can be justified only by ''objective
information concerning identifiable conduct on the part of the defendant
occurring after the time of the original sentencing proceeding."
See 386 :Mich. 84, 97, 191 N. W. 2d 375, 381 (1971). Petitioner
contends that this holding was erroneous. Petition for Writ
of Certiorari 5-6. The Court does not address this contention, nor
shall I.
60 OCTOBER TERl\:I, 19i2
MARSHALL, .T., dissenting 412 U.S.
cide that harsher sentences on reconviction could be
justified only by objective evidence of post-sentencing
conduct by the defendant, the rule adopted in Pearce.
The only difference between Pearce's case and Payne's,
then. is that the former moved up to this Court more
quickly than the latter. Different treatment of two cases
is justified under our Constitution only when the cases
differ in some respect relevant to the different treatment.2
And a difference in the speed with which a judicial system
disposes of an appeal is not related in any way to
the purposes served by the limitations that Pearce placed
on resentencing. Thus. considerations of fairness rooted
in the Constitution lead me to conclude that cases in the
pipeline when a new constitutional rule is announced
must be given the benefit of that rule.
The rule adopted by the Court today is curious in
another way. The Court appears to say that a defendant
who failed to appeal his first conviction out of "a
reasonably based fear of actual vindictiveness," ante, at
52 n. 5, is entitled to review of his conviction. Cf. Fay
v. Noia, 372 U. S. 391, 396-397, n. 3 (1963).3 If his
appeal is successful, his new trial wil1 occur after the date
of decision in Pearce. Thus, any ne,v sentence 1.vill be
2 Since Payne's appeal was pending when Pearce was decided, I
need not consider whether different considerations, such as the defendant's
failure to raise the issue in seeking review from this Court
or to persuade us on the mnits, might suffice under the D11r Process
Clause to justify differf'nt treatment of defendants whose sentences
had become final.
:i Mr. JusticP Harlan, dissenting in Fay v. Noia, 372 U. S. 391, 475
(1963), sugge8trd that the possibility of an <.'nhanC'ed sentencf' after
a successful appeal, according to the Court, precluded the State
from relying on a failure to appeal as an adequate state ground
supporting the denial of relief under federal ha.beas corpus. On his
interpretation, thPn, Fay anticipated the holding in Pearce.
MICHIGAN v. PAYNE 61
47 MARSHALL, J., dissenting
subject to the limitations imposed by Pearce. The rather
strange result is that someone like Payne, who adhered
to state procedural rules for vindicating his right to an
error-free trial, may receive an enhanced sentence without
limitation, while someone who did not adhere to
those rules may not have his sentence increased unless
the requirements of Pearce are met. I suppose that
anomalies are occasionally inevitable, but I submit that
we should consider very carefully any rule of retroactivity
that has the effect of penalizing compliance with
state procedural rules.
II
The Court applies the now-familiar three-pronged test
to determine whether Pearce should be given retroactive
effect, and it reaches the now-familiar result of nonretroactivity.
4 I believe that principled adjudication requires
the Court to abandon the charade of carefully balancing
countervailing considerations ,vhen deciding the question
of retroactivity. Inspecting the cases dealing with retroactivity,
I find that they appear to fall into three groups.
In some cases, this Court has held that the trial court
lacked jurisdiction in the traditional sense. See, e. g.,
Benton v. Maryland, 395 U. S. 784 (1969); Waller v.
Florida, 397 U. S. 387 ( 1970). Those holdings have been
made fully retroactive. Ashe v. Swenson, 397 U. S. 436
(1970); Robinson V. l'•,:eil, 409 r. S. 505 (1973). Cf.
United States v. U. S. Coin & Currency, 401 U. S. 715
(1971). In other cases the Court announced a rule that
was central to the process of determining guilt or innocence,
and whose application might well have led to the
4 In holding various rulings retroactive, this Court has given only
the most cursory nod to the three-pronged test. Sf-f', e. g., Roberts
v. Russell, 392 U. S. 293 (1968); 11'lcConnell v. Rhay, ;393 l:. S. 2
(1968); Arsenault v. Massachusetts, 393 U. S. 5 (1968).
62 OCTOBER TERM, 1972
MARSHALL, J., dissenting 412 U.S.
acquittal of the defendant. See, e. g., Gideon v. Wainwright,
372 U. S. 335 (1963); In re Winship, 397 V. S.
358 (1970). Those holdings too have been given retroactive
effect. Pickelsimer v. Wainwright, 375 U. S. 2
(1963); Ivan V. v. JVew York, 407 U.S. 203 (1972). Cf.
Adams v. Illinois, 405 U. S. 278 (1972). AU other constitutional
rules of criminal procedure have been given
prospective effect only."
I confess that I have been unable to discover a principled
basis for that threefold cla.ssification, but it does
appear to be the factor operating in our cases. And I see
little point in forcing lower courts to flounder without
substantial guidance in the morass of our cases, by informing
them that they are to apply a balancing test,
when in fact it invariably occurs that the balancing test
results in holdings of nonretroactivity. Furthermore, it
demeans this Court to pretend to consider a variety of
factors if, no matter how those factors are arrayed, the
result is predetermined. An open-minded examination
of this Court's cases on retroactivity compels the conclusion
that the Court divides cases into several classes,
and it is the classification, not the three-pronged test,
that determines the result. Our time would be better
spent, I think, in attempting to delineate the basis for
those classifications, and to derive them from some constitutional
principles, rather than in "applying" a balancing
test. Indeed, it might have been thought that
5 Linkletter v. Walker, 381 U.S. 618 (1965), giving a limited
retroactive effect to Mapp v. Ohio, 367 U. S. 643 (1961) , is an
anomaly at odds with the Court's subsequent treatment of problems
of retroactivity and can be explained only by the Court's unfamiliarity
with those problems when the case was decided. See
also Johnson v. New Jersey, 384 U. 8. 719 ( 1966).
MICHIGAN v. PAYNE 63
47 MARSHALL, J., dissenting
Robinson v. Neil, supra, had begun the task of rationalizing
our cases, but apparently that is not so.
III
The holding of Pearce is a simple one: the Due Process
Clause requires States to adopt procedures designed to
minimize the possibility that a new sentence after a
successful appeal will be based in part on vindictiveness
for the defendant's having taken the appeal. The Court
agrees that "this basic due process protection . . . is
available equally to defendants resentenced before and
after the date of decision in that case." Ante, at 50, 51.
The question then is what procedures are required to insure
that that protection has been afforded defendants resentenced
before Pearce was decided. This question,
like many of those involving retroactivity, relates to the
integrity of the judicial process, not to the limitations
placed by the Constitution on police behavior. One can
agree that the precise requirements of Pearce are inappropriate
for retrospective application, largely because
they are procedurally ill-adapted to the problem, yet
disagree with the Court that the States need do nothing
at all to convince a reviev.-ing court that vindictiveness
played no part in the resentencing. See, e. (J., Commonwealth
v. Allen, 443 Pa. 96, 102, 277 A. 2d 803 (1971).
The issue need not be framed as the "retroactivity" of
Pearce. The problem, as I see it, is to devise procedures
that \vill permit reviewing courts to determine whether
the requirements of the Due Process Clause have been
met. In Pearce we concluded that it would be enough
for a judge, on resentencing a defendant, to state his
reasons for imposing a more severe sentence. If the
more severe sentence was based upon objective information,
placed on the record, concerning the conduct of the
64 OCTOBER TERl\I, 1972
MARSHALL, J., dissenting 412 U.S.
defendant after the first sentencing, the more severe sentence
was permissible. Such a rule, although not absolutely
guaranteeing that vindictiveness will play no
part,6 nonetheless substantially reduces the possibility
that it will, without significantly interfering with the
judge's lawful discretion.
A rather similar procedure would accomplish the same
result for defendants resentenced before Pearce was decided.
If a defendant did receive a harsher sentence
after a successful appeal, and he seeks to have it reduced
to the original sentence, the State should be required to
present evidence that the new sentence was based on
post-sentence conduct. In the absence of such evidence,
the sentence must be reduced.' The Court suggests that
such a procedure ,vould "occasion windfall benefits for
some defendants who have suffered no constitutional deprivation."
Ante, at 53. That assertion must be considered
more closely.
As the Court notes, there is httle evidence that more
severe sentences are often imposed. It cites an informal
survey suggesting that 12% of reconvicted defendants
recPivc higher sentences. Ante, at 56 n. 13. Even if
that estimate is only half as large as the actual figure for
pre-Pearce cases, still there are clearly very f ev, defendants
who have received harsher sentences. With respect
6 For example, the sentencing judge, had he considered the case as
an initial matter, might have imposed a sentence shorter than that
imposed at the first trial, but, out of vindictiveness, he might deride
to reimpose the original se11tence. The prorf'dnres outlinf'd in Pearce
cannot prevent this.
7 I assume that the Court's reliance on the continuing availability
of the "foundational" right means that an offender who shows that
vindictiveness played a part in his rcsentencing is entitled to relief.
I would simply shift the burden of proof to the State, which has
better access to the relevant facts.
MICHIGAN v. PAYNE 65
47 MARSHALL, J., dissenting
to many of them. it will not be difficult to produce evidence
supporting the new sentence. As in Moon v.
Maryland, 398 U. S. 319 (1970), and Odom v. United
States, 400 1;. S. 23 (1970), the sentencing judge might
indicate by affidavit or order the grounds for his sentencing
decision. If memories have faded, the State
might show that a presentence report considered by the
judge recited post-sentence conduct by the defendant
that would justify the harsher sentence.
Thus, I do not think that it can fairly be said that
the requirements I would impose would in fact result in
,vindfall benefits to "innumerable" defendants, ante, at
55; they wou Id accrue to those few defendants who were
convicted, successfully appealed, were reconvicted, and
received harsher sentences so long ago that the State
cannot produce evidence from which a reviewing court
could find that vindictiveness played no part in the sentencing
decision.8 And the "windfall benefits" would
impair no substantial state interest in incarcerating those
few offenders. Unlike the suppression of probative evidence
that might severely limit the State's ability to
secure a conviction of a person who undoubtedly committed
an offense. here the remedy is simply the reduction
of sentence. North Carolina v. Rice, 404 U. S.
244, 247 (1971). The sentence to be served would be
one that had already been found appropriate by one
8 State courts, closer to the problems of administering thf' rule I
suggest, have widely thought that those burdens are not substantial.
Se<', e.g., Stonom v. Wainwright, 235 So. 2d 545 (Fla. App. 1970) ;
People v. Baze, 43 lll. 2d 298, 253 K. E. 2d :392 (1969); State ,·.
Pilcher, 171 N. V•l. 2d 251 (Iowa 1969); Hord\'. Commonwealth, 450
S. \V. 2d 530 (Ky. 1970); State v. Rentschler, 444 S. W. 2d 453 (Mo.
1969); CommonweaUh v. Allen, 443 Pa. 96, 277 A. 2d 803 (1971);
Denny v. State, 47 Wis. 2d. Ml, 178 K. W. 2d :38 (1970).
66 OCTOBER TER~f, 1972
l\fanSHALL, J., dissenting 412 U.S.
judge, and would therefore satisfy the various interests
advanced by incarceration.9
For these reasons, I dissent.
MR. JUSTICE STEWART joins Part III of this opinion.
9 The Court's conclusion that Pearce was not foreshadowed by
decisions in this Court or by a trend of lower court decisions is somewhat
misleading. This Court's decision in Green v. United States,
355 U.S. 184 (1957), raised substantial questions under the Double
Jeopardy Clause of the constitutionality of enhanced sentences after
a successful appeal. Also, one reading of Pay v. Noia, 372 U. S.
391 (1963), suggested by the dissent of Mr. Justice Harlan, is that
a State may not burden the right to appeal with the possibility of
an enhanced sentence. And prior to Pearce, the First, Seccnd,
Fourth, Fifth, and Seventh Circuits had held that enhanecd sentences
after reconviction could be justified only in limited circumstances.
See Marano v. United States, 374 F. 2d 583 (CAI 1967);
United States v. Coke, 404 F. 2d 836 (CA2 1968) (en bane); Patton
v. North Carolina, 381 F. 2d 636 (CA4 1967); Simpson v. Rice, 396
F. 2d 499 (CA,5 1968); United States v. White, 382 F. 2d 445 (CA7
1967). So had the California Supri>m<> Court, in a powerful opinion
by Justice Traynor. People v. Henderson, 60 Cal. 2d 482, 386
P. 2d 677 (1963). Finally, a '·learned and effective article," as
Judge Friendly called it in United States v. Coke, supra, arguing the
same point, appeared in 1965. Van Alstyne, In Gideon's Wake:
Harsher Penalties and the "Successful" Criminal Appellant, 74 Yale
L. J. 606 (1965). I would think that these decisions and commentary
had prepared the ground rathi>r well for Pearce, as the
Court concedes, ante, at 56 n. 12. Yet if the result was foreshadowed,
it is not unreasonable to require States now to supplement the
record, so that it will be clear that unconstitutional sentences were
not imposed. Because it insists on treating the issue here as a
question of retroaetivity, the Court does not address this argument.
NLRB v. BOEING CO. 67
Syllabus
NATIONAL LABOR RELATIONS BOARD v.
BOEING co. ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
No. 71-1607. Argued March 26, 1973-DcridC'd May 21, 1973
The adjudication by the National Labor Relations Board (NLRB)
under § 8 (b) (1) (A) of the National Labor Relations Act of an
unfair labor practice allegedly committed by a union does not
include authority to determine whether the amount of a disciplinary
fine levied by the union against a member is reasonable, the
issue being one of internal union affairs ovrr which the NLRB
exercises no jurisdiction. Pp. 71-78.
148 U. S. App. D. C. 119, 459 F. 2d 1143, reversed.
R•;HNQUIST, J., delivered thr opinion of the Court, in whirh
BRENNAN, STEWART, WHITE, J\.1ARSHALL, and Povrnr.L, JJ., joined.
BURGER, C. J., filed a dissenting opinion, post, p. 78. DOUGLAS, J.,
filed a dissenting opinion, in which BURGER, C. J., and 13LACKMUN, J.,
joined, post, p. 79.
Norton J. Corne argued the cause for petitioner. With
him on the brief were Solicitor General Griswold, Pe,ter G.
Nash, and Patrick Hardin.
Samuel Lang argued the cause for respondent Boeing
Co. With him on the brief were C. Dale Stout and
Frederick A. Kullman. Bernard Dunau argued the
cause for respondent Booster Lodge Ko. 405, International
Association of :.Wachinists & Aerospace Workers,
AFL-CIO. With him on the briefs were Plato E. Papps,
Louis P. Poulton, and C. Paul Barker.*
* J. Albert Woll, Laurence Gold, and Thomas E. Harris filed a
brief for the American Federation of Labor and Congress of Industrial
Organizations as amicus curiae urging reversal.
Jfilton Smith, Gerard C. Smetana, and Jerry Kronenberg filed a
brief for the Chambrr of Commerce of the UnitPd StatPs as amicus
curiae urging affirmance.
(i8 OCTOBER TERl\1, 1972
Opinion of the Court 412 u. s.
MR. JusTICE REHNQUIST delivered the opinion of the
Court.
The question presented in this case is whether the
National Labor Relations Board is required by § 8 (b)
( 1) (A) of the National Labor Relations Act 1 to inquire
into the reasonableness of a disciplinary fine imposed by
a union upon a member when the Board exercises its admitted
authority under that section to determine whether
the fine otherwise constitutes an unfair labor practice.
The Board held that the validity of union fines under
the Act does not depend on their being reasonable in
amount. Booster Lodge No. 405, 185 N. L. R. B. 380,
383 n. 16, 75 L. R. R. M. 1004, 1007 n. 16 (1970). On
petition for judicial review of this determination, the
Court of Appeals held that an unreasonably large fine is
coercive and restraining within the meaning of § 8 (b) ( 1)
(A), and remanded the case to the Board with directions
to consider "questions relating to the reasonableness of
the fines imposed by the Union." Booster Lodge No. 405,
International Association of Machinists v. NLRB, 148
V. S. App. D. C. 119, 137, 459 F. 2d 1143, 1161 (1972).
\Ve granted certiorari, 409 U. S. 107 4 ( 1972), and now
reverse the judgment belovi.
From May 16, 1963, through September 15, 1965, Booster
Lodge No. 405, International Association of Machinists
& Aerospace Workers, AFL---CIO (the Union), and the
Boeing Co. ( the Company) were parties to a collectivebargaining
agreement. Upon expiration of this agreement
the Union called a lawful economic strike at the Company's
1 " (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 guarantred 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 rrtention of membership
therein .... " 61 Stat. 141, 29 U.S. C. § 158 (b)(l)(A).
NLRB v. BOEING CO. 69
67 Opinion of the Court
Michoud plant in New Orleans and at other locations.
As of October 2, 1965, the parties signed a new collectivebargaining
agreement and the strikers thereafter returned
to work. Both agreements contained maintenance-ofmembership
clauses that required Union members to retain
their membership during the contract term. New
employees were required to notify the Union and the
Company within 40 days of accepting employment if they
elected not to join the Union.
During the 18-day strike some 143 employees out of
1,900 production and maintenance employees in the bargaining
unit at the Michoud plant crossed the picket
lines and returned to work. All of these employees were
Union members at the time the strike beg;an, although
some of them tendered their resignations either before or
after crossing the picket lines.2 In late October or early
November 1965 the Union notified these employees that
charges had been preferred against them for violating
the International Union's constitution. The constitution
provides penalties for the "improper conduct of a
member," which term includes "[a]ccepting employment
... in an establishment where a strike ... exists."
In accordance with appropriate union procedures, including
notice and opportunity for a hearing. all strikebreakers
were found guilty, fined $450, and barred from
holding Union office for a period of five years." While
2 Of the 14:{ f'mployees who crossed thf' picket lines, 24 made no
attC'mpt to resign from the l:nion, 61 resigned before crossing the
picket lines, and 58 resigned after crossing the picket lines and rf'-
porting for work. The validity of the fines imposed against those
who resigned from the union is considered in a companion case,
1liachinists & Aerospace Workers v. NLRB, post, p. 84. See also
NLRB v. Textile lVorkers, 409 U. S. 213 (1972).
3 The Union constitution provides that members found guilty of
miscondu('t after notice and a hearing are subject to "reprimand,
fine, suspension, or expulsion from membership or any lesser penalty
70 OCTOBER TEK\11, 1972
Opinion of the Court 412 U.S.
some of the fines were reduced and some partial payments
were received by the Union, no member paid the full $450.4
After warning members to pay their fines or face the
consequences, the Union filed suits in state court against
nine individual employees to collect the fines. None of
these suits has been finally adjudicated.
In February 1966 the Company filed a charge with the
Labor Board alleging that the attempted court enforcement
of the fines violated § 8 (b) (1) (A) of the National
Labor Relations Act. The allegations were basically
twofold: first, that the Union committed an unfair labor
practice by fining employees who had resigned from the
Union, an issue that we consider in the companion
case, Machinists & Aerospace Workers v. NLRB, post,
p. 84; and, second, that as to the members who were
otherwise validly fined, the fines were unreasonable in
amount. Thereafter the Board's General Counsel issued
a complaint and the case was heard by a Trial Examiner.
With respect to the second issue, the Trial Examiner
determined that the fines were impermissibly excessive,
but the Board refused to adopt his conclusion.
It relied on a case decided the same day, Machinists, Local
Lodge 604 (Arrow Development Co.), 185 N. L. R. B.
365, 7 5 L. R. R. M. 1008 ( 1970), reversed sub nom.
O'Reilly v. NLRB, 472 F. 2d 426 (CA9 1972), in which it
held that Congress did not intend to give the Board authority
to regulate the size of union fines or to establish
standards with respect to a fine's reasonableness.
or combination." The constitution sets no maximum dollar limitation
on fines.
• The base income of the employees fined ranges from $95 to $145
for a 40-hour workweek.
Fines were reduced to 50% of wages earned during the strike for
35 members who appeared for the Union trial, apologized for their
actions, and pledged loyalty to the Union. Eighteen of these reduced
fines have been paid in full.
NLRB v. BOEING CO. 71
67 Opinion of the Court
Section 8 (b) (l)(A) of the Act provides, in pertinent
part, that it shall be an unfair labor practice for a labor
organization "to restrain or coerce (A) employees in the
exercise of the rights guaranteed in section 7 of this
title." 5 Among the § 7 rights guaranteed to employees
is the right to refrain from any of the concerted activities
described in that section." We have previously held that
§ 8 (b) (1 )( A) was not intended to give the Board power
to regulate internal union affairs, including the imposition
of disciplinary fines, with their consequent court
enforcement, against members who violate the unions'
constitutions and bylaws. NLRB v. Allis-Chalmers
Mfg. Co., 388 U. S. 175 (1967); Scofield v. NLRB, 394
5 The proviso to this section states: '·That this paragraph shall
not impair the right of a labor organization to prescribe its own
rules with respect to the acquisition or retention of membership
therein." It has been the Board's position that this proviso authorizes
the unions to impose disciplinary fines on union members.
Jfinneapolis Star & Tribune Co., 109 K. L. R. B. 727, 34 L. R.R. l\I.
1431 (1954); Wisronsin Motor Corp., 145 N. L. R. B. 1097, 5.'i
L. H. R. i\l. 1085 (1964); Allis-Chalmers Jffg. Co., 149 N. L. R. B.
67, 57 L. R. R. M. 1242 (1964). This Court, howe\"er, in holding
that court enforcement of union fines was not an unfair labor practice
in NLRB v. Allis-Chalmers ll,ffg. Co., 388 U. S. 175 (1967),
relied on congressional intrnt only with respcrt to the first part of
this ~cction. The parties' principal contentions in thi~ case do not
depend on the scope of the proviso and we do not consider its interpretation
necessary to our conclusion.
" In its entirety § 7 provides:
·'Employees shall have the right to self-organiz'ltion, to form, join,
or assist labor organizations, to bargain collectively through representatives
of their own ehoosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, and shall also have the right to refrain from any
or all of such activities except to the extent- that such right may
be affected by an agreement requiring membership in a labor organization
as a condition of employment as authorized in section 8 (a)
(3) ." 61 Stat. 140, 29 U. S. C. § 157.
72 OCTOBER TEI-L\1, 1972
Opinion of the Court 412 U.S.
U. S. 423 ( 1969). In Allis-Chalmers we held that court
enforcement of fines ranging from $20 to $100 for crossing
picket lines did not "restrain or coerce" employees within
the meaning of the Act. And in Scofield we held that
the union did not violate the Act in imposing fines of
$50 and $100 on members for violating a union rule
relating to production ceilings.
In deciding these cases, the Court several times referred
to the unions' imposition of "reasonable" fines.
In particular, the Swfield Court concluded "that the
union rule is valid and that its enforcement by reasonable
fines does not constitute the restraint or coercion proscribed
by § 8 ( b) (1 ) ( A)." 394 U. S., at 436 ( emphasis
added). The Company contends, not illogically, that
the Court's use of the adjective "reasonablP" \Vas intended
to suggest to the Board that an unreasonable fine
would amount to an unfair labor practice.
This interpretation, however, p ermissible as it may be,
is only dicta, since in both Allis-Chalmers and in Scofield
the reasonableness of the fines was assumed. 388 U. S.,
at 192-193 , n. 30; 394 U. S., at 430. 7 Being squarely
presented with the issue in this case, we recede from the
implications of the dicta in these earlier cases. While
7 MorcoYer, sinC'e thP Board has C'onsistently over a long period
of time interpreted the Art as not giving it authority to examine
the reasonableness of disC'iplinary fines, infra, at 74-75, it is not likely
that the Court ~peC'ifi rially int<>ncled, by the use of a singl<> adjective,
and without mentioning the Labor Board cases to the contrary, to
overturn th(' Board'~ interpretation of the Act. Nor can it be
argued that the Court was nnawar!' of the Board's interpretation,
for the Scofield Court stated i hat in Allis-Chalmers it
"essentially accepted the position of the National Llbor Relations
Board dating from Minneapolis Star & Tribune C'o., 109 N. L. R. R
727 ( 1954) where the Board also distinguished intnnal from external
<>nforcemcnt in holding that a union could fine a member for his
failure to take part in picketing during a strikr .... '' Scofield v.
NLJ~B, 394 U.S. 423, 428 (1969).
NLRB v. BOEING CO. 73
67 Opinion of the Court
"unreasonable" fines may be more coercive than "reasonable"
fines, all fines are coercive to a greater or lesser
degree. The underlying basis for the holdings of Allis-
Chalmers and Scofield was not that reasonable fines were
noncoercive under the language of §S(b)(l)(A) of
the Act, but was instead that those provisions were not
intended by Congress to apply to the imposition by the
union of fines not affecting the employer-employee relationship
and not otherwise prohibited by the Act. The
reason for this determination, in turn, ,vas that Congress
had not intended by enacting this section to regulate
the internal affairs of unions to the extent that
would be required in order to base unfair labor practice
charges on the levying of such fines.
The Court's examination of the legislative history of
this provision in Allis-Chalmers led to the conclusion
that:
"What legislative materials there are dealing with
§ 8 (b) (1) (A) contain not a single word referring
to the application of its prohibitions to traditional
internal union discipline in general, or disciplinary
fines in particular. On the contrary there are a
number of assurances by its sponsors that the section
was not meant to regulate the internal affairs
of unions." 388 U. S., at 185-186 (emphasis
added)."
In Scofield we decided that Congress intended to distinguish
between the external and the internal enforcement
of union rules, and that therefore the Board would
8 As we also notPd in Allis-Chalmers, this interpretation is suppurtrd
by the Landrum-Griffin Art, where "Congress expressly recognized
that a union member may be> 'fined, suspended, expelled,
or otherwise disciplined.' and enacted only procedural requirements
to be obsrrvC'd. 73 Stat ..5 23, 29 U. S. C § 411 (a) (5) ." NLRR v.
Allis-Chalmers Mfg. Co., 388 U. S., at 194.
74 OCTOBER TERM, 1972
Opinion of the Court 412 u. s.
have authority to pass on those rules affecting an individual's
employment status but not on his union
membership status. 394 U. S., at 428---430.
Inquiry by the Board into the multiplicity of factors
that the parties and the Court of Appeals correctly
thought to have a bearing on the issue of reasonableness
would necessarily lead the Board to a substantial involvement
in strictly internal union affairs. While the
line may not always be clear between those matters that
are internal and those that are external, to the extent
that the Board was required to examine into such questions
as a union's motivation for imposing a fine it
would be delving into internal union affairs in a manner
which we have previously held Congress did not intend.0
Given the rationale of Alli-S-Chalmers and Scofield, the
Board's conclusion that § 8 (b) (l)(A) of the Act has
nothing to say about union fines of this nature, whatever
their size, is correct. Issues as to the reasonableness or
unreasonableness. of such fines must be decided upon
the basis of the law of contracts, voluntary associations,
or such other principles of law as may be applied in a
forum competent to adjudicate the issue. Under our
holding, state courts will be wholly free to apply state
law to such issues at the suit of either the union or the
member fined.
Our conclusion is also supported by the Board's longstanding
administrative construction to the same effect.
At least since 1954, it has been the Board's c011sistent
position that it has "not been empowered by Congress
. . . to pass judgment on the penalties a union
may impose on a member so long as the penalty does not
9 Cf. Jfotor Coach Employees v. Lockridge, 403 U. S. 274, 296
(1971); U. 0. P. Norplex v. NLRB, 445 F. 2d 155, 158 (CA7 1971)
("The reasonablrness of the fines is a matter for the state court
to determine should tlw Union seek jndirial enforcement of the
fines").
NLRB v. BOEING CO. 75
67 Opinion of the Court
impair the member's status as an employee." Local 283,
UAW, 145 N. L. R. B. 1097, 1104 (1964). See also
Minneapolis Star {r: Tribune Co., 109 N. L. R. B. 727,
34 L. R. R. M. 1431 (1954). We have held in analogous
situatio11s that such a consistent and contemporaneous
construction of a statute by the agency charged
with its enforcement is entitled to great deference by the
courts. Griggs v. Duke Power Co., 401 lT. S. 424, 433-
434 (1971); Udall v. Tallman, 380 U. S. 1, 16 ( 1965).10
The Court of Appeals and the Company have suggested
several policy reasons why the Board should not
leave the determinations of reasonableness entirely to the
state courts. Their basic reasons are, first, that more
uniformity in the determination of what is reasonable
will result if the Board suggests standards and, second,
that more expertise in labor matters will be brought to
bear if the issue is decided by the Board rather than solely
by the courts. Even if we were to concede the relevance
of policy factors in determining congressional intent, we
are not persuaded that the Board is necessarily the better
forum for determining the reasonableness of a fine.
As we noted in Allis-Chalmers, court enforcement of
union fines is not a recent innovation but has been known
at least since 1867. 388 U. S., at 182 n. 9. See also
Summers, The Law of Pnion Disciplin0: \Vhat the
Courts Do in Fart, 70 Yale L. J. 175 ( 1960). The relationship
between a member and his union is generally
viewed as contractual in nature, International Association
of Machinists v. Gonzales, 356 U.S. 617,618 (1958);
Scofield V. XLRB, 394 r. 8 .. at 426 n. 3; .YLRB V.
Textile Workers, 409 P. 8. 213, 217 ( 1972), and the
10 It is also noteworthy that whC'n Congress has intended th<'
Board to C'xamine a fee for bC'ing rxcessivc or unreasonable, it has
specifically so stated nnd ha~ provided statutor~- s tandards for the
Board to follow in making such a determination. See, e. g., 29
U.S. C. § 15S (6)(5) (union initiation fees ).
76 OCTOBER TER~I, 1972
Opiuion of the Court 412 U.S.
local law of contraf'ts or voluntary associations usually
governs the enforcement of this relationship. XLRB
v. Allu;-Cha.lrners Mfg. Co., 388 U. S., at 182 and 193
n. 32; Scofield v. SLRB, supra, at 426 n. 3.
We alluded to state court enforcement of unusually
harsh union discipline in Allis-Chalmers when we stated
that "state courts, in reviewing the imposition of union
discipline, find ways to strike down 'discipline [ which]
involves a severe hardship.' " 388 U. S., at 193 11. 32,
quoting Summers, Legal Limitations on Union Discipline,
64 Harv. L. Rev. 1049, 1078 (1951). The Board
assumed that in view of this statement, our reference to
"reasonable" fines, when reasonableness ,vas not in issue,
in Allis-Chalmers and in Scofield, was merely adverting
to the usual standard applied by state courts in deciding
whether to enforce union-imposed fines. The Board
reads these cases, therefore, as encouraging state courts
to use a reasonableness standard, not as a directive to
the Board.11
Our review of state court cases decided both before and
after our decisions in Allu;-Chalmers a.nd Scofield reveals
that state courts applying state law are quite willing to
determine whether disciplinary fines are reasonable in
amount.12 Indeed, the expertise required for a deter-
11 The Board's interpretation of our decisions is basica.lly the
following:
"Thus, the Court's findings that the fines in those cases were
reasonable seems directed to enforcing courts, encouraging those
courts to make an independfnt determination of the reasonableness
of the fine in Pach case prest'ntc·d, in thf' same fashion as C'ourts limit,
other union discipline which imposes a severe hardship. Such considerations
are of an equitable nature rather than of the character
of restraint and roercion with which the National Labor Relations
Act treats." lvlachinists, Local Lodge ii04 (Arrow Development
Co.), 185 K. L. R. B. :{65, 368, 7S L. R. R \1. 1008, 1010 ( 1970).
1 z Auto Workers Local 283 v. Scofield, 76 L. R. R. M. 2433
(Wis. Sup. Ct. 1971) ($100 fine deemed reasonable); Farnum v.
NLRB v. BOEING CO. 77
67 Opinion of the Court
mination of reasonableness may ·well be more evident in
a judicial forum that is called upon to assess reasonableness
in varying factual contexts than it is in a specialized
agency. In assessing the reasonableness of disciplinary
fines, for example, state courts are often able to draw on
their experience in areas of the law apart from labor
rela tions.13
Nor is it clear, as contended by the Court of Appeals.
that the Board's setting of standards of reasonableness
will necessarily result in greater uniformity in this area
even if uniformity is thought to be a desirable goal.
Since state courts will have jurisdiction to determine
reasonableness in the enforcement context in any event,
the Board's independent determination of reasonableness
in an unfair labor practice context might well yield a
Kurtz, 70 L. R. R. M. 2035 (Los Angeles Mun. Ct. 1968) ($592
fine deemed unreasonable and reduced to $100); McCauley v. Federation
of Musicians, 26 L. R. R. M. 2304 (Pa. Ct. of Common Pleas
1950) ($300 fine deemed exccssivE' and redured to $100); North Jersey
Newspaper Guild Local Na. 173 v. Rakos, 110 N . .T. Super. 77,
264 A. 2d 4,53 (1970) ($7.'i0 fine reduced to $500, which was deemed
reasonable) ; Wal.~h v. Communir-ations Workers of America, Local
2386, 259 Md. 608, 271 A. 2d 148 (1970) ($500 fine deemed reasonable);
Local 248, United Auto Workers, v. Natzke, 36 Wis. 2d 237,
153 N. W. 2d 602 (1967) ($100 fine upheld); Jost v. Communications
Workers of America, Local 9408, 13 Cal. App. 3d Supp 7, 91 Cal.
Rptr. 722 (1970) ($299 fine upheld, the rourt stating that "it is the
settled law in this country that such a fine becomes a debt enforceable
by the courts in an amount that is not unreasonably large." Id.,
at 12, 91 Cal. Rptr., at 725).
13 See, e. g., Farnum v. Kurtz, supra, at 2041, where a municipal
court judge, in reducing a nnion-imposl'd fine of $592 to $100, revealed
that the kind of expertise required by this type of case is not
that of a technical knowledge of labor la·.v:
"Based upon thP facts herein and the Court's experiences [in
passing judgment in thou~ands of misdemeanor cases], the finl'
assessed is much too large and unreasonable. The Court finds that
a fine of $100.00 serves the ends of justice and is more in keeping
with the circumstance~ herein and reasonable."
78 OCTOBER TER}l, 1972
BURGER C . .J., dissenting 412 l'. S.
conflict when the hvo forums are called upon to review
the same fine.
For all of the foregoing reasons, ,ve conclude that the
Board was warranted in determining that when the
union discipline does not interfere with the employeeemployer
relationship or otherwise violate a policy of
the National Labor Relations Act,14 the Congress did not
authorize it "to evaluate the fairness of union discipline
meted out to protect a legitimate union interest.." 15 The
judgment of the Court of Appeals is, therefore,
Reversed.
MR. CHIEF JUSTICE BvRGER, dissenting.
It is odd, to say the least, to find a union urging on
us severe limitations on NLRB authority, and telling us
that state courts are the proper forum to resolve questions
regarding the reasonableness of fines imposed on
workers for violation of union rules. For years, there
has been unrelenting union opposition to state court
"intervention" into industrial disputes and union activities.
We have been told countless times that the "expertise
·• of the Labor Board, based on its overview and
intimate familiarity with labor problems, is essential in
this area.
A union must, of course, have some disciplinary powers
or it would disintegrate. However, the power to discipline
can easily turn from a means of enforcing valid
14 Scofield v. XLIW, 394 r. S., at 429; NLRB v. Marine Workers,
391 U. S. 418 (1968).
15 Machinists, Local Lodge ,504 (Arrow Development Co.), 185
N. L. R. B. 365, 638, 75 L. R. R. }'1. 1008, 1011 (1970). The
Board has long held that the Act proscribes certain unacceptable
methods of union coercion, such as physical violence to force an
employee to join a union or to participate in a strike. In re Maritime
Union, 78 N. L. R. B. 971, enforced, 175 F. 2d 686 (CA2 1949),
cited in Scofield v. N LHB, supra, at 428 n. 4.
NLRB v. BOEING CO. 79
67 DouGI,AS, J., dissenting
rules to an oppressive and coercive device of retribution,
a weapon which, when used to extremes, may deprive a
working man of his very means of sustenance. \Vhether
a particular fine is required in a particular situation involves
a ·weighing of the delicate balance of relations between
the employers, employees, and the union involved.
Such an intimate knowledge of labor relations has consistently
been ascribed to the Board, often by the unions.
It is the Board that deals with such matters on a daily
basis. It is the Board that has the jurisdiction and
experience to devise and employ national standards to
govern union conduct; there are valid reasons for essential
uniformity and cousistency in the matters of fines.
To isolate this sensitive subject aud thrust it on the state
courts is contrary to the entire history of the federal
labor statutes and opens the door to a wide disparity of
fines for the same conduct in different States .
.MR . .JUSTICE DouGLAS, with whom THE CHIEF .TuSTICE
and YlR. JusTICE BLACKM"CN coucur, dissenting.
I dissent from the holding of the Court that the Board
has no jurisdiction to determine the "reasonableness"
of the fines placed by the "Cnion on its dissident members.
The "Cnion and Boeing had an effective collectivebargaining
agreement from May 16, 1963 through September
15, 1965. On the expiration of that contract the
Union struck against Boeing, causing a work stoppage
that lasted 18 days. On October 2, 1965, a new collective
agreement was reached and work was resumed.
During the strike, about 143 employees at the -:\1:ichoud
plant crossed the picket line and reported for work. All
of these had been Fnion members during the 1963-1965
contract period. Some of the 143 who worked during
the strike did not resign from the Union; 119 did
resign-61 before they crossed the picket line and re80
OCTOBER TER:\J, 1972
DOUGLAS, J., dissenting 412 U.S.
turned to work; 58 resigned during the course of the
strike, but after they had crossed the picket line. All
of these resignations were submitted after the expiration
of the 1963-1965 collective agreement. The Union never
,varned members on this or on earlier occasions, that
disciplinary measures could or would be taken against
members who crossed the picket line.
After the new collective agreement was reached, the
V nion notified all members who had crossed the picket
line to ,vork during the strike that charges had been laid
against them and that they would be tried by the Union
for "improper" conduct, the Union's constitution permitting
disciplinary measures, including "reprimand, fine,
suspension and/ or expulsion from membership, or any
lesser penalty or any combination."
Those who appeared for trial and those who did not
appear were found guilty and fined $450 each and barred
from holding a Union office for five years. The fines of
some 35 who appeared and apologized and took a loyalty
oath were reduced to 50% of their earnings during the
strike; and the prohibition against holding Union office
was reduced in those cases.
The Union sent out a written notice saying that the unpaid
fines had been referred to an attorney for collection
and that the reduced fines would be restored to $450 if
not paid. Suits against nine employees were filed in a
state court to collect th<· fines plus attorneys' fees and
interest; and they are unresolved.
Boeing filed a charge of an unfair labor practice against
the Union under § 8 (b) ( 1 )(A) of the Act.',. The Gen-
*That section provides:
"(b) It shall be an unfair labor practice for a labor organization
or its agents-
" ( 1) to restrain or coerce (A) employees in the Pxcr<'ise of the
rights guaranteed in section 7: Provided, That this paragraph Hhall
not impa.ir the right of a labor organization to prescribe its own rules
NLRB v. BOEING CO. 81
67 DoUGLAs, J., dissenting
eral Counsel issued a complaint and the Board decided
that the V nion had violated § 8 (b) ( 1) (A) except for the
fines on members for crossing the picket line to work and
for the fines on those who resigned after returning to
work during the strike, for work performed during the
strike prior to their resignations. But the Board, one
member dissenting, refused to pass on the reasonableness
of the fines, holding it lacked the power to do so.
The unfair labor practice under § 8 ( b )( 1) (A) is the
action of a union "to restrain or coerce" an employee from
the "right to refrain from" assisting a union as that
right is defined in § 7. In Scofield v. 1VLRB, 394 V. S.
423, we upheld a union rule and concluded "that its
enforcement by reasonable fines does not constitute the
restraint or coercion proscribed by § 8 (b) (1) (A)." Id.,
at 436 (emphasis added). See also NLRB v. Allis-
Chalmers Mfg. Co., 388 r. S. 175. The imposition of a
nominal fine of $1 might suit the circumstances of a case,
where a $1,000 fine would be monstrous. A nominal fine
might be justified where, as here, the employees had no
warning that they w·ould or could be fined for working behind
a picket line. A fine where the only sanction ,vould
be temporary suspension from the union might be "reasonable,"
yet unreasonable if it was court enforceable,
meaning, as it docs here, that attorneys' fees, costs,
with respect to the acquisition or retention of membership therein."
61 Stat. 141, 29 U. S. C. § 158 (b) (I) (A).
Section 7 provides:
"Employees shall have the right to self-organization, to form, join,
or assist labor organizations, to bargain collectively through representatives
of their own choosing, and to engage in other concerted
activities for the purpose of collcrtivc bargaining or other mutual
aid or protection, and shall also have the right to refrain from any
or all of such activities except to the extent that suc-h right may bf'
affected by an agreement requiring mt'rnbership in a labor organization
:is a condition of employment as authorized in sertio11 8 (a) (3) ."
29 U. S. C § 157.
82 OCTOBER TERM, 1972
DouGLAS, J., dissenting 412 U.S.
and interest may be added. A member who must
pay the union's attorney as well as his own if he
challenges the reasonableness of a fine in a state court
and loses, may well be suffering an unconscionable
penalty. Moreover, the fine may be imposed by a union
which believed as did the present Union that the member
had no "right" to resign, though NLRB v. Textile
Workers, 409 U. S. 213, held to the contrary. The present
fines seem to be swollen by that predilection of
the Union. The present fines also exceed the earnings
of the workers during the strike period. By what
standard can that possibly be justified? As member
McCulloch of the Board, dissenting, said, the excess
of the fines over the wages collected during this period
is in actual effect an assessment after the strike is over.
If after the strike the Union caused Boeing to suspend a
member without pay after the strike because he had
worked during the strike, there could be no question but
that the Union violated § 8 (b) (1) (A). Yet, the assessment
of fines greater than the wages earned during the
strike has precisely that effect. Thus, in assessing an
unreasonable fine the Union, in my vie,v, goes beyond
the permissible bounds of regulating its internal affairs.
It is no answer to say that the reasonableness of a
fine may be tested in a state-court suit. That envisages
a rich and powerful union suing a rich and powerful
employee. Employees, however, are often at the bottom
of the totem pole, without financial resources, and unworldly
when it comes to litigation. Such a suit is likely
to be no contest. The Board procedures, on the other
hand, may be readily available. If an employee files a
charge with any merit, the Regional Director will issue a
complaint. Thereafter, the General Counsel represents
the employee, and the agency bears any cost of prosecuting
the claim.
NLRB v. BOEING CO. 83
67 DouGLAS, J., dissenting
But my difficulty with the Court's decision is even
greater. State judges, though honest and competent,
have no expertise in labor-management relations. The
Board does have that expertise and can evolve guidelines
based on its broad experience. It is said that Congress
has provided the Board with no guidelines for passing
on the "reasonableness" of union-imposed fines. But
the Board through case-by-case treatment has been developing
an administrative common law concerning "unfair"
practices of employers and unions alike. We have
said on other occasions that the "experience and commonsense"
which are facets of the expertise of the Board,
NLRB v. Radio & Television Broadcast Engineers, 364
U. S. 573, 582-583, are adequate for the difficult and
delicate responsibilities ,vhich Congress has entrusted
to it, subject of course to judicial review. A fine discretely
related to a legitimate union need and reflecting
principled motivations under the law is one thing.
A fine that reflects the raw power exercised by a union
in its hunger for all-pervasive authority over members
is quite another problem. The Labor Board, which
knows the nuances of this problem better than any other
tribunal, is the keeper of the conscience under the Act.
It and it alone has primary responsibility to police unions,
as well as employers, in protection of the rights of workers.
In my vie,v it cannot properly perform its duties
under § 8(b)(l)(A) unless it determines whether the
nature and amount of the fine levied by a union constitute
an unfair labor practice.
84 OCTOBER TER\1, 1972
Syllabus 412 U.S.
BOOSTER LODGE NO. 405, INTERNATIONAL ASSOCIATION
OF MACHJXISTS & AEROSPACE
1VORKERS, AFL-CIO v. NATIONAL LABOR
RELATIONS BOARD ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
·THE DISTRICT OF COLLMBIA CIRCUIT
Ko. 71~1417. Argued l\farch 26, 1973-Decided May 21, 1973
\Vhrre the Union's constitution and b~faws are silent on the subject
of voluntary resignation from the Union, the Fnion committed an
unfair labor practice whC'n it sought court enforcement of fines
imposed for strikebreaking activities by employees who had resigned
from the Union, even though the Union constitution expressly
prohibitC'd members from strikebreaking. NLRB v. Textile
Workers, 409 U.S. 213.
148 U. S. App. D. C. 119, 459 F. 2d 1143, affirmed.
Bernard Dunau argued the cause for petitioner. With
him on the briefs were Plato E. Papps, Louu; P. Poulton,
and C. Paul Barker.
Norton J. Come argued the cause for respondent National
Labor Relations Board. With him on the brief
were Solicitor General Gru;wold, Harriet S. Shapiro,
Peter G. ,\'ash, Jnhn S. Irving, and Patrick Hardin.
Samuel Lang argued the cause for respondent Boeing Co.
With him on the brief ,vcre C. Dale Stout and Frederick
A. Kullman*
*.!. Albert Woll, Laurence Gold, and Thomas E. Harris filC'd a
brief for the American Federation of Labor and Congress of Industrial
Organizations as amicus curiae urging reversal.
Milton Smith, Gerard C. Smetana, and Jerry Kronenberg filed a
brief for the Chamber of Commerce of the United States as amicus
curiae urging affirmance.
MACHINISTS & AEROSPACE WORKERS v. NLRB 85
84 Per Curiam
PER CuRIAM.
In this companion case to NLRB v. Boeing Co., ante,
p. 67, we must decide whether our decision in XLRB
v. Textile TVorlrnrs, 409 U. S. 213, authorizes the Board
to find that a union commits an unfair labor practice in
seeking court enforcement of fines imposed for strikebreaking
activities by employees who have resigned
from the union, even though the union constitution expressly
prohibits members from strikebreaking. We hold
that it does.
On September 16, 1965, the day after the expiration
of the collective-bargaining agreement between Booster
Lodge No. 405, International Association of Machinists
and Aerospace \Yorkers, AFL-CIO (the Union), and
the Boeing Co. (the Company), the Union called a
lawful strike and picketed the Company's Michoud,
Louisiana, plant to further its demands for a new contract.
The strike continued for 18 days, during which
time 143 of the 1,900 production and maintenance employees
represented by the Union crossed the picket line
to work. All of these employees had been members of
the Union before the strike,1 but 61 resigned their membership
prior to returning to work and another 58 resigned
after they returned to work.2 These resignations
were tendered in registered or certified letters to the
Union. Neither its constitution nor its bylaws con-
1 The expired collective agreement contained a maintenance-ofllll'mhership
provision that required new employees, as a condition
of continued employment, to become members of the Union unless
t,hey notified both the Union and the Company within 40 days of
accepting employment that they did not wish to join. Further,
Union members were required to maintain their membership during
the life of the contract.
2 The remaining employees who returned to work during the strike
did not resign from the Union.
86 OCTOBER TERM, 1972
Per Curiam 412 U.S.
tained any provision expressly permitting or forbidding
such resignations.
The strike ended on October 4, 1965, after ratification
of a new collective-bargaining agreement by the Union
membership. During late October and early November,
the Union notified all employees who had crossed the
picket line to work during the strike that charges had
been preferred against them under the Union constitution
for "Improper Conduct of a Member" because of their
having "accept[ed] employment ... in an establishment
where a strike or lockout exist [ ed] ." They were
advised of the dates of their Union trials, which were to
be held even in their absence, and of their right to be
represented by any counsel who was a member of the
International Union. Fines were imposed on all employees
who had worked during the strike without regard
to whether or not such employees had resigned or had
remained members.3 None of the disciplined employees
processed intra-union appeals. To the extent that fines
were not paid,4 the Union sent written notices to the
offending employees stating that the matter had been
referred to an attorney for collection. Suits were initiated
in state court against nine employees for the purpose of
collecting the fines plus attorneys' fees and interest.
None of these suits has been resolved.
The Company filed an unfair labor practice charge
with the National Labor Relations Board alleging that
the Union had violated § 8 (b) (1) (A) of the National
Labor Relations Act, 61 Stat. 141, 29 U. S. C. § 158 (b)
3 A standard fine of $450 was imposed on each of the disciplined
employees. The amount was reduced, however, for those few members
who appeared at their hearings, apologized for their actions, and
pledged loyalty to the Union.
• None of the $450 fines has been paid, but reduced fines have been
paid in a few instances.
MACHINISTS & AEROSPACE WORKERS v. NLRB 87
84 Per Curiam
(l)(A).5 The General Counsel issued a complaint, and
the Board held that the Union violated S(b) (1) (A), by
fining those employees who had resigned from the Union
before returning to work during the strike, and by fining
those who had resigned after returning to work to the extent
that such fines were based on post-resignation work.
Xo violation was found in the Union's fining members for
crossing the picket line to work during the strike or in
its fining those employees who resigned after they returned
to work for work performed prior to resignation.
The Board ordered the Union to cease and desist from
fining employees who had resigned from the Union for
their post-resignation work during the strike and from
seeking court enforcement of such fines. It further ordered
reimbursement to employees who had already paid
fines for any amount imposed because of post-resignation
work. The Court of Appeals sustained these holdings,
148 U.S. App. D. C. 119,459 F. 2d 1143 (1972), and, on
the Union's petition for review, we granted certiorari.
409 u. s. 1074.
In NLRB v. Textile Workers, 409 U.S., at 217, we held
that " [ w] here a member lawfully resigns from a union
and thereafter engages in conduct which the union rule
proscribes, the union commits an unfair labor practice
when it seeks enforcement of fines for that conduct."
Since in that case there was no provision in the union's
constitution or bylaws limiting the circumstances in which
a member could resign, we concluded that the members
5 Section 8 (b) (1) (A) of the Act provides, in relevant part:
"It shall be an unfair labor practice for a labor organization or its
agents-
" (1) to restrain or coerce (A) employees in the exercise of the
rights guaranteed in section 7: Provided, That this paragraph shall
not impair the right of a labor organization to prescribe its own
rules with respect to the acquisition or retention of membership
therein . . . . "
88 OCTOBER TERM, 1972
Per Curiam 412 U.S.
were free to resign at ,.vm and that § 7 of the Act, 29
U. S. C. § 157,6 protected that right to return to ,vork
during a strike which had been commenced while they
were union members.7 The Union's imposition of courtcollectible
fines against the former members for such
work was. therefore, held to violate § 8 (b)(l)(A).
Here, as in Textile Workers, the Union's constitution
and bylaws are silent on the subject of voluntary resignation
from the rnion.& And here, as there, ,ve leave open
the question of the extent to which contractual restriction
on a member's right to resign may be limited by the Act.
Since there is no evidence that the employees here either
knew of or had consented to any limitation on their
right to resign, we need "only to apply the law which
normally is reflected in our free institutions-the right of
the individual to join or to resign from associations, as
he sees fit 'subject of course to any financial obligations
due and owing' the group with which he was associated."
Textile Workers, supra, at 216.
The Union contends, however, that a result different
from Textile W urkers is warranted in this case because,
6 Section 7 of the Act provides, in relevant part:
"Employpes shall han' 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 collr·ctive bargaining or otlwr
mutual aid or protertion, and shall also lmve the right to refrain
from any or all of surh activities ... . "
' It was stipulated in that case that all :n of the employees who
resigned from the Union during the strike and returned to work
participated in the strikc vote, and voted in favor of the strike.
NLRB v. Textile Workers, 409 U. S. 21:3, 219 11. 2 (BLACKMUN, .T.,
diesenting).
8 Since the collective-bargaining agrremrnt expired prior to the
times of the resignations, the maintenance-of-membership clause
therein was no impediment to resigning.
MACHINISTS & AEROSPACE WORKERS v. NLRB 89
84 Per Curiam
even though its constitution does not expressly restrict
the right to resign during a strike, it does impose on
members an obligation to refrain from strikebreaking.
The Union asserts that this provision has been consistently
interpreted to bind a member, notwithstanding
his resignation, to abstain from strikebreaking for the
duration of an existing strike. It urges that this provision
may be enforced as a matter of contract law against
one whose membership has ceased, because it was an
obligation he undertook while a member.
The provision in the Union's constitution which proscribes
strikebreaking by its terms purports only to
define "misconduct of a member." Nothing in the record
indicates that Union members were informed, prior to
the bringing of the charges that were the basis of this
action, that the provision v.·as interpreted as imposing
any obligation on a resignee." Thus, in order to sustain
the Union's position, we would first have to find, contrary
to the determination of the Board and of the Court
of Appeals, that the Union constitution by implication
extended its sanctions to nonmembers, and then further
conclude that such sanctions were consistent with the
Act. But we are no more disposed to find an implied
post-resignation commitment from the strikebreaking
proscription in the Union's constitution here than we
were to find it from the employees' participation in the
strike vote and ratification of penalties in Textile
9 The Union points out in its brief that at the 1972 International
Union convention its interpretation of the strikebreaking proscription
was made explicit. This constitutional amrndment, made seven
y<'ars after the strike her<', is persuasive evidC'ncc that it was not
there before, or at a minimmn, that the proscription thrn existing
did not apprise the employees of their asserted obligations to th<'
Union
90 OCTOBER TERM, 1972
BLACKMUN, J., concurring in judgment 412 U.S.
Workers.10 Accordingly, the judgment of the Court of
Appeals sustaining the Board's finding of an unfair labor
practice on the part of petitioner Union is
Affirmed.
MR. JL"STICE BLACKML"N, concurring in the judgment.
In NLRB v. Textile Workers, 409 U. S. 213 (1972),
the strikebreaking employees, while they were members
of the union, had all voted to strike. On the day following
the inception of the strike, these employees also
voted in favor of a union resolution that anyone aiding
or abetting the company during the strike would be subject
to a fine.* And all had participated in the strike
prior to resigning from the union.
I was in solitary dissent in Textile Workers, id., at
218. I emphasized there that "it seems likely that
the three factors of a member's strike vote, his ratification
of strikebreaking penalties, and his actual participation
in the strike, would be far more reliable indicia
of his obligation to the union and its members than the
pret:;ence of boilerplate provisions in a union's constitution,"
id., at 220; that the Court's opinion seemed to me
"to exalt the formality of resignation over the substance
of the various interests and national labor policies that
[ were] at stake," id., at 221; that § 7 of the National
Labor Relations Act "does not necessarily give him [ the
employeeJ the right to abandon these [union] activities
10 In its reply brief, the Union argues that in Textile Workers there
was no limiting rule on post-resignation return to work during the
course of the strike, but that in this case, the Union constitution
proscribed such conduct. In Textile Workers, however, there was a
duly enacted rule prohibiting any member from aiding a.nd abetting
the employer during the strike and subjecting violators to a $2,000
fine. On its face, the constitutional proscription here advanced
is no broader than that rule.
*See 409 U. S., at 218-219, nn. 1 and 2.
MACHINISTS & AEROSPACE WORKERS v. NLRB 91
84 BLACKMUN, J., concurring in judgment
in midcourse once he has undertaken them voluntarily,"
id., at 222, quoting from 446 F. 2d 369, 373; and that
the policy of § 7 would not be frustrated by a holding
that an employee, in the circumstances of that case, could
"knowingly waive his § 7 right to resign from the union
and to return to work without sanction." 409 U. S., at
222-223.
The present case, however, is a very different situation.
None of the Boeing employees who resigned from the
Union had been given notice of a strikebreaking penalty
before the strike vote or before their participation in the
strike. The imposition of a penalty was never ratified
formally by the union membership. The members were
not notified that post-resignation strikebreaking was
proscribed and would subject them to union discipline.
And the provision in the Union's constitution, referred
to by the Court, ante, at 89, as to a member's general
obligation to refrain from strikebreaking, surely does not
make up for this lack of notice, and it would not do so
even if it were clearly applicable, which it is not, to
strikebreaking after resignation from the Union.
Without effective notice of obligations that are supposed
to be assumed, there can be no waiver of a member's
§ 7 right to refrain from participation in a legal
strike. In the absence of such notice,§ 8 (b)(I)(A) bars
the union from subjecting a member to a choice between
the substantial obligation of weathering the strike and
that of being subjected to court-collectible fines for
failure to do so.
I, therefore, join in the Court's judgment.
92 OCTOBER TERM, 1972
Counsel 412 U.S.
SCHOOL BOARD OF CITY OF RICHMOND,
VIRGIKIA, ET AL. V. STATE BOARD OF
EDUCATION OF VIRGT~IA ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOl"RTH CIRCUIT
1\o. 72-549. Argued April 23, 197a-Dfeided }fay 21, 1973*
462 F. 2d 1058, affirmed by an cqnalty divided Court.
George B. Little argued the cause for petitioners in
No. 72-549. With him on the briefs was Conrad B.
Mattox, .Tr. William T. Coleman, .Tr., argued the cause
for petitioners in No. 72- 550. \Vith hirn on the briefs
were Jack Greenberg, James M. 1Vabrit III, Norman J.
Chachkin, Louis R. Lucas, William L. Taylor, and Anthony
G. Amsterdam.
Philip B. Kurland argued the cause for respondents in
both cases. With him on the brief were Edward I.
Rothschild, Andrew P. Miller, Attorney General of Virginia,
William G. Broaddus and D. Patrick Lacy, Jr.,
Assistant Attorneys General, Frederick T. Gray, Walter E.
Rogers, J. Segar Gravatt, R. D. Mcllwaine III, L. Paul
Byrne, aud J. Mercer White, Jr.
Solicitor General Griswold argued the cause for the
United States as arnicus curiae urging affirmance in both
cases. \Vith him on the brief were Assi,stant Attorney
General J>ottinger, A. Raymond Randolph, Jr., Brian K.
Landsberg, and John C. Hoyle.t
*Together with No. 72-550, Bradley et al. v. State Board of Education
of Virginia et al., also on certiorari to the same court.
t Briefs of amici curiae urging reversal in both cases were filed by
Stephen ,/. Pollak, Richard M. Sharp, and David Rubin for the
National Education Association, and by ilfelvin L. Wulf, Sanford Jay
Rosen, and Philip Hirschkop for the American Civil Liberties Union
RICH:vIO~D SCHOOL BOARD v. BOARD OF EDl'C. 93
92 Per Curiam
PER CuRIAM.
The judgment is affirmed by an equally divided Court.
:MH. Jus'l'ICE PowELL took no part in the consideration
or decision of these cases.
et al. Margie Pitts Ha mes filed a brief for the Black Parents of
Atlanta, Georgia, as amicus curiae urging reversal in No. 72-550.
13riefs of amici curiae urging affirmance in both cases were filed
by David 1. Caplan for the Jewish Rights Council, and by
Harold H. Fuhrman for the ~ational Suburban Leagur, Ltd.
Charles S. Conley and Floyd B. McKissick filed a brief for the
Congress of Racial Equality as amicus curiae urging affirmaner in
~o. 72-549.
94 OCTOBER TER:-.1, 1972
Syllabus 412 u. s.
COLUMBIA BROADCASTING SYSTEM, INC. v.
DEMOCRATIC NATIONAL COMMITTEE
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
No. 71-863. Argued Ortober 16, 1972-Decided May 29, 1973*
The Democratic National Committee requested a declaratory ruling
from the Federal Communications Commission (FCC) that the
Communications Act or the First Amendment precluded a licensee
from having a general policy of refusing to sell time to "responsible
entities" to present their views on public issues. The Business
Executives' ~love for Vietnam Peace filed a complaint with
the FCC, alleging that a. broadcaster had violated the First Amendment
by refusing to sell it time to broadcast spot announcements
expressing the group'~ views on the Vietnam conflict and that the
station's coverage of antiwar views did not meet the requirements
of the Fairness Doctrint>. The FCC rejected the Fairness Doctrine
challenge and ruled that a broadcaster was not prohibited from
having a policy of refusing to accept paid editorial advertisements
by individuals and organizations like respondents. The Court of
Appeals reversed, holding that "a flat ban on paid public issue
announcements is in violation of the First Amendment, at least
when other sorts of paid announcements are accepted," and remanded
the causes to the FCC to develop regulations governing
which, and how many, editorial announcements would be aired.
Held: Neither the Communications Act nor the First Amendment
requires broadcasters to accept paid editorial advertisements.
Pp. 101-114; 121-170.
146 U. S. App. D. C. 181, 450 F. 2d 642, revrrst'd.
MR. CHIEF JusTICE BuRGER delivered the opinion of the Court
with respect to Parts I, II, and IV, nnding that:
1. The basic criterion governing use of broadcast frequencies is
the right of the public to be informed; the manner by which this
*Together with Nos. 71-864, Federal, Communications Commission
et al v. Business Executives' Move for Vietnam Peace et al,.; 71-
865, Post-Newsweek Stations, Capita/, Area, Inc. v. Business Executives'
Move for Vietnam Peace; and 71- 866, American Broadcasting
Cos., Inc. v. Democratic National Committee, also on certiorari to
thr same court ..
COLUMBIA BROADCASTING v. DEMOCRATIC COMM. 95
94 Syllabus
interest is best served is dispositive of the respondents' statutory
and First Amendment contentions. Pp. 101-114.
(a) In evaluating re.'!pondents' claims, great weight must be
afforded the decisions of Congress and the experience of the FCC.
Pp. 101-103.
(b) Congress has consistently rejected efforts to impose on
broadcasters a "common carrier" right of access for all pnsons
wishing to speak out on public issues. Instead, it reposed in the
FCC regulatory authority by which the Fairness Doctrine was
evolved to require that the broadcaster's coverage of important
public issues must be adequate and must fairly reflect differing
viewpoints; thus, no private individual or group has a right to
command the use of broadcast facilities. Pp. 103-114.
2. The "public interest" standard of the Communications Act,
which incorporates First Amendment prinriples, does not require
broadcasters to accept editorial advntisrments. Pp. 121- 131.
(a) The FCC was justified in conrluding that the public
interest in having acc('SS to the marketplare of "ideas and experiences"
would not be served by ordering a right of arcess to
advertising time. There i~ substantial risk that such a system
would be monopolized by those who could and would pay the costs,
that the effective operation of the Fairness Doctrine itself would
be undermined, and that the public account.ability which now rests
wit.h the broadcaster would be diluted. Pp. 121-125.
(b) The difficult problems involved in implementing an absolute
right of access would inevitabl:,· implicate the FCC in a
case-by-case determination of who should be heard and when, thus
enlarging: the involvement of the Government in broadcasting
operations. The FCC could properly takr into account the fact
that listeners and viewers constitute a kind of "captive audience"
and that the public interest requires that a substantial degree of
journalistic disrrrtion must remain with broadcasters. Pp.
126-130.
THE CHIEF ,Jus'l'ICE, joinrd by MR. ,JUSTICE STEWART and l\fR.
JUSTICE REHNQUIST, concluded, in Part III, that a broadcast licensee's
refusal to accept a paid editorial advertisement does not
constitute "governmental action" for First Amendment purposes.
The Government is neither a "partnrr" to thr artion complained
of nor cngagrd in a "symbiotic relationship" with the licensee.
Pp. 114-121.
(a) Under thf' Communications Act a broadcast licensee is
vested with substantial journalistic discretion in deciding how to
meet its statutory obligations as a "public trust1:e." Pp. 114-117.
96 OCTOBER TERM, 1972
Syllabus 412 U.S.
(b) The licensee's policy against accepting editorial advertising
is compatible with the Communications Act and with the
broadcaster's obligation to provide a balanced treatment of controversial
questions. Pp. 118-121.
(c) The FCC has not fostered the licensee policy against accepting
editorial advertisements; it has merrly declined to command
acceptance because the subject was a matter within the area
of journalistic discretion. P. 118.
BURGER, C. J., announced the Court's judgment and delivered an
opinion of the Court with respect to Parts I, II, and IV, in which
WHITE, DLACK~IUN, PowELL, and REHNQUIST, JJ., joined, and
in which as to Parts I, II, and III STEWART and REHNQUrsT, JJ.,
joint>d. STEWART, J., filed an opinion concurring in Parts I. II,
and III, post, p. 132. WHITE, J., filed an opinion concurring in
Parts I, II, and IV, post, p. 146. BLACKMUN, J., filed an opinion
concurring in Parts I, II, and IV, in which PowELL, .J., joined. post,
p. 147. DoUGLAS, J., filed an opinion concurring in the judgment,
post, p. 148. BRENNAN, J., filed a dissenting opinion, in which
MARSHALL, J., joined, post, p. 170.
J. Roger vVollenberg argued the cause for petitioner
in No. 71-863. With him on the briefs were Lloyd N.
Cutler, Timothy B. Dyk, Daniel Marcus, Robert V.
Evans, John D. Appel, and Joseph DeFranco. Solicitor
General Griswold argued the cause for petitioners in No.
71-864. With him on the brief were Acting Assistant
Attorney General Comegys, Howard E. Shapiro, and
John W. Pettit. Ernest W. Jermes argued the cause for
petitioner in o. 71- 865. \Vith him on the briefs were
Charles A. Miller and Mirhael Boudin. Vernon L.
J:Vilkinson argued the cause for petitioner in No. 71-866.
With him on the brief were James A. McKenna, Jr., and
Carl R. Ramey.
Joseph A. Califano, Jr., argued the cause for respondent
Democratic National Committee in Nos. 71-863, 71-864,
and 71- 866. With him on the brief was John G. Kester.
Thomas R. Asher argued the cause for respondent Busi!
I
I I
COLUMBIA BROADCASTING v. DEMOCRATIC COMM. 97
94 Opinion of the Court
ness Executives' Move for Vietnam Peace in Nos. 71-
864 and 71-865. With him on tho brief was Albert H.
Kramer.t
MR. CHIEF JusTICE BURGER delivered the opmwn of
the Court (Parts I, II, and IV) together with an opinion
(Part III), in ·which :Mn. JUSTICE STEWART and MR.
JusTICE REHNQUIST joined.
\Ve granted the ,vTits of certiorari in these cases to
consider whether a broadcast licensee's general- policy of
not selling advertising time to individuals or groups
wishing; to speak out on issues they consider important
violates the Federal Communications Act of 1934, 48
Stat. 1064, as amended, 47 ·e. S. C. § 151 e•t seq., or the
First Amendment.
In two orders announced the same day, the Federal
Communications Commission ruled that a broadcaster
who meets his public obligation to provide full and fair
coverage of public issues is not required to accept editorial
advertisements. Democratic National Committee,
25 F. C. C. 2d 216; Business Executives' Move for
Vietnam Peace, 25 F. C. C. 2d 242. A divided Court
of Appeals reversed the Commission, holding that a
broadcaster's fixed policy of refusing editorial advertisements
violates the First Amendment; the court remanded
the cases to the Commission to develop procedures and
guidelines for administering a First Amendment right of
access. Business Executives' }llove For Vietnam Peace
v. FCC, 146 U. S. App. D. C. 181, 450 F. 2d 642 ( 1971).
The complainants in these actions are the Democratic
tFloyd Abrams and Corydon B. Dunham filed a brief for National
Broadca,;ting Co., Inc., as amicus curiae urging reversal.
J. Albert Woll, Laurence Gold, and 'Thomas E. Harris filed a brief
for the American .Federation of Labor and Congress of Industrial
Organizations as amicus curiae urging affirmance.
98 OCTOBER TER1l, 1972
Opinion of the Court 412 U.S.
~ational Committee (DNC) and the Business Executives'
Move for Vietnam Peace (BEM), a national organization
of businessmen opposed to United States involvement
in the Vietnam conflict. In January 1970,
BEM filed a complaint with the Commission charging
that radio station WTOP in Washington, D. C., had
refused to sell it time to broadcast a series of onP-minute
spot announcements expressing BEM views on Vietnam.
v\"TOP, in common with many, but not all, broadcasters,
followed a policy of refusing to sell time for spot announcements
to individuals and groups who wished to
expound their views on controversial issues. WTOP
took the position that since it presented full and fair
coverage of important public questions, including the
Vietnam conflict, it was justified in refusing to accept
editorial advertisements. WTOP also submitted evidence
showing that the station had aired the views of
critics of our Vietnam policy on numerous occasions.
BEM challenged the fairness of WTOP's coverage of
criticism of that policy, but it presented no evidence in
support. of that claim.
Four months later, in May 1970, DNC' filed with the
Commission a request for a declaratory ruling:
"That under thf' First Amendment to the Constitution
and the Communications Act, a broadcaster
may not, as a general policy, refuse to sell time to
responsible entities, such as the DNC, for the solicitation
of funds and for comment on public issues."
DNC claimed that it intended to purchase time from
radio and television stations and from the national networks
in order to present the views of the Democratic
Party and to solicit funds. Unlike BEM, DNC did not
object to the policies of any particular broadcaster but
claimed that its prior "experiences in this area. make it
COLUMBIA BROADCASTING V. DEMOCRATIC cm.,rM. 99
94 Opinion of the Court
clear that it will encounter considerable difficulty-if not
total frustration of its efforts-in carrying out its plans
in the event the Commission should decline to issue a
ruling as requested." DNC cited Red Lion Broadcasting
Co. v. FCC, 395 U.S. 367 (1969), as establishing a limited
constitutional right of access to the airwaves.
In two separate opinions, the Commission rejected
respondents' claims that "responsible" individuals and
groups have a right to purcha8e advertising time to
comment on public issues without regard to whether the
broadcaster has complied with the Fairness Doctrine.
The Commission viewed the issue as one of major significance
in administering the regulatory scheme relating
to the electronic media, one going "to the heart of the
system of broadcasting which has developed in this country
.... " 25 F. C. C. 2d, at 221. After reviewing the
legislative history of the Communications Act, the provisions
of the Act itself, the Commission's decisions under
the Act, and the difficult problems inherent in administering
a right of access, the Commission rejected the demands
of BEM and DNC.
The Commission also rejected BEM's claim that
WTOP had violated the Fairness Doctrine by failing to air
views such as those held by members of BEM; the Commission
pointed out that BEM had made only a "general
allegation" of unfairness in WTOP's coverage of the Vietnam
conflict and that the station had adequately rebutted
the chnrge by affidavit. The Commission did, however,
uphold DNC's position that the statute recognized a
right of political parties to purchase broadcast time for
the purpose of soliciting funds. The Commission noted
that Congress has accorded special consideration for
access by political parties, see 47 U.S. C. § 315 (a), and
that solicitation of funds by political parties is both
100 OCTOBER TEHi\l, 1972
Opinion of the Court 412 U.S.
feasible and appropriate in the short space of time generally
allotted to spot advertisements.1
A majority of the Court of Appeals reversed the Commission,
holding that "a flat ban on paid public issue
announcements is in violation of the First Amendment,
at least ·when other sorts of paid announcements are accepted.''
14(-i P. S. App. D. C., at 185, 450 F. 2d, at 646.
Recognizing that the broadcast frequencies are a scarce
resource inherently unavailable to all. the court nevertheless
concluded that the First Amendment mandated
an "a.bridgeable'' right to present editorial advertisements.
The court reasoned that a broadcaster's policy
of airing commercial advertisements but not editorial
advertisements constitutes uncollstitutional discrimination.
The court did not, however, order that either
BEM's or DNC's proposed announcements must be accepted
by the broadcasters; rather, it remanded the cases
to the Commission to develop "reasonable procedures
and regulations determining which and how many 'editorial
advertisements' will he put on the air." Ibid .
.Judge :'VIcGo,van dissented; in his view, the First
.Amendment did not compel the Commission to undertake
the task assigned to it by the majority:
"It is presently the obligation of a licensee to
advance the public's right to know by devoting a
substantial amount of time to the presentation of
controversial views on issues of public importance,
striking a balance which is always subject to redress
by ref erencc to the fairness doctrine. Failure to
do so puts continuation of the license at risk-a
sanction of tremendous potency, and one which the
Commission is under increasing pressure to employ.
1 The Commission's rulings against BEM's Fairness Doetrinc complaint
and in favor of DNC's claim that political parties should be
permitted to purchase air time for solicitation of funds were not appealed
to the Court of Appeals and are not before us here.
COLUMBIA BROADCASTING v. DEMOCRATIC COMM. 101
94 Opinion of the Court
"This is the system which Congress has, wisely
or not, provided as the alternative to public ovvnership
and operation of radio and television communications
facilities. This approach has never been
thought to be other than within the permissible limits
of constitutional choice." 146 U. S. App. D. C.,
at 205, 450 F. 2d, at 666.
Judge McGowan concluded that the court's decision to
overrule the Commission and to remand for development
and implementation of a constitutional right of access
put the Commission in a "constitutional straitjacket" on
a highly complex and far-reaching issue.
I
MR. JusTICE WHITE'S opinion for the Court in Red
Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969),
makes clear that the broadcast media pose unique and
special problems not present in the traditional free speech
case. Unlike other media, broadcasting is subject to an
inherent physical limitation. Broadcast frequencies are
a scarce resource; they must be portioned out among applicants.
All who possess the financial resources and the
desire to communicate by television or radio cannot be
satisfactorily accommodated. The Court spoke to this
reality when, in Red Lion, we said "it is idle to posit an
unabridgeablc First Amendment right to broadcast comparable
to the right of every individual to speak, write,
or publish." Id., at 388.
Because the broadcast media utilize a valuable and
limited public resource, there is also present an unusual
order of First Amendment values. Red Lion discussed
at length the application of the First Amendment
to the broadcast media. In analyzing the broadcasters'
claim that the Fairness Doctrine and two of its
component rules violated their freedom of expression, we
102 OCTOBER TER;\I, 1972
Opinion of the Court 412 U.S.
held that "[n] o one has a First Amendment right to a
license or to monopolize a radio frequency; to deny a
station license because 'the public interest' requires it,
'is not a denial of free speech.'" Id., at 389. Although
the broadcaster is not without protection under the First
Amendment, United States v. Paramount Pictures, Inc.,
334 V. S. 131, 166 (1948), "[i]t is the right of the viewers
and listeners, not the right of the broadcasters, which is
paramount. . . . It is the right of the public to receive
suitable access to social, political, esthetic, moral, and
other ideas and experiences which is crucial here. That
right may not constitutionally be abridged either by Congress
or by the FCC." Red Lion, supra, at 390.
Balancing the various First Amendment interests involved
in the broadcast media and determining what best
serves the public's right to be informed is a task of a great
delicacy and difficulty. The process must necessarily be
undertaken within the framework of the regulatory
scheme that has evolved over the course of the past half
century. For, during that time, Congress and its chosen
regulatory agency have established a delicately balanced
system of regulation intended to serve the interests
of all concerned. The problems of regulation are rendered
more difficult because the broadcast industry is
dynamic in terms of technological change; solutions adequate
a decade ago are not necessarily so now, and those
acceptable today may well be outmoded 10 years hence.
Thus, in evaluating the First Amendment claims of respondents,
we must afford great weight to the decisions
of Congress and the experience of the Commission. Professor
Chafee aptly observed:
"Once we get away from the bare words of the
[First] Amendment, we must construe it as part of
a Constitution which creates a government for the
purpose of performing several very important tasks.
COLUMBIA BROADCASTING v. DEMOCRATIC COMM. 103
94 Opinion of I he Court
The [First] Amendment should be interpreted so as
not to cripple the regular work of the government.
A part of this work is the regulation of interstate
and foreign commerce, and this has come in our
modern age to include the job of parceling out the
air among broadcasters, which Congress has entrusted
to the FCC. Therefore, every free-speech problem
in the radio has to be considered with reference to
the satisfactory performance of this job as well as to
the value of open discussion. Although free speech
should weigh heavily in the scale in the event of
conflict, still the Commission should be given ample
scope to do its job." 2 Z. Chafee, Government and
Mass Communications 640-641 (1947).
The judgment of the Legislative Branch cannot be
ignored or undervalued simply because one segment of the
broadcast constituency casts its claims under the umbrella
of the First Amendment. That is not to say we "defer" to
the judgment of the Congress and the Commission on a
constitutional question, or that ,ve would hesitate to
invoke the Constitution should we determine that the
Commission has not fulfilled its task with appropriate
sensitivity to the interests in free expression. The point
is, rather, that ,vhen we face a complex problem with
many hard questions and few easy answers we do well
to pay careful attention to how the other branches of
Government have addressed the same problem. Thus,
before confronting the specific legal issues in these cases,
we turn to an examination of the legislative and administrative
development of our broadcast system over the
last half century.
II
This Court has on numerous occasions recounted the
origins of our modern system of broadcast regulation.
See, e. g., Red Lion, supra, at 375-386; National Broad104
OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
casting Co. v. United States, 319 U. S. 190, 210-217
(1943); FCC v. Sanders Brothers Radio Station, 309
U. S. 470, 474 (1940); FCC v. Pottsville Broadcasting
Co., 309 l,;, S. 134, 137-138 (1940). We have
noted that prior to the passage of the Radio Act of 1927,
44 Stat. 1162, broadcasting was marked by chaos. The
unregulated and burgeoning private use of the new
media in the 1920's had resulted in an intolerable situation
demanding congressional action:
"It quickly became apparent that broadcast frequencies
constituted a scarce resource whose use
could be regulated and rationalized only by the Government.
Without government control, the medium
would be of little use because of the cacaphony of
competing voices, none of which could be clearly
and predictably heard." Red Lion, supra, at 376.
But, once it was accepted that broadcasting was subject
to regulation, Congress was confronted with a major
dilemma: how to strike a proper balance between private
and public control. Cf. Farmers Union v. WDAY,
360 u. s. 525, 528 (1959).
One of the earliest and most frequently quoted statements
of this dilemma is that of Herbert Hoover, when
he was Secretary of Commerce. While his Department
was making exploratory attempts to deal with the infant
broadcasting industry in the early 1920's, he testified before
a House Committee:
"\Ve can not allow any single person or group to
place themselves in [a] position where they can
censor the material which shall be broadcasted to the
public, nor do l believe that the Government should
ever be placed in the position of censoring this
material." Hearings on H. R. 7357 before the House
Committee on the :Merchant Marine and Fisheries,
68th Cong., 1st Sess., 8 (Hl24).
COLt'.MBIA BROADCASTING v. DK\:IOCRATIC COl\-IM. 105
94 Opinion of the Court
That statement foreshadowed the "tightrope" aspects of
Government regulation of the broadcast media, a problem
the Congress, the Commission, and the courts have
struggled with ever since. Congress appears to have
concluded, however, that of these two choices-private
or cfficial censorship-Government censorship would be
the most pervasive, the most self-serving, the most difficult
to restrain and hence the one most to be avoided.
The legislative history of the Radio Act of 1927,
the model for our present statutory scheme, see FCC
v. Pottsville Broadcasting Co., supra, at 137, reveals
that in the area of discussion of public issues Congress
chose to leave broad journalistic discretion with the
licensee. Congress specifically dealt with-and firmly
rejected-the argument that the broadcast facilities
should be open on a nouselective basis to all persons
wishing to talk about public issues. Some members of
Congress-those whose views were ultimately rejectedstrenuously
objected to the unregulated power of broadcasters
to reject applications for service. See, e. g.,
H. R. Rep. No. 404, 69th Cong., 1st Sess., 18 (minority
report). They regarded the exercise of such power to
be "private censorship," which should be controlled by
treating broadcasters as public utilities.2 The provision
that came closest to imposing an unlimited right of access
to broadcast time was part of the bill reported to the
Senate by the Committee on Interstate Commerce. The
'Congressman Davis, for example, stated on the floor of the House
the view that Congress found unacceptable:
"I do not think any member of the committee will deny that it is
absolutely inevitable that we are going to have to regulate the radio
public utilities just as we regulate other public utilities. We are
going to have to regulate the rates and the service, and to force
them to give equal service and equal treatment to all." 67 Cong.
Rec. 5483 (1926). See also id., at 5484.
106 OCTOBER TERM, 1972
Opinion of the Court 412 u. s.
bi11 that emerged from the Committee contained the
following provision:
"[I1f any licensee shall permit a broadcasting station
to be used ... by a candidate or candidates for
any public office, or for the discussion of any question
affecting the public, he shall make no discrimination
as to the use of such broadcasting station,
and with respect to said matters the licensee
shall be deemed a common carrier in interstate commerce:
Provided, that such licensee shall have no
power to censor the material broadcast." 67 Cong.
Rec. 12503 (1926) (emphasis added).
When the bi11 came to the Senate floor, the principal
architect of the Radio Act of 1927, Senator Dill, offered an
amendment to the provision to eliminate the common
carrier obligation and to restrict the right of access to
candidates for public office. Senator Dill explained the
need for the amendment:
"When we recall that broadcasting today is purely
voluntary, and the listener-in pays nothing for it,
that the broadcaster gives it for the purpose of building
up his reputation, it seemed unwise to put the
broadcaster under the hampering control of being a
common carrier and compelled to accept anything
and everything that was offered him so long as the
price ·was paid." 67 Cong. Rec. 12502.
The Senators were also sensitive to the problems involved
in legislating "equal opportunities" with respect to the
discussion of public issues. Senator Dill stated:
" [ 'Public questions' J is such a general term that
there is probably no question of any interest whatsoever
that could be discussed but that the other side
of it could demand time; and thus a radio station
COLUMBIA BROADCASTING v. DEMOCRATIC COMM. 107
94 Opinion of the Court
would be placed in the position that the Senator
from Iowa mentions about candidates, namely, that
they would have to give all their time to that kind
of discussion, or no public question could be discussed."
Id., a.t 12504.
The Senate adopted Senator Dill's amendment. The
provision finally enacted, § 18 of the Radio Act of 1927,
44 Stat. 1170, was later re-enacted as § 315 (a) of the
Communications Act of 1934,3 but only after Congress
rejected another proposal that would have imposed a
limited obligation on broadcasters to turn over their
microphones to persons wishing to speak out- on certain
3 Section 315 (a) now reads:
"If any licensee shall permit any person who is a legally qualified
candidate for any public office to use a broadcasting station, he
shall afford equal opportunities to all other such candidates for that
office in the use of surh broadcasting station: Provided, That such
licensee shall have no power of censorship over the material broadcast.
under the provisions of this section. No obligation is imposed
under this subsection upon any licensee to allow the use of its station
by any such candidate. Appearance by a legally qualified ca.ndidate
on any-
" ( 1) bona fide newscast,
"(2) bona fide news interview,
"(3) bona fide news documentary (if the appearance of the candidate
is incidental to the presentation of the subject or subjects
covered by the news documentary), or
" ( 4) on-the-spot coverage of bona fide news events (including
but not limited to political conventions and activities incidental
thereto),
"shall not be deemed to be use of a broadcasting station within
the meaning of this subsection. Nothing in the foregoing sentence
shall be construed as relieving broadcasters, in connection with the
presentation of newscasts, news interviews, news documentaries, and
on-the-spot coverage of news events, from the obligation imposed
upon tlH'm under this chapter to operate in the public interest and
to afford reasonable opportunity for the discussion of conflicting
views on issues of public importance." 47 U. S. C. § 315 (a).
108 OCTOBER TER:VI, 1972
Opinion of the Court 412 U.S.
public issues! Instead, Congress after prolonged consideration
adopted § 3 (h), which specifically provides
that "a person engaged in radio broadcasting shall not,
4 The Senate passed a provision stating that:
"LIJf any licensee shall permit any person to use a broadcasting
stat.ion in support of or in opposition to any candidate for public
office, or in the presentation of views on a public question to be
voted upon at an election, he shall afJord equal opportunity to an
equal number of other persons to use such station in support of an
opposing candidate for such public office, or to reply to a person
who has used such broadcasting station in support of or in opposition
to a candidate, or for the presentation of opposite views on
such public questions."
See Hearings on S. 2910 before the Senate Committee on Interstate
Commerce, 73d Cong., 2d Sess., 19 (1934) (emphasis added). Thr
provision for discussion of public issues was dPlCtPd by the House-
Senate Conference. See H. R Conf. Rep. No. 1918 on S. 3285, 73d
Cong., 2d Sess., 49.
Also noteworthy are two bills offered in 1934 that would have
restricted the control of broadcasters over the discussion of certain
issues. Congressman l\foFadden proposed a bill that would have
forbidden broadcasters to discriminate against programs sponsored
by religious, charitable, or educational association3. H. R.
7986, 73d Cong., 2d Sess. The bill was not reported out of committee.
And, during the debates on the 1934 Act, Senators Wagner
and Hatfield offered an amendment that would have ordered the
Commission to "reserve and allocate only to educational, religious,
agricultural, labor, cooperative, and similar non-profit-making
associations one-fourth of all the radio broadcasting facilities within
its jurisdiction." 78 Cong. Rec. 8828. Senator Dill explained
why the Committee had rejected the proposed amendment, indicating
that the practical difficulties and the dangers of censorship were
crucial:
"MR. DILL. ... If we should provide that 25 percent of time
shall be allocated to nonprofit organizations, someone would have
to determine-Congress or somebody• else-how much of the 25
percent should go to rducation, how much of it to religion, and
how much of it to agriculture, how much of it to labor, how much
of it to fraternal organizations, and so forth. \Vhen we enter this
COLUMBIA BROADCASTING v. DEMOCRATIC COMM. 109
94 Opinion of the Court
insofar as such person is so engaged, be deemed a common
carrier." 5
Other provisions of the 1934 Act also evince a legislative
desire to preserve values of private journalism
under a regulatory scheme which would insure fulfillment
of certain public obligations. Although the Commission
was given the authority to issue renewable three-year
licenses to broadcasters 6 and to promulgate rules and
regulations governing the use of those licenses,7 both confield
we must determine how much to give to the Catholics probably
and how much to the Protestants and how much to the Jews."
78 Cong. Rec. 8843.
Senator Dill went on to say that the problem of determining the
proper allocation of time for discussion of these subjects should be
worked out by the Commission. Id., at 8844. The Senate rejected
the amendment. Id., at 8846.
5 Section 3 ( h) provides as follows:
"'Common carrier' or 'carrier' means any person engaged as a
common carrier for hire, in interstate or foreign communication by
wire or radio or in interstate or foreign radio transmission of energy,
except where reference is made to common carriers not subject to
this chapter; but a person engaged in radio broadcasting shall not,
insofar a.s such person is so engaged, be deemed a common carrier."
48 Stat. 1066, as amended, 47 U. S. C. § 153 (h).
6 48 Stat. 1083, as amended, 47 U. S. C. § 307.
7 Section 303, 48 Stat. 1082, as amended, 47 U.S. C. § 303, provides
in relevant part:
"Except as otherwise provided in this chapter, the Commission
from time to time, as public convenience, interest, or nece~sity requires,
shall-
"(b) Prescribe the nature of the service to be rendC'red by each
dass of licensed stations and each station within any class;
"(r) Make such rules and regulations and prescribe such restrict.
ion8 and conclition8, not inron8istent with law, as may be necessary
to carry out the provisions of this chapter .... "
110 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
sistent with the "public convenience, interest, or necessity,"
§ 326 of the Act specifically provides that:
"Nothing in this chapter shall be understood or
construed to give the Commission the power of
censorship over the radio communications or signals
transmitted by any radio station, and no regulation
or condition shall be promulgated or fixed by the
Commission which shall interfere with the right of
free speech by means of radio communication." 47
U. S. C. § 326.
From these provisions it seems clear that Congress
intended to permit private broadcasting to develop with
the widest journalistic freedom consistent with its public
obligations. Only when the interests of the public
are found to outweigh the private journalistic interests
of the broadcasters ·will government power be asserted
within the framework of the Act. License renewal proceedings,
in which the listening public can be heard, are
a principal means of such regulation. See Office of Communication
of United Church of Christ v. FCC, 123 U. S.
App. D. C. 328, 359 F. 2d 994 (1966), and 138 U. S.
App. D. C. 112, 425 F. 2d 543 (1969).
Subsequent developments in broadcast regulation illustrate
how this regulatory scheme has evolved. Of particular
importance, in light of Congress' flat refusal to
impose a "common carrier" right of access for all persons
wishing to speak out on public issues, is the Commission's
"Fairness Doctrine," which evolved gradually over
the years spanning federal regulation of the broadcast
media.8 Formulated under the Commission's po,ver to
8 In 1959, Congress amended § 315 of the Act tu give statutory
approval to the Fairness Doctrine. Act of Sept. 14, 1959, § 1, 73
Stat. .5 57, 47 U.S. C. § 315 (a).
For a summary of the development and nature of the Fairness
Doctrine, sec Red Lion Broadcasting Co. v. FCC, 395 U. S. 367,
375-386 (1969).
COLUMBIA BROADCASTING v. DK\10CRATIC COMM. 111
94 Opinion of 1.he Court
issue regulations consistent with the "public interest,"
the doctrine imposes two affirmative responsibilities
on the broadcaster: coverage of issues of public importance
must be adequate and must fairly reflect differing
viewpoints. See Red Lion, 395 L". S., at 377. In
fulfilling the Fairness Doctrine obligations, the broadcaster
must provide free time for the presentation of
opposing views if a paid sponsor is unavailable, Cullman
Broadca.sting Co., 25 P & F Radio Reg. 895 ( 1963), and
must initiate programming on public issues if no one
else seeks to do so. See John J. Dempsey, 6 P & F
Radio Reg. 615 ( 1950); Red Lion, supra, at 378.
Since it is physically impossible to provide time for
all viewpoints, however, the right to exercise editorial
judgment was granted to the broadcaster. The broadcaster,
therefore, is allo'wed significant journalistic discretion
in deciding how best to fulfill the Fairness Doctrine
obligations," although that discretion is bounded by rules
designed to assure that the public interest in fairness
is furthered. In its decision in the instant cases, the
Commission described the boundaries as follows:
"The most basic consideration in this respect is
that the licensee cannot rule off the air coverage
of important issues or views because of his private
ends or beliefs. As a public trustee, he must present
9 See Mada/,yn Murray, 5 P & F Radio RPg. 2d 263 (1965).
Factors that the broadcaster IPust take into ac('Qunt in exercising
his discretion include the following:
"In determining whether to honor specific requests for time, tlw
station will inevitably be confronted with such questions as whether
the subject is worth considering, whether the viewpoint of the requesting
party has already received a sufficient amount of broadcast
time, or whether there may not be other available groups or individuals
who might be more appropriate spokesmen for the particular
point of view than the person [or group] making thr request."
Report on Editorializing by Broadcast Licensees, 13 F. C. C. 1246,
1251- 1252 (1949).
112 OCTOBER TERM, 1972
Opinion of the Court 412 u. s.
representative community views and voices on controversial
issues which are of importance to his
listeners. . . . This means also that some of the
voices must be partisan. A licensee policy of excluding
partisan voices and always itself presenting
views in a bland. inoffensive manner would run
counter to the 'profound national commitment that
debate on public issues should be uninhibited, robust,
and ,vide-open.' New York Times Co. v. Sullivan,
376 U. S. 254, 270 ( 1964) ; see also Red Lion Broadcasting
Co., Inc. v. F. C. C., 395 U. S. 367, 392 (n. 18)
(1969) .... " 25 F. C. C. 2d, at 222-223.
Thus, under the Fairness Doctrine broadcasters are
responsible for providing the listening and viewing public
with access to a balanced presentation of information
on issues of public importance.10 The basic principle
underlying that responsibility is "the right of the public
to be informed, ra.ther than any right on the part of the
10 The Commission has also adopted various component regulations
under the Fairness Doctrine, the most notable of which are
the ·'personal attack" and "political editorializing" rules which we
upheld in Red Lion. The "personal attack" rule provides that
" [ w] hen, during the presentation of views on a controversial issue
of public importance, an attack is made upon the honesty, chara<'ter,
integrity or like personal qualities of an identified person," the
licensee must notify the person attaC'ked and give him an opportunity
to respond. E. g., -l7 CFR § 73.123. Similarly, the "politi<-al
editorializing" rule provides that, when a licensee endorses a political
candidate in an editorial, he must give other candidates or their
spokesmen an opportunity to respond. E. g., id., § 73.123.
The Commission, of course, has taken other steps beyond the
Fairness Doctrine to expand the diversity of expression on radio and
television. The chain broadcasting and multiple nwnnship rules
are established examples. E. g., id., §§ 73.131, 73.240. :More recently,
the CornmiS3ion promulgated rules limiting television network
syndication practices and reserving 25% of prime time for nonnetwork
programs. Id., §§ 73.658 (j), (k).
COL l1.~1BIA BROADCASTL'JG v. DEMOCRATIC CO~lM. 113
94 Opinion of the Court
Government, any broadcast licensee or any individual
member of the public to broadcast his own particular
views on any matter .... " Report on Editorializing
by Broadcast Licensees, 13 F. C. C. 1246, 1249 (1949).
Consistent ,vith that philosophy, the Commission on several
occasions has ruled that no private individual or
group has a right to command the use of broadcast
facilities.11 See, e. g., Dowie A. Crittenden, 18 F. C. C.
2d 499 (1969); Margaret Z. Scherbina, 21 F. C. C. 2d
141 0969); Boalt Hall Student Assn., 20 F. C. C. 2d
612 (1969); Madalyn Murray, 40 F. C. C. 647 (1965);
Democratic State Central Committee of Califo;nia, 19
F. C. C. 2d 833 (1968); U. S. Broadcasting Corp., 2
F. C. C. 208 (1935). Congress has not yet seen fit to
alter that policy, although since 1934 it has amended
the Act on several occasions 12 and considered various
11 The Court of Appenls, respondent~, and the dissent in this case
have relied on dictum in United Broadcasting Co., 10 F. C. C. 515
( 1945), as illustrating Commission approval of a private right to purchase
air time for the discussion of controversial issues. In that case
thr complaint alleged, not only that the station had a policy of refusing
to sell time for the discussion of public issues. but also that thr
station had applied its policy in a discriminatory manner, a factor
not shown in the cases presently before us. Furthrrmore, the dec-ision
was handed down four years before 1 he Commission had fully developed
and articulated the Fairness DoctrinP. Srr Report on Editorializing
by Broadcast Licensees, 13 F. C. C. 1246 (1949). Thus,
even if the decision is read without referenf'r to the allrgation of
discrimination, it stands as merely an isolatrd statPment, made during
the period in which the Commission was still working out the problems
associated with the discussion of public issues ; the dictum has
not been followed since and h:1s been modified by the Fairness
Doctrine.
12 In 1959, as noted earlier, Congress amended § 315 (a) of the
Act to give statutory approval to the Commission's Fairness Doctrine.
Act of Sept. 14, 1959, § 1, 73 Stat. 557, 47 U. S. C. § 315
(a). Very recently, Congress amended § 312 (a) of the 1934 Act
to authorize the Commission to revoke a station license "for willful
114 OCTOBER TERM, 1972
Opinion of Bunmm, C . .T . 412 U.S.
proposals that would have vested private individuals with
a right of access.13
With this background in mind, we next proceed to
consider whether a broadcaster's refusal to accept editorial
advertisements is governmental action violative of
the First Amendment.
III
That "Congress shall make no law ... abridging the
freedom of speech, or of the press" is a restraint on government
action, not that of private persons. Public
Utilities Cornrn'n v. Pollak, 343 r. S. 451, 461 (1952).
The Court has not previously considered whether the
action of a broadcast licensee such as that challenged
here is "governmental action" for purposes of the First
or repeated failure to allow reasonable access to or to permit purchase
of reasonable amounts of time for the use of a broadcasting
station by a legally qualified candidate for Federal elertive office on
behalf of his candidacy." Campaign Communications Reform Act of
1972, Pub. L. 92-225, 86 Stat. 4. This amendtnC'nt essentially codified
the Commission's prior interpretation of § 315 (a) as requiring broadcasters
to make time available to political candidates. Farmers
Union v. WDAY, 360 1!. S. 525,534 (1959). See FCC Memorandum
on Second Sentrnce of Section 315 (a), in Political Broadcasts-Equal
Time. Hearings beforf' Subcommittee of the House Committee on
Interstate and Foreign Commerce, 88th Cong., 1st Sess., on H. J.
Res. 247, pp. 84-90.
13 See, e. g., H. R. 359,5, 80th Cong., M Sess. (1947). A more
recent proposal was offered by Senator Fulbright. Ilis bill would
have amended § 315 of the Act to provide:
"(d) Licensees shall provide a reasonable amount of public service
time to authorized representatives of the Senate of the United States,
and the House of Repre~entatives of t.he Unit<>d States, to present
the views of the Senate a.nd the House of RepresentatiYes on issues
of public importance. The public service time required to be provided
under this subsection shall be made available to each such
authorized representative at least, but not limited to, four time~
during each calendar year." S. J. Res. 209, 91st Cong., 2d Sess.
(1970).
COLUMBIA BROADCASTING v. DEMOCRATIC COMM. 115
94 Opinion of BURGER, C. J.
Amendment. The holding under review thus presents a
novel question, and one with far-reaching implications.
See Jaffe, The Editorial Responsibility of the Broadcaster:
Reflections on Fairness and Access, 85 Harv.
L. Rev. 768, 782-787 (1972).
The Court of Appeals held that broadcasters are instrumentalities
of the Government for First Amendment
purposes, relying on the thesis, familiar in other contexts,
that broadcast licensees are granted use of part of
the public domain and are regulated as "proxies" or
" 'fiduciaries' of the people." 146 U. S. App. D. C., at
191, 450 F. 2d, at 652. These characterizations are not
without validity for some purposes, but they do not
resolve the sensitive constitutional issues inherent in
deciding whether a particular licensee action is subject
to First Amendment restraints.14
In dealing with the broadcast media, as in other contexts,
the line bet\veen private conduct and governmental
action cannot be defined by reference to any general formula
unrelated to particular exercises of governmental
authority. When governmental action is alleged there
must be cautious analysis of the quality and degree of
Government relationship to the particular acts in question.
"Only by sifting facts and weighing circumstances
can the nonobvious involvement of the State in private
conduct be attributed its true significance." Burton v.
Wilmington Parking Authority, 365 U.S. 715, 722 (1961).
14 The dissent offers the same analysis as the Court of Appeals.
As one distinguished commentator has recognized, this line of reasoning
"stretd1[cs] the concept of state action very far. " Jaffe,
The Editorial Responsibility of the Broadcaster: Reflections on
Fairness and Access, 85 Harv. L. Rev. 768, 784 (1972). The notion
that broadcasters are engaged in "governmental action" because
they are licensed to utilize the "public" frequenries and because they
are regulated is superficially appealing but, as Professor Jaffe observes,
"not entirely satisfactory." Id., at 783.
116 OCTOBER TERM, 1972
Opinion of BURGER, C. J. 412 U.S.
In deciding whether the First Amendment encompasses
the conduct challenged here, it must be kept in
mind that we are dealing with a vital part of our system
of communication. The electronic media have swiftly become
a major factor in the dissemination of ideas and
information. More than 7,000 licensed broadcast stations
undertake to perform this important function. To
a large extent they share with the printed media the role
of keeping people informed.
As ,ve have seen, with the advent of radio a half century
ago, Congress was faced with a fundamental choice
between total Government O\vnership and control of the
new medium--the choice of most other countries--or
some other alternative. Long before the impact and potential
of the medium was realized, Congress opted for
a system of private broadcasters licensed and regulated
by Government. The legislative history suggests that
this choice was influenced not only by traditional attitudes
to\vard private enterprise, but by a desire to maintain
for licensees, so far as consistent with necessary
regulation, a traditional journalistic role. The historic
aversion to censorship led Congress to enact § 326 of
the Act, which explicitly prohibits the Commission from
interfering with the exercise of free speech over the
broadcast frequencies. Congress pointedly refrained from
divesting broadcasters of their control over the selection
of voices; a (h) of the Act stands as a firm congressional
statement that broadcast licensees are not to be treated
as common carriers, obliged to accept whatever is tendered
by members of the public. Both these provisions
clearly manifest the intention of Congress to maintain
a substantial measure of journalistic independence for
the broadcast licensee.1
"
15 The dissenting view would appear to "want to have it both
ways" on the question of Government control of the broadcast media.
In finding governmental a.ct.ion, the dissent stresses what is perCOLUMBIA
BROADCASTING v. DEMOCRATIC COMM. 117
94 Opinion of BURGER, C. J.
The regulatory scheme evolved slowly, but very early
the licensee's role developed in terms of a "public
trustee" charged with the duty of fairly and impartially
informing the public audience. In this structure the
Commission acts in essence as an "overseer," but the
initial and primary responsibility for fairness, balance,
and objectivity rests with the licensee. This role of
the Government as an "overseer" and ultimate arbiter
and guardian of the public interest and the role of the
licensee as a journalistic "free agent" call for a delicate
balancing of competing interests. The maintenance of
this balance for more than 40 years has called on both
the regulators and the licensees to walk a "tightrope'' to
preserve the First Amendment values written into the
Radio Act and its successor, the Communications Act.
The tensions inherent in such a regulatory structure
emerge more clearly when we compare a private ne,vspaper
with a broadcast licensee. The power of a privately
ovmed newspaper to advance its own political,
social, and economic views is bounded by only two factors:
first, the acceptance of a sufficient number of readersand
hence advertisers-to assure financial success; and,
second, the journalistic integrity of its editors and publishers.
A broadcast licensee has a large measure of
journalistic freedom but not as large as that exercised by
ceived as an "elaborate statutory scheme governing virtually all
aspects of the broadcast industry." "Indeed," the dissent suggests,
"federal agency review and guidance of broadcaster conduct is automatic,
continuing, and pervasive." Post, at 176-177. Yet later in
the dissent, when discussing the constitutional need for a right of
access, the dissent objects to the substantial independence tdforded
broadcasters in covering issues of public importance. Thus, it is
said that "broadcasters retain almost exclush·c control over the
select.ion of issues and Yiewpoints to be covered, the manner of
presentation and, perhaps most important, who shall speak." Post,
at 187.
118 OCTOBER TERM, 1972
Opinion of BunGER, C. ,T. 412 u. s.
a newspaper. A licensee must balance what it might
prefer to do as a private entrepreneur with what it is
required to do as a "public trustee." To perform its
statutory duties, the Commission must oversee without
censoring. This suggests something of the difficulty and
delicacy of administering the Communications Act-a
function calling for flexibility and the capacity to adjust
and readjust the regulatory mechanism to meet changing
problems and needs.
The licensee policy challenged in this case is intimately
related to the journalistic role of a licensee for which it
has been given initial and primary responsibility by
Congress. The licensee's policy against accepting editorial
advertising cannot be examined as an abstract
proposition, but must be viewed in the context of its
journalistic role. It does not help to press on us the
idea that editorial ads are "like" commercial ads, for the
licensee's policy against editorial spot ads is expressly
based on a journalistic judgment that 10- to 60-second spot
announcements are ill-suited to intelligible and intelligent
treatment of public issues; the broadcaster has
chosen to provide a balanced treatment of controversial
questions in a more comprehensive form. Obviously the
licensee's evaluation is based on its own journalistic judgment
of priorities and newsworthiness.
Moreover, the Commission has not fostered the licensee
policy challenged here; it has simply declined to command
particular action because it fell within the area of
journalistic discretion. The Commission explicitly emphasized
that "there is of course no Commission policy
thwarting the sale of time to comment on public issues."
25 F. C. C. 2d, at 226. The Commission's reasoning,
consistent with nearly 40 years of precedent, is that so
long as a licensee meets its "public trustee" obligation
to provide balanced coverage of issues and events, it has
broad discretion to decide how that obligation will be
COLUMBIA BROADCASTING v. DK\IOCRATIC COMM. 119
94 Opinion of BURGER, C. J.
met. We do not reach the question whether the First
Amendment or the Act can be read to preclude the Commission
from determining that in some situations the
public interest requires licensees to re-examine their
policies with respect to editorial advertisements. The
Commission has not yet made such a determination; it
has, for the present at least, found the policy to be within
the sphere of journalistic discretion which Congress has
left with the licensee.
Thus, it cannot be said that the Government is a
"partner" to the action of the broadcast licensee complained
of here, nor is it engaged in a "symbiotic relationship"
with the licensee, profiting from the invidious
discrimination of its proxy. Compare Moose Lodge No.
107 v. lrvis, 407 U.S. 163, 174--177 (1972), with Burton v.
Wilmington Parking Authority, 365 U. S., at 723-724.
The First Amendment does not reach acts of private
parties in every instance where the Congress or the
Commission has merely permitted or failed to prohibit
such acts.
Our conclusion is not altered merely because the Commission
rejected the claims of BEM and DNC and
concluded that the challenged licensee policy is not
inconsistent with the public interest. It is true that in
Public Utilities Comm'n v. Pollak, 343 U. S. 451 ( 1952),
we found governmental action sufficient to trigger First
Amendment protections on a record involving agency
approval of the conduct of a public utility. Though we
held that the decision of a District of Columbia bus
company to install radio receivers in its public buses was
within the reach of the First Amendment, there Congress
had expressly authorized the agency to undertake
plenary intervention into the affairs of the carrier and
it was pursuant to that authorization that the agency
investigated the challenged policy and approved it on
public interest standards. Id., at 462.
120 OCTOBER TERYT, 1972
Opinion of BURGER, C . .T. 412 U.S.
Here, Congress has not established a regulatory scheme
for broadcast licensees as pervasive as the regulation of
public transportation in Pollak. More important, as
we have noted, CongrPss has affirmatively indicated in
the Communications Act that certain journalistic decisions
are for the licensee, subject only to the restrictions
imposed by evaluation of its overall performance
under the public interest standard. In Pollak there was
no suggestion that Congress had considered worthy of
protection the carrier's interest in exercising discretion
over the content of communications forced on passengers.
A more basic distinrtion, perhaps, between Pollak and
this case is that Pollak was concerned with a transportation
utility that itself derives no protection from the
First Amendment. See United States v. Paramount Pictures,
Inc., 334 U. S. 1:-31, 166 ( Hl48).
Were we to read the First Amendment to spell out
governmental action in the circumstances presented here,
fe-w licensee decisions on the content of broadcasts or the
processes of editorial evaluation ·would escape constitutional
scrutiny. In this sensitive area so sweeping a
concept of governmental action would go far in practical
effect to undermine nearly a half century of unmistakable
congressional purpose to maintain- no matter hmv difficult
the task-essentially private broadcast journalism
held only broadly accountable to public interest standards.
To do this Congress, and the Commission as its
agent, must remain in a posture of flexibility to chart a
workable "middle course" in its quest to preserve a balance
between the essential public accountability and the
desired private control of the media.
More profoundly, it would be anomalous for us to
hold, in the name of promoting the constitutional guarantees
of free expression, that the day-to-day editorial
decisions of broadcast licensees are subject to the kind of
restraints urged by respondents. To do so in the name
COLUMBIA BROADCASTIKG v. DEMOCRATIC COMM. 121
94 Opinion of the Court
of the First Amendment would be a contradiction. Journalistic
discretion would in many ways be lost to the rigid
limitations that the First Amendment imposes on Government.
Application of such standards to broadcast
licensees would be antithetical to the very ideal of vigorous,
challenging debate on issues of public interest.
Every licensee is already held accountable for the totality
of its performance of public interest obligations.
The concept of private, independent broadcast journalism,
regulated by Government to assure protection of
the public interest, has evolved slowly and cautiously
over more than 40 years and has been nurtured by processes
of adjudication. That concept of journalistic independence
could not co-exist with a reading of the challenged
conduct of the licensee as governmental action.
Nor could it exist without administrative flexibility to
meet changing needs and swift technological developments.
We therefore conclude that the policies complained
of do not constitute governmental action violative
of the First Amendment. See McIntire v. William
Penn Broadcasting Co., 151 F. 2d 597, 601 (CA3 1945),
cert. denied, 327 U. S. 779 (1946); Ma~sachusetts Universalist
Convention v. Hildreth & Rogers Co., 183 F. 2d
497 (CAI 1950); Post v. Payton, 323 F. Supp. 799, 803
(EDNY 1971).
IV
There remains for consideration the question whether
the "public interest" standard of the Communications
Act requires broadcasters to accept editorial advertisements
or, whether, assuming governmental action, broadcasters
are required to do so by reason of the First Amendment.
In resolving those issues, we are guided by
the "venerable principle that the construction of a
statute by those charged with its execution should be
followed unless there are compelling indications that it
is wrong .... " Red Lion, 395 U. S., at 381. Whether
122 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
there are "compelling indications" of error in these
cases must be answered by a careful evaluation of the
Commission's reasoning in light of the policies embodied
by Congress in the "public interest" standard of
the Act. Many of those policies, as the legislative history
makes clear, were drawn from the First Amendment
itself; the "public interest" standard necessarily invites
reference to First Amendment principles. Thus, the
question before us is whether the various interests in
free expression of the public, the broadcaster, and the
individuals require broadcasters to sell commercial time
to persons wishing to discuss controversial issues. In
resolving that issue it must constantly be kept in mind
that the interest of the public is our foremost concern.
With broadcasting, where the available means of communication
are limited in both space and time, the
admonition of Professor Alexander Meiklejohn that
"[\v] hat is essential is not that everyone shall speak, but
that everything worth saying shall be said" is peculiarly
appropriate. Political Freedom 26 (1948).
At the outset we reiterate what was made clear earlier
that nothing in the language of the Communications Act
or its legislative history compels a conclusion different
from that reached by the Commission. As we have
seen, Congress has time and again rejected various legislative
attempts that would have mandated a variety of
forms of individual access. That is not to say that Congress'
rejection of such proposals must be taken to mean
that Congress is opposed to private rights of access under
all circumstances. Rather, the point is that Congress
has chosen to leave such questions with the Commission,
to which it has given the flexibility to experiment with
new ideas as changing conditions require. In this case,
the Commission has decided that on balance the undesirable
effects of the right of access urged by respondents
would outweigh the asserted benefits. The Court of
COLUMBIA BROADCASTING v. DEMOCRATIC COMM. 123
94 Opinion of the Court
Appeals failed to give due weight to the Commission's
judgment on these matters.
The Commission was justified in concluding that the
public interest in providing access to the marketplace
of "ideas and experiences" would scarcely be served by
a system so heavily weighted in favor of the financially
affluent, or those with access to wealth. Cf. Red Lion,
supra, at 392. Even under a first-come-first-served
system, proposed by the dissenting Commissioner in
these ca1ees,10 the views of the affluent could well prevail
over those of others, since they would have it within their
power to purchase time more frequently. Moreover,
there is the substantial danger, as the Court of Appeals
acknowledged, 146 U. S. App. D. C., at 203, 450 F. 2d, at
664, that the time a11otted for editorial advertising could
be monopolized by those of one political persuasion.
These problems would not necessarily be solved by applying
the Fairness Doctrine, including the Cullman
doctrine, to editorial advertising. If broadcasters were
required to provide time, free when necessary, for the
discussion of the various shades of opinion on the issue
discussed in the advertisement, the affluent could still
determine in large part the issues to be discussed. Thus,
the very premise of the Court of Appeals' holding-that
a right of access is necessary to allow individuals and
groups the opportunity for self-initiated speech-would
have little meaning to those who could not afford to
purchase time in the first instance.11
16 See 25 F. C . C. 2d 216, 230, 234--2:~5 (.Johnson, dissenting) .
1 7 To overcome this inconsistency it has been suggcstrd that a
"submarket rate system" be established for those unable to afford the
normal cost for air time. See Note, 85 Harv. L. Rev. 689, 695-696
(1972). That proposal has been criticized, we think justifiably, as
raising "incredible administrative problems." Ja.ffe, The Editorial
Responsibility of the Broadcaster: Reflections on Fairness and Access,
85 Harv. L. Rev. 768, 789 (1972).
124 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
If the Fairness Doctrine were applied to editorial advertising,
there is also the substantial danger that the
effective operation of that doctrine would be jeopardized.
To minimize financial hardship and to comply fully with
its public responsibilities a broadcaster might well be
forced to make regular programming time available to
those holding a view different from that expressed in an
editorial advertisement; indeed, BEM has suggested as
much in its brief. The result would be a further erosion
of the journalistic discretion of broadcasters in the coverage
of public issues, and a transfer of control over the
treatment of public issues from the licensees who are
accountable for broadcast performance to private individuals
\vho are not. The pub1ic interest would no longer
be "paramount" but, rather, subordinate to private whim
especially since, under the Court of Appeals' decision, a
broadcaster would be largely precluded from rejecting
editorial advertisements that dealt with matters trivial
or insignificant or already fairly covered by the broadcaster.
146 l:. S. App. D. C'., at 196 n. 36, 197, 450
F. 2d, at 657 n. 36. 658. If the Fairness Doctrine
and the Cullman doctrine \Vere suspended to alleviate
these problems, as respondents suggest might be
appropriate, the question arises whether \VO would have
abandoned more than we have gained. Under such
a regime the congressional objective of balanced coverage
of public issues would be seriously threatened.
Nor can we accept the Court of Appeals' view that
every potential speaker is "the best judge" of what the
listening public ought to hear or indeed the best judge
of the merits of his or her views. All journalistic tradition
and experience is to the contrary. For better or
worse, editing is what editors are for; and editing is selection
and choice of material. That editors- newspaper
or broadcast-can and do abuse this power is beyond
doubt, but that is no reason to deny the discretion ConCOLU:.\
1BIA BROADCASTING v. DEMOCRATIC CO:MM. 125
94 Opinion of the Court
gress provided. Calculated risks of abuse are taken
in order to preserve higher values. The presence of
these risks is nothing new; the authors of the Bill of
Rights accepted the reality that these risks were evils
for ,vhich there ,vas no acceptable remedy other than a
spirit of moderation and a sense of responsibility-and
civility-on the part of those who exercise the guaranteed
freedoms of expression.
It was reasonable for Congress to conclude that the
public interest in being informed requires periodic accountability
on the part of those who are entrusted
with the use of broadcast frequencies. scarce as they
are. In the delicate balancing historically followed in
the regulation of broadcasting Congress and the Commission
could appropriately conclude that the allocation
of journalistic priorities should be concentrated in
the licensee rather than diffused among many. This policy
gives the public some assurance that the broadcaster
will be answerable if he fails to meet its legitimate
needs. No such accountability attaches to the private
individual, whose only qualifications for using the broadcast
facility may be abundant funds and a point of view.
To agree that debate on public issues should be "robust,
and wide-open" does not mean that we should exchange
"public trustee" broadcasting, with all its limitations, for
a system of self-appointed editorial commentators.
The Court of Appeals discounted those difficulties by
stressing that it was merely mandating a "modest reform,"
requiring only that broadcasters be required to
accept some editorial advertising. 146 U. S. App. D. C.,
at 202, 450 F. 2d, at 663. The court suggested that
broadcasters could place an "outside limit on the total
amount of editorial advertising they will sell" and that
the Commission and the broadcasters could develop
" 'reasonable regulations' designed to prevent domination
by a few groups or a few viewpoints." Id., at 202,
126 OCTOBER TER:'.vl, 1972
Opinion of the Court 412 U.S.
203, 450 F. 2d. at 663, 664. If the Commission decided
to apply the Fairness Doctrine to editorial advertisements
and as a result broadcasters suffered financial
harm, the court thought the "Commission could make
necessary adjustments." Id., at 203, 450 F. 2d, at 664.
Thus, ,vithout providing any specific answers to the substantial
objections raised by the Commission and the
broadcasters, other than to express repeatedly its "confidence"
in the Commission's ability to overcome any
difficulties, the court remanded the cases to the Commission
for the development of regulations to implement a
constitutional right of access.
By minimizing the difficult problems involved in implementing
such a right of access, the Court of Appeals
failed to come to grips with another problem of critical
importance to broadcast regulation and the First Amendment-
the risk of an enlargement of Government control
over the content of broadcast discussion of public issues.
See, e. g., Fowler v. Rhode Island, 345 U. S. 67 (1953);
Niemotko v. Maryland, 340 U.S. 268 (1951). This risk
is inherent in the Court of Appeals' remand requiring
regulations and procedures to sort out requests to be
heard-a process involving the very editing that licensees
now perform as to regular programming. Although
the use of a public resource by the broadcast
media permits a limited degree of Government surveillance,
as is not true with respect to private media, see
National Broadcasting Co. v. United States, 319 U. S ..
at 216- 219, the Government's power over licensees, as
we have noted, is by no means absolute and is carefully
circumscribed by the Act itself .18
Under a constitutionally commanded and Government
supervised right-of-access system urged by respondents
and mandated by the Court of Appeals, the Commission
18 See n. 8, supra.
COLP~IBIA BROADCARTI'.'JG 1• DE'.\IOCRATIC COl\IM. 127
94 Opmion of the Court
would be required to owrsee far more of the day-to-day
operations of broadcasters' C'onduct. deciding such questions
as whether a particular individual or group has had
sufficient opportunity to presC'nt its viewpoint and
whether a particular viewpoint has already been sufficiently
aired. Regimenting broadcasters is too radical a
therapy for the ailment respondC'nts complain of.
Under the Fairness Doctrine the Commission's responsibility
is to judge whether a licensee's overall performance
indicates a sustainPd good -faith effort to mef't
the public i11terest in being fully and fairly informed.rn
The Commission's responsibilities under a right-of-access
system would tend to dra,v it into a continuing caseby-
case df'termination of who should be heard and
when. Indeed, the likelihood of Government involvf'-
ment is so great that it has been suf!gestPd that the
accepted constitutional principles against co11trol of
sprech content would need to be relaxed with respect
to editorial advertisements.~0 To sacrifice First AmendmPnt
prot~ctions for so speculative a 11:ain is not warranted.
and it was well within the Commission's discretion
to construe the Act so as to avoid such a result.21
The Commission is also entitled to take into account
the reality that in a vf'ry real sense listrners and viewers
constitute a "captive audience." ('f. Public Utilities
Comm'n v. Pollak, 343 r. R., at 463; Kovacs v. Cooper,
336 r. 8. 77 ( 1940). The "captive" nature of the
broadca,;t audienrr was recoiz;nized as early ai:: 1924,
19 ~eP Report on Editorializine; by Broadra;:;t LirPnH•es, 13 F. C. C'.,
at 1251-1252.
20 ~re Note. ,5 Han. L. Rev (h9, 697 (1973).
21 DNC' has urged in this Court that we at lea~t rerognizP a rip;ht
of our natianal parties to purrhasP air time for the purpo~f' of di~-
rus~ing publir i~suP~. Wr ~t>e no prinrip!Pd mean~ undn ' 1lf' First
ArnPndmPnt of favoring acress by organizr<l po!itiral parties over
othn groups and individuals.
128 OCTOBER TERM, 1972
Opinion of the Court 412 u. s.
when Commerce Secretary Hoover remarked at the
Fourth National Radio Conference that "the radio listener
does not have the same option that the reader of
publications ha&-to ignore advertising in which he is not
interested-and he may resent its invasion of his set." 22
As the broadcast media became more pervasive in our
society, the problem has become more acute. In a recent
decision upholding the Commission's power to promulgate
rules regarding cigarette advertising, Judge Bazelon,
writing for a unanimous Court of Appeals, noted some
of the effects of the ubiquitous commercial:
"Written messages are not communicated unless
they are read, and reading requires an affirmative
act. Broadcast messages, in contrast, a.re 'in the
air.' In an age of omnipresent radio, there scarcely
breathes a citizen who does not know some part
of a leading cigarette jingle by heart. Similarly,
an ordinary habitual television watcher can avoid
these commercials only by frequently leaving the
room, changing the channel, or doing some other
such affirmative act. It is difficult to calculate the
subliminal impact of this pervasive propaganda,
which may be heard even if not listened to, but it
may reasonably be thought greater than the impact
of the written word." Banzhaf v. FCC, 132 l". S.
App. D. C. 14, 32-33, 405 F. 2d 1082, 1100-1101
(1968), cert. denied, 396 l". S. 842 (1969).
It is no answer to say that because we tolerate pervasive
commercial advertisements we can also live with its political
counterparts.
The rationale for the Court of Appeals' decision imposing
a constitutional right of access on the broadcast
media was that the licensee impermissibly discriminates
22 Rt>printed in He/\rings before the St>nate Committee on Interstate
Commerrc on Radio Control, 69th Cong., 1st Sess., .54 (1926).
COIXMBIA BROADCASTIKG v. DEl\IOCRATIC COMM. 129
94 Opinion of the Court
by accepting commercial advertisements while refusing
editorial advertisements. The court relied on decisions
holding that state-supported school newspapers and public
transit companies were J>rohibited by the First Amendment
from excluding controversial editorial advertisements
in favor of commercial advertiscments.21 The
court also attempted to analogize this case to some of our
decisions holding that States may not constitutionally ban
certain protected speech v.-hile at the same time permitting
other speech in public areas. Cox v. Louisiana, 379
U. S. 536 (1965); Fowler v. Rhode Island, 345 l~. S. 67
(1953); Niemotko v. Maryland, 340 U. S. 268 (1951).
This theme of "invidious discrimination" against protected
speech is echoed in the briefs of BE::\1 and DNC
to this Court. Respondents also rely on our recent decisions
in Grayned v. City of Rockford, 408 U. S. 104
( 1972), and Police Dept. of Chicago v. 11,fosley, 408
U. S. !)2 (1972), where we held unconstitutional city
ordinances that permitted "peaceful picketi11g of any
school involved in a labor dispute," id., at 93, but prohibited
demonstrations for any other purposes on the
streets and sidewalks within 150 feet of the school.
Those decisions provide little guidance, ho,vever, in resolving
the question whether the First Amemlment requires
the Commis~ion to mandate a private right of
access to the broadcast media. In none of those cases did
the forum sought for expression have an affirmative and
independent statutory obligation to provide full and fair
coverage of public issues. such as Congress has imposed on
2
" Lee v. Roard of R egents of State r'olleges, 306 F. Sup11. 1097
(WD Wis. 1969), aff'd, 441 F. 2d 1257 (CA7 1971); Zucker v.
Panitz, 299 F. Supp. 102 (SDJ\'Y 1969); Kissinger v. New York
City Transit Authority, 274 F. Supp. 438 (SDNY 1967) ; Hillside
Community Church, Inc. v. City of Tacoma, 76 Wash. 2d 63, 45.5
P. 2d 350 (1969); Wirta "· Alameda-Contra Costa Transit District,
68 Cal. 2d 51, 4;-i4 P. 2d 982 (1967).
130 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
all broadcast licensees. In short, there is no "discrimination"
against controversial speech present in this case.
The question here is not whether there is to be discussion
of controversial issues of public importance on the broadcast
media, but rather who shall determine what issues are
to be discussed by whom, and when.
The opinion of the Court of Appeals asserted that the
Fairness Doctrine, insofar as it allows broadcasters to
exercise certain journalistic judgments over the discussion
of public issues, is inadequate to meet the public's interest
in being informed. The present system, the court
held, "conforms ... to a paternalistic structure in which
licensees and bureaucrats decide what issues are 'important,'
and how 'fully' to cover them, and the format,
time and style of the coverage." 146 U. S. App. D. C.,
at 195, 450 F. 2d. at 656. The forced sale of advertising
time for editorial spot announcements would, according
to the Court of Appeals majority, remedy this deficiency.
That conclusion was premised on the notion that advertising
time, as opposed to programming time, involves
a "special and separate mode of expression" because advertising
content, unlike programming content, is generally
prepared and edited by the advertiser. Thus, that
court concluded, a broadcaster's policy against using advertising
time for editorial messages "may ·well ignore
opportunities to enliven and enrich the public's overall
information." Id., at 197, 450 F. 2d, at 658. The Court
of Appeals' holding would serve to transfer a large
share of responsibility for balanced broadcasting from
an identifiable, regulated entity-the Iicensee--to unregulated
speakers who could afford the cost.
We reject the suggestion that the Fairness Doctrine
permits broadcasters to preside over a "paternalistic" regime.
See Red Lion, 395 U. S., at 390. That doctrine
admittedly has not always brought to the public perfect
or, indeed, even consistently high-quality treatment of all
COLUMBIA BROADCASTING v. DEMOCRATIC COMM. 131
94 Opinion of the Court
public events and issues; but the remedy does not lie in
diluting licensee responsibility. The Commission stressed
that, while the licensee has discretion in fulfilling its obligations
under the Fairness Doctrine, it is required to
"present representative community views and voices on
controversial issue.s which are of importance to [its] listeners,"
and it is prohibited from "excluding partisan
voices and always itself presenting views in a bland,
inoffensive manner .... " 25 F. C. C. 2d, at 222. A
broadcaster neglects that obligation only at the risk of
losing his license.
Conceivably at some future date Congress or the Commission-
or the broadcasters-may devise some kind of
limited right of access that is both practicable and desirable.
Indeed, the Commission noted in these proceedings
that the advent of cable television will afford increased
opportunities for the discussion of public issues.
In its proposed rules on cable television the Commission
has provided that cable systems in major television
markets
"shall maintain at least one specially designated,
noncommercial public access channel available on
a first-come, nondiscriminatory basis. The system
shall maintain and have available for public use
at least the minimal equipment and facilities necessary
for the production of programming for such
a channel." 37 Fed Reg. 3289, § 76.251 (a)(4).
For the present, the Commission is conducting a wideranging
study into the effectiveness of the Fairness Doctrine
to see ,vhat needs to be done to improve the coverage
and presentation of public issues on the broadcast
media. Notice of Inquiry in Docket 19260, 30 F. C. C.
2d 26, 36 Fed. Reg. 11825. Among other things, the study
will attempt to determine whether "there is any feasible
method of providing access for discussion of public issues
132 OCTOBER TERM, 1972
STEWART, J., concurring 412 U.S.
outside the requirements of the fairness doctrine." 30
F. C. C. 2d, at 33. The Commission made it clear, however,
that it does not intend to discard the Fairness
Doctrine or to require broadcasters to accept all private
demands for air time.21 The Commission's inquiry on
this score was announced prior to the decision of the
Court of Appeals in this case and hearings are under way.
The problems perceived by the Court of Appeals majority
are by no means new; as we have seen, the history
of the Communications Act and the activities of the
Commission over a period of 40 years reflect a continuing
search for means to achieve reasonable regulation compatible
with the First Amendment rights of the public
and the licensees. The Commission's pending hearings
are but one step in this continuing process. At the very
least, courts should not freeze this necessarily dynamic
process into a constitutional holding. See American
Commercial Lines, Inc. v. Loui~ville & N. R. Co., 392
U. S. 571, 590-593 (1968).
The judgment of the Court of Appeals 1s
Reversed.
MR. JusTICE STEWART, concurring.
While 1 join Parts I and II of the Court's opinion, and
the opinion in Part III, my views closely approach those
expressed by MR. JUSTICE DouGLAS concurring in the
judgment.
24 Subsequent to the announcement of the Court of Appeals' decision,
the Commission expanded the scope of tht' inquiry to comply
with the Court of Appeals' mandate. Further ::.J"otice of Inquiry
in Docket 19260, 33 F. C. C. 2d 554, 37 Fed. Reg. 3383. After
we granted certiorari and stayed the mandate of the Court of Appeals,
the Commission withdrew that notice of an expanded inquiry
and continued its study as originally planned. Order and Further
Kotice of Inquiry in Docket 19260, 33 F. C. C. 2d 798, 37 Fed.
Reg. 4980.
COL 1:MBIA BROADCASTIXG v. DDIOCRATIC COMM. 133
94 STEWART, J., concurring
The First Amendment prohibits the Government from
imposing controls upon the press.1 Private broadcasters
are surely part of the press. United States v. Paramount
Pictures, Inc., 334 U. S. 131, 166. Yet here the Court
of Appeals held, and the dissenters today agree, that the
First Amendment requires the Government to impose
controls upon private broadcasters~in order to preserve
First Amendment "values." The appellate court accomplished
this strange convolution by the simple device of
holding that private broadcasters are Government.
This is a step along a path that could eventually lead to
the proposition that private newspapers "are" Government.
Freedom of the press would then be gone. In
its place we would have such governmental controls
upon the press as a majority of this Court at any particular
moment might consider First Amendment "values"
to require. It is a frightening specter.
I
There is some first-blush appeal in seeking out analogies
from areas of the law where governmental involvement
on the part of otherwise private parties has led the Court
to hold that certain activities of those parties were tantamount
to governmental action.2 The evolution of the
"state action" concept under the Fourteenth Amendment
is one available analogy.3 Another is the decision of this
1 U. S. Const., Arndt. I, provides, in pertinent part, that "Congress
shall make no law ... abridging the frc>cdom of specC'h, or
of the press . . . . "
2 See Amalgamated Food Employees v. Logan Valley Plaza, 391
U. S. 308; Railway Ernployes' Dept. v. Hanson, 351 U. S. 225;
Public r;tilities Comm'n v. Pollak, 343 U. S. 451; Marsh v. Alabama,
326 U. S. 501.
3 "Conduct that is formally 'private' may become so entwined
with governmental policies or so impregnated with a governmental
134 OCTOBER TER:\1, 1972
STEWART, J., concurring 412 U.S.
Court in Public Utilities Comm'n v. Pollak, 343 U. S.
451, where a policy of a privately owned but publicly
regulated bus company that had been approved by the
regulatory commission was held to activate First Amendment
review. The First Amendment has also been held
applicable where private parties control essentially public
forums. Amalgamated Food Employees v. Logan
Valley Plaza, 391 U.S. 308, Marsh v. Alabama, 326 U.S.
501; cf. Lloyd Corp. v. Tanner, 407 U. S. 551.
The problem before us, however, is too complex to
admit of solution by simply analogizing to cases in very
different areas. For we deal here with the electronic
press, that is itself protected from Government by the
First Amendment.4 Before woodenly accepting analogies
from cases dealing with quasi-public racial discrimination,
regulated industries other than the press, or "company
towns," we must look more closely at the structure of
broadcasting and the limits of governmental regulation
of licensees.
When Congress enacted the Radio Act of 1927, 44 Stat.
1162, and followed it with the Federal Communications
Act of 1934, 48 Stat. 1064, 47 U. S. C. § 151 et seq., it wa.s
responding to a then-evident need to regulate access to
the public airwaves. Not every member of the public
could broadcast over the air as he chose, since the scarcity
character as to become subjert to the constitutional limitations
placed upon state action." Evans v. Newton, 382 TJ. S. 296, 299.
Earlier, in Burton v. Wilmington Parking Authority, 365 U. S. 715,
the Court held that a privately owned restaurant located within
a public parking garage was sufficiently involved with state authority
to bring its racially discriminatory actions within the proscription
of the Fourteenth Amendment.
4 See, e. g., United States v. Paramount Pittures, Inc., 334 U. S.
131, 166. The Federal Communications Act also prohibits the
Commission from interfering with "the right of free speech by mPll.rn
of radio communication." 47 U. S. C. § 326.
COLUMBIA BROADCASTING v. DEMOCRATIC COMM. 135
94 STEWART, J., concurring
of frequencies made this a sure road to chaos.5 The system
selected by the Congress was a hybrid. The Federal
Radio Commission (succeeded by the Federal Communications
Commission), was to license broadcasters for no
more than three-year periods. 47 U.S. C. § 307 (d). The
licensees, though subject to some public regulation, were
to be private companies.
Scarcity meant more than a need to limit access. Because
access was to be limited, it was thought necessary
for the regulatory apparatus to take into account the public
interest in obtaining "the best practicable service to
the community reached by his [ the licensee's] broadcasts."
FCC v. Sanders Brothers Radio Station, 309 U.S.
470, 475. Public regulation has not, then, been merely a
matter of electromagnetic engineering for the sake of
keeping signals clear. It has also included some regulation
of programming. Writing in defense of Commission
regulations regarding chain broadcasting, Mr. Justice
Frankfurter said: "These provisions [ of the Act],
individually and in the aggregate, preclude the notion
that the Commission is empowered to deal only with
technical and engineering impediments to the 'larger
and more effective use of radio in the public interest.' "
National Broadcasting Co. v. United States, 319 U. S.
190, 217.
Over time, federal regulation of broadcasting in the
public interest has been extensive. and, pro tanto, has
rightly or wrongly been held to be tolerable under the
First Amendment. We now have the Fairness Doctrine,
with its personal-attack, editorial-reply, and fair-coverageof-
controversial-issue requirements.6 In Red Lion Broad-
5 For a history of regulatory legislation regarding bro!ldcasters,
see Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 375-386;
National Broadcasting Co. v. United States, 319 U. S. 190, 210-214.
6 The personal-attack and editorial-reply rules appear at 47 CFR
§§ 73.123, 73.300, 73.598, 73.679. The public issue aspect of the
136 OCTOBER TERM, 1972
Sn:WAHT, .J., concurring 412 U.S.
casting Co. v. FCC, 395 U. S. 367, this Doctrine was held
to constitute permissible governmental regulation of
broadcasters, despite the First Amendment. The Court
said:
"Where there arc substantially more individuals
who want to broadcast than there are frequencies
to allocate, it is idle to posit an unabridgeable First
Amendment right to broadcast comparable to the
right of every individual to speak, write. or
publish.
" Because of the scarcity of radio frequencies,
the Government is permitted to put restraints
on licensees in favor of others whose views
should be expressed on this unique medium. But
the people as a whole retain their interest in free
speech by radio and their collective right to have the
medium function consistently with the ends and purposes
of the First Amendment. It is the right of
the viewers and listeners, not the right of the broadcasters,
which is paramount." Id., at 388, 390.
The Fairness Doctrine has been held applicable to paid
advertising as well as to other programming, Banzhaf v.
FCC, 132 U. S. App. D. C. 14, 405 F. 2d 1082. And the
public interest in broadcasting has been recognized as a
rationale for liberalized standing on the part of listener
Fairness Doctrine requires the broadcaster to give adequate coverage
to public issues, fairly reflecting divrrgent views. United Broadcasting
Co., 10 F. C. C. 515; New Broadcasting Co., 6 P & F Radio
Reg. 258; see generally Applicability of the Fairness Doctrine in
the Handling of Controversial Issues of Publir Importance, 29 Fed.
Reg. 10415. This coverage must be provided at the broadcaster's
own expense if nc('cssary, Cullman Broadcasting Co., 25 P & F
Radio Reg. 895, and the duty must be met by providing programming
obtained at the licensee's own initiative if it is available from no
other source. John J. Dempsey, 6 P & F Radio Reg. 615.
COLUMBIA BROADCASTING v. DEMOCRATIC COl\Il\1. 137
94 STEWART, J., concurring
groups in Commission licensing proceedings. Office of
Communication of United Church of Christ v. FCC, 123
U. S. App. D. C. 328, 359 F. 2d 994.
Throughout this long history of regulation, however,
it has been recognized that broadcasters retain important
freedoms. and that the Commission's regulatory pO\ver
has limits. Quite apart from what may be required by
the First Amendment itself, the regulatory legislation
makes clear what some of these freedoms are. Section
3 (h) of the Act, 47 U. S. C. § 153 (h), provides that
broadcasters are not to be treated as common carriers.
\Vere broadcasters common carriers within the meaning
of the Act, they would be subject to 47 U. S. C. §§ 201,
202. Section 201 provides, in pertinent part, that:
"(a) It shall be th<" <luty of every common carrier
engaged in interstate or foreign communication
by wire or radio to furnish such communication
service upon reasonable request therefor . . . . "
Section 202 provides that:
" (a) lt shall be unlawful for any common carrier
to make any unjust or unreasonable discrimination
in charges, practices, classifications, regulations, facilities,
or services for or in connection with like
communication service, directly or indirectly, by
any means or device, or to make or give any undue
or unreasonable preference or advantage to any particular
person, class of persons, or locality, or to
subject any particular person, class of persons, or
locality to any undue or unreasonable prejudice or
disadvantage."
The Act also specifically gives licensees "freedom of
speech":
":\fothing in this chapter shall be understood or
construed to give the Commission the po,ver of censorship
over the radio communications or signals
138 OCTOBER TERM, 1972
STEWART, .J., concurring 412 u. s.
transmitted by any radio station, and no regulation
or condition shall be promulgated or fixed by the
Commission which shall interfere with the right of
free speech by means of radio communication." 47
U. S. C. § 326.
Thus, when examined as a whole, the Federal Communications
Act establishes a system of privately owned
broadcast licensees. These licensees, though regulated
by the Commission under a fairly broad "public interest"
standard, have, quite apart from whatever additional
protections the First Amendment may provide, important
statutory freedoms in conducting their programming.
In Red Lion, supra, this Court held that, despite the
First Amendment, the Commission may impose a socalled
Fairness Doctrine upon broadcasters, requiring
them to present balanced coverage of various and conflicting
views on issues of public importance. I agreed
with the Court in Red Lion, although ,vith considerable
doubt. because I thought that that much Government
regulation of program content '.vas within the outer limits
of First Amendment tolerability. Were the Commission
to require broadcasters to accept some amount
of editorial advertising as part of the public interest
mandate upon which their licenses are conditional, the
issue before us would be in the same posture as was
the Fairness Doctrine itself in Red Lion, and we would
have to determine "vhether this additional governmental
control of broadcasters was consistent with the statute
and tolerable under the First Amendment. Here, however,
the Commission imposed no such requirement, but
left private broadcasters free to accept or reject such
advertising as they saw fit. The Court of Appeals held
that the First Amendment compels the Commission to
require broadcasters to accept such advertising, because
it equated broadcaster action ·with governmental action.
COLU-:VIBIA BROADCASTI::.J'G v. DE-:VIOCRATIC COl\-IM. 139
94 STEWART, .r., concurring
This holding not only raises a serious statutory question
under§ 3 (h) of the Act, which provides that broadcasters
are not common carriers, but seems to me to reflect an
extraordinarily odd view of the First Amendment.
The dissenting opinion today argues, in support of the
decision of the Court of Appeals, that only a limited
right of access is sought by the respondents and required
by the First Amendment, and that such a limited right
would not turn broadcasters into common carriers. The
respondents argue, some,vhat differently, that the Constitution
requires that only "responsible" individuals and
groups be given the right to purchase advertising. These
positions are said to be arrived at by somehow balancing
"competing First Amendment values." But if private
broadcasters are Government. how can the First Amendment
give only a limited right to those who would
speak'? Since when has the First Amendment given
Government the right to silence all speakers it does not
consider "responsible?"
The First Amendment protects the press from governmental
interference; it confers no analogous protection
on the Government.7 To hold that broadcaster action
is governmental action would thus simply strip broadcasters
of their own First Amendment rights. They
would be obligated to grant the demands of all citizens to
be heard over the air, subject only to reasonable regulations
as to "time, place and manner." Cf. Police Dept. of
Chicago v. Mosley, 408 r. S. 92, 98; Cox v. Louisiana,
7 Government is not restrained by the First Amendment from
controlling its own expression, rf. New York Times Co. v. United
States, 403 U. S. 713, 728- 729 (STEWAHT, J., concurring). As Professor
Thomas Emerson has written, "Th<' purJ)OSC' of the First
Amendment is to protect private rxprcssion and nothing in the
guarantee precludes the government from controlling its own expression
or that of its agents." The System of Freedom of Expression
700 ( 1970).
140 OCTOBER TER:'vI, 1972
STEWART, .T., concurring 412 U.S.
379 U.S. 536, 554; Poulos v. New Hampshire, 345 U. S.
395; Cox v. 1Vew Hampshire, 312 U. S. 569. If, as the
dissent today ,vould have it, the proper analogy is to public
forums 8-that is, if broadcasters are Government for
First Amendment purposes-then broadcasters are inevitably
drawn to the position of common carriers. For
this is precisely the status of Government with respect
to public forums-a status mandated by the First
Amendment.B
To hold that broadcaster action is governmental action
1.vould thus produce a. result wholly inimical to the broadcasters'
own First Amendment rights, and wholly at odds
with the l.roadcasting system established by Congress
and with our many decisions 10 approving those legislative
8 "[T]hc right to speak ran flourish only if it is allowed to operate
in an effective forum-whrther it be a public park, a schoolroom,
a town meeting hall, a soaribox, or a radio and television frequency."
Post, at 193.
0 Professor Emerson has recognized the scope of the "access"
argument: "The licen~ee therefore can only be ('Onsidered as the
agent of the government, or trustee of the public, in a process of
further allocation. Heul'c the licensee would have no dirl'rt First
Amendment rights of his own, except as to his own expression."
Supra, n. 7, at 663.
Though the lircnsee would be free to say what it wished during its
own broadcasting, wliatewr that might mean, it seems clear that
the licrnscc would hav<? no special rlaim to broaclcai,t time and would
lose entirely the frrcdom to program and schedule according to its
own judgment , values, and priorities. Cf. Police Dept. of Chicago
v. Mosley, 408 U.S. 92, 98 ; Cox v. Louisiana, 379 U.S. 536, 554;
Poulos v. New Hampshire, 345 U.S. 395; Cox v. N ew Hampshire,
312 U.S. 569. Licensees would be forced to develop a procedurally
fair and substantively nondiscriminatory system for controlling
access, and in my view thi$ is precisely what Congress intended to
avoid through § 3 (h) of the Act.
10 Red Lion Broadcasting Co. v. FCC, 395 U. S. 367; National
Broadcasting Co. v. United States, 319 U. S. 190; FCC v. Sanders
Brothers Radio Station, ;mg U. S. 470; FCC v. Pottsville Broadcasting
Co., :309 U. S. 134.
COLCVInIA BROADCASTING v. DEMOCRATIC CO.\-li\1. 141
94 STE"\VART, J., concurring
provisions." As Judge McGowan wrote, dissenting from
the judgment of the Court of Appeals in these cases,
"This is the system which Congress has. wisely or
not, provided as the alternative to public ownership
and operation of radio and television communications
facilities. This approach has never been
thought to be other than within the permissible limits
of constitutional choice." 146 U. S. App. D, C.
181, 205, 450 F. 2d 642, 666.
II
Part IV of the Court's opinion, as I understand it,
seems primarily to deal with the respondents' statutory
argument-that the obligation of broadcasters to operate
in the "public interest" supports the judgment of the
Court of Appeals. Yet two of my concurring Brethren
understand Part IV as a discussion of the First Amendment
issue that would exist in these cases were the action
of broadcasters to be equated with governmental action.
So, according to my Brother BLACKMUN, "the governmental
action issue does not affect the outcome of this
case." Post, at 148. The Court of Appeals also conflated
the constitutional and statutory issues in these
cases. It reasoned that whether its decision "is styled as
a 'First Amendment decision' or as a decision interpreting
the fairness and public interest requirements 'in light of
the First Amendment' matters little." 146 "C. S. App.
D. C'., at 188, 450 F. 2d, at 649.
11 None of this suggc,ts any disagreement on my part with the evolution
of "state artion" under the Fourteenth Amendment. I recognize
that if Moose Lodge No. 107 v. Irvi,s, 40i U. S. 163, were
relevant, the fact that the Commission considered and rejected a
challenge to hroadraster poliry might be suffirii>nt to constitute
"state action." This, in fart, was the basis of the Court's derision
in Public Utilities Comm'n v. Pollak, 343 U. S. 451.
142 OCTOBER TEHJ\I, 19i2
STEWART, J., concurring 412 u. s.
I find this reasoning quite wrong and wholly disagree
with it, for the simple reason that the First Amendment
and the public interest standard of the statute are not
coextensive. The two are related in the sense that
the Commission could not "in the public interest" place
a requirement on broadcasters that constituted a violation
of their First Amendment rights. The two are
also related in the sense that both foster free speech. But
we have held that the Commission can under the statute
require broadcasters to do certain things "in the public
interest" that the First Amendment would not require
if the broadcasters were the Government. For example,
the Fairness Doctrine is an aspect of the "public interest"
regulation of broadcasters that would not be
compelled or even permitted by the First Amendment
itself if broadcasters were the Government. 12
If the "public interest" language of the statute were
intended to enact the substance of the First Amendment,
a discussion of ,vhether broadcaster action is governmental
action would indeed be superfluous. For anything
that Government could not do because of the First
Amendment, the broadcasters could not do under the
statute. But this theory proves far too much, since it
would make the statutory scheme, with its emphasis on
12 Th<' basis for a Fairness Doctrine is statutory, not constitutional.
As the Court ~aid in R ed Lion:
'·In light of tlw fart that the 'public interest' in broadcasting clearly
encompasses the presentation of vigorous debate of cont roversial
issues of importance and concern to the public; the fact that the
FCC ha.~ rcst<'d upon that language from its very inception a doctrine
that these issues must be> discussed, and fairly; and the fact
that Congress has acknowlrdged that the analogous provisions of
§ 315 are not preclusivc in this areR, and knowingly preserved the
FCC's complementary efforts, we think the fairness doctrine and its
component personal attaC'k and political editorializing regulations
are ,L legitimate exercise of congressionally delegated authority." 395
U. S., at 385.
COLUMBIA BROADCASTING v. DEMOCRATIC CO.MM. 143
94 STEWART, .J., concurring
broadcaster discretion and its proscription on interference
with "the right of free speech by means of radio communication,"
a nullity. \Vere the Government really
operating the electronic press, it would, as my Brother
DouGLAS points out, be prevented by the First Amendment
from selection of broadcast content and the exercise
of editorial judgment. It ·would not be permitted
in the name of "fairness" to deny time to any person or
group on the grounds that their views had been heard
"enough." Yet broadcasters perform precisely these
functions and enjoy precisely these freedoms under the
Act. The constitutional and statutory issues in these
cases are thus quite different.
In evaluating the statutory claims, the starting point
must be the "venerable principle that the construction
of a statute by those charged with its execution should be
followed unless there are compelling indications that it
is wrong .... " Red Lion, 395 U. S., at 381.
Though I have no doubt that the respondents here
were attempting to communicate what they considered
to be important messages, it does not follow that the
Commission erred when it refused to require every broadcaster
to communicate those messages. Contrary to what
is sa.id in dissent today, it is not the case that a seller
of goods is granted instant access to the media, while
someone "seeking to discuss war, peace, pollution, or the
suffering of the poor is denied this right to speak." Post,
at 200. There is no indication that the thousands of
broadcasters regulated by the Commission have anything
like a uniform policy of turning down "controversial"
or "editorial" advertising. In the cases before us, the
Business Executives' spot advertisements were rejected
by a single radio station. Of the three television net-
,vorks, only one turned down the Democratic National
Committee's request for air time. We are told that
many, if not most, broadcasters do accept advertising of
144 OCTOBER TERYl, 1972
Sn;wAll'l', J., concurring 412 U.S.
the type at issue here. This variation in broadcaster
policy reflects the very kind of diversity and competition
that best protects the free flow of ideas under a system
of broadcasting predicated on private management.13
Even though it would be in the public interest for the
respondents' advertisements to be heard, it does not
follow that the public interest requires every broadcaster
to broadcast them. And it certainly does not follow that
the public interest would be served by forcing every
broadcaster to accept any particular kind of advertising.
In the light of these diverse broadcaster policies-and
the serious First Amendment problem that a contrary
ruling would have presented-there are surely no "compelling
indications" that the Commission misunderstood
its statutory responsibility.
III
There is never a paucity of arguments in favor of limiting
the freedom of the press. The Court of Appeals concluded
that greater Government control of press freedom
is acceptab1P here because of the scarcity of frequencies
for broadcasting. But there are many more broadcasting
stations than there are daily newspapers.11 And it
13 The Demorratir ~ational Committee rited this very lack of
uniformit~, as a rPa~on for seeking a declaratory ruling from the
Commission. ThNe was too much diversity, it thought, for it to
plan effectively an adnrtising campaign. In the DN"C's request
for a decbratorr ruling before the Commission, it stated:
"In addition to thr three national commncial networks, as of April 1,
1970, there were, on the air, 509 commerc-ial VHF television stations,
180 commercial UHF stations. 4.280 standard broadcast stations,
and 2.111 commercial FM stations. While several of these stations
have rommon owners, it docs not necessarily follow that every station
owned by an individual or group would follow the same policies."
11 There arc 1,792 daily newspapers in tlH' United States. Ayer
Director~· of Publications vm ( 197:3). Compare the numbrr of
broadcasters, n. 13, supra.
C'OLUMBIA BROADCASTI:'-l'G v. DE:\10CRATIC COMM. 145
94- STEWART, .J., roncurring
would require no great ingenuity to argue that newspapers
too are Government. After all, newspapers get
Government mail subsidies and a limiterl antitrust immunity_
ir, The reasoning of the Court of Appeals would
then lead to the conclusion that the First Amendment
requires that new~papers, too, be compelled to open their
pagrs to all comers.
Perhaps I overstate the logic of the opinion of the
Court of Appeals. Perhaps its "balancing" of First
Amendment "values" would require no more than that
newspapers be compelled to give "limited'' access to dissident
voices, and then only if those voices were "responsible.''
And perhaps it would require that such access be
compelled only when there was a single newspaper in a
particular community. But it would be a close question
for me which of these various alternative results would
be more grossly violative of the First Amendment's
guarantee of a free press. For that guarantee gives
every newspaper the liberty to print what it chooses
and reject what it chooses, free from the intrusive editorial
thumb of Government.
I profoundly trust that no such reasoning as I have
attributed to the Court of Appeals will ever be adopted
by this Court. .\nd if I have exaggerated, it is only to
make clear the dangers that beset us when we lose sight
of the First Amendment it~elf, and march forth in blind
pursuit of its "value:i."
Those who wrote our First Amendment put their faith
in the propo::ition that a free press is indi~pensable to a
free society. They believed that "fairness" was far too
fragile to be left for a Government bureaucracy to accom-
]$ Newspapers and other periodicals receive a Government. subsidy
in the form of ~erond-cla~, po-tage rates, 39 C'FH § 132 An antitru~
t immunity i, r;;tabli~hed by the :'-l'ew~paper f'n,~crvation A<•t,
15 C C. § 1h01 et sfq.
146 OCTOBER TER~'l, 1972
1V'H1TE, J., concurring 412 U.S.
plish. History has many times confirmed the wisdom
of their choice.
This Court was persuaded in Red Lion to accept the
Commission's view that a so-called Fairness Doctrine ,vas
required by the unique electronic limitations of broadcasting,
at least in the then-existing state of the art.
Rightly or wrongly, we there decided that broadcasters'
First Amendment rights were "abridgeable." But surely
this does not mean that those rights are nonexistent.
And even if all else were in equipoise, and the decision
of the issue before us were finally to rest upon First
Amendment "values" alone, I could not agree ,vith the
Court of Appeals. For if those "values" mean anything,
they should mean at least this: If ,ve must choose wheth~r
editorial decisions are to be made in the free judgment
of individual broadcasters, or imposed by bureaucratic
fiat, the choice must be for freedom.
MR. JvsTICE \YHITE, concurring.
I join Parts I, TI, and IV of the Court's opinion and its
judgment. I do not, however, concur in the Part III
opuuon.
I do not suggest that the conduct of broadcasters must
ahvays, or even often, be considered that of a government
for the purposes of the First Amendment. But it is at
least arguable, and strongly so, that the Communications
Act and the policies of the Commission, including the
Fairness Doctrine, are here sufficiently implicated to require
review of the Commission's orders under the First
Amendment. For myself, the heart of the argument is
simply stated. The claim in these cases was that the
Communications Act and the First Amendment should
be interpreted to confer a right of access on those who
wished to buy time for editorial advertising and to raise
political funds. The Commission rejected both the
statutory and constitutional positions. To confer a right
COLUMBIA BROADCASTING v. DEMOCRATIC C0:\1M. 147
94 BLACKMUN, J., concurring
of access, it said, would be contrary to the Communications
Act and to the policies adopted by the Commission
to implement that Act. Congress intended that the Fairness
Doctrine be complied with, but it also intended that
broadcasters have ,vide discretion with respect to the
method of compliance. There is no requirement that
broadcasters accept editorial ads; they could, instead,
provide their own programs, v.:ith their own format,
opinion and opinion sources. Congress intended that
there be no right of access such as claimed in these cases;
and, in the Commission's vie,,_., to recognize that right
would require major revisions in statutory and regulatory
policy. The Commission also ruled, contrary to the
views of its dissenting member, that rejection of the
asserted right of access was wholly consistent with the
First Amendment.
In this context I am not ready to conclude, as is done in
the Part III opinion, that the First Amendment may be
put aside for lack of official action necessary to invoke its
proscriptions. But, assuming, arguendo, as the Court
does in Part IV of its opinion, that Congress or the
Commission is sufficiently involved in the denial of access
to the broadcasting media to require review under
the First Amendment, I would reverse the judgment of
the Court of Appeals. Given the constitutionality of the
Fairness Doctrine, and accepting Part IV of the Court's
opinion, I have little difficulty in concluding that statutory
and regulatory recognition of broadcaster freedom
and discretion to make up their o'vvn programs and to
choose their method of compliance with the Fairness
Doctrine is consistent with the First Amendment.
MR. JusTICE BLACKMUN, with whom MR. JusTICE
POWELL joins, concurring.
In Part IV the Court determines "whether, assuming
governmental action, broadcasters are required" to ac148
OCTOBER TERM, 1972
DouGLAS, J., concurring in judgment 412 U.S.
cept editorial advertisements "by reason of the First
Amendment." Ante, at 121. The Court concludes that
the Court of Appeals erred when it froze the "continuing
search for means to achieve reasonable regulation compatible
with the First Amendment rights of the public
and the licensees" into "a constitutional holding." Ante,
at 132. The Court's conclusion that the First Amendment
does not compel the result reached by the Court
of Appeals demonstrates that the governmental action
issue does not affect the outcome of this case. I therefore
refrain from deciding it.
MR. JusTICE DouGLAS, concurring in the judgment.
While I join the Court in reversing the judgment below,
I do so for quite different reasons.
My conclusion is that TV and radio stand in the
same protected position under the First Amendment as
do newspapers and magazines. The philosophy of the
First Amendment requires that result, for the fear that
Madison and Jefferson had of government intrusion is
perhaps even more relevant to TV and radio than it is
to newspapers and other like publications. That fear was
founded not only on the spectre of a lawless government
but of government under the control of a faction that
desired to foist its views of the common good on the
people. In popular terms that view has been expressed
as follows:
"The ground rules of our democracy, as it has grown,
require a free press, not necessarily a responsible or
a temperate one. There aren't any halfway stages.
As Aristophanes saw, democracy means that power
is generally conferred on second-raters by thirdraters,
whereupon everyone else, from first-raters to
fourth-raters, moves with great glee to try to dislodge
them. It's messy but most politicians underCOLrMBIA
BROADCASTING v. DEMOCRATIC CO.YIM. 149
94 DouGLAS, J., concurring in judgm('nt
stand that it can't very well be otherwise and
still be a democracy." Stewart, reviewing Epstein,
ews From N o,vhere: Television and the News
(1972), Book "\Vorld, Washington Post. March 25,
1973, pp. 4-5.
I
Public broadcasting, of course, raises quite different
problems from those tendered by the TV outlets involved
in this litigation.
Congress has authorized the creation of the Corporation
for Public Broadcasting, whose Board of Directors
is appointed by the President by and with the advice and
consent of the Senate. 47 U. S. C. § 396. A total of 223
television and 560 radio stations made up this nationwide
public broadcasting system as of .June 30, 1972. See 1972
Corporation for Public Broadcasting Annual Report. lt
is a nonprofit organization and by the terms of § 396 (b)
is said not to be "an agency or establishment of the United
States Government." Yet, since it is a creature of Congress
whose management is in the hands of a Board
named by the President and approved by the Senate, it
i3 difficult to Eee ·why it is not a federal agency engaged
in operating a "press" as that word is used in the First
Amendment. If these cases involved that Corporation,
we would have a situation comparable to that in which
the Cnited States mvns and manages a prestigious newspaper
like the New York Times, Washington Post, or
Sacramento Bee. The Government as owner and manager
would not, as I see it, be free to pick and choose
such news items as it desired. For by the First Amendment
it may not censor or enact or enforce any other
"law" abridging freedom of the press. Politics, ideological
slants, rightist or leftist tendencies could play no
part in its design of programs. See Markel, Will It be
Public or Private TV?, World, Mar. 13, 1973, p. 57;
150 OCTOBER TERM, 1972
DouGLAS, J., concurring in judgment 412 U.S.
Shales, WGBH-TV: An Ultimatum Against "Improper"
White House Influence, Washington Post, Apr. 27, 1973,
p. E2. More specifically, the programs tendered by the
respondents in the present cases could not then be turned
down.
Governmental action may be evidenced by various
forms of supervision or control of private activities.
Burton v. Wilmington Parking Authority, 365 U. S. 715.
I have expressed the view that the activities of licensees
of the government operating in the public domain are
governmental actions, so far as constitutional duties and
responsibilities are concerned. See Garner v. Louisiana,
368 U. S. 157, 183-185 (concurring); Lombard v. Lou~
isiana, 373 L. S. 267, 281 (concurring); Moose Lodge No.
107 v. lrvis, 407 U.S. 163, 179 (dissenting). It is somewhat
the same idea expressed by the first Mr . .Justice
Harlan in his dissent in Plessy v. Ferguson, 163 U. S. 537,
554. But that view has not been accepted. If a TV or
radio licensee were a federal agency, the thesis of my
Brother BRENNAN would inexorably follow. For a licensee
of the Federal Government ,vould be in precisely
the situation of the Corporation for Public Broadcasting.
A licensee, like an agency of the Government, would
within limits of its time be bound to dii::seminate all views.
For, being an arm of the Government, it would be unable
by reason of the First Amendment to "abridge" some sectors
of thought in favor of others. The Court does not,
however, decide whether a broadcast licensee is a federal
agency ,vithin the context of these cases.
II
If a broadcast lice11see is not engaged in governmental
action for purposes of the First Amendment, I fail to
see how constitutionally we can treat TV and radio
differently than we treat newspapers. It would come
COLUMBIA BROADCASTING v. DK\IOCRATIC COMM. 151
94 DOUGLAS, .T., concurring in judgment
as a surprise to the public as well as to publishers and
editors of newspapers to be informed that a newly created
federal bureau would hereafter provide "guidelines" for
newspapers or promulgate rules that would give a federal
agency power to ride herd on the publishing business to
make sure that fair comment on all current issues was
made. In 1970 Congressman Farbstein introduced a bill,1
never reported out of the Committee, which provided that
any newspaper of general circulation published in a city
with a population greater than 25,000 and in which only
one separately owned newspaper of general circulation
is published "shall provide a reasonable opportunity for
a balanced presentation of conflicting views on issues of
public importance" and giving the Federal Communications
Commission power to enforce the requirement.
Thomas I. Emerson, our leading First Amendment
scholar, has stated that:
"[A]ny effort to solve the broader problems of
a monopoly press by forcing newspapers to cover
all 'newsv.-orthy' events and print all viewpoints,
under the watchful eyes of petty public officials, is
likely to undermine such independence as the press
now shows without achieving any real diversity."
The System of Freedom of Expression 671 (1970).
The sturdy people who fashioned the First Amendment
would be shocked at that intrusion of Government into a
field which in this Nation has been reserved for individuals,
whatever part of the spectrum of opinion they
represent. Benjamin Franklin, one of the Founders who
was in the newspaper business, wrote in simple and
graphic form what I had always assumed was the basic
1 H. R. 18927, 91st Cong., 2d Sess.
152 OCTOBER TERM, 1972
DouGLAS, J., concurring in judgment 412 U.S.
American newspaper tradition that became implicit in
the First Amendment. In our early history one view
,vas that the publisher must open his columns
"to any and all controversialists, especially if paid
for it. Franklin disagreed, declaring that his newspaper
was uot a stagecoach, with seats for everyone;
he offered to print pamphlets for private distribution,
but refused to fill his paper with private altercations."
2 F. Mott, American Journalism 55 (3d ed.
1962).
It is said that TV and radio have become so powerful
and exert such an influence on the public mind
that they must be controlled by Government.3 Some
2 Congress provided in 47 U. S. C. § 153 (h) that "a person engaged
in radio broadcasting shall not, insofar as such person is so
engaged, be deemed a common carrier."
3 "To say that the media have great decisionmaking powers without
defined legal responsibilities or any formal duties of public
accountability is both to overestimate their power and to put forth
a meaningless formula for reform. How shall we make the New
York Times 'accountable' for its anti-Vietnam policy? Require it
to print letters to the editor in support of the war? If the situation
is as grave as stated, the remedy is fantastically inadequate.
Bnt the situation is not that grave. The N ew York Times, the
Chicago Tribune, NBC, ABC, and CBS play a role in policy formation,
but clearly they werr not alone responsiblr, for examplr,
for Johnrnn's decision not to run for re-elect.ion, Nixon's refusal to
withdraw the troops from Vietnam, the rejection of the two billion
dollar ew York bond issue, the defeat of Carswell and Haynsworth,
or the Supreme Court's segregation, reapportionment and prayer
decisions. The implication that the people of this country- except
the proponents of tht> thC'ory-are mere unthinking automatons
manipulated by the media, without interests, conflicts, or prejudices
is an assumption which I find quite maddening. The development of
constitutional doctrine should not be based on such hysterical overestimation
of media power and underestimation of the good sense of
the American public." .Jaffe, The Editorial Responsibility of the
Broadcaster: Reflections on Fairness and Arccss, 85 Harv. L. Rev.
768, 786-787 ( 1972).
COLUMI3IA BROADCASTING v. DE!vIOCRATIC COMM. 153
94 DouGl,AS, J., concurring in judgment
newspapers in our history have exerted a powerful-and
some have thought-a harmful interest on the public
mind. But even Thomas Jefferson, who knew hO\v base
and obnoxious the press could be, never dreamed of interfering.
For he thought that government control of
newspapers would be the grea.ter of two evils.4
"I deplore . . . the putrid state into which our
newspapers have passed, and the malignity, the
vulgarity, alld mendacious spirit of those who write
them. . . . These ordures are rapidly depraving
the public taste.
"It is however an evil for ,vhich there is no remedy,
our liberty depends on the freedom of the press,
and that cannot be limited without being lost."
Of course there is private censorship in the ne,vspaper
field. But for one publisher who may suppress a fact,
there arc many who will print it. But if the Government
is the censor. administrative fiat, not freedom of choice,
carries the day.
As stated recently by Harry Kalven, Jr.:
"It is an insufficiently noticed aspect of the First
Amendment that it contemplates the vigorous use
of self-help by the opponents of given doctrines,
ideas, and political positions. It is not the theory
that all ideas and positions are entitled to flourish
under freedom of discussion. lt is rather then that
they must survive and endure against hostile criticism.
There is perhaps a paradox in that the suppression
of speech by speech is part and parcel
of the principle of freedom of speech. Indeed, one
big reason why policy dictates that government keep
its hands off communication is that, in this area,
self-help of criticism is singularly effective . ...
"Free, robust criticism of government, its officers,
and its policy is the essence of the democratic
4 T. Jeffer8on, Democracy 150-151 (Padover ed. 19:39).
154 OCTOBER TERM, 1972
DouGLAS, J., concurring in judgment 412 u. s.
dialectic-of 'the belief,' again to quote Brandeis,
'in the power of reason as applied through public
discussion.' The government cannot reciprocally
criticize the performance of the press, its officers, and
its policies without its criticism carrying implications
of power and coercion. The government simply
cannot be another discussant of the press's performance.
Whether it will it or not, it is a critic who
carries the threat of the censor and more often than
not it wills it. Nor is it at all clear that its voice
will be needed; surely there will be others to champion
its view of the performance of the press.
"The balance struck, then, is avowedly, and even
enthusiastically, one-sided. The citizen may criticize
the performance and motives of his government.
The government may defend its performance and its
policies, but it may not criticize the performance
and motives of its critics." 6 The Center Magazine,
No. 3, pp. 36- 37 (May/ June 1973).
Red Lion Broadca,sting Co. v. FCC, 395 U. S. 367, in
a carefully writtBn opinion that was built upon predecessor
cases, put TV and radio under a different regime.
I did not participate in that decision and, with all respect,
would not support it. The Fairness Doctrine has no
place in our First Amendment regime. It puts the head
of the camel inside the tent and enables administration
after administration to toy with TV or radio in order to
serve its sordid or its benevolent ends. In 1973-as
in other years-there is clamoring to make TV and
radio emit the messages that console certain groups.
There are charges that these mass media are too slanted,
too partisan, too hostile in their approach to candidates
and the issues.
The same cry of protest has gone up against the
ne,vspapers and magazines. When Senator Joseph McCOLUMBIA
BROADCASTING v. DEl\lOCRATIC COMM. 155
9-1 DouGLAs, .T., concurring in judgment
Carthy was at his prime, holding in his hand papers
containing the names of 205 "Communists" in the State
Department (R. Feuerlicht, Joe McCarthy and :Mc-
Carthyism 54 (1972)), there were scarcely a dozen
papers in this Nation that stood firm for the citizen's
right to due process and to First Amendment protection.
That, however, \Vas no reason to put the saddle of the
federal bureaucracy on the backs of publishers. Under
our Bill of Rights people are entitled to have extreme
ideas, silly ideas, partisan ideas.
The same is true, I believe, of TV and radio. At
times they have a nauseating mediocrity. At other times
they show the dazzling brilliance of a Leonard Bernstein;
and they very often brillg humanistic influences of faraway
people into every home.
Both TV and radio news broadcasts frequently tip the
news one direction or another and even try to turn a
public figure into a character of disrepute. Yet so do
the newspapers and the magazines and other segments of
the press. The standards of TV, radio, newspapers,
or magazines-whether of excellence or mediocrity-are
beyond the reach of Government. Government-acting
through courts-disciplines lawyers. Government
makes criminal some acts of doctors and of engineers.
But the First Amendment puts beyond the reach of
Government federal regulation of news agencies save
only business or financial practices which do not involve
First Amendment rights. Conspicuous is Associated
Press v. United States, 326 U. S. 1, where enforcement
of the antitrust laws against a news-gathering
agency was held to be not inconsistent with First Amendment
rights.
Government has no business in collating, dispensing,
and enforcing, subtly or otherwise, any set of ideas on
the press. Beliefs, proposals for change, clamor for controls,
protests against any governmental regime are pro156
OCTOBER TER:VI, 1972
DouGLAS, J., concurring in judgment 412 u. s.
tected by the First Amendment against governmental
ban or control.
There has been debate over the meaning of the First
Amendment as applied to the States by reason of the
Fourteenth. Some have thought that at the state level
the First Amendment vms somewhat "watered down"
and did not have the full vigor which it had as applied to
the Federal Government. See Roth v. United States,
354 U. S. 476, 502-503 (Harlan, J., concurring). So far,
that has been the minority view. See Malloy v. Hogan,
378 U. S. 1, 10. But it is quite irrelevant here, for
the First Amendment, like other parts of the Bill of
Rights, was at the outset applicable only to the Federal
Government." The First Amendment is written
in terms that are absolute. Its command is that "Congress
shall make no law ... abridging the freedom of
speech, or of the press .... "
That guarantee, can, of course, be changed by a constitutional
amendment which can make all the press or
segments of the press organs of Government and thus
control the news and information which people receive.
Such a restructuring of the First Amendment cannot be
done by judicial fiat or by congressional action. The ban
of "no" law that abridges freedom of the press is in my
view total and complete.6 The Alien and Sedition Acts,
1 Stat. 566, 570, 596, passed early in our history were
5 Barron v. Mayor of Baltimore, 7 Pet. 243.
6 The press in this country, like that of Britaiu, was at one time
subject to contempt for its comments on pending litigation. Toledo
Newspaper Co. v. United States, 247 U. S. 402. But that position
was changed. Sec Bridges v. California, 314 U.S. 252, 267. Federal
habeas corpus, however, is available to give a man his freedom and
the prosecution an opportunity for a new trial where the conduct
of the press has resultc-d in an unfair trial. Sheppard v. Maxwell,
384 r. S. :333. And change of venue may be had where the local
atmosphere has saturated the community with prejudice. See Rideau
v. Louisiana, 373 U. S. 723.
COLUMBIA BROADCASTING v. DEMOCRATIC COJ\JM. 157
94 DouGLAS, J., concurring in judgment
plainly unconstitutional, as Jefferson believed. Jefferson,
indeed, said that by reason of the First Amendment
"libels, falsehood, and defamation, equally with
heresy and false religion, are withheld from the
cognizance of federal tribunals. That therefore the
act of the Congress of the United States, passed on
the 14th of July, 1798, entitled 'An Act in Addition
to the Act entitled "An Act for the Punishment of
certain Crimes against the United 8tates," ' which
does abridge the freedom of the press, is not law, but
is altogether void, and of 110 force." 4 J. Elliot's
Debates on the Federal Constitution 541 ( 1876).
And see 15 \Vritings of Thomas Jefferson 214 (Memorial
ed. 1904); 14 id., at 116; 11 id., at 43-44.
Those Acts had but a short life, and we never returned
t-0 them. \Ve have, however, v.:itnessed a slow encroachment
by Government over that segment of the press
that is represented by TV and radio licensees. Licensing
is necessary for engineering reasons; the spectrum
is limited and ·wavelengths must be assigned to avoid
stations interfering 7 with each other. Red Lion Broadcasting
Co. v. FCC, 395 TI. S .. at 388. The Commission
has a duty to encourage a multitude of voices but only in
7 The Senate Report which accompanied tlw bill that berame the
Radio Act of 1927, 44 Stat. 1162 stated:
"If the channels of radio transmission were unlimited in number
the importance of the regulatory body would be greatly lessened, but
these channels are limited and restricted in number and th(' derision
as to who shall be permitted to use them and on what terms and for
what periods of time, together with the other questions connected
with the situation, requires the exercise of a high order of discretion
and the most careful application of the principles of equitable trmtment
to all the classes and interests affected. For these and other
reasons your committee decided that all power to regulate- radio
communication should be centered in one independent. body, a radio
commission, granting it full and complete authority over the entire
subject of radio." ~- Rep. 772, 69th Cong., 1st Scss., 3.
158 OCTOBER TERM, 1972
Douaus, J., concurring in judgment 412 u. 8.
a limited way, viz., hy preventing monopolistic practices
and by promotiug techuological developments that will
open up new channE'ls.8 But censorship O or editing or
the screening by GovE'rnment of what licensees may broadcast
goes against the grain of the First Amendment.
The Court in Xatio11al Broadcasting Co. v. Cnited
States, 319 e. S. 190, 226. said, "l1nlike other modes of
8 Scarcity may soon bra constramt of the pa;;t, thus obviatmg the
concern~ expressed in Red Lion. It has been pm:lictcd that it may
be pos~ible within 10 yrars to pro\·ide television viewers 400 channPls
through the adrnncr~ of cable television. R. Smith, The Wirrd
Nation 7 (1972): sec Brandyu·ine-.1'1foin Line Radi'>, Inc. v. FCr',
153 U. S. App. D. C. 305, 3fl2 365, 473 F. 2d 16, 73-76 (Bazelon, J.,
di,-;,~enting)
9 Currently, press rensorship covers most of thP globe. In Brazil
the prPsent re12:1me of crnsor~hip i;; pPrva~ivc. As reported in the
New York Times for Feb. 17, 19i3, p. 11:
"The censors' rules. issued a few months ago and con~tantly
amended, cover a vast field and if strirtly applied would lea.,·e the
pr~ little- to discu"S. Tn prnrtirf'. however, much depends on the
whims and ~uspirions of thr local (·en~ors.
"G•mcral prohibitions inrlude protests again~t censorship, any
discussion of a successor to Prc;;ident Emilio Garrast11zu Medici,
who~e term is up in 197-!, campaigns against the Government's
sperial powrrs hy decree and sensational news that might hurt the
image of Brazil.
"Others arc- rampai11:n~ to discredit the national housing program,
the finan<'ial market or othPr mattrr~ of vital import11nce to the
Government, thP playing up of assaults on banks or credit establishments,
ten~ion between the Roman Catholic Church and the state,
agitation in union and student circles, 11nd publicity for Communist
personalities and nations. Criticism of state l!:O\'rrnors and 'exaltation
of immorality' through new~ of homoscxu11lity, prostitution and
drug~ arr also barred.
"ThP most controversial order, issued by the Minister of Justice last
September, bans all news, comment or inten·iews on a political
relaxation of thr regimf'. on dPmocrary for Brazil, and on the economir
and financial situation in general."
COLUMBIA BROADCASTI:-l"G v. DK\lOCRATIC COMM. 159
94 DOUGLAS, .J., concurring in judgment
expression, radio inherently is not available to all. That
is its unique characteristic, and that is why, unlike other
modes of expression, it is subject to governmental
regulation."
That uniqueness is due to engineering and technical
problems. But the press in a realistic sense is likewise
not available to all. Small or "underground" papers
appear and disappear; and the weekly is an established
institution. But the daily papers now established are
unique in the sense that it would be virtually impossible
for a competitor to enter the field due to the financial
exigencies of this era. The result is that in practical
terms the newspapers and magazines, like TV and
radio, are available only to a select few. Who at this
time would have the folly to think he could combat the
New York Times or Denver Post by building a new plant
and becoming a competitor? That may argue for a
redefinition of the responsibilities of the press in First
Amendment terms.'" But I do not think it gives us
10 Indeed, it can be argued that the existence of newspapers, and
thus their access to the public, is dependent upon the preferential
mailing privileges newspapers recei\'e through second-class postage
rates. This is a privilege afforded by the Government, and, as my
Brother STEWART recognizes, a form of subsidy.
Under the Postal Reorganization Act, the new Postal Rate Commission
is empowered to fix postage rates at levels high enough to
make each class of mail pay its own way. John Fischer reports
that the increase in second-class mail rates for magazines and pniodicals
( 127%) is "nothing less than a death sentence for an unpredictable
number of publications." The Easy Chair, Harper's
Magazine 30, 31 (May 1973). It is not the established giants
of the publishing field that will suffer most, for it is estimated
that some 10,000 magazines and small newspapers will be forced out
of C'XiStC'nce. Id., at 30. Fischer mentions specifically the National
Review, Human Events, The Nation, and The ~ew Republic. These
arc the publications that offer us the rich diversity of opinion and
160 OCTOBER TER}l, 1972
DouGLAS. •T ., concurring in judgment 412 u. s.
carte hlanche to design systems of supervision and
control or empo\ver Congress to read the mandate in
the First Amendment that "Congress shall make no
law ... abridging the freedom ... of the press" to mean
that Congress may, acting directly or through any of
its agencies such as the FCC make "some" la,vs "abridging"
freedom of the press.
Pmverful arguments, summarized and appraised in
T. Emerson, The System of Freedom of Expression, cc.
XVII and XVIII (1970), can be made for revamping or
reconditioning the system. The present one may be
largely aligned on the side of the status quo. The problem
implicates our educational efforts ,vhieh are bland
and conformist and the pressures on the press, from political
and from financial sources, to foist boilerplate
points of view on our people rather than to display the
diversities of ideologies and culture in a world which, as
Buckminster Fuller said, has been "communized" by the
radio.
\Vhat kind of First Amendment would best serve our
needs as \Ve approach the 21st century may be an open
question. But the old-fashioned First Amendment that
,ve have is the Court's only guideline; and one hard and
fast principle which it announces is that Government
reporting the First Amendment is designed to promote and protect.
As Senator :McGee, Chairman of the Post Office Mild Civil Service
Committee, has said: "I believe that the American publir generally
has a vested interest in the survival of newspapers and magazines.
Regardless of the cconomif', political, or social poliPies which they
espouse, thPy contribute to tlw nation's thought process. I am personally
convinced that the Congress should not permit magazines to
go nnder because the cost of distributing them through the postal
system is higher than their readers are willing to pay." Id., at :32.
In nddition to the benefits of reduced postage mtes, newspaprrs
h:we been afforded a limited antitrust exemption. Kewspaper Preservation
Act, 15 U. S. C. § 1801 et seq.
COLUJVfBIA BROADCASTING v . DE:.\IOCTIATIC C0:.\'1:M. 161
94 DolIGLAS, J., concurring in judgment
shall keep its hands off the press. That principle has
served us through days of calm and eras of strife and I
would abide by it until a new First Amendment is
adopted. That means, as I view it, that TV and radio,
as well as the more conventional methods for disseminating
news, are all included in the concept of "press" as
used in the First Amendment and therefore are entitled
to live under the laissez-faire regime which the First
Amendment sanctions.
The issues presented in these cases are momentous
ones. TV and radio broadcasters have mined millions by
selling merchandise, not in selling ideas across the broad
spectrum of the First Amendment. But some ne,vspapers
have done precisely the same, loading their pages with
advertisements; they publish, not discussions of critical
issues confronting our society, but stories about murders,
scandal, and slanderous matter touching the
lives of public servants who have no recourse due to New
York Times Co. v. Sullivan, 376 U.S. 254. Commissioner
Johnson of the FCC wrote in the present case a pmverful
dissent. He said:
"Although the First Amendment would clearly ban
governmental censorship of speech content, government
must be concerned about the procedural rules
that control the public forums for discussion. If
someone-a moderator, or radio-television licensee--
applies rules that give one speaker, or vie·wpoint,
less time (or none at all ) to present a position, then
a censorship exists as invidious as outright thought
control. There is little doubt in my mind that for
any given forum of speech the First Amendment
dema.nds rules permitting as many to speak and be
heard as possible. And if this Commission does
not enact them, then the courts must require them."
25 F. C. C. 2d 216, 232.
162 OCTOBER TER~I, 1972
DOUGLAS, .T., concurring in judgment 412 u. 8.
But the prospect of putting Government in a position
of control over publishers is to me an appalling one, even
to the extent of the Fairness Doctrine. The struggle for
liberty has been a struggle against Government. The
essential scheme of our Constitution and Bill of Rights
was to take Government off the backs of people. Separation
of powers was one device. An independent judiciary
was another device. The Bill of Rights was still another.
And it is anathema to the First Amendment to allow
Government any role of censorship over newspapers, magazines,
books, art, music, TV, radio, or any other aspect
of the press. There is unhappiness in rnrne circles at
the impotence of Government. But if there is to be a
change, let it come by constitutional amendment. The
Commission has an important role to play in curbing
monopolistic practices, in keeping channels free from interference,
in opening up ne,v channels as technology
develops. But it has no power of censorship.
It is said, of course, that Government can control the
broadcasters because their channels are in the public
domain in the sense that they use the airspace that is
the common heritage of all the people. But parks are
also in the public domain. Yet people who speak there
do not come under Government censorship. Lovell v.
Griffin, 303 U.S. 444, 450-453; Hague v. CIO, 307 U.S.
496, 515-516. It is the tradition of Hyde Park, not the
tradition of the censor, that is reflected in the First
Amendment. TV and radio broadcasters are a vital part
of the press; and since the First Amendment allows no
Government control over it, I \vould leave this segment
of the press to its devices.
Licenses are, of course, restricted in time and white, in
my view, Congress has the power to make each license
limited to a fixed term and nonreviewable, there is no
power to deny renewals for editorial or ideological reaCOLUMBIA
BROADCASTING v. DEl\WCRATIC COMM. 163
94 DovGLAS, .J ., concurring in judgment
sons. The reason is that the First Amendment gives no
preference to one school of thought over others.11
The Court in today's decision by endorsing the Fairness
Doctrine sanctions a federal saddle on broadcast
licensees that is agreeable to the traditions of nations
that never have known freedom of press 12 and that is
tolerable in countries that do not have a written constitution
containing prohibitions as absolute as those
in the First Amendment. Indeed after these cases were
argued the FCC instituted a "non-public" inquiry 13 to
11 .Judge Bazelon, dissenting in Brandywinr-Main Line Radio, Inc.
v. FCC, 153 U.S. App. D. C., at 358-359, 473 F. 2d, at 69-70, said:
"WXUR was no doubt devoted to a particular religious and political
philosophy; but it was also a radio station devoted to speaking
out and stirring debate on controversial issues. The station was
purchased by Faith Theologiral Seminary to propagate a viewpoint
which was not being heard in the greater Philadelphia area. The
record is clear that through its interview and call-in shows it did
offer a variet.y of opinions on a broad range of public issues; and
that it never refused to lend its broadcast facilities to spokesmen of
conflicting viewpoints.
"The Commission's strict rendering of fairness requirements, as
developed in its decision, has removed WXUR from the air. This
has deprived the listening public not only of a viewpoint but also
of robust debate on innumerable controversial issues. It is beyond
dispute that the public has lost access to information and ideas.
This is not a loss to be taken lightly, however unpopular or disruptive
we might judge these ideas to be." (Footnotes omitted.)
12 If Eastern European experience since World War II is any
criterion, the newspapers are pretty much the company paper in
the hug(~ company (Communist) nation. The easiest target, however,
seems to be TV where the input can be carefully controlled
and "prime time" filled with tapes of official meetings, political
speeches, and the tedious accounts of achievement of the workers.
See ).forgan, Press Obedience in East Europe, \Vashington Post,
l\fay 19, 1973, p. Al4.
13 FCC Order No. 73-331, 39 Fed. Reg. 8301 (.Mar. 27, 1973).
164 OCTOBER TERM, 1972
DouGLAS, J., concurring in judgment 412 u. s.
determine whether any broadcaster or cablecaster has
broadcast " 'obscene, indecent or profane language' in
violation of" 18 lJ. S. C. § 1464.
In April 1973, the FCC fined Sonderling Broadcasting
Corp., which operates station WGLD in Oak Park, Illinois,
for allowing "obscene" conversations on a telephone
"talk show." It used Roth v. United States, 354 U. S.
476, Memoirs v. Massachusetts, 383 U. S. 413, and Ginzburg
v. United States, 383 U. S. 463, as supplying the
criteria for broadcasting. It fined the corporation $2,000
under 18 C S. C. § 1464, which reads, "Whoever utters
any obscene, indecent, or profane language by means of
radio communication shall be fined not more than $10,000
or imprisoned not more than two years, or both."
Commissioner Johnson dissented, saying that the FCC
prefers "to sit as an omniscient programming review
board, allegedly capable of deciding what is and is not
good for the American public to see and hear"; and that
when the FCC bars a particular program it casts "a pall
over the entire broadcasting industry" for the reason
that the licensees ''fear the potential loss of their highly
profitable broadcast licenses." That, he concluded, creates
a "chilling effect" which has "enormous proportions"
and reaches "all forms of broadcast expression."
\Ve ourselves have, of course, made great inroads on
the First Amendment of which obscenity is only one of
the many examples. So perhaps we are inching slowly
toward a controlled press. But the regime of federal
supervision under the Fairness Doctrine is contrary to
our constitutional mandate and makes the broadcast
licensee an easy victim of political pressures and reduces
him to a timid and submissive segment of the press whose
measure of the public interest will now be echoes of the
dominant political voice that emerges after every election.
The affair with freedom of which we have been
COLUMBIA BROADCASTING v. DEMOCRATIC COM;\,I. 165
94 DouGLAS, J., concurring in judgment
proud \vill no,v bear only a faint likeness of our former
robust days.
III
I said that it would come as a surprise to the public as
well as to publishers and editors of newspapers to learn
that they ,vere under a newly created federal bureau.
Perhaps I should have said that such an event should
come as a surprise. Iu fact it might not in view of the
retrogressive steps we have witnessed.
vVe have allmved ominous inroads to be made on the
historic freedom of the nev.'spapers. The effort to suppress
the publication of the Pentagon Papers failed only
by a narrmv margin and actually succeeded for a brief
spell in imposing prior restraint on our press for the
first time in our history. See Sew York Times Co. v.
United States, 403 U. S. 713.
In recent years the admonition of Mr. Justice Black
that the First Amendment gave the press freedom so
that it might "serve the governed, not the governors"
( id., at 717) has been disregarded.
"The Government's power to censor the press was
abolished so that the press would remain forever free to
censure the Government. The press was protected so
that it could bare the secrets of government and inform
the people. Only a free and unrestrained press can effectively
expose deception in government. And paramount
among the responsibilities of a free press is the
<luty to prevent any part of the government from deceiving
the people and sending them off to distant lands to
die of foreign fevers and foreign shot and shell." Ibid.
The right of the people to know has been greatly
undermined by our decisions requiring, under pain of
contempt, a reporter to disclose the sources of the information
he comes across in investigative reporting. Branzburg
v. Hayes, 408 U. S. 665.
166 OCTOBER TERM, 1972
DOUGLAS, .J., concurring in judgment 412 U.S.
The Boston Globe reports: 14
"In the last t,vo years at least 20 Federal Grand
Juries have been used to investigate radical or antiwar
dissent. With the power of subpoena, the proceedings
secret, and not bound by the rules of evidence
required in open court, they have a lot more
leverage than, for example, the old House Un-
American Activities Committee."
Many reporters have been put in jail, a powerful
weapon against investigative reporting. As the Boston
Globe states, "in reality what is being undermined here
is press freedom itself." 15
In the same direction is the easy use of the stamp
"secret" or "top secret" ,vhich the Court recently approved
in Environmental Protection Agency v. Mink, 410
U. S. 73. That decision makes a shambles of the Freedom
of Information Act. In tune with the other restraints
on the press are provisions of the new proposed
Rules of Evidence which the Court recently sent to Congress.
Proposed Rule 509 (b) provides:
"The government has a privilege to refuse to give
evidence and to prevent any person from giving evidence
upon a showing of reasonable likelihood of
danger that the evidence will disclose a secret of
state or official information, as defined in this rule.''
Under the statute if Congress does not act,16 this new
regime of secrecy wilt be imposed on the Nation and the
14 The People's Need to Know, Editorial Series, Jan. 21-27, 1973,
reprinted from Boston Globe, p. 12.
1 5 Id., at 13.
ir. By reason of an Act of Congress of Mar. 30, 1973, the Rules
of Evidence--and amendments to the Rules of Civil Procedure and
to the Rules of Criminal Procedure (which we sent up Nov. 20, 1972,
and Dec. 18, 1972)- will have no force or effect except to the extent
that Congress expressly approves. 87 Stat. 9.
COLUMBIA BROADCASTING v. DEMOCRATIC COMM. 167
94 DOUGLAS, ,J., concurring in judgment
right of people to knm;v will be further curtailed. The
proposed code sedulously protects the Government; it
does not protect newsmen. It indeed pointedly omits
any mention of the privilege of newsmen to protect their
confidential sources.
These grmving restraints on newspapers have the same
ominous message that the overtones of the present opinion
have on TV and radio licensees.
The growing specter of governmental control and
surveillance over all activities of people makes ominous
the threat to liberty by those who hold the executive
power. Over and over again, attempts have been made
to use the Commission as a political weapon against the
opposition, whether to the left or to the right.
Experience has shown that unrestrained power cannot
be trusted to ferve the public weal even though it be in
governmental hands. The fate of the First Amendment
should not be so jeopardized." The constitutional mandate
that the Government shall make "no law" abridging
freedom of speech and the press is clear; the orders and
rulings of the Commission are covered by that ban; and
it must be carefully confined lest broadcasting- now our
most powerful media-be used to subdue the minorities
or help produce a Nation of people who walk submissively
to the executive's notions of the public good.
17 Alexander Bickel has spurned the "total agnosticism" that allows
the First Amendment to have its way because "who really knows,
after all, what is true or false, evil or good, noxious or wholesome."
The Press and Government: Adversaries Without Absolutes, Freedom
at Issue 5 (May-June 1973). He attributes t his view to
:Mr. Justice Holmes. He would place at least partial responsibility
with the GoYernment for determining the "good counsels and whole-
S'.lme doctrine." Ibid. But, it was precisely the mistrust of the
evanescent, narrow, factional vie;vs of those in powf'r and the be!iC'f
that no one has a patent on the "truth" that underlay the First
Amendment.
168 OCTOBER TERM, 1972
DouGLAS, J., concurring in judgment 412 U.S.
Mills v. Alabama, 384 U. S. 214, involved a prosecution
of a newspaper editor for publishing, contrary to a state
statute, an editorial on election day urging the voters to
vote against the existing city commission and to replace
it with a mayor-council government. This Court, speaking
through Mr. Justice Black, reversed the judgment
saying:
"[T]he press serves and was designed to serve as
a powerful antidote to any abuses of power by governmental
officials and as a constitutionally chosen
means for keeping officials elected by the people
responsible to all the people whom they were selected
to serve. Suppression of the right of the
press to praise or criticize governmental agents and
to clamor and contend for or against change, which
is all that this editorial did, muzzles one of the very
agencies the Framers of our Constitution thoughtfully
and deliberately selected to improve our society
and keep it free. The Alabama Corrupt
Practices Act by providing criminal penalties for
publishing editorials such as the one here silences
the press at a time when it can be most effective.
It is difficult to conceive of a more obvious and
flagrant abridgment of the constitutionally guaranteed
freedom of the press." Id., at 219.
I would apply the same test to TV or radio.18
18 The monetary and other burdens imposed on the press by the
right of a criticized person to reply, like the traditional damage
remedy for libel, lead of course to self-censorship respecting matters
of 1mportan<'c to the public that the First Amendment denies
the Government the power to impose. The burdens certainly are as
onerous as the indirect restrictions on First Amendment rights which
we have struck down: (I) the requirement that a bookseller examine
the contents of his shop, Smith v. CaJ,ifornia, 361 U. S. 147 (1959);
(2) the requirement that a magazine publisher invest.igate his advertisers,
Manual Enterprises, Inc. v. Day, 370 U. S. 478, 492-493
COLUMBIA BROADCASTING v. DEMOCRATIC Cm.IM. 169
94 DouGLAS, J., concurring in judgment
What Walter Lippman wrote about President Coolidge's
criticism of the press has present relevancy. Coolidge,
he said, had
" 'declared for peace, good-will, understanding moderation;
disapproved of conquest, aggression, exploitation;
pleaded for a patriotic press, for a free press;
denounced a narrow and bigoted nationalism, and
announced that he stood for law, order, protection
of life, property, respect for sovereignty and principle
of international law. Mr. Coolidge's catalog of
the virtues was complete except for one virtue ....
That is the humble realization that God has not
endowed Calvin Coolidge ,vith an infallible power
to determine in each concrete case exactly what is
right, what is just, what is patriotic. . . . Did he
recognize this possibility he would not continue to
lecture the press in such a way as to make it appear
that when newspapers oppose him they are unpatriotic,
and that when they support him they do
so not because they think his case is good but because
they blindly support him. Mr. Coolidge's
notion ... would if it were accepted by the American
press reduce it to utter triviality.' " J. Luskin,
Lippman, Liberty, and the Press 60 (1972).
(1962) (opinion of Harlan, J.); (3) the requirement that names
and addresses of sponsors be printed on handbills, Talley v. California,
362 U.S. 60 (1960); (4) the requirement that organizations
supply membership lists, Gibson v. Florida Legislative Investigation
Committee, 372 U. S. 539 (1963); Louisiana ex rel. Gremillion v.
NAACP, 366 11. S. 293 (1961); Bates v. City of Little Rock, 361
U. S. 516 (1960); 1VAACJ> v. Alabama, 357 U.S. 449 (1958); and
(5) the requirement that individuals disdose organizational membership,
Shelton v. Tucker, 364 U. S. 479 (1960). In each instance
we held the restrietion unronstitutional on the ground that it disrouraged
or rhillcd constitutionally protectrd rights of spcceh, press,
or association.
170 OCTOBER TERM, 1972
BREN~AK, J., dissenting 412 U.S.
The same political appetite for oversight of most segments
of the press has markedly increased since the bland
days of Calvin Coolidge.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL
concurs, dissenting.
These cases require us to consider whether radio and
television broadcast licensees may, with the approval of
the Federal Communications Commission,1 refuse absolutely
to sell any part of their advertising time to groups
or individuals wishing to speak out on controversial issues
of public importance. In practical effect, the broadcaster
policy here under attack permits airing of only those paid
presentations which advertise products or deal with "noncontroversial"
matters, while relegating the discussion of
controversial public issues to formats such as documentaries,
the ne\vs, or panel shows, w·hich are tightly controlled
and edited by the broadcaster. The Court holds
today that this policy-including the absolute ban on
the sale of air time for the discussion of controversial
issues-is consistent with the "public interest" requirements
of the Communications Act of 1934, 47 U. S. C.
§§ 307 (d), 309 (a).2 The Court also holds that the
1 See Business Executives Move for Vietnam Peace, 25 F. C. C.
2d 242 (1970); Democratic National Committee, 25 F. C. C. 2d 216
(1970).
2 I do not specifically address the "statutory" question in thi~ case
because, in practical effect, the comiderations underlying the
"statutory" question a.re in many respects similar to those relevant
to the "substance" of the "constitutional" claim. There
is one aspect of the Court's "statutory" discussion, howeYer, that
merits at least brief attention. In upholding the absolute ban
on the sale of editorial advertising, the Court relies heavily upon 47
U. S. C. § 153 (h), which declares that broadcasters shall not be
deemed "common carriers." In my view, this reliance is misplaced.
Even a cursory examination of the legislative history of this provision
reveals that it was enacted in recognition of the fact that
COLUMBIA BROADCASTING v. DEMOCRATIC CO:.\IM. 171
94 BRENNA:-., J., dissenting
challenged policy does not violate the First Amendment.
It is noteworthy that, in reaching this result, the Court
does not hold that there is insufficient "governmental involvement"
in the promulgation and enforcement of the
challenged ban to activate the commands of the First
Amendment. On the contrary, only THE CHIEF JUSTICE,
and my Brothers STEw ART and REHNQUIST express the
view· that the First Amendment is inapplicable to this
case. My Brothers ·WHITE, BLACKMON, and PowELL
quite properly do not decide that question, for they find
that the broadcaster policy here under attack does not
violate the "substance" of the First Amendment. Similarly,
there is no majority for the holding that the challenged
ban does not violate the "substance" of the First
Amendment. For, although THE CHIEF JuSTICE, and
my Brother REHNQUIST purport to "decide" that question,
their disposition of the "governmental involvement"
issue necessarily renders their subsequent discussion
of the "substantive" question mere dictum.
traditional doctrines governing true "common carriers," such as
transportation companies, would not suit the particular problem~
of radio broadcasting. Specifically, it was feared that such "common
carrier" status for broadcasters would mean that they "would have
to give all their time to [public issues]." 67 Cong. Rec. 12504
(Sen. Dill) (emphasis added); see also ibid. (Sen. Broussard):
id., at 12356 (Sen. Fess). Section 153 (h) was intended solely
to assure that broadcasters would not be required to surrender all
of their air time to willing purchasns; it does not bear upon the
question whether they may be required to sell a reasonable and
limited amount of air time to mPrnbers of the publir for <lis<'msion
of controversial issues. See 2 Z. Chafee, Government and Mass
Communications 635 n. 7S ( 1947). Indeed, the Commission itself
has rejected the Court's interpretation of § 1.53 (h) when it derlarcd,
over 2S years ago, that "the operation of any station under
the extreme principles that no time shall be sold for the discussion
of controversial public issues . . . is inconsistent with the concept
of public interest established by the Communications Act. . . . "
United BroadcaJ3ting Co., 10 F. C. C. 515, 518 (194/i).
172 OCTOBER TEH :.\I, 1972
BRK'.,~AK, J., dissenting 412 u. s.
In my view, the principle at stake here is one of
fundamental importance, for it concerns the people's
right to engage in and to hear vigorous public debate
on the broadcast media. And balancing what I perceive
to be the competing interests of broadcasters, the
listening and viewing public, and individuals seeking to
express their views over the electronic media, I can only
conclude that the exclusionary policy upheld today can
serve only to inhibit, rather than to further. our "profound
national commitment to the principle that debate
on public issues should be uninhibited, robust, and wideopen."
New York Times Co. v. Sullivan, 376 U. S. 254,
270 ( 1964). I would therefore affirm the determination
of the Court of Appeals that the challenged broadcaster
policy is violative of the First Amendment.
I
The command of the First Amendment that "Congress
shall make no law ... abridging the freedom of speech,
or of the press" is, on its face, directed at governmental
rather than private action. Nevertheless, our prior decisions
make clear that " [ c] on duct that is formally 'private'
may become so entwined with governmental policies
or so impregnated with a governmental character as to
become subject to the constitutional limitations placed
upon [governmental] action." Evans v. iVewton, 382
U. S. 296, 299 (1966). Thus, the reach of the First
Amendment depends not upon any formalistic "privatepublic"
dichotomy but, rather, upon more functional
considerations concerning the extent of governmental involvement
in, and public character of, a particular "private"
enterprise. "Only by sifting facts and weighing
circumstances can the nonobvious involvement of the
[Government] in private conduct be attributed its true
significance." Burton v. Wilmington Parking Authority,
365 U. S. 715, 722 (1961); see Moose Lodge No. 107 v.
COLUMBIA BROADCASTING v. DEMOCRATIC COi\-IM. 173
94 BRENNAX . .J., dissenting
Irv-is, 407 U. S. 163, 172 (1972). And because of the
inherent complexity of this case-by-case inquiry, "f t]his
Court has never attempted the 'impossible task' of formulating
an infallible test" for determining in all instances
whether particular conduct must be deemed private or
governmental. Reitman v. Mulkey, 387 U. S. 369, 378
(1967); see Kotch v. Pilot Comm'rs, 330 U. S. 552, 556
(1947).
This does not mean, of course, that our prior experience
in this area offers no guidance for the purposes of
our present inquiry. On the contrary, our previous decisions
have focused on myriad indicia of "governmental
action," many of which are directly applicable to the
operations of the broadcast industry." As the Court of
Appeals recognized, "the general characteristics of the
broadcast industry reveal an extraordinary relationship
between the broadcasters and the federal governmenta
relationship which puts that industry in a class with
few others.'' 146 r. S. App. D. C. 181, 190, 450 F. 2d
642. 651. More specifically. the public uature of the
airwaves, the governmentally created preferred status of
broadcast licensees. the pervasive federal regulation of
broadcast programming, and the Commission's specific
approval of the challenged broadcaster policy combine in
this case to bring the promulgation and enforcement of
that policy within the orbit of constitutional imperatives.
At the outset, it should be noted that both radio and
television broadcasting utilize a natural resource-the
electromagnetic spectrum ·- that is part of the public
3 See generally Business Executives Move for Vietnam Peace, 25
F. C. C. 2d, at 253-264 (dissenti11g opinion), wherein Commissioner
,Johnson identified no less than eight separate indicia of "governmental
action" involved in tilf' promulgation and enforcnnent of
the challenged broadcaster policy.
4 For a discussion of the attributes of the electromagnetic spectrum,
see genera.Uy W . .Jones, Regulated Industries 1019 ( 1967) ; Levin,
The Raclio Spectrum Resource, 11 J. Law & Econ. 433 (1968).
174 OCTOBER TER~I, 1972
BRENXAN, J., dissenting 412 U.S.
domain. And. although broadcasters are granted the
temporary use of this valuable resource for terminable
three-year periods, "ownership" and ultimate control remain
vested in the people of the 'C'nited States. Thus,
§ 301 of the Communications Act of 1934, 47 'C'. S. C.
§ 301, specifically provides:
"It is the purpose of this [Act] ... to maintain
the control of the United States over all the channels
of interstate and foreign radio transmission; and to
provide for the use of such channels, but not the
ownership thereof, by persons for limited periods of
time, under licenses granted by Federal authority,
and no such license shall be construed to create any
right, beyond the terms, conditions, and periods of
the license ..... ,
Such public "ownership" of an essential element in the
operations of a private enterprise is, of course, an important
and established indicium of "governmental involvement."
In Burton v. Wilmington Parking Authority,
supra, for example, ,ve emphasized the fact of "public
ownership" in holding the proscriptions of the Fourteenth
Amendment applicable to a privately owned restaurant
leasing space in a building owned by the State.5
5 It is true, of course, that unlike the State in B·urton, the Federal
Government here does not receive substantial financial compensation
for the use of the "public" property. Sec Burton v. Wilmington
Parking Authority, 365 U. S. 715, 723-724 (1961); 2\foose Lodgf'
No. 107 v. Irvis, 407 U.S. 163, 174-175 (1972). Ncv('rtheless, the
absenc<' of such a financial arrangement represents, in practical !'ffect,
Government subsidization of broadcasters, thereby enhancing the
degree of governmental invo]v('rncnt. Cf. Kalven, Broadcasting,
Publir Policy and the .First Amendment, 10 J. Law & Econ. 15, 31
(1967). Mor<'ovcr, as in Burton, the publicly owned property is
"not surplus state property" hut, rather, constitutes an "integral
and, indePd, indispensable part" of the goYcrnmc'ntal sehrme. Burton
v. Wilmington Parking Authority, supra, at 723. Sec also 47
l'. S. C. § 303 (g).
COLUMBIA BROADCASTING v. DElVIOCRATIC COMM. 175
94 BRENNAN, J., dissenting
In reaching that result, we exp1ainecl that, in part because
of the "public ownership" of the building, the
State "has elected to place its power, property and
prestige behind the" actions of the privately ovmed restaurant.
365 U. S .. at 725. And, viewing the relationship
in its entirety, we concluded that " [ t] he State
has so far insinuated itself into a position of interdependence
with [the restaurant] that it must be recognized
as a joint participant in the challenged activity
. . . . " Ibid.; see also Moose Lodge No. 107 v.
Irvis, supra, at 172- 173, 175; Turner v. City of Memphis,
369 U.S. 350 (1962); Kissinger v. New York City Transit
Authority, 274 F. Supp. 438 (SDKY 1967); Farmer v.
Moses, 232 F. Supp. L54 (SDKY 1964).
A second indicium of "governmental involvement" derives
from the direct dependence of broadcasters upon
the Federal Government for their "right" to operate
broadcast frequencies. There can be no doubt that,
for the industry as a whole, governmental regulation
alone makes "radio communication possible by ... limiting
the number of licenses so as not to overcrmvd the
spectrum." Red Lion Broadcasting Co. v. FCC, 395
U. S. 367, 389 (1969).6 Moreover, with respect to individual
licensees, it is equally clear that "existing broadcasters
have often attained their present position," not
as a result of free market pressures' but, rather, "because
of their initial government selection . . . . " Id.,
at 400. Indeed, the "quasi-monopolistic" advantages
enjoyed by broadcast licensees "are the fruit of a preferred
position conferred by the Government." Ibid.
"For a discussion of the Fairness Doctrine and its relevance to this
case, see text and notes, at nn. 1.5-34, infra.
7 Indeed, the Communications Act of 1934 makes ir a criminal
offense to operate a broadcast transmitter without a license. See
47 U. S. C. § 501. Thus, the Federal Government specifically insulates
the licensee from any real threat of economic competition.
176 OCTOBER TER:V1, 1972
BRENN AN, J., dissenting 412 u. s.
Thus, as lVIR. CHIEF JGSTICE (then Judge) BURGER has
himself recognized, "[a] broadcaster seeks and is granted
the free and exclusive use of a limited and valuable part of
the public domain; when he accepts that franchise it is
burdened by enforceable public obligations." Office of
Communication of United Church of Christ v. FCC,
123 U.S. App. D. C. 328, 3:37. 359 F. 2d 994, 1003 (1966).
And, along these same lines, we have consistently held
that "when authority derives in part from Government's
thumb on the scales, the exercise of that power by private
persons becomes closely akin, in some respects, to
its exercise by Government itself." American Communications
Assn. v. Douds, 339 U. S. 382, 401 (1950);
see, e. g., Public Utilities Comm'n v. Pollak, 343 U. S.
451, 462 n. 8 (1952).
A further indicium of "governmental involvement" in
the promulgation and enforcement of the challenged
broadcaster policy may be seen in the extensive governmental
control over the broadcast industry. It is true,
of course, that this "Court has never held" that actions of
an otherwise private entity necessarily constitute governmental
action if that entity "is subject to ... regulation
in any degree whatever." Moose Lodge No. 107 v.
Irvis, supra, at 173. Here, however, we are confronted,
not with some minimal degree of regulation, but, rather,
with an elaborate statutory scheme governing virtually
all aspects of the broadcast industry.8 Indeed, federal
8 Thus, the Communications Act of 1934 authorizes the Federal
Communications Commission to assign frequency bands, 47 U. S. C.
§ 303 (c); allocate licenses by location,§ 303 (d); regulate apparatus,
§ 303 (e); establish service areas, § 303 (h); regulate chain ownership,
§ 303 (i); require the keeping of detailed records, § 303 (j);
establish qualifications of licensees, § 303 (l); suspend licenses,
§ 303 (m) (1); inspect station facilities, § 303 (n); require publication
of call letters and other information, § 303 (p); make rules
to effect regulation of radio and television, § 303 (r); require that
television sets be capable of receiving all signals, § 303 (s); regulate
COLUMBIA BROADCASTI=--rG v. DElVIOCRATIC CO?I-L.\1. 177
94 BRENNAN, J., dissenting
agency review and guidance of broadcaster conduct is
automatic, continuing. and pervasive.0 Thus. as the
Court of Appeals noted, "[a]lmost no other private
business-almost no other regulated private businessis
so intimately bound to government .... '' 146 U. S.
App. D. C .. at 191, 450 F. 2d, at 652.
Even more important than this general regulatory
scheme, however, is the specific governmental involvement
in the broadcaster policy presently under consideration.
There is, for example, an obvious nexus between
the Commission's Fairness Doctrine and the
absolute refusal of broadcast licensees to sell any part of
their air time to groups or individuals wishing to speak
out on controversial issues of public importance. Indeed,
in defense of this policy, the broadcaster-petitioners
argue vigorously that this exclusionary policy is authorized
and even compe1led by the Fairness Doctrine. And
the Court itself recognizes repeatedly that the Fairness
Doctrine and other Communications Act policies are
the granting of licen~es and the terms thereof, §§ 307, 309; prescribe
information to be supplied by applicants for licenses,§ 308 (b);
regulate the transfer of licenses, § 310; impose sanctions on licensees,
including revocation of license, § 312; require fair coverage of controversial
issues, § 315; control the operation of transmitting apparatus,
§ 318; and prohibit the use of offensive language, 18
U. ::4. C. § 1464.
9 Pursuant to statutory authority, sec n. 8, supra, thr Commission
has promulgated myriad regulations governing all aspects of
licensee conduct. See 47 CFR § 73.17 et seq. These regulations
affect such matters as hours of operation, § 73.23; multiple ownership
of licenses by a single individual, § 73.35; station location and
program origination, § 73.30; maintenance of detailed logs of programming,
operation, and maintenance, §§ 73.111-116; billing practices,
§ 73.124: the personal attack and politiral P<litorial fairness
requirements, § 73.123 ,: relationship of 1i<"Pnsces to network~,
§§ 73.131-139; permissible equipment, §§ 73.39-50. The aboverited
regulations relate only to AM radio, but similar regulations
exist for FM radio, § 73.201 et seq., and television, § 73.601 et seq.
178 OCTOBER TERM, 1972
BRENNAN, J., dissenting 412 u. s.
inextricably linked to the challenged ban. Thus, at one
point, the Court suggests that "[i]f the Fairness Doctrine
were applied to editorial advertising, there is ... the
substantial danger that the effective operation of that
doctrine \vould be jeopardized." Ante, at 124. Similarly,
the Court maintains that, in light of the Fairness
Doctrine, there simply is no reason to allow individuals
to purchase advertising time for the expression of their
own views on public issues. See ante, at 130-131.10
Although I do not in any sense agree \vith the substance
of these propositions, they serve at least to illustrate the
- extent to which the Commission's Fairness Doctrine has
influenced the development of the policy here under
review.
Moreover, the Commission's involvement in the challenged
policy is not limited solely to the indirect effects
of its Fairness Doctrine. On the contrary, in a decision
which must inevitably provide guidance for future
broadcaster action, the Commission has specifically considered
and specifically authorized the flat ban. See
Business Executives M ave for Vietnam Peace, 25 F. C. C.
2d 242 (1970); Democratic National Committee, 25
F. C. C. 2d 216 (1970). In so doing, the Commissionand
through it the Federal Government-has unequivocally
given its imprimatur to the absolute ban on editorial
advertising. And. of course, it is now well settled
that specific governmental approval of or acquiescence in
challenged action by a private entity indicates "governmental
action."
Thus, in McCabe v. Atchison, T. & S. F. R. Co.,
235 U. S. 151 (1914), for example, the Court dealt
with a statute which, as construed by the Court, simply
10 In addition, the Court contends that, because of the Fairness
Doctrine, the challenged broadcaster policy does not discriminate
against controversial speech. See ante, at 128-130.
COLUMBIA BROADCASTI::-J'G v. DK\!IOCRATIC COMM. 179
94 Bm;NN AK, J ., dissenting
authorized rail carriers to provide certain types of cars
for white passengers without offering equal facilities to
blacks. Although dismissal of the complaint on procedural
grounds was affirmed, we made clear that such
a statute, even though purely permissive in nature, was
invalid under the Fourteenth Amendment because a carrier
refusing equal service to blacks would be "acting in
the matter under the authority of a state law." Id., at
162. And, some 50 years later, we explained this finding
of "governmental action" in McCabe as "nothing less
than considering a permissive state statute as an authorization
to discriminate and as sufficient state action
to violate the Fourteenth Amendment .... " Reitman
v. lt,fulkey, 387 U. S., at 379. Thus, "[o]ur prior decisions
leave no doubt" that any action of the Government,
through any of its agencies, approving, authorizing,
encouraging, or otherwise supporting conduct
which, if performed by the Government, would violate
the Constitution, "constitutes illegal [governmental] involvement
in those pertinent private acts ... that subsequently
occur." A,dickes v. Kress & Co., 398 U. S. 144,
202 (1970) (opinion of BRENNAN, J.); see, e. g., Moose
Lodge No. 107 v. lrvis, supra; Hunter v. Erickson, 393
U. S. 385 (1969); Reitman v. Mulkey, supra; Evans v.
Newton, 382 U.S. 296 (1966); Robinson v. Florida, 378
U. S. 153 ( 1964); Lombard v. Loui.siana, 373 U. S. 267
(1963); Peterson v. City of Greenville, 373 U. S. 244
(1963); Burton v. Wilmington Parking Authority, supra;
McCabe v. Atchison, T. & S. F. R. Co., supra.
Finally, and perhaps most important, in a case virtually
identical to those now before us, we held that
a policy promulgated by a privately owned bus company,
franchised by the Federal Government and regulated by
the Public Utilities Commission of the District of Columbia,
must be subjected to the constraints of the First
Amendment. Public Utilities Comm'n v. Pollak, 343
180 OCTOBER TERM, 1972
BREKXAK, J., dissent-ing 412 U.S.
U. S. 451 (1952). In reaching that result, we placed
primary emphasis on the specific regulatory acquiescence
in the challenged action of the bus company. Thus,
after noting that the bus company "operates its service
under the regulatory supervision of the Public Utilities
Commission of the District of Columbia which is an
agency authorized by Congress," we explained that
our finding of "governmental action" was predicated
specifically
"upon the fact that that agency, pursuant to protests
against the [ challenged policy], ordered a.n investigation
of it and, after formal public hearings,
ordered its investigation dismissed on the ground
that the public safety, comfort and convenience were
not impaired thereby." Id., at 462.
See Moose Lodge No. 107 v. lrvis, supra, at 175-176,
n. 3.
Although THE CHIEF JusTICE, joined by MR. JusTICE
STEWART and MR. JUSTICE REHNQUIST, strains valiantly
to distinguish Pollak, he offers nothing more than the
proverbial "distinctions without a difference." Here, as
in Pollak, the broadcast licensees operate "under the regulatory
supervision of . . . an agency authorized by
Congress." 343 U. S., at 462. And. again as in Pollak,
that agency received "protests" against the challenged
policy and, after formal consideration, "dismissed" the
complaints on the ground that the "public interest, convenience,
and necessity" ,vere not "impaired" by that
policy. Indeed, the argument for finding "governmental
action" here is even stronger than in Pollak, for
this case concerns, not an incidental activity of a bus
company, but, rather, the primary activity of the regulated
entities-communication.
Thus, given the confluence of these various indicia
of "governmental action"- including the public nature
COLUMBIA BROADCASTING v. DEMOCRATIC COMM. 181
94 BRENKAN, J., dissenting
of the airwaves,n the governmentally created preferred
status of broadcasters, the extensive Government regulation
of broadcast programming, and the specific governmental
approval of the challenged policy-I can only
conclude that the Government "has so far insinuated
itself into a position" of participation in this policy that
the absolute refusal of broadcast licensees to sell air time
to groups or individuals wishing to speak out on controversial
issues of public importance must be subjected
to the restraints of the First Amendment.12
n Moreover, the appropriateness of a partirular forum, even if
privately owned, for effective communication has in some instances
been emphasized to establi~h the relevance of First Amendment protections.
Sec, e. g., Amalgamated Food Employees Union v. Logan
Valley Plaza, 391 U. S. 308 (1968); Marsh v. Alabama, 326 U. S.
501 (1946). Here, as the Court of Appeals recognized, "thr broadcast
media arc $perifically dedicated to communication. They function
as both our foremost forum for public speech and our most
i•Pportant educator of an infonnf'd pPople." 146 U. S. App. D. C.
181, 192, 450 F. 2d 642, 6.53. See also text and notes, at nn. 35-37,
infra.
12 In his concurring opinion, my Brother STEWART suggests that
a finding of governmental action in this context necessarily means
that. "private broadcasters are Government." Ante, at 139 (emphasis
in original). In my view, this assertion reflects a complete
misundrrstanding of the natme of the governmental involvement
in these cases. Here, the Government has selected the persons
who will he permitted to operate a broadcast station, extensively
regulates those broad('aster~, and has specifically approved thP challenged
broadcaster policy. Thus, the commands of the First Amerdment
come into play, not because "private broadcasters are Governrrwnt,"
but, rather, because the Government "has so far insinuated
itsdf into a position" of participation in the challenged polic·~· as to
make the Government. itself responsible for its effects. Similarly, I
cannot agree with my Brother STEWART'S suggestion that a finding
of governmental involvement here "would . . . simply strip
broadcasters of their own First Amendment rights." Ibid. The
actions of a purely prirnte individual are, of course, not subject
to the constraints of the First Amendment. But where, as here, the
182 OCTOBER TERJ\I, 1972
BRENNA:--r, J., dissenting 412 U.S.
II
Radio and television have long been recognized as
forms of communication "affected by a First Amendment
interest" and, indeed, it can hardly be doubted
that broadcast licensees are themselves protected by that
Amendment. Red Lion Broadcasting Co. v. FCC, 395
U. S., at 386. See United States v. Paramount Pictures,
Inc., 334 U.S. 131,166 (1948); Z. Chafee, Free Speech in
the United States 545-546 (1941). Recognition of this
fact does not end our inquiry, however, for it is equally
clear that the protection of the First Amendment in this
context is not limited solely to broadcasters. On the
contrary, at least one set of competing claims to the
Government has implicated itself in the actions of an otherwisc
private individual, that individual must exercise his own rights with
due regard for the First Amendment rights of others. In other
words, an accommodation of competing rights is required, and "balancing,"
not the "absolutist" approach suggested by my Brother
STEWART, is the result. Indeed, it is this misunderstanding of the
significance of governmental involvement that apparently leads to
my Brother STEWART'S disagreement with my Brothers \VHITE,
BucKMUN, and POWELL as to the relationship b<'tween the "public
interest" standard of the Act and First Amendment "values."
I might also note that, contrary to the suggestion of my Brother
STEWART, a finding of governmental involvement in this case does
not in any sense command a similar conclusion with respert to newspapers.
Indeed, the factors that compel the conclusion that the
Government is involved in the promulgation and enforcemrnt of the
ehallenged broadcaster poliry have simply no relevance to newspapers.
The decision as to who shall operate newspapers is made
in the free market, not by Government fiat. The newspaper industry
is not extensively regulated and, indeed, in light of the differences
between the electronic and printed media, such regulation
would violate the First Amendment with respect tn newspapers.
Finally, since such regulation of newspapero would be impossible, it
would likewise be impossible for the Government to approve an
exclusionary policy of newspapers in the sense that it has approved
the challenged policy of the broadcasters.
COLUMBIA BROADCASTING v. DK'vlOCRATIC COl\IM. 183
94 BRENNAN, J., dissenting
protection of that Amendment derives from the fact that,
because of the limited number of broadcast frequencies
available and the potentially pervasive impact of the
electronic media! "the people as a whole retain their
interest in free speech by radio and their collective right
to have the medium function consistently with the ends
and purposes of the First Amendment." Red Lion
Broadcasting Co. v. FCC, supra, at 390.
Over 50 years ago, Mr. Justice Holmes sounded ,vhat
has since become a dominant theme in applying the First
Amendment to the changing problems of our Nation.
"[T]he ultimate good," he declared, "is better reached
by free trade in ideas," and "the best test of truth is the
power of the thought to get itself accepted in the competition
of the market .... " Abrams v. United State,~,
250 U.S. 616, 630 (1919) (dissenting opinion); see also
l:Vhitney v. California, 274 r. S. 357, 375-376 ( 1927)
(Brandeis, J., concurring); Gitlow v. New York, 268
U. S. 652, 672-673 (1925) (Holmes, J., dissenting). Indeed,
the First Amendment itself testifies to our "profound
national commitment to the principle that debate
on publi°c issues should be uninhibited, robust, and wideopen,"
13 and the Amendment "rests on the assumption
that the widest possible dissemination of information
from diverse and antagonistic sources is essential to the
welfare of the public .... " Associated Press v. United
States, 326 U. S. 1, 20 (1945). For "it is only through
free debate and free exchange of ideas that government
remains responsive to the will of the people and peacef u]
change is effected." Terminiello v. Chicago, 337 U. S.
1, 4 ( 1949); see also Thornhill v. Alabama, 310 U. S. 88,
102 (1940); Palko v. Connecticut, 302 U. 8. 319. 326-327
(1937).
13 New York Times Co. v. Sullivan, 376 U.S. 254,270 (1964); sec
also Pickering v. Board of Education, 391 U. S. 563, 573 (1968);
:11ills v. Alabama, :384 U. S. 214, 218 (1960).
184 OCTOBER TERM, 19i2
BRENNAN, .T., dissenting 412 u. s.
With considerations such as these in mind, we have
specifically declared that, in the context of radio and
television broadcasting, the First Amendment protects
"the right of the public to receive suitable access to
social. political, esthetic, moral. and other ideas and
experiences .... " Red Lion Broadcasting Co. v. FCC,
supr.a, at 390.14 And, because "[i]t is the purpose of
the First Amendment to preserve an uninhibited marketplace
of ideas in which truth will ultimately prevail,
rather than to countenance monopolization of that market,
whether it be by the Government itself or a private
licensee," "[i] t is the right of the viewers and listeners,
not the right of the broadcasters, which is paramount."
Ibid.
Thus, we have explicitly recognized that, in light of
the unique nature of the electronic media, the public
have strong First Amendment interests in the reception
of a full spectrum of views-presented in a vigorous and
uninhibited manner- on controversial issues of public
importance. And, as we have seen, it has traditionally
been thought that the most effective way to insure this
"uninhibited, robust, and wide-open" debate is by fostering
a "free trade in ideas" by making our forums of communication
readily available to all persons wishing to
express their views. Although apparently conceding the
legitimacy of these principles, the Court nevertheless upholds
the absolute ban on editorial advertising because,
in its view, the Commission's Fairness Doctrine, in and
of itself, is sufficient to satisfy the First Amendment
interests of the public. I cannot agree.
14 This was not new doctrine, for we have long rC'cognized in a
variety of contexts that the First Amendment "necessarily proterts
the right to receive [information]." Martin v. City of Struthers,
319 U. S. 141, 143 (1943); sec, e. g., Stanley v. Georgia, 394 U. S.
557, 564 (1969); Time, Inc. v. Hill, 385 F. S. 374, 388 (1967);
Griswold v. Connecticut, 381 U. S. 479, 482 (1965); Lamont v.
Postmaster General, 381 U. S. 301 (1965).
COLUMBIA BROADCASTING v. DKVIOCRATIC COMM. 185
94 BRENNA~, J., dissenting
The Fairness Doctrine originated early in the history
of broadcast regulation and, rather than being set forth
in any specific statutory provision,15 developed gradually
in a long series of Commission rulings in particular
cases.10 In essence, the doctrine imposes a twofold duty
upon broadcast licensees: ( 1) coverage of issues of public
importance must be adequate,17 and (2) such coverage
must fairly reflect opposing viewpoints.18 See
Red Lion Broaidcasting Co. v. FCC, supra, at 377. In
fulfilling their obligations under the Fairness Doctrine,
"The Fairness Doctrine was recognized and implicitly approved
by Congress in the 1959 amendments to § 315 of the Communications
Act. Act of SC'pt. 14, 1959, § 1, 73 Stat. 557, 47 U. S. C.
§ 315 (a). As amC'ndC'd, § 315 (a) recognizes the obligation of broadcasters
"to operate in the public interest and to afford reasonable
opportunity for the discussion of conflicting views on issues of public
importance."
10 The Fairness Doctrine was first fully set forth in Report in the
Matter of Editorializing by Broadcast Licensees, 13 F. C. C.
1246 (1949), and was elaborated upon in Applicability of the Fairness
Doctrine in the Handling of Controversial Issues of Public
Importance, 29 Fed. Reg. 10415 (1964). The statutory authority
of the Commission to promulgate this doctrine and related regulations
derives from the mandate to the " Commission from time to
time, as public convenience, interest, or necessity requires," to
promulgate "such rules and regulations and prescribe such restrictions
and conditions . . . as may be necessary to carry out the
provisions of [the Act] .... " 47 U.S. C. § 303 (r).
17 See John J. Dempsey, 6 P & F Radio Reg. 615 (1950); see
also Metropolitan Broadca,sting Corp., 19 P & F Radio Reg. 602
( Hl60) ; The Evening News Assn., 6 P & F Radio Reg. 283 ( 1950).
18 If the broadcaster presents one side of a question, and does not
wish to present the other side himself, he can fulfill his fairness
obligation by announcing his willingness to broadcast opposing views
by volunteers. See Mid-Florida Television Corp., 40 F. C. C. 620
( 1964). If the broadcaster rejects a volunteer spokesman as "inappropriate,"
he must seek out others. See Richard G. Ruff, 19
F. C. C. 2d 838 (1969). The broadcaster must provide free time for
the presentation of opposing views if sponsorship is unavailable. Sec
Cullman Broadca:,ting Co., 25 P & F Radio Reg. 895 (1963).
186 OCTOBER TER~l, 1972
BRE~NA~, .J., dissenting 412 u. s.
however, broadcast licensees have virtually complete discretion,
subject only to the Commission's general requirement
that licensees act "reasonably and in good faith," 10
"to determine what issues should be covered, how much
time should be allocated, which spokesmen should appear,
and in what format." 20 Thus, the Fairness Doctrine
does not in any sense require broadcasters to allow
"non-broadcaster" speakers to use the airwaves to express
their own views on controversial issues of public
importance.21 On the contrary, broadcasters may meet
1" Applicability of the Fairness Doctrine in the Handling of Controversial
Issues of Public Importance, supra, n. 16, at 10424.
20 "Notice of Inquiry: The Handling of Public Issues Under the
Fairness Doctrine and the Public Interest Standards of the Communications
Act, 30 F. C. C 2d 26, 27-28 (1971); see also Applicability
of the Fairness Doctrine in the Handling of Controversial Issues of
Public Importance, supra, n. 16, at 10416; Report in the Matter of
Editorializing by Broadcast. Licensees, supra, n. 16.
21 Thus, the Fairness Doctrine must be sharply distinguished from
the "equal time" requirement, which provides that a broadraster who
affords air time to one political candidate must make equal time available
to other candidates for the same office. 47 U. S. C. § 315. See
also Nichola,s Zapple, 23 F. C. C. 2d 707 (1970) (extension of "equal
time" rule to cover a candidate's supporters where spokesmen for
other candidates are permitted to purchase air time). Similarly, the
Fairness Doctrine must not be confused with the Commission's "personal
attack" and "political editorializing" rules which were upheld
in Red Lion Broadcasting Co. v. FCC, 39.'i U. S. 367 (1969). The
"personal atta<'k" rule provide~ that "f w]hen, during the presentation
of views on a controver,ial issue of public importance, an attack
is made upon the honesty, character, integrity or like personal qualities
of an identifiPd person," the licensee must notify the person
attacked and offer him an opportunity to respond. 47 CFR § 73.123.
The "political editorializing" rule provides that when a licensee
endorses a candidate for politiral ofiice it must give other candidates
or their spokesmen an opportunity to respond. See, e. g., 47 CFR
§ 73.123. Thus, unlike the Fairness Doctrine, the "equal time,"
"personal attack," and "politieal editorializing" rulc,s grant a particular
group or individual a limited "right of access" to the airwaves
not subject to the "journalistic supervision" of the broadcaster.
COLU:vlBIA BROADCASTIKG v. DKVIOCRATIC COMM. 187
94 BR~;N~AK, ,J., dissenting
their fairness responsibilities through presentation of carefully
edited news programs, panel discussions, interviews,
and documentaries. As a result, broadcasters retain
almost exclusive control over the selection of issues and
viewpoints to be covered, the manner of presentation, and,
perhaps most important, who shall speak. Given this
doctrinal framework, I can only conclude that the Fairness
Doctrine, standing alone, is insufficient-in theory
as well as in practice-to provide the kind of "uninhibited,
robust, and wide-open" exchange of views to
which the public is constitutionally entitled.
As a practical matter, the Court's reliance on the Fairness
Doctrine as an "adequate" alternative to editorial
advertising seriously overestimates the ability-or willingness-
of broadcasters to expose the public to the
"widest possible dissemination of information from
diverse and antagonistic sources." 22 As Professor Jaffe
has noted, "there is considerable possibility the broadcaster
will exercise a large amount of self-censorship
and try to avoid as much controversy as he safely can." 23
Indeed, in light of the strong interest of broadcasters
in maximizing their audience, and therefore their profits,
it seems almost naive to expect the majority of broadcasters
to produce the variety and controversiality of
material necessary to reflect a full spectrum of viewpoints.
Stated simply, angry customers are not good
customers and, in the commercial world of mass communications,
it is simply "bad business" to espouseor
even to allow others to espouse- the heterodox or the
controversial. As a result, even under the Fairness Doctrine,
broadcasters generally tend to permit only estab-
22 Associated Press v. United States, 326 U. S. 1, 20 (1945).
n Jaffe, The Editorial Responsibility of the Broadcaster: Reflections
on Fairness and Access, 85 Harv. L. Rev. 768, 773 n. 26 (1972).
188 OCTOBER TER:\1, 1972
BRENKAN, J., dissenting 412 u. s.
lished-or at least moderated-views to enter the broadcast
world's "marketplace of ideas." 24
Moreover, the Court's reliance on the Fairness
Doctrine as the sole means of informing the public
seriously misconceives and underestimates the public's
24 See generally D. Lacy, Freedom and Communications 69
(1961); Mallamud, The Broadcast Licensee as Fiduciary: Toward
the Enforcement of Discretion, 1973 Duke L. J. 89, 94-95, 98-99;
Jaffe, supra, n. 23, at 773 n. 26; Canhy, The First Amendment
Right to Persuade: Access to Radio and Television, 19 U. C. L. A.
L. Rev. 723, 727 (1972); Malone, Broadcasting, The Reluctant
Dragon: Will the First Amendment Right of Access End the Suppressing
of Controvrrsial Ideas?, 5 U. Mich. J. L. Reform 193, 205-
211, 216 (1972); Johnson & Westen, A Twentieth Century Soapbox:
The Right to Purchase Radio and Television Time, 57 Va. L.
Rev. 574 (1971); Barron, Access to the Press-A New First. Amendment
Right, 80 Harv. L. Rev. 1641 (1967); Note, Free Speech and
the Mass Media, 57 Va. L. Rev. 636 (1971); Note, A Fair Break
for Controversial Speakers: Limitations of the Fairness Doctrine and
the Need for Individual Access, 39 Geo. Wash. L. Rev. 532 (1971);
Note, The Wast('iand Revisited: A .\fodest Attack Upon the FCC's
Category System, 17 U. C. L. A. L. Rev. 868, 870-875 (1970);
Comment, Freedom of Speech and the Individual's Right of Access
to the Airwaves, 1970 Law & Social Order 424, 428; Note, The
Federal Communications Commission's Fairness Regulations: A First
Step Towards Creation of a Right of Access to the l\fass Media, 54
Cornell L. Rev. 294, 296 ( 1969).
Although admitting that the Fairness Doctrine "has not always
brought to the public perfect or, indeed, even consistently high-quality
treatment of all public events and issues," the Court nevertheless
suggests that a broadcaster who fails to fulfill his fairness obligations
does so "at the risk of losing his license." Ante, at 130-131. The
Court does not cite a single instance, however, in which this sanction
has ever been invoked berause of a broadcaster's failure to comply
with the Fairness Doctrine. Indeed, this is not surprising, for the
Commission has acted with great reluctance in this area, intervening
in only the most extreme cases of broadcaster abuse. See .Mallamud,
supra, at 115- 122; Canby, supra, at 725-727; Malone, supra, at
215-216; see also Cox & Johnson, Broadcasting in America and the
FCC's License Renewal Process: An Oklahoma Case Study, 14
F. C. C. 2d 1 (1968).
COLUMBIA BROADCASTIKG v. DEMOCRATIC COMM. 189
94 BRENN AN, J., dissenting
interest in receiving ideas and information directly from
the advocates of those ideas without the interposition
of journalistic middlemen. Under the Fairness Doctrine,
broadcasters decide what issues are "important,"
how "fully" to cover them, and what format, time, and
style of coverage are "appropriate." The retention of
such absolute control in the hands of a few Government
licensees is inimical to the First Amendment, for vigorous,
free debate can be attained only when members of the
public have at least some opportunity to take the initiative
and editorial control into their own hands.
Our legal system reflects a belief that truth is best
illuminated by a collision of genuine advocates. Under
the Fairness Doctrine, however, accompanied by an absolute
ban on editorial advertising, the public is compelled
to rely exclusively on the "journalistic discretion" of
broadcasters, who serve in theory as surrogate spokesmen
for all sides of all issues. This separation of the
advocate from the expression of his views can serve only
to diminish the effectiveness of that expression. Indeed,
we emphasized this fact in Red Lion: 25
"Nor is it enough that he should hear the arguments
of adversaries from his own teachers, presented
as they state them, and accompanied by what
they offer as refutations. That is not the way to
do _justice to the arguments, or bring them into real
contact with his own mind. He must be able to
hear them from persons who actually believe them;
who defend them in earnest, and do their very utmost
for them."
Thus, if the public is to be honestly and forthrightly
apprised of opposing views on controversial issues, it is
imperative that citizens be permitted at least some
25 Red Lion BroadcW3ting Co. v. FCC, supra, at 392 n. 18, quoting
J. Mill, On Liberty 32 (R. McCallum ed. 1947).
190 OCTOBER TER:-.1, 1972
BRENNAN, .T., dissenting 412 U.S.
opportunity to speak directly for themselves as genuine
advocates on issues that concern them.
Moreover, to the extent that broadcasters actually
permit citizens to appear on "their" airwaves under the
Fairness Doctrine, such appearances are subject to extensive
editorial control. Yet it is clear that the effectiveness
of an individual's expression of his views is a.s
dependent on the style and format of presentation as
it is on the content itself. And the relegation of an
individual's views to such tightly controlled formats as
the news, documentaries, edited interviews, or panel discussions
may tend to minimize, rather than maximize the
effectiveness of speech. Under a limited scheme of
editorial advertising, however, the crucial editorial controls
are in the speaker's own hands.
Nor are these cases concerned solely with the adequacy
of coverage of those views and issues which generally are
recognized as "newsworthy." For also at stake is the
right of the public to receive suitable access to new and
generally unperceived ideas and opinions. Under the
Fairness Doctrine, the broadcaster is required to present
only "representative community views and voices on
controversial issues" of public importance.2 r. Thus, by
definition, the Fairness Doctrine tends to perpetuate coverage
of those "views and voices" that are already established,
while failing to provide for exposure of the public
to those "vie,vs and voices" that are novel, unorthodox,
or unrepresentative of prevailing opinion.27
20 Democratic National Committee, 25 F. C. C. 2d, at 222 (emphasis
added).
27 Indeed, the failure to provide adequate means for groups and
individuals to bring new issues or ideas to the attention of the public
explains, at least to some extent, "the development of new media to
convey unorthodox, unpopular, and new ideas. Sit-ins and demonstrations
testify to ... the inability to secure access to the conventional
means of reaching and changing public opinion. [For by]
COLU?\'IBIA BROADCASTING v. DEMOCRATIC COMYI. 191
94 BREN KAN, .J ., dissenting
Finally, it should be noted that the Fairness Doctrine
permits, indeed requires, broadcasters to determine for
themselves which views and issues are sufficiently ''important"
to warrant discussion. The briefs of the broadcaster-
petitioners in this case illustrate the type of "journalistic
discretion" licensees now exercise in this regard.
Thus, ABC suggests that it would refuse to air those
views which it considers "scandalous" or "~rackpot," 28
while CBS would exclude those issues or opinions that
are "insignificant" 29 or "trivial." 30 Similarly, NBC
would bar speech that strays "beyond the bounds of
normally accepted taste." 31 and WTOP would protect
the public from subjects that are "slight, parochial or
inappropriate." 32
The genius of the First Amendment, however, is that
it has always defined what the public ought to hear by
permitting speakers to say what they wish. As the Court
of Appeals recognized, "[i] t has traditionally been
thought that the best judge of the importance of a particular
viewpoint or issue is the individual or group holding
the vievvpoint and wishing to communicate it to
others." 146 L'. S. App. D. C., at 195, 450 F. 2d, at 656.
Indeed, "supervised and ordained discussion'' is directly
contrary to the underlying purposes of the First Amendment,
33 for that Amendment "presupposes that right
the bizarre and unsettling nature of his technique, the dcmonstrntor
hopes to arrest and divert attention long enough to compel the
public to ponder his message." Barron, 80 Harv. L. Rev., at 1647 ;
cf. Adderley v. Florida, :{85 11. S. 89, 50- 51 (1966) (DOUGLAS, .T.,
dissenting).
28 Brief for American Broadcasting Companies, Inc. 52.
29 Brief for Columbia Broadcasting System, Inc. 34.
:so Id., at 40.
,H Brief for National Broadcasting Company, Inc. 10.
32 Brief for Post-Newsweek Stations, Capital Arca, lm. 31.
33 Tinker v. Des Moines Independent School District, 393 U. S.
503,512 (1969).
192 OCTOBER TER:.I, 1972
BREXXAX, .T., dissenting 412 U.S.
conclusions arc more likely to be gathered out of a multitude
of tongues, than through any kind of authoritative
selection.'' 3-l Thus, in a related context, ,ve have explicitly
recognized that editorial advertisements constitute
''an important outlet for the promulgation of information
and ideas by persons ,vho do not themselves have
access to [media] facilities," and the unavailability of
such editorial advertising can serve only "to shackle the
First Amendment in its attempt to secure 'the widest
possible dissemination of information from diverse and
antagonistic sources.' '' Sew York Tirnes Co. v. Sullivan,
376 U. S., at 266.
The Fairness Doctrine's requirement of full and fair
coverage of controversial issues is, beyond doubt, a commendable
and, indeed, essential tool for effective regulation
of the broadcast industry. But, standing alone, it
simply cannot eliminate the need for a further, complementary
airing of controversial views through the limited
availability of editorial advertising. Indeed, the availability
of at least sorne opportunity for editorial advertising
is imperative if ·we are ever to attain the " 'free
and general discussion of public matters [that] seems absolutely
essential to prepare the people for an intelligent
exercise of their rights as citizens.'" Grosjean v. American
Press Co., 297 C. S. 233, 250 (1936).
III
Moreover, a proper balancing of the competing First
Amendment iuterests at stake in this controversy must
consider, not only the interests of broadcasters and of
the listening and viewing public, but also the independent
First Amendment interest of groups and individuals in
effective self-expression. See, e. g., T. Emerson, Toward
34 United States v. As~ociated Press, 52 F. Supp. 362, 372 (SDNY
1943), aff'd, 326 U. S. 1 ( 1945). See also Thomas v. Collins, 323
U. S. 516, 545 (1945) (Jackson, J., concurring).
COLUMBIA BROADCASTI~G v. DE:VIOCRATIC COMM. 193
94 BRENNAN, J., dissenting
a General Theory of the First Amendment 4-7 ( 1966);
Z. Chafee, Free Speech in the United States 33 (1941).
"[S] peech concerning public affairs . . . is the essence
of self-government," Garrison v. Louisiana, 379 U. S.
64, 74-75 ( 1964), and the First Amendment must therefore
safeguard not only the right of the public to hear
debate, but also the right of individuals to participate
in that debate and to attempt to persuade others to their
points of view. See, e. g., Thomas v. Collins, 323 U. S.
516, 537 (1945); cf. NAA.CP v. Button, 371 U. S. 415,
429-430 (1963). And, in a time of apparently growing
anonymity of the individual in our society, it is imperative
that we take special care to preserve the vital First
Amendment interest in assuring "self-fulfillment [of
expression] for each individual." Police Dept. of Chicago
v. Mosley, 408 U.S. 92, 96 (1972). For our citizens
may now find greater than ever the need to express their
own views directly to the public, rather than through a
governmentally appointed surrogate, if they are to feel
that they can achieve at least some measure of control
over their own destinies.
In light of these considerations, the Court would concede.
I assume, that our citizens have at least an abstract
right to express their views on controversial issues of
public importance. But freedom of speech does not exist
in the abstract. On the contrary, the right to speak can
flourish only if it is allowed to operate in an effective
forum-,vhether it be a public park, a schoolroom, a
town meeting hall, a soapbox, or a radio and television
frequency. For in the absence of an effective means of
communication, the right to speak would ring hollow
indeed. And, in recognition of these principles, we have
consistently held that the First Amendmeut embodies,
not only the abstract right to be free from censorship, but
also the right of an individual to utilize an appropriate
and effective medium for the expression of his views.
194 OCTOBER TERM, 1972
BRENN AK, .J ., dissenting 412 U.S.
See, e. g., Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551, 559
(1972); Tinker v. Des Moines Independent School District,
393 V. S. 503 (1969); Amalgamated Food Employees
Union v. Logan Valley Plaza, 391 U. S. 308
( 1968); Brown v. Louisiana, 383 U. S. 131 ( 1966);
Edwards v. South Carolina, 372 U. S. 229 (1963); Kunz
v. New York, 340 U. S. 290 (1951); Marsh v. Alabama,
326 U. S. 501 ( 1946); Jamison v. Texas, 318 U. S.
413 (1943); Schneide-r v. State, 308 U. S. 147 (1939);
Hague v. CIO, 307 U. S. 496 (1939).
Here, of course, there can be no doubt that the broadcast
frequencies allotted to the various radio and television
licensees constitute appropriate "forums" for the
discussion of controversial issues of public importance.35
35 The Court does make the rather novel suggestion, however,
that editorial advertising might indeed be "inappropriate" because
"listeners and viewers constitute a ·captive audience.'" Ante, at
127. In support of this proposition, the Court cites our decisions
in Public Utilities Comm'n v. Pollak, 343 U.S. 451 (1952), and
Kovacs v. Cooper, 336 U.S. 77 (1949). In Pollak, however, we explicitly
rejected a cla.im that the broadcasting of radio programs
in streetcars violated the First and Fifth Amendment rights of passengers
who did not wish to listen to those programs. And in
Kovacs, although we upheld an ordinance forbidding the use on public
streets of sound trucks which emit "loud and raucous noises," we
did so because the ordinance was concerned, not with the content of
speech, but, rather, with the offenoiveness of the sounds themselves.
Here, however, the Court seems perfectly willing to allow broadcasters
to continue to invade the "privacy" of the home through
commercial advertising and even controversial programming under
the Fairness Doctrine. Thus, the Court draws its line solely on the
basis of the content of the particular speech involved and, of course,
we have consistently held that, where content is at issue, ('Onstitutionally
protected speech may not be prohibited because of a "mere
desire to avoid the discomfort and unpleasantness that always acr.
ompany an unpopular viewpoint." Tinker v. Des llfoines Independent
School District, :l9a lT. S., at 509; see, e. g., Grayned v.
City of Rockford, 408 U. S. 104, 117 (1972). The suggestion that
constitutionally protected speech may be ba.nned because some perCOLUMBIA
BROADCASTIKG v. DK.\'IOCRATIC COMM. 195
94 BrtENNAN, J., dissenting
Indeed, unlike the streets, parks, public libraries. and
other "forums" that we have held to be appropriate for
the exercise of First Amendment rights, the broadcast
media are dedicated specifically to communication. And,
since the expression of ideas-whether political, commercial.
musical, or otherwise-is the exclusive purpose
of the broadcast spectrum, it seems clear that the adoption
of a limited scheme of editorial advertising would
in no sense divert that spectrum from its intended use.
Cf. Lloyd Corp., Ltd. v. Tanner, supra, at 563; Amalgam.
ated Food Employees Union v. Logan Valley Plaza,
supra, at 320.
Moreover, it is equally clear that, with the assistance
of the Federal Government., the broadcast industry has
become what is potentially the most efficient and effective
"marketplace of ideas" ever devised.36 Indeed, the electronic
media arc today "the public's prime source of
information,'' :l7 and ,ve have ourselves recognized that
broadcast "technology ... supplants atomized, relatively
sons may find the ideas expressed offensive is, in itself, offensive to
the very meaning of the First Amendment.
36 Indeed, approximately 95% of American homes contain at
least one television set, and that set is turned on for an average of
more than five and one-half hours per day. See H<·arings on H. R.
13721 before the Subcommittee on Communications and Power of
the House Committee on Interstate and Foreign Commerce, 91st
Cong., 2d Sess., 7 (1970) (statement of Dean Burch, Chairman of
the Federal Communications Commission). As to the potential
influence of the electronic media on American thought, see generally
A. Krock, The Consent of the Governed 66 (1971); H. Mendrlsuhn &
I. Crespi, Polls, Television, and the ~ew Politics 256, 264 (1970);
}falone, 5 'C'. l\lich . .J. L Reform, at 197.
37 H. R. Rep. No. 91-257, p. 13 (1969). According to one study,
67% of Americans prefer the electronic media to other sources of
information. See G. Wyckoff, The Image Candidates 13-14 (1968).
See also Amendment of SPdions 7:~.35 , 73.240, and 73.636 of the
Commission's Rulc6, 22 F. C. C. 2d :339 , 344 (1970) (59% of
Americans depend on television as their principal source of news).
196 OCTOBER TERM, 19i2
BRENKAN, J., dissenting 412 u. s.
informal communication with mass media as a prime
source of national cohesion and ne\VS .... " Red Lion
Broadcasting Co. v. FCC, 395 U. S., at 386 n. 15. Thus,
although "full and free discussion" of ideas may have
been a reality in the heyday of political pamphleteering,
modern technological developments in the field of communications
have made the soapbox orator and the
leafleteer virtually obsolete. And, in light of the current
dominance of the electronic media as the most effective
means of reaching the public. any policy that absolutely
denies citizens access to the airwaves necessarily renders
even the concept of "full and free discussion" practically
meaningless.
Regrettably, it is precisely such a policy that the
Court upholds today. And, since effectuation of the individual's
right to speak through a limited scheme of
editorial advertising can serve only to further, rather
than to inhibit, the public's interest in receiving suitable
exposure to "uninhibited, robust, and wide-open" debate
on controversial issues, the challenged ban can be upheld
only if it is determined that such editorial advertising
would unjustifiably impair the broadcaster's assertedly
overriding interest in exercising absolute control over
"his" frequency.38 Such an analysis, however, hardly
reflects the delicate balancing of interests that this sensitive
question demands. Indeed, this "absolutist" approach
wholly disregards the competing First Amendment
rights of all "non-broadcaster" citizens, ignores the
38 It should be noted that, although the Fairness Doctrine is at
least arguably relevant to the public's interest in receiving suitable
exposure to "uninhibited, robust, and wide-open" debate on controversial
issues, it is not in any sense relevant to the individual's
interest in obtaining access to the airwaves for the purpose of effective
self-expression. For the individual's interest in expressing his
own views in a manner of his own choosing is an inherently personal
one, and it can never be satisfied by the expression of "similar" views
by a surrogate spokesman.
COLUMBIA BROADCASTING v. DEMOCRATIC CO:VIM. 197
94 Bll.ENNAN, J., dissenting
teachings of our recent decision in Red Lion Broadca.sting
Co. v. FCC, supra, and is not supported by the historical
purposes underlying broadcast regulation in this ::'{ atiou.
Prior to 1927, it must be remembered, it was clearly
recognized that the broadcast spectrum ,vas part of the
public domain. As a result, the a.1location of frequencies
was left entirely to the private sector,39 and groups
and individuals therefore had the same right of access
to radio facilities as they had, and still have, to the
printed press-that is, "anyone who will may transmit." 40
Under this scheme, however, the number of broadcasters
increased so dramatically that by 1927 every frequency
was occupied by at least one station, and many were
occupied by several. "The result ,vas confusion and
chaos. With everybody on the air, nobody could be
heard." National Broadca.sting Co. v. United States,
319 U. S. 190, 212 (1943). It soon became "apparent
that broadcast frequencies constituted a scarce resource
whose use could be regulated a.ud rationalized only by
the Government." Red Lion Broadcasting Co. v. FCC,
supra, at 376. Thus, in thP Radio Act of 1927, 44
Stat. 1162, Congress placed the broadcast spectrum
under federal regulation and sought to reconcile competing
uses of the airwaves by setting aside a limited
number of frequencies for each of the important uses
of radio.•1 And. since the number of frequencies allocated
to public broadcasting was necessarily limited, the
-~" Indeed, pre-1927 regulation of radio gave no dis<'rction to the
Federal Government to deny the right to operate a broadcast sta1 ion.
See 1 A. Sorolow, The Law of Radio Broadcasting 38 (19:39} ;
H. Warner, Radio & Tdcvision Law 757 et seq. (1948); see generally
National Broadcasting Co. v. Fnited States, 319 U. S. 190,
210-214 (1943).
40 67 Cong. Rec. 54 79 (Rep. White).
41 These include, of course, not only public broadcasting, but also
"amateur operation, aircraft, police, drfen$C, and navigation .
Red Lion Broadcasting Co. v. FCC, 395 F. S., at 388.
198 OCTOBER TERM, 1972
BRENKAN, J., dissenting 412 U.S.
Government was compelled to grant licenses to some
applicants while denying them to others. See generally
Red Lion Broadcasting Co. v. FCC, supra, at 375-377,
388; National Broadcasting Co. v. United States, supra,
at 210-214.
Although the overriding need to avoid overcrowding
of the airwaves clearly justifies the imposition of a ceiling
on the number of individuals who will be permitted
to operate broadcast stations 42 and, indeed, renders it
"idle to posit an unabridgeable First Amendment right
to broadcast comparable to the right of every individual
to speak, write, or publish,"'" it does not in any sense
dictate that the continuing First Amendment rights of
all nonlicensees be brushed aside entirely. Under the
existing system, broadcast licensees are granted a preferred
status with respect to the airwaves, not because
they have competed successfully in the free market but,
rather, "because of their initial government selection
.... " Red Lion Broadcasting Co. v. FCC, supra,
at 400. And, in return for that "preferred status,"
licensees must respect the competing First Amendment
42 Although this licensing scheme necessarily restricts the First
Amendment rights of those groups or individuals who are denied the
"right" to operate a broadcast station, it does not, in and of itself,
violate the First Amendment. For it has long been recognized that
when " [ c] onflicting demands on the same [ forum l ... compel the
[Government] to make choices among potential users and uses,"
neutral rules of allocation to govern that scarce communications
resource are not per se unconstitutional. Police Dept. of Chicago
v. Mosley, 408 U. S. 92, 98 (1972); cf. Cox v. Louisiana, 379 U.S.
536, 554 (1965); Cox v. New I!ampshire, 312 U.S. 569, 574 (1941);
Schneider v. State, 308 U. S. 147, 160 (1939). And, in the context
of broadcasting, it would be ironic indeed "if the First Amendment,
aimed at protecting and furthering communications, prevC'ntcd
the Government from making radio communication possible . . .
by limiting the number of licenses so as not to overcrowd the
spectrum." Red Lion Broadcasting Co. v. FCC, supra, at 389.
43 ld., at 388.
COLUMBIA BROADCASTIKG v. DEMOCRATIC COMM. 199
94 BRENNAN, ,J., dissenting
rights of others. Thus, although the broadcasfor has a
clear First Amendment right to be free from Government
censorship in the expression of his own views 44 and,
indeed, has a significant interest in exercising reasonable
journalistic control over the use of his facilities, "[t] he
right of free speech of a broadcaster ... does not embrace
a right to snuff out the free speech of others." Id.,
at 387 (emphasis added). Indeed, after careful consideration
of the nature of broadcast regulation in this
country, we have specifically declared that
"as far as the First Amendment is concerned
those who are licensed stand no better than those
to whom licenses are refused. A license permits
broadcasting, but the licensee has no constitutional
right to ... monopolize a radio frequency to the
exclusion of his fellow citizens." Id., at 389.
Because I believe this view is as sound today as when
voiced only four years ago, I can only conclude that
there is simply no overriding First Amendment interest
of broadcasters that can justify the absolute exclusion
of virtually all of our citizens from the most effective
"marketplace of ideas" ever devised.
This is not to say, of course, that broadcasters have
no First Amendment interest in exercising journalistic
supervision over the use of their facilities. On the
contrary, such an interest does indeed exist, and it is an
interest that must be weighed heavily in any legitimate
effort to balance the competing First Amendment interests
involved in this case. In striking such a balance,
however, it must be emphasized that these cases deal
only with the allocation of advertising time-air time that
broadcasters regularly relinquish to others without the
retention of significant editorial control. Thus, we are
concerned here, not with the speech of broadcasters them-
,. See, e. g., 47 U. S. C. § 326.
200 OCTOBER TER:'.\I, 1972
BRENNAN, J., dissenting 412 U.S.
selves," but, rather, with their "right" to decide which
other individuals will be given an opportunity to speak
in a forum that has already been opened to the public.
Viewed in this context, the absolute ban on editorial
advertising seems particularly offensive because, although
broadcasters ref use to sell any air time whatever to groups
or individuals wishing to speak out on controversial issues
of public importance, they make such air time readily
available to those "commercial" advertisers who seek to
peddle their goods and services to the public. Thus, as
the system now operates, any person wishing to market
a particular brand of beer, soap, toothpaste, or deodorant
has direct, personal, and instantaneous access to the
electronic media. He can present his own message, in
his own words, in any format he selects, and at a time of
his own choosing. Yet a similar individual seeking to
discuss war, peace, pollution, or the suffering of the
poor is denied this right to speak. Instead, he is compelled
to rely on the beneficence of a corporate "trustee"
appointed by the Government to argue his case for him.
It has long been recognized, however, that although
access to public forums may be subjected to reasonable
"time, place, and manner" regulations,46
" [ s J elective
exclusions from a public forum may not be based on
content alone .... " Police Dept. of Chicago v. Mosley,
408 U. S., at 96 (emphasis added); sec, e. g., Shuttlesworth
v. City of Birmingham, 394 V. S. 147 (1969);
45 Thus, as the Court of Appeals recognized, "[iJn normal programming
time, rlosely controlled and edited by broadcasters, the
constellation of ronstitutional interests would br substantially different."
146 ll. S. App. D. C., at 193, 4.50 F. 2d, at 654.
46 See, e. g., Police Dept. of Chicago v. M oslPy, supra, at 98;
Grayned \'. City of Rockford, 408 F. S., at 115; Cox v. Louisiana,
supra, at 554; Poulos v. New Hampshire, 345 U. S. 395, 398 (1953) ;
Cox v. New Hampshire, 8upra, at 575-576; Schneider v. State, supra,
at 160.
COLUMBIA BROADCASTING v. DEMOCRATIC COMM. 201
94 BREX)<A:!\, J., dissenting
Edwards v. South Carolina, 372 F S. 229 (1963); Fowler
v. Rhode Island, 345 U. S. 67 (1953); Niernotko v.
Maryland, 340 U.S. 268 (1951); Saia v. New York, 334
U. S. 558 ( 1948). Here, of course, the differential treatment
accorded "commercial" and "controvnsial" speech
clearly violates that principlc.4
' :y{oreover, and not
without some irony, the favored treatment given "commercial"
speech under the existing scheme clearly reverses
traditional First Amendment priorities. For it
has generally been understood that "commercial" speech
enjoys less First Amendment protection than speech
directed at the discussion of controversial issues of public
importance. See, e. g., Breard v. Alexandria, 341 r. S.
622 (1951); Valentine v. Chrestensen, 316 U.S. 52 (1942).
The First Amendment values of individual selffulfillment
through expression and individual participation
in public debate are central to our concept of liberty.
If these values a.re to survive in the age of technology,
it is essential that individuals be permitted at least some
opportunity to express their views on public issues over
the electronic media. Balancing thosP interests against
the limited interest of broadcasters in exercising "journalistic
supervision" over the mere allocation of advertising
time that is already made available to some members
of the public, I simply callnot conclude that the interest
of broadcasters must prevail.
IV
Finally, the Court raises the specter of administrative
apocalypse as justification for its decision today. The
Court's fears derive largely from the assumption, implicit
41 Contrary to the Court's assertion, the existence of the Fairness
Doctrine cannot in any sense rationalize this discrimination. Indeed,
the Fairness Dortrine is wholly unresponsive to th<' need for individual
access to the airwaves for the purpose of effective self-expression.
See also n. 38, supra.
202 OCTOBER TER1i, 1972
BRENKAN, J., dissenting 412 U.S.
in its analysis, that the Court of Appeals mandated an
absolute right of access to the airwaves In reality,
however, the issue in these cases is not whether there is
an absolute right of access but, rather, whether there may
be an absolute denial of such access. The difference is,
of course, crucial, and the Court's misconception of the
issue seriously distorts its evaluation of the administrative
difficulties that an invalidation of the absolute ban might
conceivably entail.
Specifically, the Court hypothesizes three potential
sources of difficulty: (I) the availability of editorial advertising
might, in the absence of adjustments in the
system, tend to favor the wealthy; (2) application of the
Fairness Doctrine to editorial advertising might adversely
affect the operation of that doctrine; and
(3) regulation of editorial advertising might lead to an
enlargement of Government control over the content of
broadcast discussion. These are, of course, legitimate
and, indeed, important concerns. But, at the present
time, they are concerns-not realities. We simply have
no sure way of knowing whether, and to what extent, if
any, these potential difficulties will actually materialize.
The Court's bare assumption that these hypothetical
problems are both inevitable and insurmountable indicates
an utter lack of confidence in the ability of the
Commission and licensees to adjust to the changing
conditions of a dynamic medium. This sudden lack of
confidence is, of course, strikingly inconsistent with the
general propositions underlying all other aspects of the
Court's approach to this case.
Moreover, it is noteworthy that, 28 years ago, the
Commission itself declared that
"the operation of any station under the extreme
principles that no time shall be sold for the disCOLUMBIA
BROADCASTING v. DEMOCRATIC COMM. 203
94 BRENNAN, J., dissenting
cussion of controversial public issues is inconsistent
with the concept of public interest ....
The Commission recognizes that good program balance
may not permit the sale or donation of time
to all who may seek it for such purposes and that
difficult problems calling for careful judgment on
the part of station management may be involved
in deciding among applicants for time when all
cannot be accommodated. However, competent
management should be able to meet such problems
in the public interest and with fairness to all concerned.
The fact that it places an arduous task
on management should not be made a reason for
evading the issue by a strict rule against the sale
of time for any programs of the type mentioned."
United Broadcasting Co., 10 F. C. C. 515,518 (1945).
I can see no reason why the Commission and licensees
should be deemed any less competent today then they
were in 1945. And even if intervening developments
have increased the complexities involved in implementing
a limited right of access, there is certainly no dearth of
proposed solutions to the potential difficulties feared by
the Court. See, e. g., Canby, The First Amendment
Right to Persuade: Acces.s to Radio and Television, 19
U. C. L.A. L. Rev. 723, 754-757 (1972); Malone, Broadcasting,
the Reluctant Dragon: Will the First Amendment
Right of Access End the Suppressing of Controversial
Ideas?, 5 U. Mich. J. L. Reform 193, 252-269 (1972);
Johnson & Westen, A Twentieth-Century Soapbox: The
Right to Purchase Radio and Television Time, 57 Va.
L. Rev. 574 (1971); Note, 85 Harv. L. Rev. 689, 693-699
(1972).
With these considerations in mind, the Court of Appeals
confined itself to invalidating the flat ban alone,
204 OCTOBER TEH~I, 1972
BRENNAN, .J., dissenting 412 U.S.
leaving broad latitude 48 to the Commission and licensees
to develop in the first instance reasonable regulations to
govern the availability of editorial advertising. In the
context of these cases, this was surely the wisest course to
follow, for "if experience with the administration of these
doctrines indicates that they have the net effect of
reducing rather than enhancing [First Amendment
values], there will be time enough to reconsider the
constitutional implications." Red Lion Broadcasting
Co. v. FCC, 395 U. S., at 393.
For the present, however, and until such time, if ever,
as these assertedly "overriding" administrative difficulties
actually materialize, I must agree with the conclusion
of the Court of Appeals that although "it may unsettle
some of us to see an antiwar message or a political party
message in the accustomed place of a soap or beer commercial
... we must not equate what is habitual with
what is right-or what is constitutional. A society
already so saturated with commercialism can well afford
another outlet for speech on public issues. All that we
may lose is some of our apathy." 4 v
48 The Court of Appeals did, however, suggest certain possible
contours of implementation. For example, the court noted that
broadcasters should be permitted "to place an outside limit on the
total amount of editorial advertising they will sell," and " 'reasonable
regulation' of tho placement of advertisements is altogether proper."
146 t:. S. App. D. C., at 202, 450 F. 2d, at 663.
4 9 Id., at 204-205, 450 F. 2d, at 665-666.
KEEBLE v. UNITED STATES 205
Opinion of the Court
KEEBLE v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE EIGHTH CIRCUIT
No. 72-5323. Argued March 27, 1973-Decided May 29, 1973
Petitioner, an Indian, was con\'icted of assault with intent to commit
serious bodily injury on an Indian reservation, a federal crime
under the :\fajor Crimes Act of 1885, after the court refused to
instruct the jury on the lesser included offense of simple assault.
The Court of Appeals affirmed on the ground that since simple
assault is not one of the offenses enumerated in the Act, it would
be exclusively "a matter for the tribe." Held: An Indian prosecuted
in federal court undrr the Act is entitled to a jury instruction
on lesser included offenses, if the facts warrant. Such an instruction
would not expand the rr11eh of the Act or permit the Government
to mfrmge the residual jurisdiction of the Indian tribes by
bringing in federal court prosrcutions not authorized by statute.
Pp. 207-214.
459 F. 2d 757 and 762, reversed and remanded.
BRENNAN, .T., dclivrre<l the opinion of the Court, in which BURGER,
C. J., and DouGLAS, WHITE, MARSHALL, and BLACK:MUN, .TJ., joined.
STEWAR'r, J., filed a dissenting opinion, in which PowELL and REHN'-
QUIST, JJ., joined, post, p. 215.
Mark V. Meierhenry argued the cause and filed a
brief for petitioner pro hac vice.
Richard B. Stone argued the cause for the United
States. On the brief were Solicitor General Griswold,
Assistant Attorney General Petersen, Deputy Solicitor
General Lacovara, Harry R. Sachse, and Jerome M. Feit.
MR. JUSTICE BRENNAN delivered the opinion of the
Court.
The Major Crimes Act of 1885 1 authorizes the prosecution
in federal court of an Indian charged with the com-
1 Act of Mar. 3, 1885, c. 341, § 9, 23 Stat. 385, now 18 U. S. C.
§§ 1153, 3242.
206 OCTOBER TER:'11, 1972
Opinion of the Court 412 U.S.
m1ss10n on an Indian reservation of certain specifically
enumerated offenses.2 This case requires us to decide
whether an Indian prosecuted under the Act is entitled
to a jury instruction on a lesser included offense where
that lesser offense is not one of the crimes enumerated
in the Act.
At the close of petitioner's trial for assault with intent
to commit serious bodily injury, the United States District
Court for the District of South Dakota refused to
instruct the jury, as petitioner requested, that they might
convict him of simple assault. The court reasoned that
since simple assault is not an offense enumerated in the
Act, it is exclusively "a matter for the tribe." App.
15. A panel of the United States Court of Appeals for
the Eighth Circuit, one judge dissenting, upheld that
determination on the strength of the court's earlier de-
2 As originally enacted, the statute provided:
"That immediately upon and after the date of the passage of this
act all Indians, committing against the person or property of another
Indian or other person any of the following crimes, namely, murder,
manslaughter, rape, assault with intent to kill, arson, burglary, and
larceny within any Territory of thf' United States, and either within
or without an Indian reservation, shall be subject therefor to the
laws of such Territory relating to said crimes, and shall be tried
therefor in the same courts and in the same manner and shall be
subject to the same penalties as are all other persons charged with
the commission of said crimes, respectivdy; and the said courts are
hereby given jurisdiction in all such cases; and all such Indians rommitting
any of the above crimes against the person or property of
another Indian or other person within the boundaries of any State
of the United States, and within the limits of any Indian reservation,
shall be subject to the sall\e laws, tried in the same courts and in
the same manner, and subject to the same penalties as are all other
persons committing any of the above crimes within the exclusive
jurisdiction of the United States." 23 Stat. 385.
By successive amendments, Congress has increased the number of
enumerated crimes from seven to 13, adding carnal knowledge,
assault with intent to commit. rape, incest, assault with a dangerous
weapon, assault resulting in serious bodily injury, and robbery.
KEEBLE v. UNITED STATES 207
205 Opinion of the Court
cision in Kills Crow v. United States, 451 F. 2d 323
(1971). 459 F. 2d 757 (1972). Following a remand to
the District Court for a hearing on an unrelated issue,3
the case returned to the Court of Appeals and the conviction
was affirmed. Id., at 762 (supplemental opinion).
We granted certiorari limited to the question of the validity
of denying the requested instruction,4 409 U. S.
1037 (1972), and we reverse.
The events that led to the death of petitioner's
brother-in-law, Robert Pomani, and hence to this criminal
prosecution, took place on the South Dakota Reservation
of the Crow Creek Sioux Tribe. Petitioner and the
deceased, both Indians of that Tribe, spent the evening
of March 6, 1971, drinking and quarreling over petitioner's
alleged mistreatment of his wife, Pomani's sister.
The argument soon became violent, and it ended only
when petitioner, having beaten Pomani severely and left
him bleeding from the head and face, went to bed. The
next morning he discovered Pomani's lifeless body on
the ground a short distance from the house where the
beating had occurred. He reported the death to an official
of the Department of the Interior serving as Captain
of the Tribal Police at Fort Thompson, South Dakota.
An autopsy revealed that Pomani died because of exposure
to excessive cold, although the beating was a contributing
factor. Petitioner was convicted of assault
with intent to inflict great bodily injury, and sentenced
to five years' imprisonment.
3 The case was remanded to the District Court for a hearing on
the voluntariness of petitioner's confession, in light of the requirements
of 18 U. S. C. § 3501. On remand, the District Court concluded
that the confession was voluntary, notwithstanding a lapse
of time between petitioner's arrest and his confession.
4 The petition for certiorari also asked us to consider the validity
of admitting petitioner's confession in view of the requirements of
Fed. Rule Crim. Proc. 5 (a).
208 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
Although the lesser included offense doctrine developed
at common law to assist the prosecution in cases where the
evidence failed to establish some element of the offense
originally charged,5 it is now beyond dispute that the
defendant is entitled to an instruction on a lesser included
offense if the evidence would permit a jury rationally to
find him guilty of the lesser offense and acquit him of
the greater. The Federal Rules of Criminal Procedure
deal with lesser included offenses, see Rule 31 ( c) ," and the
defendant's right to such an instruction has been recognized
in numerous decisions of this Court. See, e. g.,
Sansone v. United States, 380 U. S. 343, 349 (Hl65);
Berra v. United States, 351 U.S. 131, 134 (1956); Stevenson
v. United States, 162 U. S. 313 (1896).7
In defending the trial court's refusal to offer the requested
instruction, the Government does not dispute
this general proposition, nor does it argue that a lesser
offense instruction was incompatible with the evidence
presented at trial. Cf. Sansone v. United States, supra;
Sparf v. United States, 156 U. S. 51, 63-64 (1895).
On the contrary, the Government explicitly concedes
that any non-Indian who had committed this same
act on this same reservation and requested this same
5 See Kelly v. United States, 125 U. S. App. D. C. 205, 207, 370
F. 2d 227, 229 (1966}; United States v. Afarkis, 352 .F. 2d 860, b66
(CA2 1965); 2 C. Wright, Federal PracticP and Procedure-Criminal
§ 515, p. 372 (1969}.
6 Rule 31 (c) provides that "rt]he defendant may be found guilty
of an offense necessarily induded in the offense charged or of an
attempt to commit either the offense charged or an offense necessarily
included therein if the attempt is an offense." The rule
codified pre-existing law, in particular former § 565 of Tit. 18, Art
of June 1, 1872, § 9, 17 Stat. 198. See Berra v. r.: nited States, :{51
U.S. 131, 134 and n. 6 (1956).
7 Sec also, e. g., Government of Virgin Islands v. Carmona, 422
F. 2d 95, 100 (CA3 1970); United States v. Comer, 137 U. S. App.
D. C. 214, 218, 421 F. 2d 1149, 1153 (1970).
KEEBLE v. UNITED STATES 20!)
205 Opinion of the Court.
instruction would have been entitled to the jury chargr
that petitioner was refused. Brief for the rnited
States 13 11. 16.8 The Government does maintain, hmvever,
that the Major Crimes Act precludes the District
Court from offering a lesser offense instruction on behalf
of an Indian, such as the petitioner before us. Specifically,
the Government contends that the Act represents
a carefully limited intrusion of federal power into tho
otherwise exclusive jurisdiction of the Indian tribes to
punish Indians for crimes committed on Indian la11d.
To grant an instruction on the lesser offense of simple
assault would, in the Government's view, infringe the
tribe's residual jurisdiction in a manner inconsistent ·with
the Act. Under the Government's approach, in other
words, the interests of an individual Indian defendant in
obtaining a jury instruction on a lesser offense must fall
before the congressionally sanctioned interests of the
tribe in preserving its inherent jurisdiction. Since that
conclusion is compelled neither by the language, nor the
purposes, nor the history of the Act, ,vc cannot agree.
The Major Crimes Act was passed by Congress in
direct response to the decision of this Court in Ex parte
Crow Dog, 109 U. S. 556 ( 1883). The Court held there
that a federal court lacked jurisdiction to try an Indian
for the murder of another Indian, a chief of the Brule
Sioux named Spotted Tail, in Indian country. Although
recognizing the power of Congress to confer such jurisdiction
on the federal courts,° the Court reasoned that, in
8 If IL non-Indian had committed this same act on an Indian reservation,
he would, of roursc, be tried in federal court under federal
endave law. 18 U. S. C. § 1152.
0 The constitutionality of the Maj or Crimes Act was upheld in
l'nited States v. Kagama, 118 U. S. 375 (1886), where thr Court
rejected the argumC'nt that punishment of criminal offenses by Indians
on Indian land is exclusively a sta1E' funrtion.
210 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
the absence of explicit congressional direction, the Indian
tribe retained exclusive jurisdiction to punish the offense.
Cf. Talton v. Mayes, 163 U.S. 376 (1896); Worcester v.
Georgia, 6 Pet. 515 (1832).
The prompt congressional response------conferring jurisdiction
on the federal courts to punish certain offense&-------
reflected a view that tribal remedies were either nonexistent
or incompatible with principles that Congress
thought should be controlling. Representative Cutcheon,
sponsor of the Act, described the events that followed the
reversal by this Court of Crow Dog's conviction:
"Thus Crow Dog went free. He returned to his
reservation, feeling, as the Commissioner says, a
great deal more important than any of the chiefs
of his tribe. The result was that another murder
grew out of that--a murder committed by Spotted
Tail, jr., upon White Thunder. And so these
things must go on unless we adopt proper legislation
on the subject.
"It is an infamy upon our civilization, a disgrace
to this nation, that there should be anywhere within
its boundaries a body of people who can, with absolute
impunity, commit the crime of murder, there
being no tribunal before which they can be brought
for punishment. Under our present law there is no
penalty that can be inflicted except according to the
custom of the tribe, which is simply that the 'bloodavenger'-
that is, the next of kin to the person
murdered-shall pursue the one who has been guilty
of the crime and commit a new murder upon
him ... .
"If ... an Indian commits a crime against an
Indian on an Indian reservation there is now no law
to punish the offense except, as I have said, the
205
KEEBLE v. UNITED STATES 211
Opinion of the Court
law of the tribe, which is just no law at all." 16
Cong. Rec. 934 (1885).10
The Secretary of the Interior, who supported the Act,
struck a similar note:
"If offenses of this character [ the killing of Spotted
Tail] can not be tried in the courts of the United
States, there is no tribunal in which the crime of
murder can be punished. Minor offenses may be
punished through the agency of the 'court of Indian
offenses,' but it will hardly do to leave the punishment
of the crime of murder to a tribunal that exists
only by the consent of the Indians of the reservation.
If the murderer is left to be punished according
to the old Indian custom, it becomes the duty of
the next of kin to avenge the death of his relative
by either killing the murderer or some one of his
kinsmen . . . ." 11
In short, Congress extended federal jurisdiction to
crimes committed by Indians on Indian land out of a
conviction that many Indians would "be civilized a great
deal sooner by being put under [federal criminal] laws
and taught to regard life and the personal property of
10 The same congressional purpose is evident in the most recrnt
amendment to the Act, the 1968 addition to the list of enumerated
crimes of the offense of assault resulting in serious bodily injury. See
S. Rep. No. 721, 90th Cong., 1st Sess., 32 (1967):
"Wit.hout this amendment an Indian can commit a serious crime and
receive only a maximum sentence of 6 months. Since Indian courts
cannot impose more than a 6-month sentence, the crime of aggravated
assault should be prosecuted in a Federal court, where the punishment
will be in proportion to the gravity of the offense."
11 The remark, from the Secretary's annual report, was quoted by
Representative Cutcheon during debate in the House of Representatives
on the proposed statute. 16 Cong. Rec. 9;)5 (1885).
212 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
others." 16 Cong. Rec. 936 (1885-) (remarks of Rep.
Cutcheon). That is emphatically not to say, however,
that Congress intended to deprive Indian defendants of
procedural rights guaranteed to other defendants, or to
make it easier to convict an Indian than any other defendant.
Indeed, the Act expressly provides that Indians
charged under its provisions "shall be tried in the same
courts, and in the same manner, as are all other persons
committing any of the above crimes within the exclusive
jurisdiction of the United States." 18 U. S. C. § 3242
(emphasis added).12 In the face of that explicit statutory
direction, we can hardly conclude that Congress
intended to disqualify Indians from the benefits of a
lesser offense instruction, ,vhen those benefits are made
available to any non-Indian charged with the same
offense.
Moreover, it is no answer to petitioner's demand for
a jury instruction on a lesser offense to argue that a
defendant may be better off without such an instruction.
True, if the prosecution has not established beyond
a reasonable doubt every element of the offense charged,
and if no lesser offense instruction is offered, the jury
must, as a theoretical matter, return a verdict of acquittal.
But a defendant is entitled to a lesser offense instruction-
in this context or any other- precisely because he
should not be exposed to the substantial risk that the
jury's practice will diverge from theory. Where one of
12 In making the most recent amendment to the Major Crimes Act,
see n. 10, supra, Congress neglected to add the offense of assault
resulting in serious bodily injury to both of the sections in which
the Act is now codified. The Government concedes that the failure
to add this new offense to the list of those enumerated in 18 U.S. C.
§ 3242 is "probably a congressional oversight." Brief for the United
States 18 n. 17. In any case, Congress plainly did not intend to
provide a special rule for the trial of Indians charged with assault
resulting in serious bodily injury.
KEEBLE v. UNITED STATES 213
205 Opinion of the Court
the elements of the offense charged remains in doubt,
but the defendant is plainly guilty of some offense, the
jury is likely to resolve its doubts in favor of conviction.
In the case before us, for example, an intent to commit
serious bodily injury is a necessary element of the crime
with which petitioner was charged, but not of the crime
of simple assault. Since the nature of petitioner's intent
was very much in dispute at trial, the jury could
rationally have convicted him of simple assault if that
option had been presented. But the jury was presented
with only two options: convicting the defendant of assault
with intent to commit great bodily injury, or
acquitting him outright. We cannot say that the> availability
of a third option-convicting the defc>ndant of
simple assault-could not have resulted in a different
verdict. Indeed, while we have never explicitly held
that the Due Process Clause of the Fifth Amendment
guarantees the right of a defendant to have the jury instructed
on a lesser included offense, it is nevertheless
clear that a construction of the Major Crimes Act to
preclude such an instruction would raise difficult constitutional
questions. In view of our interpretation of
the Act, those are questions that we need not face.13
13 Similarly, in virw of our conclusion that the trial court erred
in denying the requested inst ruction, we need not decide whether
an apparrnt defect in the indictment-a defect to which petitioner
did not. object-provides an independent ground for revPrnal. The
Major Crimes Act provides that an Indian may bt> tried in fpderal
court for the offense of assault. resulting in serious bodily injury.
The statute further provides that this offensP "shall bC' ddirwd and
punished in accordance with thC' law~ of thC' Statc in which suc-h
offense was committed." Petitionrr was not charged, howrvcr, with
a~sa11lt. resulting in serious bodily injury, but rather with assault with
intent to commit serious bodily injury. Sec S. D. Comp. Laws Ann.
§22-18-12 (1967). The South Dakota C"riminal rode docs not
specifically proscribe the offense of assault rePulting in serious bodily
injury. Whether the prosecution should havr brrn rrquirrd to prove
214 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
Finally, we emphasize that our decision today neither
expands the reach of the Major Crimes Act nor permits
the Government to infringe the residual jurisdiction of
a tribe by bringing prosecutions in federal court that
are not authorized by statute.14 We hold only that where
an Indian is prosecuted in federal court under the provisions
of the Act, the Act does not require that he be
deprived of the protection afforded by an instruction on
a lesser included offense, assuming of course that the
evidence warrants such an instruction. No interest of
a tribe is jeopardized by this decision. Accordingly,
the judgment of the Court of Appeals is reversed and the
case is remanded for further proceedings consistent with
this opinion.
Reversed and remanded.
not only that the petitioner intended to commit serious bodily injury,
but also that the assault resulted in serious bodily injury, is a question
we do not now decide.
14 The Government argues that "[t]he ruling petitioner seeks
would, under the principle of mutuality, empower federal prosecutors,
dissatisfied with the leniency of tribal courts, to prosecute in marginal
cases, knowing that if the major offense is not proved the
penalty for the minor offense would be more substantial than in
the tribal courts." Brief for the United States 22. The lower courts
have often held that a defendant is entitled to an instruction on a
lesser included offense only in circumstances where the prosecution
could also ask for such an instruction. See, e. g., Kelly v. United
States, 125 U. S. App. D. C. 205, 207, 370 F. 2d 227, 229 (1966).
That is the principle of mutuality to which the Government refers.
Nevertheless, .Judge Wilkey, speaking for a panel of the Court of Appeals
for the District of Columbia Circuit, recently concluded that
"despite the patina of antiquity, considerations of justice and good
judicial administration warrant dispensing with mutuality as an essential
prerequisite to the defense's right to a lesser included offense
charge." United States v. Whitaker, 144 U.S. App. D. C. 344, 351,
447 F. 2d 314,321 (1971). Whether that conclusion is sound, at least
in the special situation presented by the case before us, is a question
that we need not now decide.
KEEBLE v. UNITED STATES 215
205 STEWART, J., dissenting
MR. JUSTICE STEWART, with whom MR. JUSTICE
POWELL and MR. JusTICE REHNQUIST join, dissenting.
As the opinion of the Court demonstrates, the Major
Crimes Act, 18 U. S. C. §§ 1153, 3242, was enacted in
response to this Court's decision in Ex parte Crow Dog,
109 U. S. 556. The Act conferred jurisdiction upon federal
district courts over certain enumerated crimes committed
by Indians on an Indian reservation, leaving tribal
jurisdiction intact as to all other crimes. An Indian
tried in a federal court under the Act is guaranteed equal
procedural rights, 18 U. S. C. § 3242, including the benefits
and burdens of Fed. Rule Crim. Proc. 31 ( c), dealing
with a lesser included offense.
In these respects, I agree with the Court. But the
Court goes on to hold "that where an Indian is prosecuted
in federal court under the provisions of the Act, the
Act does not require that he be deprived of the protection
afforded by an instruction on a lesser included offense
.... " Ante, at 214. I think this holding would
be correct only if the lesser included offense were one
over which the federal court had jurisdiction. Because
the trial court did not have jurisdiction over the "lesser
included offense" in the present case, I must respectfully
dissent.1
It is a commonplace that federal courts are courts of
limited jurisdiction, and that there are no common-law
offenses against the United States. "The legislative authority
of the Union must first make an act a crime, affix
a punishment to it, and declare the Court that shall have
jurisdiction of the offence." United States v. Hudson,
7 Cranch 32, 34. "It is axiomatic that statutes creating
and defining crimes cannot be extended by intendment,
and that no act, however wrongful, can be punished
under such a statute unless clearly within its terms."
' The Court does not reach any other possible ground for reversing
this conviction, and, accordingly, neither do I.
216 OCTOBER TERM, 1972
STEWART, .J., dissenting 412 U.S.
Todd v. United States, 158 U. S. 278, 282. See 1 J.
Moore, Federal Practice ,r 0.60 [7]. And it is also clear
that simple assault by an Indian on an Indian reservation,
the purported "lesser included offense" in this case,
comes within no federal jurisdictional statute. The
Court in effect holds that Fed. Rule Crim. Proc. 31 ( c)
implicitly operates to confer federal jurisdiction over simple
assault in the circumstances of this case, and with all
respect this seems to me a holdiug utterly without
support.
The Rule states that:
"The defen<lant may be found guilty of an off ensc
necessarily included in the offense charged or of an
attempt to commit either the offense charged or
an offense necessarily included therein if the attempt
is an offense." (Emphasis added.)
The Rule is thus phrased in terms of "offenses." It
seems to me clear that "offense" means federal offense,
and this view is confirmed by the fact that by virtue of
the Rule a lesser included offense instruction is authorized
with respect to "an attempt" only where the attempt
itself is also a federal crime.
The conclusion that a lesser included offense instruction
is possible only when the lesser offense is within
federal jurisdiction does not violate 18 U. S. C. § 3242,
providing that Indians charged under its provisions "shall
be tried in the same courts, and in the same manner, as
are all other persons committing any of the above crimes
within the exclusive jurisdiction of the United States."
For this conclusion would apply as well in any instance
where Congress has established a divided criminal jurisdiction
between a federal district court and another
forum. Sec, e. g., DeFlumer v. Mancusi, 443 F. 2d 940
( criminal jurisdiction in federal district court over 16-
year-old defendants only when charged with certain
enumerated crimes). Congress established jurisdiction
KEEBLE v. UNITED STATES 217
205 STEWART, J., dissenting
in the federal district courts only over certain specifically
enumerated offenses committed by Indians on Indian
reservations. It vested a residual jurisdiction in other
forums over all other offenses. Accordingly, I conclude
that a lesser included offense instruction \vould have been
improper in the present case, where the federal court had
no jurisdiction over the lesser offense of simple assault.2
See Kills Crow v. United Sta.tes, 451 F. 2d 323, 325.
The Court seems to agree that a. Pnited States Attorney
could not seek an indictment in a federal district
court of an Indian for simple assault committed on an
Indian reservation. This being so, I can find no basis
for concluding that jurisdiction comes into being simply
by motion of the defense. "It needs no citation of authorities
to show that the mere consent of parties cannot
confer upon a court of the United States the jurisdiction
to hear and decide a case." People's Bank v. Calhoun,
102 lT. S. 256, 260- 261. See also 1 J. Moore, Federal
Practice 1f 0.60 [ 4]. Were the petitioner's motion for an
instruction on simple assault to be granted, and were a
jury to convict on that offense, I should have supposed
until the Court's decision today that the conviction could
have been set aside for want of jurisdiction.
2 The petitioner was not rhargrd with ·'assault resulting in serious
bodily injury," the offense spcrified in the Major Crimes Act, but
instead with assault with intent to rornmit serious bodily injury,
S. D. Comp. Laws Ann. 22-18-12 (1967). This was apparently becau~
c the :Vfajor Crimf::l Act provides that "assault resulting in serious
bodil:-,· injury" is to be "ddincd and punis]lP(l in arcordance with
the laws of the State in which such offense was rornmitted." Since
South Dakota appears to have no statute idrnt.ically matching the
offensr desrribed in th<' }fajor Crimes Art, § 22-18-12 of the South
Dakota Law:,; was relied upon to proserutc the offense clrnrged her<'.
See also Kills Crow v. United States, 451 F. 2d 323. In a cas<' wherr
no serious bodily in.iur~· occurred, a defendant might well argur that
his prosecution under this st.ate law d<'finition is no more undrr the
jnrisdiction of a federal district court than would hP a pros<'rution
for simple assault.
218 OCTOBER TERM, 1972
Syllabus 412 U.S.
SCHNECKLOTH, CONSERVATION CENTER
SUPERINTENDENT v. BUST AMONTE
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 71-732. Argued October 10, 1972-Decided May 29, 1973
During the course of a consent search of a car that had been
stopped by officers for traffic violations, evidence was discovered
that was used to convict respondent of unlawfully possessing a
check. In a habeas corpus proceeding, the Court of Appeals,
reversing the District Court, held that the prosecution had failed
to prove that consent to the search had been made with the understanding
that it could freely be withheld. Held: When the subject
of a search is not. in custody and t.he State would justify a search
on the basis of his consent, the Fourth and Fourteenth Amendments
require that it demonstrate that the consent was in fact
voluntary; voluntariness is to be determined from the totality of
the surrounding circumstances. While knowledge of a right to
refuse consent is a factor to be taken into account, the State need
not prove that the one giving permission to search knew that he
had a right to withhold his consent. Pp. 223-249.
448 F. 2d 699, reversed.
STEWART, J., delivered the opinion of the Court, in which BuRGER,
C. J., and WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined.
BLACKMUN, .J., filed a concurring opinion, post, p. 249. POWELL, .J.,
filed a concurring opinion, in which BURGER, C . .T., and RRHNQUIST,
J., joined, post, p. 250. DOUGLAS, J., post, p. 275, BRENNAN, J.,
post, p. 276, and MARSHALL, J., pos•t, p. 277, filed dissenting opinions.
Robert R. Granucci, Deputy Attorney General of
California, argued the cause for petitioner. With him
on the briefs were Evelle J. Younger, Attorney General,
Herbert L. Ashby, Chief Assistant Attorney General,
Doris H. Maier, Assistant Attorney General, and Edward
P. O'Brien, Deputy Attorney General
Stuart P. Tobisman, by appointment of the Court,
SCHNECKLOTH v. BUSTAMONTE 219
218 Opinion of the Court
405 U. S. 1062, argued the cause and filed a brief for
respondent pro hac vice.*
MR. JusTICE STEWART delivered the opinion of the
Court.
It is well settled under the Fourth and Fourteenth
Amendments that a search conducted without a warrant
issued upon probable cause is "per se unreasonable ...
subject only to a few specifically established and welldelineated
exceptions." Katz v. United States, 389 U.S.
347, 357; Coolidge v. New Hampshire, 403 U. S. 443,
454-455; Chambers v. Maroney, 399 U. S. 42, 51. It
is equally well settled that one of the specifically established
exceptions to the requirements of both a warrant
and probable cause is a search that is conducted
pursuant to consent. Davis v. United States, 328 U. S.
582, 593-594; Zap v. Unite,d States, 328 U. S. 624, 630.
The constitutional question in the present case concerns
the definition of "consent" in this Fourth and Fourteenth
Amendment context.
I
The respondent was brought to trial in a California
court upon a charge of possessing a check with intent
to defraud.1 He moved to suppress the introduction of
certain material as evidence against him on the ground
that the material had been acquired through an unconstitutional
search and seizure. In response to the motion,
the trial judge conducted an evidentiary hearing
*WiUiam J. Scott, Attorney General, and James B. Zagel and
Jayne A. Carr, Assistant Attorneys General, filed a brief for the
State of Illinois ct al. as amici curiae urging reversal.
Melvin L. Wulf, Sanford J. Rosen, Joel M. Gora, A. L. Wirin,
Fred Okrand, and Law.rence R. Sperber filed a brief for the American
Civil Liberties Union et al. as amici curiae urging affirmance.
1 Cal. Penal Code § 475a.
220 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
where it was established that the material in question
had been acquired by the State under the following
circumstances:
While on routine patrol in Sunnyvale, California, at
approximately 2:40 in the morning, Police Officer James
Rand stopped an automobile when he observed that one
headlight and its license plate light were burned out. Six
men were in the vehicle. Joe Alcala and tho respondent,
Robert Bustamante, were in the front seat with Joe
Gonzales, the driver. Three older men were seated in
the rear. \Vhen, in response to the policeman's question,
Gonzales could not produce a driver's license, Officer
Rand asked if any of the other five had any evidence of
identification. Only Alcala produced a license, and he
explained that the car was his brother's. After the six
occupants had stepped out of the car at the officer's
request and after two additional policemen had arrived,
Officer Rand asked Alcala if he could search the car.
Alcala replied, "Sure, go ahead." Prior to the search
no one was threatened with arrest and. according to
Officer Rand's uncontradicted testimony, it "was all very
congenial at this time." Gonzales testified that Alcala
actually helped in the search of the car, by opening
the trunk and glove compartment. In Gonzales'
words: "[Tlhe police officer asked Joe [Alcala], he
goes, 'Does the trunk open?' And Joe said, 'Yes.' He
went to the car and got the keys and opened up the
trunk." Wadded up under the left rear seat, the police
officers found three checks that had previously been stolen
from a car wash.
The trial judge denied the motion to suppress, and
the checks in question were admitted in evidence at
Bustamonte's trial On the basis of this and other evidence
he was convicted, and the California Court of Appeal
for the First Appellate District affirmed the convicSCHNECKLOTH
v. BUSTAMONTE 221
218 Opinion of the Court
tion. 270 Cal. App. 2d 648, 76 Cal. Rptr. 17. In agreeing
that the search and seizure were constitutionally valid, the
appellate court applied the standard earlier formulated
by the Supreme Court of California in an opinion by
then Justice Traynor: "Whether in a particular case an
apparent consent was in fact voluntarily given or ,vas in
submission to an express or implied assertion of authority,
is a question of fact to be determined in the light
of all the circumstances." People v. Michael, 4fi Cal. 2d
751, 753, 290 P. 2d 852, 854. The appellate court found
that "[il n the instant case the prosecution met the necessary
burden of showing consent . . . since there were
clearly circumstances from which the trial court could
ascertain that consent had been freely given without
coercion or submission to authority. X ot only officer
Rand, but Gonzales, the driver of the automobile, testified
that Alcala's assent to the search of his brother's
automobile was freely, even casually given. At the time
of the request to search the automobile the atmosphere,
according to Rand, was 'congenial' and there had been
no discussion of any crime. As noted, Gonzales said
Alcala even attempted to aid in the search." 270 Cal.
App. 2d, at 652, 76 Cal. Rptr .. at 20. The California
Supreme Court denied review.2
Thereafter, the respondent sought a writ of habeas
corpus in a federal district court. It ,vas denied.3 On
appeal, the Court of Appeals for the Ninth Circuit, relying
on its prior decisions in Cipres v. United States, 343
F. 2d 95, and Schoepfiin v. United States, 391 F. 2d 390,
set aside the District Court's order. 448 F. 2d 699.
The appellate court reasoned that a consent was a waiver
of a person's Fourth and Fourteenth Amendment rights,
and that the State ,vas under an obligation to demon-
2 The order of the California Supreme Court is unreported.
3 The decision of the District Court is unreported.
222 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
strate, not only that the consent had been uncoerced, but
that it had been given with an understanding that it
could be freely and effectively withheld. Consent could
not be found, the court held, solely from the absence of
coercion and a verbal expression of assent. Since the
District Court had not determined that Alcala had
known that his consent could have been withheld and that
he could have refused to have his vehicle searched, the
Court of Appeals vacated the order denying the writ
and remanded the case for further proceedings. We
granted certiorari to determine ,vhether the Fourth and
Fourteenth Amendments require the showing thought
necessary by the Court of Appeals. 405 U. S. 953.
II
It is important to make it clear at the outset what
is not involved in this case. The respondent concedes
that a search conducted pursuant to a valid consent is
constitutionally permissible. In Katz v. United States,
389 U. S., at 358, and more recently in Vale v. Louisiana,
399 U. S. 30, 35, we recognized that a search authorized
by consent is wholly valid. See also Davis v. Unite,d
States, 328 U. S., at 593-594; Zap v. United States, 328
U. S., at 630.4 And similarly the State concedes that
" [ w] hen a prosecutor seeks to rely upon consent to justify
the lawfulness of a search, he has the burden of proving
that the consent ,vas, in fact, freely and voluntarily
given." Bumper v. North Carolina, 391 U. S. 543, 548.
See also Johnson v. United States, 333 U.S. 10; Amos v.
United States, 255 U. S. 313.
4 "One would expect a hard-headed system like the common law
to recognize exceptions even to the most comprehensive principle
for safeguarding liberty. This is true of the prohibition of all
searches and seizures as unreasonable unless authorized by a judicial
warrant appropriately supported." Davis v. United States,
328 U. S. 582, 609 (Frankfurter, J., dissenting).
SCHNECKLOTH v. BUSTAMONTE 223
218 Opinion of the Court
The precise question in this case, then, is what must
the prosecution prove to demonstrate that a consent \Vas
"voluntarily" given. And upon that question there is
a square conflict of views between the state and federal
courts that have reviewed the search involved in the
case before us. The Court of Appeals for the Ninth
Circuit concluded that it is an essential part of the
State's initial burden to prove that a person knows
he has a right to refuse consent. The California courts
have followed the rule that voluntariness is a question
of fact to be determined from the totality of all the
circumstances, and that the state of a defendant's knowledge
is only one factor to be taken into account in
assessing the voluntariness of a consent. See, e. g.,
People v. Tremayne, 20 Cal. App. 3d 1006, 98 Cal. Rptr.
193; People v. Roberts, 246 Cal. App. 2d 715, 55 Cal.
Rptr. 62.
A
The most extensive judicial exposition of the meaning
of "voluntariness" has been developed in those cases in
which the Court has had to determine the "voluntariness"
of a defendant's confession for purposes of the
Fourteenth Amendment. Almost 40 years ago, in
Brown v. Mississippi, 297 U. S. 278, the Court held that
a criminal conviction based upon a confession obtained
by brutality and violence was constitutionally invalid
under the Due Process Clause of the Fourteenth Amendment.
In some 30 different cases decided during the
era that intervened between Brown and Esco be.do v. Illinois,
378 U. S. 478, the Court was faced with the necessity
of determining whether in fact the confessions in
issue had been "voluntarily" given.5 It is to that body
5 See Miranda v. Arizona, 384 U. S. 436, 507, and n. 3 (Harhn,
J., dissenting); Spano v. New York, 360 U.S. 315, 321 n. 2 (citing
28 cases).
224 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
of case law to which we turn for initial guidance on the
meaning of "voluntariness" in the present context.6
Those cases yield no talismanic definition of "voluntariness,"
mechanically applicable to the host of situations
where the question has arisen. "The notion of
'voluntariness,'" Mr. Justice Frankfurter once wrote,
"is itself an amphibian." Culombe v. Connecticut, 367
U. S. 568, 604-605. It cannot be taken literally to mean
a "knowing" choice. "Except where a person is unconscious
or drugged or otherwise lacks capacity for
conscious choice, all incriminating statements-even
those made under brutal treatment-are 'voluntary' in
the sense of representing a choice of alternatives. On
the other hand, if 'voluntariness' incorporates notions
of 'but-for' cause, the question should be whether the
statement would have been made even absent inquiry or
other official action. Under such a test, virtually no
statement would be voluntary because very few people
give incriminating statements in the absence of official
action of some kind."' It is thus evident that neither
linguistics nor epistemology will provide a ready definition
of the meaning of "voluntariness."
Rather, "voluntariness" has reflected an accommodation
of the complex of values implicated in police ques-
6 Similarly, when we recently considered the meaning of a. "voluntary"
guilty plea, we returned to the standards of "voluntariness"
developed in the co<'rced-confession cases. See Brady v. United
States, 397 U. S. 742, 749. See also n. 25, infra.
7 Bator & VorPnberg, Arrest, Detention, Interrogation and the
Right to Counsel: Basic Problrms and Possible Legislative Solutions,
66 Col. L. Rev. 62, 72-73. See also 3 J. Wigmore, Evidence
§ 826 (.T. Chadbourn rev. 1970): "When, for example threats
are used, the situation is one of choice between alternatives, either
one disagreeable, to be sure, but still subject to a choice. As between
the rack and a confession, the latter would usually be considered
the less disagreeable; but it is nonetheless a voluntary choice."
SCHNECKLOTH v. BUSTAMONTE 225
218 Opinion of the Court
tioning of a suspect. At one end of the spectrum is the
acknowledged need for police questioning as a toot for
the effective enforcement of criminal laws. See Culombe
v. Connecticut, supra, at 578-580. Without such investigation,
those who were innocent might be falsely accwoed,
those who were guilty might wholly escape prosecution,
and many crimes would go unsolved. In short, the security
of all would be diminished. Haynes v. Wa.shington,
373 U. S. 503, 515. At the other end of the spectrum
is the set of values reflecting society's deeply felt belief
that the criminal law cannot be used as an instrument
of unfairness, and that the possibility of unfair and
even brutal police tactics poses a real and serious threat
to civilized notions of justice. " [ I] n cases involving
involuntary confessions, this Court enforces the strongly
felt attitude of our society that important human values
are sacrificed where an agency of the government, in the
course of securing a conviction, wrings a confession out
of an accused against his will." Blackburn v. Alabama,
361 U. S. 199, 206-207. See also Culombe v. Connecticut,
supra, at 581-584; Chambers v. Florida, 309 U. S.
227, 235-238.
This Court's decisions reflect a frank recognition that
the Constitution requires the sacrifice of neither security
nor liberty. The Due Process Clause does not mandate
that the police forgo all questioning, or that they be
given carte blanche to extract what they can from a
suspect. "The ultimate test remains that which has
been the only clearly established test in Anglo-American
courts for hvo hundred years: the test of voluntariness.
Is the confession the product of an essentially free and
unconstrained choice by its maker? If it is, if he has
willed to confess, it may be used against him. If it is
not, if his will has been overborne and his capacity for
self-determination critically impaired, the use of his
226 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
confession offends due process." Culombe v. Connecticut,
supra, at 602.
In determining whether a defendant's will was overborne
in a particular case, the Court has assessed
the totality of all the surrounding circumstances-both
the characteristics of the accused and the details of the
interrogation. Some of the factors taken into account
have included the youth of the accused, e. g., Haley v.
Ohio, 332 U. S. 596; his lack of education, e. (J., Payne v.
Arkansas, 356 U. S. 560; or his low intelligence, e. g.,
Fikes v. Alabama, 352 U. S. 191; the lack of any advice
to the accused of his constitutional rights, e. (J., Davis v.
North Carolina, 384 U. S. 737; the length of detention,
e. g., Chambers v. Florida, supra; the repeated and
prolonged nature of the questioning, e. g., Ashcraft v.
Tennessee, 322 U. S. 143; and the use of physical punishment
such as the deprivation of food or sleep, e. g., Reck
v. Pate, 367 U. S. 433.8 In all of these cases, the Court
determined the factual circumstances surrounding the
confession, assessed the psychological impact on the accused,
and evaluated the legal significance of how the
accused reacted. Culombe v. Connecticut, supra, at
603.
The significant fact about all of these decisions is
that none of them turned on the presence or absence of
a single controlling criterion; each reflected a careful
scrutiny of all the surrounding circumstances. See
Miranda v. Arizona, 384 U. S. 436, 508 (Harlan, J., dissenting);
id., at 534--535 (WHITE, J., dissenting). In
none of them did the Court rule that the Due Process
Clause required the prosecution to prove as part of its
8 See generally Miranda v. Arizona, 384 U. S., at 508 (Harlan,
J., dissenting); 3 J. Wigmore, Evidence § 826 (J. Chadbourn rev.
1970); Note, Developments in the Law: Confessions, 79 Harv. L.
Rev. 938, 954-984.
SCHNECKLOTH v. BUSTAMONTE 227
218 Opinion of the Court
initial burden that the defendant knew he had a right
to refuse to answer the questions that were put. While
the state of the accused's mind, and the failure of the
police to advise the accused of his rights, were certainly
factors to be evaluated in assessing the "voluntariness"
of an accused's responses, they were not in and of themselves
determinative. See, e. g., Davis v. North Carolina,
supra; Haynes v. Washington, supra, at 510---511;
Culombe v. Connecticut, supra, at 610; Turner v. Pennsylvania,
338 U. S. 62, 64.
B
Similar considerations lead us to agree with the courts
of California that the question whether a consent to a
search was in fact "voluntary" or was the product of
duress or coercion, express or implied, is a question of
fact to be determined from the totality of all the circumstances.
While knowledge of the right to refuse consent
is one factor to be taken into account, the government
need not establish such knowledge as the sine qua
non of an effective consent. As with police questioning,
two competing concerns must be accommodated in determining
the meaning of a "voluntary" consent-the legitimate
need for such searches and the equally important
requirement of assuring the absence of coercion.
In situations where the police have some evidence of
illicit activity, but lack probable cause to arrest or search,
a search authorized by a valid consent may be the only
means of obtaining important and reliable evidence.9 In
the present case for example, while the police had reason
to stop the car for traffic violations, the State does not
contend that there was probable cause to search the
vehicle or that the search was incident to a valid arrest
9 See Note, Consent Searches: A Reappraisal After Miranda v.
Arizona, 67 Col. L. Rev. 130, 130-131.
228 OCTOBER TERM, 1972
Opinion of the Court 412 u. s.
of any of the occupants.10 Yet, the search yielded tangible
evidence that served as a basis for a prosecution, and
provided some assurance that others, wholly innocent of
the crime, were not mistakenly brought to trial. And
in those cases where there is probable cause to arrest or
search, but where the police lack a warrant, a consent
search may still be valuable. If the search is conducted
and proves fruitless, that in itself may convince the police
that an arrest with its possible stigma and embarrassment
is unnecessary, or that a far more extensive search
pursuant to a warrant is not justified. In short, a search
pursuant to consent may result in considerably less inconvenience
for the subject of the search, and, properly
conducted, is a constitutionally permissible and ,vholly
legitimate aspect of effective police activity.
But the Fourth and Fourteenth Amendments require
that a consent not be coerced, by explicit or implicit
means, by implied thrca.t or covert force. For, no matter
how subtly the coercion was applied, the resulting
"consent" would be no more than a pretext for the unjustified
police intrusion against which the Fourth
Amendment is directed. In the words of the classic
admonition in Boyd v. United States, 116 U.S. 616, 635:
"It may be that it is the obnoxious thing in its
mildest and least repulsive form; but illegitimate
and unconstitutional practices get their first footing
in that way, namely, by silent approaches and slight
deviations from legal modes of procedure. This
can only be obviated by adhering to the rule that
constitutional provisions for the security of person
and property should be liberally construed. A close
10 If there had been probable cause for the search of the automobile,
a search warrant would not have been necessary in this case.
See Brinegar v. United States, 338 U. S. 160; Carroll v. United
States, 267 U. S. 132.
218
SCHKECKLOTH v. BUSTAMOKTE 229
Opinion of the Court
and literal construction deprives them of half their
efficacy, and leads to gradual depreciation of the
right, as if it consisted more in sound than in substance.
It is the duty of courts to be watchful for
the constitutional rights of the citizen, and against
any stealthy encroachments thereon."
The problem of reconciling the recognized legitimacy
of consent searches with the requirement that they be
free from any aspect of official coercion cannot be resolved
by any infallible touchstone. To approve such
searches without the most careful scrutiny would sanction
the possibility of official coercion; to place artificial
restrictions upon such searches ,vould jeopardize their
basic validity. Just as was true with confessions, the
requirement of a "voluntary" consent reflects a fair
accommodation of the constitutional requirements involved.
In examining all the surrounding circumstances
to determine if in fact the consent to search ,vas coerced,
account must be taken of subtly coercive police questions,
as well as the possibly vulnerable subjective state
of the person who consents. Those searches that are
the product of police coercion can thus be filtered out
without undermining the cont.inuing validity of consent
searches. In sum, there is no reason for us to depart in
the area of consent searches, from the traditional definition
of "voluntariness."
The approach of the Court of Appeals for the Ninth
Circuit finds no support in any of our decisions that ha.ve
attempted to define the meaning of "voluntariness." Its
ruling, that the State must affirmatively prove that the
subject of the search knew that he had a right to refuse
consent, would, in practice, create serious doubt whether
consent searches could continue to be conducted. There
might be rare cases where it could be proved from the
record that a person in fact affirmatively knew of his
230 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
right to refuse-such as a case where he announced to
the police that if he didn't sign the consent form, "you
[police] are going to get a search warrant;" 11 or a case
where by prior experience and training a person had
clearly and convincingly demonstrated such knowledge.12
But more commonly where there was no evidence of any
coercion, explicit or implicit, the prosecution would
nevertheless be unable to demonstrate that the subject
of the search in fact had known of his right to refuse
consent.
The very object of the inquiry-the nature of a person's
subjective understanding-underlines the difficulty
of the prosecution's burden under the rule applied by the
Court of Appeals in this case. Any defendant who was
the subject of a search authorized solely by his consent
could effectively frustrate the introduction into evidence
of the fruits of that search by simply failing to testify
that he in fact knew he could refuse to consent. And
the near impossibility of meeting this prosecutorial burden
suggests why this Court has never accepted any
such litmus-paper test of voluntariness. It is instructive
to recall the fears of then Justice Traynor of the
California Supreme Court:
" [ I) t is not unreasonable for officers to seek interviews
with suspects or witnesses or to call upon them
at their homes for such purposes. Such inquiries,
although courteously made and not accompanied
with any assertion of a right to enter or search or
secure answers, would permit the criminal to defeat
his prosecution by voluntarily revealing all of the
evidence against him and then contending that he
acted only in response to an implied assertion of
11 United States v. Curial,e, 414 F. 2d 744, 747.
12 Cf. Rosenthall v. Henderson, 389 F. 2d 514, 516.
218
SCHNECKLOTH v. BUSTAMONTE 231
Opinion of the Court
unlawful authority." People v. Michael, 45 Cal. 2d,
at 754, 290 P. 2d, at 854.
One alternative that would go far toward proving
that the subject of a search did know he had a right
to refuse consent would be to advise him of that right
before eliciting his consent. That, however, is a suggestion
that has been almost universally repudiated by
both federal 1
' and state courts, 1
• and, we think, rightly
so. For it would be thoroughly impractical to impose
on the normal consent search the detailed requirements
of an effective warning. Consent searches are part of
the standard investigatory techniques of law enforcement
13 See, e. g., Gorman v. United States, 380 F. 2d 158, 164 (CAl);
United States ex rel. Cole v. Mancusi, 429 F. 2d 61, 66 (CA2);
United States ex rel. Harris v. Hendricks, 423 F. 2d 1096, 1101
(CA3); United States v. Vickers, 387 F. 2d 703, 707 (CAA); United
States v. Goosbey, 419 F. 2d 818 (CA6); United States v. Noa,
443 F. 2d 144, 147 (CA9); Leeper v. United States, 446 F. 2d 281,
284 (CAlO). But see, United States v. Nikrasch, 367 F. 2d 740,
744 (CA7); United States v. Moderacki, 280 F. Supp. 633 (Del.);
United States v. Blalock, 255 F. Supp. 268 (ED Pa.). While there
is dictum in Nikrasch to the effect that warnings are necessary for
an effective Fourth Amendment consent, the Court of Appeals for
the Seventh Circuit subsequently recanted that position and termed
it "of dubious propriety." Byrd v. Lane, 398 F. 2d 750, 755. The
Court of Appeals limited Nikrasch to its facts-a case where a suspect
arrested on a disorderly conduct charge and incarcerated for
eight hours "consented" from his jail cell to a search of his car.
14 See, e. g., People v. Roberts, 246 Cal. App. 2d 715, 55 Cal. Rptr.
62; People v. Dahlke, 257 Cal. App. 2d 82, 64 Cal. Rptr. 599; State
v. Custer, 251 So. 2d 287 (Fla. App.); State v. Oldham, 92 Idaho
124, 438 P. 2d 275; State v. McCarty, 199 Kan. 116, 427 P. 2d
616, vacated in part on other grounds, 392 U. S. 308; Hohnke v.
Commonwealth, 451 S. W. 2d 162 (Ky.); State v. Andrus, 250
La. 765, 199 So. 2d 867; Morgan v. State, 2 Md. App. 440, 234
A. 2d 762; State v. Witherspoon, 460 S. W. 2d 281 (Mo.); State
v. Forney, 181 Keb. 757, 150 N. W. 2d 915; State v. Dougla.s, 260
Ore. 60, 488 P. 2d 1366.
232 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
agencies. They normally occur on the highway, or in a
person's home or office, and under informal and unstructured
conditions. The circumstances that prompt
the initial request to search may develop quickly or be
a logical extension of investigative police questioning.
The police may seek to investigate further suspicious
circumstances or to follow up leads developed in questioning
persons at the scene of a crime. These situations
are a far cry from the structured atmosphere of
a trial where, assisted by counsel if he chooses, a def endant
is informed of his trial rights. Cf. Boykin v. Alabama,
395 U. S. 238, 243. And, while surely a closer
question, these situations are still immeasurably far removed
from "custodial interrogation" where, in Miranda
v. Arizona, supra, we found that the Constitution required
certain now familiar warnings as a prerequisite
to police interrogation. Indeed, in language applicable
to the typical consent search, we refused to extend the
need for warnings:
"Our decision is not intended to hamper the traditional
function of police officers in investigating
crime. . . . When an individual is in custody on
probable cause, the police may, of course, seek out
evidence in the field to be used at trial against him.
Such investigation may include inquiry of persons
not under restraint. General on-the-scene questioning
as to facts surrounding a. crime or other general
questioning of citizens in the fact-finding process is
not affected by our holding. It is an act of responsible
citizenship for individuals to give whatever
information they may have to aid in law enforcement."
384 U. S., at 477-478.
Consequently, we cannot accept the position of the
Court of Appeals in this case that proof of knowledge of
the right to refuse consent is a necessary prerequisite
SCHNECKLOTH v. BUSTAMONTE 233
218 Opinion of tho Court
to demonstrating a "voluntary" consent. Rather, it is
only by analyzing all the circumstances of an individual
consent that it can be ascertained whether in fact it was
voluntary or coerced. It is this careful sifting of the
unique facts and circumstances of each case that is evidenced
in our prior decisions involving consent searches.
For example, in Davis v. United States, 328 U. S. 582,
federal agents enforcing wartime gasoline-rationing regulations,
arrested a filling station operator and asked to see
his rationing coupons. He eventually unlocked a room
where the agents discovered the coupons that formed
the basis for his conviction. The District Court found
that the petitioner had consented to the search-that
although he had at first refused to turn the coupons
over, he had soon been persuaded to do so and that
force or threat of force had not been employed to
persuade him. Concluding that it could not be said
that this finding was erroneous, this Court, in an opinion
by MR. JUSTICE DouGLAS that looked to all the circumstances
surrounding the consent, affirmed the judgment
of conviction: "The public character of the property,
the fact that the demand was made during business hours
at the place of business where the coupons were required
to be kept, the existence of the right to inspect,
the nature of the request, the fact that the initial refusal
to turn tht:' coupons over was soon followed by acquiescence
in the demand-these circumstances all support the
conclusion of the District Court." J,d., at 593- 594. See
also Zap v. United States, 328 U. S. 624.
Conversely, if under all the circumstances it has appeared
that the consent was not given voluntarily- that
it was coerced by threats or force, or granted only in
submission to a claim of lawful authority-then we have
found the consent invalid and the search unreasonable.
See, e. g., Bumper v. North Carolina, 391 U. S., at 548-
549; Johnson v. United States, 333 "C'. S. 10; Amos v.
234 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
United States, 255 U. S. 313. In Bumper, a 66-year-old
Negro widow, who lived in a house located in a rural area
at the end of an isolated mile-long dirt road, allowed four
white law enforcement officials to search her home after
they asserted they had a warrant to search the house.
We held the alleged consent to be invalid, noting that
" [ w] hen a law enforcement officer claims authority to
search a home under a warrant, he announces in effect
that the occupant has no right to resist the search. The
situation is instinct with coercion-albeit colorably lawful
coercion. Where there is coercion there cannot be
consent." 391 U. S., at 550.
Implicit in all of these cases is the recognition that
knowledge of a right to refuse is not a prerequisite of
a voluntary consent. If the prosecution were required
to demonstrate such knowledge, Davis and Zap could
not have found consent without evidence of that knowledge.
And similarly if the failure to prove such knowledge
were sufficient to show an ineffective consent, the
Amos, Johnson, and Bumper opinions would surely have
focused upon the subjective mental state of the person
who consented. Yet they did not.
In short, neither this Court's prior cases, nor the traditional
definition of "voluntariness" requires proof of
knowledge of a right to refuse as the sine qua non of an
effective consent to a search.15
15 This view is bolstered by Coolidge v. New Hampshire, 403 U.S.
443. There the Court determined that a suspect's wife was not
operating as an agent of the State when she handed over her husband's
guns and clothing to the police. We fonnd nothing constitutionally
suspect in the subjective forces that impelled the spouse
to cooperate with the police. "Among these are the simple but
often powerful convention of openness and honesty, the fear that
secretive behavior will intensify suspicion, and uncertainty as to
what course is most likely to be helpful to the absent spouse." Id.,
at 488. "The test . . . is whether Mrs. Coolidge, in light of all
SCH~ECKLOTH v. BUSTAMONTE 235
218 Opinion of the Court
C
It is said, however, that a "consent" is a "waiver" of
a person's rights under the Fourth and Fourteenth
Amendments. The argument is that by allowing the
police to conduct a search, a person "waives" whatever
right he had to prevent the police from searching. It
is argued that under the doctrine of Johnson v. Zerbst,
304 U. S. 458, 464, to establish such a "waiver" the State
must demonstrate "an intentional relinquishment or
abandonment of a known right or privilege."
But these standards were enunciated in Johnson in
the context of the safeguards of a fair criminal trial.
Our cases do not reflect an uncritical demand for a
knowing and intelligent waiver in every situation where
a person has failed to invoke a constitutional protection.
As Mr. Justice Black once observed for the Court:
" 'Waiver' is a vague term used for a great variety of
purposes, good and bad, in the law." Green v. United
States, 355 U. S. 184, 191. With respect to procedural
due process, for example, the Court has acknowledged
that waiver is possible, while explicitly leaving open the
question whether a "knowing and intelligent" waiver
need be shown.10 See D. H. Overmyer Co. v. Frick Co.,
the circumstances of the case, must be regarded as having acted as
an 'instrument' or agent of the state when she produced her husband's
belongings." Id., at 487.
Just as it was necessary in Coolidge to analyze the totality of the
surrounding circumstances to assess the validity of Mrs. Coolidge's
offer of evidence, it is equally necessary to assess all the circumstances
surrounding a search where consent is obtained in response
to an initial police question.
16 Johmon v. Zerbst, 304 U. S. 458, itself relied on three civil cases,
but none of those cases established the proposition that a waiver, to
be effective, must be knowing and intelligent. Hodges v. Easton, 106
U. S. 408, which concerned the waiver of a civil jury trial by the submission
of a special verdict to the jury, indicates only that "every
236 OCTOBER TERM, 1972
Opinion of the Court 412 u. s.
405 U. S. 174, 185-186; Fuentes v. Shevin, 407 U. S. 67,
94-96.17
The requirement of a "knowing" and "intelligent"
waiver was articulated in a case involving the validity of
a defendant's decision to forgo a right constitutionally
guaranteed to protect a fair trial and the reliability of
the truth-determining process. Johnson v. Zerbst,
supra, dealt with the denial of counsel in a federal criminal
trial. There the Court held that under the Sixth
Amendment a criminal defendant is entitled to the assistance
of counsel, and that if he lacks sufficient funds
to retain counsel, it is the Government's obligation to
furnish him with a lawyer. As Mr. Justice Black wrote
for the Court: "The Sixth Amendment stands as a constant
admonition that if the constitutional safeguards it
provides be lost, justice will not 'still be done.' It embodies
a realistic recognition of the obvious truth that
the average defendant does not have the professional
legal skill to protect himself when brought before a tribunal
with power to take his life or liberty, wherein the
prosecution is presented by experienced and learned counsel.
That which is simple, orderly and necessary to the
lawyer, to the untrained layman may appear intricate,
complex and mysterious." 304 U.S., at 462-463 (footnote
omitted). To preserve the fairness of the trial process
the Court established an appropriately heavy burden on
the Government before v.raiver could be found-"an inreasonable
presumption should be indulged against . _ . waiver."
Id., at 412. Aetna Ins. Co. v. Kennedy, 301 U. S. 389, is to the
same rffcct. Ohio Bell Tel. Co. v. Public Utilities Comm'n, 301
U. S. 292, which involved the po8sible waiver of procedural due process
rights, stands only for the proposition that: "We do not prPRUID<'
acquiescence in the loss of fundamental rights." Id., at 307.
17 Cf. Parden v. Terminal ll. Co., 377 U . S. 184 (operation of
common carrier railroad found to be waiYer of State's sovereign immunity
despite objection that there was no "waiver" under Johnson);
SCH~ECKLOTH v. BUSTAMONTE 237
218 Opinion of the Court
tentional relinquishment or abandonment of a known
right or privilege." Id., at 464.
Almost without exception, the requirement of a knowing
and intelligent waiver has been applied only to those
rights which the Constitution guarantees to a criminal
defendant in order to preserve a fair trial.1" Hence, and
hardly surprisingly in view of the facts of Johnson itself,
the standard of a knowing and intelligent waiver has
most often been applied to test the validity of a waiver
of counsel, either at trial,1
" or upon a guilty plea.2°
And the Court has also applied the Johnson criteria to
assess the effectiveness of a waiver of other trial rights
such as the right to confrontation,21 to a jury trial,22
and to a speedy trial,23 and the right to be free from
National, Equipment Rental, Ltd. v. Szukhent, 375 U. S. 311 (valid
waiver of procedural due process found over ob,iection of no compliance
with Johnson). See also Employees v. Missouri Publir
Health Dept., 411 U.S. 279,296 (MARSHALL, .J., concurring in result).
18 One apparent exception was Marchetti v. United States, 390
U. S. 39, 51-52, where we found no meaningful waiver of the privilege
against compulsory self-incrimination when a gambler was forced
to pay a wngC'ring tax. ,.ve reasoned that there could be no choice
when the gamh'er was faced with the alternative of giving up
gambling or providing incriminatory information. Analytically,
therefore, although the Court cited John~on, lliarchetti turned on
the lack of a "voluntary" waiver rather than the lack of any "knowing"
and ''intelligent" waiver.
19 See, e. g., Glruser v. United States, 315 U. S. 60; Adams v.
United States ex rel. McCann, 317 U. S. 269; Carnley v. Cochran,
369 lT. S. 506; cf. Chessman v. Teets, 354 U. S. 156 (no waiver of
counsel shown at settlement of state court rerord).
211 See, e. g., Von Moltke v. Gillies, 332 U. S. 708; Uveges v.
Pennsylvania, 335 U. S. 437; Moore v. Mfrhigan, 355 U. S. 155;
Boyd v. Dutton, 405 U. S. 1.
21 See, e. g., Brookhart v. Janis, 384 U.S. 1; Barber v. Page, 390 u. s. 719.
22 See, e. g., Adams v. United States ex rel. McCann, supra.
23 See, e. g., Barker v. Wingo, 407 U. S. 514.
238 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
twice being placed in jeopardy.24 Guilty pleas have been
carefully scrutinized to determine whether the accused
knew and understood all the rights to which he would
be entitled at trial, and that he had intentionally chosen
to forgo them. 25 And the Court has evaluated the
knowing and intelligent nature of the waiver of trial
rights in trial-type situations, such as the waiver of the
privilege against compulsory self-incrimination before
an administrative agency 26 or a congressional committee,
21 or the waiver of counsel in a juvenile proceeding.28
The guarantees afforded a criminal defendant at trial
also protect him at certain stages before the actual trial,
and any alleged waiver must meet the strict standard of
an intentional relinquishment of a "known" right. But
the "trial" guarantees that have been applied to the "pre-
24 See, e. g., Green v. United States, 355 U. S. 184.
25 See, e. g., McCarthy v. United States, 394 U. S. 459; Boykin
v. Alabama, 395 U. S. 238.
Our cases concerning the validity of guilty pleas underscore the
fact that the question whether a person has acted "voluntarily" is
quite distinct from the question whether he has "waived" a trial
right. The former question, as we made clear in Brady v. United
States, 397 U. S., at 749, can be answered only by examining all
the relevant circumstances to determine if he has been coerced. The
latter question turns on the extent of his knowledge. We drew the
same distinction in McMann v. Richardson, 397 U. S. 759, 766:
"A conviction after a plea of guilty normally rests on the defendant's
own admission in open court that he committed the acts
with which he is charged. . . That admission may not be compelled,
and since the plea is also a waiver of trial-and unless the
applicable law otherwise provides, a waiver of the right to contest
the admissibility of any evidence the State might have offered against
tho defendant-it must be an intelligent act 'done with sufficient
awareness of the relevant circumstances and likely consequences.'"
(Footnote omitted.)
26 See, e. g., Smith v. United States, 337 U. S. 137.
27 See, e. g., Emspak v. United States, 349 U. S. 190.
28 See In re Gault, 387 U. S. 1, 42.
SCHNECKLOTH v. BUSTAMONTE 239
218 Opinion of the Court
trial" stage of the criminal process are similarly designed
to protect the fairness of the trial itself.
Hence, in United States v. Wade, 388 U. S. 218, and
Gilbert v. California, 388 U. S. 263, the Court held "that
a post-indictment pretrial lineup at which the accused is
exhibited to identifying witnesses is a critical stage of
the criminal prosecution; that police conduct of such a
lineup without notice to and in the absence of his counsel
denies the accused his Sixth [and Fourteenth] Amendment
right to counsel .... " Id., at 272. Accordingly,
the Court indicated that the standard of a knowing and
intelligent waiver must be applied to test the waiver of
counsel at such a lineup. See United States v. lVade,
supra, at 237. The Court stressed the necessary interrelationship
between the presence of counsel at a postindictment
lineup before trial and the protection of the
trial process itself:
"Insofar as the accused's conviction may rest on
a courtroom identification in fact the fruit of a suspect
pretrial identification which the accused is helpless
to subject to effective scrutiny at trial. the accused
is deprived of that right of cross-examination
which is an essential safeguard to his right to confront
the witnesses against him. Pointer v. Texa,s,
380 U. S. 400. And even though cross-examination
is a precious safeguard to a fair trial, it cannot be
viewed as an absolute assurance of accuracy and
reliability. Thus in the present context, where so
many variables and pitfalls exist, the first line of
defense must be the prevention of unfairness and
the lessening of the hazards of eyewitness identification
at the lineup itself. The trial which might
determine the accused's fate may well not be that
in the courtroom but that at the pretrial confrontation,
with the State aligned against the accused, the
240 OCTOBER TERYI, 1972
Opinion of the Court 412 U.S.
witness the sole jury, and the accused unprotected
against the overreaching, intentional or unintentional,
and with little or no effective appeal from
the judgment there rendered by the witness-'that's
the man.'" Id., at 235-236.
And in Miranda v. Arizona, 384 U. S. 436, the Court
found that custodial interrogation by the police ,vas inherently
coercive, and consequently held that detailed
warnings were required to protect the privilege against
compulsory self-incrimination. The Court made it clear
that the basis for decision was the need to protect the
fairness of the trial itself:
"That counsel is present when statements are
taken from an individual during interrogation obviously
enhances the integrity of the fact-finding
processes in court. The presence of an attorney, and
the warnings delivered to the individual, enable the
defendant under otherwise compelling circumstances
to tell his story without fear, effectively, and
in a way that eliminates the evils in the interrogation
process. Without the protections flowing from
adequate warnings and the rights of counsel, 'all
the careful safeguards erected around the giving of
testimony, whether by an accused or any other witness,
would become empty formalities in a procedure
where the most compelling possible evidence of guilt,
a confession, would have already been obtained at
the unsupervised pleasure of the police.' " Id., at
466.
The standards of Johnson were, therefore, found to be
a necessary prerequisite to a finding of a valid waiver.
See 384 U. S., at 475-479. Cf. Escobedo v. Illinois, 378
V. S., at 490 n. 14.29
29 As we have alrrady noted, supra, at 232, Miranda itself involved
interrogation of a suspect detained in custody and did not
SCHNECKLOTH v. BUSTAMONTE 241
218 Opinion of the Court
There is a vast difference betv.:een those rights that
protect a fair criminal trial and the rights guaranteed
under the Fourth Amendment. Nothing, either in the
purposes behind requiring a "knowing" and "intelligent"
waiver of trial rights, or in the practical application of
such a requirement suggests that it ought to be extended
to the constitutional guarantee against unreasonable
searches and seizures.
A strict standard of waiver has been applied to those
rights guaranteed to a criminal defendant to insure that
he will be accorded the greatest possible opportunity to
utilize every facet of the constitutional model of a fair
criminal trial. Any trial conducted in derogation of
that model leaves open the possibility that the trial
reached an unfair result precisely because all the protections
specified in the Constitution were not provided.
A prime example is the right to counsel. For without
that right, a wholly innocent accuse<l faces the
real and substantial danger that simply because of his
lack of legal expertise he may be convicted. As Mr. Justice
Harlan once wrote: "The sound reason why [the
right to counsel] is so freely extended for a criminal trial
is the severe injustice risked by confronting an untrained
defendant with a range of technical points of law, evidence,
and tactics familiar to the prosecutor but not to
concern the investigatory procedures of the police in general on-thescenc
questioning. 384 U. S., at 477.
By the same token, the present case does not require a determination
of the proper standard to be applied in assessing the
validity of a search authorized solely b~- an alleged ron~ent that is
obtained from a prrson after he has beC'n placed in rustody. We do
notP, however, that other rourts have been particularly srnsili\·e to
the hrightened possibilities for roercion when thr "con,ent" to a
search was given by a person in custody. See, e. g., Judd v. L'nited
States, 89 U. S. App. D. C. 64, 66, 190 F. 2d 649, 651; Channel v.
United States, 285 F. 2d 217; Villano v. United States, 310 F. 2d
680, 684; United States v. Marre.w>, 336 F. 2d 501.
242 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
himself." Miranda v. Arizona, supra, at 514 ( dissenting
opinion). The Constitution requires that every effort
be made to see to it that a defendant in a criminal case
has not unknowingly relinquished the basic protections
that the Framers thought indispensable to a fair trial.30
The protections of the Fourth Amendment are of a
wholly different order, and have nothing whatever to do
with promoting the fair ascertainment of truth at a
criminal trial. Rather, as Mr. Justice Frankfurter's
opinion for the Court put it in Wolf v. Colorado, 338
U. S. 25, 27, the Fourth Amendment protects the "security
of one's privacy against arbitrary intrusion by the
police . . . ." In declining to apply the exclusionary
rule of Mapp v. Ohio, 367 U. S. 643, to convictions that
had become final before rendition of that decision, the
Court emphasized that "there is no likelihood of unreliability
or coercion present in a search-and-seizure
case," Linkletter v. Walker, 381 U.S. 618, 638. In Linkletter,
the Court indicated that those cases that had been
given retroactive effect went to "the fairness of the
trial-the very integrity of the fact-finding process.
Here ... the fairness of the trial is not under attack."
Id., at 639. The Fourth Amendment "is not an adjunct
to the ascertainment of truth." The guarantees of the
Fourth Amendment stand "as a protection of quite different
constitutional values-values reflecting the . concern
of our society for the right of each individual to be
let alone. To recognize this is no more than to accord
those values undiluted respect." Tehan v. United States
ex rel. Shott, 382 U. S. 406, 416.
Nor can it even be said that a search, as opposed to
an eventual trial, is somehow "unfair" if a person consents
to a search. While the Fourth and Fourteenth
30 "[In] the uniformly structured situation of the defendant whose
case is formally called for plea or trial, where, with everything to
be gained by the presence of counsel and no interest. deserving conSCHKECKLOTH
v. BUSTAMONTE 243
218 Opinion of the Court
Amendments limit the circumstances under which the
police can conduct a search, there is nothing constitutionally
suspect in a person's voluntarily allowing a search.
The actual conduct of the search may be precisely the
same as if the police had obtained a warrant. And,
unlike those constitutional guarantees that protect a
defendant at trial, it cannot be said every reasonable
presumption ought to be indulged against voluntary
relinquishment. We have only recently stated: "[I] t
is no part of the policy underlying the Fourth and Fourteenth
Amendments to discourage citizens from aiding
to the utmost of their ability in the apprehension of
criminals." Coolidge v. New Hampshire, 403 U. S., at
488. Rather, the community has a real interest in encouraging
consent, for the resulting search may yield necessary
evidence for the solution and prosecution of crime,
evidence that may insure that a wholly innocent person is
not wrongly charged with a criminal offense.
Those cases that have dealt with the application of
the Johnson v. Zerbst rule make clear that it would be
next to impossible to apply to a consent search the standard
of "an intentional relinquishment or abandonment of
a known right or privilege." .n To be true to Johnson
sideration to be lost, an inflexible rule serves well." Friendly, The
Bill of Rights as a Code of Criminal Procedure, 53 Calif. L. Rev.
929, 950.
31 While we have occasionally referred to a consent search as a
"waiver," we have never used that term to mean "an intentional
relinquishment or abandonml'nt of a known right or privilege."
Hence, for example, in Johnson v. United States, 333 U. S. 10, this
Court found the consent to be ineffective: "Entry to defendant's living
quarter~, which was the beginning of the search, was demanded
under color of office. It was granted in submission to authority
rather than as an understanding and intentional waiver of a constitutional
right." Id., at 13. While the Court spoke in terms of
"waiver" it arrived at the conclusion that there had been no "waiver"
from an analysis of the totality of the objective circumstances-not
from the absence of any express indication of Johnson's knowledge
244 OCTOBER TER.\I, 1972
Opinion of the Court 412 U.S.
and its progeny, there must be examination into the
knowing and understanding nature of the waiver, an
examination that was designed for a trial judge in the
structured atmosphere of a courtroom. As the Court
expressed it in Johnson:
"The constitutional right of an accused to be represented
by counsel invokes, of itself, the protection of
a trial court, in which the accused-whose life or
liberty is at stake-is without counsel. This protecting
duty imposes the serious and weighty responsibility
upon the trial judge of determining
whether there is an intelligent and competent waiver
by the accused. While an accused may waive the
right to counsel, whether there is a proper waiver
should be clearly determined by the trial court, and
it would be fitting and appropriate for that determination
to appear upon the record." 304 U. S.,
at 465.32
of a right to refuse or the lark of explicit warnings. Sec also Amos
v. United States, 255 U. S. 313.
32 The Court was even more explicit in Von Moltke v. Gillies,
332 U.S., at 723-724:
"To discharge this duty [ of assuring the intelligent nature of the
waiver] properly in light of the strong presumption against waiver
of the constitutional right to counsel, a judge must investigate as
long and as thoroughly as the circumstances of the case before him
demand. The fact that. an accused may tell him that he is informed
of his right to counsel and desires to waive this right does
not automatically end the judge's responsibility. To be valid such
waiver must be made with an apprehension of the nature of the
charges, the statutory offenses included within them, the range of
allowable punishments thereunder, possible defenses to the charges
and circumstances in mitigation thereof, and all other facts essential
to a broad understanding of the whole matter. A judge can mnkP
certain that an accused's professed waiver of counsel is understandingly
and wisely made only from a penetrating and comprehensive
examination of all the circumstances under which such a plea is
tendered."
SCHNECKLOTH v. BUSTAMONTE 245
218 Opinion of the Court
It would be unrealistic to expect that in the informal,
unstructured context of a consent search, a policeman,
upon pain of tainting the evidence obtained, could make
the detailed type of examination demanded by Johnson.
And, if for this reason a diluted form of "waiver"
were found acceptable, that would itself be ample recognition
of the fact tha.t there is no universal standard
that must be applied in every situation where a person
forgoes a constitutional right.33
Similarly, a "waiver" approach to consent searches
would be thoroughly inconsistent with our decisions that
have approved "third party consents." In Coolidge v.
1Vew Hampshire, 403 U.S., at 487-490, where a wife surrendered
to the police guns and clothing belonging to
her husband, we found nothing constitutionally impermissible
in the admission of that evidence at trial since
the wife had not been coerced. Frazier v. Cupp, 394
U. S. 731, 740, held that evidence seized from the defendant's
duffel bag in a search authorized by his cousin's
consent was admissible at trial. We found that the
defendant had assumed the risk that his cousin, with
whom he shared the bag, would allow the police to search
it. See also Abel v. United States, 362 U. S. 217. And
33 It seems rlear that even a limited view of the demands of "an
intentional relinquishment or abandonment. of a known right or
privilege" standard would inevitably lead to a requirement of detailed
warnings before any c:onsent search-a requirement all but
universally rejected to date. See nn. 13 and 14, supra. As the Court
stated in Miranda with respect to the privilege against compulsory
self-incrimination: "[\VJ(' will not pause to inquire in individual
cases whether the defendant was aware of his rights without a warning
being given. Assessments of the knowledge the defendant possessed,
based on information as to his age, education, intelligence,
or prior contact with authoritirs, can never br more than speculation;
a warning is a clearcut fact." Aiiranda v. Arizona, 384 U.S.,
at 468-469 (footnote omitted). See United States v. Moderarki,
280 F. Supp. 633; United States v. Blalock, 255 F. Supp. 268.
246 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
in Hill v. California, 401 U. S. 797, 802-805, we held
that the police had validly seized evidence from the
petitioner's apartment incident to the arrest of a third
party, since the police had probable cause to arrest the
petitioner and reasonably, though mistakenly, believed
the man they had arrested was he. Yet it is inconceivable
that the Constitution could countenance the waiver
of a defendant's right to counsel by a third party, or
that a waiver could be found because a trial judge reasonably,
though mistakenly, believed a defendant had
waived his right to plead not guilty.34
In short, there is nothing in the purposes or application
of the waiver requirements of Johnson v. Zerbst
that justifies, much less compels, the easy equation of
a knowing waiver with a consent search. To make such
an equation is to generalize from the broad rhetoric of
some of our decisions, and to ignore the substance of the
differing constitutional guarantees. We decline to follow
what one judicial scholar has termed "the domino method
of constitutional adjudication . . . wherein every explanatory
statement in a previous opinion is made the
basis for extension to a wholly different situation." 35
D
Much of what has already been said disposes of the
argument that the Court's decision in the Miranda case
requires the conclusion that knowledge of a right to
refuse is an indispensable element of a valid consent.
The considerations that informed the Court's holding in
Miranda are simply inapplicable in the present case.
34 Our decision today is, of course, concerned with what constitutes
a valid consent, not who can con~cnt. But, the constitutional
validity of third-party consents drmonstra.tes the fundamentally
different nature of a consent search from the waiver of a
trial right.
35 Friendly, supra, n. 30, at 950.
SCHNECKLOTH v. l3USTAMONTE 247
218 Opinion of the Court
In Miranda the Court found that the techniques of
police questioning and the nature of custodial surroundings
produce an inherently coercive situation. The
Court concluded that " [ u] nless adequate protective devices
are employed to dispel the compulsion inherent in
custodial surroundings, no statement obtained from the
defendant can truly be the product of his free choice."
384 U. S., at 458. And at another point the Court noted
that "without proper safeguards the process of in-custody
interrogation of persons suspected or accused of crime
contains inherently compe1ling pressures which work to
undermine the individual's will to resist and to compel
him to speak where he would not otherwise do so freely."
Id., at 467.
In this case, there is no evidence of any inherently
coercive tactics-either from the nature of the police
questioning or the environment in which it took place.
Indeed, since consent searches will normally occur on a
person's O\vn familiar territory, the specter of incommunicado
police interrogation in some remote station
house is simply inapposite.36 There is no reason to
believe, under circumstances such as are present here,
that the response to a policeman's question is presumptively
coerced; and there is, therefore, no reason to reject
the traditional test for determining the voluntariness
of a person's response. Miranda, of course, did not reach
investigative questioning of a person not in custody,
which is most directly analogous to the situation of a
consent search, and it assuredly did not indicate that
such questioning ought to be deemed inherently coercive.
See supra, at 232.
It is also argued that the failure to require the Government
to establish knowledge as a prerequisite to a valid
36 As noted above, supra, n. 29, the present case does not require
a determination of what efff'ct custodial conditions might havf' on
a search authorized solely by an alleged consent.
248 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
consent, will relegate the Fourth Amendment to the special
province of "the sophisticated, the knowledgeable
and the privileged." We cannot agree. The traditional
definition of voluntariness we accept today has always
taken into account evidence of minimal schooling, low
intelligence, and the lack of any effective warnings to
a person of his rights; and the voluntariness of any statement
taken under those conditions has been carefully
scrutinized to determine whether it was in fact voluntarily
given.31
E
Our decision today is a narrow one. We hold only
that when the subject of a search is not in custody and
the State attempts to justify a search on the basis of
his consent, the Fourth and Fourteenth Amendments
require that it demonstrate that the consent was in fact
voluntarily given, and not the result of duress or coercion,
express or implied. Voluntariness is a question of fact
37 See, e. g., Clewis v. Texas, 386 U. S. 707; Culombe v. Connecticut,
367 U. 8. 568; Reck v. Pate, 367 U. 8. 433; Payne v.
Arkansas, 356 U. S. 560; Fikes v. Alabama, 352 U.S. 191; Harris
v. South Carolirw, 338 U. 8. 68; Haley v. Ohio, 332 U. 8. 596.
l\fR. JusTICE WHITE once answered a similar argument:
"The Court may be concerned with a narrower matter: the unknowing
defendant who responds to police questioning because he
mistakenly believes that he must and that his admissions will not
be used against him. . . . The failure to inform an accused that
he need not answer and that his answers may be used against him
is very relevant indeed to whether the disclosures are compelled.
Cases in this Court, to say the least, have never placed a premi11m
on ignorance of constitutional rights. If an accused is told he must
answer and does not know better, it would be very doubtful that
the resulting admissions could be used against him. When the accused
has not been informed of his rights at all the Court characteristically
and properly looks very closely at the surrounding circumstances."
Escobedo v. Illinois, 378 U. S. 478, 499 (WHITE, J.,
dissenting) .
SCHNECKLOTH v. BUSTAMONTE 249
218 BLACKMUN, J., concurring
to be determined from all the circumstances, and while
the subject's knowledge of a right to refuse is a factor
to be taken into account, the prosecution is not required
to demonstrate such knowledge as a prerequisite to establishing
a voluntary consent.38 Because the California
court followed these principles in affirming the respondent's
conviction, and because the Court of Appeals for the
Ninth Circuit in remanding for an evidentiary hearing
required more, its judgment must be reversed.
It is so ordered.
MR. JusTICE BLACKMUN, concurring.
I join the Court's opinion and its judgment.
At the time Kaufman v. United States, 394 U. S. 217
( 1969), was decided, I, as a member of the Court of
Appeals (but not of its panel) whose order was there
reversed, found myself in agreement with the vie,vs expressed
by Mr. Justice Harlan, writing for himself and
my Brother STEWART in dissent. Id., at 242. My
attitude has not changed in the four years that have
passed since Kaufman was decided.
Although I agree with nearly all that MR. JusTICE
POWELL has to say in his detailed and persuasive concurring
opinion, post, p. 250, I refrain from joining it
at this time because, as MR. JusTICE STEWART'S opinion
reveals, it is not necessary to reconsider Kaufman in
order to decide the present case.
38 The State abo urges us to hold that a violation of the exclusionnry
rule may not be raised by a state or federal prisoner in a
collateral attark on his conviction, and thus asks us to overturn
our contrary holding~ in Kaufman v. United States, 394 U. S. 217;
Whiteley v. Warden. 401 U .S. 560; llarris v. Nelson, 394 U .S. 286;
and Mancusi v. DeForte, 392 U. S. 364. Since we have found no
valid Fourth and Fourteenth Amendment claim in this case, we
do not consider that question.
250 OCTOBER TERM, 1972
PowELL, J., concurring 412 u. s.
MR. JusTICE PowELL, with whom THE CHIEF JusTICE
and MR. JusTICE REHNQUIST join, concurring.
While I join the opinion of the Court, it does not address
what seems to me the overriding issue briefed and
argued in this case: the extent to which federal habeas
corpus should be available to a state prisoner seeking to
exclude evidence from an allegedly unlawful search and
seizure. I would hold that federal collateral review of a
state prisoner's Fourth Amendment claims-claims which
rarely bear on innocence-should be confined solely to
the question of whether the petitioner was provided a
fair opportunity to raise and have adjudicated the question
in state courts. In view of the importance of this
issue to our system of criminal justice, I think it appropriate
to express my views.
I
Although petitions for federal habeas corpus assert a
wide variety of constitutional questions, we are concerned
in this case only with a Fourth Amendment
claim that an unlawful search occurred and that
the state court erred in failing to exclude the evidence
obtained therefrom. A divided court in Kaufman
v. United States, 394 U. S. 217 (1969), held that
collateral review of search-and-seizure claims was appropriate
on motions filed by federal prisoners under 28
U. S. C. § 2255. Until Kaufman, a substantial majority
of the federal courts of appeals had considered that claims
of unlawful search and seizure "'are not proper matters
to be presented by a motion to vacate sentence under
§ 2255 .... '" Id., at 220. The rationale of this view
was fairly summarized by the Court:
"The denial of Fourth Amendment protection
against unreasonable searches and seizures, the Gov218
SCHNECKLOTH v. BUSTAMONTE 251
PowELL, .T., concurring
ernment's argument runs, is of a different nature from
denials of other constitutional rights which we have
held subject to collateral attack by federal prisoners.
For unlike a claim of denial of effective counsel or of
violation of the privilege against self incrimination,
as examples, a claim of illegal search and seizure does
not impugn the integrity of the fact-finding process or
challenge evidence as inherently unreliable; rather,
the exclusion of illegally seized evidence is simply a
prophylactic device intended generally to deter
Fourth Amendment violations by law enforcement
officers." Id., at 224.
In rejecting this rationale, the Court noted that under
prior decisions "the federal habeas remedy extends to
state prisoners alleging that unconstitutionally obtained
evidence ,vas admitted against them at trial," 1 and concluded
that there was no basis for restricting "access by
federal prisoners with illegal search-and-seizure claims
to federal collateral remedies, while placing no similar
restriction on access by state prisoners." Id., at 225-
226. In short, on petition for habeas corpus or collateral
review filed in a federal district court, whether by
state prisoners under 28 U. S. C. § 2254 or federal prisoners
under § 2255, the present rule is that Fourth Amendment
claims may be asserted and the exclusionary rule
must be applied in precisely the same manner as on direct
review. Neither the history or purpose of habeas corpus,
the desired prophylactic utility of the exclusionary rule as
applied to Fourth Amendment claims, nor any sound
reason relevant to the administration of criminal justice
in our federal system justifies such a power.
l Cases cited as examples included Mancusi v. DeForte, 392 U. S.
364 (1968); Carafas v. LaVal,lee. 391 U. S. 234 (1968); Warden v.
Hayden, 387 U. S. 294 (1967).
252 OCTOBER TER~i, 1972
PowELL, J., concurring 412 U. S
II
The federal review involved in this Fourth Amendment
case goes well beyond the traditional purpose of
the writ of habeas corpus. Much of the present perception
of habeas corpus stems from a revisionist view
of the historic function that writ was meant to perform.
The critical historical argument has focused on the nature
of the writ at the time of its incorporation in our Constitution
and at the time of the Habeas Corpus Act of
1867, the direct ancestor of contemporary habeas corpus
statutes.' In Fay v. Now, 372 U.S. 391,426 (1963), the
Court interpreted the writ's historic position as follows:
"At the time the privilege of the writ was written
into the Federal Constitution it was settled that
the writ lay to test any restraint contrary to fundamental
law, which in England stemmed ultimately
from Magna Charta but in this country was embodied
in the written Constitution. Congress in
1867 sought to provide a federal forum for state
prisoners having constitutional defenses by extending
the habeas corpus powers of the federal courts
to their constitutional maximum. Obedient to this
purpose, we have consistently held that federal court
2 The Act of Feb. 5, 1867, c. 28, § 1, 14 Stat. 385, provided that
"the several courts of the United States ... within their respective
jurisdictions, in addition to the authority already conferred by law,
shall have power to grant writs of habeas corpus in all cases where
any person may be restrained of his or her liberty in violation of
the constitution, or of any trraty or lrtw of the United States .... "
Federal habeas review for those in state custody is now authorized
by 28 U. S. C. § 2254 (a):
"The Supreme Court, a Justice thereof, a circuit judge, or a district
court shall entertain an application for a writ of habeas corpus in
behalf of a person in custody pursuant to the judgment of a State
court only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States."
218
SCHNECKLOTH v. BUSTAMONTE 253
PowELL, J., concurring
jurisdiction is conferred by the allegation of an unconstitutional
restraint and is not defeated by anything
that may occur in the state court proceedings."
If this were a correct interpretation of the relevant
history, the present wide scope accorded the writ would
have arguable support, despite the impressive reasons to
the contrary. But recent scholarship has cast grave doubt
on Fay's version of the writ's historic function.
It has been established that both the Framers of the
Constitution and the authors of the 1867 Act expected
that the scope of habeas corpus would be determined with
reference to the writ's historic, common-law development.
3 Mr. Chief Justice Marshall early referred to the
common-law conception of the writ in determining its
constitutional and statutory scope, Ex parte Bollman,
4 Cranch 75, 93-94 (1807); Ex parte Watkins, 3 Pet.
193, 201-202 ( 1830), and Professor Oaks has noted that
"when the 1867 Congress provided that persons restrained
of their liberty in violation of the Constitution could obtain
a writ of habeas corpus from a federal court, it undoubtedly
intended-except to the extent the legislation
provided otherwise-to incorporate the common-law uses
and functions of this remedy." •
It thus becomes important to understand exactly what
was the common-law scope of the writ both when embraced
by our Constitution and incorporated into the
Habeas Corpus Act of 1867. Two respected scholars have
recently explored precisely these questions.5 Their efforts
3 Bator, Finality in Criminal Law and Federal Habeas Corpus for
State Prisoners, 76 Harv. L. Rev. 441, 466 (1963); Oaks, Legal
History in the High Court- Habeas Corpus, 64 Mich. L. Rev. 451,
451-456 (1966).
• Oaks, supra, n. 3, at 452.
5 Professor Paul M. Bator of Harvard Law School and Professor
Dallin H. Oaks formerly of the University of Chicago School of
Law. Citations to the relevant articles are in n. 3, supra.
254 OCTOBER TERM, 1972
PowELL, .J., concurring 412 1T. s.
have been both meticulous and revealing. Their conclusions
differ significantly from those of the Court in
Fay v. Noia, that habeas corpus traditionally has been
available "to remedy any kind of governmental restraint
contrary to fundamental law." 372 U. S., at 405.
The considerable evidence marshaled by these scholars
need not be restated here. Professor Oaks makes a convincing
case that under the common law of habeas corpus
at the time of the adoption of the Constitution, "once a
person had been convicted by a superior court of general
jurisdiction, a court disposing of a habeas corpus petition
could not go behind the conviction for any purpose other
than to verify the formal jurisdiction of the committing
court."" Certainly that was what Mr. Chief Justice
Marshall understood when he stated:
"This writ [habeas corpus] is, as has been said, in
the nature of a writ of error which brings up the
body of the prisoner with the cause of commitment.
The court can undoubtedly inquire into the sufficiency
of that cause; but if it be the judgment of a
court of competent jurisdiction, especially a judgment
withdrawn by law from the revision of this
court, is not that judgment in itself sufficient cause?
Can the court, upon this writ, look beyond the judgment,
and re-examine the charges on which it was
rendered. A judgment, in its nature, concludes the
subject on which it is rendered, and pronounces
the law of the case. The judgment of a court of
record whose jurisdiction is final, is as conclusive on
all the world as the judgment of this court would be.
It is as conclusive on this court as it is on other
courts. It puts an end to inquiry concerning the
fact, by deciding it." Ex parte Watkins, 3 Pet., at
202-203.
6 Oaks, supra, n. 3, at 468.
SCHNECKLOTH v. BUSTAMONTE 255
218 POWELL, J., concurring
The respect shown under common law for the finality
of the judgment of a committing court at the time of
the Constitution and in the early 19th century did not,
of course, explicitly contemplate the operation of habeas
corpus in the context of federal-state relations. Federal
habeas revie,0v for state prisoners was not available until
passage of the Habeas Corpus Act of 1867. Yet there
is no evidence that Congress intended that Act to jettison
the respect theretofore shown by a reviewing court for
prior judgments by a court of proper jurisdiction. The
Act "received only the most perfunctory attention and
consideration in the Congress; indeed, there were complaints
that its effects could not be understood at all." 7
In fact, as Professor Bator notes, it would require overwhelming
evidence, which simply is not present, to conclude
that the 1867 Congress intended "to tear habeas
corpus entirely out of the context of its historical meaning
and scope and convert it into an ordinary writ of error
with respect to all federal questions in all criminal
cases." 8 Rather. the House Judiciary Committee when
it reviewed the Act in 1884 understood that it was not
"contemplated by its framers or ... properly ... construed
to authorize the overthrow of the final judgments
of the State courts of general jurisdiction, by the inferior
Federal judges .... " 0
Much, of course, has transpired since that first Habeas
Corpus Act. See Fay v. Noia, 372 U.S., at 449-463 (Harlan,
J., dissenting). The scope of federal habeas corpus
for state prisoners has evolved from a quite limited inquiry
into whether the committing state court had jurisdiction,
Andrews v. Swartz, 156 U. S. 272 (1895); In re
'Bator, 8Upra, n. 3, at 475-476.
8 ld., at 475.
9 H. R. Rep. No. 730, 48th Cong., 1st Sess., 5 (1884), quoted in
Bator, supra, n. 3, at 477.
256 OCTOBER TERM, 1972
POWELL, J., concurring 412 U.S.
Moran, 203 U. S. 96 (1906), to whether the applicant
had been given an adequate opportunity in state court
to raise his constitutional claims, Frank v. Mangum, 237
U. S. 309 ( 19-15,) ; and finally to actual redetermination
in federal court of state court rulings on a wide variety
of constitutional contentions, Brown v. Allen, 344 U. S.
443 (1953). No one would now suggest that this
Court be imprisoned by every particular of habeas corpus
as it existed in the late 18th and 19th centuries. But recognition
of that reality does not liberate us from all historical
restraint. The historical evidence demonstrates
that the purposes of the writ, at the time of the adoption
of the Constitution, were tempered by a due regard for
the finality of the judgment of the committing court.
This regard was maintained substantially intact when
Congress, in the Habeas Corpus Act of 1867, first extended
federal habeas review to the delicate interrelations of our
dual court systems.
III
Recent decisions, however, have tended to depreciate
the importance of the finality of prior judgments in
criminal cases. Kaufman, 394 U. S., at 228; Sanders v.
United States, 373 U. S. 1, 8 (1963); Fay, supra, at 424.
This trend may be a justifiable evolution of the use of
habeas corpus where the one in state custody raises a
constitutional claim bearing on his innocence. But the
justification for disregarding the historic scope and function
of the writ is measurably less apparent in the typical
Fourth Amendment claim asserted on collateral attack.
In this latter case, a convicted defendant is most often
asking society to redetermine a matter with no bearing at
all on the basic justice of his incarceration.
Habeas corpus indeed should provide the added assurance
for a free society that no innocent man suffers an unconstitutional
loss of liberty. The Court in Fay described
SCHNECKLOTH v. BUSTAMONTE 257
218 PowELL, J., concurring
habeas corpus as a remedy for "whatever society deems to
be intolerable restraints," and recognized that those to
whom the writ should be granted "are persons whom society
has grievously wronged and for whom belated liberation
is little enough compensation." Id., at 401-402,
441. The Court there acknowledged that the central reason
for the writ lay in remedying injustice to the individual.
Recent commentators have recognized the same
core concept, one noting that "where personal liberty is
involved, a democratic society ... insists that it is less
important to reach an unshakable decision than to do justice
( emphasis added)." 10 and another extolling the use
of the writ in Leyra v. Denno, 347 U.S. 556 (1954), with
the assertion that "[b] ut for federal habeas corpus, these
two men would have gone to their deaths for crimes of
which they were found not guilty." 11
I am aware that history reveals no exact tie of the
writ of habeas corpus to a constitutional claim relating
to innocence or guilt. Traditionally, the writ was unavailable
even for many constitutional pleas grounded on
a claimant's innocence, while many contemporary proponents
of expanded employment of the writ would permit
its issuance for one whose deserved confinement was
never in doubt. We are now faced, however, with the
task of accommodating the historic respect for the
finality of the judgment of a committing court with
recent Court expansions of the role of the writ. This
accommodation can best be achieved, with due regard to
all of the values implicated, by recourse to the central
reason for habeas corpus: the affording of means,
10 Pollak, Proposals to Curtail Federal Habeas Corpus for State
Prisoners: Collateral Attack on the Great Writ, 66 Yale L. J. 50, 65
( 1956).
11 Reitz, Federal Habeas Corpus: Post conviction Remedy for State
Prisoners, 108 U. Pa. L. Rev. 461, 497 (1960).
258 OCTOBER TERM, 1972
POWELL, J., concurring 412 u. s.
through an extraordinary writ, of redressing an unjust
incarceration.
Federal habeas review of search and seizure claims is
rarely relevant to this reason. Prisoners raising Fourth
Amendment claims collaterally usually are quite justly
detained. The evidence obtained from searches and
seizures is of ten "the clearest proof of guilt" with a very
high content of reliahility.12 Rarely is there any contention
that the search rendered the evidence unreliable or
that its means cast doubt upon the prisoner's guilt. The
words of Mr. Justice Black drive home the point:
"A claim of illegal search and seizure under the
Fourth Amendment is crucially different from many
other constitutional rights; ordinarily the evidence
seized can in no way have been rendered untrustworthy
by the means of its seizure and indeed often
this evidence alone establishes beyond virtually any
shadow of a doubt that the defendant is guilty."
Kaufman v. United States, 394 U. S., at 237 ( 1969)
(dissenting opinion).
Habeas corpus review of search and seizure claims thus
brings a deficiency of our system of criminal justice into
sharp focus: a convicted defendant asserting no constitutional
claim bearing on innocence and relying solely
on an alleged unlawful search, is now entitled to federal
habeas review of state conviction and the likelihood of
release if the reviewing court concludes that the search
was unlawful. That federal courts would actually redetermine
constitutional claims bearing no relation to the
prisoner's innocence with the possibility of releasing him
from custody if the search is held unlawful not only
defeats our societal interest in a rational legal system
but serves no compensating ends of personal justice.
12 Friendly, Is Innocence Irrele\·ant? Collateral Attack on Criminal
Judgments, 38 U. Chi. L. Rev. 142, 160 (1970).
SCHNECKLOTH v. BUSTAMONTE 259
218 POWELL, J., concurring
IV
This unprecedented extension of habeas corpus far beyond
its historic bounds and in disregard of the writ's
central purpose is an anomaly in our system sought to be
justified only by extrinsic reasons which will be addressed
in Part V of this opinion. But first let us look
at the costs of this anomaly-costs in terms of serious
intrusions on other societal values. It is these other
values that have been subordinated-not to further justice
on behalf of arguably innocent persons but all too
often to serve mechanistic rules quite unrelated to justice
in a particular case. Nor are these neglected values
unimportant to justice in the broadest seme or to our
system of Government. They include (i) the most effective
utilization of limited judicial resources, (ii) the necessity
of finality in criminal trials, ( iii) the minimization
of friction between our federal and state systems of justice,
and (iv) the maintenance of the constitutional balance
upon ,vhich the doctrine of federalism is founded.
When raised on federal habeas, a claim generally has
been considered by two or more tiers of state courts. It
is the solemn duty of these courts, no less than federal
ones, to safeguard personal liberties and consider federal
claims in accord \vith federal law. The task which federal
courts are asked to perform on habeas is thus most
often one that has or should have been done before. The
presumption that "if a job can be well done once, it
should not be done twice" is sound and one calculated
to utilize best "the intellectual, moral, and political resources
involved in the legal system." 13
13 Bator, supra, n. 3, at 451.
The conventional justification~ for extending federal habPas corpus
to afford collateral review of state court judgments wen' summarized
in Kaufman v. United States, 394 U.S. 217, 225-226, as follows:
"rT]he necC'ssity that fednal courts havP the 'last say' with re260
OCTOBER TERl\-I, 1972
POWELL, ,J., concurring 412 U.S.
Those resources are limited but demand on them constantly
increases. There is an insistent call on federal
courts both in civil actions, many novel and complex,
which affect intimately the lives of great numbers of
people and in original criminal trials and appeals which
deserve our most careful attention.14 To the extent the
federal courts are required to re-examine claims on collatspect
to questions of federal law, the inadequacy of state procedures
to raise and prcservP federal claims, the concern that state judges
may be unsympathetic to federally created rights, the institutional
constraints on the exercise of this Court's certiorari jurisdiction to
review state convictions .... "
Each of these justifications has merit in cntain situations, although
the assertf'd inadequacy of state procedures and unsympathetic
attitude of state judges are far less realistic grounds of concern
than in years past. The issue, fundamentally, is one of perspective
and a rational balancing. The appropriateness of federal collateral
review is evident in many instances. But it hardly follows that, in
order to promote the ends of individual justice which are the foremost
concerns of the writ, it is necessary to extend the scope of
habeas review indiscriminately. This is especially true with respect
to federal review of Fourth Amendment claims with the consequC'nt
denigration of other important societal values and interests.
"Briefly, civil filings in United States district courts increased
from 58,293 in 1961 to 96,173 in 1972. Total appeals commenced
in the United States courts of appeals advanced from 4,204 in
1961 to 14,535 in 1972. Petitions for federal habeas corpus filed by
state prisoners jumped from 1,020 in 1961 to 7,949 in 1972. Though
habeas petitions fikd by state prisoners did decline from 9,063 in
1970 to 7,949 in 1972, the overall increase from 1,000 at the start
of the last decade is formidable. Furthermore, civil rights prisoner
petitions under 42 U. S. C. § 198:-l increased from 1,072 to 3,34S in
the past five years. Some of these challenged the fact and duration
of confinement and sought release from prison and must now be
brought as actions for habeas coqms, I'reiser v. Rodriguez, 411 l:. S.
475 (1973). See 1972 Annual Report of the Director of the Aclministrative
Office of the United States Courts II- 5, II-22, II-28-32.
SCHNECKLOTH v. BUSTAMONTE 261
218 PowF.LL, J., concurring
eral attack,15 they deprive primary litigants of their
prompt availability and mature reflection. After all, the
resources of our system are finite: their overextension
jeopardizes the care and quality essential to fair
adjudication.
The present scope of federal habeas corpus also has
worked to defeat the interest of society in a rational point
of termination for criminal litigation. Professor Amsterdam
has identified some of the finality interests at
stake in collateral proceedings:
"They involve (a) duplication of judicial effort;
(b) delay in sett.ing the criminal proceeding at rest;
( c) inconvenience and possibly danger in transporting
a prisoner to the sentencing court for hearing ;
(d) postponed litigation of fact, hence litigation
which will often be less reliable in reproducing the
facts (i) respecting the postconviction claim itself,
and (ii) respecting the issue of guilt if the collateral
attack succeeds in a form which allows retrial. "
He concluded that:
"[I] n combination, these finality considerations
amount to a more or less persuasive argument
against the cognizability of any particular collateral
15 l'vfa. CHIEF JusTICF. BURGER has illustrated the absurd extent to
which relitigation is sometimes allowed:
"In some of these multiple trial and appeal cases [ on collateral
attack] the accused continued his warfare with society for eight,
nine, ten years and more. In one case ... more than fifty appellate
judges reviewed the case on appeals." Address before the Association
of the Bar of the City of New York, N. Y. L. J., Feb. 19, 1970,
p.l.
The English courts, "Jong admired for rt heir] fair treatment of
accused persons," have never so extended habeas corpus. Friendly,
supra, n. 12, at 145.
262 OCTOBER TERM, 1972
POWELL, .T., eoncurring 412 r. s.
claim, the strength of the argument depending upon
the nature of the claim, the manner of its treatment
( if any) in the conviction proceedings, and
the circumstances under which collateral litigation
must be had." 16
No effective judicial system can afford to concede the
continuing theoretical possibility that there is error in
every trial and that every incarceration is unfounded. At
some point the law must convey to those in custody that a
wrong has been committed, that consequent punishment
has been imposed, that one should no longer look back
with the view to resurrecting every imaginable basis for
further litigation but rather should look forward to rehabilitation
and to becoming a constructive citizen.11
~owhere should the merit of this view be more selfevident
than in collateral attack on an allegedly unlawful
search and seizure, where the petitioner often asks society
to redetermine a claim with no relationship at all to the
justness of his confinement. Professor Amsterdam has
noted that "for reasons which are common to all search
and seizure claims," he "would hold even a slight finality
interest sufficient to deny the collateral remedy." 18 But,
in fact, a strong finality interest militates against allow-
16 Amsterdam, Search, Seizure, and Section 2255: A CommPnt,
112 U. Pa. L. Rev. 378, 383-384 (1964). The article addresses the
problem of collateral relirf for federal prisoners, but its rationale
applies forcefully to fednal habeas for state prisoners as well.
17 Mr . .T ustice Harlan put it very well:
"Both the individual criminal defendant and society have an interest
in insuring that there will at some point be the certainty that comes
with an end to litigation, and that attention will ultimately be focused
not on whether a conviction was free from error but rather on
whether the prisoner can be restored to a usdul place in the community."
Sanders v. United States, 373 U. S. 1, 24-25 ( 1963)
(dissenting opinion).
18 Supra, n. 16, at 388.
SCHNECKLOTH v. BUSTAMONTE 263
218 PowELL, J., concurring
ing collateral review of search-and-seizure claims. Apart
from the duplication of resources inherent in most habeas
corpus proceedings, the validity of a search-and-seizure
claim frequently hinges on a complex matrix of events
which may be difficult indeed for the habeas court to
disinter especially where, as often happens, the trial occurred
years before the collateral attack and the state
record is thinly sketched.19
Finally, the present scope of habeas corpus tends to
undermine the values inherent in our federal system of
government. To the extent that every state criminal
judgment is to be subject indefinitely to broad and repetitive
federal oversight, we render the actions of state
courts a serious disrespect in derogation of the constitutional
balance between the two systems.20 The present
expansive scope of federal habeas review has prompted
no small friction between state and federal judiciaries.
Justice Paul C. Reardon of the Massachusetts Supreme
19 The latter occurs for various reasons, namely, failure of the
accused to raise the claim at trial, a determination by the state
courts that the claim did not merit a hearing, or a recent decision
of this Court extending rights of the accused (although, on Fourth
Amendmrnt claims, surh decisions have seldom been applied retroactively,
see, e. g., Linkletter v. Walker, 381 U. S. 618 (1965)).
20 The dispersion of power between State and Federal Governments
is constitutionally premised, as Mr . .Justice Harlan observed:
"[I]t would surely be shallow not to recognize that the structure
of our political system accounts no less for the free society we have.
Indeed, it was upon the structure of government that the founders
primarily forused in writing the Constitution. Out of bitter experience
they were suspicious of every form of all-powerful central authority
and they sought to assure that such a go,·ernmC'nt would
never exist in this country by structuring the federal establishment
so a.s to diffuse power between the executive, legislative, and judicial
branches. The diffusion of power between federal and state authority
serves the same ends and takes on added significanc-e as the siz(' of
the federal bureaucracy continues to grow." Thoughts at a Dedira264
OCTOBER TERM, 1972
PowELL, J., concurring 412 U.S.
Judicial Court and then President of the National Center
for State Courts, in identifying problems between the two
systems, noted bluntly that" [ t] he first, without question,
is the effect of Federal habeas corpus proceedings on State
courts." He spoke of the "humiliation of review from
the full bench of the highest State appellate court to a
single United States District Court judge." Such broad
federal habeas powers encourage in his view the "growing
denigration of the State courts and their functions in the
public mind." 21 In so speaking Justice Reardon echoed
the words of Professor Bator:
"I could imagine nothing more subversive of a judge's
sense of responsibility, of the inner subjective conscientiousness
which is so essential a part of the
difficult and subtle art of judging well, than an intion:
Keeping the .Judicial Function in Balame, 49 A. B. A. J. 943,
943-944 ( 1963) .
The .Justice recognized that problems of habeas corpus jurisdiction
were "of constitutional dimensions going to the heart of the
di\·ision of judicial powers in a federal syst<>m." Fay v. Noia, 372
U. S. 391, 464 (1963) (dissenting opinion). Nor have such perceptions
ever been the product. of but a single .Justice. As the Court
noted in a historic decision on the conflicting realms of state and
federal judicial power:
"[T]he Constitution of thr United States ... recognizes and preserves
the autonomy and independence of the States-indepf'ndencc
in their l<>gislative and independence in their judicial departments.
Supervision o\'er either the legislative or the judicial action of the
States is in no case permissible except as to matters by the Constitution
specifirall~· authorized or dekgated to the United States. Any
interference with either, except as thus permitted, is an invasion of
the authority of the State and, to that extent, a denial of its independence."
Erie R. Co. v. Tompkins, 304 U. 8. 64, 78-79 (1938),
quoting Mr. Justire Field in Baltimore & 0. R. Co. v. Baugh, 149
U. S. 368, 401 (1893).
21 Address at the annual dinner of the Section of Judicial Administration,
American Bar Assol'iation, San Franrisro, California,
Aug. 14, 1972, pp. 5, 9, and 10.
218
SCHNECKLOTH v. BUSTAMONTE 265
POWELL, J., concurring
discriminate acceptance of the notion that all the
shots will always be called by someone else." ,,
In my view, this Court has few more pressing responsibilities
than to restore the mutual respect and the
balanced sharing of responsibility between the state and
federal courts which our tradition and the Constitution
itself so wisely contemplate. This can be accomplished
without retreat from our inherited insistence that the
writ of habeas corpus retain its full vitality as a means
of redressing injustice.
This case involves only a relatively narrow aspect of
the appropriate reach of habeas corpus. The specific
issue before us, and the only one that need be decided
at this time, is the extent to which a state prisoner may
obtain federal habeas corpus review of a Fourth Amendment
claim. Whatever may be formulated as a more
comprehensive answer to the important broader issues
( whether by clarifying legislation or in subsequent decisions),
Mr. Justice Black has suggested what seems to
me to be the appropriate threshold requirement in a case
of this kind:
"I would always require that the convicted defendant
raise the kind of constitutional claim that
casts some shadow of a doubt on his guilt." Kaufman
v. United States, 394 U. S., at 242 (dissenting
opinion).
In a perceptive analysis, Judge Henry J. Friendly expressed
a similar view. He would draw the line against
habeas corpus review in the absence of a "colorable claim
of innocence":
'TW]ith a few important exceptions, convictions
should be subject to collateral attack only when
22 Bator, supra, n. 3, at 451.
266 OCTOBER TERM, 1972
POWELL, J., concurring 412 U.S.
the prisoner supplements his constitutional plea with
a colorable claim of innocence." 23
Where there is no constitutional claim bearing on innocence,
the inquiry of the federal court on habeas review of
a state prisoner's Fourth Amendment claim should be confined
solely to the question whether the def end ant was
provided a fair opportunity in the state courts to raise
and have adjudicated the Fourth Amendment claim.
Limiting the scope of habeas review in this manner would
reduce the role of the federal courts in determining the
merits of constitutional claims with no relation to a petitioner's
innocence and contribute to the restoration of
recently neglected values to their proper place in our
criminal justice system.
V
The importance of the values ref erred to above is not
questioned. What, then, is the reason which has
prompted this Court in recent decisions to extend habeas
corpus to Fourth Amendment claims largely in disregard
of its history as well as these values? In addressing
Mr. Justice Black's dissenting view that constitutional
claims raised collaterally should be relevant to the petitioner's
innocence, the majority in Kaufman noted:
"It [Mr. Justice Black's view] brings into question
the propriety of the exclusionary rule itself. The
application of that rule is not made to turn on the
23 Friendly, supra, n. 12, at 142. Judge FriendJy's thesis, as he
develops it, would encompass collateral attack broadly both within
the federal system and with respect to federal habeas for state prisoners.
Subject to the exceptions carefully delineated in his article,
Judge Friendly would apply the criterion of a "colorable showing of
innocence" to any collateral attack of a conviction, including claims
under the Fifth and Sixth as well as the Fourth Amendments. Id.,
at 151-157. In thi~ case we need not consider anything other than
the Fourth Amendment claims.
218
SCHNECKLOTH v. BUSTAMONTE 267
POWELL, J., concurring
existence of a possibility of innocence; rather, exclusion
of illegally obtained evidence is deemed necessary
to protect the right of all citizens, not merely
the citizen on trial, to be secure against unreasonable
searches and seizures." 394 U. S., at 229. (Emphasis
added.)
The exclusionary rule has occasioned much criticism,
largely on grounds that its application permits guilty defendants
to go free and law-breaking officers to go unpunished.
24 The oft-asserted reason for the rule is to
deter illegal searches and seizures by the police, Elkins v.
United States, 364 U.S. 206, 217 (1960); Mapp v. Ohio,
367 U.S. 643,656 (1961); Linkletter v. Walker, 381 U.S.
618, 636 (1965); Terry v. Ohio, 392 U.S. I, 29 (1968).25
24 See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S.
388, 411 (BURGER, C. J., dissenting); Paulsen, The Exclusionary Rule
and Misconduct by the Police, 52 J. Crim. L. C. & P. S. 255, 256
(1961); see also J. Wilson, Varieties of Police Behavior (1968); 8
J. Wigmore, Evidence § 2184, pp. 51-52 (J. McNaughton ed. 1961),
and H. Friendly, Benchmarks 260-261 (1967), suggesting that even
at trial the exclusionary rnle should be limited to exclusion of "the
fruit of activity intentionally or flagrantly illegal." But see Kamisar,
Public Safety v. Individual Liberties: Some "Facts" and "Theories,"
53 J. Crim. L. C. & P. S. 171, 188--190 (1962), and Kamisar, On the
Tactics of Police-Prosecution Oriented Critics of the Courts, 49
Cornell L. Q. 436 (1964).
25 These expressions antedated the only scholarly empirical research,
l\fR. JUSTICE STEWART having noted in Elkins v. United States, 364
U.S. 206, 218 (1960), that "[e]mpirical statistics are not available"
as to the efficacy of the rule-a situation which continued until Professor
Oaks' study. Indeed, in referring to the basis for the exclusionary
rule, Professor Oaks noted that it has been supported, not
by facts, but by "recourse to polemic, rhetoric, and intuition."
Studying the Exclusionary Rule in Search and Seizure, 37 U. Chi.
L. Rev. 665, 755 (1970). See also Burger, Who Will Watch the
Watchman?, 14 Am. U. L. Rev. 1 (1964).
I mention the controversy over the exclusionary rule-not to suggest
here its total abandonment (certainly not in the absence of
268 OCTOBER TERM, 19i2
PowELL, J., concurring 412 U.S.
The efficacy of this deterrent function, however, has been
brought into serious question by recent empirical research.
Whatever the rule's merits on an initial trial
and appeal 26- a question not in issue here-the case for
some other deterrent to deviant police conduct) but rather to emphasize
its precarious and undemonstrated basis, especially when
applied to a Fourth Amendment claim on federal habeas review of
a state court decision.
26 The most searching empirical study of the efficacy of the exclusionary
rule was made by Professor Oaks, who concluded that
"[a]s a device for directly deterring illegal searches and seizures
by the police, the exclusionary rnlr is a failure." Supra, n. 25, at
i55. Professor Oaks, though recognizing that conclusive data may
not yet be available, summarized the results of his study as follows:
"There is no reason to expect the rule to have any direct effect on
the overwhelming majority of police conduct that is not meant to
result in prosecutions, and there is hardly any evidence that the rule
exerts any deterrent effect on the small fraction of law enforcement
activity that is aimed at prosecution. What is known about the
deterrent effect of sanctions suggests that the exclusionary rule operates
under conditions that are extremely unfavorable for deterring
the police. The harshest criticism of the rule is that it is ineffective.
It is the sole means of enforcing the essential guarantees of freedom
from unreasonable arrests and searches and seizures by law enforcement
officers, and it is a failure in that vital task.
"The use of the exclusionary rule imposes excessive costs on the
criminal justice system. It provides no recompense for the innocent
and it frees the guilty. It creates the occasion and incentive for
largescale lying by law enforcement officers. It diverts the focus
of the criminal prosecution from the guilt or innocence of the defend~
ant to a trial of the police. Only a system with limitless patience
with irrationality could tolerate the fact that where there has been
one wrong, the defendant's, he will be punished, but where there
have been two wrongs, the defendant's and the officer's, both will go
free. This would not be an excessive cost for an effective remedy
against police misconduct, but it is a prohibitive price to pay for
an illusory one." Id., at 755.
Despite a conviction that the exclusionary rule is a " failure," Professor
Oaks would not abolish it altogether until there is something
to take its place. He recommends "an effective tort remedy against
SCHNECKLOTH v. BUSTAMONTE 269
218 PowELL, J., concurring
collateral application of the rule is an anemic one. On
collateral attack, the exclusionary rule retains its major
liabilities while the asserted benefit of the rule dissolves.
For whatever deterrent function the rule may serve when
applied on trial and appeal becomes greatly attenuated
when, months or years afterward, the claim surfaces for
collateral review. The impermissible conduct has long
since occurred, and the belated wrist slap of state police
by federal courts harms no one but society on whom the
convicted criminal is newly released.21
Searches and seizures are an opaque area of the law:
flagrant Fourth Amendment abuses will rarely escape
detection but there is a vast twilight zone with respect to
·which one Justice has stated that our own "decisions ...
are hardly notable for their predictability," 28 and another
has observed that this Court was "'bifurcating clements
too infinitesimal to be split.' " 29 Serious Fourth AmPndment
infractions can be dealt with by state judges or
by this Court on direct review. But the nonfrivolous
Fourth Amendment claims that survive for collateral a.ttack
are most likely to be in this grey, twilight area,
where the law is difficult for courts to apply, let alone
for the policeman on the beat to understand. This is
the offending officer or his employer." He notes that such a "tort
remedy would give courts an occasion to rule on the content of constitutional
rights (the Canadian example shows how), and it would
provide the real consequence needed to give credibility to the guarantee."
Id., at 756-757.
27 "As the exclusionary rulr is applied time after time, it seems
that its deterrent efficacy at some stage reaches a point of diminishing
returns, and beyond that point its continued application is a
public nuisance." Amsterdam, supra, n. 16, at 389:
28 Ker v. Cal,ifornia, 374 U.S. 23, 45 (1963) (Harlan, J., roncurring
in result).
29 Coolidge v. New Ilampshire, 403 U.S. 443,493 (1971) (opinion
of BURGER, C . .T.). THE CHIEF JusTICE was quoting :vir. Justice
Stone of the Minnesota Supreme Court.
270 OCTOBER TERYI, 1972
PowELL, J., concurring 412 u. s.
precisely the type of case where the deterrent function
of the exclusionary rule is least efficacious, and where
there is the least justification for freeing a duly convicted
defendant.30
Our decisions have not encouraged the thought that
what may be an appropriate constitutional policy in one
context automatically becomes such for all times and all
seasons. In Linkletter v. Walker, 381 U. S., at 629, the
Court recognized the compelling practical considerations
against retroactive application of the exclusionary rule.
Rather than viewing the rule as having eternal constitutional
verity, the Court decided to
"weigh the merits and demerits in each case by
looking to the prior history of the rule in question,
its purpose and effect, and whether retrospective operation
will further or retard its operation. We
believe that this approach is particularly correct with
reference to the Fourth Amendment's prohibitions
as to unreasonable searches and seizures." Id., at
629.
Such a pragmatic approach compelled the Court to
conclude that the rule's deterrent function would not be
advanced by its retrospective application:
"The misconduct of the police prior to Mapp has
already occurred and will not be corrected by releasing
the prisoners involved. . . . Finally, the ruptured
privacy of the victims' homes and effects
cannot be restored. Reparation comes too late."
Id., at 637.
See also De.s-ist v. United States, 394 U. S. 244 (1969).
The same practical, particularized analysis of the exclusionary
rule's necessity also was evident in Walder v.
United States, 347 U. S. 62 (1954), when the Court per-
3° Friendly, supra, n. 12, at 162- 163.
SCHNECKLOTH v. BUSTAMONTE 271
218 POWELL, J., concurring
mitted the Government to utilize unlawfully seized evidence
to impeach the credibility of a defendant who had
first testified broadly in his own defense. The Court
held, in effect, that the policies protected by the exclusionary
rule were outweighed in this case by the need
to prevent perjury and assure the integrity of proceedings
at trial. The Court concluded that to apply the exclusionary
rule in such circumstances "would be a perversion
of the Fourth Amendment." Id., at 65. The judgment
in Walder revealed most pointedly that the policies
behind the exclusionary rule are neither absolute nor allencompassing,
but rather must be weighed and balanced
against a competing and more compelling policy, namely
the need for effective determination of truth at trial.
In sum: the case for the exclusionary rule varies with
the setting in which it is imposed. It makes little sense
to extend the Mapp exclusionary rule to a federal habeas
proceeding where its asserted deterrent effect must be
least efficacious, and its obvious harmful consequences
persist in full force.
VI
The final inquiry is whether the above position conforms
to 28 U. S. C. § 2254 (a) which provides:
"The Supreme Court, a Justice thereof, a circuit
judge, or a district court shall entertain an application
for a writ of habeas corpus in behalf of a
person in custody pursuant to the judgment of a
State court only on the ground that he is in custody
in violation of the Constitution or laws or treaties
of the United States."
The trend in recent years has witnessed a proliferation
of constitutional rights, "a vast expansion of the claims
of error in criminal cases for which a resourceful defense
lawyer can find a constitutional basis." 31 Federal ha-
31 Friendly, supra, n. 12, at 156.
272 OCTOBER TERM, 1972
PowELL, J., concurring 412 U.S.
beas jurisdiction has been extended far beyond anyone's
expectation or intendment when the concept of "custody
in violation of the Constitution," now in § 2254 (a), first
appeared in federal law over a century ago.32
Mr. Justice Black was clearly correct in noting that "not
every conviction based in part on a denial of a constitutional
right is subject to attack by habeas corpus or § 2255
proceedings after a conviction has become final." Kaufman,
394 U. S., at 232 (dissenting opinion). No evidence
exists that Congress intended every allegation of a
constitutional violation to afford an appropriate basis for
collateral review: indeed, the latest revisions of the Federal
Habeas Corpus statute in 1966 33 and the enactment
of § 2254 (a) came at the time a majority of the courts of
appeals held that claims of unlawful search and seizure
" 'are not proper matters to be presented by a motion to
vacate sentence under § 2255 but can only be properly
presented by appeal from the conviction.' " Id., at 220,
quoting Warren v. United States, 311 F. 2d 673,675 (CA8
1963).34 Though the precise discussion in Kaufman concerned
the claims of federal prisoners under § 2255, the
then-existing principle of a distinction between review of
search-and-seizure claims in direct and collateral proceedings
clearly existed.
There is no indication that Congress intended to wipe
out this distinction. Indeed, the broad purpose of the
1966 amendments pointed in the opposite direction. The
report of the Senate Judiciary Committee notes that:
"Although only a small number of these [habeas]
applications have been found meritorious, the ap-
" 2 See Part II, supra.
33 The 1966 revision of the Federal Habeas Corpus statute enacted
among other things, the present 28 U. S. C. §§ 2254 (a),
(d), (e), and (f) .
34 See Kaufman, supra, at 220-221 , nn. 3 and 4, for a listing of
the respective positions of the courts of appeals.
218
SCHNECKLOTH v. BUSTAMONTE 273
POWELL, J., concurring
plications in their totality have imposed a heavy
burden on the Federal courts. . . . The bill seeks
to alleviate the unnecessary burden by introducing
a greater degree of finality of judgments in habeas
corpus proceedings." S. Rep. No. 1797, 89th Cong.,
2d Sess., 2 (1966).35
The House Report states similarly that:
"While in only a small number of these applications
have the petitioners been successful, they
nevertheless have not only imposed an unnecessary
burden on the work of the Federal courts but have
also greatly interfered with the procedures and processes
of the State courts by delaying, in many cases,
the proper enforcement of their judgments." H. R.
Rep. No. 1892, 89th Cong., 2d Sess., 5 (1966).
This most recent congressional expression on the scope
of federal habeas corpus reflected the sentiment, shared
alike by judges and legislators, that the writ has
overrun its historical banks to inundate the dockets of
federal courts and denigrate the role of state courts.
Though Congress did not address the precise question
at hand, nothing in § 2254 (a), the state of the
law at the time of its adoption, or the historical uses of
the language "custody in violation of the Constitution"
from which § 2254 (a) is derived,36 compels a holding that
rulings of state courts on claims of unlawful search and
35 The letter from Circuit .Judge Orie L. Phillips, Chairman of the
Committee on Habea.s Corpus of the Judicial Conference of the
United States, which sponsored the 1966 legislation, to the Chairman
of the Senate Subcommittee on Improvements in Judicial Machinery
also strongly emphasized the necessity of expediting "the determination
in Federal courts of nonmeritorious and repetitious applications
for the writ by State court prisoners." S. Rep. No. 1797, 89th
Cong., 2d Sess., 5 (1966).
36 See Part II, supra.
274 OCTOBER TERM, 1972
PowELL, J., concurring 412 u. s.
seizure must be reviewed and redetermined in collateral
proceedings.
VII
Perhaps no single development of the criminal law has
had consequences so profound as the escalating use, over
the past two decades, of federal habeas corpus to reopen
and readjudicate state criminal judgments. I have commented
in Part IV above on the far-reaching consequences:
the burden on the system,37 in terms of demands
on the courts, prosecutors, defense attorneys, and
other personnel and facilities; the absence of efficiency and
finality in the criminal process, frustrating both the deterrent
function of the law and the effectiveness of rehabilitation;
the undue subordination of state courts, with the
resulting exacerbation of state-federal relations; and the
subtle erosion of the doctrine of federalism itself. Perhaps
the single most disquieting consequence of openended
habeas review is reflected in the prescience of
Mr. Justice Jackson's warning that "[i]t must prejudice
the occasional meritorious application to be buried in a
flood of worthless ones." 38
If these consequences flowed from the safeguarding of
constitutional claims of innocence they should, of course,
be accepted as a tolerable price to pay for cherished standards
of justice at the same time that efforts are pursued
to find more rational procedures. Yet, as illustrated by
the case before us today, the question on habeas corpus is
37 Mr. Justice Jackson, concurring in the result 20 years ago in
Brown v. Allen, 344 U. S. 443, 532 (1953), lamented the "floods of
stale, frivolous and repetitious petitions [for federal habeas corpus by
state prisoners which] inundate the docket of the lower courts and
swell our own." Id., at 536. The inundation which concerned
Mr. Justice Jackson consisted of 541 such petitions. In 1971, the
lat.est year for which figures are available, state prisoners alone filed
7,949 petitions for habeas in federal district courts, over 14 times
the number fikd when Mr. Justice Jackson voiced his misgivings.
38 Brown v. Allen, supra, at 537.
SCHNECKLOTH v. BUSTAMONTE 275
218 DouGLAS, J., dissenting
too rarely whether the prisoner was innocent of the crime
for which he was convicted 30 and too frequently whether
some evidence of undoubted probative value has been
admitted in violation of an exclusionary rule ritualistically
applied without due regard to whether it has the slightest
likelihood of achieving its avowed prophylactic purpose.
It is this paradox of a system, which so often seems to
subordinate substance to form, that increasingly provokes
criticism and lack of confidence. Indeed, it is
difficult to explain why a system of criminal justice deserves
respect which allows repetitive reviews of convictions
long since held to have been final at the end of
the normal process of trial and appeal where the basis
for re-examination is not even that the convicted defendant
was innocent. There has been a halo about the
"Great Writ" that no one would wish to dim. Yet one
must wonder whether the stretching of its use far beyond
any justifiable purpose will not in the end weaken rather
than strengthen the writ's vitality.
MR. JUSTICE DouGLAS, dissenting.
I agree with the Court of Appeals that "verbal assent"
to a search is not enough, that the fact that consent
was given to the search does not imply that the suspect
knew that the alternative of a refusal existed. 448 F. 2d
699, 700. As that court stated:
"[U]nder many circumstances a reasonable person
might read an officer's 'May I' as the courteous ex-
39 Commenting on this distortion of our criminal justice system,
Justice Walter Schaefer of the Illinois Supreme Court has said:
"What bothers me is that almost never do we have a genuine issue
of guilt or innocence today. The system has so changed that what
we are doing in the courtroom is trying the conduct of the police and
that of the prosecutor all along the line." Address before Center
for the Study of Democratic Institutions, June 1968, cited by
Friendly, supra, n. 12, at 145 n. 12.
276 OCTOBER TERM, 1972
BRENNAN, J., dissenting 412 u. s.
pression of a demand backed by force of law." Id.,
at 701.
A considerable constitutional guarantee rides on this
narrow 1ssue. At the time of the search there was no
probable cause to believe that the car contained contraband
or other unlawful articles. The car was stopped
only because a headlight and the license plate light were
burned out. The car belonged to Alcala's brother, from
whom it was borrowed, and Alcala had a driver's license.
Traffic citations were appropriately issued. The car was
searched, the present record showing that Alcala consented.
But whether Alcala knew he had the right to
refuse, we do not know. All the Court of Appeals did
was to remand the case to the District Court for a finding-
and if necessary, a hearing on that issue.
I would let the case go forward on that basis. The
long, time-consuming contest in this Court might well
wash out. At least we could be assured that, if it came
back, we would not be rendering an advisory opinion.
Had I voted to grant this petition, I would suggest we
dismiss it as improvidently granted. But, being in the
minority, I am bound by the Rule of Four.
MR. JusTrCE BRENNAN, dissenting.
The Fourth Amendment specifically guarantees "[t]he
right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures .... " We have consistently held that governmental
searches conducted pursuant to a validly obtained
warrant or reasonably incident to a valid arrest do not
violate this guarantee. Here, however, as the Court
itself recognizes, no search warrant was obtained and the
State does not even suggest "that there was probable
cause to search the vehicle or that the search was incident
to a valid arrest of any of the occupants." Ante,
SCHNECKLOTH v. BUSTAMONTE 277
218 MARSHALL, J., dissenting
at 227-228. As a result, the search of the vehicle can
be justified solely on the ground that the owner's brother
gave his consent-that is, that he waived his Fourth
Amendment right "to be secure'' against an otherwise
"unreasonable" search. The Court holds today that an
individual can effectively waive this right even though
he is totally ignorant of the fact that, in the absence of his
consent, such invasions of his privacy would be constitutionally
prohibited. It wholly escapes me how our citizens
can meaningfully be said to have waived something
as precious as a constitutional guarantee without ever
being aware of its existence. In my view, the Court's
conclusion is supported neither by "linguistics," nor by
"epistemology." nor, indeed, by "common sense." I respectfully
dissent.
MR. JusTICE MARSHALL, dissenting.
Several years ago, MR. JUSTICE STEWART reminded us
that " [ t] he Constitution guarantees . . . a society of
free choice. Such a society presupposes the capacity of
its members to choose." Ginsberg v. New York, 390
U. S. 629, 649 (1968) (concurring in result). I would
have thought that the capacity to choose necessarily
depends upon knowledge that there is a choice to be
made. But today the Court reaches the curious result
that one can choose to relinquish a constitutional rightthe
right to be free of unreasonable searches--without
knowing that he has the alternative of refusing to accede
to a police request to search.1 I cannot agree, and
therefore dissent.
1 The Court holds that Alcala's consent to search was shown, in
1he state court proceedings, to be constitutionally valid as a relinquishment
of his Fourth Amendment rights. In those proceedings,
no evidence was adduced as to Alcala's knowledge of his right to
refuse assent. The Court of Appeals for the Ninth Circuit, whose
judgment is today rever~ed, would have required petitioner to pro278
OCTOBER TERM, 1972
MARSHALL, J., dissenting 412 U.S.
I
I believe that the Court misstates the true issue in
this case. That issue is not, as the Court suggests,
whether the police overbore Alcala's will in eliciting
his consent, but rather, whether a simple statement of
assent to search, without more,2 should be sufficient to
permit the police to search and thus act as a relinquishment
of Alcala's constitutional right to exclude the
police.3 This Court has always scrutinized with great
care claims that a person has forgone the opportunity
to assert constitutional rights. See, e. g., Fuentes v.
Shevin, 407 U.S. 67 (1972); D. H. Overmyer Co. v. Frick
Co., 405 U. S. 174 (1972); Boykin v. Alabama, 395 U.S.
238 (1969); Carnley v. Cochran, 369 U. S. 506 (1962).
I see no reason to give the claim that a person consented
to a search any less rigorous scrutiny. Every case in this
Court involving this kind of search has heretofore spoken
duce such evidence. As discussed infra, at 286, the Court of
Appeals did not hold that the police must inform a subject of investigation
of his right to refuse assent as an essential predicate to their
effort to secure consent to search.
2 The Court concedes that the police lacked probable cause to
search. Ante, at 227-228. At the time the search was conducted,
there were three police vehicles near the car. 270 Cal. App.
2d 648, 651, 76 Cal. Rptr. 17, 19 (1969). Perhaps the police in
fact had some reason, not disclosed in this record, to believe that a
search would turn up incriminating evidence. But it is also possible
that the late hour and the number of men in the car suggested to the
first officer on the scene that it would be prudent to wait until other
officers had arrived before investigating any further.
3 Because Bustamante was charged with possessing stolen checks
found in the search at which he was present, he has standing to
object to the search even though he claims no possessory or
proprietary interest in the car. Jones v. United States, 362 U. S.
257 ( 1960). Cf. People v. Ibarra, 60 Cal. 2d 460, 386 P. 2d 487
(1963); People v. Perez, 62 Cal. 2d 769, 401 P. 2d 934 (1965).
SCHNECKLOTH v. BUSTAMONTE 279
218 MARSHALL, J., dissenting
of consent as a wa.iver.4 See, e. g., Amos v. United
States, 255 U. S. 313, 317 ( 1921); Zap v. United States,
328 U. S. 624, 628 (1946); Johnson v. United States,
333 U. S. 10, 13 (1948).5 Perhaps one skilled in lin-
4 The Court reads Davis v. United States, 328 U. S. 582 ( 1946),
as upholding a search like the one in this case on the basis of
consent. But it was central to the reasoning of the Court in that case
that the items seized were the property of the Government temporarily
in Davis' custody. See id., at 587-593. The agents of the
Government were thus simply demanding that property to which
they had a lawful claim be returned to them. Because of this, the
Court held that "permissible limits of persuasion are not so narrow
as where private papers are sought." Id., at 593. The opinion of
the Court therefore explicitly disclaimed stating a general rule for
ordinary searches for evidence. That the distinction, for purposes
of Fourth Amendment analysis, between mere evidence and contraband
or instrumentalities has now been abolished, Warden v.
Hayden, 387 U. S. 294 (1967), is no reason to disregard the fact
that when Davis was decided, that. distinction played an important
role in shaping analysis.
In Zap v. United States, 328 U. S. 624, 628 (1946) , the Court
held that "when petitioner, in order to obtain the Government's
business, specifically agreed to permit inspection of his accounts
and records, he voluntarily waived such claim to privacy which
he otherwise might have had as respects business documents
related to those contracts." (Emphasis added.) Because Zap had
signed a contract specifically providing that his records would be
open at all time to the Government, he had indeed waived his right
to keep those records private. Cf. United States v. Biswell, 406 U. S.
311 (1972).
Aside from Zap and Davis, supra, n. 4, I have found no cases
decided by this Court explicitly upholding a search based on the
consent of the defendant. It is hardly surprising, then, that " [ t J he
approach of the Court of Appeals for the Ninth Circuit finds no
support in any of our decisions," ante, at 229. But in nearly every
case discussing the problem at length, the Court referred to consent
as a waiver. And it mischaracterizes those cases to describe them
as analyzing the totality of the circumstances, ante, at 243 n. 31.
See infra, at 283- 284.
280 OCTOBER TERM, 1972
MARSHALL, J., dissenting 412 U.S.
guistics or epistemology can disregard those comments,
but I find them hard to ignore.
To begin, it is important to understand that the opinion
of the Court is misleading in its treatment of the
issue here in three ways. First, it derives its criterion
for determining when a verbal statement of assent to
search operates as a relinquishment of a person's right
to preclude entry from a justification of consent searches
that is inconsistent with our treatment in earlier cases
of exceptions to the requirements of the Fourth Amendment,
and that is not responsive to the unique nature
of the consent-search exception. Second, it applies a
standard of voluntariness that was developed in a very
different context, where the standard was based on policies
different from those involved in this case. Third,
it mischaracterizes our pr10r cases involving consent
searches.
A
The Court assumes that the issue in this case is: what
are the standards by which courts are to determine that
consent is voluntarily given? It then imports into the
law of search and seizure standards developed to decide
entirely different questions about coerced confessions."
The Fifth Amendment, in terms, provides that no
person "shall be compelled in any criminal case to be
a witness against himself." Nor is the interest protected
by the Due Process Clause of the Fourteenth Amendment
any different. The inquiry in a case where a confession
is challenged as having been elicited in an unconstitutional
manner is, therefore, whether the behavior
6 That this application of the "domino" method of adjudication is
misguided is shown, I believe, by the fact that the phrase " voluntary
consE>nt" seems redundant in a way that the phrase " voluntary confession"
does not.
SCHNECKLOTH v. BUSTAMONTE 281
218 MARSHALL, J., dissenting
of the police amounted to compulsion of the defendant.7
Because of the nature of the right to be free of compulsion,
it would be pointless to ask whether a defendant
knew of it before he made a statement; no sane person
would knowingly relinquish a right to be free of compulsion.
Thus, the questions of compulsion and of violation
of the right itself are inextricably intertwined.
The cases involving coerced confessions, therefore, pass
over the question of knowledge of that right as irrelevant,
and turn directly to the question of compulsion.
Miranda v. Arizona, 384 U. S. 436 ( 1966), confirms
this analysis. There the Court held that certain warnings
must be given to suspects prior to their interrogation
so that the inherently coercive nature of in-custody
questioning would be diminished by the suspect's knowledge
that he could remain silent. But, although those
warnings, of course, convey information about various
rights of the accused, the information is intended only
to protect the suspect against acceding to the other
coercive aspects of police interrogation. While we would
not ordinarily think that a suspect could waive his right
to be free of coercion, for example, we do permit suspects
to waive the rights they are informed of by police warnings,
on the belief that such information in itself sufficiently
decreases the chance that a statement would be
elicited by compulsion. Id., at 475-476. Thus, nothing
the defendant did in the cases involving coerced confessions
was taken to operate as a relinquishment of
his rights; certainly the fact that the defendant made
7 The Court used the terms "voluntary" or "involuntary" in such
cases as shorthand labels for an assessment of the police behavior in
light of the particular characteristics of the individual defendant because
behavior that might not be coercive of some individuals might
nonetheless compel others to give incriminating statements. See,
e. g., Haley v. Ohio, 332 U. S. 596, 599 (1948); Stein v. New York,
346 U.S. 156, 185 (1953); Fikes v. Alabama, 352 U.S. 191 (1957).
282 OCTOBER TERM, 1972
MARSHALL, J., dissenting 412 U.S.
a statement was never taken to be a relinquishment
of the right to be free of coercion.8
B
In contrast, this case deals not with "coercion," but
with "consent," a subtly different concept to which different
standards have been applied in the past. Freedom
from coercion is a substantive right, guaranteed by the
Fifth and Fourteenth Amendments. Consent, however,
is a mechanism by which substantive requirements, otherwise
applicable, are avoided. In the context of the
Fourth Amendment, the relevant substantive requirements
are that searches be conducted only after evidence
justifying them has been submitted to an impartial
magistrate for a determination of probable cause. There
are, of course, exceptions to these requirements based
on a variety of exigent circumstances that make it impractical
to invalidate a search simply because the police
failed to get a warrant.° But none of the exceptions
8 I, of course, agree with the Court's analysis to the extent that it
treats a verbal expression of assent as no true consent when it is
elicited through compulsion. Ante, at 229. Since, in my view, it is
just as unconstitutional to search after coercing consent as it is to
search after uninformed consent, I agree with the rationale of Amos
v. United States, 255 U. S. 313 (1921), Johnson v. United States,
333 U. S. 10 (1948), and Bumper v. North Carolina, 391 U. S. 543
( 1968). That an alternative rationale might have been used in
those cases seems to me irrelevant.
9 See, e. g., Coolidge v. New Hampshire, 403 U. S. 443 (1971);
Chime/ v. California, 395 U. S. 752 (1969); Warden v. Hayden, 387
U.S. 294 (1967).
In Chimel, we explained that searches incident to arrest were
justified by the need to protect officers from attacks by the persons
they have arrested, and by the need to assure that easily destructible
evidence in the reach of the suspect will not be destroyed. 395
U. S., at 762-763. And in Coolidge, we said that searches of automobiles
on the highway are justified because an alerted criminal
might easily drive the evidence away while a warrant was sought.
SCHNECKLOTH v. BUSTAMONTE 283
218 MARSHALL, J ., dissenting
relating to the overriding needs of law enforcement are
applicable when a search is justified solely by consent.
On the contrary, the needs of law enforcement are
significantly more attenuated, for probable cause to
search may be lacking but a search permitted if the
subject's consent has been obtained. Thus, consent
searches are permitted, not because such an exception
to the requirements of probable cause and warrant is
essential to proper law enforcement, but because we
permit our citizens to choose whether or not they wish
to exercise their constitutional rights. Our prior decisions
simply do not support the view that a meaningful
choice has been made solely because no coercion was
brought to bear on the subject.
For example, in Bumper v. North Carolina, 391 U. S.
543 (1968), four law enforcement officers went to the
home of Bumper's grandmother. They announced that
they had a search warrant, and she permitted them to
enter. Subsequently, the prosecutor chose not to rely
on the warrant, but attempted to justify the search by
the woman's consent. We held that consent could not
be established "by showing no more than acquiescence
to a claim of lawful authority," id., at 548- 549. We
did not there inquire into all the circumstances, but focused
on a single fact, the claim of authority, even though
the grandmother testified that no threats were made.
Id., at 547 n. 8. It may be that, on the facts of that
case, her consent was under all the circumstances involuntary,
but it is plain that we did not apply the
test adopted by the Court today. And, whatever the
posture of the case when it reached this Court, it could
403 U. S., at 459-462. In neither situation is police ('Onvenience
alone a sufficient reason for establishing an exception to the warrant
requirement. Yet the Court today seems to say that convenience
alone justifies consent searches.
284 OCTOBER TERM, 1972
MARSHALL, J ., dissenting 412 U.S.
not be said that the police in Bumper acted in a threatening
or coercive manner, for they did have the warrant
they said they had; the decision not to rely on it was
made long after the search, when the case came into
court.10
That case makes it clear that police officers may not
courteously order the subject of a search simply to stand
aside while the officers carry out a search they have
settled on. Yet there would be no coercion or brutality
in giving that order. :No interests that the Court today
recognizes would be damaged in such a search. Thus,
all the police must do is conduct what will inevitably
be a charade of asking for consent. If they display any
firmness at all, a verbal expression of assent will undoubtedly
be forthcoming. I cannot believe that the
protections of the Constitution mean so little.
II
My approach to the case is straightforward and, to
me, obviously required by the notion of consent as a
relinquishment of Fourth Amendment rights. I am at
a loss to understand why consent "cannot be taken
literally to mean a 'knowing' choice." Ante, at 224. In
fact, I have difficulty in comprehending how a decision
made without knowledge of available alternatives can
be treated as a choice at all.
If consent to search means that a person has chosen
to forgo his right to exclude the police from the place
they seek to search, it follows that his consent cannot
10 The Court's interpretation of Johnson v. United States, 333
U. S. 10 (1948), a similar case, is baffling. The Court in Johnson
did not in fact analyze the totality of the circumstances, as the
Court now argues, ante, at 243 n. 31; the single fact that the
police claimed authority to search when in truth they lacked such
authority conclusively established that no valid consent had been
given.
SCHNECKLOTH v. BUSTAMONTE 285
218 MARSHALL, .J., dissenting
be considered a meaningful choice unless he kne,v that
he could in fact exclude the police. The Court appears,
however, to reject even the modest proposition that, if
the subject of a search convinces the trier of fact that
he did not know of his right to refuse assent to a police
request for permission to search, the search must be
held unconstitutional. For it says only that "knowledge
of the right to refuse consent is one factor to be taken
into account." Ante, at 227. I find this incomprehensible.
I can think of no other situation in which we ,vould
say that a person agreed to some course of action if
he convinced us that he did not know that there was
some other course he might have pursued. I would
therefore hold, at a minimum, that the prosecution may
not rely on a purported consent to search if the subject
of the search did not know that he could refuse to give
consent. That, I think, is the import of Bumper v.
North Carolina, supra. Where the police claim authority
to search yet in fact lack such authority, the subject
does not know that he may permissibly refuse them
entry, and it is this lack of kno,vledge that invalidates
the consent.
If one accepts this view, the question then is a simple
one: must the Government shO\v that the subject knew
of his rights, or must the subject show that he lacked
such knowledge?
I think that any fair allocation of the burden would
require that it be placed on the prosecution. On this
question, the Court indulges in what might be called
the "straw man" method of adjudication. The Court
responds to this suggestion by overinflating the burden.
And, when it is suggested that the prosecution's burden
of proof could be easily satisfied if the police informed
the subject of his rights, the Court responds by refusing
to require the police to make a "detailed" inquiry.
Ante, at 245. If the Court candidly faced the real
286 OCTOBER TER:\'I, 1972
MARSHALL, J., dissenting 412 U.S.
question of allocating the burden of proof, neither of
these maneuvers would be available to it.
If the burden is placed on the defendant, all the
subject can do is to testify that he did not know of
his rights. And I doubt that many trial judges will
find for the defendant simply on the basis of that testimony.
Precisely because the evidence is very hard to
come by, courts have traditionally been reluctant to require
a party to prove negatives such as the lack of
knowledge. See, e. g., 9 J. Wigmore, Evidence 274 (3d
ed. 1940); F. James, Civil Procedure § 7.8 (1965); E.
Morgan, Some Problems of Proof Under the Anglo-
American System of Litigation 75-76 (1956).
In contrast, there are several ways by which the subject's
knowledge of his rights may be shown. The subject
may affirmatively demonstrate such knowledge by
his responses at the time the search took place, as in
United States v. Curiale, 414 F. 2d 744 (CA2 1969).
Where, as in this case, the person giving consent is
someone other than the defendant, the prosecution may
require him to testify under oath. Denials of knowledge
may be disproved by establishing that the subject had,
in the recent past, demonstrated his knowledge of his
rights, for example, by refusing entry when it was requested
by the police. The prior experience or training
of the subject might in some cases support an inference
that he knew of his right to exclude the police.
The burden on the prosecutor would disappear, of
course, if the police, at the time they requested consent
to search, also told the subject that he had a right to
refuse consent and that his decision to refuse would
be respected. The Court's assertions to the contrary
notwithstanding, there is nothing impractical about this
method of satisfying the prosecution's burden of proof.11
11 The proposition rejected in the cases cited by the Court in nn.
13 and 14, was that, as in Miranda v. Arizona, 384 U.S. 436 (1966),
SCHNECKLOTH v. BUSTAMONTE 287
218 MARSHALL, J., dissenting
It must be emphasized that the decision about informing
the subject of his rights would lie with the officers seeking
consent. If they believed that providing such information
would impede their investigation, they might
simply ask for consent, taking the risk that at some later
da.te the prosecutor would be unable to prove that the
subject knew of his rights or that some other basis for
the search existed.
The Court contends that if an officer paused to inform
the subject of his rights, the informality of the exchange
would be destroyed. I doubt that a simple statement
by an officer of an individual's right to refuse consent
would do much to alter the informality of the exchange,
except to alert the subject to a fact that he surely is
entitled to know. It is not without significance that for
many years the agents of the Federal Bureau of Investigation
have routinely informed subjects of their right
to refuse consent, when they request consent to search.
Note, Consent Searches: A Reappraisal After Miranda
v. Arizona, 67 Col. L. Rev. 130, 143 n. 75 (1967) (citing
letter from J. Edgar Hoover). The reported cases in which
the police have informed subjects of their right to refuse
consent show, also, that the information can be given
without disrupting the casual flow of events. See, e. g.,
United States v. Miller, 395 F. 2d 116 (CA7 1968). What
evidence there is, then, rather strongly suggests that
nothing disastrous would happen if the police, before
requesting consent, informed the subject that he had
a statement to the subject of his rights must be given as an indispensable
prerequisite to a request for consent to search. This case
does not require us to address that proposition, for all that is involved
here is the contention that the prosecution could satisfy the
burden of establishing the knowledge of the right to refuse consent
by showing that the police advised the subject of a search, that is
sought to be justified by consent, of that right.
288 OCTOBER TERM, 1972
MARSHALL, J., dissenting 412 U.S.
a right to refuse consent and that his refusal would be
respected.'2
I must conclude, with some reluctance, that when the
Court speaks of practicality, what it really is talking
of is the continued ability of the police to capitalize on
the ignorance of citizens so as to accomplish by subterfuge
what they could not achieve by relying only on the
knowing relinquishment of constitutional rights. Of
course it would be "practical" for the police to ignore
the commands of the Fourth Amendment, if by practicality
we mean that more criminals will be apprehended,
even though the constitutional rights of innocent people
also go by the board. But such a practical advantage
is achieved only at the cost of permitting the police to
disregard the limitations that the Constitution places on
their behavior, a cost that a constitutional democracy
cannot long absorb.
I find nothing in the opinion of the Court to dispel my
belief that, in such a case, as the Court of Appeals for
12 The Court's suggestion that it would be "unrealistic" to require
the officers to make "the detailed type of examination" involved
when a court considers whether a defendant has waived a
trial right, ante, at 245, deserves little comment. The question
before us relates to the inquiry to be made in court when the prosecution
seeks to establish that consent was given. I therefore do not
address the Court's strained argument that one ma.y waive constitutional
rights without making a knowing and intentional choice so
long as the rights do not relate to the fairness of a criminal trial.
I would suggest, however, that that argument is fundamentally inconsistent
with the law of unconstitutional conditions. See, e. g.,
Perry v. Sindermann, 408 U. S. 593 (1972); Shapiro v. Thompson,
394 U.S. 618 (1969); Sherbert v. Verner, 374 U.S. 398 (1963);
Speiser v. Randall, 357 U. S. 513 (1958). The discussion of United
States v. Wade, 388 U.S. 218 (1967), ante, at 239-240, also seems
inconsistent with the opinion of MR . .JusTICE STEWART in Kirby v.
Illinois, 406 U. S. 682 (1972). In any event, I do not understand
how one can relinquish a right without knowing of its existence, and
that is the only issue in this case.
SCHNECKLOTH v. BUSTAMONTE 289
218 MARSHALL, J., dissenting
the Ninth Circuit said, "[u]nder many circumstances a
reasonable person might read an officer's 'May I' as the
courteous expression of a demand backed by force of
law." 448 F. 2d, at 701. Most cases, in my view, are
akin to Bumper v. North Carolina, 391 U.S. 543 (1968):
consent is ordinarily given as acquiescence in an implicit
claim of authority to search. Permitting searches in such
circumstances, without any assurance at all that the subject
of the search knew that, by his consent, he was relinquishing
his constitutional rights, is something that I
cannot believe is sanctioned by the Constitution.
III
The proper resolution of this case turns, I believe, on
a realistic assessment of the nature of the interchange
between citizens and the police, and of the practical import
of allocating the burden of proof in one way rather
than another. The Court seeks to escape such assessments
by escalating its rhetoric to unwarranted heights,
but no matter how forceful the adjectives the Court uses,
it cannot avoid being judged by how well its image of
these interchanges accords with reality. Although the
Court says without real elaboration that it "cannot
agree," ante, at 248, the holding today confines the protection
of the Fourth Amendment against searches conducted
without probable cause to the sophisticated, the
knowledgeable, and, I might add, the few.13 In the final
analysis, the Court now sanctions a game of blindman's
buff, in which the police always have the upper hand,
for the sake of nothing more than the convenience of
13 The Court's half-hearted defense, that lack of knowledge is to
be "taken into account," rings rather hollow, in light of the apparent
import of the opinion that even a subject who proves his lack of
knowledge may nonetheless have consented "voluntarily," under the
Court's peculiar definition of voluntariness.
290 OCTOBER TERM, 1972
MARSHALL, J., dissenting 412 U.S.
the police. But the guarantees of the Fourth Amendment
were never intended to shrink before such an
ephemeral and changeable interest. The Framers of the
Fourth Amendment struck the balance against this sort
of convenience and in favor of certain basic civil rights.
It is not for this Court to restrike that balance because of
its own views of the needs of law enforcement officers.
I fear that that is the effect of the Court's decision today.
It is regrettable that the obsession with validating
searches like that conducted in this case, so evident in
the Court's hyperbole, has obscured the Court's vision of
how the Fourth Amendment was designed to govern the
relationship between police and citizen in our society.
I believe that experience and careful reflection show how
narrow and inaccurate that vision is, and I respectfully
dissent.
CUPP v. MURPHY
Syllabus
CUPP, PENITENTIARY SUPERINTENDENT
v. MURPHY
291
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 72-212. Argued March 20, 1973-Decidcd May 29, 1973
Over respondent's protest and without a warrant, police in the
course of station-house questioning in connection with a murder
took samples from the respondent's fingernails and discovered
evidence used to convict him. Respondent had come to the station
house voluntarily and had not been arrested, although he was
detained and there was probable cause to believe that he had committed
the murder. In reversing the District Court's denial of
habeas corpus, the Court of Appeals concluded that, absent arrest
or other exigent circumstances, the search was unconstitutional.
Held: In view of the station-house detention upon probable cause,
the very limited intrusion undertaken to preserve highly evanescent
evidence was not violative of the Fourth and Fourteenth
Amendments. Pp. 293-296.
461 F. 2d 1006, reversed.
STEWART, J., delivered the opinion of the Court, in which BuRGER,
C. J., and WHITE, MARSHALL, BLACKMON, PowELL, and REHNQUIBT,
JJ., joined. WHITE, J., filed a concurring statement, post, p. 297.
MARSHALL, J., filed a concurring opinion, post, p. 297. BLACKMON,
J., filed a concurring opinion, in which BURGER, C. J., joined, post, p.
300. POWELL, J., filed a concurring opinion, in which BURGER, C. J.,
and REHNQUIST, J., joined, post, p. 300. DouGLAS, J., post, p. 301,
and BRENNAN, J., post, p. 305, filed opinions dissmting in part.
Th~mas H. Denney, Assistant Attorney General of
Oregon, argued the cause for petitioner. With him on
the brief were Lee Johnson, Attorney General, and John
W. Osborn, Solicitor General.
Howard R. Lonergan argued the cause and filed a brief
for respondent.*
*Alan S. Ganz, Frank Carrington, Ronald E. Sherk, and Fred E.
292 OCTOBER TERJ\I, 19i2
Opinion of the Court 412 U.S.
MR. JusT1CE STEWART delivered the opinion of the
Court.
The respondent, Daniel Murphy, was convicted by a
jury in an Oregon court of the second-degree murder of
his wife. The victim died by strangulation in her home
in the city of Portland, and abrasions and lacerations
were found on her throat. There was no sign of a
break-in or robbery. Word of the murder was sent to
the respondent, who was not then living with his wife.
Upon receiving the message, Murphy promptly telephoned
the Portland police and voluntarily came into
Portland for questioning. Shortly after the respondent's
arrival at the station house, where he was met by retained
counsel, the police noticed a dark spot on the
respondent's finger. Suspecting that the spot might be
dried blood and knowing that evidence of strangulation
is often found under the assailant's fingernails, the police
asked Murphy if they could take a sample of scrapings
from his fingernails. He refused. Under protest and
without a warrant, the police proceeded to take the samples,
which turned out to contain traces of skin and
blood cells, and fabric from the victim's nightgown.
This incriminating evidence was admitted at the trial.
The respondent appealed his conviction, claiming that
the fingernail scrapings were the product of an unconstitutional
search under the Fourth and Fourteenth
Amendments. The Oregon Court of Appeals affirmed
the conviction, 2 Ore. App. 251, 465 P. 2d 900, and we
denied certiorari, 400 U. S. 944. Murphy then commenced
the present action for federal habeas corpus re-
Inbau filed a brirf for Americans for Effer,tive Law Enforcement,
Inc., ct al. as amici curia.e urging reversal.
Melvin L. Wulf, Burt Neuborne, and Joel M. Gora filed a brief
for the American Civil Liberties linion as amicus curiae urging
affirmance.
CUPP v. MURPHY 293
291 Opinion of the Court
lief. The District Court, in an unreported decision,
denied the habeas petition, and the Court of Appeals for
the Ninth Circuit reversed, 461 F. 2d 1006. The Court
of Appeals assumed the presence of probable cause to
search or arrest, but held that in the absence of an arrest
or other exigent circumstances, the search was unconstitutional.
Id., at 1007. We granted certiorari, 409 U.S.
1036, to consider the constitutional question presented.
The trial court, the Oregon Court of Appeals, and the
Federal District Court all agreed that the police had
probable cause to arrest the respondent at the time they
detained him and scraped his fingernails. As the Oregon
Court of Appeals said,
"At the time the detectives took these scrapings they
knew:
"The bedroom in which the wife was found dead
showed no signs of disturbance, which fact tended to
indicate a kmer known to the victim rather than to
a burglar or other stranger.
"The decedent's son, the only other person in the
house that night, did not have fingernails which
could have made the lacerations observed on the
victim's throat.
"The defendant and his deceased wife had had a
stormy marriage and did not get along well.
"The defendant had, in fact, been at his home on
the night of the murder. He left and drove back to
central Oregon claiming that he did not enter the
house or see his wife. He volunteered a great deal
of information without being asked, yet expressed no
concern or curiosity about his wife's fate." 2 Ore.
App., at 259~260, 465 P. 2d, at 904.
The Court of Appeals for the Ninth Circuit did not disagree
with the conclusion that the police had probable
cause to make an arrest, 461 F. 2d, at 1007, nor do we.
294 OCTOBER TERM, 1972
Opinion of the Court 412 u. s.
It is also undisputed that the police did not obtain
an arrest warrant or formally "arrest" the respondent,
as that term is understood under Oregon law.1 The
respondent was detained only long enough to take the
fingernail scrapings, and was not formally "arrested"
until approximately one month later. Nevertheless, the
detention of the respondent against his will constituted a
seizure of his person, and the Fourth Amendment guarantee
of freedom from "unreasonable searches and seizures"
is clearly implicated, cf. United States v. Dionisio,
410 U. S. 1, Terry v. Ohio, 392 U. S. 1, 19. As the
Court said in Davis v. Mississippi, 394 U. S. 721, 726-
727, "Nothing is more clear than that the Fourth Amendment
was meant to prevent wholesale intrusions upon
the personal security of our citizenry, whether these intrusions
be termed 'arrests' or 'investigatory detentions.' "
In Davis, the Court held that fingerprints obtained
during the brief detention of persons seized in a police
dragnet procedure, without probable cause, were inadmissible
in evidence. Though the Court recognized that
fingerprinting "involves none of the probing into an
individual's private life and thoughts that marks an
interrogation or search," id., at 727, the Court held the
station-house detention in that case to be violative of
the Fourth and Fourteenth Amendments. "Investigatory
seizures would subject unlimited numbers of innocent
persons to the harassment and ignominy incident to
involuntary detention," id., at 726.
The respondent in this case, like Davis, was briefly
detained at the station house. Yet here, there was,
as three courts have found, probable cause to believe that
1 Oregon defines arrest as "the taking of a person into custody
so that he may be held to answer for a crime." Ore. Rev. Stat.
§ 133.210.
CUPP v. MURPHY 295
291 Opinion of the Court
the respondent had committed the murder. The vice of
the detention in Davis is therefore absent in the case
before us. Cf. United States v. Dionisio, supra.
The inquiry does not end here, however, because
Murphy was subjected to a search as well as a seizure of
his person. Unlike the fingerprinting in Davis, the voice
exemplar obtained in United States v. Dionisio, supra, or
the handwriting exemplar obtained in United States v.
Mara, 410 U. S. 19, the search of the respondent's
fingernails went beyond mere "physical characteristics
. . . constantly exposed to the public," United
States v. Dionisio, supra, at 14, and constituted the type
of "severe, though brief, intrusion upon cherished personal
security" that is subject to constitutional scrutiny.
Terry v. Ohio, supra, at 24-25.
We believe this search was constitutionally permissible
under the principles of Chimel v. California, 395 U. S.
752. Chimel stands in a long line of cases recognizing
an exception to the warrant requirement when a search
is incident to a valid arrest. Id., at 755-762. The basis
for this exception is that when an arrest is made, it is
reasonable for a police officer to expect the arrestee to
use any weapons he may have and to attempt to destroy
any incriminating evidence then in his possession. ld.,
at 762-763. The Court recognized in Chimel that the
scope of a warrantless search must be commensurate with
the rationale that excepts the search from the warrant requirement.
2 Thus, a warrantless search incident to arrest,
the Court held in Chimel, must be limited to the
area "into which an arrestee might reach." Id., at 763.
1 As the Court stated in Terry v. Ohio, "our inquiry is a dual onewhether
the officer's action was justified at its inception, and whether
it was reasonably related in s~ope to the circumstances which justified
the interference in the first place." 392 U. S. 1, 19-20.
296 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
Where there is no formal arrest, as in the case before
us, a person might well be less hostile to the police and
less likely to take conspicuous, immediate steps to destroy
incriminating evidence on his person. Since he knows
he is going to be released, he might be likely instead to be
concerned with diverting attention away from himself.
Accordingly, we do not hold that a full Chimel search
would have been justified in this case without a formal
arrest and without a warrant. But the respondent was
not subjected to such a search.
At the time Murphy was being detained at the station
house, he was obviously aware of the detectives' suspicions.
Though he did not have the full warning of
official suspicion that a formal arrest provides, Murphy
was sufficiently apprised of his suspected role in the
crime to motivate him to attempt to destroy what evidence
he could without attracting further attention.
Testimony at trial indicated that after he ref used to
consent to the ta.king of fingernail samples, he put his
hands behind his back and appeared to rub them together.
He then put his hands in his pockets, and a "metallic
sound, such as keys or change rattling" was heard. The
rationale of Chimel, in these circumstances, justified the
police in subjecting him to the very limited search necessary
to preserve the highly evanescent evidence they
found under his fingernails, cf. Schmerber v. California,
384 u. s. 757.
On the facts of this case, considering the existence
of probable cause, the very limited intrusion undertaken
incident to the station house detention, and the
ready destructibility of the evidence, we cannot say that
this search violated the Fourth and Fourteenth Amendments.
Accordingly, the judgment of the Court of
Appeals is
Reversed.
CUPP v. MURPHY 297
291 MARSHALL, J., concurring
MR. JUSTICE vVHITE joins the opinion of the Court
but does not consider the issue of probable cause to have
been decided here or to be foreclosed on remand to the
Court of Appeals where it has never been considered.
MR. JUSTICE MARSHALL, concurring.
I join the opinion of my BROTHER STEWART.
Murphy's freedom of movement was unquestionably
limited when the police did not acquiesce in his refusal
to permit them to take scrapings from his fingernails.
But that detention, although a seizure of the person protected
by the Fourth Amendment, did not amount to
an arrest under Oregon law. See Ore. Rev. Stat.
§ 133.210. The police, understanding this, did not, for
example, take Murphy promptly before a magistrate
after this detention, as state law requires after an arrest.
Id., § 133.550.1 As we have said before, however, "It
is quite plain that the Fourth Amendment governs
'seizures' of the person which do not eventuate in a
trip to the station house and prosecution for crime-
'arrests' in traditional terminology. It must be recognized
that whenever a police officer accosts an individual
and restrains his freedom to walk away, he has 'seized'
that person." Terry v. Ohio, 392 U. S. 1, 16 (1968).
See also id., at 19 n. 16, 26; Sibron v. New York, 392 U.S.
40, 67 (1968).
Murphy argues, however, that the detention was unlawful
because the police did not satisfy "the general
requirement that the authorization of a judicial officer
be obtained in advance of detention," Davis v. Mississippi,
394 U.S. 721, 728 (1969). See also Terry v. Ohio,
1 Thus this case does not require us to determine whether the police
were required to obtain a warrant for Murphy's arrest at the
relevant time. Cf. Jones v. United States, 357 U. S. 493, 499- 500
(1958); Coolidge v. New Hampshire, 403 U.S. 443, 477-481 (1971).
298 OCTOBER TERM, 1972
MARSHALL, J., concurring 412 u. s.
supra, at 20. But until the officer saw a dark spot under
Murphy's thumbnail, and remembered that he had seen
lacerations on the throat of the deceased, he had no reason
to detain Murphy for the limited purpose of taking
fingernail scrapings. Then, when he brought to Murphy's
attention his interest in taking such scrapings, he
was dealing with a suspect alerted to the desire of the
police to inspect his fingernails. At that point, there was
no way to preserve the status quo while a warrant was
sought, and there was good reason to believe that M urphy
might attempt to alter the status quo unless he were
prevented from doing so. The police could not assure
the preservation of the evidence simply by placing Murphy
under close surveillance, because of the nature of
the evidence. And, for purposes of Fourth Amendment
analysis, detaining him while a warrant was sought would
have been as much a seizure as detaining him while his
fingernails were scraped. If the Fourth Amendment
permits a stop-and-frisk when the police have specific
articulable facts from which they may infer that a person,
who they suspect is about to commit a crime, is
armed and dangerous, Terry v. Ohio, supra, it also permits
detention, where the police have probable cause to
arrest,2 to take fingernail scrapings in the circumstances
of this case.3
Murphy's argument is, of course, a troublesome one,
and, if the police had done more than take fingernail
2 The Court of Appeals assumed that. there was probable cause
to arrest, and I proceed on that assumption. I agree with MR.
JusTICE WHITE that the question of probable cause to arrest is open
on remand.
3 \:IR. .JusTICE DouGLAS suggests that the taking of fingt'rnail
scrapings might violate the Fifth Amendment privilege against selfincrimination.
In my view, however, that privilege is confined to
situations in which the evidence could be 8ecured by the Statr only
with the defendant's "affirmative cooperation," United States v.
Dion~io, 410 U. S. I, 31 (1973) (MARSHALL. J., dissenting).
CUPP v. MURPHY 299
291 l\fARSHALL, J ., con~urring
scrapings, I would be inclined to hold the search illegal.
For, as a general principle of the law of the Fourth
Amendment, the scope of a search must be strictly limited
in terms of the circumstances that justify the search.
See, e. g., Terry v. Ohio, supra, at 19-20; Chimel v.
California, 395 U. S. 752 (1969). When a person is
detained, but not arrested, the detention must be justified
by particularized police interests other than a desire
to initiate a criminal proceeding against the person they
detain. The police therefore cannot do more than investigate
the circumstances that occasion the detention. In
this case, the police limited their intrusion to precisely
the area that led them to restrict Murphy's freedom;
he was not searched as extensively as he might have been
had an arrest occurred. Indeed, in my view, the Fourth
Amendment would have barred a more extensive search,
for the police had no reason at a11 to believe that Murphy
had on his person more evidence relating to the crime,
or, in light of the fact that this case involved a strangulation,
a weapon that he might use at the station house.
I realize that exceptions to the warrant requirement
may be established because of "powerful hydraulic pressures
... that bear heavily on the Court to water down
constitutional guarantees," Terry v. Ohio, supra, at 39
(DouGLAS, J., dissenting), and that those same pressures
may lead to later expansion of the exceptions beyond the
narrow confines of the cases in which they are established,
Adams v. Williams, 407 U.S. 143, 161-162 (1972) (MARSHALL,
J., dissenting). But I cannot say that, in the precise
circumstances of this case, the police violated the
Fourth Amendment in detaining Murphy for the limited
purpose of scraping his fingernails. I emphasize, as does
the opinion of the Court, that the search conducted
incident to this detention was extremely narrow in scope,
and that its scope was tied closely to the reasons justify300
OCTOBER TERM, 1972
POWELL, J., concurring 412 U.S.
mg the detention. On this understanding, I join the
opinion of the Court.
MR. JUSTICE BLACKMUN, with whom THE CHIEF
JusTICE joins, concurring.
The Court today permits a search for evidence without
an arrest but under circumstances where probable
cause for an arrest existed, where the officers had reasonable
cause to believe that the evidence was on respondent's
person, and where that evidence was highly
destructible. The Court, however, restricts the permissible
quest to "the very limited search necessary to
preserve the highly evanescent evidence they found under
[respondent's] fingernails."
While I join the Court's opinion, I do so with the understanding
that what the Court says here applies only where
no arrest has been made. Far different factors, in my
view, govern the permissible scope of a search incident
to a lawful arrest.
MR. JUSTICE Po\VELL, with whom THE CHIEF JUSTICE
and MR. JUSTICE REHNQUIST join, concurring.
In this case the District Court and the Court of Appeals
entertained a habeas corpus attack upon a state
court conviction on the ground that the evidence seized
in violation of the Fourth Amendment had been wrongly
admitted at the state trial. For the reasons set forth in
my concurring opinion in Schneckloth v. Bustamante,
ante, p. 250, I think a claim such as this is properly
available in federal habeas corpus only to the extent of
ascertaining whether the prisoner was afforded a fair
opportunity to raise and have adjudicated the question
in state courts. The Court today, however, reaches the
merits of the respondent's Fourth Amendment claim, and
on the merits I join the Court's opinion.
CUPP v. MURPHY 301
291 DoUGLAS, J., dissenting m part
MR. JusTICE DouGLAs, dissenting in part.
I agree with the Court that exigent circumstances
existed making it likely that the fingernail scrapings of
suspect Ylurphy might vanish if he were free to move
about. The police would therefore have been justified
in detaining him while a search warrant was sought from
a magistrate. None was sought and the Court now
holds there ,vas probable cause to search or arrest, making
a warrant unnecessary.
Whether there was or was not probable cause is difficult
to determine on this record. It is a question that
the Court of Appeals never reached. We should therefore
remand to it for a determination of that question.
The question is clouded in my mind because the police
did not arrest Murphy until a month later. It is a case
not covered by Chimel v. California, 395 U. S. 752, on
which the Court relies, for in Chimel an arrest had been
made.
As the Court states. Oregon defines arrest as "the taking
of a person into custody so that he may be held to answer
for a crime." Ore. Rev. Stat. § 133.210. No such arrest
was made until a month after Murphy's fingernails were
scraped. As we stated in Johnson v. United States,
333 U. S. 10. 15 n. 5, "State law determines the validity
of arrests without warrant." The case is therefore on
all fours with Davis v. Mississippi, 394 U. S. 721, where
a suspect was detained for the sole purpose of obtaining
fingerprints but at the time the police were not detaining
him to charge him with the crime. Like the seizure
in this case, Davis involved an investigative seizure. In
Davis, at 727, as in Terry v. Ohio, 392 U. S. 1, 19, the
Court rejected the view that the Fourth Amendment
does not limit police conduct "if the officers stop short of
something called a. 'technical arrest' or a 'full-blown
search.'"
302 OCTOBER TERM, 1972
DoUGLAS, J., dissenting in part 412 u. s.
The reason why no arrest of Murphy was made on
the day his fingernails were scraped creates a nagging
doubt that they did not then have probable cause to
make an arrest and did not reach that conclusion until
a month later. Why was Murphy allowed to roam at
will, a free man, for the next month? The evolving pattern
of a conspiracy offense might induce the police to
turn a suspect loose in order to tail him and see what
other suspects could be brought into their net. But no
such circumstances were present here.
What the decision made today comes down to, I fear,
is that "suspicion" is the basis for a search of the person
without a warrant. Yet "probable cause" is the requirement
of the Fourth Amendment which is applicable to
the States by reason of the Fourteenth Amendment.
Mapp v. Ohio, 367 U. S. 643. Suspicion has never been
sufficient for a warrantless search, save for the narrow
situation of searches incident to an arrest as was involved
in Chimel. That exception is designed (see Schmerber
v. California, 384 U. S. 757, 769-770) to protect the
officer against assaults through weapons within easy
reach of the accused or to save evidence within that
narrow· zone from destruction. However, this is a case
where a warrant might have been sought but was not. It
is therefore governed by the rule that the rights of a
person "against unlawful search and seizure are to be
protected even if the same result might have been
achieved in a lawful way." Silverthorne Lumber Co. v.
United States, 251 U. S. 385. 392. No warrant could
have been issued by the police, for as we held in
Coolidge v. New Hampshire, 403 U. S. 443, 453, a warrant
must be issued by "the neutral and detached magistrate
required by the Constitution." And see Mancusi
v. DeForte, 392 U. S. 364, 371. As stated in Johnson v.
United States, 333 U. S., at 14, "When the right of privacy
must reasonably yield to the right of search 1s,
CUPP v. MURPHY 303
291 DoUGLAS, J., dissenting in part
as a rule, to be decided by a judicial officer, not by a
policeman or government enforcement agent." In that
case the officers, smelling opium, asked for entrance, which
was given. On entry, discovering that the accused was
the sole occupant, the police arrested her. "Thus the
Government is obliged to justify the arrest by the search
and at the same time to justify the search by the arrest.
This will not do." Id., at 16-17.
It will not do here either. As Boyd v. United States,
116 U. S. 616, stated, the Fourth Amendment is closely
related to the Self-Incrimination Clause of the Fifth.*
A warrantless search on suspicion, today sustained, gives
the police evidence otherwise protected by the Self-
Incrimination Clause of the Fifth Amendment. It was
in that regard that the Court in Boyd said: "[T]he
Fourth and Fifth Amendments run almost into each
other." Id., at 630. And that Court went on to say:
"For the 'unreasonable searches and seizures' condemned
in the Fourth Amendment are almost always made for
the purpose of compelling a man to give evidence against
himself, which in criminal cases is condemned in the
Fifth Amendment; and compelling a man 'in a criminal
case to be a witness against himself,' which is condemned
in the Fifth Amendment, throws light on the question
as to what is an 'unreasonable search and seizure' within
the meaning of the Fourth Amendment. And we have
been unable to perceive that the seizure of a man's private
books and papers to be used in evidence against him
is substantially different from compelling him to be a
*My Brother MARSHALL says that this privilege is confined to
cases where the evidence can be obtained only with the defendant's
cooperation. But that cxtt>nds even the boundaries set by Schmerber
v. California, involving forced giving of blood, 384 U. S. 757, 761,
with which my Brother MARSHALL disagrees. United States v.
Dionisio, 410 U. S. 1.
304 OCTOBER TERM, 1972
DouGLAs, ,J., dissenting in part 412 U.S.
witness against himself. We think it is within the clear
intent and meaning of those terms." Id., at 633.
The same can be said of incriminating evidence found
under a suspect's fingernails. See Rochin v. California,
342 U. S. 165. Moreover, the Fourth Amendment guarantees
the right of the people to be secure "in their persons."
Scraping a man's fingernails is an invasion of
that privacy and it is tolerable, constitutionally speaking,
only if there is a warrant for a search or seizure
issued by a magistrate on a showing of "probable cause"
that the suspect had committed the crime. There was
time to get a warrant; Murphy could have been detained
while one was sought; and that detention would
have preserved the perishable evidence the police sought.
A suspect on the loose could get rid of it; but a suspect
closely detained until a warrant is obtained plainly could
not.
Our approval of the shortcut taken to avoid the
Fourth and Fifth Amendments may be typical of this
age. Erosions of constitutional guarantees usually start
slowly, not in dramatic onsets. As stated in Boyd
"illegitimate and unconstitutional practices get their first
footing . . . by silent approaches and slight deviations
from legal modes of procedure." 116 U. S., at 635.
The issue of probable cause should be considered by
the Court of Appeals. On the record before us and the
arguments based on it I cannot say there was "probable
cause" for an arrest and for a search, since the arrest came
after a month's delay. The only weight we can put
in the scale:, to turn suspicion into probable cause is
Murphy's conviction by a jury based on the illegally
obtained evidence. That is but a simple way of making
the end justify the means--a principle wholly at war
with our constitutionally enshrined adversary system.
CUPP v. MURPHY 305
291 BRENN AN, J ., dissenting in part
MR. JUSTICE BRENNAN, dissenting in part.
Without effecting an arrest, and without first seeking to
obtain a search warrant from a magistrate, the police decided
to scrape respondent's fingernails for destructible
evidence. In upholding this search, the Court engrafts
another, albeit limited, exception on the warrant requirement.
Before we take the serious step of legitimating
even limited searches merely upon probable cause-without
a warrant or as incident to an arrest-we ought
first be certain that such probable cause in fact existed.
Here, as my Brother DouGLAS convincingly demonstrates
" [ w] hether there was or was not probable cause is difficult
to determine on this record." Ante, at 301. And,
since the Court of Appeals did not consider that question,
the proper course would be to remand to that
court so that it might decide in the first instance whether
there was probable cause to arrest or search. There is
simply no need for this Court to decide, upon a disputed
record and at this stage of the litigation, whether the
instant search would be permissible if probable cause
existed.
306 OCTOBER TERM, 1972
Syllabus 412 U.S.
DOE ET AL. v. McMILLAN ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
No. 71-6356. Argued December 13, 1972~Decided May 29, 1973
Petitioners, parents of District of Columbia (D. C.) school children,
brought this adion seeking damages and declaratory and injunctive
relief for invasion of privacy that they claimed resulted from
the dissemination of a congressional report on the D. C. school
system that included identification of students in derogatory contexts.
The named defendants induded members of a House committee,
Committee employees, a Committee investigator, and a consultant;
the Public Printer and the Superintendent of Documents;
and officials and employees connected with the school system. The
Court of Appeals affirmed the District Court's dismissal of the
complaint on the grounds that the first two categories of defendants
were immune by reason of the Speech or Debate Clause, and that
the D. C. officials and th<" legislative employees were protected by
the official immunity doctrine recognized in Barr v. Matteo, 360
U. S. 564. Held:
1. The congressional committee members, members of their staff,
the consultant, and the inwstigator are absolutely immune under
the Speech or Debate Clause insofar as they engaged in the legislative
acts of compiling the report, referring it to the House, or
voting for its publication. Pp. 311-313.
2. The Clause does not afford absolute immunity from private
suit to persons who, with authorization from Congress, perform
the function, which is not part of the legislative process, of publicly
distributing materials that allegedly infringe upon the rights
of individuals. The Court of Appeals, therefore, erred in holding
that respondents who (except for tho Committee members and
personnel) were charged with such public distribution were protected
by the Clause. Pp. 313-318.
3. The Public PrintE'r and the Superintendent of Documents are
protected by the doctrine of official immunity enunciated in
Barr v. Matteo, supra, for publishing and distributing the report
only to the extent that they served legitimate legislative functions
in doing so, and the Court of Appeals erred in holding that their
immunity extended beyond that limit. Pp. 318-324.
DOE v. McMILLAN 307
306 Opinion of the Court
148 U. S. App. D. C. 280, 459 F. 2d 1304, reversed in part, affirmed
in part, and remanded.
WHITE, J., delivered the opinion of the Court, in which DOUGLAS,
BRENNAN, l\.'1ARSHALL, and POWELL, JJ., joined. DouoLAs, J., filed
a concurring opinion, in which BREN)l"AN and MARSHALL, JJ., joined,
post, p. 325. BURGER, C. J., filed an opinion concurring in part and
dissenting in part, post, p. 331. BLACKMUN, J., filed an opinion
concurring in part and dissenting in part, in which BURGER, C. J.,
joined, post, p. 332. REHNQUIST, J., filed an opinion concurring in
part and dissenting in part, in which BURGER, C. J., and BLACKMUN,
J., joined, and in Part I of which STEWART, J., joined, post, p.
338.
Michael J. Valder argued the cause for petitioners.
With him on the brief was Jean Camper Cahn.
Fred M. Vinson, Jr., and William C. Cramer argued
the cause for the Legislative respondents. With them
on the brief were Robert S. Erdahl, James S. Rubin,
Richard M. Haber, Benton L. Becker, and Walter C.
De Vaughn. David P. Sutton argued the cause for the
District of Columbia respondents. With him on the
brief were C. Francis Murphy and Richard W. Barton.
MR. JUSTICE WHITE delivered the opinion of the
Court.
This case concerns the scope of congressional immunity
under the Speech or Debate Clause of the United States
Constitution, Art. I, § 6, cl. 1, as well as the reach of
official immunity in the legislative context. See Barr v.
Matteo, 360 U. S. 564 (1959); Tenney v. Brandhove,
341 U.S. 367 (1951).
By resolution adopted February 5, 1969, H. Res. 76,
91st Cong., 1st Sess., 115 Cong. Rec. 2784, the House
of Representatives authorized the Committee on the District
of Columbia or its subcommittee "to conduct a full
and complete investigation and study of ... the organi308
OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
zation, management, operation, and administration" of
any department or agency of the government of the
District of Columbia or of any independent agency or
instrumentality of government operating solely within
the District of Columbia. The Committee was given subpoena
power and was directed to "report to the House
as soon as practicable ... the results of its investigation
and study together with such recommendations as
it deems advisable." On December 8, 1970, a Special
Select Subcommittee of the Committee on the District
of Columbia submitted to the Speaker of the House a
report, H. R. Rep. No. 91-1681 (1970), represented to
be a summary of the Subcommittee's investigation and
hearings devoted to the public school system of the
District of Columbia. On the same day, the report was
ref erred to the Committee of the Whole House on the
State of the Union and was ordered printed. 116 Cong.
Rec. 40311 (1970). Thereafter, the report was printed
and distributed by the Government Printing Office pursuant
to 44 U. S. C. § § 501 and 701.
The 450-page report included among its supporting
data some 45 pages that are the gravamen of petitioners'
suit. Included in the pertinent pages were copies of
absence sheets, lists of absentees, copies of test papers,
and documents relating to disciplinary problems of certain
specifically named students.1 The report stated
that these materials were included to "give a realistic
view" of a troubled school and "the lack of administra-
1 The Court of Appeals' opinion terms the materials "somewhat
derogatory." The absentee lists named students who were frequent
"dass cutters." Of the 29 test papers published in the report., 21
bore failing grades; all included the name of the student being tested.
The letters, memoranda, and other documents relating to disciplinary
problems detailed conduct of specifically named students. Some of
the deviant conduct described involved sexual perversion and criminal
violations.
DOE v. McMILLAN 309
306 Opinion of the Court
tive efforts to rectify the multitudinous problems there,"
to show the level of reading ability of seventh graders
who were given a fifth-grade history test, and to illustrate
suspension and disciplinary problems.2
On January 8, 1971, petitioners, under pseudonyms,
brought an action in the United States District Court for
the District of Columbia on behalf of themselves, their
children, and all other children and parents similarly
situated. The named defendants were (1) the Chairman
and members of the House Committee on the District
of Columbia; (2) the Clerk, Staff Director, and
Counsel of the Committee; (3) a consultant and an investigator
for the Committee; ( 4) the Superintendent
of Documents and the Public Printer; ( 5) the President
and members of the Board of Education of the
District of Columbia; (6) the Superintendent of Public
Schools of the District of Columbia; ( 7) the principal of
Jefferson Junior High School and one of the teachers at
that school; and (8) the United States of America.
Petitioners alleged that, by disclosing, disseminating,
and publishing the information contained in the report,
the defendants had violated the petitioners' and their
children's statutory, constitutional, and common-law
rights to privacy and that such publication had caused
and would cause grave damage to the children's mental
and physical health and to their reputations, good names,
and future careers. Petitioners also alleged various violations
of local law. Petitioners further charged that
"unless restrained, defendants will continue to distribute
and publish information concerning plaintiffs, their
children and other students." The complaint prayed for
an order enjoining the defendants from further publication,
dissemination, and distribution of any report con-
2 The information was obtained voluntarily from District of Columbia
school personnel by Committee investigators.
310 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
taining the objectionable material and for an order recalling
the reports to the extent practicable and deleting
the objectionable material from the reports already in
circulation. Petitioners also asked for compensatory and
punitive damages.8
The District Court, after a hearing on motions for
a temporary restraining order and for an order against
further distribution of the report, dismissed the action
against the individual defendants on the ground that
the conduct complained of was absolutely privileged.'
A divided panel of the United States Court of Appeals
for the District of Columbia Circuit affirmed. Without
determining whether the complaint stated a cause of
action under the Constitution or any applicable law, the
majority held that the Members of Congress, the Committee
staff employees, and the Public Printer and Superintendent
of Documents were immune from the liability
asserted against them because of the Speech or Debate
Clause and that the official immunity doctrine recognized
in Barr v. Matteo, supra, barred any liability on the part
of the District of Columbia officials as well as the legislative
employees.5 We granted certiorari, 408 U. S. 922.
8 The prayer also included a request for an injunction prohibiting
future disclosure of "confidential information" and requiring the District
of Columbia School Board "to establish rules and regulations
regarding the confidentiality of school papers and the right of privacy
of students in the schools of the District of Columbia."
4 The District Court also dismissed the suit against the United
States for failure to exhaust administrative remedies. 28 U. S. C.
§ 2675 (a). That ruling is not challenged here.
5 The Court of Appeals also independently found that injunl'tivc
relief would not issue because of assurances from the federal defendants
that no republication or further distribution of the report was
contemplated. With respect to petitioners' request for injunctive
relief against the District of Columbia officials, the Court found that,
because of the adoption of new policies concerning confidential information,
"there is no substantial threat of future injury to appellants."
DOE v. McMILLAN 311
306 Opinion of the Court
I
To "prevent intimidation of legislators by the Executive
and accountability before a possibly hostile judiciary,"
Gravel v. United States, 408 U.S. 606, 617 (1972),
Art. I, § 6, cl. 1, of the Constitution provides that "for
any Speech or Debate in either House, they [Members
of Congress] shall not be questioned in any other Place."
"The Speech or Debate Clause was designed to assure
a co-equal branch of the government wide
freedom of speech, debate, and deliberation without
intimidation or threats from the Executive Branch.
It thus protects Members against prosecutions that
directly impinge upon or threaten the legislative
process." Id., at 616.0
The Speech or Debate Clause has been read "broadly
to effectuate its purposes," United States v. Johnson,
383 U. S. 169, 180 (1966); Gravel v. United States, supra,
at 624, and includes within its protections anything
"generally done in a session of the House by one of its
members in relation to the business before it." Kilbourn
v. Thompson, 103 U. S. 168, 204 (1881); United States
v. Johnson, supra, at 179; Gravel v. United States, supra,
at 624; Powell v. McCormack, 395 U.S. 486,502 (1969);
United States v. Brewster, 408 U. S. 501, 509, 512-513
(1972). Thus "voting by Members and committee reports
are protected" and "a Member's conduct at legislative
committee hearings, although subject to judicial
review in various circumstances, as is legislation itself,
-0 "Our speech or debate privilege was designed to preserve legislative
independence, not supremacy. Our task, therefore, is to apply
the Clause in such a way as to insure the independence of the legislature
without altering the historic balance of the three co-equal
branches of Government." United States v. Brewster, 408 U. S. 501,
508 (1972).
312 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
may not be made the basis for a civil or criminal judgment
against a Member because that conduct is within
the 'sphere of legitimate legislative activity.' " Gravel
v. United States, supra, at 624.
Without belaboring the matter further, it is plain to
us that the complaint in this case was barred by the
Speech or Debate Clause insofar as it sought relief from
the Congressmen-Committee members, from the Committee
staff, from the consultant, or from the investigator,
for introducing material at Committee hearings that
identified particular individuals, for referring the report
that included the material to the Speaker of the House,
and for voting for publication of the report. Doubtless,
also, a published report may, without losing Speech or
Debate Clause protection, be distributed to and used
for legislative purposes by Members of Congress, congressional
committees, and institutional or individual
legislative functionaries. At least in these respects, the
actions upon which petitioners sought to predicate liability
were "legislative acts," Gravel v. United States,
supra, at 618, and, as such, were immune from suit.7
Petitioners argue that including in the record of the
hearings and in the report itself materials describing
particular conduct on the part of identified children was
actionable because unnecessary and irrelevant to any
legislative purpose. Cases in this Court, however, from
Kilbourn to Gravel pretermit the imposition of liability
on any such theory. Congressmen and their aides are
immune from liability for their actions within the "legislative
sphere," Gravel v. United States, supra, at 624-625,
even though their conduct, if performed in other than
0 In Gravel, we held that "the Speech or Debate Clause applies
not only to a Member but also to his aides insofar as the conduct
of the latter would be a protected legislative act if performed by
the Member himself." Gravel v. United States, 408 U. S. 606, 618
(1972).
DOE v. McMILLAN 313
306 Opinion of the Court
legislative contexts, would in itself be unconstitutional or
otherwise contrary to criminal or civil statutes. Although
we might disagree with the Committee as to
whether it was necessary, or even remotely useful, to
include the names of individual children in the evidence
submitted to the Committee and in the Committee
Report, we have no authority to oversee the judgment
of the Committee in this respect or to impose liability
on its Members if we disagree with their legislative judgment.
The acts of authorizing an investigation pursuant
to which the subject materials were gathered, holding
hearings where the materials were presented, preparing a
report where they were reproduced, and authorizing the
publication and distribution of that report were all "integral
part[s] of the deliberative and communicative
processes by which Members participate in committee
and House proceedings with respect to the consideration
and passage or rejection of proposed legislation or with
respect to other matters which the Constitution places
within the jurisdiction of either House." Id., at 625.
As such, the acts were protected by the Speech or Debate
Clause.
Our cases make perfectly apparent, however, that
everything a Member of Congress mfi-y regularly do is
not a legislative act within the protection of the Speech
or Debate Clause. "[T] he Clause has not been extended
beyond the legislative sphere," and "[l] egislative
acts are not all-encompassing." Id., at 624---625. Members
of Congress may frequently be in touch with and
seek to influence the Executive Branch of Government,
but this conduct "though generally done, is not protected
legislative activity." Id., at 625; United States v.
Johnson, supra. ~or does the Speech or Debate Clause
protect a private republication of documents introduced
and made public at a committee hearing, although the
314 OCTOBER TERM, 1972
Opinion of the Court 412 u. s.
hearing was unquestionably part of the legislative process.
Gravel v. United States, supra.
The proper scope of our inquiry, therefore, is whether
the Speech or Debate Clause affords absolute immunity
from private suit to persons who, with authorization from
Congress, distribute materials which allegedly infringe
upon the rights of individuals. The respondents insist
that such public distributions are protected, that the
Clause immunizes not only publication for the information
and use of Members in the performance of their
legislative duties but also must be held to protect "publications
to the public through the facilities of Congress."
Public dissemination, it is argued, will serve "the
important legislative function of informing the public
concerning matters pending before Congress . . . ."
Brief for Legislative Respondents 27.
We do not doubt the importance of informing the
public about the business of Congress. However, the
question remains whether the act of doing so, simply
because authorized by Congress, must always be considered
"an integral part of the deliberative and communicative
processes by which Members participate in
committee and House proceedings" with respect to legislative
or other matters before the House. Gravel v.
United States, supra, at 625. A Member of Congress
may not with impunity publish a libel from the speaker's
stand in his home district, and clearly the Speech or
Debate Clause would not protect such an act even though
the libel was read from an official committee report.8
The reason is that republishing a libel under such cir-
8 The republication of a libel. in circumstances where the init.i11J
publication is privileged, is generally unprotected. See generally
1 F. Harper & F. James, The Law of Torts§ 5.18 (1956); W. Prosser,
Torts 766-769 (4th ed. 1971). See also Gravel v. United State.s, 408
U. S., at 622-627.
DOE v. McMILLAN 315
306 Opinion of the Court
cumstances is not an essential part of the legislative process
and is not part of that deliberative process "by which
Members participate in committee and House proceedings."
Ibid. By the same token, others, such as the
Superintendent of Documents or the Public Printer or
legislative personnel, who participate in distribution of
actionable material beyond the reasonable bounds of the
legislative task, enjoy no Speech or Debate Clause
immunity.
Members of Congress are themselves immune for ordering
or voting for a publication going beyond the reasonable
requirements of the legislative function, Kilbourn
v. Thompson, supra, but the Speech or Debate Clause
no more insulates legislative functionaries carrying out
such nonlegislative directives than it protected the Sergeant
at Arms in Kilbourn v. Thompson when, at the
direction of the House, he made an arrest that the courts
subsequently found to be "without authority." 103 U.S.,
at 200.9 See also Powell v. McCormack, 395 U.S., at 504;
cf. Dombrowski v. Eastland, 387 U. S. 82 ( 1967). The
Clause does not protect "criminal conduct threatening
the security of the person or property of others, whether
performed at the direction of the Senator in preparation
for or in execution of a legislative act or done without
his knowledge or direction." Gravel v. United States,
supra, at 622. Neither, we think, does it immunize those
who publish and distribute otherwise actionable materials
9 "In Kilbourn, the Speech or Debate Clause protected House
Members who had adopted a resolution authorizing Kilboum's
arrest; that act was clearly legislative in nature. But the resolution
was subject to judicial review insofar as its execution impinged
on a citizen's rights as it did there. That the House eould with
impunit:-,· order an unconstitutional arrest afforded no protection for
those who made the arrest." Gravel v. United States, 408 U. S.,
at 618.
316 OCTOBER TER:vI, 1972
Opinion of the Court 412 U.S.
beyond the reasonable requirements of the legislative
function.10
Thus, we cannot accept the proposition that in order
to perform its legislative function Congress not only must
at times consider and use actionable material but also
must be free to disseminate it to the public at large, no
matter how injurious to private reputation that material
might be. We cannot believe that the purpose of
the Clause-"to prevent intimidation of legislators by
the Executive and accountability before a possibly hostile
judiciary," Gravel v. United States, supra, at 617;
Powell v. McCormack, supra, at 502; United States v.
Johnson, 383 U. S., at 181-will suffer in the slightest if
it is held that those who, at the direction of Congress
or otherwise, distribute actionable material to the public
at large have no automatic immunity under the
Speech or Debate Clause but must respond to private
suits to the extent that others must respond in light of
the Constitution and applicable Iaws.11 To hold other-
10 Although, as pointed out by my dissenting Brethren, the acts
of Senator Gravel were not ordered or authorized by Congress or
a congressional committee, Gravel v. United States, 408 U. S., at
626, the fact of congressional authorization for the questioned act
is not sufficient to insulate the act from judicial scrutiny. In Powell
v. McCormack, 395 U. S. 486 (1969), for instance, we reviewed the
acts of House employees "acting pursuant to express orders of the
House." Id., at 504. We concluded that "although an action
against a. Congressman may be barred by the Speech or Debate
Clause, legislative employees•who participated in the unconstitutional
activity are responsible for their acts." Ibid. Sec also Kilbourn v.
Thompson, 103 U. S. 168 (1881); Dombrowski v. Eastland, 387
U.S. 82 (1967).
11 We have no occasion in this case to decide whether or under what
circumstances, the Speech or Debate Clause would afford immunity
to distributors of allegedly actionable materials from grand jury
questioning, crimina.J charges, or a suit by the executive to restrain
distribution, where Congress has authorized the particular public
distribution.
DOE v. McMILLAN 317
306 Opinion of the Court
wise would be to invite gratuitous injury to citizens for
little if any public purpose. We are unwilling to sanction
such a result, at least absent more substantial evidence
that, in order to perform its legislative function,
Congress must not only inform the public about the
fundamentals of its business but also must distribute
to the public generally materials otherwise actionable
under local law.
Contrary to the suggestion ·of our dissenting Brethren,
we cannot accept the proposition that our conclusion,
that general, public dissemination of materials otherwise
actionable under local law is not protected by the
Speech or Debate Clause, will seriously undermine the
"informing function" of Congress. To the extent that
the Committee report is printed and internally distributed
to Members of Congress under the protection of the
Speech or Debate Clause, the work of Congress is in no
way inhibited. Moreover, the internal distribution is
"public" in the sense that materials internally circulated,
unless sheltered by specific congressional order, are available
for inspection by the press and by the public. We
only deal, in the present case, with general, public distribution
beyond the halls of Congress and the establishments
of its functionaries, and beyond the apparent
needs of the "due functioning of the [legislative] process."
United States v. Brewster, 408 U. S., at 516.
That the Speech or Debate Clause has finite limits is
important for present purposes. The complaint before
us alleges that the respondents caused the Committee
report "to be distributed to the public," that "distribution
of the report continues to the present," and that,
"unless restrained, defendants will continue to distribute
and publish" damaging information about petitioners and
their children. It does not expressly appear from the
complaint, nor is it contended in this Court, that either
the Members of Congress or the Committee personnel did
318 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
anything more than conduct the hearings, prepare the
report, and authorize its publication. As we have stated,
such acts by those respondents are protected by the
Speech or Debate Clause and may not serve as a
predicate for a suit. The complaint was therefore
properly dismissed as to these respondents. Other respondents,
ho,vever, are alleged to have carried out a
public distribution and to be ready to continue such
dissemination.
In response to these latter allegations, the Court of Appeals,
after receiving sufficient assurances from the respondents
that they had no intention of seeking a republication
or carrying out further distribution of the report,
concluded that there was no basis for injunctive relief.
But this left the question ·whether any part of the previous
publication and public distribution by respondents
other than the Members of Congress and Committee personnel
went beyond the limits of the legislative immunity
provided by the Speech or Debate Clause of the Constitution.
Until that question was resolved, the complaint
should not have been dismissed on threshold immunity
grounds, unless the Court of Appeals was correct
in ruling that the action against the other respondents
was foreclosed by the doctrine of official immunity, a
question to which we now turn.12
II
The official immunity doctrine, which "has in large
part been of judicial making," Barr v. Matteo, 360 U. S.,
12 While an inquiry such as is involved in the present case, because
it involves two coordinate branches of Government, must necessarily
have separation of powers implications, the separation of powers doctrine
has not previously prevented this Court from reviewing the
acts of Congress, see, e. g., Kilbourn v. Thompson, supra; Dombrowski
v. Eastland, supra, even when the Executive Branch is also
involved, see, e. g., United States v. Brewster, supra; Gravel v.
United States, supra.
DOE v. McMILLAN 319
306 Opinion of the Court
at 569, confers immunity on Government officials of
suitable rank for the reason that "officials of government
should be free to exercise their duties unembarrassed
by the fear of damage suits in respect of acts
done in the course of those duties-suits which would
consume time and energies which would otherwise be
devoted to governmental service and the threat of which
might appreciably inhibit the fearless, vigorous, and effective
administration of policies of government." Id., at
571.13 The official-immunity doctrine seeks to reconcile
two important considerations-
" [ 0] n the one hand, the protection of the individual
citizen against pecuniary damage caused by oppressive
or malicious action on the part of officials of
the Federal Government; and on the other, the protection
of the public interest by shielding responsible
governmental officers against the harassment and
inevitable hazards of vindictive or ill-founded damage
suits brought on account of action taken in the
exercise of their official responsibilities." Id., at 565.
In the Barr case, the Court reaffirmed existing immunity
law but made it clear that the immunity conferred
might not be the same for all officials for all purposes.
Id., at 573; see also Tenney v. Brandhove, 341 l'. S.,
at 378; Dombrowski v. Eastland, 387 U. S., at 85.
Judges, like executive officers ,vith discretionary functions,
have been held absolutely immune regardless of
their motive or good faith. Barr v. Matteo, supra, at
569; Pierson v. Ray, 386 U.S. 547, 553-555 (1967). But
policemen and like officials apparently enjoy a more
limited privilege. J.d., at 555-558. Also, the Court determined
in Barr that the scope of immunity from
13 Both bdore nnd after Barr, offirial immunity has been helct upplieable
to officinls of the Legislative Brnnch. See Tenney Y. Brandhove,
341 F. S. 367 (1951); Dombrowski Y. Eastland. supra.
320 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
defamation suits should be determined by the relation
of the publication complained of to the duties entrusted
to the officer. Barr v. Matteo, supra, at 573-574; see also
the companion case, Howard v. Lyons, 360 U. S. 593,
597-598 (1959). The scope of immunity has always
been tied to the "scope of ... authority." Wheeldin v.
Wheeler, 373 U. S. 647, 651 (1963). In the legislative
context, for instance, "[t]his Court has not hesi'tat~d
to sustain the rights of private individuals when it found
Congress was acting outside its legislative role." Tenney
v. Brandhove, supra, at 377. Thus, we have recognized
"the immunity of legislators for acts within the
legislative role," Pierson v. Ray, supra, at 554, but have
carefully confined that immunity to protect only acts
within "the sphere of legitimate legislative activity."
Tenney v. Brandhove, supra, at 376; cf. Powell v. Mc-
Cormack, supra.
Because the Court has not fashioned a fixed, invariable
rule of immunity but has advised a discerning inquiry
into whether the contributions of immunity to effective
government in particular contexts outweigh the perhaps
recurring harm to individual citizens, there is no readymade
answer as to whether the remaining federal respondents-
the Public Printer and the Superinttmdent of
Documents-should be accorded absolute immunity in
this case. Of course, to the extent that they serve legislative
functions, the performance of which would be immune
conduct if done by Congressmen, these officials
enjoy the protection of the Speech or Debate Clause.
Our inquiry here, however, is whether, if they participate
in publication and distribution beyond the legislative
sphere, and thus beyond the protection of the Speech or
Debate Clause, they are nevertheless protected by the
doctrine of official immunity. Our starting point is at
least a minimum familiarity with their functions and
duties.
DOE v. McMILLAN 321
306 Opinion of the Court
The statutes of the United States created the office of
Public Printer to manage and supervise the Government
Printing Office, which, with certain exceptions, is the authorized
printer for the various branches of the Federal
Government. 44 U. S. C. § 301. "Printing or binding
may be done at the Government Printing Office only
when authorized by law." § 501. The Public Printer
is authorized to do printing for Congress, § § 701-741,
901-910, as well as for the Executive and Judicial
Branches of Government, §§ 1101-1123. The Public
Printer is authorized to appoint the Superintendent of
Documents with duties concerning the distribution and
sale of documents. §§ 1701-1722.
Under the applicable statutes, when either House of
Congress orders a document printed, the Public Printer
is to print the "usual number" unless a greater number
is ordered. § 701. The "usual number" is 1,682, to be
divided between bound and unbound copies and distributed
to named officers or offices of the House and
Senate, to the Library of Congress, and to the Superintendent
of Documents for further distribution "to the
State libraries and designated depositories." Ibid.14
There are also statutory provisions for the printing of
extra copies, § 702, bills and resolutions, §§ 706-708, public
and private laws, postal conventions, and treaties,
§§ 709-712, journals, § 713, the Congressional Directory,
§§ 721-722, memorial addresses,§§ 723- 724, and the Statutes
at Large, §§ 728-729. Section 733 provides that
" [ t] he Public Printer on order of a Member of Congress,
on prepayment of the cost, may reprint documents and
reports of committees together with the evidence papers
submitted, or any part ordered printed by the Congress."
11 For the authorization to supply sufficient copies for such distribution
see 44 U. S. C. § 738. The Public Printer is also required to
furnish the Department of State with 20 copies of all congressional
documents and reports. § 715.
322 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
With respect to printing for the Executive and Judicial
Branches, it is provided that "[a] head of an executive
department ... may not cause to be printed, and the
Public Printer may not print, a document or matter
unless it is authorized by law and necessary to the public
business." § 1102 (a). The executive departments and
the courts are to requisition printing by certifying that
it is "necessary for the public service." § 1103.
The Superintendent of Documents has charge of the
distribution of all public documents except those printed
for use of the executive departments, "which shall be.
delivered to the departments," and for either House of
Congress,· "which shall be delivered to the Senate Service
Department and House of Representatives Publications
Distribution Service." § 1702. He is thus in charge of
the public sale and distribution of documents. The Public
Printer is instructed to "print additional copies of a
Government publication, not confidential in character,
required for sale to the public by the Superintendent of
Documents," subject to regulation by the Joint Committee
on Printing. § 1705.
It is apparent that under this statutory framework,
the printing of documents and their general distribution
to the public would be "within the outer perimeter" of
the statutory duties of the Public Printer and the Superintendent
of Documents. Barr v. Mateo, 360 U. S., at
575. Thus, if official immunity automatically attaches
to any conduct expressly or impliedly authorized by law,
the Court of Appeals correctly dismissed the complaint
against these officials. This, however, is not the governing
rule.
The duties of the Public Printer and his appointee, the
Superintendent of Documents, are to print, handle, distribute,
and sell Government documents. The Government
Printing Office acts as a service organization for
the branches of the Government. What it prints is proDOE
v. :Mc::VHLLAN 323
306 Opinion of the Court
duced elsewhere and is printed and distributed at the
direction of the Congress, the departments, the independent
agencies and offices, or the Judicial Branch of the
Government. The Public Printer and Superintendent
of Documents exercise discretion only with respect to
estimating the demand for particular documents and adjusting
the supply accordingly. The existence of a Public
Printer makes it unnecessary for every Government
agency and office to have a printer of its own. The Printing
Office is independently created and manned and
invested with its own statutory duties; but, ,ve do not
think that its independent establishment carries with it
an independent immunity. Rather, the Printing Office
is immune from suit when it prints for an executive department
for example, only to the extent that it would
be if it were part of the department itself or, in other
words, to the extent that the department head himself
would be immune if he ran his own printing press and
distributed his own documents. To hold otherwise would
mean that an executive department could acquire immunity
for non-immune materials merely by presenting
the proper certificate to the Public Printer, who would
then have the duty to print the material. Under such a
holding, the department would have a seemingly foolproof
method for manufacturing immunity for materials
which the court would not otherwise hold immune if not
sufficiently connected with the "official duties" of the
department. Howard v. Lyons, -360 U. S., at 597.
Congress has conferred no express statutory immunity
on the Public Printer or the Superintendent of Documents.
Congress has not provided that these officials
should be immune for printing and distributing materials
where those who author the materials would not be.
We thus face no statutory or constitutional problems in
interpreting this doctrine of "judicial making." Barr v.
Matteo, 360 U. S .. at 569. We do, however, write in the
324 OCTOBER TERM, 1972
Opinion of the Court 412 u. s.
shadow of B~ard of Regents of State Colleges v. Roth, 408
U. S. 564 (1972), and Wisconsin v. Constantineau, 400
U. S. 433 (1971), where the Court advised caution
"[w]here a person's good name, reputation, honor, or
integrity is at stake because of what the government is
doing to him .... " Id., at 437. We conclude that, for
the purposes of the judicially fashioned doctrine of immunity,
the Public Printer and the Superintendent of
Documents are no more free from suit in the case before us
than would be a legislative aide who made copies of the
materials at issue and distributed them to the public at
the direction of his superiors. See Dombrowski v. Eastland,
387 U.S. 82 (1967). The scope of inquiry becomes
equivalent to the inquiry in the context of the Speech
or Debate Clause, and the answer is the same. The
business of Congress is to legislate; Congressmen and
aides are absolutely immune when they are legislating.
But when they act outside the "sphere of legitimate
legislative activity," Tenney v. Brandhove, 341 U. S., at
376, they enjoy no special immunity from local laws protecting
the good name or the reputation of the ordinary
citizen.
Because we think the Court of Appeals applied the
immunities of the Speech or Debate Clause and of the
doctrine of official immunity too broadly, we must reverse
its judgment and remand the case for appropriate further
proceedings.1 5 \Ve are unaware, from this record,
of the extent of the publication and distribution of the
report which has taken place to date. Thus, we have
little basis for judging whether the legitimate legislative
needs of Congress, and hence the limits of immunity,
1 5 With respect to the District of Columbia respondents, the Court
of Appeals found that they were acting within t he scope of their
authority under applicable law and, as a result, were immune from
suit. We do not disturb the judgment of the Court of Appeals in
this respect.
DOE v. McMILLAN 325
306 DoUGLAs, J., concurring
have been exceeded. These matters are for the lower
courts in the first instance.
Of course, like the Court of Appeals, we indicate nothing
as to whether petitioners have pleaded a good cause
of action or whether respondents have other defenses,
constitutional or otherwise. We have dealt only with
the threshold question of immunity.16
The judgment of the Court of Appeals is reversed in
part and affirmed in part, and the case is remanded to
the Court of Appeals for further proceedings consistent
with this opinion.
So ordered.
MR. JusTICE DOUGLAS, whom MR. JUSTICE BRENNAN
and MR. JuSTICE MARSHALL join, concurring.
I agree with the Court that the issue tendered is
justiciable, and that the complaint states a cause of action.
Though I join the opinion of the Court, I amplify
my own views as they touch on the merits.
I
Respondents, relying primarily on Gravel v. United
States, 408 U. S. 606, urge that the report, concededly
part and parcel of the legislative process, is immune
from the purview of the courts under the Speech or
Debate Clause of Art. I, § 6, of the Constitution.1 In
Gravel we held that neither Senator Gravel nor his
1 6 We thus have no occasion to consider Art. I, § 5, cl. 3, which
requires that "Each House shall keep a Journal of its Proceedings,
and from time to time publish the same, excepting such Parts as
may in their Judgment require Secrecy ... "; nor need we deal
with publications of the Judicial Branch and the legal immunities
that may be attached thereto.
1 That Clause in relevant part provides:
"[A]nd for any Speech or Debate in either House, [Senators and
Representatives] shall not be questioned in any other Place."
326 OCTOBER TERM, 1972
DouGLAS, J., concurring 412 U.S.
aides could be held accountable or questioned with respect
to events occurring at the subcommittee hearing
at which the Pentagon Papers were introduced into the
public record. The immunity in that case attached to
the Senator and his aides, and there is no intimation
whatsoever that committee reports are sacrosanct from
judicial scrutiny. In fact, the Court disclaimed any need
to "address issues that may arise when Congress or either
House, as distinguished from a single Member, orders
the publication and/or public distribution of committee
hearings, reports, or other materials." 2 Id., at 626 n. 16.
"Legislative immunity does not, of course, bar all
judicial review of legislative acts." Powell v. McCormack,
395 U. S. 486, 503. "The purpose of the protection
afforded legislators is not to forestall judicial review
of legislative action but to insure that legislators are not
distracted from or hindered in the performance of their
legislative tasks by being called into court to defend their
actions." Id., at 505. This has been clear since Mr. Chief
Justice Marshall's seminal decision in Marbury v. Madison,
l Cranch 137. \Ve always have recognized the
"judicial power to determine the validity of legislative
actions impinging on individual rights." Gravel v.
United States, supra, at 620.
In Kilbourn v. Thompson, 103 U. S. 168, the Court's
first decision to consider the Speech or Debate Clause,
the Court held unconstitutional a resolution of the
House ordering the arrest of Kilbourn for refusing to
honor a subpoena of a House investigating committee,
since the House had no power to punish for contempt.
Although the Court barred a claim for false imprisonment
against Members of the House, it nevertheless
2 The Committee report was transmitted to the House by the
Chairman of the Committee, was referred to the Calendar of the
Committee of the Whole House on the State of the Union, and was
ordered to be printed.
DOE v. McMILLAN 327
306 DOUGLAS, J., concurring
reached the merits of Kilbourn's claim and allowed an
action against the House's Sergeant at Arms, who had executed
the warrant for Kilbourn's arrest.
Dombrowski v. Eastland, 387 U. S. 82, involved suits
for an injunction and for damages against a Senator who
headed a subcommittee of the Senate Judiciary Committee
and counsel to the subcommittee for wrongful and
unlawful seizure of property in violation of the Fourth
Amendment. We agreed that the complaint against the
Senator must be dismissed because the record "does not
contain evidence of his involvement in any activity that
could result in liability." Id., at 84. As respects counsel
to the subcommittee we held, in reliance on Tenney v.
Brandhove., 341 U. S. 367, that the immunity granted by
the Speech or Debate Clause "is less absolute, although
applicable, when applied to officers or employees of a
legislative body, rather than to legislators themselves."
387 U. S., at 85. Accordingly, we remanded the case
against counsel to the subcommittee for trial because
there was "a sufficient factual dispute" to require a trial.
Acts done in violation of the Fourth Amendment-like
assaults with fists or clubs or guns-are outside the protective
ambit of the Speech or Debate Clause; certainly
violations of the Fourth Amendment are not within the
scope of a legitimate legulative purpose.
A striking illustration of the same principle was stated
in Watkins v. United States, 354 U. S. 178, 188: "The
Bill of Rights is applicable to investigations as to all
forms of governmental action. Witnesses cannot be compelled
to give evidence against themselves. They cannot
be subjected to unreasonable search and seizure. Nor
can the First Amendment freedoms of speech, press,
religion, or political belief and association be abridged."
And see Barenblatt v. United States, 360 U. S. 109,
153, 166 (dissenting opinions of Black and BRENNAN, JJ.).
A witness subpoenaed to testify before a congressional
328 OCTOBER TERM, 1972
DouaLAS, J., concurring 412 u. s.
committee may not be forced to reveal his beliefs. One's
conscience and though ts are matters of privacy as is
the whole array of one's beliefs or values. And, as
Watkins indicates, a witness refusing to so testify may
not be punished for contempt. Violation.s of the commands
of the First Amendment are not within the scope
of a legitimate legislative purpose.
I cannot agree, then, that the question for us is
"whether ["public dissemination], simply because authorized
by Congress, must always be considered 'an integral
part of the deliberative and communicative processes by
which Members participate in committee and House proceedings'
with respect to legislative or other matters
before the House." A legislator's function in informing
the public concerning matters before Congress or concerning
the administration of Government is essential to
maintaining our representative democracy. Unless we
are to put blinders on our Congressmen and isolate them
from their constituents, the informing function must be
entitled to the same protection of the Speech or Debate
Clause as those activities which relate directly and necessarily
to the immediate function of legislating. See
Gravel v. United States, supra, at 634-637 (DOUGLAS, J.,
dissenting), id., at 649- 662 (BRENNAN, J., dissenting).
In my view the question to which we should direct our
attention is whether the House Report infringes upon the
constitutional rights of petitioners and therefore is subject
to scrutiny by the federal courts.
II
The House authorized its District Committee "to conduct
a full and complete investigation and study of ...
( 1) the organization, management, operation, and administration
of any department or agency of the government
of the District of Columbia; (2) the organization, management,
operation, and administration of any independl
DOE v. McMILLAN 329
306 DouGLAS, J., concurring
ent agency or instrumentality of government operating
solely in the District of Columbia." 3
It was pursuant to this investigation and study that the
report in effect brands certain named students as juvenile
delinquents. As stated by Judge Wright in his
dissent below:
"The material included in the Committee report
is not, as the majority contends, merely 'somewhat
derogatory.' One disciplinary letter, for example,
alleges that a specifically named child was 'involved
in the loss of fifty cents' and 'invited a male substitute
to have sexual relations with her, gapping
her legs open for enticement.' Similar letters accused
named children of disrespect, profanity, vandalism,
assault and theft. Of the 29 test papers
published in the report, 21 bore failing grades. Yet
appellants seek only to prohibit use of the children's
names ·without their consent. They do not contest
the propriety of the investigation generally, nor
do they seek to enjoin the conclusions or text of
the report. Indeed, they do not even challenge the
right of Congress to examine and summarize the
confidential material involved. They wish only to
retain their anonymity." 148 U. S. App. D. C. 280,
300, 459 F. 2d 1304, 1324.
\Ve all should be painfully aware of the potentially
devastating effects of congressional accusations.
There are great stakes involved when officials condemn
individuals by name. The age of technology has
produced data banks into which all social security numbers
go; and following those numbers go data in designated
categories concerning the lives of members of our
communities. Arrests go in, though many arrests are
unconstitutional. Acts of juvenile delinquency are per-
3 II. Res. 76, 91st Cong., 1st Sess., 115 Cong. Rec. 2784.
OCTOBER TERM, 1972
DouGLAS, J., concurring 412 U.S.
manently recorded and they and other alleged misdeeds
or indiscretions may be devastating to a person in later
years when he has outgrown youthful indiscretions and
is trying to launch a professional career or move into
a position where steadfastness is required.
Congress, in naming the students without justification
exceeded the "sphere of legitimate legislative activity."
Tenney v. Brandhove, 341 U. S., at 376. There can be no
question that the resolution authorizing the investigation
and study expressed a legitimate legislative purpose.
Nevertheless, neither the investigatory nor, indeed,
the informing function of Congress authorizes any
"congressional power to expose for the sake of exposure.''
Watkins v. United States, 354 U.S., at 200. To the contrary,
there is simply "no general authority to expose the
private affairs of individuals without justification in terms
of the functions of the Congress." Id., at 187. The
names of specific students were totally irrelevant to the
purposes of the study. The functions of the Committee
would have been served equally well if the students had
remained anonymous.
It is true, of course, tha.t members of Congress may,
even in a case such as this, retain their immunity under
the Speech or Debate Clause. But in this case, both the
Public Printer and the Superintendent of Documents,
official agencies entrusted by Congress with printing responsibilities,
are named as defendants. And in the
context of this ca.se, such defendants may be held responsible
for their actions. See Powell v. McCormack, supra;
Dombrowski v. Eastland, supra; Kilbourn v. Thompson,
supra.
At the very least petitioners are entitled to injunctive
relief. The scope of the injunction and against whom
it should operate only can be determined upon remand
after a full hearing on the facts. We cannot say whether
there is a threat of future public distribution or whether
DOE v. McMILLAN 331
306 Opinion of B URGER, C . J.
it will be feasible for any person subject to the equitable
powers of the court to excise the students' names from
reports previously distributed. With respect to damages-
that is, whether respondents, including the members
of the District of Columbia Government if a valid
claim is stated against them, are protected by the doctrine
of official immunity as set forth in the opinion for
the Court-I agree that it is a matter for the lower courts
in the first instance.
MR. CHIEF JusTICE BURGER, concurring m part and
dissenting in part.
I cannot accept the proposition that the judiciary has
power to carry on a continuing surveillance of what Congress
may and may not publish by way of reports on
inquiry into subjects plainly within the legislative powers
conferred on Congress by the Constitution. The inquiries
conducted by Congress here were within its broad legislative
authority and the specific powers conferred by
Art. I, § 8, cl. 17.
It seems extraordinary to me that we grant to the staff
aides of Members of the Senate and the House an immunity
that the Court today denies to a very senior functionary,
the Public Printer. Historically and functionally
the Public Printer is simply the extended arm of the
Congress itself, charged by law with executing congressional
commands.
Very recently, in United States v. Brewster, 408 U. S.
501, 516 (1972), we explicitly took note of the "conscious
choice" made by the authors of the Constitution to give
broad privileges and protection to Members of Congress
for acts within the scope of their legislative function.
As JUSTICES BLACKMUN and REHNQUIST have demonstrated
so well, the acts here complained of were not
outside the traditional legislative function of Congress.
I join fully in the concurring and dissenting opinion of
332 OCTOBER TERM, 1972
Opinion of BLACKMUN, .T. 412 u. s.
MR. JUSTICE BLACKMUN, post, this page, and that of
MR. JFSTICE REHNQUIST, post, p. 338.
MR. Jt:-sTICE BLACKMUN, with whom THE CHIEF Jus-
TICE joins, concurring in part and dissenting in part.
I join MR. JusTICE REHNQursr's opinion, post, p. 338,
but add some comments of my own.
Each step in the legislative report process. from the
gathering of information in the course of an officially
authorized investigation to and including the official
printing and official distribution of that information in
the formal report. is legitimate legislative activity and
is designed to fulfill a particular objective. More often
than not, when a congressional committee prepares a
report, it does so not only with the object of advising
fellow Members of Congress as to the subject matter,
but with the further objects ( 1) of advising the public
of proposed legislative action, (2) of informing the public
of the presence of problems and issues, (3) of receiving
from the public, in return, constructive comments and
suggestions, and ( 4) of enabling the public to evaluate
the performance of their elected representatives in the
Congress. The Court has recognized and specifically emphasized
the importance, and the significant posture, of
the committee report as an integral part of the legislative
process when, repeatedly and clearly, it has afforded
speech or debate coverage for a Member's writing, signing,
or voting in favor of a committee report just as it
has for a Member's speaking in formal debate on the
floor. Gravel v. United States, 408 U. S. 606, 617, 624
(1972); Powell v. McCormack, 395 U.S. 486,502 (1969);
Kilbourn v. Thompson, 103 U.S. 168,204 (1881).1 That
' We are to read the Speech or Debate Clause "broadly to effectuate
its purposes." United States v. Johnson, 383 U. S. 169, 180
(1966); Gravel v. United States, 408 U. S. 606, 624 (1972). The
"central role" of the Clause is "to prevent intimidation of legislators
DOE v. McMILLAN 333
306 Opinion of BLACKMu::-r, J.
protection is preserved by the Court in this case, ante,
at 311-313, because the Court appreciates that Congress
must possess uninhibited internal communication.
The Court previously has observed that Congress possesses
the power "to inquire into and publicize corruption,
maladministration or inefficiency in the agencies of
the Government" because the public is "entitled to be
informed concerning the workings of its government."
Watkins v. United States, 354 U. S. 178, 200 and n. 33
( 1957). Indeed, as to this kind of activity, Woodrow
Wilson long ago observed, "The informing function of
Congress should be preferred even to its legislative function."
2 The Speech or Debate Clause is an outgrowth
of the English doctrine that the courts should not be
utilized as instruments to impede the efficient functionby
the Executive and accountability before a possibly hostile judiciary,"
id., at 617. The breadth of coverage of the Speech or
Debate Clause must be no less extensive than the legislative process
it is designed .to protect, for the Clause insures for Congress "wide
freedom of speech, debate, and deliberation without intimidation or
threats from the Executive Branch," id., at 616, or, I might suppose,
from the judiciary.
2 "It is the proper duty of a representative body to look diligently
into every affair of government and to talk much about what it sees.
It is meant to be the eyes and the voice, and to embody the wisdom
and will of its constituents. Unless Congress have and use m·ery
means of acquainting itself with the acts and the disposition of the
administrative agents of the government, the country must be helpless
to learn how it is being served; and unless Congress both
scrutinize these things and sift them by every form of discussion,
the country must remain in embarrassing, crippling ignorance of the
very affairs which it is most important that it should understand
and direct. The informing function of Congress should be preferred
even to its legislative function. The argument is not only
that discussed and interrogated administration is the only pure and
efficient administration, but, more than that, that the only really
self-governing people is that people which discusses and intrrrogates
its administration." W. Wilson, Congressional Government 303
( 1885).
334 OCTOBER TERM, 1972
Opinion of BLACKMUN, .J. 412 u. s.
ing of Parliament. Kilbourn v. Thompson, 103 U. S., at
201-205. Because the "informing function" is an essential
attribute of an effective Legislative Branch, I feel
the Court's curtailment of that function today violates
the historical tradition signified textually by the Speech
or Debate Clause and underlying our doctrine of separation
of powers.
It may be that a congressional committee's activities
and report are not protected absolutely by the Speech
or Debate Clause. One may assume that there must be
a legitimate legislative purpose in undertaking the investigation
or hearing that culminates in the report.
Watkins v. United States, 354 U. S., at 200; Barenblatt
v. United States, 360 U. S. 109 (1959). I suggest, however,
that the publication and distribution of a report
compiled in connection with an officially authorized investigation
is as much an "integral part of the deliberative
and communicative processes by which Members participate
in committee and House proceedings with respect
to the consideration and passage or rejection of proposed
legislation," Gravel v. United States, 408 U. S., at
625, as is the gathering of information or writing and
voting for the publication of the report. In the case
before us, there can be no question that the activities of
the District of Columbia Committee of the House of
Representatives were officially authorized and undertaken
for a proper legislative purpose. Plenary jurisdiction
over the District of Columbia is specifically vested
in Congress by Art. I, § 8, of the Constitution.3 Matters
3 Artirle I, § 8, reads in part as follows:
"The Congress shall have Power . . .
"To exercise exclusive Legislation in all Cases whatsoever, over such
District, (not exceeding ten Miles square) as may, by Cession of
Particular States, and the Acceptance of Congress, become the Seat
of the Government of tht> United St.ates .... "
DOE v. McMILLAN 335
306 Opinion of BLACKMt:::-.-, J.
such as the quality of education afforded by the District's
schools, and the administrative problems they face, obviously
are within the scope of the jurisdiction of the District
Committee. In this case, it legitimately undertook
its investigation of the administration of the school system!
At the conclusion of its investigation the Committee
decided, as did the Committee of the Whole
House on the State of the Union,5 that, as a matter of
legislative judgment, the report should be printed. It
was stated that attachments to one portion thereof were
included to "give a realistic view" of a troubled school
"and the lack of administrative efforts to rectify the
multitudinous problems there." r. The report was printed
and distributed by the Government Printing Office pursuant
to 44 U. S. C. §§ 501 and 701.' This decision,
though reasonable men well may differ as to its wisdom,
was a conscious exercise of legislative discretion consti-
4 House Res. 76, 91st Cong., 1st Sess., 115 Cong. Rec. 2784
(1969), authorized the Committee, "as a whole or by subcommittee
. . . to conduct a full and complete investigation" of the
"organization, management, operation, and administration of any
department or agency," and of "any independent a.gency or instrumentality"
of government in the District of Columbia.
5 116 Cong. Rec. 40311 (1970).
G H. R. Rep. No. 91-1681, p. 212 (1970).
7 The Court notes, ante, at 323, apparently in alleviation of its
conclusion as to possible liability, that a specific statutory grant of
immunity to the Public Printer and the Superintendent of Documents
relieving them of personal liability for the distribution of
an unprotected document has not been conferred. But it is not clear
how, if liability otherwise exists, such a grant of immunity would
shield these public servants in a case involving alleged constitutional
violations. Thus, the Court has placed the Public Printer and
Superintendent of Documents in the untenable position either of
accepting the risk of personal liability, whenever a congressional
document officially is printed and distributed, or of violating the
specific command of a congressional resolution ordering the printing
and distribution.
336 OCTOBER TERM. 1972
Opinion of Bu,CKMUX, .T. 412 U.S.
tutionally vested in the Legislative Branch and not subject
to review by the judiciary. Indeed, as MR. JUSTICE
REHNQl'IST observes, post, at 339-340, this Court has
stated that it is "not consonant with our scheme of government
for a court to inquire into the motives of legislators."
Tenney v. Brandhove, 341 U. S. 367, 377 (1951).
Although the Court in the present case holds that the
gathering of information, the preparation of a report,
and the voting on a resolution authorizing the printing
of a committee report are protected activities under the
Speech or Debate Clause, it renders that protection for
Members of Congress and legislative personnel less than
meaningful by further holding that the authorized public
distribution of a committee document may be enjoined
and those responsible for the distribution held liable
when the document contains materials "otherwise actionable
under local law." Ante, at 317. The Court's holding
thus imposes on Congress the onerous burden of justifying,
apparently by "substantial evidence," ibid., the inclusion
of allegedly actionable material in committee
documents.8 This, unfortunately, ignores the realities
8 An interesting dilemma is presented by the possibility of an
injunction against distribution where "otherwise actionable" material
is printed in the Congressional Record. The Court recognizes the
existence of this problem and reserves its resolution for another day.
Ante, at 325 n. 16. The Congressional Record, however, receives
wide public distribution on a regular basis and it is not an uncommon
occurrence for all or part of a committee report or other document
to be read into the Record by a Member of Congress. In light of
the Court's holding in this case, it is conceivable that, in lieu of
separate publication as a committee document, a committee report
containing possibly actionable material hereafter will be printed in
the Record in order to effectuate public distribution. It appears
to me almost beyond question that an injunction against the distribution
of the Congressional Record is clearly precluded by the Speech
or Debate Clause and by the Constitution's Art. I, § 5, cl. 3, proDOE
v. McMILLAN 337
306 Opinion of BLACKJ\H::--., J.
of the "deliberative and communicative processes," Gravel
v. United States, 408 U. S., at 625, by which legislative
dccisionmaking takes place.
Although it is regrettable that a person's reputation
may be damaged by the necessities or the mistakes of
the legislative process,9 the very act of determining judicially
whether there is "substantial evidence" to justify
the inclusion of "actionable" information in a committee
report is a censorship that violates the congressional free
speech concept embodied in the Speech or Debate
Clause 10 and is, as well, the imposition of this Court's
judgment in matters textually committed to the discretion
of the Legislative Branch by Art. I of the Constitution.
I suspect that Mr. Chief Justice Marshall and his
concurring Justices would be astonished to learn that the
time-honored doctrine of judicial review they enunciated
viding that "[e]arh House shall keep a Journal of its Proceedings,
and from time to time publish the same, excepting such Parts as may
in their Judgment require Secrecy."
9 Only last Term, in United States v. Brewster, 408 U. S. 501, 516-
517 (1972), the Court emphasized that:
"In its narrowest scope, the LSpccch or Debate] Clause is a very
large, albeit essential, grant of privilege. It has rnablcd reckless
men to slander and even destroy others with impunity, but that
was the con.0 rious choic" of the Framcr8.
". . . The authors of our Constitution wrre well aware of thr
history of both the need for the privilege and the a,buscs that could
flow from too sweeping safeguards. In order to preserve other
values, they wrote the privilege so that it tolerates and protects
behavior on the part of :Members not tolerated and protected when
done by other citizens, but thr shield does not extend beyond what
is necessary to preserve the integrit:v of the legislative procrss."
10 I do not reach the question whether the withholding of information
from the public with respect to matters being considered by
elected representatives in any way diminishes protected First Amendment
values.
338 OCTOBER TERM, 1972
Opinion of REHNQUIST, J. 412 u. s.
in Marbury v. Madison, 1 Cranch 137 (1803), has been
utilized to foster the result reached by the Court today.11
Stationing the federal judiciary at the doors of the
Houses of Congress for the purpose of sanitizing congressional
documents in accord with this Court's concept
of wise legislative decisionmaking policy appears to
me to reveal a lack of confidence in our political processes
and in the ability of Congress to police its own members.
It is inevitable that occasionally, as perhaps in this case,
there will be unwise and even harmful choices made by
Congress in fulfilling its legislative responsibility. That,
however, is the price we pay for representative government.
I am firmly convinced that the abuses we countenance
in our system are vastly outweighed by the
demonstrated ability of the political process to correct
overzealousness on the part of elected representatives.
MR. JUSTICE REHNQUIST, with whom THE CHIEF Jus-
TICE and MR. JUSTICE BLACKMUN join, and with whom
MR. JUSTICE STEWART joins as to Part I, concurring in
part and dissenting in part.
I concur in the Court's holding that the respondent
Members of Congress and their committee aides and
employees are immune under the Speech or Debate
Clause for preparation of the Committee report for dis-
11 "The premise that courts may refuse to enforce legislation they
think unconstitutional does not support the conclusion that they may
censor congressional language they think libelous. We have no more
authority to prevent Congress, or a committee or public officer acting
at the express direction of Congress, from publishing a document
than to prevent them from publishing the Congressional Record. If
it unfortunately happens that a document which Congress has ordered
published contains statements that are erroneous and defamatory,
and are made without allowing the persons affected an opportunity
to be heard, this adds nothing to our authority. Only Congress can
deal with such a problem." Af. ethodist Federation for Social, Action v.
Eastland, 141 F. Supp. 729, 731-732 (DC 1956 (three-judge court)).
DOE v. McMILLAN 339
306 Opinion of REHNQUIST, J.
tribution within the halls of Congress. I dissent from
the Court's holding that Members of Congress might be
held liable if they were in fact responsible for public dissemination
of a committee report, and that therefore the
Public Printer or the Superintendent of Documents might
likewise be liable for such distribution. And quite apart
from the immunity which I believe the Speech or Debate
Clause confers upon congressionally authorized public
distribution of committee reports, I believe that the
principle of separation of powers absolutely prohibits
any form of injunctive relief in the circumstances here
presented.
I
In Gravel v. United States, 408 U. S. 606 (1972), we
decided that the Speech or Debate Clause of the Constitution
did not protect private republication of a committee
report, but left open the question of whether
publication and public distribution of such reports authorized
by Congress would be included within the privilege.
Id., at 626 n. 16. While there are intimations
in today's opinion that the privilege does not cover such
authorized public distribution, the ultimate holding is
apparently that the District Court must take evidence
and determine for itself whether or not such publication
in this case was within the "legitimate legislative needs
of Congress," ante, at 324.
While there is no reason for a rigid, mechanical application
of the Speech or Debate Clause, there would seem
to be equally little reason for a completely ad hoc, factual
determination in each case of public distribution as to
whether that distribution served the "legitimate legislative
needs of Congress." A supposed privilege against
being held judicially accountable for an act is of virtually
no use to the claimant of the privilege if it may
only be sustained after elaborate judicial inquiry into the
circumstances under which the act was performed. This
340 OCTOBER TERM, 1972
Opinion of REHNQUIST, .T. 412 U. 8.
disposition is particularly anomalous when viewed in
light of our earlier views on the scope of the constitutional
privilege to the effect that it is "not consonant with
our scheme of government for a court to inquire into the
motives of legislators." Tenney v. Brandhove, 341 U. S.
367. 377 ( Hl51). A factual hearing in the District Court
could scarcely avoid inquiry into legislative motivation.
Previous decisions of this Court have upheld the immunity
of Members ,vhenever they are "acting in the
sphere of legitimate legislative activity." Id., at 376.
In Kilbourn v. Thompson, 103 U.S. 168 (1881), we held
that this immunity extends to everything "generally
done in a session of the House by one of its members
in relation to the business before it." Id., at 204. This
relatively expansive interpretation of the scope of immunity
has been consistently reaffirmed. United States
v. Johnson, 383 U. S. 169, 179 (1966); United States v.
Brewster, 408 U. S. 501, 509 (1972).
The subject matter of the Committee report here in
question was, as the Court notes, concededly within the
legislative authority of Congress. Congress has jurisdiction
over all matters within the District of Columbia,
U. S. Const., Art. I, § 8, cl. 17, and the Committee was
authorized by the full House to investigate the District's
public school system. H. Res. 76, 91st Cong., 1st
Sess., 115 Cong. Rec. 2784 (1969). And ·we have held
that with respect to the preliminary inquiries, such as
the findings here represent, concerning potential legislation,
Congress' power "is as- penetrating and far-reaching
as tho potential pmver to enact and appropriate
under the Constitution." Rarenblatt v. United States,
360 U. S. 109, 111 (1959).
In Kilbourn v. Thompson, supra, at 204, Powell v.
McCormac!t, 395 U. S. 486, 502 (1969), and Gravel
v. United States, 408 U. S., at 624, the Court has held
that committee reports are absolutely privileged. In
DOE v. McMILLAN 341
306 Opinion of REHNQUIST, J.
neither Kilbourn nor Powell was any distinction intimated
between internal and public distribution of the
reports. And while the question was reserved in Gravel,
a comparison of the factual background surrounding
Senator Gravel's reading into the committee record
the Pentagon Papers, and the limited publication apparently
undertaken here, indicates that the difference
in actual effect between the two is indeed minimal The
only difference between Senator Gravel's widely publicized
reading, in the presence of numerous spectators
and journalists, and the public distribution of this report,
is that the former was confined within the legislative
halls. But it can scarcely be doubted that information
produced at a publicly attended committee
hearing within the legislative halls may well as a practical
matter receive every bit as much public circulation
as information contained in a committee report
which is itself publicly circulated.
To the extent that public participation in a relatively
open legislative process is desirable, the Court's holding
makes the materials bearing on that process less available
than they might be. And the limitation thus judicially
imposed is squarely contrary to the expressed
intent of Congress. The Committee report was ordered
printed by the full House sitting as a Committee of the
·whole House on the State of the Vnion. 116 Cong.
Rec. 40311. It was thereafter printed and distributed
by the Government Printing Office solely in accordance
with statutory provisions. 44 U. S. C. §§ 501, 701.
These provisions state specifically that the Public Printer
may print only the number of copies designated by the
Congress, such number, in the absence of contrary indication,
being the "usual number" established by statute
as 1,682. These copies may be distributed only
"among those entitled to receive them." § 701 (a). The
distributees are specifically designated in the statute it342
OCTOBER TERM, 1972
Opinion of REHNQUJST, J. 412 u. s.
self. § 701 (c). Extra copies may be printed only by
simple, concurrent, or joint resolution. § 703. Thus,
every action taken by the Public Printer and the Superintendent
of Documents, so far as this record indicates,
was under the direction of Congress.
I agree with the Court that the Public Printer and the
Superintendent of Documents have no "official immunity"
under the authority of Barr v. Matteo, 360 U.S. 564
( 1959). There is no immunity there when officials are
simply carrying out the directives of officials in the other
branches of Government, rather than performing any
discretionary function of their own. But for this very
reason, if the body directing the publication or its Members
would themselves be immune from publishing and
distributing, the Public Printer and the Superintendent
should be likewise immune. I do not understand the
Court to hold otherwise. Because I would hold the
Members immune had they undertaken the public distribution,
I would likewise hold the Superintendent and
the Public Printer immune for having done so under the
authority of the resolution and statute. The Court's
contrary conclusion, perhaps influenced by the allegations
of serious harm to the petitioners contained in their complaint,
unduly restricts the privilege. The sustaining of
any claim of privilege invariably forecloses further
inquiry into a factual situation which, in the absence of
privilege, might well have warranted judicial relief. The
reason why the law· has nonetheless established categories
of privilege has never been better set forth than in the
opinion of Judge Learned Hand in Gregoire v. Biddle,
177 F. 2d 579,581(CA21949):
"It does indeed go without saying that an official,
who is in fact guilty of using his powers to vent his
spleen upon others, or for any other personal motive
not connected with the public good, should not es306
DOE v. McMILLAN 343
Opinion of REHNQUIST, J.
cape liability for the injuries he may so cause; and,
if it were possible in practice to confine such complaints
to the guilty, it would be monstrous to deny
recovery. The justification for doing so is that it
is impossible to know whether the claim is well
founded until the case has been tried, and that to
submit all officials, the innocent as well as the guilty,
to the burden of a trial and to the inevitable danger
of its outcome, would dampen the ardor of all but
the most resolute, or the most irresponsible, in the
unflinching discharge of their duties. Again and
again the public interest calls for action which may
turn out to be founded on a mistake, in the face of
which an official may later find himself hard put to
it to satisfy a jury of his good faith. There must
indeed be means of punishing public officers who
have been truant to their duties; but that is quite
another matter from exposing such as have been
honestly mistaken to suit by anyone who has suffered
from their errors. As is so often the case, the
answer must be found in a balance between the
evils inevitable in either alternative. In this instance
it has been thought in the end better to leave
unredressed the wrongs done by dishonest officers
than to subject those who try to do their duty to
the constant dread of retaliation."
II
Entirely apart from the immunity conferred by the
Speech or Debate Clause on these respondents, I believe
that the principle of separation of powers forbids the
granting of injunctive relief by the District Court in a
case such as this. We have jurisdiction to review the
completed acts of the Legislative and Executive Branches.
See, e. g., Marbury v. Maduon, l Cranch 137 (1803);
344 OCTOBER TERM, 1972
Opinion of REH~QUIST, J. 412 U.S.
Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579
(1952); Kilbourn v. Thompson, supra. But the prospect
of the District Court's enjoining a committee of Congress,
which, in the legislative scheme of things, is for all practical
purposes Congress itself, from undertaking to publicly
distribute one of its reports in the manner that
Congress has by statute prescribed that it be distributed,
is one that I believe would have boggled the minds of
the Framers of the Constitution.
In Mississippi v. Johnson, 4 Wall. 475 (1867), an action
was brought seeking to enjoin the President from executing
a duly enacted statute on the ground that such
executive action ,vould be unconstitutional. The Court
there expressed the vie,v that I believe should control the
availability of the injunctive relief here:
"The Congress is the legislative department of the
government; the President is the executive department.
Neither can be restrained in its action by
the judicial department; though the acts of both,
when performed, are, in proper cases, subject to its
cognizance." Id., at 500.
In Kilbourn v. Thompson, supra, the Court reviewed the
arrest and confinement of a private citizen by the Sergeant
at Arms of the House of Representatives. In Watkins
v. United States, 354 U. S. 178 (1957), the Court
reviewed the scope of the investigatory powers of Congress
when the executive had prosecuted a recalcitrant
witness and sought a judicial forum for the purpose of
imposing criminal sanctions on him. Neither of these
cases comes close to having the mischievous possibilities
of censorship being imposed by one branch of the Government
upon the other as does this one.
In New York Times Co. v. United States, 403 U.S. 713
( 1971), this Court held that prior restraint comes before
it bearing a heavy burden. Id., at 714. "\Vhatever may
DOE v. l\kvlILLAN 345
306 Opinion of REHNQUIST, J.
be the difference in the constitutional posture of the two
situations, on the issue of injunctive relief, which is nothing
if not a form of prior restraint, a Congressman should
stand in no worse position in the federal courts than does
a private publisher. Cf. Hurd v. Hodge, 334 U. S. 24,
34-35 ( 1948). Purely as a matter of regulating the exercise
of federal equitable jurisdiction in the light of the
principle of separation of powers, I would foreclose the
availability of injunctive relief against these respondents.
346 OCTOBER TERM, 1972
Syllabus 412 u. s.
UNITED STATES v. BISHOP
CERTIORARI TO THE UNITED STATBS COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 71-1698. Argued January 16, 1973-Decided Jilay 29, 1973
Respondent was convicted of viola ting 26 U. S. C. § 7206 ( 1), which
makes it a felony when one " [ w] illfully makes and subscribes any
return ... which he does not believe to be true and correct as
to every material matter," after the District Court refused a lesserincluded-
offense jury charge under § 7207, which makes it a misdemeanor
when one "willfully delivers or discloses" to the Internal
Revenue Service any return or document "known by him to be
fraudulent or to be false as to any material matter." The Court
of Appeals reversed on the ground that "willfully" as used in
§ 7206 implied an evil motive and bad faith, but the same word
as used in § 7207 required only a showing of unreasonable, capricious,
or careless disregard for the truth. Held: The word "willfully"
has the same meaning in §§ 7206 (1) and 7207, connoting
the voluntary, intentional violation of a known legal duty, and the
distinction between the statutes is found in the additional misconduct
that is essential to the violation of the felony provision;
hence, the District Court properly refused the requested lesserincluded-
off ense instruction based on respondent's erroneous contention
that the word "willfully" in the misdemeanor statute
implied less scienter than the same word in the felony statute.
Pp. 350-361.
455 F. 2d 612, reversed and remanded.
BLACKMUN, .T., delivered the opinion of the Comt, in whirh
BURGER, C. ,J., and BRENNAN, STEWART, ·WHITE, lVIARSHALL, PowELI,,
and REHKQUIST, JJ., joined. DouGr,As, J., filed a dissenting
statement, post, p. 362.
Richard B. Stone argued the cause for the United
States. On the brief were Solicitor General Griswold,
Assistant Attorney General Crampton, Deputy Solicitor
General Lacovara, Keith A. Jones, and John P. Burke.
J. Richard Johnston argued the cause for respondent.
V:NITED STATES v. BISHOP 347
346 Opinion of the Court
With him on the brief were Neil F. Hor ton and Robert
H. Solomon.
MR. .JusTICJi, BLACKMUN delivered the opinion of the
Court.
Chapter 75, subchapter A, of the Internal Revenue
Code of 1954, as amended, 26 U. S. C. §§ 7201-7241, is
concerned with tax crimes. Sections 7201-7207, inclusive,
which in the aggregate relate to attempts to evade
or defeat tax, to failures to act, and to fraud, all include
the word "willfully" in their respective contexts. Specifically,
§ 7206 is a felony statute and reads:
"§ 7206. Fraud and false statements.
"Any person who~
" ( 1) Declaration under penalties of perjury.
"Willfully makes and subscribes any return, statement,
or other document, which contains or is verified
by a written declaration that it is ma.de under
the penalties of perjury, and which he does not believe
to be true and correct as to every material
matter ..
"shall be guilty of a felony and, upon conviction
thereof, shall be fined not more than $5,000, or imprisoned
not more than 3 years, or both, together
with the costs of prosecution."
Section 7207 is a misdemeanor statute ' and reads:
"7207. Fraudulent returns, statements, or other
documents.
1 Title 18 U. S. C. § 1 defines felony a.nd misdemeanor:
"§ 1. Offenses classified.
"Notwithstanding any Act of Congress to the contrary:
"(l) Any offense punishable by death or imprisonment for a term
exceeding one year is 11 felony.
"(2) Any other offense is a misdemeanor."
348 OCTOBER TERM, 1972
Opinion of the Court. 412 U.S.
"Any person who willfully delivers or discloses to
the Secretary or his delegate any list, return, account,
statement, or other document, known by him
to be fraudulent or to be false as to any material
matter, shall be fined not more than $1,000, or imprisoned
not more than 1 year, or both."
This case presents the issue of the meaning of the
critical word "willfully" as it is employed in these two
successive statutes. Is its meaning the same in each,
or is the willfulness specified by the misdemeanor statute,
§ 7207, of somewhat less degree than the felony willfulness
specified by § 7206?
I
Respondent, Cecil J. Bishop, was convicted by a jury
on all three counts of an indictment charging him with
felony violations of § 7206 ( 1) with respect to his federal
income tax returns for the calendar years 1963, 1964, and
1965. The Court of Appeals, holding that a lesser-included-
offense instruction directed to the misdemeanor
statute, § 7207, was improperly refused by the trial judge,
reversed the judgment of the District Court and remanded
the case for a new trial. 455 F. 2d 612 (CA9
1972). Since the meaning of "willfully," as used in the
tax crime statutes, has divided the circuits,2 we granted
certiorari. 409 U. S. 841 ( 1972).
2 Compare United States v. Vitiello, 363 F. 2d 240, 243 (CA3 1966)
(§§ 7201 and 7203), and Haner v. United States, 315 F. 2d 792, 794
(CA5 1963) (§ 7203), where the Ninth Circuit analysis was rejeetcd,
with United States v. Fahey, 411 F. 2d 1213 (CA9), cert. denied,
396 U. S. 957 (1969) (§ 7203); Martin v. United States, 317 F. 2d
753 (CA9 1963) (§ 7203); Abdul v. United States, 254 F. 2d 292
(CA9 1958) (§§ 2707 (b) and (c) of the 1939 Code and §§ 7202 and
7203 of the 1954 Code). See also Janko v. United States, 281 F. 2d
156, 166-167 (CAS 1960), rev'd on confes.•ion of error by the
Solicitor General, 366 U.S. 716 (1961) (§§ 7201 and 7207); Lumetta
v. United States, 362 F. 2d 644, 646 n. 3 (CA8 1966) (§§ 7201 and
UNITED STATES v. BISHOP 349
346 Opinion of the Court
We conclude that it was proper and correct for the
District Court to refuse the lesser-included-offense instruction.
In our view, the word "willfully" has the same
meaning in both statutes. Consequently, we reverse and
remand so that the Court of Appeals may nov,r proceed
to consider the additional issues that court found it unnecessary
to reach.
II
Mr. Bishop is a lawyer who has practiced his profession
in Sacramento, California, since 1951. During that period,
he owned an interest in a walnut ranch he and his
father operated. In 1960 his secretary, Louise, married
his father. The father died, and thereafter respondent's
stepmother managed the ranch.
Respondent periodically sent checks to Louise. These
were used to run the ranch, to pay principal on loans,
and to make improvements.
Louise maintained a record of ranch expenditures and
submitted an itemized list of these disbursements to respondent
at the end of each calendar year. In his 1963
return respondent asserted as business deductions all
amounts paid to Louise and, in addition, all the expenses
Louise listed. This necessarily resulted in a double deduction
for all ranch expenditures in 1963. Moreover,
some of these expenditures were for repayment of loans
and for other personal items that did not qualify as income
tax deductions. In his 1964 and 1965 returns
respondent similarly included nondeductible amounts
among the ranch figures that were deducted.
The aggregate amount of improper deductions taken
by respondent for the three taxable years exceeded
7203) ; Escobar v. United States, 388 F. 2d 661 ( CA5 1967) , cert
denied, 390 U.S. 1024 (1968) (§§ 7206 (1) and 7207). Other inconsistencies
in intnprcting th(' word ''willfully" have compounded the
confusion. Sec n. 8, infra. Cf. United States v. Lachmann, 469
F. 2d 1043 (CAl 1972) (§§ 7201 and 7203).
350 OCTOBER TERM, 1972
Opinion of the Court 412 u. s.
$45,000. He enjoyed aggregate gross income for those
years of about $70,000.
The incorrectness of the returns as filed for the three
years was not disputed at trial. Transcript of Trial 869-
872, 1148. Neither is it disputed here. Brief for Respondent
4.
III
Section 7206 ( 1), the felony statute, is violated when
one " [ w] illfully makes and subscribes any return," under
penalties of perjury, "which he does not believe to be
true and correct as to every material matter." Respondent
based his defense at trial on the ground that he was
not aware of the double deductions asserted in 1963 or
of the improper deductions taken in the three taxable
years. He claimed that his law office secretary prepared
the return schedules from his records and from the information
furnished by Louise; he merely failed to check
the returns for accuracy.
Respondent requested lesser-included-offense instructions
based on the misdemeanor statute, § 7207. This
tax misdemeanor is committed by one "who willfully
delivers or discloses" to the Internal Revenue Service
any return or document "known by him to be fraudulent
or to be false as to any material matter." Respondent
argued that the word "willfully" in the misdemeanor
statute should be construed to require less scienter than
the same word in the felony statute. App. 28. With
the state of respondent's guilty knowledge in dispute. his
proposed instructions would have allowed the jury to
choose between a misdemeanor based on caprice or careless
disregard and a felony requiring evil purpose. The
trial judge declined to give the request~d instructions
and, instead, gave an instruction only on the felony, requiring
a finding by the jury that the defendant intended
UNITED STATES v. BISHOP 351
346 Opinion of the Court
"with evil motive or bad purpose either to disobey or to
disregard the law." App. 24.
After the guilty verdict on all counts was returned,
respondent was sentenced to two years' imprisonment on
each count, the sentences to run concurrently. The
court, however, suspended all but 90 days of each sentence
and placed respondent on probation for five years on condition
that he pay a fine of $5,000. App. 31.
IV
The Court of Appeals relied upon and followed, 455
F. 2d, at 614, a series of its own cases,3 particularly Abdul
v. United States, 254 F. 2d 292 (1958), enunciating the
proposition that the word "willfully" has a meaning in
tax felony statutes that is more stringent than its meaning
in tax misdemeanor statutes.• Our examination of
these Ninth Circuit precedents in the light of this Court's
decisions leads us to conclude that the Court of Appeals'
opinion cannot be sustained by this asserted distinction
between § 7206 ( 1) and § 7207.
A. The Ninth Circuit rule appears to have been evolved
from language in this Court's opinion in Spies v. United
States, 317 U. S. 492 ( 1943). In Spies the defendant requested
an instruction to the effect that an affirmative
act was necessary to constitute a willful attempt to evade
or defeat a tax, within the meaning of § 145 (b) of the
Revenue Act of 19:36. 49 Stat. 1703. The trial court
"United States v. Haseltine, 419 F. 2d 579, 581 (1970) (§§ i201
and 7203); United States v. Fahey, n. 2, supra; Eustis v. United
States, 409 F. 2d 228 (1969) (§ 7203); Edwards v. United States,
375 F. 2d 862 (1967) (§§ 7201, 7203, and 7206 (2)); Martin v.
United States, n. 2, supra; Abdul Y. United States, n. 2, supra.
4 One possible result of this distinction, of rourse, is that thr Government's
burden in a misdemeanor case could be less than in a
felony case.
352 OCTOBER TERM, 1972
01linion of the Court 412 U.S.
refused the request. The Second Circuit affirmed. This
Court reversed. \Ve were concerned in Spies \vith a
felony statute, § 145 (b), applying to one "who willfully
attempts in any manner to evade or defeat any tax,"
and with a companion misdemeanor statute,§ 145 (a),
applying to one who "willfully fails to pay such tax, make
such return, keep such records, or supply such information,
at the time or times required by law or regulations."
These statutes were the predecessors of the current
§§ 7201 and 7203, respectively, of the 1954 Code. In
distinguishing between the two offenses, the Court said:
"The difference between willful failure to pay a
tax when due, which is made a misdemeanor, and
willful attempt to defeat and evade one, which is
made a felony, is not easy to detect or define. Both
must be willful, and willful, as we have said. is a
word of many meanings, its construction often being
influenced by its context. United States v. Murdock,
290 U. S. 389. It may well mean something
more as applied to nonpayment of a tax than when
applied to failure to make a return. Mere voluntary
and purposeful, as distinguished from accidental,
omission to make a timely return might meet the
test of willfulness. But in view of our traditio11al
aversion to imprisonment for debt, we would not
without the clearest manifestation of Congressional
intent assume that mere knowing and intentional
default in payment of a tax, where there had been
no willful failure to disclose the liability, is intended
to constitute a criminal offense of any degree. We
would expect willfulness in such a case to include
some element of evil motive and want of justification
in view of all the financial circumstances of the
taxpayer.
"Had § 145 (a) not included wi1lful failure to pay
a tax, it would have defined as misdemeanors gen346
UNITED STATES v. BISHOP 353
Opinion of the Court
erally a failure to observe statutory duties to make
timely returns, keep records, or supply information~
duties imposed to facilitate administration of the
Act even if, because of insufficient net income, there
were no duty to pay a tax. It would then be a
permissible and perhaps a.n appropriate construction
of § 145 (b) that it made felonies of the same
willful omissions when there was the added element
of duty to pay a tax. The definition of such nonpayment
as a misdemeanor, we think, argues strongly
against such an interpretation." 317 U. S., at
497-498.
In Abdul the court considered an appeal by a taxpayer
convicted of tax misdemeanors (§ 2707 (b) of the 1939
Code and § 7203 of the 1954 Code) based on failure to
file but acquitted of tax felonies ( § 2707 ( c) of the 1939
Code and § 7202 of the 1954 Code) based on failure to
account for and pay withholding taxes. The defense was
inability to pay. The trial judge instructed the jury
that the term "wilful" in the misdemeanor counts meant,
among other things, "capriciously or with a careless disregard
whether one has the right so to act," whereas the
same word in the felony counts meant "with knowledge
of one's obligation to pay the taxes due and with intent
to defraud the Government of that ta.x by any affirmative
conduct." 254 F. 2d, at 294. Relying on Spies,
the Court of Appeals approved these instructions and
concluded that
"the word 'wilful' as used in the misdrmeanor
statute means something less when applied to a
failure to make a return than as applied to a felony
non-payment of a tax. This being true, then the
words used in the instruction defining 'wilful' as
relates to a misdemeanor adequately and clearly
point up that difference." Ibid.
354 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
Because of an error in the cross-examination of Abdul,
his conviction was reversed. On retrial, he was again
convicted. He appealed, and the judgment was affirmed.
Abdul v. United States, 278 F. 2d 234 (CA9 1960).
When Abdul sought certiorari, the Solicitor General conceded
that the sentence under one of the counts could
not stand and undertook to say that the Government
would present to the District Court a motion for correction
of the sentence. Certiorari, accordingly, was denied.
Two Justices would have granted the writ to
review the correctness of the charge "regarding the requirement
of willfulness." 364 U. S. 832 (1960).
In the present case the Court of Appeals continued this
Abdul distinction between willfulness in tax misdemeanor
charges and willfulness in tax felony charges. Section
7207, it was said, requires only a showing of "unreasonable,
capricious, or careless disregard for the truth or
falsity of income tax returns filed," whereas § 7206 (1)
"requires proof of an evil motive and bad faith." 455
F. 2d, at 615. The level of willfulness, thus, would create
a disputed factual element that made appropriate a lesserincluded-
offense instruction.
B. The decisions of this Court do not support the
holding in Abdul, and implicitly they reject the approach
taken by the Court of Appeals. In Spies, the Court
speculated, 317 U. S., at 495-498, that Congress could
have distinguished between the regulatory aspects of the
tax system, which call for compliance regardless of financial
status, and the revenue-collecting aspects, which may
place demands on a taxpayer he cannot meet. Since the
antecedent of § 7203 (as does that section itself today)
punished both failure to file and failure to pay as misdemeanors,
the Court concluded that Congress had not
drawn the line between felonies and misdemeanors on
the basis of distinctions between the system's regulatory
aspects and its revenue-collecting aspects. The reliance
UNITED STATES v. BISHOP 355
346 Opinion of the Court
in Abdul on that hypothetical statutory scheme, discussed
by this Court in Spies but found not in line with
what Congress had actually done, was misplaced. Utilizing
the unsupported Abdul distinction as a foundation,
the Court of Appeals constructed the further general distinction
between tax felonies and tax misdemeanors, a
distinction also inconsistent with prior decisions of this
Court.
In Berra v. United States, 351 U. S. 131 ( 1956), a
defendant was convicted of violating the antecedent of
§ 7201, namely, § 145 (b) of the 1939 Code, a felony
statute identical, for present purposes, with the section
of the same number in the Revenue Act of 1936 at issue
in Spies. The defendant claimed that he was entitled
to a lesser-included-offense instruction based on § 3616
(a) of the 1939 Code, the antecedent of § 7207. The
Court rejected this contention, concluding that the two
sections of the 1939 Code then "covered precisely the
same ground." 351 U. S., at 134. Implicit in this was
the conclusion that the level of intent required for tax
misdemeanors was not automatically lower than the level
of intent required for tax felonies.
Although the misdemeanor statute, § 3616 (a), proffered
by the defendant i11 Berra did not contain the word
"willfully," the Berra facts were presented to the Court
again in Sansone v. United States, 380 U.S. 343 (1965),
when the misdemeanor statutes there in issue, §§ 7207
and 7203 of the 1954 Code, both contained the word
"willfully."" In Sansone the Court rejected the argu-
5 The applicability of § 3616 (a) of the 1939 Code to income tax
returns was not contested in Berra v. United States, 351 U. S. 131,
133 (19.56), but the Court soon held that that statute "did not apply
to evasion of the income tax." Achilli v. United States, 35;~ U. S.
373, 379 (1957). In Sansone, however, statutory revisions effected
by the enactment of the 1954 Code were held to make § 7207
applicable to income tax violations. Sansone v. United States, 380
U. S. 343, 347-349 (1965).
356 OCTOBER TER~l, 1972
Opinion of the Court 412 u. s.
ment that a set of facts could exist that would satisfy
the willfulness element in the § 7207 misdemeanor but
not in the § 7201 felony:
"Given petitioner's material misstatement \vhich resulted
in a tax deficiency, if, as the jury obviously
found, petitioner's act was willful in the sense that
he kne,v that he should have reported more income
than he did for the year 1957, he was guilty of
violating both §§ 7201 and 7207. If his action
was not willful, he was guilty of violating neither."
380 U. S., at 353.
The same analysis was applied to the requested lesserincluded-
off ense instruction for§ 7203. Id., at 352. The
clear implication of the decision in San.sone is that the
word "willfully" possesses the same meaning in §§ 7201,
7203, and 7207. Sansone thus foreclosed the argument
that the word "willfully" was to be given one meaning
in the tax felony statutes and another meaning in the
tax misdemeanor statutes.
The thesis relied upon by the Court of Appeals, therefore,
was incorrect.
V
It would be possible, of course, that the word "willfully"
was intended by Congress to have a meaning in
§ 7206 ( 1) different from its meaning in § 7207, and we
turn now to that possibility.
We continue to recognize that context is important
in the quest for the word's meaning. See United States
v. Murdock, 290 U. S. 389, 394-395 (1933). Here, as in
Spies, the "legislative history of the section [s] contains
nothing helpful on the question here at issue, and we
must find the answer from the [sections themselves]
and [their] context in the revenue laws." 6 317 U. S.,
6 See H. R. Rep. No. 1337, 83d Cong., 2d Sess., A425 (1954); S.
Rep. No. 1622, 83d Cong., 2d Sess., 602-603 ( 1954). The predeUNITED
STATES v. BISHOP 357
346 Opinion of the Court
at 495. We consider first, then, the sections themselves.
A. Respondent argues that both §§ 7206 (1) and 7207
apply to a fraudulent "return" and cover the same
ground if the word "willfully" has the same meaning
in both sections. Since "it would be unusual and we
would not readily assume that Congress by the f elony
... meant no more than the same derelictions it
had just defined ... as a misdemeanor," 317 U. S.,
at 497, respondent concludes that Congress must have
intended to require a more willful violation for the
felony than for the misdemeanor.
The critical difficulty for respondent is that the two
sections have substantially different express terms. The
most obvious difference is that § 7206 ( 1) applies only
if the document "contains or is verified by a written
declaration that it is made under the penalties of perjury."
No equivalent requirement is present in § 7207.
Respondent recognizes this but then relies on the presence
of perjury declarations on all federal income tax
returns, a fact that effectively equalizes the sections where
a federal tax return is at issue. See 26 U. S. C.
§ 6065 (a).7
This approach, however, is not persuasive for two
reasons. First, the Secretary or his delegate has the
power under § 6065 (a) to provide that no perjury declaration
is required. If he does so provide, then § 7207
cessor to § 7206 (1) was § 3809 (a) of the 1939 Code. The antecedent
to § 7207 was, as we have noted above, § 3616 (a) of the
1939 Code. See Sansone, 380 U. S., at 347.
7 "§ 6065. Verification of returns.
" (a) Penal ties of perjury.
"Except as otherwise provided by the Secretary or his delegate,
any return, declaration, statement, or other document required to be
made under any provision of the internal revenue laws or regulation~
shall contain or be verified by a written declaration that it is made
under the penalties of perjury." See also Treas. Reg. § 1.6065-1
(1972).
358 OCTOBER TER-11, 1972
Opinion of the Court 412 U.S.
immediately becomes operative in the area theretofore
covered by § 7206 ( 1). Second, the term "return" is
not necessarily limited to a federal income tax return.
A state or other nonfederal return could be intended and
might not contain a perjury warning. If this type of
return were submitted in support of a federal return,
or in the course of a tax audit, § 7207 could apply even
if § 7206 ( 1) could not.
There are other distinctions. The felony applies to a
document that a taxpayer "[w]illfully makes and subscribes
. . . and which he does not believe to be true
and correct as to every material matter," whereas the
misdemeanor applies to a document that a taxpayer
"willfully delivers or discloses to the Secretary or his
delegate . . . known by him . . . to be false as to any
material matter." In the felony, then, the taxpayer must
verify the return or document in writing, and he is
liable if he does not affirmatively believe that the material
statements are true. For the misdemeanor, however,
a document prepared by another could give rise
to liability on the part of the taxpayer if he delivered
or disclosed it to the Service; additional protection is
given to the taxpayer in this situation because the document
must be known by him to be fraudulent or to be
false.
These differences in the respective applications of
§§ 7206 (1) and 7207 provide solid evidence that Congress
distinguished the statutes in ways that do not
turn on the meaning of the word "willfully." Judge
Hastie, in analyzing this Court's holding in Spies, appropriately
described this distinction as follows:
"Hmvever, this distinction is found in the additional
misconduct which is essential to the violation
of the felony statute . . . and not in the quality
346
UNITED STATES v. BISHOP 359
Opinion of the Court
of willfulness which characterizes the wrongdoing."
United States v. Vitiello, 363 F. 2d 240, 243 (CA3
1966).
Thus the word "willfully" may have a uniform meaning
in the several statutes without rendering any one of
them surplusage. We next turn to context.
B. The hierarchy of tax offenses set forth in §§ 7201-
7207, inclusive, utilizes the mental state of the offender
as a guide in establishing the penalty. Section 7201, relating
to attempts to evade or def eat tax, has been described
and recognized by the Court as the "climax of
this variety of sanctions" and as the "capstone of a
system of sanctions which singly or in combination were
calculated to induce prompt and forthright fulfillment
of every duty under the income tax law and to provide
a penalty suitable to every degree of delinquency."
Spies, 317 U. S., at 497; Sansone, 380 U. S., at 350-351.
The actor's mental state is described both by the requirement
that acts be done "willfully" and by the designation
of certain express elements of the offenses. In
§ 7201, for example, the Court has held that, by requiring
an attempt to evade, "Congress intended some willful
commission in addition to the willful omissions that
make up the list of misdemeanors." Spies, 317 U. S.,
at 499. Similarly, in § 7207, the Government must show
that the document was known by the taxpayer to be
fraudulent or to be false as to a material matter.
All these offenses, except two subsections of § 7206,
viz., subsections (3) and ( 4), require that acts be done
"willfully." Although the described states of mind might
be included in the normal meaning of the word "willfully,"
the presence of both an express designation and
the simultaneous requirement that a violation be committed
"willfully" is strong evidence that Congress used
360 OCTOBER TERM, 1972
Opinion of the Court 412 u. s.
the word "willfully" to describe a constant rather than
a variable in the tax penalty formula.8
The Court, in fact, has recognized that the word "willfully"
in these statutes generally connotes a voluntary,
intentional violation of a known legal duty. It has
formulated the requirement of willfulness as "bad faith
or evil intent," Murdock, 290 U.S., at 398, or "evil motive
and want of justification in view of all the financial circumstances
of the taxpayer," Spies, 317 U. S., at 498,
or knowledge that the taxpayer "should have reported
more income than he did." Sansone, 380 U. S., at 353.
See James v. United States, 366 U. S. 213, 221 (1961);
McCarthy v. United States, 394 U. S. 459, 471 (1969).
This longstanding interpretation of the purpose of
the recurring word "willfully" promotes coherence in the
group of tax crimes. In our complex tax system, uncertainty
often arises even among taxpayers who earnestly
wish to follow the law. The Court has said,
"It is not the purpose of the law to penalize frank differe!
1ce of opinion or innocent errors made despite the
8 Semantic confusion sometimes has been created when courts disruss
the express requirement of an "attempt to evade" in § 7201
as if it were implicit in the word "willfully" in that statute. This
type of analysis produces language suggesting that "willfully" in
§ 7201 has a diffnent meaning from the same term in § 7203. See
United States v. Ming, 466 F. 2d 1000, 1004 (CA7), cert. denied,
409 U. S. 915 (1972) (§§ 7201 and 7203); United States v. Matosky,
421 F. 2d 410 (CA7), cert. denied, 398 U. S. 904 (1970) (§ 7203);
United States v. Haseltine, 419 F. 2d, at 581 ; Edwards v.
United States, 37.5 F. 2d, at 867; United States v. Schipani,
362 F. 2d 825, 831 (CA2) , cert. denied, 385 U.S. 934 (1966). This
Court may be somewhat responsible for this imprecision because r,.
similar an:dysis was rmployed in Spies v. United Sta.tes, 317 U. S
492, 497-499 (1943). Greater clarity might well rrsult from an
analysis that distin~nishes the express clements, such a.~ an "attempt
to evade," prescribed by § 7201, from t.he uniform requirement of
willfulness.
UNITED STATES v. BISHOP 361
346 Opinion of the Court
exercise of reasonable care." Spies, 317 U. S., at 496.
Degrees of negligence give rise in the tax system to
civil penalties. The requirement of an offense committed
"willfully" is not met, therefore, if a taxpayer
has relied in good faith on a prior decision of this
Court. James v. United States, 366 U. S., at 221- 222.
Cf. Lambert v. California, 355 U. S. 225 (1957). The
Court's consistent interpretation of the word "willfully"
to require an element of mens rea implements the pervasive
int~nt of Congress to construct penalties that
separate the purposeful tax violator from the wellmeaning,
but easily confused, mass of taxpayers.
Until Congress speaks otherwise, we therefore shall
continue to require, in both tax felonies and tax misdemeanors
that must be done "willfully," the bad purpose
or evil motive described in Murdock, supra. We
hold, consequently, that the word "willfully" has the
same meaning in § 7207 that it has in § 7206 ( 1). Since
the only issue in dispute in this case centered on willfulness,
it follo,vs that a conviction of the misdemeanor
would clearly support a conviction for the felony.9 Under
these circumstances a lesser-included-offense instruction
was not required or proper, for in the federal system
it is not the function of the jury to set the penalty.
Berra v. United States, 351 U. S., at 134-135.
9 The Government has argued that the misdemeanor of § 7207
could never be a lesser included offense in § 7206 (l) because the misdemeanor
requires that the actor have knowledge of the falsity.
This is said to create an additional element in the misdemeanor, not
present in the felony, so the misdemeanor is not "netessarily included"
in the felonY, within the meaning of Fed. Rule Crim. Proc.
31 (c). Our conclusfon that the word '·willfully" has tlH· same
meaning in both statutes makes it unnecessary to reach thiR
contention.
362 OCTOBER TERM, 1972
Statement of DOUGLAS, J. 412 U.S.
The judgment of the Court of Appeals is reversed,
and the case is remanded for further proceedings.
It is so ordered.
MR. JusTICE DouGLAS would affirm the judgment of
the Court of Appeals for the Ninth Circuit on the opinion
written for that court by Judge Powell. 455 F.
2d 612.
UNITED STATES v. :MISSISSIPPI TAX COl\:IM'N 363
Syllabus
UNITED STATES v. STATE TAX COMMISSION
OF MISSISSIPPI ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF MISSISSIPPI
No. 72-350. Argued :\farrh 19, 1973-Decidcd June 4, 1973
The Unitrd States brought this action contesting the validity of
appellee Tax Commission's regulation requiring out-of-state liquor
distillers and suppliers to collect and remit to the Co=ission
a wholesale markup on liquor sold to military officers' clubs and
other nonappropriated fund activities located on bases within
Mississippi, over two of which thr United States exercises exclusive
jurisdiction, and the remaining two of which concurrent
jurisdiction. Relying on the Twenty-first Amendment, the District
Court upheld the regulation. II eld:
1. The Twenty-first Amendment does not empower a State to
tax or otherwise regulate the importation of distilled spirits into
a territory over which the United States exercises exclusive jurisdiction,
Collins v. Yosemite Park & Curry Co., 304 U. S. 518,
regardless of whether some of the liquor may have been consumed
off base. Pp. 369-378.
2. Whether the markup can be viewed as a sales tax to whose
imposition in the context of the two exclusive-jurisdiction bases
the United States has consented under the Buck Act, and whether,
in any event, the markup unconstitutionally taxes federal instrumentalities,
and violates the Supremacy Clause as conflicting with
federal procurement regulations and policy, are issues that the
District Court did not reach and should consider initially on
remand. Pp. 378-381.
340 F. Supp. 903, vacated and remanded.
MARSHALL, J., delivered the opinion of the Court, in which
BURGER, C. J., and BRENNAN, STEWART, WHITE, BLACKMON, and
PowELL, JJ., joined. DouGLAS, J ., filed a dissenting opinion, in which
REHNQUIS'l', J., joined, post, p. 381.
Jewell S. Lafontant argued the cause for the United
States. On the brief were Solicitor General Griswold,
364 OCTOBER TERJVI, 1972
Opinion of the Court 412 U.S.
Assistant Attorney General Wood, Mark L. Evans, Robert
E. Kopp, and Anthony J. Steinmeyer.
Robert L. Wright argued the cause for appellees. With
him on the brief ,vas Guy N. Rogers, Assistant Attorney
General of Mississippi.
Mr. JusTICE MARSHALL delivered the oprn10n of the
Court.
In this case we are called upon to review the judgment
of the District Court for the Southern District of Mississippi
that the State of Mississippi may require outof-
state liquor distillers and suppliers to collect and
remit to the State a wholesale markup on liquor sold
to officers' clubs, ship's stores, and post exchanges located
on various military bases over which the United States
exercises either exclusive jurisdiction or jurisdiction concurrent
with the State.
Prior to 1966, the State of Mississippi prohibited the
sale or possession of alcoholic beverages within its borders.
In that year, Mississippi passed a local option
alcoholic beverage control law subject to the requirement
that the State Tax Commission be the sole importer and
wholesaler of alcoholic beverages distributed within the
State.1 The Tax Commission was given exclusive authority
to act as wholesale distributor in the sale of alcoholic
beverages to licensed retailers within the State "including,
at the discretion of the Commission, any retail distributors
operating within any military post ... within
the boundaries of the State, ... exercising such control
over the distribution of alcoholic beverages as [seems]
right and proper in keeping with the provisions and purposes
of this act."" In conjunction with these transactions
with retailers, the Commission was directed to
1 Miss. Code Ann. § 10265- 01 et seq. (Supp. 1972).
2 Id., § 10265-18 (c).
UNITED STATES v. MISSISSIPPI TAX COMM'K 365
363 Opinion of the Court
"add to the cost of all alcoholic beverages such ...
markups as in its discretion will be adequate to cover
the cost of operation of the State wholesale liquor business,
yield a reasonable profit, and be competitive with
liquor prices in neighboring states." a Under the authority
granted to it by the Act, the Tax Commission promulgated
Regulation 25 which gives military post exchanges,
ship's stores, and officers' clubs the option of purchasing
liquor either from the Commission or directly from the
distiller. However, insofar as purchases are made directly
from the distillers by such military facilities, the
regulation requires the distiller to collect and remit to
the Tax Commission the latter's "usual wholesale
markup." During the period involved in this case, the
Tax Commission's wholesale markup was 17% on distilled
spirits and 20% on wine.
Four United States military bases are located in the
State of Mississippi-Keesler Air Force Base, the Naval
Construction Battalion Center, Columbus Air Force Base,
and Meridian Naval Air Station. Prior to 1966, the officers'
clubs, the post exchanges, and the ship's stores-
• Id., § 10265-106.
• The Regulation, which was originally numbered 22, reads as
follows:
"Post exchanges, ship stores, and officers' clubs located on military
reservations and operated by military personnel (including those
operated by the National Guard) shall have the option of ordering
alcoholic beverages direct from the distiller or from the Alcoholic
Beverage Control Division of the State Tax Commission. In the
event an order is placed by such organization directly with a distiller,
a copy of such order shall be immediately mailed to the
Alcoholic Beverage Control Division of the State Tax Commission.
"All orders of such organizations shall bear the usual wholesale
markup in price but shall be exempt from all state taxes. The price
of such beverages shall be paid by such organizations directly to
the distiller, which shall in turn remit the wholesale markup to the
Alcoholic Beverage Control Division of the State Tax Commission
monthly covering shipments made for the previous month."
366 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
which are run with funds derived from operations rather
than from funds appropriated by the United States-on
these four bases had purchased liquor from distillers and
suppliers located outside the State of Mississippi. Following
the passage of the Mississippi local option law,
these nonappropriated fund activities elected to continue
the practice of purchasing liquor supplies outside the
State rather than to purchase liquor from the Commission.
Efforts were made by military authorities to convince the
Commission not to collect the markup on out-of-state
liquor purchases by nonappropriated fund activities, but
these efforts failed, and the Commission compelled out-ofstate
distillers and suppliers to collect and remit the markup
on military sales under threat of criminal prosecution
and of delisting, that is, withdrawal of the privilege of
selling to the Commission for retailing within Mississippi.5
The military authorities sought to pay the markup into an
escrow fund pending judicial determination of the legality
of the markup as applied to military purchases. But the
Commission refused to accept such an arrangement, and
in order to obtain liquor supplies the nonappropriated
fund activities have had to pay the markup to the distillers
and suppliers, albeit under protest.6
In November 1969, the United States brought this
action seeking declaratory and injunctive relief against
the continued enforcement of Regulation 25, plus a judgment
in the total amount paid to the Commission, through
the suppliers, since the imposition of the markup on military
purchases. The complaint alleged that the United
States has exclusive jurisdiction over Keesler Air Force
Base and the Naval Construction Battalion Center, and
that Mississippi and the United States exercise concur-
5 See Stipulation of Facts (hereinafter Stipulation) App. 36-38.
6 Out-of-state suppliers had been paid $648,421.92 under protest
for such markups by July 31, 1971.
UNITED STATES v. MISSISSIPPI TAX COMM'N 367
363 Opinion of the Court
rent jurisdiction over Columbus Air Force Base and
Meridian Naval Air Station. The complaint contended
that the Regulation was invalid because it constituted
an attempt by the State to legislate with respect
to military facilities and territory over which the Congress
has exclusive legislative authority; 7 to impose a
tax on federal instrumentalities and thereby infringe
upon the Federal Government's immunity from state
taxation; 8 and to interfere with federal procurement regulations
and policy established by the Secretary of Defense
pursuant to authority granted to him by Congress.9
The complaint also asked that a three-judge court be
convened.
On cross-motions for summary judgment, the District
Court ruled in favor of the Commission, upholding the
validity of the challenged Regulation. 340 F. Supp. 903
(SD Miss. 1972). The District Court agreed that the
United States had exclusive jurisdiction over two of the
four bases and concurrent jurisdiction over the remaining
two. But it concluded that Congress' constitutional
powers over the military forces and over territory belonging
to the United States "are diminished by the express
prohibition of the XXI Amendment as to all packaged
liquor transactions which (I) are made on exclusively
federal enclaves but without restriction upon use and
consumption of such liquors outside the base, or (2) take
place on military installations over which the state and
federal government exercise concurrent jurisdiction."
Id., at 904. In light of this conclusion the District Court
found it unnecessary to consider the import of the procurement
regulations issued by the Secretary of Defense.
Nor did it discuss the contention that the markup con-
7 See U. S. Const., Art. I, § 8, els. 14 and 17, Art. IV, § 3.
8 See, e. g., M'Culloch v. Maryland, 4 Wheat. 316 (1819).
9 See 32 CFR §261.4 (c).
368 OCTOBER TERM, 1972
Opinion of the Court 412 u. s.
stituted an impermissible tax upon federal instrumentalities.
On appeal by the United States, we noted probable
jurisdiction, 409 U. S. 1005 (1972).1° For the reasons
which follow, we now hold that the District Court
erred in concluding that the Twenty-first Amendment
provides the State v,:ith sufficient authority over liquor
transactions to support the application of the Regulation
to the two bases over which the United States exercises
exclusive jurii-:diction,11 and we vacate and remand the
case to the District Court for consideration of further
arguments, relevant to the nonappropriated fund activities
on all four bases, that it did not reach.
10 See Paul v. United States, 371 U. S. 245, 249-250 (1963).
11 In a special concurring opinion, .Judge Cox added that recoupment
of the sums paid under the markup was also barred because,
in his view, the payments had been voluntarily made by the nonappropriated
fund activitie~. 340 F. Supp., at. 909. It is true that
where voluntary payment is knowingly made pursuant to an illegal
demand, rerovery of that payment may be denied. S<'e, e. g.,
United States v. New York & Cuba l'rfail 8. S. Co., 200 U. S. 488,
493-494 (1906); Little v. Bowers, 134 U. S. 547, 554 (1890): Railroad
Co. v. Commissioners, 98 U. S. 541, 543-544 (1879). But no
such voluntary payments itre involved here. The Tax Commission
refused to accept an escrow arrangement and it made clear to the
out-of-state suppliers that severe sanctions would be applied to
anyone who failed to charge the markup and to remit the rernlting
funds to it. Thus, the Tax Commission gave the nonappropriated
fund activities no choice except to pay the markup-either to itself
or to the out-of-state suppliers-in order to obtain liquor supplies
or else to cease dispensing alcoholic beverages altogether-that is,
to discontinue an entire line of business. Obviously. this was no
choice at all. The payments of the markup were obtained only by
coercion : they were paid under protest; and thus they hardly
ran be said to have been volnntary. See, e. g., Ward v. Board of
County Comm'rs of Love County, 253 U.S. 17, 23 (1920); Atchison,
T. & S. F. R. Co. v. O'Connor, 223 U. S. 280, 286-287 (1912);
Oceanic Steam Navigation Co. v. Stranahan, 214 U. S. 320, 329
(1909); Swift Co. v. United States, 111 U.S. 22, 28-29 (1884).
"{TNITED STATES v. :VIISSISSIPPI TAX CO.:.\1:M'N 369
3Ga Opinion of 1.he Court
I
A. \Vith respect to the two bases over which it claims
exclusive jurisdiction, Keesler Air Force Base and the
Naval Construction Battalion Center, the Government
places principal reliance upon Art. I, § 8, cl. 17, of the
Co11stitution. That clause empowers Congress to "exercise
exclusive Legislation . . . over all Places purchased
by the Consent of the Legislature of the State
in which the Sa.me shall be, for the Erection of Forts,
Magazines, Arsenals, dock-Yards, and other needful
Buildings."
In Pacific Coast Dairy, Inc. v. Dept. of Agriculture,
318 F. S. 285 ( 1943), the Court considered that clause
sufficient to render ineffective an attempt by the State
of California to fix the prices at which California milk
producers could sell milk to military authorities at Moffett
Field, over which the l'nited States exercised exclusive
jurisdiction.
"\Yheu the federal goYernment acquired the tract
l upon which l\Ioffett Field was locatedJ. local law
not inconsistent with federal policy remained in
force until altered by national legislation. The state
statute involved was adopted long after the transfer
of sovereignty and was without force in the enclave.
It follows that contracts to sell and sales consummated
within the enclave cannot be regulated by the
California law. To hold otherwise would be to
affirm that California may ignore the Constitutional
provision that 'This Constitution, and the
laws of the United States which shall be made in
Pursuance thereof; . . . shall be the supreme Law
of the Land; . . .' It would be a denial of the
federal power 'to exercise exclusive Legislation.' As
respects such federal territory Congress has the com370
OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
bined powers of a. general and a state government."
Id., at 294 (footnotes omitted).
The view of Art. I, § 8, cl. 17, expressed in Pacific Coast
Dairy was reaffirmed in Paul v. United States, 371 U. S.
245, 263-270 (1963). There the Court was confronted
with another attempt by California to enforce minimum
wholesale price regulations on sales of milk to the United
States at three other military installations located within
the State. A portion of the milk was purchased-as are
the liquor supplies here at issue-with nonappropriated
funds for use at officers' clubs and for resale at post exchanges.
As to these nonappropriated fund purchases,
the Court found it necessary to remand the case to determine
whether the state regulatory scheme predated
the transfer of sovereignty over any of the particular bases
to the United States,12 and, even if not, whether the
United States in fact exercised exclusive jurisdiction over
the areas in which purchases and sales of milk were made.
But in so doing the Court emphasized that "[t]he cases
make clear that the grant of 'exclusive' legislative power
to Congress over enclaves that meet the requirements of
Art. I, § 8, cl. 17, by its own \.Veight, bars state regulation
without specific congressional action." / d., at 263.
Were it not for the fact that we deal here with a State's
12 "The Constitution does not command that every vestige of the
laws of the former sovereignty must vanish. On the contrary its
language has long been interpreted so as to permit the continuance
until abrogated of those rules existing at the time of the surrender
of sovereignty which govern the rights of the occupants of the territory
transferred. This assures that no area however small will be
without a developed legal system for private rights." James Stewart
& Co. v. Sadrakula, 309 U. S. 94, 99-100 (1940).
See also Pacific Coast Dairy, Inc. v. Dept. of Agriculture, 318 U. S.
285, 294 (1943); Murray v. Joe Gerrick & Co., 291 U. S. 315, 318
(1934); Chicago, R. I. & P. R. Co. v. McGlinn, 114 U. S. 542, 546-
547 (1885).
-UNITED STATES v. MISSISSIPPI TAX COM:\l'N 371
363 Opinion of the Court
attempt to regulate and derive income from wholesale
transactions in liquor-a fact which raises further questions
as to the extent of the power conferred upon
the States under the Twenty-first Amendment and the
possibility of consent by the United States to state
taxation-Pacific Coast Dairy and Paul would seem to
be sufficient to dispose of this case insofar as Keesler Air
Force Base and the Na val Construction Battalion Center
are concerned. See also James v. Dravo Contracting Co.,
302 U.S. 134, 140 (1937); Standard Oil Co. v. California,
291 U.S. 242 (1934). The transactions here at issue are
strictly between the United States and out-of-state distillers
and suppliers. The goods are ordered by the officers'
clubs and other nonappropriated fund activities and
then delivered within the military bases over which the
United States claims exclusive jurisdiction. Thus, with
respect to the initial sale and delivery of the liquor by the
suppliers to military facilities located in exclusively federal
enclaves, nothing occurs within the State that gives it
jurisdiction to regulate the initial wholesale transaction.13
Cf. Polar Ice Cream & Creamery Co. v. Andrews, 375 U. S.
361, 382-383 (1964); Penn Dairies, Inc. v. Milk Control
Corr..m'n, 318 U. S. 261 (1943).
There can be no question that the tracts of land upon
which Keesler Air Force Base and the Naval Construction
Battalion Center are located were "purchased by the
Consent of the Legislature" of Mississippi within the
meaning of Art. I, § 8, cl. 17. Despite its ultimate resolution
of the case, the District Court acknowledged that
the United States had acquired exclusive jurisdiction over
these two bases. 340 F. Supp., at 904, 906. The Federal
Government acquired the relevant lands by condemnation
13 The State's power to regulate transportation of alcoholic beverages
through its territory to the bases or from the bases back into
its jurisdiction is, however, a different quest.ion, see infra, at 377-378.
372 OCTOBER TER)I, 1972
Opinion of the Court 412 U.S.
between 1941 and 1950.14 And, throughout the period
of acquisition, the State had expressly given its "consent
... , in accordance with the 17th clause, 8th section,
and of the 1st article of the Constitution of the
United States, to the acquisition by the United States,
by purchase, condemnation or otherwise, of any land in
this state ... for custom houses, post offices, or other
public buildings," 10 subject only to the right of the State
to serve civil and criminal process upon such public
lands.'" True, the assent of the United States to the
exercise of exclusive jurisdiction over the lands occupied
by the two bases was a necessary final step in light of
40 U. S. C. § 255,17 but such assent was given through a
14 See Stipulation, App. 28-29, and Ex. 1-7. It is well established
that land which the Government acquires by condemnation
has been "purchased" within the meaning of Clause 17. Sec Paul v.
United States, 371 U. S., at 264; Humble Pipe Line Co. v. TVaggonner,
376 U. S. 369, 371-372 (1964).
1 " Miss. Code Ann. § 4153. General consent statutes are not uncommon,
see Paul, v. United States, supra, at 265 and n. 31;
James v. Dravo Contracting Co., 302 U. S. 134, 143 and n. 4 ( 1937),
and they arc as effective for purposes of Art. I , § 8, cl. 17, as consent
to each particular acquisition, see Paul, v. United States, supra, at
268-269.
16 See Miss. Code Ann. § 4154. The effectiveness of such qualifications
to consent has long been accepted, sec, e. g., Paul v. United
States, supra, at 264-265; James v. Dravo Contracting Co., supra,
at 146-149.
11 Section 255 provides in relevant part :
"Notwithstanding any other provision of law, the obtaining of exclusive
jurisdiction in the United States over lands or intcrPsts
therein which have been or shall hereafter be acquired by it shall
not be required; but the head or other authorized officer of any
department or independent establishment or agency of the Government
maY, in such cases and at such times as he may deem desirable,
accept or secure from the State in which any lands or interests
therein under his immediate jurisdiction, custody, or cont rol arc
situated, consent to or cession of such jurisdiction, exclusive or partial,
not theretofore obtained, over any such lands or interests as he
UNITED STATES v. MISSISSIPPI TAX COMM'N 373
363 Opinion of the Court
series of letters from Government officials to the Governors
of Mississippi between 1942 and 1950.18
Accordingly, unless the fact that in this case the State
has attempted to derive revenue from private wholesale
liquor transactions provides a decisive distinction, our
prior cases make it clear that the Tax Commission could
not attach its markup to the sale and delivery of liquor
by out-of-state suppliers to nonappropriated fund activities
within Keesler Air Force Base and the Naval Construction
Battalion Center.
B. But the Tax Commission contends-as the District
Court held-that the application of the markup regulation
to the t\vo bases over which the United States exercises
exclusive jurisdiction is sustainable on the basis of
the broad regulatory authority conferred upon the States
by the Twenty-first Amendment. The second section of
the Twenty-first Amendment provides:
"The transportation or importation into any State,
Territory, or possession of the United States for delivery
or use therein of intoxicating liquors, in violation
of the laws thereof, is hereby prohibited."
In Collins v. Yosemite Park & Curry Co., 304 U. S.
518 (1938), a concessionaire which operated hotels, camps,
may deem desirable and indicate acceptance of such jurisdiction on
behalf of the United States by filing a notice of such acceptance with
the Governor of such State or in such other manner as may be prescribed
by the laws of the State where such lands are situated.
Unless and until the United States has accepted jurisdiction over
lands hereafter to be acquired as aforesaid, it shall be conclusively
presumed that no such jurisdiction ha,; been accepted."
18 See Stipulation, App. 28-29, and Ex. 1-7.
Since the challenged regulation first became effective in 1966, long
after the United States had acquired jurisdiction over the bases,
there is no question here as to the application within a federal enclave
of a state law that predates the transfer of sovereign authority,
see n. 12, supra.
374 OCTOBER TERJVI, 1972
Opinion of the Court 412 U.S.
and stores in Yosemite National Park, under a contract
with the Secretary of the Interior, sought to enjoin the
efforts of California . authorities to enforce the State's
Alcoholic Beverage Control Act within the limits of the
Park. The state liquor lav,, would have required the
concessionaire to apply for permits for the importation
and sale of liquor and to pay related taxes and fees. The
Court found that the State had ceded to the United
States, and that the United States had accepted, exclusive
jurisdiction over Yosemite National Park, except insofar
as the State had expressly reserved the right to tax
persons and corporations within the Park. Id., at 527-
530. In light of this determination, the Court held that
"[a]s there is no reservation of the right to control the
sale or use of alcoholic beverages, such regulatory provisions
as are found in the Act"-namely, the provisions
concerning importation and sales permits-"are unenforceable
in the Park.'' Id., at 530. In support of its
attempt to apply the permit provisions within the Park,
the State placed specific reliance upon the regulatory
authority conferred upon it by § 2 of the Twenty-first
Amendment. But the Court rejected this argument,
agreeing instead with the District Court's conclusion "that
though the Amendment may have increased 'the state's
power to deal with the problem ... [of liquor importation],
it did not increase its jurisdiction.'" Id., at 538.
The Court then went on to state:
"As territorial jurisdiction over the Park was in
the United States, the State could not legislate for
the area merely on account of the XXI Amendment.
There was no transportation into California 'for delivery
or use therein.' The delivery and use is in
the Park, and under a distinct sovereignty. Where
exclusive jurisdiction is in the United States, without
power in the State to regulate alcoholic beverages,
363
UNITED STATES v. MISSISSIPPI TAX COMM'N 375
Opinion of the Court
the XXI Amendment is not applicable." Ibid.
(Footnotes omitted.)
It is true, as the Tax Commission argues, that the Court
did sustain the application of the tax provisions of the
state liquor law within the Park. But this aspect of the
decision was bottomed specifically on the State's reservation
of taxing authority in its cession of lands to the
United States, id., at 532, 536.
Collins would seem to compel the conclusion that absent
an appropriate express reservation-which is lacking
here-the Twenty-first Amendment confers no power on a
State to regulate-whether by licensing, taxation, or
otherwise-the importation of distilled spirits into territory
over which the United States exercises exclusive jurisdiction.
See also Johnson v. Yellow Cab Transit Co.,
321 U. S. 383 (1944). Certainly, the Amendment was
intended to free the State of "traditional Commerce
Clause limitations when it restricts the importation of
intoxicants destined for use, distribution, or consumption
within its borders." Hostetter v. ldlewild Bon Voyage
Liquor Corp., 377 U.S. 324, 330 (1964). See also .Joseph
E. Seagram & Sons, Inc. v. Hostetter, 384 U. S. 35, 42
(1966). But the Government contends that here, as in
Collins, there was no "transportation or importation [of
liquor J into [the] State ... for delivery or use therein"
within the meaning of the second section and therefore
the Twenty-first Amendment does not assist the Tax
Commission's case. We agree.
The District Court acknowledged that Keesler Air
Force Base and the Naval Construction Battalion Center
"are to Mississippi as the territory of one of her sister
states or a foreign land. They constitute federal islands
which no longer constitute any part of Mississippi nor
function under its control." 340 F. Supp., at 906. And
it recognized that in light of Collins, "[t]he importation
376 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
of property onto these bases for use thereon would clearly
be outside the ambit of the XXI Amendment." Id.,
at 906-907. But the court considered Collins to be limited
strictly to the situation in which delivery and use of
the liquor was restricted to the exclusive enclave, whereas
in this case "[t]he undisputed facts show that it was
acquired for the purpose of being sold to individuals for
their use and consumption either on the base or in the
surrounding state." Id., at 907. Such off-base consumption
was sufficient, in the District Court's view, to subject
the transactions between the out-of-state suppliers
and the nonappropriated fund activities to the regulatory
authority granted to Mississippi under the Twenty-first
Amendment. We think, however, that the District Court
unjustifiably narrowed the decision in Collins.
There is, in fact, no indication in Collins that the liquor
purchased from the concessionaire's facilities in the Park
was always consumed within the limits of the Park. To
the contrary, the complaint in that case specifically stated
that the liquor imported for sale in the park facilities
was sold "for consumption on or off the premises where
sold." 19 Hence, it is just as reasonable to assume that
some of the liquor sold in the Park was consumed outside
its limits in the State of California as it is to assume
that some of the liquor sold on these two bases was ultimately
consumed in the State of Mississippi.20 The
19 Transcript of Record, No. 870, 0. T. 1937, p. 3.
2 0 In fact, the record in this case contains no express indication as
to the extent to which packaged liquor purchased from the nonappropriated
fund activities is consumed outside the jurisdiction of the
two bases. The District Court inferred off-base consumption from
the facts that "numerous classes of non military persons are authorized
to make purchases; and every selling facility exacts a promise
from each purchaser that he will obey the laws of the state as to
such of t he liquor bought as may be taken off of the installation." 340
F. Supp., at 905. By a parity of reasoning the likelihood that some
of the liquor purchased from stores located in Yosemite National
UNITED STATES v. MISSISSIPPI TAX COJ\Il\l'N 377
363 Opinion of the Court
Collins Court, in rejecting California's reliance upon the
Twenty-first Amendment, pointed, to be sure, to the fact
that "delivery and use" of the liquor was "in the Park,"
304 U. S., at 538. But, considered in the context of the
case, the Court's reference clearly was to the transaction
between the out-of-state suppliers and the park concessionaire.
It was that transaction which California sought
to regulate, and insofar as that transaction was concerned,
the delivery and use-that is, the delivery, storage, and
sale-of the liquor occurred exclusively within the Park.
The particular transactions at issue in this case between
out-of-state suppliers and the military facilities stand on
no different footing, and thus, given that the State has
retained only the right to serve process on the two bases,
Collins is dispositive of the Commission's effort to invoke
the State's authority under the second section of the
Twenty-first Amendment to impose its markup on these
transactions.
This is not to suggest that the State is without authority
either to regulate liquor shipments destined for the
bases while such shipments are passing through Mississippi
or to regulate the transportation of liquor off the
bases and into Mississippi for consumption there. Thus,
while it may be true that the mere "shipment [ of liquor]
through a state is not transportation or importation into
the state within the meaning of the [Twenty-first]
Amendment," Carter v. Virginia, 321 U. S. 131, 137
( 1944), a State may, in the absence of conflicting federal
regulation, properly exercise its police powers to regulate
and control such shipments during their passage through
its territory insofar as necessary to prevent the "unlawful
diversion" of liquor "into the internal commerce of the
State," see Hostetter v. Idlewild Bon Voyage Liquor
Park was transported to and consumed in California is even greater
since those stores were open to the public at large.
378 OCTOBER TERM, 1972
Opinion of the Court 412 U. s.
Corp., 377 U. S., at 333, 331 n. 10; Carter v. Virginia,
supra; Duckworth v. Arkansas, 314 U. S. 390 (1941).
And the State, of course, remains free to regulate or
restrict, under § 2 of the Twenty-first Amendment, the
transportation off the two bases of liquor that has been
purchased and is in fact "destined for use, distribution,
or consumption" within its borders, see Joseph E. Seagram
& Sons, Inc. v. Hostetter, 384 U. S., at 42; see also California
v. LaRue, 409 U. S. 109, 114 (1972).
But there is no indication here that the markup is an
effort to deal with problems of diversion of liquor from
out-of-state shipments destined for one of the two bases.
Nor need we now decide the precise parameters of the
State's authority to regulate efforts to import liquor from
the exclusively federal enclaves, since that question iinot
before us. For our purposes here, it suffices to note
that any legitimate state interest in regulating the importation
into Mississippi of liquor purchased on the
bases by individuals cannot effect an extension of the
State's territorial jurisdiction so as to permit it to regulate
the distinct transactions between the suppliers and
the nonappropriated fund activities that involve only
the importation of liquor into the federal enclaves which
"are to Mississippi as the territory of one of her sister
states or a foreign land," 340 F. Supp., at 906. To conclude
otherwise would be to give an unintended scope
to a provision designed only to augment the powers of
the States to regulate the importation of liquor destined
for use, distribution, or consumption in its own territory,
not to "'increase its jurisdiction,'" Collins v. Yosemite
Park & Curry Co., 304 U. S., at 538.
C. Before this Court the Tax Commission also asserts
that the markup might properly be viewed as a sales tax
and that the United States has consented to the imposition
of such a "tax" in the context of the two exclusive
jurisdiction bases under the Buck Act of 1940,
UNITED STATES v. MISSISSIPPI TAX COMM'N 379
363 Opinion of the Court
:54 Stat. 1059, now 4 "C". S. C. §§ 105-110. Section 10.5 (a)
of that Act provides in part:
"No person shall be relieved from liability for payment
of, collection of. or accounting for any sales
or use tax levied by any State, or by any duly constituted
taxing authority therein, having jurisdiction
to levy such a tax, on the ground that the sale or
use, with respect to which such tax is levied, occurred
in whole or in part within a Federal Area . . "
4 U.S. C. § 105 (a).
However, § 107 (a) of the Act spells out certain exceptions
to the consent provision contained in § 105 (a).
Specifically, § 107 (a) states that § 105 (a) "shall not
be deemed to authorize the levy or collection of any tax
on or from the United States or any instrumentality
thereof .... " Whether the markup should be treated
as a tax on sales occurring within a federal area within
the meaning of § 105 (a), see also 4 U. S. C. § 110 (b),
and, if so, whether the exception contained in § 107 (a)
nevertheless serves to remove the markup from the
consent provision for purposes of the two exclusively
federal enclaves are issues which the record
reveals were never considered, much less decided, by the
District Court. Having found that the District Court
erred in the basis on which it did dispose of this cruse,
we think that these additional issues are appropriately
left for determination by that court in the first instance
on remand.
II
The two bases over which the United States claims
to exercise jurisdiction concurrent with the State-Columbus
Air Force Base and Meridian Naval Air Stationpresent
somewhat different problems. Since the United
States has not acquired exclusive jurisdiction over the
land upon which these bases are located, the Government
380 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
is unable to rest its claims for immunity from the markup
with respect to purchases of liquor for the nonappropriated
fund activities of these bases on Art. I, § 8, cl. 17.
Rather, it bases its argument on the theories that the
markup either is an unconstitutional tax upon instrumentalities
of the United States 21 or is invalid under
the Supremacy Clause because it conflicts with federal
procurement regulations and policy.22 The District Court
specifically found it unnecessary to reach the Government's
argument under the Supremacy Clause, and implicitly
declined to reach the Government's argument concerning
taxation of United States instrumentalities.
Instead, having concluded that, despite Art. I, § 8, cl. 17,
the Twenty-first Amendment permitted the Tax Commission
to apply the markup to out-of-state purchases
destined for nonappropriated fund activities on the two
bases over which the United States exercises exclusive
jurisdiction, the District Court simply reasoned that
"[a] fortiori, the liquor sales made on the two bases over
which the federal and state governments exercise concurrent
jurisdiction-Meridian and Columbus-are similarly
subject to Mississippi law." 340 F. Supp., at 907.
The District Court's rationale for adopting this view
is not entirely clear. Certainly it was correct when it further
observed that "as to the concurrent jurisdiction bases,
the liquor sales transactions occurred within the jurisdiction
of the State of Mississippi, eve11 where the consumption
or other use of the liquor was consummated
within the territorial confines of the base." Ibid. But
this serves only to dispose of any question under Art. I,
§ 8, cl. 17. As already noted, however, the Government
does not purport to rest its case with respect to transac-
21 See, e.g., M 'Culloch v. Maryland, 4 Wheat. 316 (1819).
22 See 32 CFR § 261.4 ( c). See also Paul v. United States, 371
U. S., at 253.
UNITED STATES v. MISSISSIPPI TAX COMM'N 381
363 DoUGLA8, J., dissE'nting
tions involving the two bases over ,vhich it exercises only
concurrent jurisdiction upon that clause. In any event,
we have now concluded that the District Court erred in
ruling that the Twenty-first Amendment empowered the
State Tax Commission to apply the markup to transactions
between out-of-state distillers and nonappropriated
fund activities located on the two exclusively federal
enclaves. Our conclusion eliminates the essential premise
of the District Court's decision concerning the two
concurrent jurisdiction bases. While the arguments upon
which the Government does rely with respect to the purchase
of liquor destined for those two bases present, to be
sure, only questions of la,v which we might now decide,
we believe it would be useful to have the views of the
District Court on these additional arguments, and we
therefore remand the case to the District Court to allow
it to consider initially the Government's instrumentality
and Supremacy Clause arguments. Cf. Lewi-S v. Martin,
397 U. S. 552, 560 (1970); FCC v. WJR, 337 U. S. 265,
285 (1949).
The judgment of the District Court is vacated and
the case is remanded for further proceedings consistent
with this opinion.
It i-S so ordered.
MR. JusTICE DouGLAS, with whom MR. JusTICE REHNQUIST
concurs, dissenting.
This is an amazing decision doing irreparable harm to
the cause of States' rights under the Twenty-first Amendment.
That Amendment gives the States pervasive control
over the "transportation ... into [the] State ...
for delivery or use therein of intoxicating liquors, in violation"
of its laws. The liquors cannot reach these federal
enclaves unless they are transported into or across
the State and they are obviously delivered and used
within Mississippi.
382 OCTOBER TEK\J, 1972
Douous, J., dissenting 412 U.S.
Two of the posts are inland enclaves within the State.
Two are on Mississippi's coastline. But to reach the
latter by water a vessel must enter Mississippi's territorial
waters. As we held in Skiri.otes v. Florida, 313
U. S. 69, the territorial waters are part of the domain
over which the coastal State has sovereignty. These
shipments therefore constitute "transportation or importation
into" Mississippi for "delivery . . . therein of
intoxicating liquors" within the meaning of the Twentyfirst
Amendment. The power of the State to bar the
transportation of liquor into the State certainly includes
the power to manage its distribution within the State.
Mississippi has done no more than that. So it seems
clear to me that this is a classic example of the exercise
of basic States' rights under the Twenty-first Amendment.
Mississippi in her regulation of alcoholic beverages is
a so-called monopoly State,1 like 17 other States. Some
of these monopoly States make themselves the exclusive
wholesaler 2 of liquor and wine and exclusive retailer as
well. Mississippi only makes itself the exclusive wholesaler.
The sales involved in this litigation are wholesale
sales to clubs of members of the Armed Services on four
federal bases in Mississippi, over two of which :Mississippi
and the United States have concurrent jurisdiction, the
United States having exclusive jurisdiction over the other
two.
Under Mississippi law these post exchanges and other
facilities (hereafter post exchanges) may order liquor
direct from the distiller or from the state commission.
The Mississippi regulation provides, "All orders
of such organizations shall bear the usual wholesale
1 Miss. Code Ann. § 10265-01 et seq. (Supp. 1972).
2 Wholesaler is defined as "any person, other than a manufacturer,
engaged in distributing or selling any alcoholic beverage at wholesale
for delivery within or without this State when such sale is for
the purpose of resale by the purchaser." Id., § 10265-05 (g).
UNITED STATES v. MISSISSIPPI TAX COMM'N 383
363 DouGLAS, J., dissenting
markup 3 in price but shall be exempt from all state
taxes." The wholesale markup on distilled spirits is 17%
and on wine, 20%. If the purchase is made from the
distiller, it remits the wholesale markup to the State.
A distiller who fails or refuses to observe these conditions
is deprived of the benefits of this state law and may
be prosecuted.
This suit brought before a three-judge district court
was to collect the amount of the markups paid by the
post exchanges and to enjoin the enforcement of the
Mississippi regulation against distillers or suppliers doing
business with the post exchanges on the terms of Mississippi
law. The three-judge District Court, relying on
the T\venty-first Amendment,' gave appcllees a summary
judgment, :340 F. Supp. 903. Its judgment should
be affirmed.
The four federal enclaves involved in this dispute are
in the State of Mississippi. The spirits are made out
of State and delivered to the post exchanges within the
State. The question is whether the terms of the Twentyfirst
Amendment are met, that is to say, whether there
is "transportation . . . in to . . . [the] State . . . for
delivery or use therein of intoxicating liquors."
The spirits are not all consumed on or at the post
exchanges. Rather, they are resold to members of the
Armed Services, to retired members and the families of
members; and some of the spirits are consumed in Mississippi
and outside the federal enclaves by guests of
3 The Act provide,; in § 10265- 106, "The Commission shall add to
the cost of all alcoholic beverages such various markups as in its
discretion will be adequate to rover the cost of operation of the
State wholesale liquor business, yield a reasonable profit, and be
competitive with liquor prices in neighboring states."
4 It provides in § 2, "The transportation or importation into any
State, Territory, or possession of the United States for delivery or
use therein of intoxicating liquors, in violation of the law thereof,
is hereby prohibited."
384 OCTOBER TERM, 1972
DOUGLAS, J., dissenting 412 U.S.
members and retirees and their families. As the District
Court said, the spirits are not brought into the federal
enclaves for sole use there. The spirits are resold to
individuals for their use or consumption either on the
federal enclave or in the surrounding state area.
Private retailers in Mississippi pay the State a tax of
$2.50 a gallon on distilled spirits. The Post Exchanges
pay no state tax on their resales; and it is stipulated that
these post exchanges each make a profit.
Section 6 of the Universal Military Training and Service
Act, as amended in 1951, authorizes the Secretary of
Defense to make regulations "governing the sale, consumption,
possession of or traffic in ... intoxicating
liquors to or by members" of the Armed Forces "at or
near any camp, station, post, or other place primarily occupied
by [them]." 50 U. S. C. App. § 473. And it
makes criminal, knowing violations of such regulations.
Department of Defense Directive 1330.15 issued May 4,
1964, and amended June 9, 1966, provides that "the purchase
of all alcoholic beverages for resale at any camp,
post. station, base or other place primarily occupied by
members of the Armed Forces within the United States
shall be in such a manner and under such conditions as
shall obtain for the Government the most advantageous
contract, price and other factors considered." The Act
and the Department of Defense regulation do not on
their face purport to override or displace state price control
of liquor. It is said, however, that that is immaterial.
The Solicitor General relies on Art. I , § 8, cl. 17, of the
Constitution, which empowers Congress to "exercise exclusive
Legislation ... over all Places purchased by the
Consent of the Legislature of the State in which the
Same shall be, for the Erection of Forts, Magazines, Arsenals,
dock-Yards, and other needful Buildings." This
provision, it is said, bars state price regulations as respects
sales to post exchanges on the t,vo federal enclaves
UNITED STATES v. MISSISSIPPI TAX COMM'N 385
363 DOUGLAS, J., dissenting
over which the United States has exclusive jurisdiction
even in absence of a conflicting federal statute or regulation.
Reliance is placed on Paul v. United States, 371
U. S. 245, 263-268. The Paul case did not involve the
Twenty-first Amendment. There post exchanges resold
milk and California provided minimum wholesale price
regulations; aml we held that Art. I, § 8, cl. 17, "by its
own weight, bars state regulation without specific congressional
action." Id., at 263.
The Twenty-first Amendment and Art. I, § 8, cl. 17,
are parts of the same Constitution. In Hostetter v. I diewild
Bon Voya(Je Liquor Corp., 377 U.S. 324, we held that
while the Twenty-first Amendment gave the States control
,vhere otherwise the Commerce Clause would be a bar
to its action (id., at 330), the Twenty-first Amendment
did not give a State the po,ver to prohibit the passage of
liquor through its territory for delivery to consumers in
foreign countries. Congress had enacted a law governing
traffic in liquor to foreign nations; and that aspect of the
Commerce Clause gave Congress exclusive authority over
foreign trade. Hence it is argued here that the power
of Congress to exercise exclusive jurisdiction over a federal
enclave pre-empts state power. But all that we have
here is "transportation" into a State, not beyond it.
Collins v. Yosemite Park & Curry Co., 304 U. S. 518,
held as respects a state re(Julatory re(Jime of alcoholic beverages
within Yosemite National Park in California that
the Tv.renty-first Amendment gave the State no power to
supervise liquor transactions within the federal enclave.
The Court said:
"As territorial jurisdiction over the Park was in
the United States, the State could not legislate for
the area merely on account of the XXI Amendment.
There was no transportation into California 'for
delivery or use therein.' The delivery and use is
386 OCTOBER TERM, 1972
DoUGLAs, J., dissenting 412 u. s.
in the Park, and under a distinct sovereignty. Where
exclusive jurisdiction is in the United States, without
power in the State to regulate alcoholic beverages,
the XXI Amendment is not applicable." Id., at
538.
That observation was apt, for California undertook to
assert a regulatory authority within the park. The Solicitor
General presses for an application of Collins to the
present post exchanges. Yet Mississippi asserts no regulatory
power over these military bases or over the dispensing
of liquor by the post exchanges. Mississippi
only collects a tax from out-of-state distillers and suppliers
who ship liquor to the post exchanges. Those
shipments, as noted, must enter Mississippi to reach the
military bases.
Moreover, Mississippi asserts no authority to collect
the tax from the Federal Government or its instrumentalities,
the post exchanges. The legal incidence of the
so-called sales tax is on the distributor only. The economic
incidence is, of course, on the post exchanges. But
it has long been held that there is no constitutional barrier
to that result.
That raises the other phase of the case which should be
decided here, as it is covered by our decisions and requires
no additional factfindings for its resolution.
At least since Alabama v. King & Boozer, 314 U. S. 1,
state taxes have been upheld on those doing business
with the Federal Government even as respects cost-plus
contracts where the terms of the contract forced their
payment out of the federal treasury.5 The principle of
•In New York v. United States. 326 U.S. 572, in discussing the
Federal Government's right to lrvy taxes on New York State's sale
of mineral waters, the Court. stated, "In the older cases, the emphasis
was on immunity from taxation. The whole tendency of recent
cases reveals a shift in emphasis to that of limitation upon immunity.
They also indicate an awareness of the limited role of
UNITED STATES v. MISSISSIPPI TAX COMM'N 387
363 DouGLAS, J., dissenting
King & Boozer permits no exception for distillers who
make wholesale transactions with post exchanges, as the
legal incidence of the tax is on the distillers, not on the
courts in assessing the relative weight of the factors upon which
immunity is based." Id., at 581.
That trend continued in Esso Standard Oil Co., v. Evans, 345
U. S. 495, where the Court upheld the validity of a state privilege
tax on Essa, occasioned by its storage of gasoline owned by the
United States, even though it was shown that the United States
had contractually obligated itself to reimburse the contractor for
any state tax liability incurred. The Court distinguished those cases
which had held that there could be no state tax on federally owned
property by indicating that in Esso the tax was on the privilege
of storing Government property.
United States v. City of Detroit. 355 1.:. S. 466, and United States v.
J1uskegon, 355 U. S. 484, con('erned the application of a 1953 Michi•
gan statute providing that when tax-exempt real property is used
by a private person in a business conducted for profit the private
person is subject to taxation to the same extent as if he were the
owner of the property. Both cases involved Government contractors
occupying defense plants, one under a lease and the other under
a pP.rmit which could be terminated at will. The Court upheld the
imposition of the tax, saying the constitutional immunity of the
Federal Government from state taxation was not violated and that
the state statute was not discriminatory nor was the statute discriminatorily
administered. This result was reached notwithstanding
the fact that the Federal Government had for yea.rs reimbursed
its contractors for the costs of possessory interest taxes.
In City of Detroit v. Jfurray Corp., 355 U.S. 489, the Court, upheld
a tax imposed on 2'vlurray, an Air Force subcontractor, on the basis of
work in process and inventory, title to which was in the Federal
Government on the tax day. The Court found no constitutional
impediment to permitting a possessory-interest tax on Governmentowned
personal property. Unlike the real property situation, the
Michigan statute did not specifically authorize such tax, but it
was imposed pursuant to the 11sual personal property tax statute,
levying the tax on the property. In commenting on the disparity
between the statutes, the Court stated, "It is true that the particular
Michigan taxing statutes involved here do not expressly state that the
person in possession is taxed 'for the privilege of using or possessing'
personal property, but to strike down a tax on the possessor because
of such a verbal omission would only prove a victory for empty
388 OCTOBER TERM, 1972
DOUGLAS, J., dissenting 412 U.S.
post exchanges. Moreover, the Buck Act, 54 Stat. 1059,
now 4 U. S. C. § 105 et seq., authorizes the application of
state sales and use taxes to all post exchange purchases
\vhere "the sale or use, with respect to which such tax is
levied, occurred in whole or in part within a Federal area."
The Buck Act exempts from such taxes, sales, purchases,
storage, or use of personal property sold by the United
States or any instrumentality thereof to "any authorized
purchaser" ( § 107), who is defined as one permitted to
purchase at commissaries, ship's stores, post exchanges,
and the like, by regulations of the departmental Secretary.
It also does not authorize "the levy or collection of any
tax on or from the United States or any instrumentality
thereof." 4 U. S. C. § 107 (a).
The markup which the State requires wholesalers of
liquor to make is in its worst light a sales tax. There is
no "levy or collection" by the State from a post exchange
in any technical, legal sense. As noted, the economic
but not the legal incidence of the tax is in the post exchanges.
The post exchange is merely paying indirectly
the cost of doing business in the manner in which
King & Boozer held that there was no constitutional
immunity from state taxation.
That alone is sufficient to distinguish the present case
from Paul v. United States, 371 U. S. 245, where state
minimum price regulations were held to be inoperative as
applied to purchases of milk by federal instrumentalities,
such as post exchanges. Paul in other words involved no
tax at all. The levy of Mississippi on wholesalers is, as
noted, a sum designed to cover the cost to the State of
operating the wholesale liquor business, yield a reasonable
profit, and be competitive \Vith liquor prices in
formalisms. And empty formalisms are too shadowv a basis for
invalidating state tax laws. . . . In the circumstanc;s of this rase
the State rould obviate such grounds for invalidity by merely adding
a few words to its statutes." Id., at 493.
UNITED STATES v. MISSISSIPPI TAX COMM'N 389
363 DoUGLAS, .T., dissenting
neighboring States. It is plainly, therefore, a tax on
sales and in my view authorized by Congress under the
Buck Act. The Solicitor General concedes in his brief
that the Mississippi regulation is meant only "to raise
revenue." By reason of the Buck Act it matters not,
therefore, that the post exchanges, as held in Paul, are
federal instrumentalities. Here, as in King & Boozer,
we deal only with the "economic" burden of the local
tax, its legal incidence being solely on the distributor.
First Agricultural National Bank v. State Tax Comm'n,
392 U. S. 339, is inapposite. In that case Congress had
specifically provided four ways in which the States could
tax national banks, apart from taxes on their real estate.
Id., at 341-342. Efforts to allow broader taxation were
defeated in Congress. Because of that history, we read
the Massachusetts sales tax closely and noting that the
tax was " 'recoverable at law' " from the national bank,
id., at 347, held that it transcended the congressional
waiver of immunity.
That case does not control here for two reasons.
First, the legal incidence of the present tax is not in
the post exchanges, only the economic incidence.
Second, the Massachusetts sales tax had no relation
to the Twenty-first Amendment. The present case involves
"transportation or importation" of liquor into the
State of Mississippi over which the State has plenary
control. The State, having the power to bar liquor
completely from Mississippi, can admit it on such terms
and conditions as she chooses. If she sought to levy
a tax on the post exchanges a different issue \.Vould
arise. But there is no federal immunity against including
state costs in federal contracts.
While the Buck Act by § 107 (a) bars a state tax on
federal instrumentalities- which as Paul h-:>lds includes
post exchanges--King & Boozer allows a state tax on
those who, like the wholesalers in this case, do business
with the United States. King & Boozer, decided in 1941,
390 OCTOBER TERM, 1972
DouGLAS, J., dissenting 412 U.S.
af tcr the Buck Act, stated the modern version of the
scope of intergovernmental immunity.6 The present case
is therefore on all fours with the excise tax imposed by
Florida on milk distributors who in turn sold to federal
enclaves. In referring to the Buck Act we said:
"We think this provision provides ample basis for
Florida to levy a tax measured by the amount of milk
Polar distributes monthly, including milk sold to the
United States for use on federal enclaves in Florida."
Polar Ice Cream & Creamery Co. v. AnC:rews, 375 u. s. 361, 383.
The judgment below should be affirmed.
6 During the first third of this century the doctrine of intergovernmental
immunity, as it applies to state taxation of allegedly
federal governmental activities, went through a highly expansive
phase. Among the taxes held invalid were the following: sales tax
on articles sold to the Government, Panhandle Oil Co. v. Mississippi,
277 U. S. 218; income tax on earnings from patents and copyrights,
Long v. Rockwood, 277 U. S. 142; inrome tax on income derived by
lessees of public lands, Gillespie v. Oklahoma, 257 U. S. 501.
At the same time. howevn, a number of inroads or qualifications
on the doctrine were established. Among the taxes held valid were
the following: rnrporate franrhise tax measured by income including
that from Government bonds, Flint v. Stone Tr(JCy Co., 220 U. S.
107; inheritance or estate tax measured in part by Government bonds,
Plummer v. Coler, 178 U. S. 115: income tax on capital gain on
resale of Government bonds, Willcuts v. Bunn, 282 U. S. 216;
income tax on net income of contra.ctors with the Government,
Metcalf & Eddy v. Mitchell, 269 U. S. 514. This trend culminated
in the decision of the Court in Alabama v. King & Boozer, 314 U.S. 1.
That trend led a commentator to note, "Today, the United States
conducts much of its business through a vast number of private
parties. The trend in the U. S. Supreme Court has been to reject
immunizing these private parties from non-discriminatory state taxes,
as a matter of constitutional law, even though the United States
bears the economic brunt of the tax, indirectly in some instances,
by inclusion in price, and more directly in many instances, by reimbursement
to the contractor as an item of cost." Hollman,
Recent Developments in Sovereign Immunity of the Federal Government
from State and Local Taxes, 38 N. D. L. Rev. 26, 30.
UNITED STATES v. MASON
Opinion of the Court
UNITED STATES v. MASOX, ADMIKISTRA
TOR, ET AL.
391
CERTIORARI TO THE UNITED STATES COURT OF CLAIMS
No. 72-654. Argued April 18, 1973-Decided June 4, 1973"'·
The United States did not breach its fiduciary duty as trustee of
Indian property by paying the Oklahoma inheritance tax assessed
against the estate of decedent, a restricted Osage Indian, in reliance
on West v. Oklahoma Ta:c Comm'n, 334 U. S. 717, which had
upheld the validity of that tax as applied to the same kind
of estate. Pp. 394-400.
198 Ct. Cl. 599, 461 F. 2d 1364, reversed.
::ViAHSHALL, J., delivered the opinion of the Court, in which
BuRGER, C. .T., and BRENNAN, STgWART, \VHITE, BLACKMUN,
PowELL, and REHNQUIST, J.T., joined. DOUGLAS, .J., concurred in
the result.
Solicitor General Griswold argued the cause for the
United States in No. 72-654. \Vith him on the brief
were Assistant Attorney General Frizzell, Deputy Solicitor
General Lacovara, Harry R. Sachse, Edmund B.
Clark, and Carl Strass. Paul C. Duncan, Assistant
Attorney General of Oklahoma, argued the cause for
petitioner in Ko. 72- 606. With him on the brief was
Larry Derryberry, Attorney General.
Charles A. Hobbs argued the cause for respondents in
both cases. With him on the brief was Pierre J.
LaForce.t
MR. JUSTICE MARSHALL delivered the opm1on of the
Court.
The issue in these cases is whether a trustee in the
course of administering its fiduciary obligations is en-
*Together with Ko. 72-606, Oklahoma v. Ma..~on, Administrator,
et aL, also on certiorari to the same court.
tDavid H. Getches filed a brief for Native American Rights Fund
as amicus curiae urging affirmance in No. 72-654.
392 OCTOBER TERl\1, 1972
Opinion of the Court 412 U.S.
titled to rely on a directly relevant decision of this Court
which has neither been overruled nor questioned. The
Court of Claims ruled that the United States breached
its fiduciary duty by failing to resist payment of Oklahoma1s
estate tax on certain trust property held by the
United States acting as trustee for the benefit of the
Osage Indians. The Court of Claims recognized that
this Court, in West v. Oklahoma Tax Comm'n, 334 U. S.
717 (1948), had squarely upheld the validity of Oklahoma's
inheritance tax as applied to restricted Osage
Indians. But the lower court believed that West had
been so undermined by later decisions of this and other
courts that the United States had an obligation to challenge
its continuing validity. Since the court also believed
that such a challenge would have been successful,
it upheld both the plaintiffs' claim against tho United
States for the amount of the tax and the United States'
third-party claim against Oklahoma for indemnification.
We reverse. We hold that the United States was entitled
to rely on West in paying the tax and thus did
not breach its fiduciary obligations. It follows that the
plaintiffs below suffered no compensable damages and that
the claim over by the United States drops out of the case.
I
The facts and legal background of this dispute may
be briefly stated. Before 1906, the Osage Reservation
was held in trust for the Osage Tribe by the Vnited
States.1 In that year, the Osago Allotment Act, 34 Stat.
1 The land in question originally belonged to the Cherokee Nation,
but in 1866, the Cherokees entered a treaty with the United States
authorizing the United States to settle friendly Indians in Cherokee
territory. See 14 Stat. 799. Pursuant to this treaty, the Osage
Indians settled the land in question, and in 1883, the Cherokees
conveyed the area to the United States to be held in trust for the
UNITED STATES v. MASON 393
391 Opinion of the Court
539, ,vas passed, which divided tribal land equally among
members of the Tribe. However, an individual Indian
was not permitted to alienate the land unless "the Secretary
of the Interior, in his discretion, ... [issued] ...
a certificate of competency, authorizing him to sell and
convey any of the lands deeded him by reason of
this Act." 2 34 Stat. 542.3 In addition, the Act
created so-called "headrights" which are each tribal member's
individual share of the income derived from the
minerals located on the land. The minerals and this
income ,vere to be placed in trust for the individual
tribal members, subject to periodic distribution from income,
until 1984. when legal title to the minerals together
with the accumulated income would vest in the
individual Indians.1 Various tribal funds were also
placed in trust until that year. As amended, the Act
provides that land and funds which are either restricted
or held in trust "shall not be subject to lien, levy, attachment,
or forced sale ... prior to the issuance of a certificate
of competency." 61 Stat. 747.
The decedent in this case, Rose Mason, was an Osage
Indian who had not received a certificate of competency.
Pursuant to the Osage Allotment Act, the United States
held certain of her property in trust for her. Upon
Osage Indians. See West v. Oklahoma Tax Comm'n, 334 U. S.
717, 720 (1948).
2 The Act followed the pattern of the General Allotment Act of
1887, 24 Stat. 388, 25 G. S. C. § 3:H, which empowered the President
1 o allot reservation land to certain Indians, but from which the Osage
Indians were omitted.
"The Act has been frequently amended. 78 Stat. 1008; 61
Stat. 747; 52 Stat. 1034; 45 Stat. 1478; 37 Stat. 86.
• Originally, the Act provided that the property in question would
vest in the Indians in 25 years. See 34 Stat. 544. How!'ver, an
amendment was pa~sed in 1938 extending the trust period to 1984.
See 52 Stat. 1035.
394 OCTOBER TERJ\I, 1972
Opinion of the Court 412 U.S.
her death intestate, an Oklahoma estate tax return was
filed which included in her gross estate these trust properties.
The Federal Government then paid Oklahoma
some $8,087.10 in estate taxes out of the trust properties.
Although the decedent's administrators were discharged
in 1968, in 1970 the estate was reopened for the purpose
of permitting the administrators to challenge the United
States' payment of the tax. A suit was filed in the
Court of Claims alleging that the United States had
breached its fiduciary duty in making the payment,5 and
that court upheld the claim together with the United
States' third-party claim against Oklahoma. See 198
Ct. Cl. 599,461 F. 2d 1364 (1972). We granted certiorari
because of the seeming inconsistency between the decision
below and our prior decision in West v. Oklahoma Tax
Comm'n, supra." 409 U. S. 1124.
II
In Oklahoma Tax Comm'n v. United States, 319 U.S.
598 (1943), this Court ruled that it could not infer a
tax immunity extending to estate taxes on Osage property
from the fact that Congress had placed restrictions
on the alienability of the property. The West Court
extended that ruling to property, such as that involved
in this case, held in trust for the Osage Indians. The
Court held that by placing the property in trust, Con-
5 The suit was brought under 28 U. S. C. § 1491, which gives the
Court of Claims jurisdiction "to render judgment upon any claim
against the United States founded either upon the Constitution, or
any Act of Congress, or any regulation of an executive department,
or upon any express or implied contract with the United States, or
for liquidated or unliquidated damages in cases not sounding in
tort."
6 Both the United States, as defendant below, and Oklahoma, as
third-party defendant below, petitioned for certiorari. We granted
both petitions, cf. 41 U.S. C. § 114 (b), and consolidated the cases.
UKITED STATES v. MASOK 395
391 Opinion of the Court
gress did not intend to immunize it from local taxation.
Moreover, the federal-instrumentality doctrine was fouud
to be no bar to Oklahoma's estate tax. Although this
doctrine had been used in earlier cases to invalidate state
property taxes on trust property, see, e. g., 11JcCurdy v.
United States, 264 U. S. 484 ( 1924); United States v.
Rickert, 188 U. S. 432 (1903), the Court distinguished
estate taxes since "r a] n inheritance or estate tax is not
levied on the property of which an estate is composed.
Rather it is imposed upon the shifting of eco110mic
benefits and the privilege of transmitting or receiving
such benefits." 334 U. S., at 727. Discerning no congressional
intent to immunize Osage trust property from
state taxation and no constitutional bar to the tax, the
Court upheld Oklahoma's claim.
As the Court of Claims itself recognized, the West
decision "applied to the very type of trust property now
before us." 198 Ct. Cl., at 609, 461 F. 2d, at 1370.
Nonetheless, the court thought that the rationale of West
had been substantially undermined by Squire v. Capoeman,
351 U.S. 1 (1956), which held that the profits from
the sale of timber on the land of a Quinaielt Indian held
in trust for him pursuant to the General Allotment Act,
25 U. S. C. § 331, was immune from federal capital gains
taxes.
It must be noted, however, that the Squire Court did
not purport to question or overrule West, and, indeed,
did not so much as mention that decision. The Squire
case involved a different tax by a different level of government
on the trust properties of a different tribe held
pursuant to a different statute. As the West decision
itself made clear, decisions relating to other types of
taxes are not readily transferable to the area of estate
and gift taxation where the tax is imposed on the transfer
of property rather than on the property itself or the
396 OCTOBER TER~1, 1972
Opinion of the Court 412 r.s.
mcome it generates. Cf. Plummer v. Coler, 178 U. S.
115 ( 1900). 11oreover, the Squire decision rested heavily
on the provision in the General Allotment Act providing
for the removal of "all restrictions as to sale, encumbrance,
or taxation" when Indian property is granted
in fee-a provision ,vhich has no analogue in the Osage
Allotment Act insofar as these trust properties are
concerned.'
Nor can we agree with the Court of Claims that the
foundations of West have been substantially weakened
by subsequent lower court decisions. Apart from our
difficulty in comprehending how decisions by lower courts
can ever undermine the authority of a decision of this
Court, we think it clear that each of the cases relied upon
below is distinguishable from West. Thus, while it is
true that the Ninth Circuit construed the Mission Indian
Act, 26 Stat. 712, to invalidate California's estate
tax as applied to a California Mission Indian in Kirkwood
v. Arenas, 243 F. 2d 863 (CA.9 1957), the Kirkwood
court carefully distinguished West and recognized its continuing
validity. See id., at 865. Similarly, the
Court of Claims' reliance on its own decision in Big
Eagle v. United States, 156 Ct. Cl. 665, 300 F. 2d 765
( 1962), is misplaced since that decision, like Squire, con-
7 Respondents argue before this Court that our rf'cent decision
in McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164 (1973),
substantially extended the protC'ction afforded Indian tribes against
state taxation and therefore undermined }Vest. McClanahan, however,
concerned a state income tax on the income of a reserrntion
Indian which was earned within the reservation-a situation wholly
different from that presented here. Moreover, McClanahan cited
Oklahoma Tax Comm'n v. United States, 319 U. S. 598 ( 1943) ,
the predecessor of West, with approval, and specifically distinguished
the case of the Osage Indians by holding that "the [Indian sovrreignty]
doctrine has not been rigidly applied in cases where Indians
have left the reservation and become assimilated into the general
community." 411 U. S., at 171.
UNITED STATES v. MASON 397
391 Opinion of the Court
cerned a federal income tax. See also United States v.
Hallam, 304 F. 2d 620 (CAlO 1962). And cases such
as Nash v. H'iseman, 227 F. Supp. 552 (WD Okla.
1963), and Asenap v. United States, 283 F. Supp. 566
(WD Okla. 1968), are of questionable relevance, since
they arose under the General Allotment Act rather than
the Osage Allotment Act. Cf. Rev. Ru!. 69-164, 1969-1
Cum. Bull. 220.8
Thus, as the Court of Claims itself conceded, "since the
West case in 1948, there has been no holding exactly on
the precise issue now before us-the liability of such
Osage property to state death taxation." 198 Ct. CI., at
613, 461 F. 2d, at 1372. Although it might be fair to
say that over the years the fringes of the West doctrine
have been worn away, its core holding remains unimpeached
by any decisions of this or any other court.
"\Ve need not decide, however, whether in a case squarely
presenting the issue, we \Vould continue to adhere to
West. For the issue in this case is not whether West
should be overruled, but rather whether the United
States breached its fiduciary duty in failing to anticipate
that it would be overruled. Cf. H elvering v. Griffiths,
318 U. S. 371, 394 (1943).0
8 The Court of Claims relied in part upon a Technical Advice
::\Iemorandurn issued by the Internal Revenue Service to the Oklahoma
District Director of Internal Revenue on August 15, 1969.
The Memorandum announced that, henceforth, Osage trust property
would be exempt from federal estate taxation. The court also
pointed to Beartrack v. United States, Ct. Cl. No. 281-67, in which
the United Statrs settled a suit for refund of federal est.ate taxes
paid on restrirtcd trust properties. It is obvious, howeYer, that
Internal Revenue Service decisions as to the scope of its own taxing
power have no effect on the taxing power of the States.
As all parties apparently recognize, the scope of the United
States' fiduciary duty in administering the trust property is a
question of federal law. Cf. Clearfield Trust Co. v. United States.
:ns u. s. 363 (1943).
398 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
When the question is so posed, we think that the answer
is obvious. There is no doubt that the United
States serves in a fiduciary capacity with respect to these
Indians and that, as such, it is duty bound to exercise
great care in administering its trust. See, e. g., Seminole
Nation v. United States, 316 U. S. 286, 296-297 (1942).
But it has long been recognized that a trustee is not an
insurer of trust property. As Professor Scott has written,
"A trustee is under a duty in administering the
trust to exercise such care and skill as a man of ordinary
prudence would exercise in dealing with his own property."
2 A. Scott, Trusts 1408 (3d ed. 1967) (hereinafter
cited as Scott). See, e. g., Phelps v. Harris, 101
U. S. 370, 383 (1880). It follo\VS that "[i] f the trust
property is lost or destroyed or diminished in value, the
trustee is not subject to a surcharge unless he failed to
exercise the required care and skill." 2 Scott 1419.
Applying these familiar principles to the facts before
us, we are required to decide whether the United States
can be said to have acted with less than the requisite
care in refusing to contest the Oklahoma tax. When the
State asserts a doubtful tax claim against trust property,
the trustee is often presented with a close question.
Normally, the trustee is obligated to pay taxes on the
trust estate, and, indeed, if he negligently fails to do
so, he may be held liable for any resulting penalty. See,
e. g., 2 Scott 1422. Yet, as these cases demonstrate, if
he pays the tax, he may similarly be called upon to reimburse
the trust estate for the amount of the tax.
In order to avoid placing a trustee on the horns of
this dilemma, most courts which have considered the
problem have given a trustee broad discretion to pay taxes
claimed by the State so long as the trustee's judgment
that the taxes are valid or that the costs and risks of
litigation outweigh the advantages is not wholly unreaUNITED
STATES v. MASON 399
391 Opinion of the Court
sonable. See, e. g., Crutcher v. Joyce, 146 F. 2d 518, 519
(CAlO 1945); In re Estate of Miller, 259 Cal. App. 2d
536, 550, 551, 66 Cal. Rptr. 756, 766 (1968); In re Estate
of Wehrhane, 41 N. J. Super. 158, 166, 124 A. 2d 334,
338 (1956); Henshie v. McPherson & Citizens State
Bank, 177 Kan. 458, 479, 280 P. 2d 937, 953 (1955);
In re Vanderbilt's Will, 190 Misc. 824, 850, 77 N. Y. S.
2d 403, 427 (1948); Selleck v. Hawley, 331 Mo. 1038,
1056-1057, 56 S. W. 2d 387, 395-396 (1932).
Thus, even if the West case had never been decided,
the plaintiffs below would still have had difficulty in making
out a case that the United States had breached its
fiduciary duty by paying the tax. But, of course, West
had been decided at the time the tax was paid, and we
therefore deal here with an assertion of taxing authority
which was not merely plausible but had been expressly
approved by 8, decision of this Court. Generally,
when a trustee is in doubt as to what course to pursue,
the proper procedure for him to follow is to conform
his conduct to the instructions given him by the courts.
See, e.g., Mosser v. Darrow, 341 U.S. 267, 274 (1951).
Here, the United States did just that, and plaintiffs
below ask us to find that obedience to the instructions
of this Court constitutes a breach of fiduciary duty.
It is, of course, true that Supreme Court decisions are
on occasion overruled and that the opportunity to overrule
them would never arise if litigants did not continue
to challenge their validity. But, in this context at least,
it is unnecessary to penalize the United States' proper
reliance on our past decisions in order to re-examine
them, since there is no bar to a suit by plaintiffs below
directly against Oklahoma for recovery of the tax. Cf.
Poafpybitty v. Skelly Oil Co., 390 U. S. 365 (1968).
And if the doctrine of stare decisis has any meaning at
all, it requires that people in their everyday affairs be
400 OCTOBER TERM, 19i2
Opinion of the Court 412 U.S.
able to rely on our decisions and not be needlessly penalized
for such reliance. Cf. Flood v. Kuhn, 407 U. S.
258, 283 (1972); Wallace v. M'Connell, 13 Pet. 136, 150
(1839).
We do not have to say that a fiduciary may never be
held liable for reliance on prior decisions of this Court.
But, as the discussion above demonstrates, the United
States' reliance on West was reasonable in this situation.
The West decision has neither been overruled nor questioned
in our subsequent cases. It is fully consistent
with later developments and has been followed without
protest for 24 years. Since we find that the United
States acted with the requisite care and prudence in
following West, the decision below must be reversed with
instructions to enter judgment dismissing the complaint.
So ordered.
MR. JUSTICE DouGLAS concurs in the result.
UNITED STATES v. CHICAGO, B. &. Q. R. CO. 401
Syllabus
UNITED STATES v. CHICAGO, BURLINGTON &
QUINCY RAILROAD CO.
CERTIORARI TO THE UNITED STATES COURT OF CLAIMS
Ko. 72-90. Argued February 26, 197:=l-Drridcd .TunP 4, 1973
In this refund suit, respondent railroad seeks to reco\'er an alleged
income tax overpayment resulting from its failure to take deductions
for depreciation with respert to thr cost of facilities
constructed at highway-railroad intersections and elsewhere that
were paid for, not by respondent, but out of Government funds
appropriated to further public safety and improve highway systems.
Respondent elaimed that the subsidies qualified as contributions
to its capital by a nonshareholder under § 113 (a) (8)
of the Internal Revenue Code of 1939, thereby permitting respondent
to depreciate the GovernmPnt's cost in the assets. The
Court of Claims ruled that respondent was entitled to the claimed
depreciation deduction. Held: The governmental subsidies did
not constitute contributions to respondent's capital within the
meaning of§ 113 (a) (8); the assets in question have a zero basis;
and respondent cannot claim a depreciation allowance with respect
to those assets. As can be gleaned from Detroit Edison Co. v.
Commissioner, 319 U. S. 98, and Brown Shoe Co. v. Commissioner,
339 U. S. 583, to qualify as a nonshareholder contribution to capital,
the asset must become a permanent part of the transferee's working
capital structure; may not be compensation for the transferee's
services; must be bargained for; must benefit the transferee
commensurately with its value; and ordinarily will be used
to produce additional income. Here, almost none of these criteria
was met, since the facilities were not bargained for and, but for
the governmental subsidies, would not have been constructed.
No substantial incremental benefit in terms of income production
was considered at the time the facilities were transferred, and
such minor benefit as may have accrued to respondent from the
facilities was merely peripheral to the railroad's business. Nor
would respondent's asserted obligation to replace the facilities
warrant the claimed depreciation. .Pp. 405-416.
197 Ct. Cl. 264, 455 F. 2d 993, reversed and remanded.
BLACK MUN, J ., delivered the opinion of the Court, in which
BuRGER, C. J., and BRENNAN, ·WHITE, MARSHALL, and REHXQUIST,
402 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
JJ., joined. Dour.LAS, J., fikd a dissenting opinion, post, p. 416.
STEWART, J., filed a dissenting opinion, in which DoUGLAS, J., joined,
post, p. 417. POWELL, J.1 took no part in the consideration or decision
of the case.
Richard B. Stone argued the cause for the United
States. With him on the brief were Solicitor General
Griswold, Acting Assistant Attorney General Ugast,
Meyer Rothwacks, and Grant W. Wiprud.
Richard J. Schreiber argued the cause for respondent.
With him on the brief was Richard T. Cubbage.
MR. JusTICE BLACKMUN delivered the opinion of the
Court.
The issue in this federal income tax case is whether
the respondent, Chicago, Burlington & Quincy Railroad
Company (CB&Q), an interstate common carrier railroad,
may depreciate the cost of certain facilities paid for
prior to June 22, 1954, not by it or by its shareholders,
but from public funds.
Starting about 1930, CB&Q entered into a series of
contracts with various Midwestern States. By these
agreements the States were to fund some or all of the
costs of construction of specified improvements, and the
railroad apparently was to bear, at least in part, the costs
of maintenance and replacement of the improvements
once they had been installed. In 1933, as part of the
program of the National Industrial Recovery Act, 48 Stat.
195, Congress authorized federal reimbursement to the
States of the shares of the costs the States incurred in
the construction of those improvements that inured to
the benefit of public safety and improved highway traffic
control.' In 1944 Congress went further and authorized
reimbursement, with stated limitations, to the States for
the entire cost of the improvements, subject to the con-
1 National Industrial Recovery Act, § 204 (a) ( 1), 48 Stat. 203.
UNITED STATES v. CHICAGO, B. &. Q. R. CO. 403
401 Opinion of the Court
dition that a railroad that received a benefit from a
facility so constructed was liable to the Government for
up t-0 10% of the cost of the project pro rata in relation
to the benefit received by the railroad.2
Under these programs CB&Q received, at public expense,
highway undercrossings and overcrossings having
a cost of $1,538,543; crossing signals, signs, and floodlights
having a cost of $548,877; and jetties and bridges
having a cost of $58,721.3 These improvements, aggregating
$2,146,141, were carried on the railroad's books
as capital assets even though most of the agreements between
CB&Q and the several States did not expressly
convey title to the railroad.
CB&Q instituted a timely suit in the Court of Claims
alleging, among other things, that it had overpaid its 1955
federal income tax because it had failed to assert, as a
deduction on its return as filed, allowable depreciation
on the subsidized assets.4 By a 4-to-3 decision on this
issue ( only one of several in the case), the Court of
Claims concluded that, under § 167 of the Internal Revenue
Code of 1954, 26 U. S. C. § 167, CB&Q was entitled
to the depreciation deduction it claimed. This was on
the theory that the subsidies qualified as contributions
to the railroad's capital under § § 362 and 1052 ( c) of that
2 Federal-Aid Highway Act of 1944, § 5, 58 Stat. 840.
3 The Court of Claims, both the majority and dissenters, asserted,
and indeed found, that the $1,538,543 figure related to highway
undercrossings and overcrossings. 197 Ct. Cl. 264, 271-272, 325,
455 F. 2d 993, 997-998 ( 1972). CB&Q, in its Brief, p. 3, and in
oral argument, Tr. of Oral Arg. 25, claims that this figure has to
do only with railroad bridges and that the assets sought to be depreciated
relate only to railroad use. According to CB&Q, no facilities
directly related to highway use are involved. Inasmuch as
the resolution of this factual issue, would not affect the result we
reach, it need not be resolved.
4 The parties are in agreement as to what the adjusted bases of the
assets in question would be, and as to the applicable rates of depreciation,
if depreciation for tax purposes is allowable at all.
404 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
Code, 26 U. S. C. §§ 362 and 1052 (c), and under § 113
(a)(8) of the Internal Revenue Code of 1939.
In arriving at this conclusion, the Court of Claims
majority relied on Brown Shoe Co. v. Commissioner,
339 U. S. 583 (1950), and reasoned that, even though
the governmental payments for the facilities may not
have been intended as contributions to the railroad's
capital, the "principal purpose" being, instead, "to benefit
the community-at-large." 197 Ct. Cl., at 276, 455 F.
2d, at 1000, the facilities did in fact enlarge the railroad's
working capital, were used in its business, and
produced economic benefits for it, thereby qualifying as
contributions to its capital under the cited section of
the 1939 Code. The three dissenting judges disagreed
with this interpretation of Brown Shoe, and, instead, relied
on Detroit Edison Co. v. Commissioner, 319 U. S. 98
(1943). They concluded that the critical features were
the donor's attitude, purpose, and intent, and that, with
governmental payments, there could be no intention to
confer a benefit upon CB&Q. Instead, as the findings
revealed,5 the intention ,vas to expedite traffic flow and
to improve public safety at highway-railroad crossings.
197 Ct. Cl., at 315, 320, 455 F. 2d, at 1023, 1026.
Because the Court of Claims decision apparently would
afford a precedent for the tax treatment of substantial
sums," we granted certiorari. 409 U. S. 947.
5 The Trial Commissioner and the Court of Claims made the following
finding of fact:
"9. The facilities noted in finding 7 were constructed primarily
for the benefit of the public to improve safety and to expedite highway
traffic flow. Plaintiff [CB&Q], however, received benefits from
the facilities, among others, probable lower accident rates, reduced
expenses of operating crossing facilities, and, where permitted, higher
train speed limits, all of which permitted plaintiff to function more
efficiently and presumably less expensively." 197 Ct. Cl., at 326-327.
6 The Solicitor General asserts, Pct. for Cert. 15-16, that
$623,000,000 in federal funds were paid out for projects and imUNITED
STATES v. CHICAGO, B. &. Q. R. CO. 405
401 Opinion of the Court
I
Section 23 (l) of the 1939 Code and its successor,
§ 167 (a) of the 1954 Code, 26 U. S. C. § 167 (a), allow
a taxpayer "as a depreciation deduction a reasonable
allowance for the exhaustion, wear and tear ... of property
used in the trade or business." In the usual situation
the taxpayer himself incurs cost in acquiring the
assets as to which the depreciation deduction is asserted.7
But there are other and different situations formally recognized
in the governing tax statutes. A familiar example
is gift property.8 Another is property acquired by a corprovements
at railroad-highway grade crossings alone between 1934
and 1954. See U. S. Department of Transportation, Report to Congress:
Railroad-Highway Safety, Part I: A Comprehensivr Statement
of the Problem 38 (1971). The Commissioner of Internal Revenue
estimates that, taking into account grants of this kind to
railroads and federal grants to utility companies, depreciation on
property with asserted cost bases between a half billion and one billion
dollars is dependent upon the resolution of this issur and is still
litigable. Pet. for Cert. Hl.
7 Section 113 (a) of the 1939 Code and § 1012 of the 1954 Code,
26 U. S. C. § 1012, state the general rule that the "basis of propnty
shall be the cost of such property."
8 Section 113 (a) (2) of the 1939 Code provides that with respect
to "property . . . acquired by gift after December 31, 1920, the
basis shall be the same as it would be in the hands of the donor
or the last preceding owner by whom it was not acquired by gift,
except ... " This provision was carried over into § 1015 (a) of
the 1954 Code, 26 U. S. C. § 1015 (a). The language of § 362 ( c)
of the 1954 Code, to the effect that the basis of a nonshareholder's
contribution made on or after June 22, 1954, to the capital of a
corporation shall be zero in the hands of the transferee, has been
said not to affect the availability of a carryover basis with respect
to gifts. See H. R. Rep. No. 1337, 83d Cong., 2d Sess., A128
(1954); S. Rep. No. 1622, 83d Cong., 2d Sess., 272 (1954); n. Bittker
& J. Eustice, Federal Income Taxation of Corporations and Shareholders
,i 3.14, pp. 3-51 and n. 81 (3d ed. 1971 ) : 3A .J. l\lerten6,
Law of Federal Income TRxation § 21.134 (1968 rev.).
406 OCTOBER TETI~T, 1972
Opinion of the Court 412 u. s.
poration from its shareholders as paid-in surplus or as a
contributio11 to capital.9 A11other, and the one that is
pertinent here, is covered by § 113 (a) (8) 10 of the 1939
Code and by the contrasting provisions of §§ 362 (a) and
(c) of the 1954 Code, 26 U. S. C. §§ 362 (a) and (c).11
9 Section 113 (a) (8) of the 1939 Code; § 362 (a) of the 1954 Code,
26 U. S. C. § 362 (a).
10 "§ 113. Adjusted basis for determining gain or loss.
"(a) Basis (unadjusted) of property.
"The basis of property shall be the cost of such property; except
that-
"(8) Property acquired by issuance of stock or as paid-in surplus.
"If the property was acquired after December 31, 1920, by a
corporation-
" (A) by the issuance of its stock or securities in connection with
a transaction described in section 112 (b) (5) (including, alfo, cases
where part of the consideration for the transfer of such property to
the corporation was property or money, in addition to such stock
or securities), or
"(B) as paid-in surplus or as a contribution to capital, then the
basis shall be the same as it would be in the hands of the transferor,
increased in tlH' amount of gain or decreased in the amount
of loss recognized to the transferor upon such transfer under the
law applicable to the year in which the transfer was madf'."
11 "§ 362. Basis to corporations.
"(a) Property acquired by issuance of stock or as paid-in surplus.
"If property was acquired on or after June 22, 1954, by a
corporation-
" (1) in connection with a transaction to which section 351 (relating
to transfer of property to corporation controlled by transferor)
applies, or
"(2) as paid-in surplus or as a contribution to capital, then the
basis shall be the same as it. would be in the hands of the transferor,
increased in the amount of gain recognized to the transferor
on such transfer.
"(c) Special rule for certain contributions to capital.
"(1) Property other than money.
[Footnote 11 continued on p. 407]
UNITED STATES v. CHICAGO, B. &. Q. R. CO. 407
401 Opinion of the Court
This concerns a contribution to capital by a nonshareholder.
See Treas. Reg. Ill, § 29.113 (a)(8)-l (1943).
Under §§ 113 (a) (8) and 114 (a) of the earlier Code, the
nonshareholder-contributed asset in the hands of the receiving
corporation had the same basis, subject to adjustment,
for depreciation purposes as it had in the hands
of the transferor; under the 1954 Code, however, its basis
for the transferee is zero.
Pertinent to all this is the Court's decision in Edwards
v. Cuba R. Co., 268 U.S. 628 (1925). The Court there
held that subsidies granted by the Cuban Government to
a railroad to promote construction in Cuba "were not
profits or gains from the use or operation of the railroad,"
and did not constitute income to the receiving corporation.
Id., at 633. The holding in Edwards, taken
with § 113 (a)(8) of the 1939 Code, produced a seemingly
anomalous result, for it meant that a corporate
taxpayer receiving property from a nonshareholder as a
contribution to capital not only received the property
free from income tax but was allowed to assert a deduction
for depreciation on the asset so received tax free.
This result also ensued under the Court's holding in
Brown Shoe and led to the enactment of the zero-basis
"Notwithstanding subsection (a) (2), if property other than
money-
"(A) is acquired by a corporation, on or after June 22, 1954, as
a contribution to capital, and
"(B) is not contributed by a shareholder as such, then the basis
of such property shall be zero.
"(2) Money.
" Notwithstanding subsection (a) (2), if money-
" (A) is received by a corporation, on or after June 22, 1954, as
a contribution to capital, and
"(B) is not contributed by a shareholder as such, then the basis
of any property acquired with such money during the 12-month
period beginning on the day the contribution is received shall be
reduced by the amount of such contribution."
408 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
provision, referred to above, in § 362 ( c) of the 1954 Code,
26 (;_ S. C. § 362 (c). Veterans Foundation v. Commissioner,
317 F. 2d 456, 458 (CAlO 1963).
CB&Q argues that this very result should follow here.
It is said that the railroad received no taxable income
and incurred no income tax liability when it received,
at governmental expense prior to June 22, 1954, the facilities
as to which CB&Q now asserts depreciation. And,
in providing the facilities, CB&Q argues, the Government
intended to make a contribution to the railroad's capital,
within the meaning of § 113 (a)( 8), thereby permitting
CB&Q to depreciate the Government's cost in the assets.
Whether the governmental subsidies qualified as income
to the railroad is an issue not raised in this case, and we
intimate no opinion with respect to it. The United
States, however, asserts that the subsidies did not constitute
a "contribution to capital" under § 113 (a) (8),
and that, accordingly, the transferee railroad's tax basis
is zero and no depreciation deduction is available.
Our inquiry, therefore. is a narrow one: whether the
nonshareholder payment in this case constituted a "contribution
to capital," within the meaning of§ 113 (a)(8).
Because both Detroit Edison and Brown Shoe bear upon
the issue, we turn to those two decisions.
II
Detroit Edison concerned customers' payments to a
utility for the estimated costs of construction of service
facilities (primary power lines) that the utility otherwise
was not obligated to provide. For its tax years 1936 and
1937, to which the Revenue Act of 1936, 49 Stat. 1648,
applied, the utility claimed the full cost of the facilities
in its base for computing depreciation. The Commissioner
disallo'wcd, for depreciation purposes, that portion
of the cost paid by customers and not refundable. The
Board of Tax Appeals, 45 B. T. A. 358 (1941), and the
UNITED STATES v. CHICAGO, B. &. Q. R. CO. 409
401 Opinion of the Court
Court of Appeals, 131 F. 2d 619 (CA6 1942), sustained
the Commissioner. This Court affirmed.
Mr. Justice Jackson, speaking for a unanimous Court
( the Chief Justice not participating), observed, "The end
and purpose of it all I depreciation] is to approximate
and reflect the financial consequences to the taxpayer of
the subtle effects of time and use on the value of his
capital assets." 319 U. S., at 101. The statute, § 113 (a)
of the 1936 Act, it was said, "means ... cost to the
taxpayer," even though the property "may have a cost
history quite different from its cost to the taxpayer."
Also, the "taxpayer's outlay is the measure of his recoupment
through depreciation accruals." 319 U. S., at
102. The utility's attempt to avoid this result by its
contention that the payments ,vere gifts or contributions
to its capital, and entitled to the transferors' bases, was
rejected.
"It is enough to say that it overtaxes imagination to
regard the farmers and other customers who furnished
these funds as makers either of donations or
contributions to the Company. The transaction
neither in form nor in substance bore such a
semblance.
"The payments were to the customer the price
of the service. . . . They have not been taxed as
mcome. . . . But it does not follow that the Company
must be permitted to recoup through untaxed
depreciation accruals on investment it has refused
to make." Id., at 102-103.
Detroit Edison, by itself, ,vould appear almost to foreclose
CB&Q's claims here, for there is an obvious parallel
between the customers' payment for the utility service
facilities in Detroit Edison, and the governmental payments
for improvements to the railroad's service facilities
in the case before us.
410 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
But Detroit Edison was not the last word. Brown
Shoo was decided seven years later, and the opposite tax
result was reached by an 8-1 vote of the Court, with
Mr. Justice Black in dissent without opinion.
Brown Shoe concerned a corporate taxpayer's excess
profits tax, under the Second Revenue Act of 1940, 54
Stat. 974, as amended, for its fiscal years 1942 and 1943.
Community groups paid cash or transferred property to
the taxpayer as an inducement for the location or expansion
of factory operations in their communities. Contracts
were entered into, and in each instance the taxpayer
obligated itself to locate or enlarge a facility in the
community and to operate it for at least a minimum
term. The value of the payments and transfers was
the focus of the controversy between the taxpayer and
the Commissioner, for depreciation on the transferred
assets was claimed and their inclusion in equity invested
capital was asserted. The Tax Court overruled the Commissioner's
disallowance with respect to the acquisitions
paid for with cash, but sustained the Commissioner with
respect to buildings transferred. 10 T. C. 291 ( 1948).
The Court of Appeals upheld the Commissioner on both
items. 175 F. 2d 305 (CA8 1949). This Court reversed.
Mr. Justice Clark, writing the opinion for the majority
of the Court, concluded that the assets transferred by the
community groups to the taxpayer were contributions to
capital, within the meaning of § 113 (a)(8) of the 1939
Code. The Court noted that in time they would wear
out and, if the taxpayer continued in business, the physical
plant eventually would have to be replaced. Detroit
Edi.son was cited and recognized, but was considered
not to be controlling. In Brown Shoe there were
"neither customers nor payments for service," and therefore
the Court "may infer a different purpose in the transactions
between petitioner and the community groups."
339 U. S., at 591. The only expectation of the groups
UNITED STATES v. CHICAGO, B. &. Q. R. CO. 411
401 Opinion of the Court
was that "such contributions might prove advantageous
to the community at large." Thus, it was said, "the
transfers manifested a definite purpose to enlarge the
working capital of the company." Ibid.
The Court thus professed to distinguish and not at all
to overrule Detroit Edison. It did so on an analysis
of the purposes behind the respective transfers in the
two cases. Where the facts were such that the transferors
could not be regarded as having intended to make
contributions to the corporation, as in Detroit Edison, the
assets transferred were not depreciable. But where the
transfers were made with the purpose, not of receiving
direct service or recompense, but only of obtaining advantage
for the general community, as in Brown Shoe,
the result was a contribution to capital.
III
It seems fair to say that neither in Detroit Edison
nor in Brown Shoe did the Court focus upon the use to
which the assets transferred were applied, or upon the
economic and business consequences for the transferee
corporation. Instead, the Court stressed the intent or
motive of the transferor and determined the tax character
of the transaction by that intent or motive. Thus,
the decisional distinction between Detroit Edison and
Brown Shoe rested upon the nature of the benefit to the
transferor, rather than to the transferee, and upon
whether that benefit was direct or indirect, specific or
general, certain or speculative.12 These factors, of course,
are simply indicia of the transferor's intent or motive.
12 Sec, for example, Teleservice Co. v. Commissioner, 254 F. 2d
105 (CA3 1958), cert. dPnied, 357 U. S. 919 (1959); United Grocers,
Ltd. Y. United States, 308 F. 2d 634 (CA9 1962). There is support in
the legislative history of § 118 of the 1954 Code, 26 U. S. C. § 118,
providing for the exclusion from gross income of "any contribution
to the capital of the taxpayer," for the indirect benefit-prepayment412
OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
That this line of inquiry, and these distinctions, have
relatively little to do with the economic and business
consequences of the transaction seems self-evident.13 In
both cases the assets transferred were actually used in
the transferee's trade or business for the production of
income. In neither case did the transferee provide the
investment for the assets sought to be depreciated. Yet
in both cases, the assets in question were transferred for
a consideration pursuant to an agreement. If, at first
glance, Detroit Edison and Brown Shoe seem somewhat
inconsistent, they may be reconciled, and indeed must be,
on the ground that in Detroit Edison the transferor intended
no contribution to the transferee's capital, whereas
in Brown Shoe the transferors did have that intent.
The statutory phrase "contribution to capital" is nowhere
expressly defined in either the 1939 Code or the
1954 Code, and our prior decisions provide only limited
guidance as to its precise meaning. Detroit Edison
might be said to be only a holding that a payment for
services is not a contribution to capital. Brown Shoe
sheds little additional light, for the Court stated only
that because the community payments were not compensation
for specific services rendered, and did not confor-
future-services distinction. H. R. Rep. No. 1337, 83d Cong., 2d
Sess., 17 (1954).
'" The distinctions wrought by Detroit Edison and Brown Shoe
h:we been the subject of scholarly criticism. See, for example, ~ote,
Taxation of :Nonsharcholder Contributions to Corporate Capital,
82 Harv. L. Rev. 619 (1969); Landis, Contributions to Capital of
Corporations, 24 Tax L. Rev. 241 (1969); Note, Tax Consequences
of Non-Shareholder Contributions to Corporate Capital, 66 Yale L. J.
1085 (1957); Freeman & Speiller, Tax Consequences of Subsidies to
Induce Business Location, 9 Tax. L. Rev. 255 (1954). In the article
last cited the authors suggest that Detroit Edison and Brown Shoe
are irreconcilable, the latter in effect ovc>rruling the former. Id., Rt
262. See also The Supreme Court, 1949 Term, 64 Harv. L. Rev. 114,
149-151 (1950).
U~TTED STATES v. CHICAGO, B. &. Q. R. CO. 413
401 Opinion of thr Court
stitute gifts, they must have been made in order to enlarge
the working capital of the company. 339 l'. S., at
591.
But other characteristics of a contribution to capital
are implicit in the two cases and become apparent when
viewed in the light of the facts presently before us. In
Brourn Shoe, for example, the contributed funds were
intended to benefit not only the transferors but the transferee
as well, for the assets were put to immediate use by
the taxpayer for the generation of additional income.
Without benefit to the taxpayer, the agreement certainly
would not have been made. Perhaps to some extent this
was true in Detroit Edison; that taxpayer, however, was
a public utility, and the anticipated revenue from the
service lines to the customers would not have warranted
the investment by the utility itself. 319 U. S., at 99.
Its benefit, therefore, was marginal.
We can distill from these two cases some of the characteristics
of a nonshareholder contribution to capital
under the Internal Revenue Codes. It certainly must
become a permanent part of the transferee's working capital
structure. It may not be compensation, such as a
direct payment for a specific, quantifiable service provided
for the transferor by the transferee. It must be
bargained for. The asset transferred foreseeably must
result in benefit to the transferee in an amount commensurate
with its value. And the asset ordinarily, if
not always, will be employed in or contribute to the production
of additional income and its value assured in that
respect.
By this measure, the assets with which this case is
concerned clearly do not qualify as contributions to
capital. Although the assets were not payments for
specific, quantifiable services performed by CB&Q for
the Government as a customer, other characteristics of
414 OCTOBER TERlVI, 1972
Opinion of the Court 412 D.S.
the transaction lead us to the conclusion that, despite
this, the assets did not qualify as contributions to
capital. The facilities were not in any real sense bargained
for by CB&Q. Indeed, except for the orders by
state commissions and the governmental subsidies, the
facilities most likely would not have been constructed
at all.14 See Nashville, C. & St. L. R. Co. v. Walters,
294 U. S. 405, 421-424 (1935). The transaction in substance
was unilateral: CB&Q would accept the facilities
if the Government would require their construction and
would pay for them. Any incremental economic benefit
to CB&Q from the facilities was marginal; its extent and
importance were indicated and accounted for by the requirement
that the railroad pay not to exceed 10% of
the cost in relation to its own benefit.15 The facilities
were peripheral to its business and did not materially
contribute to the production of further income by the railroad.
They simply replaced existing facilities or provided
new, better, and safer ones where none otherwise
would have been deemed necessary. As the Court of
Claims found, the facilities were constructed "primarily
for the benefit of the public to improve safety and to
expedite highway traffic flow," 16 and the need of the railroad
for capital funds was not considered, 197 Ct. Cl.,
at 326. While some incremental benefit from lower accident
rates, from reduced expenses of operating crossing
facilities, and from possibly higher train speed might have
resulted, these were incidental and insubstantial in relation
to the value now sought to be depreciated, and they
14 Counsel for CB&Q stated at oral argument that the railroad
was under a "preexisting legal obligation to construct these facilities"
that were funded by the governmental subsidies. Tr. of Oral
Arg. 30, 35-36.
15 The Government does not challenge the CB&Q's right to depreciate
those portions of a facility for which it was required to pay.
16 See n. 5, supra.
UNITED STATES v. CHICAGO, B. &. Q. R. CO. 415
401 Opinion of the Court
were presumably considered in computing the railroad's
maximum 10% liability under the Act. In our view, no
substantial incremental benefit in terms of the production
of income was foreseeable or taken into consideration
at the time the facilities were transferred. Accordingly,
no contribution to capital was effected.
CB&Q nevertheless contends that it is entitled to
depreciate the facilities because of its obligation to maintain
and replace them. Whatever may be the desirability
of creating a depreciation reserve under these
circumstances, as a matter of good business and accounting
practice, the answer is, as Judge Davis of the Court
of Claims observed in dissent, 197 Ct. Cl., at 318, 455
F. 2d, at 1025, "Depreciation reflects the cost of an
existing capital asset, not the cost of a potential replacement."
Reisinger v. Commissioner, 144 F. 2d 475, 478
(CA2 1944). See United States v. Ludey, 274 U.S. 295,
300--301 (1927); Weiss v. Wiener, 279 U.S. 333, 335-336
( 1929); Helvering v. Lazarus & Co., 308 U. S. 252, 254
(1939); Massey Motors v. Unite.d States, 364 U. S. 92
(1960); Fribourg Nav. Co. v. Commissioner, 383 U. S.
272 (1966).
We conclude that the governmental subsidies did not
constitute contributions to CB&Q's capital, within the
meaning of § 113 (a)(8) of the 1939 Code; that the
assets in question in the hands of CB&Q ha.ve a zero basis,
under §§ 113 and 114 of that Code and § 1052 (c) of the
1954 Code, 26 U. S. C. § 1052 (c); and that CB&Q is
therefore precluded from claiming a depreciation allowance
with respect to those assets.11 The judgment of the
17 The Government has argued, in the alternativr, that, by virtue
of a "terms letter" agreement entered into by CB&Q a.nd the Commi8-
sioner with respect to a change in the railroad's accounting method
from retirement to straight-line depreciation, CB&Q irrevocably
agreed to exclude donated property, or contributions or grants in
aid of construction from any source, from its depreciation base. Be416
OCTOBER TEK\1, 1972
DoraLAs, J., dissenting 412 U.S.
Court of Claims on this issue is reversed and the case is
remanded for further proceedings.
It is so ordered.
MR. JUSTICE PowELL took no part in the consideration
or decision of this case.
MR. JUSTICE DouGLAS, dissenting.
While I join the dissent of MR. J{;'STICE STEWART, I
add a few words. Funds ,vere contributed by the States
and by the Federal Government to respondent for the
construction of highway overpasses and underpasses and
for grade-crossing protection equipment. While the
Government provided most of the funds, the respondent
did most of the construction work~all as found by the
Court of Claims. 197 Ct. CL 264, 271, 455 F. 2d 993,
997-998.
This case is not controlled by Detroit Edison Co. v.
Commissioner, am u. s. 98, as MR. JUSTICE STEWART
says, for there the advances were made by customers of
a utility as part of "the price of the service." Id., at
103. Here, however, the situatiou was different. As
the Court of Claims found:
"[VJ nder all the agreements, plaintiff was obligated
to maintain and replace as necessary, at its
own expense, facilities originally built. The facilities
were constructed primarily for the benefit of
the public to improve safety and to expedite motorvehicle
traffic flow. The record shows, however, that
plaintiff received economic benefits from the facilities,
e. g., probable lower accident rates, reduced
expenses of operating crossing equipment and, where
cause of our conclusion that the governmental payments did not
qualify as contributions to capital, we need not determine whether
the "terms letter" agreement barred CB&Q from claiming depreciation
on the assets in question.
401
UNITED STATES v. CHICAGO, B. &. Q. R. CO. 417
STEw ART, J ., dissenting
permitted, higher train speed limits. Plaintiff also
received intangible benefits, e. g., good,vill from the
community-at-large, which was to plaintiff's longterm
economic advantage." 197 Ct. CL, at 272, 455
F. 2d, at 998.
The case is therefore on all fours with Brown Shoe Co.
v. Commissioner, 339 U. S. 583. In distinguishing Detroit
Edis on we said:
"Since in this case there are neither customers nor
payments for service, we may infer a different purpose
in the transactions between petitioner and the
community groups. The contributions to petitioner
were provided by citizens of the respective
communities who neither sought nor could have anticipated
any direct service or recompense whatever,
their only expectation being that such contributions
might prove advantageous to the community at
large. Under these circumstances the transfers manifested
a definite purpose to enlarge the working capital
of the company." Id., at 591.
I would affirm the judgment of the Court of Claims.
MR. JvsTICE STEWART, with whom MR. JUSTICE Doua-
LAS joins, dissenting.
This case involves the depreciation of certain railroad
facilities constructed with public funds prior to June 22,
1954. The precise question before the Court is whether
those facilities constituted "contributions to capital"
within the meaning of § 113 (a) (8) (B) of the Internal
Revenue Code of 1939.
Beginning in the early 1930's, various state governments
entered into agreements with the respondent railroad
for the construction of highway overpasses and
underpasses at highway-railroad intersections, and construction
of grade-crossing protection equipment such as
418 OCTOBER TERM, 1972
STEWART, J., dissenting 412 U.S.
flashing-light signals and automatic gates. The agreements
generally provided that the States would pay 50%
or more of the total cost, and subsequently Congress
authorized the Federal Government to assume the State's
share of the construction costs. See National Industrial
Recovery Act § 204 (a), 48 Stat. 203. Under the
Federal-Aid Highway Act of 1944, § 5, 58 Stat. 840,
the Federal Government reimbursed the States for the
entire cost of the highway-railroad crossing projects, subject
to payment by the railroads for up to 10% of the
cost of the project if the railroads were benefited by the
facilities.
The respondent filed suit in the Court of Claims seeking
a refund on its 1955 income taxes, claiming that the
Commissioner of Internal Revenue had erred by refusing
to allow a depreciation deduction for these publicly
contributed facilities. The respondent asserted that
these facilities were "depreciable property" held throughout
1955 "for use in its trade or business," and that they
were acquired prior to June 22, 1954, as "contributions
to capital."
The respondent's claim was an uncomplicated one.
Section 167 of the Internal Revenue Code of 1954, 26
U. S. C. § 167, applicable to the respondent's 1955 income
tax return, allowed as a depreciation deduction "a reasonable
allowance for the exhaustion, wear and tear (including
a reasonable allowance for obsolescence)- ( 1) of property
used in the trade or business .... " Section 1052 ( c)
of the 1954 Code, 26 U. S. C. § 1052 (c), provided for
using the basis rules of the 1939 Code for certain property
that was acquired in transactions to which the 1939
Code applied, including "contributions to capital."' The
1 The basis provision of the 1954 Code, which provides a zero basis
for nonshareholder rontribut.ions to capital, applies only to property
acquired on or after June 22, 1954. 26 U. S. C. § 362. Sec n. 9,
FNITED STATES v. CHICAGO, B. &. Q. R. CO. 419
401 STEWART, .T ., dissenting
respondent contended that the publicly contributed facilities
were "contributions to capital," and that under
113 (a)(8)(B) of the 1939 Code, it could carry over
the transferor's basis; in short, it claimed that its basis
for the highway-safety facilities was the cost of the
facilities to the governments that had financed them.2
The Court of Claims agreed with the respondent that
these facilities were exhaustible assets properly depreciable
to the full extent of their value. 197 Ct. C'l. 264,
276, 455 F. 2d 993, 1002. The depreciable nature of the
facilities was undisputed, since the Government conceded
that "the facilities are of a character normally subject to
allowance for depreciation and that to the extent they
were paid for by [the respondent], appropriate depreciation
deductions are proper." Id., at 273-274, 455
F. 2d, at 999. The court concluded that the facilities were
"contributions to capital" under § 113 ( a)(S)(B) of the
1939 Code and that the Government's cost basis in the
facilities was, therefore, available to the respondent.3
"The facilities ,vere constructed primarily for th<> benefit
of the public to improve safety and to expedite motorvehicle
traffic flow. The record shows, however, that
infra. All the property at issue in the present case was acquired
before June 22, 1954.
2 Section 113 (a) (8) provides in pertinent part:
"If the property was acquired after December 31, 1920, by a
corporation-
" (B) as paid-in i-urplus or as a contribution to capital, then the
basis shall be the same as it would he in the hands of the transferor,
increased in the amount of gain or df'rreased in the amount of loss
recognized to the transferor upon surh transfer under the law
applicable to the year in which the transfer was made."
"It was undisputed that the facilities had been "contributed" to
the respondent by the States, "and this is taken to mean that [the
respondf'nt] owns them .... " Hl7 Ct. Cl. 264, 272, 455 F. 2d
993, 998.
420 OCTOBER TERM, 1972
SrEWAHT, J., dissenting 412 U.S.
[ the respondent] received economic benefits from the
facilities, e. IJ., probable lower accident rates, reduced
expenses of operating crossing equipment and, where
permitted, higher train speed limits. [The respondent]
also received intangible benefits, e. g., goodwill from the
community-at-large, which was to l the respondent's]
long-term economic advantage." Id., at 272,455 F. 2d, at
998.• The court thus concluded "that the facilities enlarged
[ the respondent's] working capital and were used
by [the respondent] in its business; and though they may
not produce income to the same extent as other railroad
property, such as track or freight cars, [ the respondent]
derived economic benefits from them." Id., at 276, 455
F. 2d, at 1000.
I think the Court of Claims was entirely right in holding
that these publicly contributed facilities constituted
contributions to capital within the meaning of § 113
(a) (8) (B) of the 1939 Code." The facilities at issue fall
within the plain language of a "contribution to capital."
As the Court noted, they were "contributed" to the respondent
in the sense that the railroad now owns them.
4 The Findings of Fact of the Trial Commissioner which were accepted
by tht> court indicated as follows:
"The facilities . . . were constructed primarily for the benefit
of the publir to improve safety and to expedite highway traffic flow.
[The respondent], however, received benefits from the facilities,
among others, probablr lower accidrnt rates, rrduccd expenses of
operating crossing facilities, and, whne permitted, higher train speed
limits, all of which permitted [the respondent7 to function more
efficiently a.nd prrsumably less expcMively." 197 Ct. Cl., at 326-327.
5 The Government has suggested as an alternative basi~ for reversal
that the rE'spondent entered into a "tnms letter" agreement
with the Commissioner whereby it agreed to exclude contributed property
from its deprcl'iation base. The Court dor~ not re-ach this contention.
1 agree with the reasoning of the Court of Claims in holding
that the terms letter did not bar the respondent from claiming a
depreciation deduction on contributed property.
UNITED STATES v. CHICAGO, B. &. Q. R. CO. 421
401 STEWART, J., dissenting
And they are now part of the "capital" of the railroad
as that term is generally used in business and accounting
practice, part of the permanent investment in the business.
See Brown Shoe Co. v. Commissioner, 339 U. S.
583, 589 and n. 11; Texas & Pacific R. Co. v. United
States, 286 U. S. 285; Edwards v. Cuba R. Co., 268 U. S.
628, 631-633; H. Guthmann & H. Dougall, Corporate
Financial Policy 136-138 ( 4th ed.); R. Marple, Capital
Surplus and Corporate Net Worth 136-137; 1 J. Mertens,
Law of Federal Income Taxation § 5.06 n. 47 (J. Malone
rev. ed.); Harvey, Some Indicia of Capital Transfers
Under the Federal Income Tax Laws, 37 Mich. L. Rev.
745, 747-749.6
The only two prior decisions of this Court that bear
directly on the question before us-Detroit Edison Co. v.
Commissioner, 319 U. S. 98, and Brown Shoe Co. v.
Commissioner, supra--confirm that these publicly contributed
facilities are contributions to the respondent's
capital.
In Detroit Edison Co. v. Commissioner, supra, prospective
customers of an electric company were required to
pay for the construction of additional facilities in order
6 The text of § 113 indicates that there is no significance in the
fact that the State and Federal Governments attempted here to
achieve the public goal of transportation safety rather than simply
to make a gratuitous transfer to the railroad. For if a donative
purpose were required for a "contribution to capital" then that pro•
Yision would simply be duplicative of § 113 (a) (2) of the 1939 Code
which allows a carryover basis for gifts.
And similarly it is of no consequence that the contribution was
by a nonshareholder, for a contribution by a sharl'holder would have
a carryover basis under the "paid-in surplus" proYision of § 113
(a) (8) (B). Sec Treas. Reg. 111, § 29.113 (a) (8)-1.
In short, a "contribution to capital" is any nongratuitous transfer
to a corporation by a nonshareholder, such as is involved in the
present case. Sec Freeman & Speiller, Tax Consequences of Subsidies
to Induce Business Location, 9 Tax L. Rev. 255, 261 .
422 OCTOBER TERM, 1972
STE,vART, J., dissenting 412 u. s.
to receive the company's services. The Court rejected
the contention that those payments were contributions
to capital: "[I]t overtaxes imagination to regard the
farmers and other customers who furnished these funds
as makers either of donations or contributions to the
Company. . . . The payments were to the customer
the price of the service." Id., at 102-103.
In Brown Shoe, supra, various community groups contributed
cash and property to the taxpayer corporation
to induce it to locate in or expand its operations in the
respective communities. The Court held these assets
to be "contributions to capital" within the meaning of
§ 113 (a)(8)(B), stressing the fact that they were in a
very practical sense an addition to the corporation's
capital: " '[T] he assets received ... are being used
by the taxpayer in the operation of its business. They
will in time wear out, and if [the taxpayer] is to continue
in business, the physical plant must eventually be replaced.
Looking as they do toward business continuity,
the Internal Revenue Code's depreciation provisionsand
especially those which provide for a substituted
rather than a cost basis--would seem to envision allowance
of a depreciation deduction in situations like
this ... .'" Id., at 590 (quoting Commissioner v. McKay
Products Corp., 178 F. 2d 639, 643). The Court explained
Detroit E.dison as a case of payments for services
rather than contributions to capital. By contrast, in
Brown Shoe, "[t]he contributions to [the taxpayer] were
provided by citizens of the respective communities who
neither sought nor could have anticipated any direct
service or recompense whatever, their only expectation
being that such contributions might prove advantageous
to the community at large.'' Id., at 591.1
7 Federal courts in distinguishing between Brown Shoe and Detroit
Edison have relied on the fact that Detroit Edison involved direct
parments by customers for services. See United Grocers, Ltd. v.
UNITED STATES v. CHICAGO, B. &. Q. R. CO. 423
401 STEWART, J., dissenting
It seems plain to me that the present case 1s controlled
by Brown Shoe. As in that case, these publicly
contributed facilities were in no sense direct payments
for services. The State and Federal Governments did not
purchase any services in connection with construction of
the facilities. Rather, to achieve the public goal of
transportation safety they transferred assets to the railroad
which increased its working capital. In short, these
assets fell within the practical, working definition of
"contributions to capital" that was recognized by the
Court in Brown Shoe., and they did not fall within the
narrow exception of payments for services that the Court
found significant in Detroit Edison.
The Government urges us to read Brown Shoe as holding
that, in order to establish a "contribution to capital,"
a taxpayer must prove that the transferor of the asset
had a definite purpose to enlarge the taxpayer's working
capital. But that case did not turn on the presence of
any such specific purpose. The purpose of the community
contributions in Brown Shoe was to induce the
taxpayer to locate or expand its operations in the local
area, and this purpose was accomplished by contributing
assets; there was no gratuitous attempt to enlarge the
taxpayer's capital. The Court noted, in passing, the existence
of a purpose to enlarge the taxpayer's working
capital only in order to underline the fact that the community
groups there were not customers paying compensation
for services rendered. And, as in Brown Shoe,
the State and Federal Governments here attempted to
accomplish a general public goal by contributing facilities
to the taxpayer. As in Brown Shoe, they were not paying
for services.
United States, 308 F. 2d 634, 639-640; Teleservice Co. v. Commissioner,
254 F. 2d 105, 110--111. See also Note, Taxation of Nonshareholder
Contributions to Corporate Capital, 82 Harv. L. Rev.
619, 626-627.
424 OCTOBER TERM, 1972
STEWART, J., dissenting 412 u. s.
The Court today, however, does not appear to decide
this case on the presence or absence of any specific motive,
intent, or purpose. Rather, the Court constructs a
series of guidelines that must be met before there can be
a "contribution to capital." These guidelines seem to be
based upon the value of the assets to the transferee.
For the Court relies primarily on the fact that the publicly
financed facilities were "peripheral" to the railroad's
business and did not materially contribute to the production
of further income, and concludes that they were
not therefore contributions to the railroad's capital. But
the Court cites nothing in the statute, the regulations,
or our prior cases to warrant this strange definition of
"capital" when that term is used in the phrase "contribution
to capital."
Brown Shoe made clear that "capital" was to be defined
"as that term has commonly been understood in
both business and accounting practice .... " 339 U. S.,
at 589. The facilities in the present case meet that test.
They are certainly part of the respondent's capital under
any traditional understanding of that term; they are
assets permanently invested in the railroad's business.
See supra, at 421. Indeed, many of these facilities are
essential to the railroad's continued operation-a railroad
bridge, for example, is an obvious physical necessity
if the railroad is to operate. All of the facilities enlarged
the railroad's working capital, were used in its
business, and yielded tangible and intangible economic
benefits to the railroad. And the Court even appears
to acknowledge that these assets are "capital" in the
normal sense of that term, since it concedes that the
portion of the facilities constructed by the railroad with
its own funds is depreciable.8 I do not understand why
8 There is no dispute that the railroad can claim a depreciation
deduction for its 10% share of the cost of the facilities.
UNITED STATES v. CHICAGO, B. &. Q. R. CO. 425
401 STEWART, J., dissenting
that portion of the same assets that was contributed to
the railroad is not also part of the railroad's capital. I
would maintain the straightforward approach taken by
Brown Shoe and Detroit Edison-nonshareholder additions
to capital are "contributions to capital" unless they
are direct payments for services rendered.
The Government argues that to allow the railroad to
claim a depreciation deduction on these facilities as "contributions
to capital" would lead to the "anomalous"
result that although the railroad had incurred no expense
with respect to the publicly financed facilities, it could
nevertheless recoup their cost. But if this is an anomaly,
it is the same anomaly that existed in Brown Shoe.
The taxpayer there had not paid for the property contributed
by the community groups, yet it was able to
claim a full depreciation deduction on it. In short, this
so-called anomaly is the ineluctable result of § 113
(a) (8) (B) which allowed a carryover basis for nonshareholder
contributions to capital. It was Congress
that had created the anomaly, and it was for Congress
to correct it. In enacting § 362 (c) of the 1954 Code,9
9 Section 362 of the Internal Revenue Code of 19.54, 26 U. S. C.
§ 362, pro,·ides in pertinent part:
" (a) Property acquired by issuance of stock or as paid-in surplus.
"If property was acquired on or after June 22, 1954, by a
corporation-
"(2) as paid-in surplus or as a contribution to capital, then the
basis shall be the samc> as it would be in the hands of the transferor,
increased in the amount of gain recognized to the transferor on surh
transfer.
"(c) Special rule for certain contributions to capital.
" ( 1) Propert:v other than money.
" Notwithstanding subsection (a) (2), if property other than
money-
[Footnote s9 continued on p. 426]
426 OCTOBER TERM, 1972
STEWART, J., dissenting 412 U.S.
Congress did precisely that. It eliminated any depreciation
deduction for nonshareholder contributions to capital
by providing a zero basis for such transfers, but it did so
only for property acquired on or after June 22, 1954.
In sum, Congress in 1954 rewrote the tax law so as
to overrule Brown Shoe and prohibit depreciation to be
taken on contributions to capital made by nonshareholders
on or after June 22, 1954.10 As it now turns out,
Congress could have saved itself the trouble. For today
the Court rewrites the law and prohibits depreciation
to be taken on such assets the railroad has owned since
the 1930's. I would follow the law as Congress wrote it
and affirm the judgment of the Court of Claims.
"(A) is acquired by a corporation, on or after June 22, 1954, as
a contribution to capital, and
"(B) is not contributed by a shareholder as such,
"then the basis of such property shall be zero.
"(2) Money.
"Notwithstanding subsection (a)(2), if money-
"(A) is received by a corporation, on or after June 22, 1954, as
a contribution to capital, and
"(B) is not contributed by a shareholder as such,
"then the basis of any property acquired with such money during the
12-month period beginning on the day the contribution is received
shall be reduced by the amount of such contribution. The excess
(if any) of the amount of such contribution over the amount of the
reduction under the preceding sentence shall be applied to the reduction
(as of the last day of the period specified in the preceding
sentence) of the basis of any other property held by the taxpayer.
The particular properties to which the reductions required by this
paragraph shall be allocated shall be determined under regulations
prescribed by the Secretary or his delegate."
10 It was explicitly recognized that 26 U. S. C. § 362 (c) was enacted
to overcome the effect of Brown Shoe. H. R. Rep. No. 1337,
83d Cong., 2d Sess., Al28 ; S. Rep. No. 1622, 83d Cong., 2d Sess.,
271-272; Veterans Foundation v. Commissioner, 317 F. 2d 456,458.
KORTHCROSS v. MEMPHIS BOARD OF EDUCATION 427
Per Curiam
~ORTHCROSS ET AL. v. BOARD OF EDUCATION
OF THE MEMPHIS CITY SCHOOLS ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Ko. 72-1164. Decided June 4, 1973
Since the Court of Appeals' denial of costs and attorneys' fees under
§ 718 of the Emergency School Aid Act of 1972 to petitioners, who
were successful in litigation aimed at desegregating the public
schools of Memphis, Tenn., was without stated reasons, this Court
cannot determine whether the proper standard, Newman v. Piggie
Park Enterprises, Inc., 390 U. S. 400, was correctly applied.
Certiorari granted; vacated and remanded.
PER CuRrAM.
This case presents the question of the propriety, under
§ 718 of the Emergency School Aid Act of 1972, 86 Stat.
369, 20 U.S. C. § 1617, of a denial of attorneys' fees to the
successful plaintiffs in this litigation aimed at desegregating
the public schools of Memphis, Tennessee. Section
718, which became effective on July 1, 1972, provides that
" [ u] pon the entry of a final order by a court of the
United States against a local educational agency, a State
( or any agency thereof), or the United States ( or any
agency thereof)," in any action seeking to redress illegal
or unconstitutional discrimination with respect to "elementary
and secondary education, the court, in its discretion,
upon a finding that the proceedings were necessary
to bring about compliance, may allow the prevailing
party, other than the United States, a reasonable attorney's
fee as part of the costs." Ii:i this case, the United
States Court of Appeals for the Sixth Circuit denied
petitioners' motion for an award of attorneys' fees.
The Court of Appeals did not, however, state reasons
for the denial and it is therefore not possible for this
428 OCTOBER TERM, 1972
}>er Curiam 412 U.S.
Court to determine whether the Court of Appeals applied
the proper standard in reaching this result.1
Section 718 tracks the wording of § 204 ( b) of the Civil
Rights Act of 1964, 78 Stat. 244, 42 U. S. C. § 2000a-3(b),
which provides that, in an action seeking to enforce Title
II of that Act, "the court, in its discretion, may allow the
prevailing party, other than the United States, a reasonable
attorney's fee as part of the costs . . . ." In
Newman v. Piggie Park Enterprises, Inc., 390 U. S. 400
( 1968), we held that, under § 204 (b), "one who succeeds
in obtaining an injunction under that Title should ordinarily
recover an attorney's fee unless special circumstances
would render such an award unjust." Id.,
at 402. The similarity of language in § 718 and § 204 (b)
is, of course, a strong indication that the two statutes
should be interpreted pari passu. Moreover, "the two
provisions share a common raison d'etre. The plaintiffs
in school cases are 'private attorneys general' vindicating
national policy in the same sense as are plaintiffs in
Title II actions. The enactment of both provisions was
for the same purpose-'to encourage individuals injured
by racial discrimination to seek judicial relief . . . .' "
Johnson v. Combs, 471 F. 2d 84, 86 (CA5 1972), quoting
Newman v. Piggie Park Enterprises, Inc., supra, at
402. We therefore conclude that, as with § 204 (b), if
other requirements of § 718 arc satisfied, the successful
plaintiff "should ordinarily recover an attorney's fee unless
special circumstances 1.vould render such an award
unjust." 390 U. S., at 402. Since it is impossible for us
1 Respondents suμ;gest that petitioners' motion for costs and attorneys'
fees might have been denied due to untimeliness. Although it.
is clear that the petitions for rehearing en banr were denied as
untimely, there is no indication that the bill of costs was filed out
of time, or that costs and attorneys' fees were denied for that
reason.
N"ORTHCROSS v. MEMPHIS BOARD OF EDL'CATION 429
427 Per Curiam
to determine whether the Court of Appeals applied this
standard and, if so, whether it did so correctly, we grant
the petition for certiorari, vacate the judgment below
insofar as it relates to the denial of attorneys' fees,
and remand to the Court of Appeals for further proceedings
consistent with this opinion.2 See Taylor v. Mc-
Keithen, 407 U. S. 191 (1972); cf. California v. Krivda,
409 u. s. 33 (1972).
MR. JUSTICE MARSHALL did not participate in the consideration
or decision of this case.
2 We need not, and therefore do not, decide whether§ 718 authorizes
an award of attorneys' fees insofar as those expens<'s were incurred
prior to the date that that section came into effect. We also do not
decide whether, and under what circumstances, an award of attorneys'
fees is permissible in suits brought under 42 U. S. C. § 1983 in
the absence of specific statutory authorization for such an award.
See Knight v. Auciello, 453 F . 2d 852 (CAI 1972); Lee v. Southern
Home Sites Corp., 444 F. 2d 143 (CA5 1971) .
430 OCTOBER TERM, 1972
Per Curiam 412 U.S.
DOUGLAS v. BUDER, JUDGE
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME
COURT OF MISSOURI
~o. 72-6198. Decided June 4, 1973
Petitioner, who had been given a suspended sentence for manslaughter
and placed on probation for four years, with a condition
that "all arrests for any reason must be reported without delay,"
was thereafter involved in an automobile accident in Arkansas,
for which he receiwd a traffic citation. Eleven days later, he
mentioned the citation to his probation officer, who notified respondent
judge. At a hearing, the prosecutor and the probation
officer recommended continued probation but respondent, stating
that the failure to report the accident and the citation was not
in "strict compliance with the terms of the probation," revoked
probation and sentenced petitioner to jail on the original counts.
The Missouri Supreme Court denied a writ of prohibition. Held:
The issuance of the traffic citation was not an "arrest" under
either Missouri or Arkansas law, and the finding that petitioner
had violated his probation eonditions was so totally devoid of
evidentiary support as to violate due process. Even were it clear
that respondent held Missouri law to be that a traffic citation is
the equivalent of an arrest, such an unforeseeable holding, retroactivrly
applied, would also deprive petitioner of due process.
Certiorari granted; 485 S. W. 2d 609, reversed and remanded.
PER CuRIAM.
In November 1971, petitioner, a 50-year-old truck
driver with no prior offenses, pleaded guilty to two
counts of manslaughter and was given a suspended sentence
and placed on probation for a period of four years
by the respondent Missouri Circuit Court Judge. One
of the conditions of probation was that "[a] 11 arrests for
any reason must be reported without delay to [petitioner's]
probation and parole officer." In January 1972,
petitioner was involved in a seven-vehicle chain-reaction
accident on an Arkansas highway. The driver of the
DOUGLAS v. BUDER 431
430 Per Curiam
first vehicle was issued a traffic citation for failure to
yield the right of way, and petitioner, along with four
other drivers involved in the accident, was issued a citation
for driving too fast for existing conditions. At the
next scheduled meeting with his probation officer, 11 days
after the accident, petitioner mentioned the accident
and the receipt of the traffic citation. On the same day,
the probation officer reported this information to respondent
who thereupon scheduled a hearing for the
purpose of determining whether petitioner's probation
should be revoked. At the hearing, both the probation
officer and the prosecutor took the position that petitioner
had not violated any of the conditions of his
probation and both recommended that probation be
continued. Nevertheless, respondent, stating that petitioner's
failure to report the accident and the traffic
citation "displayed poor attitude toward his probation"
and was not in "strict compliance with the terms of the
probation," revoked probation and sentenced petitioner
to concurrent terms of two years on each of the original
two counts. Petitioner sought a writ of prohibition in
the Missouri Supreme Court, but that court, in a 4-3
decision, concluded that respondent had not abused his
discretion and therefore denied relief.
The apparent premise upon which respondent proceeded
in revoking petitioner's probation was that petitioner
had failed promptly to report an "arrest." But
the issuance of the traffic citation was not an "arrest"
under either Missouri or Arkansas law. By statute,
Missouri defines an "arrest" as "an actual restraint of
the person of the defendant, or ... submission to the
custody of the officer, under authority of a warrant or
otherwise." Mo. Rev. Stat. § 544.180 (1953). Similarly,
Arkansas defines an "arrest" as the "placing
of the person of the defendant in restraint, or ... submitting
to the custody of the person making the arrest."
432 OCTOBER TEHi\J, 1972
Per Curiam 412 U.S.
Ark. Stat. Ann. § 43-412 (1947). The record before us
discloses absolutely no evidence that petitioner was subjected
to an "actual restraint" or taken into "custody"
at the scene of the accident or elsewhere. Consequently,
we conclude that the finding that petitioner had violated
the conditions of his probation by failing to report
"all arrests . . . without delay" was so totally devoid
of evidentiary support as to be invalid under the Due
Process Clause of the Fourteenth Amendment. Thompson
v. Louisville, 362 U.S. 199 (1960); Garner v. Louisiana,
368 U. S. 157 (1961).
The State argues, however, that the revocation of
petitioner's probation should be viewed as a determination
by respondent that, for purposes of Missouri law,
a traffic citation is the equivalent of an arrest even though
not accompanied by an actual restraint. But neither
respondent nor the Missouri Supreme Court specifically
made such a finding and no prior Missouri decisional
law is cited to support the contention that a traffic
citation has ever before been treated as the equivalent
of an arrest. Moreover, even if it were clear that respondent
had declared Missouri law to be that a traffic
citation is the equivalent of an arrest, we ,vould have
to conclude that under the rationale of Bouie v. City
of Columbia, 378 U. S. 347 (1964), the unforeseeable
application of that interpretation in the case before us
deprived petitioner of due process. We held in Bouie
that "[w)hen ... [an] unforeseeable state-court construction
of a criminal statute is applied retroactively
to subject a person to criminal liability for past conduct,
the effect is to deprive him of due process of law
in the sense of fair warning that his contemplated conduct
constitutes a crime." Id., at 354-355. And that
same principle of due process is fully applicable in the
context of the case before us.
DOUGLASv. BUDER 433
430 Per Curiam
The motion for leave to proceed in f onna pauperis and
the petition for a writ of certiorari are granted. The
judgment is reversed and the cause is remanded to the
Missouri Supreme Court for proceedings not inconsistent
with this opinion.
Reversed and remanded.
THE CHIEF JUSTICE and MR. JusTICE REHNQUIST
concur in the result.
MR. JusTICE BLACKMUN took no part in the consideration
or decision of this case.
434 OCTOBER TEHM, 1972
Opinion of the Court 412 U.S.
STRUNK, AKA WAGNER v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
No. 72-5521. Argued April 24, 1973~Decided June 11, 1973
Petitioner was convicted of a federal offensr and was sentenced to
a term of five years, to run concurrently with a sentence of one
to three years that he was serving pursnant to a state-court conviction.
Before trial, the District Court denied his motion to
dismiss the federal charge on the ground that he had been denied
a speedy trial. The Court of Appeals reversed, holding that he
had been denied a speedy trial, but that the "extreme" remedy
of dismissal of the charges was not warranted. The case was
remanded to the District Court to reduce the sentence by 259
days, to compensate for the unnece~sary dela? that had occurred
between the return of the indictment and petitioner's arraignment.
The Government did not file a cross-petition for certiorari challenging
the finding of denial of a speedy trial. Held: In this case,
the only question for review is the propriety of the remedy fashioned
by the Court of Appeals. In light of the policies underlying
the right to a speedy trial, dismissal must remain, as noted
in Barker v. Wingo, 407 U.S. 514, 522, "the only possible remedy"
for deprivation of this constitutional right. Pp. 435-440.
467 F. 2d 969. reversed and remanded.
BURGER, C. J., wrote the opinion for a unanimous Court.
John R. Wideikis argued the cause and filed a brief for
petitioner pro hac vice.
William Bradford Reynolds argued the cause for the
United States. With him on the brief were Solicitor
General Griswold, Assistant Attorney General Petersen,
and Jerorne M. Feit.
Opinion of the Court by MR. CHIEF JUSTICE BURGER,
announced by MR. JusTICE DOUGLAS.
Petitioner was found guilty in United States District
Court of transporting a stolen automobile from
STRUNK v. UNITED STATES 435
434 Opinion of the Court
Wisconsin to Illinois in violation of 18 U. S. C. § 2312
and was sentenced to a term of five years. The five-year
sentence was to run concurrently with a sentence of one
to three years tha.t petitioner was then serving in the
Nebraska State Penitentiary pursuant to a conviction in
the courts of that State.
Prior to trial, the District Court denied a motion to
dismiss the federal charge, in which petitioner argued
that he had been denied his right to a speedy trial.
At trial, petitioner called no witnesses and did not
take the stand; the jury returned a verdict of guilty.
The Court of Appeals reversed the District Court, holding
that petitioner had in fact been denied a speedy
trial. Ho,vever, the court went on to hold that the "extreme"
remedy of dismissal of the charges was not warranted;
the case was remanded to the District Court to
reduce petitioner's sentence to the extent of 259 days
in order to compensate for the unnecessary delay which
had occurred between return of the indictment and petitioner's
arraignment.
I
Certiorari was granted on petitioner's claim that, once
a judicial determination has been made that an accused
has been denied a speedy trial, the only remedy available
to the court is "to reverse the conviction, vacate the
sentence, and dismiss the indictment." No cross-petition
was filed by the Government to review the determination
of the Court of Appeals that the defendant had been
denied a speedy trial. The Government acknowledges
that, in its present posture, the case presents a novel
and unresolved issue, not controlled by any prior decisions
of this Court.
The Court of Appeals stated that the 10-month delay
which occurred was "unusual and call[edJ for explanation
as well as justification," 467 F. 2d 969, 972. The Gov436
OCTOBER TERM, 1972
Opinion of the Court 412 u. s.
ernment responded that petitioner had, after rece1vmg
the proper warnings, freely admitted his guilt to an FBI
agent ,vhile incarcerated in the Nebraska Penitentiary,
and had stated that he intended to demand a speedy trial
under Fed. Rule Crim. Proc. 20. The Government
claimed that it had postponed prosecution because
of petitioner's reference to Rule 20, and consequently,
that a large portion of the delay which ensued
was attributable to petitioner. The Court of Appeals
regarded this explanation as tenuous; it also rejected the
lack of staff personnel in the United States Attorney's
Office as a justification for the delay. The entire course
of events from the time of arrest through the Court
of Appeals plainly placed the Government on notice
that the speedy trial issue was being preserved by the
accused and would be pressed, as indeed it has been.
On this record, it seems clear that petitioner was responsible
for a large part of the IO-month delay
which occurred and that he neither showed nor claimed
that the preparation of his defense was prejudiced by
reason of the delay. It may also well be correct that
the United States Attorney was understaffed due to
insufficient appropriations and, consequently, was unable
to provide an organization capable of dealing with
the rising caseload in his office, especially with respect
to criminal cases. Unintentional delays caused by overcrowded
court dockets or understaffed prosecutors are
among the factors to be weighed less heavily than intentional
delay, calculat€d to hamper the defense, in determining
whether the Sixth Amendment has been violated
but. as we noted in Barker v. Wingo, 407 U. S. 514, 531
(1972), they must
"nevertheless ... be considered since the ultimate
responsibility for such circumstances must rest ,vith
the government rather than with the defendant."
STRUNK v. UNITED STATES 437
434 Opinion of the Court
This served to reaffirm what the Court held earlier in
Dickey v. Florida, 398 U. S. 30, 37-38 (1970):
"Although a great many accused persons seek to
put off the confrontation as long as possible, the
right to a prompt inquiry into criminal charges is
fundamental and the duty of the charging authority
is to provide a prompt trial." 1 (Footnote omitted.)
However, in the absence of a cross-petition for certiorari,
questioning the holding that petitioner was denied
a speedy trial, the only question properly before us
for review is the propriety of the remedy fashioned by the
Court of Appeals. Whether in some circumstances, and
as to some questions, the Court might deal with an
issue involving constitutional claims, absent its being
raised by cross-petition, we need not resolve. Suffice it
that in the circumstances presented here in which the
speedy trial issue has been pressed by the accused from
the time of arrest forward and resolved in his favor, we
are not disposed to examine the issue since we must
assume the Government deliberately elected to allow the
case to be resolved on the issue raised by the petition for
certiorari.
II
Turning to the remaining question of the power of the
Court of Appeals to fashion what it appeared to consider
as a "practical" remedy, we note that the court clearly
perceived that the accused had an interest in being tried
promptly, even though he was confined in a penitentiary
for an unrelated charge. Under these circumstances,
"the possibility that the defendant already in
prison might receive -a sentence at least partially
1 American Bar Association Project on Standards for Criminal
Justice, Speedy Trial 27-28 (Approved Draft 1968) (hereafter ABA,
Speedy Trial).
438 OCTOBER TERM, 1972
Opinion of the Court 412 u. s.
concurrent with the one he is serving may be forever
lost if trial of the pending charge is postponed."
Smith v. Hooey, 393 U.S. 374, 378 (1969) (footnote
omitted).
The Court of Appeals went on to state:
"The remedy for a violation of this constitutional
right has traditionally been the dismissal of the
indictment or the vacation of the sentence. Perhaps
the severity of that remedy has caused courts to be
extremely hesitant in finding a failure to afford a
speedy trial. Be that as it may, we know of no
reason why less drastic relief may not be granted in
appropriate cases. Here no question is raised about
the sufficiency of evidence showing defendant's
guilt, and, as we have said, he makes no claim of
having been prejudiced in presenting his defense.
In these circumstances, the vacation of the sentence
and a dismissal of the indictment would seem inappropriate.
Rather, we think the proper remedy is
to remand the case to the district court with direction
to enter an order instructing the Attorney General
t-0 credit the defendant with the period of time
elapsing between the return of the indictment and
the date of the arraignment. Fed. R. Crim. P. 35
provides that the district court may correct an illegal
sentence at any time. We choose to treat the sentence
here imposed as illegal to the extent of the
delay we have characterized as unreasonable." 467
F. 2d, at 973.
It is correct, as the Court of Appeals noted, that
Barker prescribes "flexible" standards based on practical
considerations. However, that aspect of the holding in
Barker was directed at the process of determining
whether a denial of speedy trial had occurred; it did not
deal with the remedy for denial of this right. By definiSTRUNK
v. UNITED STATES 439
434 Opinion of the Court
tion, such denial is unlike some of the other guarantees
of the Sixth Amendment. For example, failure to afford
a public trial, an impartial jury, notice of charges, or
compulsory service can ordinarily be cured by providing
those guaranteed rights in a new trial. The speedy trial
guarantee recognizes that a prolonged delay may subject
the accused to an emotional stress that can be presumed
to result in the ordinary person from uncertainties in
the prospect of facing public trial or of receiving a sentence
longer than, or consecutive to, the one he is presently
serving-uncertainties that a prompt trial removes.
Smith v. Hooey, 393 U.S., at 379; United States v. Ewell,
383 U.S. 116, 120 (1966). We recognize, as the Court did
in Smith v. Hooey, that the stress from a delayed trial may
be less on a prisoner already confined, whose family ties
and employment have been interrupted,2 but other factors
such as the prospect of rehabilitation may also be affected
adversely. The remedy chosen by the Court of Appeals
does not deal with these difficulties.
The Government's reliance on Barker to support the
remedy fashioned by the Court of Appeals is further
undermined when we examine the Court's opinion in that
case as a whole. It is true that Barker described dismissal
of an indictment for denial of a speedy trial as an
"unsatisfactorily severe remedy." Indeed, in practice,
"it means that a defendant who may be guilty of a
serious crime will go free, without having been tried."
407 U. S., at 522. But such severe remedies are not
unique in the application of constitutional standards.
2 It can also be said that an accused released pending trial often
has little or no interest in being tried quickly; but this, standing
alone, does not alter the prosecutor's obligation to see to it that the
case is brought on for trial. The d~sires or com·Pnience of individuals
cannot be controlling. The public interest in a broad sense, as well
as the constitutional guarantee, commands prompt disposition of
criminal charges.
440 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
In light of the policies which underlie the right to a
speedy trial, dismissal must remain, as Barker noted, "the
only possible remedy." Ibid.
Given the unchallenged determination that petitioner
was denied a speedy trial/ the District Court judgment
of conviction must be set aside; the judgment is therefore
reversed and the case remanded to the Court of Appeals
to direct the District Court to set aside its judgment,
vacate the sentence, and dismiss the indictment.
Reversed and remanded.
3 ABA, Speedy Trial 40---41.
VLANDIS v. KLINE 441
Syllabus
VLANDIS V. KLINE ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF CONNECTICUT
No. 72-493. Argued March 20, 1973-Decidcd .Tune 11, 1973
Connecticut requires nonresidents enrolled in the state university
system to pay tuition and other fees at higher rates than state
residents and provides an irreversible and irrebuttable statutory
presumption that because the legal address of a student, if married,
was outside the State at the time of application for admission or,
if single, was outside the State at some point during the preceding
year, he remains a nonresident as long as he is a student in Connecticut.
Appellees challenge that presumption, claiming that
they have a constitutional right to controvert it by presenting
evidence of bona fide residence in the State. The District Court
upheld their claim. Held: The Due Process Clause of the Fourteenth
Amendment does not permit Connecticut to deny an individual
the opportunity to present evidence that he is a bona fide
resident entitled to in-state rates, on the basis of a permanent and
irrebuttable presumption of nonresidence, when that presumption
is not necessarily or universally true in fact, and when the State
has reasonable alternative means of making the crucial determination.
Pp. 446-454.
346 F. Supp. 526, affirmed.
STEWART, J., delivered the opinion of the Court, in which BRENNAN,
:'.l-1ARSHALL, BLACKMUN, and POWELL, JJ., joined. lvlARSHALL, J.,
filed a concurring opinion, in which BHKKNAN, J., joined, post, p. 454.
WHITE, J., filed an opinion concurring in the judgment, post, p. 456.
Bmto~;R, C. J., filed a dissenting opinion, in which REHNQUIST, J.,
joined, post, p. 459. R.EHNQUJS'l', J., filed a dissenting opinion, m
which BURGER, C. ,J., and DouGLAS, J,, joined, post, p. 463.
John G. Hill, Jr., Assistant Attorney General of Connecticut,
argued the cause for appellant. With him on
the brief was Robert K. Killian, Attorney General.
442 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
John A. Dziamba argued the cause for appellees. With
him on the brief was Douglas M. Crockett.*
MR. JusTICE STEWART delivered the opinion of the
Court.
Like many other States, Connecticut requires nonresidents
of the State who are enrolled in the state university
system to pay tuition and other fees at higher
rates than residents of the State who are so enrolled.
Conn. Gen. Stat. Rev. § 10-329 (b) (Supp. 1969), as
amended by Public Act No. 5, § 122 (June Sess. 1971).1
The constitutional validity of that requirement is not at
issue in the case before us. What is at issue here is
Connecticut's statutory definition of residents and nonresidents
for purposes of the above provision.
Section 126 (a)(2) of Public Act No. 5, amending
§ 10-329 (b), provides that an unmarried student shall
be classified as a nonresident, or "out of state," student
if his "legal address for any part of the one-year period
immediately prior to his application for admission at a
constituent unit of the state system of higher education
was outside of Connecticut." With respect to married
students, § 126 (a)(3) of the Act provides that such a
student, if living with his spouse, shall be classified as
*Leonard J. Schwartz filed a brief for the American Civil Liberties
Union of Ohio, Inc., as amicus curiae urging affirmance.
Slade Gorton, Attorney General, James B. Wilson, Senior Assistant
Attorney General, and Gerald L. Coe, Assistant Attorney General,
filed a brief for the State of Washington as amicu.s curiae.
1 Section 122 of that Act provides that "the board of trustees of
The University of Connecticut shall fix fees for tuition of not less than
three hundred fifty dollars for residents of this State and not less than
eight hundred fifty dollars for nonresidents .... " Pursuant to this
statute, the University promulgated regulations fixing the tuition per
semester as follows:
VLANDIS v. KLINE 443
441 Opinion of the Court
"out of state" if his "legal address at the time of his
application for admission to such a unit was outside of
Connecticut." These classifications are permanent and
irrebuttable for the whole time that the student remains
at the university, since§ 126 (a) (5) of the Act commands
that: "The status of a student, as established at the time
of his application for admission at a constituent unit of
the state system of higher education under the provisions
of this section, shall be his status for the entire period
of his attendance at such constituent unit.» The present
case concerns the constitutional validity of this conclusive
and unchangeable presumption of nonresident status
from the fact that, at the time of application for admission,
the student, if married, was then living outside of
Connecticut, or, if single, had lived outside the State at
some point during the preceding year.
One appellee, Margaret Marsh Kline, is an undergraduate
student at the University of Connecticut. In
May 1971, while attending college in California, she
became engaged to Peter Kline, a lifelong Connecticut
resident. Because the Klines wished to reside
in Connecticut after their marriage, Mrs. Kline applied
to the University of Connecticut from California.
In late May, she was accepted and informed by the University
that she would be considered an in-state student.
On June 26, 1971, the appellee and Peter Kline were
married in California, and soon thereafter took up residence
in Storrs, Connecticut, where they have established
In-state student
Out-of-state student
Fall semester
1971-72
None
$150.00
Spring semester
1972, and thereafter
$175.00
$425.00
In addition, out-of-state students must pay a $200 nonresident fee
per semester.
444 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
a permanent home. Mrs. Kline has a Connecticut
driver's license, her car is registered in Connecticut, and
she is registered as a Connecticut voter. In July 1971,
Public Act No. 5 went into effect. Accordingly, the appellant,
Director of Admissions at the University of
Connecticut, irreversibly classified Mrs. Kline as an outof-
state student, pursuant to § 126 (a) (3) of that Act.
As a consequence, she was required to pay $150 tuition
and a $200 nonresident fee for the first semester, whereas
a student classified as a Connecticut resident paid no tuition;
and upon registration for the second semester, she
was required to pay $425 tuition plus another $200 nonresident
fee, while a student classified as a Connecticut
resident paid only $175 tuition. 2
The other appellee, Patricia Catapano, is an unmarried
graduate student at the same University. She applied
for admission from Ohio in January 1971, and was accepted
in February of that year. In August 1971, she
moved her residence from Ohio to Connecticut and registered
as a full-time student at the University. Like
Mrs. Kline, she has a Connecticut driver's license, her
car is registered in Connecticut, and she is registered as
a Connecticut voter. Pursuant to § 126 (a)(2) of the
1971 Act, the appellant classified her permanently as an
out-of-state student. Consequently, she, too, was required
to pay $150 tuition and a $200 nonresident fee
for her first semester, and $425 tuition plus a $200 nonresident
fee for her second semester.
Appellees then brought suit in the District Court pursuant
to the Civil Rights Act of 1871, 42 U.S. C. § 1983,
contending that they were bona fide residents of Connecticut,
and that§ 126 of Public Act No. 5, under which they
were classified as nonresidents for purposes of their tuition
and fees, infringed their rights to due process of law
" See n. 1, supra.
VLANDIS v. KLINE 445
441 Opinion of the Court
and equal protection of the laws, guaranteed by the
Fourteenth Amendment to the Constitution.3 After the
convening of a three-judge District Court. that court
unanimously held§§ 126 (a)(2), (a)(3), and (a) (5) unconstitutional,
as violative of the Fourteenth Amendment,
and enjoined the appellant from enforcing those
sections. 346 F. Supp. 526 (1972). The court also
found that before the commencement of the spring semester
in 1972, each appellee was a bona fide resident of
Connecticut; and it accordingly ordered that the appellant
refund to each of them the amount of tuition and
fees paid in excess of the amount paid by resident students
for that semester. On December 4, 1972, we noted
probable jurisdiction of this appeal. 409 U. S. 1036.
The appellees do not challenge, nor did the District
Court invalidate, the option of the State to classify students
as resident and nonresident students, thereby obligating
nonresident students to pay higher tuition and
fees than do bona fide residents. The State's right to
make such a classification is unquestioned here. Rather,
the appellees attack Connecticut's irreversible and irrebuttable
statutory presumption that because a student's
legal address was outside the State at the time of his
application for admission or at some point during the
preceding year, he remains a nonresident for as long
as he is a student there. This conclusive presumption,
they say, is invalid in that it allows the State
to classify as "out-of-state students" those who are, in
fact, bona fide residents of the State. The appellees
claim that they have a constitutional right to controvert
3 While the cast> was pending in the District Court, the Connecticut
Legislature passed a bill relating to tuition payments by nonresidents,
House Bill No. 5302, which would have repealed the particular portions
of the statute that were under constitutional attack. On
May 18, 1972, however, the Governor of Connecticut vetoed that
bill.
446 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
that presumption of nonresidence by presenting evidence
that they are bona fide residents of Connecticut. The
District Court agreed: "Assuming that it is permissible
for the state to impose a heavier burden of tuition and
fees on non-resident than on resident students, the state
may not classify as 'out of state students' those who do
not belong in that class." 346 F. Supp., at 528. We
affirm the judgment of the District Court.
Statutes creating permanent irrebuttable presumptions
have long been disfavored under the Due Process Clauses
of the Fifth and Fourteenth Amendments. In Heiner
v. Donnan, 285 U. S. 312 (1932), the Court was faced
with a constitutional challenge to a federal statute that
created a conclusive presumption that gifts made within
two years prior to the donor's death were made in contemplation
of death, thus requiring payment by his
estate of a higher tax. In holding that this irrefutable
assumption was so arbitrary and unreasonable as to deprive
the taxpayer of his property without due process
of law, the Court stated that it had "held more than
once that a statute creating a presumption which operates
to deny a fair opportunity to rebut it violates the
due process clause of the Fourteenth Amendment." Id.,
at 329. See, e. g., Schlesinger v. Wisconsin, 270 U. S. 230
(1926); Hoeper v. Tax Comm'n, 284 U. S. 206 (1931).
See also Tot v. United States, 319 U. S. 463, 468-469
(1943); Leary v. United States, 395 U.S. 6, 29-53 (1969).
Cf. Turner v. United States, 396 U.S. 398, 418-419 (1970).
The more recent case of Bell v. Burson, 402 U. S. 535
( 1971), involved a Georgia statute which provided that
if an uninsured motorist was involved in an accident and
could not post security for the amount of damages
claimed, his driver's license must be suspended without
any hearing on the question of fault or responsibility.
The Court held that since the State purported to be concerned
with fault in suspending a driver's license, it
VLANDIS v. KLINE 447
441 Opinion of the Court
could not, consistent with procedural due process, conclusively
presume fault from the fact that the uninsured
motorist was involved in an accident, and could not,
therefore, suspend his driver's license without a hearing
on that crucial factor.
Likewise, in Stanley v. Illinoi,s, 405 U.S. 645 (1972),
the Court struck down, as violative of the Due Process
Clause of the Fourteenth Amendment, Illinois' irrebuttable
statutory presumption that all unmarried fathers
are unqualified to raise their children. Because of that
presumption, the statute required the State, upon the
death of the mother, to take custody of all such illegitimate
children, without providing any hearing on the
father's parental fitness. It may be, the Court said,
"that most unmarried fathers are unsuitable and neglectful
parents. . . . But all unmarried fathers are not in
this category; some are wholly suited to have custody
of their children." Id., at 654. Hence, the Court held
that the State could not conclusively presume that any
individual unmarried father was unfit to raise his children;
rather, it was required by the Due Process Clause
to provide a hearing on that issue. According to the
Court, Illinois "insists on presuming rather than proving
Stanley's unfitness solely because it is more convenient
to presume than to prove. Under the Due
Process Clause that advantage is insufficient to justify
refusing a father a hearing .... " Id., at 658.4
4 Moreover, in Carrington v. Rash, 380 U.S. 89 (1965), the Court
held that a permanent irrebuttable presumption of nonresidence
violated the Equal Protection Clause of the Fourteenth Amendment.
That rase involvrd a provision of the Texas Constitution
which prohibited any mrmber of the Armed Forces who entered the
sen·ice as a resident of another State and then moved his home
to Texas during the course of his military duty, from ever satisfying
the residence requirement for voting in Texas elections, so
long as he remained a member of the Armed Forces. The effect of
that provi8ion was to rreate a conclusive presumption that all
448 OCTOBER TERM, 1972
Opinion of the Court 412 u. s.
The same considerations obtain here. It may be that
most applicants to Connecticut's university system who
apply from outside the State or within a year of living
out of State have no real intention of becoming Connecticut
residents and will never do so. But it is clear
that not all of the applicants from out of State inevitably
fall in this category. Indeed, in the present case, both
appellees possess many of the indicia of Connecticut residency,
such as year-round Connecticut homes, Connecticut
drivers' licenses, car registrations, voter registrations,
etc.; and both were found by the District Court to have
become bona fide residents of Connecticut before the
1972 spring semester. Yet, under the State's statutory
scheme, neither was permitted any opportunity to demonstrate
the bona fides of her Connecticut residency for
tuition purposes, and neither will ever have such an
opportunity in the future so long as she remains a
student.
The State proffers three reasons to justify that permanent
irrebuttable presumption. The first is that
the State has a valid interest in equalizing the cost
of public higher education between Connecticut residents
and nonresidents, and that by freezing a student's residential
status as of the time he applies, the State ensures
that its bona fide in-state students will receive their full
subsidy. The State's objective of cost equalization between
bona fide residents and nonresidents may well be
legitimate, but basing the bona fides of residency solely
on where a student lived when he applied for admission
servicemen who moved to Texas during their military service, even
if they became bona fide residents of Texa~, nonetheless remained
nonresidents for purposes of voting. The Court held that "[b]y
forbidding a soldier ever to rontrovrrt the presumption of nonresidencc,
the Texas Constitution imposes an invidious di~~rirnination
in violation of the Fourteenth Amendment." Id., at 96.
See also Dunn v. Blumstein, 405 U. S. 330, 349- 352 (1972); Shapiro
v. Thompson, 394 U. S. 618 (1969).
VLAKDIS v. KLINE 449
441 Opinion of the Comt
to the 1.:-niversity is using a criterion wholly unrelated to
that objective. As is evident from the situation of the
appellecs, a student may be a bona fide resident of
Connecticut even though he applied to the University
from out of State. Thus, Connecticut's conclusive presumption
of nonresidence, instead of ensuring that only
its bona fide residents receive their full subsidy, ensures
that certain of its bona fide residents, such as the appellees,
do not receive their full subsidy, and can never
do so while they remain students.
Second, the State argues that even if a student who
applied to the University from out of State may at some
point become a bona fide resident of Connecticut, the
State can nonetheless reasonably decide to favor with the
lower rates only its established residents, whose past tax
contributions to the State have been higher. According
to the State, the fact that established residents or their
parents have supported the State in the past justifies the
conclusion that applicants from out of State-who are
presumed not to be such established residents-may be
denied the lower rates, even if they have become bona
fide residents.
Connecticut's statutory scheme, however, makes no
distinction on its face between established residents and
new residents. Rather, through § 122, the State purports
to distinguish, for tuition purposes, between residents and
nonresidents by granting the lower rates to the former
and denying them to the latter." In these circumstances,
the State cannot now seek to justify its classification of
certain bona fide residents as nonresidents, on the basis
that their Connecticut residency is "new."
Moreover, § 126 would not always operate to effectuate
the State's asserted interest. For it is not at
all clear that the conclusive presumption required by that
section prevents only "new" residents, rather than "es-
0 See n. 1, supra.
450 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
tablished" residents, from obtaining the lower tuition
rates. · For example, a student whose parents were lifelong
residents of Connecticut, but who went to college
at Harvard, established a legal address there, and applied
to the University of Connecticut's graduate school during
his senior year, would be permanently classified as an
"out of state student," despite his family's status as
"established" residents of Connecticut. Similarly, the
appellee Kline may herself be a "new" resident of Connecticut;
but her husband is an established, lifelong resident,
whose past tax contribution to the State, under the
State's theory, should entitle his family to the lower rates.
Conversely, the State makes no attempt to ensure that
those students to whom it does grant in-state status are
"established" residents of Connecticut. Any married
person, for instance, who moves to Connecticut before
applying to the University would be considered a Connecticut
resident, even if he has lived there only one day.
Thus, even in terms of the State's own asserted interest
in favoring established residents over new residents, the
provisions of § 126 are so arbitrary as to constitute a
denial of due process of law.6
f) But even if we accepted the State's argument that its statutory
scheme operates to apportion tuition rates on the basis of old and
new residency, that justification itself would give rise to grave
problems under the Equal Protection Clause of the Fourteenth
Amendment. For in Shapiro v. Thompson, supra, the Court rejected
the contention that a challenged classification could be sustained
as an attempt to distinguish between old and new residents
on the basis of the contribution they have made to the community
through past payment of taxes. That reasoning, the Court stated,
"would logically permit the State to bar new residents from schools,
parks, and libraries or deprive them of police and fire protection.
Indeed it would permit the State to apportion all benefits and services
according to the past tax contributions of its citizens. The
Equal Protection Clause prohibits such an apportionment of state
services." 394 U. S., at 632-633. Cf. Carrington v. Rash, 380 U.S.,
at 96; Dunn v. Blumstein, 405 U. S., at 354.
VLAN'DIS v. KLINE 451
441 Opinion of the Court
The third ground advanced to justify § 126 is that
it provides a degree of administrative certainty. The
State points to its interest in preventing out-of-state students
from coming to Connecticut solely to obtain an
education and then claiming Connecticut residence in
order to secure the lower tuition and fees. The irrebuttable
presumption, the State contends, makes it easier to
separate out students who come to the State solely for
its educational facilities from true Connecticut residents,
by eliminating the need for an individual determination
of the bona fides of a person who lived out of State at
the time of his application. Such an individual determination,
it is said, would not only be an expensive administrative
burden, but would also be very difficult to
make, since it is hard to evaluate when bona fide residency
exists. Without the conclusive presumption, the State
argues, it would be almost impossible to prevent out-ofstate
students from claiming a Connecticut residence
merely to obtain the lower rates.
In Stanley v. Illinois, supra, however, the Court stated
that "the Constitution recognizes higher values than
speed and efficiency." 405 U. S., at 656. The State's
interest in administrative ease and certainty cannot, in
and of itself, save the conclusive presumption from invalidity
under the Due Process Clause where there are
other reasonable and practicable means of establishing
the pertinent facts on which the State's objective is
premised. In the situation before us, reasonable alternative
means for determining bona fide residence arc
available. Indeed, one such method has already been
adopted by Connecticut; after § 126 was invalidated by
the District Court, the State established reasonable criteria
for evaluating bona fide residence for purposes of
tuition and fees at its university sys~em.7 These criteria,
7 See infra, at 454.
452 OCTOBER TER;\,l, 1972
Opinion of the Court 412 U.S.
while perhaps more burdensome to apply than an irrebuttablc
presumption, are certainly sufficient to prevent
abuse of the lower, in-state rates by students who come
to Connecticut solely to obtain an education.5
In sum, since Connecticut purports to be concerned
with residency in allocating the rates for tuition and fees
in its university system, it is forbidden by the Due Process
Clause to deny an individual the resident rates on the
basis of a permanent and irrebuttable presumption of
nonresidence, when that presumption is not necessarily
or universally true in fact, and when the State has reasonable
alternative means of making the crucial determination.
Rather, standards of due process require
that the State allow such an individual the opportunity
to present evidence showing that he is a bona fide
resident entitled to the in-state rates. Since § 126 precluded
the appellees from ever rebutting the presumption
that they were nonresidents of Connecticut, that statute
operated to deprive them of a significant amount of their
money without due process of law.
vVe are aware, of course, of the special problems involved
in determining the bona fide residence of college
students who come from out of State to attend that
State's public university. Our holding today should in
no ,vise be taken to mean that Connecticut must classify
the students in its university system as residents, for
purposes of tuition and fees, just because they go to
school there. 'Nor should our decision be construed to
deny a State the right to impose on a student, as one
element in demonstrating bona fide residence, a reasonable
durational residency requirement, which can be met
while in student status.9 We fully recognize that a State
s Cf. Carrington v. Rash, supra, at 95-96; Dunn v. Blumstein,
supra, at 349-352; Shapiro v. Thompson, supra, at 636.
"In Starns v. 1\falkerson, 326 F. Supp. 234 (Minn. 1970), the
District Court upheld a regulation of the University of Minnesota
VLANDIS v. KLIKE 453
441 Opinion of the Court
has a legitimate interest in protecting and preserving
the quality of its colleges and universities and the right
of its own bona fide residents to attend such institutions
on a preferential tuition basis.
We hold only that a permanent irrebuttable presumption
of nonresidence-the means adopted by Connecticut
to preserve that legitimate interest-is violative of the
Due Process Clause, because it provides no opportunity
for students who applied from out of State to demonstrate
that they have become bona fide Connecticut
residents. The State can establish such reasonable criteria
for in-state status as to make virtually certain that
students ,vho are not, in fact, bona fide residents of the
State, but who have come there solely for educational
providing that no student could qualify as a resident for tuition purposes
unless he had been a bona fide domiciliary of tho State for at
least a year immediately prior thereto. This Court affirmed summarily.
401 U. S. 985 (1971). Minnesota's one-year durational
residency requirement, however, differed in an important respect
from the permanent irrebuttable presumption at issue in the present
case. Under the regulation involved in Starns, a student who applied
to the University from out of State could rebut the presumption of
nonresidency, after having lived in the State for one year, by presenting
sufficient other evidence to show bona fide domicile within Minnesota.
In other words, residence within the State for one year,
whether or not in student status, was merely one element which Minnesota
required to demonstrate bona fide domicile. By contrast, the
Connecticut statute prevents a student who applied to thr University
from out of State, or within a year of living out of State, from ever
rebutting the presumption of nonresidence during the entire 1ime
that he remains a student, no matter how long he has been a bona
fide resident of the State for other purposes. Under Minnesota's
durational residency requirement, a student could qualify for in-state
rates by living within the State for a year in student status; whereas
under Connecticut's scheme, a person who applied from out of State
can never so qualify so long as he remains in student status. See
also Kirk v. Board of Regents of Univ . of California, 273 Cal. App.
2d 430, 78 Cal. Rptr. 260 (1969), appeal dismissed, 396 U. S. 554
(1970).
454 OCTOBER TERM, 1972
MARSHALL, J., concurring 412 u. s.
purposes, cannot take advantage of the in-state rates.
Indeed, as stated above, such criteria exist; and since
§ 126 was invalidated, Connecticut, through an official
opinion of its Attorney General, has adopted one such
reasonable standard for determining the residential status
of a student. The ..A ttorney General's opinion states:
"In reviewing a claim of in-state status, the issue
becomes essentially one of domicile. In general, the
domicile of an individual is his true, fixed and permanent
home and place of habitation. It is the place
to which, whenever he is absent, he has the intention
of returning. This general statement, however,
is difficult of application. Each individual case
must be decided on its own particular facts. In reviewing
a claim, relevant criteria include year-round
residence, voter registration, place of filing tax returns,
property ownership, driver's license, car registration,
marital status, vacation employment, etc." 10
Because we hold that the permanent irrebuttable presumption
of nonresidence created by subsections (a)(2),
(a) (3), and (a) (5) of Conn. Gen. Stat. Rev. § 10--329 (b)
(Supp. 1969), as amended by Public Act No. 5, § 126
(June Sess. 1971), violates the Due Process Clause of the
Fourteenth Amendment, the judgment of the District
Court is affirmed.
It is so ordered.
MR. JusTICE MARSHALL, with whom MR. JUSTICE
BRENNAN joins, concurring.
I join the opinion of the Court except insofar as it
suggests that a State may impose a one-year residency
10 Opinion of the Attorney General of the State of Connecticut
Regarding Non-Resident Tuition, Sept. 6, 1972 (unreported).
VLANDIS v. KLINE 455
441 MARSHALL, J., concurring
requirement as a prerequisite to qualifying for in-state
tuition benefits. See ante, at 452 and n. 9. That question
is not presented by this case since here we deal with
a permanent, irrebuttable presumption of nonresidency
based on the fact that a student was a nonresident at the
time he applied for admission to the state university
system. I recognize that in Starns v. ll1allcerson, 401
U. S. 985 ( 1971), we summarily affirmed a district court
decision sustaining a one-year residency requirement for
receipt of in-state tuition benefits. But I now have
serious question as to the validity of that summary decision
in light of well-established principles, under the
Equal Protection Clause of the Fourteenth Amendment,
which limit the States' ability to set residency requirements
for the receipt of rights and benefits bestowed on
bona fide state residents. See Dunn v. Blumstein, 405
U. S. 330 (1972); Shapiro v. Thompson, 394 U. S. 618
(1969). Because the Court finds sufficient basis in the
Due Process Clause of the Fourteenth Amendment to
dispose of the constitutionality of the Connecticut statute
here at issue, it has no occasion to address the serious
equal protection questions raised by this and other tuition
residency laws. In the absence of full consideration
of those equal protection questions, I would leave the
validity of a one-year residence requirement for a future
case in which the issue is squarely presented.
In addition, I cannot agree with my Brother REHNQUIST's
assertion in dissent that the Court's opinion today
represents a return to the doctrine of substantive due
process. This case involves only the validity of the
conclusive presumption of nonresidency erected by the
State, and, as such, concerns nothing more than the procedures
by which the State determines whether or not a
person is a resident for tuition purposes.
456 OCTOBER TERM, 1972
\VHJTE, .T., concurring in judgment 412 U.S.
~R. ,J-rnTICE \VHITE, concurring in the judgment.
In Starns v. Malkerson, 401 U. S. 985 (1971), a regulation
issued by the Board of Regents provided that
no student could qualify for the lower, in-state tuition
to the University of Minnesota until he had been a bona
fide domiciliary of the State for one year. The District
Court upheld the law, 326 F. Supp. 234 (Minn. 1970),
and we affirmed summarily, although the effect of the
Regents' regulation was to prevent an admitted Minnesota
domiciliary from being treated as such for a
period of one year. I thought the case warranted
plenary treatment, but I did not then, nor do I now,
disagree with the judgment. Because I have difficulty
distinguishing, on due process grounds, whether deemed
procedural or substantive or whether put in terms of
conclusive presumptions, between the Minnesota oneyear
requirement and the Connecticut law· that, for tuition
purposes, does not permit Connecticut residence
to be acquired while attending Connecticut schools, I
can not join the Court's opinion.
I concur in the judgment, however, because Connecticut,
although it may legally discriminate between its
residents and nonresidents for purposes of tuition, here
invidiously discriminates among at least three classes of
bona fide Connecticut residents. First, there are those
unmarried students who have resided in Connecticut one
year prior to application or who later reside in Connecticut
for a year without going to school. They pay the
substantially lmver in-state tuition. Second, there are
the married students who have a legal address in Connecticut
at the time of application. They also pay the
lower tuition, whether or not they have resided in Connecticut
for a year prior to application. Third, there
are the unmarried students whose legal address has been
outside Connecticut at some time during the year prior
to application but who later become legal residents of
VLANDIS v. KLINE 457
441 WHITE, J., concurring in judgment
Connecticut, before or after application or before or
after matriculation, and remain such for at least one
year. These students, although year-long residents, must
continue to pay out-of-state tuition for as long as they
are in school.
This discrimination between classes of bona fide residents
of the State is sought to be justified, as I understand
it. on the sole ground that too few students from
out of State actually become Connecticut residents to
require the State to sort out this small number by investigating
the inevitably larger number of residency
claims which would be submitted if the rule were otherwise
but which for the most part would be bogus.
In Bell v. Burson, 402 U. S. 535 (1971), under the
applicable state law a driver's license could not be revoked
without proof of fault, but, upon the occurrence
of an accident, the State automatically suspended the
license without showing even probable fault and without
an opportunity to prove nonfault. The State neither
argued nor claimed that there ·was a more likely than not
inference of fa ult from the mere event of an accident.
In Carrington v. Rash, 380 U. S. 89 ( 1965), the State
refused those in active military service the opportunity
to prove residence in the State and thus their eligibility
to vote. The Court struck down this restriction. The
State's interest in avoiding the task of verifying claims
of residency was insufficiently weighty to warrant interforence
with the right to vote of the military personnel
who had actually become domiciled in the State.
In Stanley v. Illinois, 405 U. S. 645 (1972), the state
standard for separating child and parent was unfitness
of parent. Accepting the State's argument that most
umved fathers are unfit, we nevertheless required the
State to give those fathers a hearing on their fitness
prior to depriving them of the custody of their children.
It was administratively convenient for the State to pre458
OCTOBER TERM, 1972
WHITE, J., concurring in judgment 412 U.S.
sume unfitness and so avoid hearings to identify the perhaps
smaller number of fit, unwed fathers; but this
justification was found insufficient in view of the strong
interest of a natural parent in the custody of his child,
an interest that we thought came to this Court " 'with
a momentum for respect lacking when appeal is made to
liberties which derive merely from shifting economic
arrangements.'" Id., at 651, quoting from Kovacs v.
Cooper, 336 U. S. 77, 95 (1949) (Frankfurter, J., concurring).
The unwed father's interest was at least cognizable
and substantial enough to prohibit the State, in
the name of administrative convenience, from denying
the unwed father a hearing on parental fitness prior to
declaring his child a ward of the State. The same
considerations led us to conclude that the unwed father
was denied equal protection of the laws.
From these and other cases, such as Dandridge v. Williams,
397 U. S. 471 (1970); Reed v. Reed, 404 U. S. 71
(1971) ; Frontiero v. Richardson, 411 U.S. 677 (1973);
and Weber v. Aetna Casualty & Surety Co., 406 U. S.
164 (1972), it is clear that we employ not just one, or
two, but, as my Brother MARSHALL has so ably demonstrated,
a "spectrum of standards in reviewing discrimination
allegedly violative of the Equal Protection Clause."
San Antonio Independent School Dutrict v. Rodriguez,
411 U. S. 1, 98-99 (1973) (MARSHALL, J., dissenting).
Sometimes we just say the claim is "invidious" and let the
matter rest there, as MR. J usncE STEWART did, for
example, in concurring in the judgment in Frontiero.
But at other times we sustain the discrimination,
if it is justifiable on any conceivable rational basis, or
strike it down, unless sustained by some compelling interest
of the State, as, for example, when a State imposes a
discrimination that burdens or penalizes the exercise of a
constitutional right. See, e. g., Shapiro v. Thompson, 394
U. S. 618 (1969). I am uncomfortable with the dichotVLANDIS
v. KLINE 459
441 BURGER, C. J., dis~enting
omy, for it must now be obvious, or has been all along,
that, as the Court's assessment of the weight and value of
the individual interest escalates, the less likely it is that
mere administrative convenience and avoidance of hearings
or investigations will be sufficient to justify what
otherwise would appear to be irrational discriminations.
Here, it is enough for me that the interest inv~lved
is that of obtaining a higher education, that the difference
between in-state and out-of-state tuition is substantial,
and that the State, without sufficient justification, imposes
a one-year residency requirement on some students
but not on others, and also refuses, no matter what the
circumstances, to permit the requirement to be satisfied
through bona fide residence while in school. It is plain
enough that the State has only the most attenuated interest
in terms of administrative convenience in maintaining
this bizarre pattern of discrimination among
those who must or must not pay a substantial tuition to
the University. The discrimination imposed by the State
is invidious and violates the Equal Protection Clause.
MR. CHIEF JUSTICE BURGER, with whom MR. JusTICE
REHNQursr joins, dissenting.
I find myself unable to join the action taken today
because the Court in this case strays from what seem to
me sound and established constitutional principles in
order to reach what it considers a just result in a particular
case; this gives meaning to the ancient warning
that "hard cases make bad law." The Court permits this
"hard" case to make some very dubious law.
A state university today is an establishment with capital
costs of many millions of dollars of investment. Its
annual operating costs likewise may run into the millions.
Parents and other taxpayers willingly carry this
heavy burden because they believe in the values of higher
education. It is not narrow provincialism for the State
460 OCTOBER TERvI, 1972
lluRGER, C. J., dissenting 412 U.S.
to think that each State should carry its own educational
burdens. Until we redefine our system of government----
as we are free to do by constitutionally prescribed
means-the States may restrict subsidized education to
their own residents. This much the Court recognizes
and it likewise recognizes that the statutory scheme under
review reasonably tends to support that end.
Commendably, the Court has tried to cast the opinion
in the narro,vest possible terms, but it seems nonetheless
to accomplish a transferrence of the elusive and arbitrary
"compelling state interest" concept into the orbit
of the Due Process Clause. The Court categorizes the
Connecticut statutory classification as a "permanent and
irrebuttable presumption"; it explains that this "presumption"
leads to unseemly results in this and other
isolated cases; and it relies upon the State's stopgap
guidelines for determining bona fide residency to demonstrate
that "the State has reasonable alternative means
of making the crucial determination." This is the language
of strict scrutiny. We ought not try to correct
"unseemly results" of state statutes by resorting to constitutional
adjudication.
Distressingly, the Court applies "strict scrutiny" and
invalidates Connecticut's statutory scheme ,vithout explaining
why the statute impairs a genuine constitutional
interest truly worthy of the standard of close judicial
scrutiny. The real issue here is not whether holes can
be picke<l in the Connecticut scheme; of course, that is
readily done with this "bad" statute. Whether we deal
with statutes of Connecticut or of Congress, we can find
flaws, gaps, and hard and unseemly results at times. But
our function in constitutional adjudication is not to see
whether there is some conceivably "less restrictive" alternative
to the statutory classifications under review. The
Court's task is to explain why the "strict scrutiny" test,
VLANDIS v. KLINE 461
441 BURGER, C. J., dissenting
previously confined to other areas, should now in practical
effect be read into the Due Process Clause. The
drift of Stanley v. Illinois, 405 U. S. 645 (1972), on
which the Court relies heavily, was to apply a similar
test, but at least there the Court essayed to explain that
the rights of fatherhood and family were regarded as
" 'essential'" and "'basic civil rights of man,' " id., at
651, and to provide an analytic basis for the result
reached. To the same effect was Bell v. Burson, 402
U.S. 5-35 ( 1971), where the Court noted that suspension of
a driver's license might impair the pursuit of a livelihood,
thereby infringing "important interests of the
licensees." Id., at 539. Carrington v. Rash, 380 U. S.
89 (1965), an equal protection case, involved deprivation
of the right to vote, by the Court's, and MR. JUSTICE
STEWART'S own description, a matter "close to the core of
our constitutional system." Id., at 96.*
*Implicit in my dissenting vote, of course, is my disagreement with
MR. JusncE WHITE's suggestion that the "weight and value" of
the app('llccs' interest in obtaining a higlwr education require us
to pay something less than the usual deference to the judgment of
the Connecticut Legislature. If appel!ees' chances of securing higher
education were truly in jeopardy as a result of the tuition differential
at issue here, there would at least be an arguable basis for
special concern, though for me the San Antonio case would provide
a serious obstacle to any departure from th(' traditional "rational
basis" test. In this case, there is, in any event, no allegation by
either appellee that the higher out-of-state tuition charge does, will,
or even may deprive her of the opportunity to attend the University
of Connecti<'ut. Thus, try as I may, I find it impossible to understand
why the interest of appellees at issue here amounts to any more
or any less than the number of dollars they are required to pay in
excess of Connecticut's in-state tuition rate. That amount may be
"substantial," but the Court has never suggested that financial impact,
per se, requires abandonment of the "rational basis" test of
equal proteetion review as :VIR. JusT1c•; WHITE suggests. Indeed,
I had always thought that a simple financial deprivation was the
classic case for judicial deference to legislative choices.
462 OCTOBER TERM, 1972
I3uRGER, C. J., dissenting 412 u. s.
There will be, I fear, some ground for a belief that
the Court now engrafts the "close judicial scrutiny" test
onto the Due Process Clause whenever we deal with
something like "permanent irrebuttable presumptions."
But literally thousands of state statutes create classifications
permanent in duration, which are less than perfect,
as all legislative classifications are, and might be
improved on by individualized determinations so as to
avoid the untov.rard results produced here due to the very
unusual facts of this case. Both the anomaly present
here and the arguable alternatives to it do not differ from
those present when, for example, a. State provides that
a person may not be licensed to practice medicine or
la,v unless he or she is a graduate of an accredited professional
graduate school; a perfectly capable practitioner
may as a consequence be barred "permanently and irrebuttably"
from pursuing his calling, without ever having
an opportunity to prove his personal skills. The doctrinal
difficulties of the Equal Protection Clause are
indeed trying, but today the Court makes an uncharted
drift toward complications for the Due Process Clause
comparable in scope and seriousness with those we are
encountering in the equal protection area. Can this be
what we arc headed for?
The pressure of today's holding may well push the
States to enact reciprocal statutes to the end that Connecticut
will undertake to admit as "resident" students
only those students from other States that give the same
status to Connecticut residents. When a State allocates
a large share of its resources to create and maintain a
university whose quality is found attractive to many
students from other States, its very success and stature
may well operate to cripple it because then, not unnaturally,
it will be flooded with applications from students
from afar. Perhaps on less "high ground" students
who favor winter sports will flock to the Northeast and
VLANDIS v. KLINE 463
441 REHNQl7IS1', J., dissenting
~forth·west and the sun worshipers will head South. Is
the Court willing to say that Connecticut may not grant
partial scholarships to persons who have atte11ded a Connecticut
secondary school for-let us say-at least one
full school year and then set nonresident tuition as it
does now? We should not be surprised at the natural
response of States which, having placed high value on
universities, having developed great institutions at large
cost, believe that other States should do the same and
therefore seek ways to keep the institution in being for
its own citizens. I do not suggest these things ought
to be done or that they are desirable; rather, I submit,
when we examine a statute of a State we should lay aside
preferences for or against v.-hat the State does in a few
particular or isolated cases and look only to what the
Constitution forbids a State to do, so as to avoid putting
pressure on the States to engage in legislative devices to
escape from the hobbles we place on them on matters of
purely state concern.
The urge to cure every disadvantage human beings
can experience exerts an inexorable pressure to expand
judicial doctrine. But that urge should not move the
Court to erect standards that are unrealistic and indeed
unexplained for evaluating the constitutionality of state
statutes.
MR. JusTICE REHNQUIST, with whom THE CHIEF Jus-
TICE and MR. JUSTICE DoGGLAS join, dissenting.
The Court's opinion relegates to the limbo of unconstitutionality
a Connecticut law that requires higher tuition
from those who come from out of State to attend
its state universities than from those who come from
within the State. The opinion accomplishes this result
by a highly theoretical analysis that relies heavily on
notions of substantive due process that have been authoritatively
repudiated by subsequent decisions of the Court.
464 OCTOBER TER~I, 1972
REHNQUIST, J., dissenting 412 u. s.
Believing as I do that the Connecticut statutory scheme
is a constitutionally permissible means of dealing with
an increasingly acute problem facing state systems of
higher education, I dissent.
This country's system of higher education presently
faces a serious crisis, produced in part by escalating costs
of furnishing educational services and in part by sharply
increased demands for those services. Because state systems
have available to them state financial resources that
are not available to private institutions, they may find
it relatively easier to grapple with the financial aspect
of this crisis. But for this very reason, States
have generally felt that state resources should be devoted,
at least in large part, to the education of children
of the State's own residents, and that those who come
from elsewhere to attend a state university should have
to make a more substantial contribution toward the
full costs of the education they would receive than the
all but nominal tuition required of those who come from
within the State.
One way to accomplish such a differentiation would
be to make the tuition differential turn on whether or
not the student was a "resident" or "nonresident" of
the State at the time tuition is paid. The Court, at
least by implication, concedes that such a differentiation
would violate no command of the Constitution, but even
a casual examination of how such a plan would operate
indicates why it did not commend itself to the Connecticut
Legislature. The very act of enrolling in a
Connecticut university with the intention of completing
a program of studies leading to a degree necessitates the
physical presence of the student in the State of Connecticut.
Additionai indicia of residency, by which the
Court apparently sets great store-obtaining a Connecticut
motor vehicle registration or driver's license, registering
to vote in Connecticut-impose no significant burden
VLANDIS v. KLINE 465
441 REHNQUIST, J., dissenting
on the out-of-state student in comparison with the
thousands of dollars he will save in tuition and fees
during the pursuit of a four-year course in undergraduate
studies. Thus, what the Court concedes to the States
in the way of distinguishing between resident and nonresident
students, while perhaps a valuable bit of authority
in issuing fishing and hunting licenses, is all but useless
in making students who come from out of State pay
even a portion of their fair share of the cost of the education
that they seek to receive in Connecticut state
universities.
The system to which Connecticut has turned is one
that limits the virtually complete subsidy that is afforded
to those who pay in-state tuition to those who resided
in Connecticut at the time of applying for admission,
and whose residence in Connecticut did not result from
their desire to attend the state universities. Some such
plan must be devised by any State that wishes to differentiate
between those who have paid taxes to the State
over a period of years in order to support the university,
and those who have simply come to the State in order to
attend the university. Since institutions of higher learning
are not built in a year or in a decade, such a distinction
strikes me as entirely rational, and I do not
understand the Court to hold otherwise.
Understandably, any such general principle will have
a number of specific applications, and just as understandably
a capable lawyer will be able to focus on one
or more of these specific applications that appear to
diverge from the principle that the State is attempting
to enforce. The Court's opinion deals with the situation
of the particular litigants here involved, doubtless
chosen with an eye to illustrating the Connecticut system
at its worst, and with still other hypothetical examples
upon which it expatiates during the course of its
opinion. But the fact that a generally valid rule may
466 OCTOBER TERM, 1972
REHNQUIST, .J., dissenting 412 U.S.
have rough edges around its perimeter does not make
it unconstitutional under the Due Process Clause of the
Fourteenth Amendment:
"[T]he law need not be in every respect logically
consistent ,vith its aims to be constitutional. It is
enough that there is an evil at hand for correction,
and that it might be thought that the particular
legislative measure was a rational ,vay to correct
it." Williamson v. Lee Optical Co., 348 U. S. 483,
487 -488 ( 1955).
Throughout the Court's oprn10n are found references
to the "irrebuttable" presumption as to residency created
by the Connecticut statutes. But a fair reading of these
laws indicates that Connecticut has not chosen to define
eligibility for a state-subsidized education in terms of
"residency" at the moment that the applicant seeks admission
to the university system, but instead has insisted
that the applicant have some prior connection with the
State of Connecticut independent of the desire to attend
a state-supported university. Thus, it would not satisfy
Connecticut's goals in seeking to subsidize the education
of Connecticut's young people in Connecticut state universities
to impose a classic residency test as of the
moment of entry into the system of higher education.
All students, and not only those with substantial Connecticut
connections, will be present in Connecticut on
this date, and those who have been astute enough to
consult counsel will have obtained Connecticut drivers'
licenses, registered their cars in Connecticut, and registered
to vote in Connecticut.
Meaningful differentiation between children of families
who have supported the state educational system by
payment of taxes to the State of Connecticut, and children
from families who have not done this, would be
impossible if the test were residency as of the date of
VLANDIS v. KLINE 467
441 REHNQUIST, J., dissenting
admission, or the date on which tuition is due, at least
as the Court enunciates such a test. But this is not
what Connecticut tried to do, and, as I read the Court's
opinion, Connecticut is not limited to the imposition of
such an easily circumvented test. For the Court reaffirms
Starns v. Malkerson, 326 F. Supp. 234 (Minn.
1970), aff'd, 401 U. S. 985 (1971), in which the State
of Minnesota had by regulation provided that no student
could qualify as a resident for tuition purposes unless
he had been a bona fide domiciliary of the State for at
least a year immediately prior thereto. A regulation
such as Minnesota's enables the State partially to maintain
the distinction that Connecticut has sought to protect
here. The Court indicates that the critical distinction
between the Minnesota regulation and the
Connecticut statute is that the Minnesota regulation
operated to fix nonresidency only for the first year of
attendance at the university. But this supposed distinction
merely highlights the error in the Court's approach
to this entire problem. Minnesota ·was no more
concerned during the first year than is Connecticut with
"residency" as that term is used in other legal contexts.
One who had his vehicle licensed in Minnesota, obtained
a Minnesota driver's license, and registered to vote in
Minnesota could make the same attack on the "irrebuttab!
e" presumption of residency involved in Starns as
these appellees do on the Connecticut statute. The
Court's response is that while Minnesota's fixing of residency
as of a date prior to application endured for only
one year, Connecticut's endurf's for four years. This is
admittedly a factual difference, but one may read the
Court's opinion in vain to ascertain why it is a difference
of constitutional significance.
The majority's reliance on cases such as Heiner v.
Donnan, 285 U.S. 312 (1932), harks back to a day when
the principles of substantive due process had reached
468 OCTOBER TERM, 1972
REHNQ17IST, .J., dissenting 412 U.S.
their zenith in this Court. Later and sounder cases
thoroughly repudiated these principles in large part. Ten
years ago, the Court reviewed these doctrines in Ferguson
v. Skrupa, 372 U.S. 726, 730 (1963), and made the
following observation:
"The doctrine that prevailed in Lochner, Coppage,
Adkins, Burns, and like cases-that due process authorizes
courts to hold laws unconstitutional when
they believe the legislature has acted unwisely-has
long since been discarded. We have returned to the
original constitutional proposition that courts do
not substitute their social and economic beliefs for
the judgment of legislative bodies, who are elected
to pass laws. As this Court stated in a unanimous
opinion in 1941, 'We are not concerned ... with
the wisdom, need, or appropriateness of the
legislation.' "
The Court's highly abstract and theoretical analysis of
this practical problem leads to a conclusion that is contrary
to the teaching of Ferguson, .supra.
The typical 18-year-old entering college as a freshman,
doubtless typifying the largest group of entering
students in Connecticut as elsewhere, has in most cases
made little or no contribution by way of tax payment to
the cost of his public higher education whether it be in
Connecticut or elsewhere. More likely it is his parents,
themselves long past college age, who have supported
the state universities over a period of years with the
thought that they would eventually realize some return
from this involuntary investment in the form of in-state
tuition for their own children who sought to attend a
state university. The State of Connecticut has sought
to allow this hope to be realized through the distinction
that it has made between those who are to pay nominal
tuition and those who are to pay the more substantial
VLANDIS v. KLINE 469
441 REHNQUIST, .T., dissenting
out-of-state tuition. To the extent that today's decision
requires students with no previous connection with
the State of Connecticut to be admitted to that State's
university system as in-state students, upon obtaining
a driver's license and registering to vote, it means that
longtime Connecticut residents will not only continue
to support the state university system, but that they
will be required to support it in increased measure in
order to help subsidize the education of nonresidents.
The Court's invalidation of the Connecticut plan is quite
inconsistent with doctrines of substantive due process
that have obtained in this Court for at least a decade,
and to which I would continue to adhere.
470 OCTOBER TERM, 1972
Syllabus 412 U.S.
W ARDIUS v. OREGON
CERTIORARI TO THE SUPREME COURT OF OREGON
::.l"o. 71- 6042. Argued January 10, 1973-Decided June 11, 1973
At petitioner's criminal trial, a witness' alibi evidence was struck as
a sanction for petitioner's failure to file a notice of alibi in acC'ordance
with Oregon's statutory requirement, and petitioner himsrlf
was not allowed to give alibi testimony. Following petitioner's
conviction the appellate court, affirming, rejected his constitutional
challenge to the state statute, which grants no discovery rights to
criminal defendants. Held: Reciprocal discovery is required by
fundamental fairness and it is insufficient that although the
statute does not require it, the State might grant reciprocal discovery
in a given case. In the absence of fair notice that petitioner
will have an opportunity to discover the State's rebuttal
witnesses, petitioner cannot, consistently with due process requirements,
be rrquired to reveal his alibi defense. Pp. 473-479.
Reversed and remanded; see 6 Ore. App. 391, 487 P. 2d 1380.
:VIARSHALL, J., delivered the opinion of the Court, in which
BRENNAN, STEWART, ,VHITE, BLACKMUN, PoWELL, and REHNQUIST,
J.T., joined. BuRGER, C. J., concurred in the result. DouGLAS, .J.,
filed an opinion concurring in the result, post, p. 479.
J. Marvin Kuhn argued the cause and filed a brief for
petitioner.
W. Michael Gillette, Assistant Attorney General of
Oregon, argued the cause for respondent. With him on
the briefs ·were Lee Johnson, Attorney General, John W.
Osburn, Solicitor General, and John H. Clough, Assistant
Attorney General.*
·*Jerome B. Falk, Jr., filed a brief for Virgil Jenkins a.'3 amicus
curiae urging reversal.
WARDIUS v. OREGON 471
470 Opinion of the Court
MR. JusTICE MARSHALL delivered the opinion of the
Court.
This case involves important questions concerning the
right of a defendant forced to comply with a "notice-ofalibi"
rule to reciprocal discovery.
In Williams v. Florida, 399 U.S. 78 (1970), we upheld
the constitutionality of Florida's notice-of-alibi rule which
required criminal defendants intending to rely on an
alibi defense to notify the prosecution of the place at
which they claimed to be at the time in question, and of
the names and addresses of witnesses they intended to
call in support of the alibi.1 In so holding, however, we
emphasized that the constitutionality of such rules might
depend on "whether the defendant enjoys reciprocal discovery
against the State." Id., at 82 n. 11.2
In the case presently before us, Oregon prevented a
criminal defendant from introducing any evidence to support
his alibi defense as a sanction for his failure to
comply with a notice-of-alibi rule which, on its face,
1 The requirement was attacked as a violation of the defendant's
due process right to a fair trial and an invasion of his privilege
against self-incriminaton. But the Court found that "[g]iven the
case with which an alibi can be fabricated, the State's interest in
protecting itself against an eleventh-hour defense is both obvious
and legitimate." 399 U. S., at 81. Moreover, we held that "the
privilege against self-incrimination is not violated by a requirement
that the defendant give notice of an alibi defense and disclose his
alibi witnesses." Id., at 83.
2 The Florida rule provided:
"'Not less than five days after receipt of defendant's witness list,
or such other times as the court may direct, the prosecuting attorney
shall file and serve upon the defendant the names and addresses (as
particularly as are known to the prosecuting attorney) of the witnesses
the State proposes to offer in rebuttal to discr('dit the defendant's
alibi at the trial of the cause.'" Sec 399 U. S., at 104.
472 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
made no provision for reciprocal discovery.3 The case
thus squarely presents the question left open in Williams,
and we granted certiorari so that this question could be
resolved. 406 U. S. 957 (1972).
We hold that the Due Process Clause of the Fourteenth
Amendment forbids enforcement of alibi rules
unless reciprocal discovery rights are given to criminal
defendants. Since the Oregon statute did not provide
for reciprocal discovery, it was error for the court below
to enforce it against petitioner, and his conviction must
be reversed.4
I
On May 22, 1970, petitioner was indicted under Ore.
Rev. Stat. § 474.020 for unlawful sale of narcotics. The
sale allegedly occurred the previous day. At trial, after
the State had concluded its case, petitioner called one
3 Ore. Rev. Stat. § 135.875 provides:
"(1) If the defendant in a criminal action proposes to rely in any
way on alibi evidence, he shall, not less than five da.ys before the
trial of the cause, file and serve upon the district attorney a written
notice of his purpose to offer such evidence, which notice shall state
specifically the place or places where the defendant claims to have
been at the time or times of the alleged offense togethC'r with the
name and residence or business address of each witness upon whom
the defendant intends to rely for alibi evidence. If the defendant
fails to file and serve such notice, he shall not be permitted to
introduce alibi evidence at the trial of the cause unless the court for
good cause orders otherwise.
"(2) As used in this section, 'alibi evidence' means evidence that
the defendant in a criminal action was, at the time of commission
of the alleged offense, at a place other than the place where such
offense was committed."
4 Petitioner also argues that even if Oregon's notice-of-alibi rule
were valid, it could not be enforced by excluding either his own
testimony or the testimony of supporting witnesses at trial. But
in light of our holding that Oregon's rule is facially invalid, we
express no view as to whether a valid rule could be so enforced.
Cf. Williams v. Florida, supra, at 83 n. 14.
WARDIUS v. OREGON 473
470 Opinion of the Court
Colleen McFadden who testified that on the night in question,
she had been with petitioner at a drive-in movie.
The prosecutor thereupon brought to the judge's attention
petitioner's failure to file a notice of alibi, and after hearing
argument the trial judge granted the State's motion to
strike McFadden's testimony because of this failure.
Petitioner himself then took the stand and attempted
to testify that he was at the drive-in with McFadden
at the time when the State alleged the sale occurred.
Once again, however, the State objected and the trial
judge again refused to permit the evidence.
Petitioner was convicted as charged and sentenced to
18 months' imprisonment. On appeal, the Oregon Court
of Appeals rejected petitioner's contentions that the Oregon
statute was unconstitutional in the absence of reciprocal
discovery rights and that the exclusion sanction
abridged his right to testify in his own behalf and his
right to compulsory process. 6 Ore. App. 391, 487 P. 2d
1380 (1971). In an unreported order, the Oregon Supreme
Court denied petitioner's petition to review. See
App. 21.
II
Notice-of-alibi rules, now in use in a large and growing
number of States," are based on the proposition that the
ends of justice will best be served by a system of liberal
discovery which gives both parties the maximum possible
amount of information with which to prepare their cases
and thereby reduces the possibility of surprise at trial.
See, e. g., Brennan, The Criminal Prosecution: Sporting
Event or Quest for Truth?, 1963 Wash. U. L. Q. 279 ;
American Bar Association Project on Standards for
Criminal Justice, Discovery and Procedure Before
6 See Id., at 82 n. 11; Note, The Preclusion Sanction~ A Violation
of the Constitutional Right to Present a Defense, 81 Yale L. J.
1342 n . 4 (1972).
474 OCTOBER TER:VI, 1972
Opinion of the Court 412 U.S.
Trial 23---43 (Approved Draft 1970); Goldstein, The
State and the Accused: Balance of Advantage in Criminal
Procedure, 69 Yale L. J. 1149 (1960). The growth
of such discovery devices is a salutary development
which, by increasing the evidence available to both
parties, enhances the fairness of the adversary system.
As we recognized in Williams, nothing in the Due Process
Clause precludes States from experimenting with systems
of broad discovery designed to achieve these goals. "The
adversary system of trial is hardly an end in itself; it is
not yet a poker game in which players enjoy an absolute
right always to conceal their cards until played. We
find ample room in that system, at least as far as 'due
process' is concerned, for [a rule] which is designed to
enhance the search for truth in the criminal trial by insuring
both the defendant and the State ample opportunity
to investigate certain facts crucial to the determination
of guilt or innocence." 399 U. S., at 82 (footnote
omitted).
Although the Due Process Clause has little to say
regarding the amount of discovery which the parties must
be afforded, but cf. Brady v. Maryland, 373 U. S. 83
( 1963), it does speak to the balance of forces between
the accused and his accuser. Cf. In re Winship, 397
U. S. 358, 361-364 (1970).6 The Williams Court was
therefore careful to note that "Florida law provides for
liberal discovery by the defendant against the State, and
the notice-of-alibi rule is itself carefully hedged with
reciprocal duties requiring state disclosure to the defenda
This Court has tlwrefore been particularly suspicious of state
trial rules which provide nonreciprocal benefits to the State when
the lack of reciprocity interferes with the defendant's ability to
secure a fair trial. See, e. g., Washing ton Y. Texas, 388 U. S. 14, 22
(1967); Gideon v. Wainwright, 372 U. S. 335, 344 (1963). Cf.
Goldstein, The State and the Accused: Bala.nee of Advantage in
Criminal Procedure, 69 Yale L. J. 1149, 1180-1192 (1960).
WARDIUS v. OREGON 475
470 Opinion of the Court
ant." 399 U. S., at 81 (footnote omitted). The same
cannot be said of Oregon law. As the State conceded at
oral argument, see Tr. of Oral Arg. 19, Oregon grants no
discovery rights to criminal defendants, and, indeed, does
not even provide defendants with bills of particulars.7
More significantly, Oregon, unlike Florida, has no provision
which requires the State to reveal the names and
addresses of witnesses it plans to use to refute an alibi
defense.8
We do not suggest that the Due Process Clause of its
own force requires Oregon to adopt such provisions. Cf.
United States v. Augenblick, 393 U. S. 348 (1969);
Cicenia v. Lagay, 357 U.S. 504 (1958). But we do hold
that in the absence of a strong showing of state interests
to the contrary, discovery must be a two-way street. The
State may not insist that trials be run as a "search for
truth" so far as defense witnesses are concerned, while
maintaining "poker game" secrecy for its own ,vitnesses.9
7 As the Oregon Court of Appeals has recently pointrd out,
"Oregon's criminal code is almost completel:v lacking in pretrial discovery
procedures." State v. Ke/saw, 289 Ore. App. 295, 502 P. 2d
278, 280-281 (1972), pet. for cert. pending, No. 72-6012.
8 The only discoYery rights Oregon appears to permit are the
rights to view writtrn statements made by state witnesses and by
thr ddc-ndant, in the hands of the police. 8PP State v. Foster, 242
Ore. 101, 407 P. 2d 901 (1965); Ore. Rev. Stat.§§ 133.750, 133.755.
Cf. State v. Kelsaw, supra.
9 Indeed, the State's inherent information-gathering adrnntagcs
suggest that if there is to be any imbalance in discovery rights, it
should work in the defendant's favor. As one commentator has
noted:
"Besides greater financial and staff resources with which to investigate
and scientifically analyze evidence, t.he prosecutor has a
number of tactical advantages. First, he begins his inYestigation
shortly after the crime has been committed when physical evidence
is more likely to be found and when witnesses are more apt to
remember events. Only after the prosecutor has gathered sufficient
evidence is the defendant informed of the charges against him; by
476 OCTOUER TER:.\I, 1972
Opinion of the Court 412 U.S.
It is fundamentally unfair to require a defendant to
divulge the details of his own case while at the same
time subjecting him to the hazard of surprise concerning
refutation of the very pieces of evidence which he disclosed
to the State.
Indeed, neither the respondent nor the Oregon Court
of Appeals contests these principles. Nor does the State
suggest any significant governmental interests which
might :;upport the lack of reciprocity. Instead, respondent
has chosen to rest its case on a procedural point.
While conceding that Oregon law fails to provide for
reciprocal discovery on its face, the State contends that
if petitioner had given notice of his alibi defense, the
state courts might have read the Oregon statute as requiring
the State to give the petitioner the names and
addresses of state witnesses used to refute the alibi defense.
Since petitioner failed to give notice, his alibi
defense ,vas not permitted and there ,vere, therefore, no
state rebuttal ,vitnesses whose testimony tended to disprove
the alibi. Since no such testimony was introthe
time the defendant or his attorney begins any investigation into
the facts of the case, the trail is not only cold, but a diligent prosecutor
will have removed much of the evidence from the field. In
addition to the advantage of timing, the prosecutor may compel
people, including thf' defendant, to cooperate. Tlw defrndant may
be questioned within limits, and if arrested his person may be
si>arched. He may also be compelled to participate in various nontestimonial
identification procedures. The pro8ccutor may force
third persons to cooperate through the use of grand juries and may
issue subpoenas requiring appearance before prosecutorial inwstigatory
boards. With probable rause t.he police may search private
areas and seize evidence and may tap telephone conversations. They
may use undercover agents and have access to vast amounts of information
in government files. Finally, respect for government authority
will cause many people to cooperate with the police or prosecutor
voluntarily when they might not cooperate with the defendant."
Note, Prosecutorial Discovery under Proposed Rule 16, 85 Harv. L.
Rev. 994, 1018- 1019 (1972) (footnotes omitted).
WARDIUS v. OREGON 477
470 Opinion of the Court
duced, respondent argues that Oregon's willingness to
permit reciprocal discovery remains untested. The State
says, in effect, that petitioner should not be permitted to
litigate the reciprocity issue in the abstract in federal court
after bypassing an opportunity to contest the issue concretely
before the state judiciary. ' 0
It is, of course, true that the Oregon courts are the final
arbiters of the State's own law, and we cannot predict
v.rhat the state court might have done had it been faced
with a defendant who had given the required notice of
alibi and then sought reciprocal discovery rights. But
it is this very lack of predictability which ultimately
defeats the State's argument. At the time petitioner was
forced to decide whether or not to reveal his alibi defense
to the prosecution, he had to deal with the statute
as written with no ,vay of knowing how it might subsequently
be interpreted. Nor could he retract the information
once provided should it turn out later that
the hoped-for reciprocal discovery rights were not
granted.
For this reason, had petitioner challenged the lack of
reciprocity by giving notice and then demanding discovery,
he would have done so at considerable risk. To
be sure, the state court might have construed the Oregon
10 Before this Court, respondent presses the related argument
that petitioner failed to object to the exclusion of his
alibi testimony at trial and that his conviction therefore rests on an
independent. state procedural ground. See Brief for Respondent
5 n. 2. But, as the transcript makes dear, the issue arose when
the trial court sustained the State's objection to introduction of the
alibi testimony. Petitioner then proceeded to make an "offer of
proof" in order to protect the record on appeal. Respondent cites
us to no Oregon cases which would requirf' petitioner to object to
the sustaining of an objection in this context, and the state appellate
court's willingness to reach the merits of petitioner's federal claims
provides convincing proof that the judgment does not ri>st on ade-
(Jllate state grounds. Sec Warden v. Hayden, 387 U. S. 294, 297
II. 3 (1967).
478. OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
statutes so as to save the constitutionality of the notice
requirement and granted reciprocal discovery rights.
But the state court ,vould also have had the option of
reading state law as precluding reciprocal discovery. If
the court adopted this latter alternative, it would have
had to strike down the notice-of-alibi requirement. But
petitioner would have had only a Pyrrhic victory, since
once having given the State his alibi information, he
could not have retracted it. Thus, under this scenario,
even though the notice-of-alibi rule would have been invalidated,
the State would still have had the benefit of
nonreciprocal discovery rights in petitioner's case-the
very result which petitioner wishes to avoid by challenging
the rule.
The statute as written did not provide for reciprocal
discovery, and petitioner cannot be faulted for
taking the legislature at its word. 11 Indeed, even at this
stage of the proceedings, the respondent has made no
representation that the State would in fact provide reciprocal
discovery rights to a defendant who complied with
the notice-of-alibi scheme. Respondent says only that
the State might have granted such rights/2 But the
11 Kor did petitioner's attorney rest entirely on his own reading
of Oregon's discovery provisions. As the attorney a.rgued at trial,
"Several weeks ago this came up again-this came up in the Circuit
Court here with Judge Perry, and Judge Perry allowed the alibi
testimony in based upon [Williams v. Florida l and said that he at
that time, based on our statute and based on this opinion, that he
didn't feel that our criminal code and our statute should allow a
substantive evidence Lsic) that the defendant might have to be
kept out due to this, and that is the reason that not.ice was not
given. I relied somewhat upon that and my own interpretation of
this case also." App. 6.
12 The State cites u~ tc State v. Kelsaw, supra, a recent Oregon
Court of Appeals decision holding that a defendant must be given
reciprocal information as to the time and place of the alleged offense
before he can be required to comply with the notice-of-alibi rule. But
WARDIUS v. OREGON 479
470 DouGLAS, J., concurring in result
State cannot constitutionally force compliance with its
scheme on the basis of a totally unsubstantiated possibility
that the statute might be read in a manner contrary
to its plain language. Thus, in the absence of fair notice
that he would have an opportunity to discover the State's
rebuttal witnesses, petitioner cannot be compelled to reveal
his alibi defense.
Since the trial court erred and since there is a substantial
possibility that its error may have infected the
verdict, the conviction must be reversed and the cause
remanded for further proceedings not inconsistent with
this opinion.
Reversed and remanded.
THE CHIEF JUSTICE concurs in the result.
MR. JUSTICE DOUGLAS, concurring in the result.
In Williams v. Florida, 399 U. S. 78, 106, I joined
Mr. Justice Black in dissent from that part of the Court's
decision which upheld the constitutionality of Florida's
"notice of alibi" rule. We concluded that the decision
was "a radical and dangerous departure from the historical
and constitutionally guaranteed right of a defendant
in a criminal case to remain completely silent,
requiring the State to prove its case without any assistance
of any kind from the defendant himself." Id., at
108. One need not go far for the textual support for
this position. The Fifth Amendment, written with the
inquisitorial practices of the Star Chamber firmly in
mind, provides that "[n]o person ... shall be compelled
... to be a witness against himself." It seems
merely informing the defendant of the time and place of the crime
does not. approach the sort of reciprocity which due process clemRncl~.
Moreover, in view of the fact that Kelsaw was decided after petitioner's
trial, it cannot be suggested that the decision gave him notice
that even this limited reciprocity would be granted.
480 OCTOBER TERM, 1972
DOUGLAS, J., concurring in result 412 U.S.
difficult to quarrel with the conclusion that a "notice of
alibi" provision contravenes this clear mandate, for the
State would see no need for the rule unless it believed
that such notice would ease its burden of proving its
case or increase the efficiency of its presentation. In
either case, the defendant has been compelled to aid the
State in his prosecution.
The Court views the growth of "such discovery devices"
as a "salutary development" because it increases
the evidence available to both parties. Ante, at 474.
This development, however, has altered the balance
struck by the Constitution. The Bill of Rights does
not envision an adversary proceeding between two equal
parties. If that were so, we might well benefit from
procedures patterned after the Rules of the Marquis of
Queensberry. But, the Constitution recognized the awesome
power of indictment and the virtually limitless
resources of government investigators. Much of the
Bill of Rights is designed to redress the advantage that
inheres in a government prosecution. It is not for
the Court to change that balance. See Williams v.
Florida, supra, at 111-114 (Black, J., dissenting).
I agree with the Court that petitioner's conviction
must be reversed, but for the reasons stated by Mr. Justice
Black in his dissent in Williams. To reverse it because
of uncertainty as to the presence of reciprocal discovery
is not to take the Constitution as written but to
embellish it in the manner of the old masters of substantive
due process.
:MATTZ v. ARNETT 481
Syllabus
MATTZ v. ARNETT, DIRECTOR, DEPARTMENT
OF FISH AND GAME
CERTIORARI TO THE COURT OF APPEAL OF CALIFORNIA, FIRST
APPELLATE DISTRICT
No. 71-1182. Argued March 27-28, 1973-Decided June 11, 1973
Petitioner, a Yurok, or Klamath River, Indian, intervened in a forfeiture
proceeding, seeking the return of fi vc gill nets confiscated
by a California game warden. He alleged that the nets were
seized in Indian country, within the meaning of 18 U. S. C. § 1151,
and that the state statutes prohibiting their use did not apply
to him. The state trial court found that the Klamath River Reservation
in 1892 "for all practical purposes almost immediately
lost its identity," and concluded that the area was not Indian
country. The State Court of Appeal affirmed, holding that since
the area had been opened for unrestricted homestead entry in
1892, the earlier reservation status of the land had terminated.
Indian country is defined by § 1151 as including "all land within
the limits of any Indian reservation under the jurisdiction of the
United States Government, notwithstanding the issuance of any
patent." The Klamath River Reservation was estabfohcd by
Executive Order in 1855 and included the area in question. In
1891, by Executive Order, the Klamath River Reservation was
made part of the Hoopa. Valley Reservation. The Act of June 17,
1892, provided that "all of the lands embraced in what was
Klamath River Reservation" reserved under the 1855 Executive
Order, are "declared to be subject to settlement, entry, and purchase
under the laws of the United States granting homestead
r:ghts . . . Provided, That any Indian now located upon said
reservation may, at any time within one year ... apply to t.he
Secretary of the Interior for au allotment of land . . . . And
the Secretary of the Interior may reserve from settlement, entry,
or purchase any tract ... upon which any village or settlement
of Indians is now located, and may set apart the same for the
permanent use and occupation of said village or settlement of
Indians." The Act further provided that proceeds from the sale
of the lands "sha.ll constitute a fund . . . for the maintenance
and education of the Indians now residing on said lands and
their children." Held: The Klamath River Reservation was not
482 OCTOBER TERM, 1972
Syllabus 412 U.S.
terminated by the Act of June 17, 1892, and the land within the
reservation boundaries is still Indian country, within the mriming
of 18 U. S. C. § 1151. Pp. 494-506.
(a) The allotment provisions of the 1892 Act, rather than indicating
an intention to terminate the reservation, are completely
consistent with continued reservation status. Seymour v.
Superintendent, 368 ·c. S. 351. Pp. 496-497.
(b) The reference in the Act to the Klamath River Reservation
in the past tense did not manifest a congressional purpose to
terminnte the reservation, but was merely a convenient way of
identifying the land, which had just recently been included in
the Hoopa Valley Reserrntion. Pp. 498-499.
(c) The Act's legislative history does not support the view that
the reservation was terminated, but by contrast with the final
enactment, it compels the conclusion that efforts to terminate
by denying allotments to the Indians failed completely. Pp. 499-504.
( d) A congressional determination to terminate a reservation
must be expressed on the face of the statute or be clear from the
surrounding circumstances and legislative history, neither of which
obtained here. Pp. 504-505.
(e) The conclusion that the 1892 Act did not terminate the
Reservation is reinforced by repeated recognition thereafter by
the Department of the Interior and by the Congress. Congress
has recognized the reservation's continued existence by extending,
in 1942, the period of trust allotments, and in 1958, by restoring
to tribal ownership certain vacant. and undisposed-of ceded lands
in the reservation. P. 505.
20 Cal. App. 3d 729, 97 Cal. Rptr. 894, reversed and remanded.
BLACKMUN, J., delivered the opinion for a unanimous Court.
Lee J. Sclar argued the cause and filed briefs for
petitioner.
Roderick Walston, Deputy Attorney General of California,
argued the cause for respondent. With him on
the briefs were Evelle J. Younger, Attorney General. and
Carl Boronlcay, Assistant Attorney General.
Harry R. Sachse argued the cause for the United States
as amicus curiae urging reversal. With him on the brief
MATTZ v. ARNETT 483
481 Opinion of the Court
were Solicitor General Griswold, Assistant Attorney General
Frizzell, Carl Strass, and Glen R. Goodsell.
MR. JusTICE BLACKMUN delivered the opinion of the
Court.
Our decision in this case turns on the resolution of
the narrow question whether the Klamath River Indian
Reservation in northern California ·was terminated
by Act of Congress or whether it remains "Indian country,"
within the meaning of 18 U. S. C. § ll51.1 When
established, the reservation was described as "a strip of
territory commencing at the Pacific Ocean and extending
I mile in width on each side of the Klamath River"
1 Title 18 U. S. C. § 1151 defines the term "Indian count ry" to include,
inter alia, "all lands within the limits of any Indian reservation
nnder the juri~dirtion of the United States Gov('rnrnent, notwithstanding
the issuance of any patent. "
Title 18 U. S. C. § 1162 (a) provjdes that., with respect to Indian
country within California., that State "shall have jurisdiction over offenses
committed by or against Indians in the areas of Indian country
... to the same extent that such State ... has jurisdiction over
offenses committed elsewhere within the State ... , and the rrimina l
laws of such State ... shall have the same force and effect within
such Indian country as they have elsewhere within the State . . . "
Section 1162 (b) provides, however, "Nothing in this section ...
shall deprive any Indian or any Indian tribe, band, or rommnnity
of any right, privilege, or immunity afforded under Federal treaty,
agreement, or statute with respect to hunting, trapping, or fishing
or the control, licensing, or regulation thereof."
Finally, the California Fish & Game Code § 12300 (Supp. 1973),
reads:
"Irrespective of any other provision of law, the provisions of this
code are not applicable to California Indians whose names are inscribed
upon the tribal rolls, while on the reservation of such tribe
and under those circumstances in this State where the code was not
applicable to them immediately prior to the effective date of Public
Law 280, Chapter 505, First Session, 1953, 83d Congress of the
United States [18 U.S. C. § 1162]."
484 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
for a distance of approximately 20 miles, encompassing
an area not exceeding 25,000 acres. This description is
taken from President Franklin Pierce's Executive Order
issued Kovember 16, 1855, pursuant to the authority
granted by the Act of March 3, 1853, 10 Stat. 226, 238,
and the Act of March 3, 1855, 10 Stat. 686, 699.2
Petitioner Raymond Mattz is a Yurok, or Klamath
River, Indian who, since the age of nine, regularly
fished, as his grandfather did before him, with dip, gill,
and trigger nets, at a location called Brooks Riffle on
the Klamath River. On September 24, 1969, a California
game warden confiscated five gill nets owned by
Mattz. The nets were stored near Brooks Riffle, approximately
200 feet from the river, and within 20 miles
of the river's mouth.
The respondent Director of the Department of Fish
and Game instituted a forfeiture proceeding in state
court. Mattz intervened and asked for the return of his
nets. He alleged, among other things, that he was an
enrolled member of the Yurok Tribe, that the nets were
seized within Indian country, and that the state statutes
prohibiting the use of gill nets, Cal. Fish & Game Code
§§ 8664, 8686, and 8630, therefore were inapplicable to
him. The state trial court, relying on Elser v. Gill Net
Number One, 246 Cal. App. 2d 30, 54 Cal. Rptr. 568
( 1966), found that the Klamath River Reservation in
1892 "for all practical purposes almost immediately lost
its identity," 0 and concluded that the area where the
2 The Executive Order is reproduced in 1 C. Kappler, Tndian
Affairs- Laws and Treaties 817 (1904) (hereinafter Kappler).
At the end of this opinion, as the Appendix, is a map of the KlHmath
River Reservation. The area described in the text is .indicated as
the "Old Klamath River Reservation."
3 See Pet. for Cert., App. B 4-5.
I
MATTZ v. ARNETT 485
481 Opinion of the Court.
nets were seized ,vas not Indian country. The court
thereby disposed of petitioner's primary defense to the
forfeiture. It did not reach other issues bearing upon
the application of the California statutes to Indian country
and the existence of Indian fishing rights there.
On appeal, the State Court of Appeal affirmed, holding
that, inasmuch as the area in question had been opened
for unrestricted homestead entry in 1892, the earlier reservation
status of the land had terminated. 20 Cal. App.
3d 729, 97 Cal. Rptr. 894 (1971). The Supreme Court
of California, one judge dissenting, denied a petition for
hearing. See 20 Cal. App. 3d, at 735, 97 Cal. Rptr., at
898. We granted certiorari, 409 U. S. 1124 (1973), because
the judgments of the state courts appeared to be
in conflict with applicable decisions of this Court.
We now reverse. The reversal, of course, does not
dispose of the underlying forfeiture issue. On remand,
the questions relating to the existence of Mattz' fishing
rights and to the applicability of California law notwithstanding
reservation status will be addressed. We
intimate no opinion on those issues.
I
While the current reservation status of the Klamath
River Reservation turns primarily upon the effect of an
1892 Act of Congress ,vhich opened the reservation land
for settlement, the meaning and effect of that Act cannot
be determined without some reference to the Yurok
Tribe and the history of the reservation between 1855
and 1892.
The Y urok Indians apparently resided in the area of
the lower Klamath River for a substantial period before
1855 when the Klamath River Reservation was established.
Little is known of their prior history. There
are sources, however, that provide us with relatively
486 OCTOBER TER:\l, 1972
Opinion of the Court 412 u. s.
detailed information about the tribe, its culture, living
conditions, and customs for the period following 1855.•
That the tribe had inhabited the lower Klamath River
well before 1855 is suggested by the name. Yurok means
"down the river." The names of the neighboring tribes,
the Karok and the Modok, mean, respectively, "up the
river" and "head of the river," and these appellations,
as would be expected, coincide with the respective homelands.
Powers 19; Kroeber 15."
4 A. Kroeber, Handbook of the Indians of California, cc. 1-4, published
as Bulletin 78, Bureau of American Ethnology 1-97 (1925)
(hereinafter Kroeber); S. Powers, Tribes of California, cc. 4 and 5,
published as 3 Contributions to North American Ethnology 44-6-1
(1877) (hereinafter Powers). Various Annual Reports of the Commissioner
of Indian Affairs provide further information; see, for
example, the 1856 Report of the Commissioner of Indian Affairs
249-250 (hereinafter Report).
5 Kroeber, in the preface to his work, suggests that the factual
material contained in Powers' manuscript is subject to some criticism.
Kroeber's reference to Powers deserves reproduction in full
here:
"I should not close without expressing my sincere appreciation of
my one predecessor in this field, the late Stephen Powers, well known
for his classic 'Tribes of California,' one of the most remarkable
reports ever printed by any government. Powers was a journalist
by profession and it is true that his ethnology is often of the
crudest. Probably the majority of his statements are inaccurate,
many arc misleading, and a very fair proportion are \liithout any
foundation or positively erroneous. He possessed, however, an
astoundingly quick and vivid sympathy, a power of observation as
keen as it was untrained, and an invariably spirited gift of portrayal
that rises at times into the realm of the sheerly fascinating.
Anthropologically hi~ great service lies in the fact that with all
the looseness of his data and method he was able to a greater
degree than anyone before or after him to seize and fix the salient
qualities of the mentality of the people he described. The ethnologist
may therefore by turns writhe and smile as he fingers
Powers's pages, but for the broad outlines of the culture of the
California Indian, for its values with all their high lights and
shadows, he can still do no better than consult the book. With
' l
MATTZ v. ARNETT 487
481 Opinion of the Court
By the Act of March 3, 1853, 10 Stat. 238, the
President was "authorized to make five military reservations
from the public domain in the State of California
or the Territories of Utah and ~ew Mexico bordering
on said State, for Indian purposes." The Act of
:March 3, 1855, 10 Stat. 699, appropriated funds for
"collecting, removing, and subsisting the Indians of California
... on two additional military reservations, to
be selected as heretofore . . . Provided, That the President
may enlarge the quantity of reservations heretofore
selected, equal to those hereby provided for."
President Pierce then issued his order of November 16,
1855, specifying the Klamath River Reservation and
stating, "Let the reservation be made, as proposed."
Kappler 817.
The site was ideally selected for the Yuroks. They
had lived in the area; the arable land, although limited,
was "peculiarly adapted to the growth of vegetables,"
1856 Report 238; and the river, which ran through a
canyon its entire length, abounded in salmon and other
fish. Ibid.; 1858 Report 286.6
In 1861 nearly all the arable lands on the Klamath
River Reservation were destroyed by a freshet, and, upon
recommendation of the local Indian agent, some of the
Indians were removed to the Smith River Reservation,
established for that purpose in 1862. Only a small number
of Yuroks moved to the new reservation, however,
and nearly all those who did move returned within a few
all its flimsy texture and slovenly edges, it will always remain the
best introduction to the subject." Kroeber ix.
6 Of this area one agent stated, "No place can be found so well
adapted to these Indians, and to which they themselves are so well
adapted, as this very spot. No possessions of the Government can
be better spared to them. No territory offers more to these Indians
and very little territory offers less to the white man. The
issue of their removal seems to disappear." 1885 Report 266.
488 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
years to the Klamath River. Crichton v. Shelton, 33
I. D. 205, 208 (1904); Kappler 830; 1864 Report 122.
The Smith River Reservation was then discontinued.
Act of July 27, 1868, 15 Stat. 198, 221.
The total Y urok population on the Klamath River
Reservation in the 1860's cannot be stated with precision.
In 1852, based in part on a rough census made by
a trader, it was estimated at 2,500. Kroeber 16~17.7
7 It is interesting to note that Powers believed the Yurok population
at one time far exceeded 2,500 and perhaps numbered over
5,000. This was, as Powers stated, "before the whites had come
among them, bringing their corruptions and their maladies .... "
Powers 59. The renowned Major John Wesley Powell, who was
then in charge of the United States Geographical and Geological
Survey of the Rocky l\fountain Region, Department of the Interior,
placed little faith in Powers' figures and requested that he modify
his estimates. Powers expressed his displeasure at this in a letter
to Major Powell stating, in characteristic fashion,
"I have the greatest respect for your Yiews and beliefs, and, with
your rich fund of personal experience and obserYa tion; if you desire
to cut out the paragraph and insert one under your own signature,
in brackets, or something of that kind, I will submit without a
murmur, if you will add this remark, as quoted from myself, to
wit: 'I desire simply to ask the reader to remember that Major
Powell has been accustomed to the vast sterile wastes of the interior
of the continent, and has not visited the rich forests and teeming
rivers of California.' But I should greatly prefer that you would
simply disavow the estimates, and throw the whole responsibility
upon me.
"This permission I give you; but I have waded too many rivers
and climbed too many mountains to abate one jot of my opinions
or beliefs for any carpet-knight who yields a compiling-pen in the
office of the - or - . If any critic, sitting in his comfortable
parlor in New York, and reading about the sparse aboriginal populations
of the cold forests of the Atlantic States, can overthrow any
of my conclusions with a dash of his pen, what is the use of the
book at all? As Luther said, at the Diet of Worms, 'Here I stand;
I cannot do otherwise.'
"I beg you, my dear major, not to consider anything above
t I
I
MATTZ v. ARNETT 489
481 Opinion of the Court
The effect of the 1861 flood cannot be firmly established;
but it is clear that the tribe remained on the Klamath
thereafter.8 For later years, Kroeber estimated that the
population in 1895 was 900, and, in 1910, 668. Kroeber
19. From this it would appear that the flood at least
did not cause a dissolution of the tribe; on the contrary,
the Yuroks continued to reside in the area through
the turn of the century and beyond.
The Act of April 8. 1864, 13 Stat. 39, designated California
as one Indian superintendency. It also recited
that "there shall be set apart by the President, and at
his discretion, not exceeding four tracts of land, within
the limits of said state, to be retained by the United
States for the purposes of Indian reservations." It further
provided that "the several Indian reservations in
California which shall not be retained . . . under .. .
this act, shall ... be surveyed into lots or parcels .. .
and ... be offered for sale at public outcry, and thence
afterward shall be held subject to sale at private entry."
Id., at 40.
At the time of the passage of the 1864 Act there were,
apparently, three reservations in California: the Klamath
River, the Mendocino, and the Smith River. It
appears, also, that the President did not take immediate
written as in the slightest degree disrespectful to yourself; such is
the farthest remove from my thoughts." Powers 2-3.
Powers' estimates were not altered, and the above-quoted letter
was placed sympathetically by Major Powell in the introductory
section of Powers' published study.
8 1864 Report 122; Opinion dated Jan. 20, 1891, of the Assistant
Attorney General for the Department of the Interior, quoted in
Crichton v. Shelton, 33 I. D. 205, 210 (1904); Kroeber HJ. Another
source estimates that in 1871 the Indian population along the
Klamath was 2,500. Report of D. H. Lowry, Indian Agent, Sept. 1,
1871, noted in Short v. United States, No. 102-63, p. 35 (Report of
Commissioner, Court of Claims, 1972).
490 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
action, upon the passage of the Act, to recognize reservations
in California. It was not until 1868 that any
formal recognition occurred, and then it was the Congress,
rather than the President, that acted. In that
year Congress discontinued the Smith River Reservation,
15 Stat. 221, and restored the Mendocino to the
public lands. Id., at 223. "No similar action was taken
with respect to the Klamath River Reservation. Crichton
v. Shelton, 33 I. D., at 209. Congress made appropriations
for the Round Valley Reservation, 15 Stat. 221,
and for it and the Hoopa Valley Reservation in 1869,
16 Stat. 37, although neither of these, apparently, had
been established theretofore by formal Executive Order.0
The Klamath River Reservation, although not reestablished
by Executive Order or specific congressional
action, continued, certainly, in de facto existence.
Yuroks remained on reservation land, and the Department
of Indian Affairs regarded the Klamath River
Reservation as "in a state of reservation" throughout
the period from 1864 to 1891. 10 o steps were taken
to sell the reservation, or parts thereof, under the 1864
Act. Indeed, in 1879, all trespassers there were removed
by the military. In 1883 the Secretary of the Interior
directed that allotments of land be made to the Indians
on the reservation." In February 1889, the Senate, by
t• The Hoopa Valley Reservation was located August 21, 1864,
but formally set apart for Inchan purposes, as authorized by the
1864 Act, by Pre~ident Grant only by Exerutive Order dated .June 23,
1876. Kappler 815. Sec Appendix map. The area is that desrribed
as the ''Original Hoopa Valley Rescrrntion."
10 Letter dated Apr. 4, 1888, from the Commissioner of Indian
Affairs to the Secretary of the Interior, quoted in Crichton v. Shelton,
;~;3 I. D., at 211.
11 The allotments, however, were postponed "on acrount of the
discovery of gross errors in the public surveys." Ibid.; 1885 Report
XLVIII.
MATTZ v. ARNETT 491
481 Opinion of the Court
resolution, directed the Secretary of the Interior "to inform
the Senate what proceedings, if any, have been had
in his Department relative to the survey and sale of the
Klamath Indian reservation . . . in pursuance of the
provisions of the act approved April 8, 1864." 20 Cong.
Rec. 1818. In response, the Commissioner of Indian
Affairs, by letter dated February 18, 1889, to the Secretary
disclosed that no proceedings to this effect had been
undertaken.12 An Assistant Attorney General for the
Department of the Interior expressed a similar view in
an opinion dated January 20, 1891.13
12 "In response to said resolution, I have to state that I am
unable to discover from the records or correspondence of this office
that a.ny proceedings were ever had or contemplated by this Department
for the survey and sale of said reserva.tion under the
provisions of the act aforesaid; on the contrary, it appears to have
been the declared purpose and intention of the superintendent of
Indian a.ffairs for California, who was charged with the selection of
the four reservations to be retained under said act, either to extend
the Hoopa Valley Reservation (one of the reservations selected under
the act), so as to include the Klamath River Reservation, or else
keep it as a separate independent reservation, with a station or
subagency there, to be under control of the agent at the Hoopa
Valley Reservation, and the lands have been held in a state of
reservation from that day to this (Ex. Doc. 140, pp. 1, 2)." Quoted
in Crichton v. Shelton, 33 I. D., at 212.
13 "Pushing aside all technicalities of construction, can any one
doubt that for all practical purposes the tract in question constitutes
an Indian reservation'? Surely, it has all the essential
characteristics of such a reservation; was regularly established by
the proper authority; has been for years and is so occupied by
Indians now, and is regarded and treated as such reservation by
the executive branch of the government, to which has been committed
the management of Indian affairs and the administration
of the public land system . . . . It is said, however, that the
Klamath River reservation was abolished by section three of the
act of 1864. Is this so?
"In the present instance, the Indians have lived upon the described
tract and made it their home from time immemorial; and
492 OCTOBER TERM, 1972
Opinion of the Court. 412 U.S.
In 1888, in a forfeiture suit, the United States District
Court for the Northern District of California concluded
that the area within the Klamath River Reservation was
not Indian country, within the meaning of Rev. Stat.
§ 2133, prescribing the penalty for unlicensed trading in
Indian country. The court concluded that the land composing
the reservation was not retained or recognized
as reservation land pursuant to the 1864 Act and that,
therefore, it no longer constituted an Indian reservation.
United States v. Forty-eight Pounds of Rising Star Tea,
35 F. 403 (ND Cal. 1888). This holding was expressly
affirmed on appeal to a circuit judge. 38 F. 400 (CCND
Cal. 1889). The Assistant Attorney General, in the opinion
referred to above, conceded the probable correctness of
the judgment but was not convinced that his own views
were erroneous, and he could not assent to the reasoning
of the court. He felt that the court's comments as to
the abandoned status of the reservation "were dicta and
not essential to the decision of the case before the court."
Crichton v. Shelton, 33 I. D., at 215.
Thus, as of 1891, it may be fair to say that the exact
legal status of the Klamath River Reservation was obscure
and uncertain. The petitioner in his brief here,
it was regularly set apart as such by the constituted authorities,
and dedicated to that purpose with all the solemnities known to
the law, thus adding official sanction to a right of occupation already
in existence. It seems to me something more than a mere implication,
arising from a rigid and technical construction of an act
of Congress, is required to show that it was the intention of that
body to deprive these Indians of their right of occupancy of said
lands, without consultMion with them or their assent. And an implication
to that effect is all, I think that can be made out of that
portion of the third section of the act of 1864 which is supposed
to be applicable." Quoted in Crichton v. Shelton, 33 I. D., at
212-213.
MATTZ v. ARNETT 493
481 Opinion of the Court
p. 14, states that the reservation "ceased to exist in 1876,
at the latest."
Any question concerning the reservation's continuing
legal existence, however, appears to have been effectively
laid to rest by an Executive Order dated October 16,
1891, issued by President Benjamin Harrison.'4 By the
specific terms of that order, the Hoopa Valley Reservation,
which, as we already have noted, was located in
1864 and formally set apart in 1876, and which was
situated about 50 miles upstream from the Klamath
River's mouth, was extended so as to include all land,
one mile in width on each side of the river, from "the
present limits" of the Hoopa Valley Reservation to the
Pacific Ocean. The Klamath River Reservation, or what
had been the reservation, thus was made part of the
Hoopa Valley Reservation, as extended.
The reason for incorporating the Klamath River Reservation
in the Hoopa Valley Reservation is apparent.
The 1864 Act had authorized the President to "set apart"
no more than four tracts for Indian reservations in California.
By 1876, and certainly by 1891, four reservations
already had been so set apart. These were the
Round Valley, referred to above, the Mission,15 the Hoopa
14 "It is hereby ordered that the limits of the Hoop;. Valley Reservation
in the state of California, a reservation duly set apart for
Indian purposes, as one of the Indian reservations authorized to be
set apart, in said State, by Act of Congress approved April [SJ, 1864,
( 13 Stats., 39), be and the same are hereby extended so as to include
a trnct of country one mile in width on each side of the Klamath
River, and extending from the present limits of the said Hoopa
Valley reservation to 1 he Pacific Ocean; Provided, however, That
any tract or tracts included within the above described boundaries
to which valid rights have attached under the laws of the United
States are hereby excluded from the reservation as hereby extended."
Kappler 815.
15 Kappler 819-824. It is noteworthy that the boundaries of the
Mission Reservation were altered repeatedly between 1870 and 1875,
494 OCTOBER TERl'vI, 19i2
Opinion of tho Court 412 U.S.
Valley, and the Tule River. Kappler 830-831. Thus,
recognition of a fifth reservation along the Klamath
River was not permissible under the 1864 Act. Accordingly,
the President turned to his authority under the
Act to expand an existing, recognized reEervation. He
enlarged the Hoopa Valley Reservation to include what
had been the Klamath River Reservation as well as an
intervening riparian strip connecting the two tracts.16
The President's continuing authority so to enlarge reservations
and, specifically, the legality of the 1891 Executive
Order, was affirmed by this Court in Donnelly
v. United States, 228 U. S. 243, 255- 259 (1913), reh.
denied, 228 U. S. 708, and is not challenged here.
II
This general background as to the origin and development
of the Klamath River Reservation is not contested
by either party. The reservation's existence, pursuant to
the Executive Order of 1891, is conceded. The present
controversy relates to its termination subsequent to 1891,
and turns primarily upon the effect of the Act of June 17,
1892, 27 Stat. 52, entitled "An act to provide for the
and even thereafter. These actions were taken under the President.'
s continuing authority to set apart and add to or diminish
the four reservations authorizrd under the 1864 Act. Donnelly v.
United States, 228 U.S. 243 and 708 (1913). In its final form, the
Mission Reserrntion consisted of no less than 19 different and
noncontiguous tracts. Kappler 819-824; Crichton v. Shelton, 33
I. D., at 209- 210.
16 Sec Appendix map. The strip of land between the Hoopa
Valley Reservation and the Klamath River Reservation is referred
to there as the "Connecting Strip." Under the 1891 Executive Order
the Hoopa Valley Reservation was extended to encompass all three
areas indicated on the map. The connecting strip and the old
Kl:.tmath River Reservation frcqurntly are referred to as the Hoopa
Valley Extension.
MATTZ v. ARNETT 495
481 Opinion of the Court
disposition and sale of lands known as the Klamath
River Indian Reservation." This Act provided:
"That all of tho lands embraced in what \Vas
Klamath River Reservation in the State of California,
as set apart and reserved under authority of
law by an Executive order dated November sixteenth,
eighteen hundred and fifty-five, are hereby
declared to be subject to settlement, entry, and purchase
under the laws of the United States granting
homestead rights and authorizing the sale of mineral,
stone, and timber lands: Provided, That any
Indian now located upon said reservation may, at
any time within one year from the passage of this
act, apply to the Secretary of the Interior for an allotment
. . . . And the Secretary of the Interior
may reserve from settlement, entry, or purchase any
tract or tracts of land upon which any village or
settlement of Indians is now located, and may set
apart the same for the permanent use and occupation
of said village or settlement of Indians. . ..
Provided further, That the proceeds arising from
the sale of said lands shall constitute a fund to be
used under the direction of the Secretary of the
Interior for the maintenance and education of the
Indians now residing on said lands and their
children."
The respondent Director argues that this statute effected
the termination of the Klamath River Reservation.
The petitioner urges the contrary. It is our task, in
light of the language and purpose of the Act, as well as
of the historical background, outlined above, to determine
the proper meaning of the Act and, consequently,
the current status of the reservation.
496 OCTOBER TERM, 1972
Opinion of the Court 412l'.S.
The respondent relies upon what he feels is significant
language in the Act and upon references in the legislative
history. He contends, "The fact that the lands were to
be opened up for settlement and sale by homesteaders
strongly militates against a continuation of such reservation
status." Brief for Respondent 3.
We conclude, however, that this is a misreading of the
effect of the allotment provisions in the 1892 Act. The
meaning of those terms is to be ascertained from the overview
of the earlier General Allotment Act of 1887, 24
Stat. 388. That Act permitted the President to make
allotments of reservation lands to resident Indians and,
with tribal consent, to sell surplus lands. Its policy was
to continue the reservation system and the trust status
of Indian lands, but to allot tracts to individual Indians
for agriculture and grazing. When all the lands had been
allotted and the trust expired, the reservation could be
abolished.11 Unallotted lands were made available to
non-Indians with the purpose, in part, of promoting interaction
between the races and of encouraging Indians to
adopt white ways. See § 6 of the General Allotment Act,
24 Stat. 390; United States Department of the Interior,
Federal Indian Law 115-117, 127-129, 776-777 (1958).18
17 The trust period on allotments to Indians on the Klamath River
Reservation expired in 1919, but was later extended by Congress by
the Act of Dec. 24, 1942, 56 Stat. 1081, 25 U. S. C. § 348a.
See S. Rep. No. 1714, 77th Cong., 2d Sess. (1942). And in 1958
Congress restored to tribal ownership vacant and undisposed-of
ceded lands on various reservations, including 159.57 acres on the
Klamath River Reservation. Pub. L. 85-420, 72 Stat. 121.
18 For an extended treatment of allotment policy, see D. Otis,
History of the Allotment Policy, in Readjustment of Indian Affairs,
Hearings on H. R. 7902 Before the House Committee on Indian
Affairs, 73d Cong., 2d Sess., 428-440 (1934). The policy of allotment
and sale of surplus reservation land was repudiated in 1934
by the Indian Reorganization Act, 48 Stat. 984, now amended
and codified as 25 U. S. C. § 461 et seq.
MATTZ v. ARNETT 497
481 Opinion of the Court
Under the 1887 Act, however, the President was not required
to open reservation land for allotment; he merely
had the discretion to do so.
In viev,· of the discretionary nature of this presidential
power, Congress occasionally enacted special legislation
in order to assure that a particular reservation
was in fact opened to allotment.10 The 1892 Act was
but one example of this. Its allotment provisions, which
do not differ materially from those of the General Al1otmen
t Act of 1887, and which in fact refer to the earlier
Act, do not, alone, recite or even suggest that Congress
intended thereby to terminate the Klamath River Reservation.
See Seymour v. Superintendent, 368 U. S. 351,
357-358 (1962). Rather, allotment under the 1892 Act
is completely consistent with continued reservation status.
This Court unanimously observed, in a.n analogous setting
in Seymour, id., at 356, "The Act did no more [in this
respect] than open the way for non-Indian settlers
to own land on the reservation in a manner which
the Federal Government, acting as guardian and trustee
for the Indians, regarded as beneficial to the development
of its wards." See United States v. Celestine, 215 U. S.
278 (1909); United States v. Nice, 241 U.S. 591 (1916).
See also Wilbur v. United States, 281 U. S. 206 (1930);
Donnelly v. United States, 228 U. S. 243 ( 1913).
III
The respondent further urges, however, that his vie,v
of the effect of the 1892 Act is supported by the Act's ref-
19 See, for example, the Act of ~far. 2, 1889, 25 Stat. 888 (Sioux
Reservations), and [/ nited States v. Nice, 241 U. S. 591 (1916);
the Act of Mar. 22, 1906, 34 Stat. 80 (Colville Reservation), and
Seymour v. Superintendent, 368 U. S. 351 (1962); the Act of
May 29, 1908, 35 Stat. 460 (Cheyenne River and Standing Rock
Reservations), and United States ex rel. Condon v. Erickson, 478
F. 2d 684 (CA8 1973), aff'g 344 F. Supp. 777 (SD 1972).
498 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
erencc to ''\vhat was [ the] Klamath River Reservation."
According to the respondent, this reference, and other
references in the legislative history, compel the conclusion
that Congress intended to terminate the reservation
in 1892.
The 1892 Act, to be sure, does refer to the Klamath
River Reservation in the past tense. But this is not to
be read as a clear indication of congressional purpose to
terminate. Just a few weeks before the bill (H. R. 38,
52d Cong., 1st Sess.), ,vhich eventually became the Act,
was reported out of committee on February 5, 1892,
H. R. Rep. No. 161, 52d Cong., 1st Sess., the President
had formally extended the Hoopa Valley Reservation to
include the Klamath River Reservation. And only that
portion of the extension which had been the Klamath
River Reservation was the subject of the 1892 Act. The
reference to the Klamath River Reservation in the past
tense seems, then, merely to have been a natural, convenient,
and shorthand way of identifying the land subject
to allotment under the 1892 Act.20 We do not believe
~0 The respondent arg11e~, however, that Congress, perhaps unacquainted
with the Exe<'ntive Order of October 1891, intended this
language to convey the virw rxpressed in the House Report, H. R.
Rep. No. 161. supra, 23 Cong. Rer. 1598--1599 (1892), that the
Klamath River HrsC'rvatinn had long been abandoned and, in fact
and in law, bad nlrcady been terminated.
It is c!C'ar from the text, infra, that there were efforts in certain
quartrrs of the House to tnminate the reservation and open it for
white settlement. See Short v. United States, supra, n. 8, at 34-52.
While the re~pondent's interpretation of the phrase is plausible, it
is no le~s pl:rn~ible to ronrlude, in light of the repeated and unsureessful
effortR by 1 he Home to terminate the reservation, that
the Senate proponents of the legislation werr not inclined to mR ke
their eause (of r<'qniring aJlotments) less attrartive to the House by
amending the bill to refer to the "former Klamath River Reservation,
now part of the Hoopa ·valley Reservation" rather than "what
was [the] Klamath River Reservation."
MATTZ v. ARNETT 499
481 Opinion of the Court
the reference can be read as indicating any clear purpose
to terminate the reservation directly or by innuendo.
The respondent also points to numerous statements in
the legislative history that, in his view, indicate that
the reservation was to be terminated. We need not
refer in detail to the cited passages in H. R. Rep. Ko. 161,
supra, or to the debates on the bill, 23 Cong. Rec. 1598-
1599, 3918-3919 (1892), for there is no challenge here to
the view that the House was generally hostile to continued
reservation status of the land in question. In
our estimation, however, this very fact, in proper perspective,
supports the petitioner and undermines the
respondent's position.
As early as 1879, there were efforts in Congress to
abolish the Klamath River Reservation. From that date
to 1892 strong sentiment existed to this effect. But it
does not appear that termination ever commanded majority
support. The advocates of termination argued
that the reservation, as of 1879, long had been abandoned;
that the land was useless as a reservation; and that many
white settlers had moved on to the land and their property
should be protected. See H. R. Rep. No. 1354, 46th
Cong., 2d Sess., 5 (1880). That whites had settled there
is clear, but the view that no Indians remained after the
flood of 1861 appears to have been a gross misconception
on the part of those who sought termination.21
21 Thi> Department of the Interior took issue with the Committee's
population estimates. H. R. Rep. No. 1148, 47th Cong., 1st Sess.,
1-3 (1882). In a letter transmitted to the Committee on Indian
Affairs in 1881, an infantry lieutenant, acting as Indian Agent, suggested
that the Committee's population estimates were "gleaned principally
from civilians, who are, I believe, somewhat inclined to lessen
the number, thinking doubtlessly that the smaller the number the
greater the likelihood of its being thrown open to settlers." Id.,
at 2.
500 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
The first bill providing for public entry and sale of the
Klamath River Reservation was introduced in the Senate
on May 28, 1879. S. Res. 34, 46th Cong., 1st Sess.; 9
Cong. Rec. 1651. The resolution referred to the reservation's
having been "abandoned" in 1855 " and the tribe
removed to another reservation established for its use."
No action was taken on the bill, and another, of the same
purport, was introduced on January 12, 1880, in the
House. H. R. 3454, 46th Cong., 2d Sess.; 10 Cong. Rec.
286. This bill provided that the reservation "be, and
the same is hereby, abolished," and authorized and directed
the Secretary of the Interior to survey the lands
and have them made subject to homestead and preemption
entry and sale "the same as other public lands."
It is clear from the report on this second bill, H. R.
Rep. No. 1354, supra, at 1-5, that the establishment of
the reservation in 1855 was viewed as a mistake and an
injustice. According to the Report, the reservation had
been abandoned after the 1861 freshet, and the Indians
had moved to the Smith River and, later, the Hoopa Valley
Reservations. White settlers had moved in and
wished to exploit the lumber and soil of the area which,
some said, "has no equal in California as a fruit and wine
growing country." Id., at 5. Inasmuch as the reservation
blocked access to the river, the resources of the area
could not be developed. Although unmentioned in that
Report, the Office of Indian Affairs opposed the bill. See
H. R. Rep. No. 1148, 47th Cong., 1st Sess., 1 (1882). The
bill as reported was recommitted and no further action
was taken. 10 Cong. Rec. 3126 (1880).
An identical bill was introduced in the following Congress.
H. R. 60, 47th Cong., 1st Sess.; 13 Cong. Rec. 90
( 1881). The Commissioner of Indian Affairs opposed
the bill as introduced, but stated that he would not oppose
it if provision for prior allotments to the Indians
was made. H. R. Rep. No. 1148, supra, at 2. The
MATTZ v. ARNETT 501
481 Opinion of the Court
Commissioner's proposed amendment was approved by
the Committee, 13 Cong. Rec. 3414 (1882), but no action
on the bill was taken by the full House.
In 1883 and 1884 three more bills were introduced.
It is of interest to note that each acceded to the request
of the Commissioner that provision be made for prior
allotments to resident Indians. H. R. 112, 48th Cong.,
1st Sess.; 15 Cong. Rec. 62 ( 1883); S. 813, 48th Cong.,
1st Sess.; 15 Cong. Rec. 166 (1883) ; H. R. 7505, 48th
Cong., 1st Sess.; 15 Cong. Rec. 5923 ( 1884). Each bill
would have "abolished" the reservation and would have
made the land subject to homestead and pre-emption
entry. None of the bills was enacted, although passage
must have been generally regarded as likely, for the Indian
Bureau in 1883 began the work of allotment and
survey, perhaps in anticipation of passage.
In 1885 two bi11s were introduced in the House. Each
was substantially identical to those introduced in 1883
and 1884. H. R. 158 and H. R. 165, 49th Cong., 1st Sess.;
17 Cong. Rec. 370 (1885). No action was taken on either
bill.
No further bills, apparently, were introduced until
1889. During the intervening period, however, the General
Allotment Act of 1887, 24 Stat. 388, was passed and
thereafter amended, 26 Stat. 794. The R'ising Star Tea
case, 35 F. 403, was also decided.
In 1889 a bill providing for the allotment of the
Klamath River Reservation was introduced. The allotments,
however, were to be made in a manner inconsistent
with the General Allotment Act. H. R. 12104, 50th
Cong., 2d Sess.; 20 Cong. Rec. 756 (1889). And after
affirmance of the Rising Star '!.'ea case by the circuit
court, 38 F. 400 ( 1889) , identical bills were introduced
in the House and the ·senate providing, without mention
of allotment. that "all of the lands embraced in what
was Klamath River Reservation ... are hereby de502
OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
clared to be subject to settlement, entry, and purchase"
under the land laws. H. R. 113, 51st Cong., 1st Sess.;
21 Cong. Rec. 229 ( 1889); S. 2297, 51st Cong., 1st Sess.;
21 Cong. Rec. 855 ( 1890). The Indian Office opposed
the bills, recommending that they be amended to provide
for allotments to the Indians under the General
Allotment Act, that surplus lands be restored to the
public domain, and that the proceeds be held in trust
for the Klamath River Indians. See Short v. United
States, No. 102-63, pp. 44-45 (Report of Commissioner,
Court of Claims, 1972). H. R. 113 was reported out
of committee with certain amendments, including one to
the effect that proceeds arising from the sale of lands were
to be used for the "removal, maintenance, and education"
of the resident Indians, the Hoopa Valley Reservation
being considered the place of removal. Allotments
to the Indians on the Klamath Reservation, however,
were emphatically rejected. H. R. Rep. No. 1176, 51st
Cong., 1st Sess., 2 ( 1890). The bill was so amended
and passed the House. 21 Cong. Rec. 10701-10702
(1890). It died in the Senate.
In light of the passage of this last bill in the House
and the presence of the Rising Star Tea opinions, the
Indian Department moved to have the Klamath River
Reservation land protected for the Indians residing there.
The details of this effort, including the opinion of the
Assistant Attorney General, referred to above, are outlined
in the Commissioner's report in Short v. United
States, supra, at 45---50. These efforts culminated in
President Harrison's Executive Order of October 1891 expanding
the Hoopa Valley Reservation to include the
Klamath River Reservation.
It is against this background of repeated legislative
efforts to terminate the reservation, and to avoid allotting
reservation lands to the Indians, that the 1892 Act was
introduced. H. R. 38, 52d Cong., 1st Sess.; 23 Cong.
MATTZ v. ARNETT 503
481 Opinion of the Court
Rec. 125 (1892). The bill provided for the settlement,
entry, and purchase of the reservation land and specified
that the proceeds should be used for the "removal,
maintenance, and education" of the resident Indians.
No allotments were provided for, as the Indians were
"sernicivilized, disinclined to labor, and have no conception
of land values or desire to cultivate the soil." H. R.
Rep. No. 161, 52d Cong., 1st Sess., 1 (1892). The House
Committee on Indian Affairs amended the bill by changing
the word "and" to "or" in the proviso relating to the
use of proceeds. Id., at 2.
The bill passed the House without change. 23 Cong.
Rec. 1598-1599 ( 1892). It was struck out in the Senate,
however, and another version was substituted deleting
reference to the removal of the Indians and providing
that before public sale the land should be allotted to the
Indians under the General Allotment Act of 1887, as
amended. Id., at 3918-3919. This substitute measure
had the support of the Interior Department. Id., at
3918. The Senate called for a conference ,vith the House,
id., at 3919, and the conference adopted the Senate version
with amendments. Sen. Misc. Doc. No. 153, 52d
Cong., 1st Sess. ( 1892). The bill was then passed and
became the 1892 Act.
IV
Several conclusions may be drawn from this account.
First, the respondent's reliance on the House Report and
on comments made on the floor of the House is not well
placed. A1though the primary impetus for termination
of the Klamath River Reservation had been with the
House since 1871, this effort ·consistently had failed to
accomplish the very objectives the respondent now seeks
to achieve. Likewise, the House in 1892 failed to accomplish
these objectives, for the Senate version, supported
by the Interior Department, was substituted for that of
504 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
the House. The Senate version, ultimately enacted,
provided for allotments to the Indians and for the proceeds
of sales to be held in trust for the "maintenance and
education," not the removal, of the Indians. The legislative
history relied upon by the respondent does not support
the view that the reservation was terminated;
rather, by contrast with the bill as finally enacted, it compels
the conclusion that efforts to terminate the reservation
by denying allotments to the Indians failed
completely.
A second conclusion is also inescapable. The presence
of allotment provisions in the 1892 Act cannot be interpreted
to mean that the reservation was to be terminated.
This is apparent from the very language of 18
U. S. C. § 1151, defining Indian country "notwithstanding
the issuance of any patent" therein. More significantly,
throughout the period from 1871-1892 numerous
bills were introduced which expressly provided for the
termination of the reservation and did so in unequivocal
terms. Congress was fully aware of the means by which
termination could be effected. But clear termination
language was not employed in the 1892 Act. This being
so, we are not inclined to infer an intent to terminate the
reservation.22 The Court stated in United States v.
Celestine, 215 U. S., at 285, that "when Congress has
22 Congress has used clear language of express termination when
that result is desired. See, for example, 15 Stat. 221 (1868) ("the
Smith River reservation is hereby discontinued"); 27 Stat. 63 (1892)
(adopted just two weeks after the 1892 Act with which this case
is concerned, providing that the North Half of the Colville Indian
Reservation, "the same being a portion of the Colville Indian Reservation
. be, and is hereby, vacated and restored to the public
domain"), and Seymour v. Superintendent, 368 U. S., at 354; 33
Stat. 218 (1904) ("the reservation lines of the said Ponca and
Otoe and Missouria Indian reservations be, and the same are hereby,
abolished").
MATTZ v. ARNETT 505
481 Opinion of the Court
once established a reservation all tracts included within
it remain a part of the reservation until separated therefrom
by Congress." A congressional determination to
terminate must be expressed on the face of the Act or
be clear from the surrounding circumstances and legislative
history. Sec Seymour v. Superintendent, 368 U. S.
351 (1962); United States v. ,Vice, 241 U.S. 591 (1916).23
Finally, our conclusion that the 1892 Act did not
terminate the Klamath River Reservation is reinforced
by repeated recognition of the reservation status of the
land after 1892 by the Department of the Interior and
by Congress. In 1904 the Department, in Crichton v.
Shelton, 33 I. D. 205, ruled that the 1892 Act reconfirmed
the continued existence of the reservation. In 1932 the
Department continued to recognize the Klamath River
Reservation, albeit as part of the Hoopa Valley Reservation,
24 and it continues to do so today. And Congress
has recognized the reservation's continued existence by
extending the period of trust allotments for this very
reservation by the 1942 Act, described above, 25 U. S. C.
§ 348a, and by restoring to tribal ownership certain vacant
and undisposed-of ceded lands in the reservation by
the 1958 Act, supra.25
23 In United States ex rel. Condon v. Erickson, 478 F. 2d 684
(1973), the United States Court. of Appeals for the Eighth Circuit
reached a similar conclusion in a case presenting issues not unlike
those before us. The court concluded, id., at 689, that "a holding
favoring federal jurisdiction is required unless Congress has expressly
or by clear implication diminished the boundaries of the
reservation opened to settlement" (emphasis in original).
24 Hearings before a Subcommittee of the Senate Committee on
Indian Affairs, Survey of Conditions of the Indians in the United
States, pt. 29, California, 72d Cong., 1st Sess., 15532 (1934).
25 Although subsequent legislation usually is not entitled to much
weight in construing earlier statutes, United States v. Southwestern
Cable Co., 392 U. S. 157, 170 (1968), it is not always without
significance. See Seymour v. Superintendent, 368 U. S., at 356-357.
506 OCTOBER TERM, 1972
Opinion of the Court 412 u. s.
We conclude that the Klamath River Reservation was
not terminated by the Act of June 17, 1892, and that the
land within the boundaries of the reservation is still Indian
country, within the meaning of 18 U. S. C. § 115-1.
The judgment of the Court of Appeal is reversed, and
the case is remanded for further proceedings.
It is so ordere.d.
0
APPENDIX TO OPI~ION OF THE COURT
1\lAr OF HooPA YALLEY IxDIAK RESERl"ATION, CALIFORNIA*
Scale: 1 inch = 12 miles
l
t'
:.. i('
11:
~~~+--+--~~ . I /
Trinidad Hu
Tl ,
LEGEJ\i'D: Old Kbmath R in•r Hes('rvation.
i;;;;;;:;:;;;;;;;3 Conneding Strip.
l
Original Hoopa Valley Reservation.
,,
•'
l<-Uni(('d States Dep,utmrnt of Interior, General Land Office 1944.

CITY OF KENOSHA v. BRUNO 507
Syllabus
CITY OF KENOSHA ET AL. V. BR UNO ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF WISCONSIN
No. 72-658. Argued April 18, 1973-Decided June 11, 1973
Appellees, who apparently because of alleged nude dancing at their
retail liquor establishments were denied renewal of their one-year
liquor licenses, brought suit under 42 U.S. C. § 1983 for declaratory
and injunctive relief against the cities of Racine and Kenosha.
Appellees claimed deprivation of procedural due process arising
from the cities' failure to hold full-blown adversary hearings before
refusing to issue license renewals, and the unconstitutionality of
the local licensing scheme. The Wisconsin Attorney General intervened
as a party defendant in the proceedings. The cases were
submitted on cross-motions for summary judgment and stipulations
of fact. A three-judge District Court held that in light
of the "equitable nature" of the actions it had jurisdiction under
28 U. S. C. § 1343 and the court declared the statutory scheme
unconstitutional and enjoined its enforcement. Held:
I. A city is not a "person" under 42 U. S. C. § 1983 where
equitable relief is sought, any more than it is where damages are
sought, Monroe v. Pape, 365 U. S. 167, 187, and the District
Court, therefore, erred in concluding that it had jurisdiction over
the complaints under 28 U. S. C. § 1343 since only the two
municipalities were named as defendants. Pp. 511-513.
2. The District Court on remand should consider the jurisdictional
questions presented by the State Attorney General's intervention
and the availability of 28 U. S. C. § 1331 jurisdiction,
as well as the decisions in Board of Regents v. Roth, 408 U. S.
564, and Perry v. Sindermann, 408 U. S. 593, which are germane
to the due process issue, and the supervening decision in California
v. LaRue, 409 U. S. 109, dealing with broad state authority
over liquor distribution. Pp. 513-515.
346 F. Supp. 43, vacated and remanded.
REHNQUIST, J., delivered the opinion of the Court, in which
BuRGER, C. J., and BRENNAN, STEWART, ·WHITE, MARSHALL, BucK-
1\IUN, and POWELL, JJ., joined. BRENNAN, J., filed a concurring
opinion, in which MARSHALL, J., joined, post, p. 516. DOUGLAS, J.,
filed an opinion dissenting in part, post, p. 516.
508 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
LeRoy L. Dalton, Assistant Attorney General of Wisconsin,
argued the cause for appellants. With him on
the briefs were Robert W. Warren, Attorney General,
Michael S. Fisher, and Edward A. Krenzke.
James A. Walrath argued the cause and filed a brief
for appellees Sleepy's, Inc., et al.
MR. JusTrCE REHNQUIST delivered the opinion of the
Court.
Appellees, owners of retail liquor establishments, were
holders of tavern liquor licenses 1 issued under Wisconsin
law by appellants, the cities of Racine and Kenosha.
Acting pursuant to Wis. Stat. Ann. §§ 176.05 (1), (8)
(1957 and Supp. 1973), the cities denied appellees'
applications for renewal of their one-year licenses
after holding public "legislative" hearings. Alleging,
inter alia, deprivations of their Fourteenth Amendment
procedural due process rights in such denials
and, by amended complaints, the unconstitutionality
of §§ 176.05 (1), (8), appellees brought these federal
civil rights actions for declaratory and injunctive
relief naming in each case only the appropriate municipality
as a defendant. The District Court entered temporary
restraining orders commanding the immediate
issuance of licenses and convened a three-judge district
court pursuant to 28 U. S. C. § 2281 to rule on the constitutionality
of the statutory licensing procedure.
Thereafter, the Attorney General of Wisconsin was
allowed to intervene as a party defendant on his own
motion. On cross-motions for summary judgment, the
1 In the case of appellee Misurel!i, it appears from the record that
his partner was actually the holder of the expired license. The
District Court held, however, that in substance his application was
no different from those of the other appellees.
CITY OF KENOSHA v. BRUNO 509
507 Opinion of the Court
District Court declared the statute unconstitutional and
enjoined its enforcement. This direct appeal followed.
Under the Wisconsin local licensing scheme, the governing
bodies of municipalities are authorized to grant
liquor licenses "to such persons entitled to a license under
this chapter as they deem proper to keep places within
their respective towns, villages, or cities for the sale of
intoxicating liquors .... " Wis. Stat. Ann. § 176.05 (1)
(1957).2 The statutory scheme has been interpreted by
the Wisconsin Supreme Court to require a "legislative
type of hearing wherein one is given notice of the hearing
and a fair opportunity to state his position on the issue,"
in situations where municipalities have denied an application
for renewal of a license. Ruffalo v. Common
Council, 38 Wis. 2d 518, 524, 157 N. W. 2d 568, 571
(1968). Such applications may not be rejected "without
a statement on the clerk's minutes as to the reasons
for such rejection," "\Vis. Stat. Ann. § 176.05 (8) (Supp.
1973)," and the state courts have certiorari jurisdiction to
2 Wis. Stat. Ann. § 176.05 provides:
" ( 1) Authority to grant licenses. Each town board, village board
and common council may grant retail licenses, under the conditions
and restrictions in this chapter contained, to ;;uch persons
entitled to a license under this chapter as they deem proper to
keep places within their respective towns, villages, or cities for
the sale of intoxicating liquors. No member of any such town
board, village board or common council shall sell directly or indirectly
or offer for sale, to any person, firm, or corporation that
holds or applies for any such license any bond, material, product,
or other matter or thing that may be used by any such licensee or
prospective licensee in the carrying on of his or its said business."
3 Wis. Stat. Ann. § 176.05 pr0vides:
"(8) Annual license meetings. All town and village boards and
common councils, or the duly authorized committees of such councils,
shall meet not later than May 15 of each year and be in session
from day to day thereafter, so long as it may be necessary, for the
purpose of acting upon such applications for license as may be
510 OCTOBER TERM, 1972
Opinion of the Court 4121T. S.
revie,v whether such refusals by the councils are arbitrary,
capricious. or discriminatory. Ruffalo v. Common Council,
supra.
In the case of the Racine denials,4 it was stipulated
that the question of the appe1lees' applications for licenses
was referred to the License and Welfare Committee
of the Common Council and that at public hearings
conducted by that Committee, appellees were present
and heard oral objections to the renewal of the licenses
for their taverns.5 After holding a public hearing, the
Common Council followed the Committee's recommendation
and voted to deny the applications, apparently because
of the adverse effects on the community of nude
dancing in the bars.
It was also stipulated that at all meetings, all persons
including appellees were given an opportunity to
speak, but no speaker was sworn. None of the testimony
was recorded and no verbatim transcript was made.
Appellees were not advised that they could crossexamine
any of the speakers, and they did not request
presented to them on or before April 15, and all applications for
license so filed shall be granted, issued or denied not later than
June 15 for the ensuing license year, provided that nothing shall
prevent any governing body from granting any licenses which are
applied for at any other time. As soon as an application has been
approved, a duplicate copy thereof shall be forwarded to the secretary
of revenue. No application for a license which is in existence
at the time of such annual license meeting shall be rejected without
a statement on the clerk's minutes as to the reasons for such
rejection."
4 The Racine denials were utilized by the District Court as the
basis for the main opinion holding the Wisconsin scheme unconstitutional
and the other cases were decided on the basis of the main
opinion. \Ve are therefore primarily considering the factual background
of the Racine denials in our disposition.
5 No such stipulation was filed for appellee Robers, however.
CITY OF KENOSHA v. BRUNO 511
507 Opinion of the Court
such an opportunity. And there was no advance written
specification of the charges against any of the bars.
Relying on two Seventh Circuit decisions,6 the threejudge
court ( as had the single judge) held that "in light
of the equitable nature of this action" it had jurisdiction
pursuant to 28 U.S. C. § 1343 (3).7 Concluding that
Racine's interest in being able to deny the renewal of
liquor licenses with no other safeguard than a legislative
hearing is "minimal," the court balanced that interest
against that of appellees, assertedly their occupations and
their investments, and determined that the Due Process
Clause of the Fourteenth Amendment requires municipalities
to grant an "adversary-type hearing in which the
applicant is given timely notice of the reasons urged for
denial [ of renewal of his license] and an opportunity
to present, confront, and cross-examine witnesses under
oath with a verbatim transcript." 346 F. Supp. 43, 51.
I
Neither party to the appeal has questioned the jurisdiction
of the District Court, but "it is the duty of this
court to see to it that the jurisdiction of the [ district
courtJ, which is defined and limited by statute, is not
exceeded.'' Louisville & J.:ashville R. Co. v. Mottley, 211
U. S. 149, 152 (1908). Appellees alleged that they brought
6 Schnell v. City of Chicago, 407 F. 2d 1084 (1969), and Adams v.
City of Park Ridge, 293 F. 2d 585 (1961).
7 Title 28 U. S. C. § 1343 provides:
"The district courts shall have original jurisdiction of any civil
action authorized by law to be commenced by any person:
"(3) To redress the deprivation, under color of any State Jaw,
statute, ordinance, regulation, custom or usage, of any right, privilege
or immunity secured by the Constitution of the United States
or by any Act of Congress providing for equal- rights of citizens or
of all persons within the ,iurisdiction of the United States .... "
512 OCTOBER TERIH, 1972
Opinion of the Court 412 U.S.
their action under 42 U. S. C. § 1983,8 and that the District
Court therefore had jurisdiction under 28 U. S. C.
§ 1343. The District Court agreed. The only defendants
named in the complaints, ho,vever, were the municipalities
of Kenosha and Racine. In considering the
reach of§ 1983 in Monroe v. Pape, 365 U.S. 167 (1961),
this Court examined the legislative history surrounding
its enactment and said:
"The response of the Congress to the proposal to
make municipalities liable for certain actions being
brought within federal purview by the Act of
April 20, 1871, was so antagonistic that we cannot
believe that the word 'person' was used in this particular
Act to include them." Id., at 191.
The District Court relied on Schnell v. City of Chicago,
407 F. 2d 1084 (CA7 1969), and Adams v. City of
Park Ridge, 293 F. 2d 585 (CA7 1961), in holding that
Monroe was limited to actions for damages, and that
cities were proper defendants under § 1983 where equitable
relief was sought. A,dams, supra; in turn, relied
on this Court's per curiam opinion in Holmes v. City of
Atlanta, 350 U.S. 879 (1955). But in none of the three
opinions in Holmes was the issue of whether or not a
municipality is a "person" within the meaning of § 1983
discussed. The authority of that case as support for
8 Title 42 U. S. C. § 1983 provides:
"Every pf:'rson 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."
9 The court in Schnell v. City of Chicago, supra, simply followed
the previous circuit decision in Ada?n8 v. City of Park Ridge, supra,
with no independent analysis.
CITY OF KENOSHA v. BRUNO 513
507 Opinion of the Court
the proposition that a city is a "person" under § 1983
where equitable relief is sought, but is not a "person"
under the same section where damages are prayed for,
is at least seriously weakened by the following observation
in Monroe, supra, at 191 n. 50:
"In a few cases in which equitable relief has been
sought, a municipality has been named, along with
city officials, as defendant where violations of 42
U. S. C. § 1983 were alleged. See, e. g., Douglas
v. City of Jeannette, 319 U.S. 157; Holmes v. City of
Atlanta, 350 U. S. 879. The question dealt with in
our opinion was not raised in those cases, either by
the parties or by the Court. Since we hold that
a municipal corporation is not a 'person' within the
meaning of § 1983, no inference to the contrary can
any longer be drawn from those cases."
We find nothing in the legislative history discussed in
Monroe, or in the language actually used by Congress,
to suggest that the generic word "person" in § 1983 was
intended to have a bifurcated application to municipal
corporations depending on the nature of the relief sought
against them. Since, as the Court held in Monroe,
"Congress did not undertake to bring municipal corporations
within the ambit of" § 1983, id., at 187,
they are outside of its ambit for purposes of equitable
relief as well as for damages. The District Court was
therefore wrong in concluding that it had jurisdiction
of appellees' complaints under § 1343.
As previously noted, after the complaints had been filed
and issue joined, the Attorney General of Wisconsin was
allowed to intervene as a party defendant in the actions.
The District Court, having concluded that it had jurisdiction
to entertain the original complaints under § 1343,
understandably did not address itself to the question of
514 OCTOBER TER11, 19i2
Opimon of the Court 412 r . s.
whether the intervention of the Attorney General as a
party would cure the jurisdictional defect which we now
find to exist in appellees' complaints. The District Court
also observed that "were not civil rights jurisdiction
proper, each of the plaintiffs her€'in would be able to assert
the necessary ... controversy requirement of Title 28
r. S. C. § 1331." 346 F. Supp., at 50. But although
appellees in the Rarine deniah; alleged jurisdiction
pursuant to 28 V. S. C. § 1331 as well as § 1343,
and in earh complaint there was an allegation of
an investment in a tavern of at least $20,000, the
defendant municipal corporations answered by putting
the appellees to their proof as to the amount in controversy.
Since the cases were submitted and decided
on cross-motions for sunuuary judgment and stipulations
of fact, and no stipulation as to the amount in controversy
was filed, wt:' cannot say on this state of the record
whether or not jurisdiction over the complaints was
affirmatively established. ~cc Hague v. CIO, 307 U. S.
496, 507 508 (1939), and cases therein cited. \Vith respect
to the Kenosha denials, there was a stipulation as
to jurisdictional amount in the proceedings before the
single-judge District Court. and an allegation of the
requisite jurisdictional amount in the amended complaint,
which for the first time challenged the constitutional
validity of the Wisconsin statutory licensing scheme. Ko
answer was filed to the amended complaint prior to the
entry of judgment by the District Court.
\Ye have had the benefit of neither briefs , arguments,
nor explicit consideration by the District Court of the
jurisdictional questions presented by the intervention
of the Attorney General as a party, and the availability
of § 1331 jurisdiction in view of the state of the record
below. We therefore remand the case to the District
Court for consideration of these issues.
CITY OF KENOSHA v. BRUNO 515
507 Opinion of the Court
II
Appellees' licenses have been neither revoked nor suspended.
Their claim of deprivation of Fourteenth
Amendment procedural due process rights arises from the
failure of the cities of Kenosha and Racine to hold fullblown
adversary hearings before refusing to renew their
one-year licenses. Our decisions last year in Board of
Regents v. Roth, 408 U. S. 564 (1972) , and Perry v.
Sindermann, 408 U. S. 593 (1972), discussed the nature
of "liberty" and "property" that is protected against
denial without due process by the Fourteenth Amendment.
The District Court did not discuss these recent
cases, and it followed, in part, the decision of the Court
of Appeals for the Seventh Circuit which was reversed in
Roth. It, therefore, made no evaluation of "property"
or "liberty" interests which might require a due process
hearing, or of the nature of such a hearing if it were required
in the light of our opinions in Roth, supra, and
Perry, supra.
The District Court, also, did not have the benefit
of this Court's decision in California v. LaRue, 409 U. S.
109 ( 1972). There we held again that while the Twentyfirst
Amendment did not abrogate a requirement of
procedural due process, Wisconsin v. Constantineau, 400
U.S. 433 (1971), it did grant the States broad authority
over the distribution and sale of liquor. We also held
that regulations prohibiting the sale of liquor by the drink
011 premises where there were nude but. uot necessarily
obscene performances were facially constitutional.
We, therefore, direct the District Court, after addressing
the issue of jurisdiction, to reconsider its judgment in
the light of Roth, Perry, and LaRue. The judgment of
the District Court is vacated and the cause is remanded
for proceedings consistent with this opinion.
It is so ordered.
516 OCTOBER TERM, 1972
DouGT,AS, J., dissenting in part 412 U.S.
MR . .JusncE BRENNAN, \Vith whom MR. JuSTICE MARSHALL
joins, concurring.
Although I join the opinion of the Court, I would add
that I find unimpeachably correct the District Court's
conclusion that appellants failed to comply with the
requirements of the Due Process Clause in denying renewal
of appellees' liquor licenses. Nevertheless, since
the defendants named in the complaints were the municipalities
of Kenosha and Racine, jurisdiction cannot be
based on 28 U.S. C. § 1343. M oar v. County of Alameda,
411 U. S. 693 (1973); Monroe v. Pape, 365 U. S. 167
(1961). Appellces did assert 28 U. S. C. § 1331 as
an alternative ground of jurisdiction, but I agree with
the Court's conclusion that existence of the requisite
amount in controversy is not, on this record, clearly
established. If appellees can prove their allegation
that at least $10,000 is in controversy, then § 1331 jurisdiction
is available, Bell v. Hood, 327 U. S. 678 (1946);
cf. Bivens v. Six Fed. Narcotics Agents, 403 U. S. 388
(1971), and they are clearly entitled to relief.
MR. JUSTICE DOUGLAS, dissenting in part.
I have expressed my doubts in Moor v. County of
Alameda, 411 U.S. 693, 722 (dissenting opinion), that our
decision in Monroe v. Pape, 365 U. S. 167, bars equitable
relief against a municipality. In that case the legislative
history•r, on which that construction of "person" as used in
42 U.S. C. § 1983 was based related to the fear of mulcting
municipalities with damage awards for unauthorized acts
of its police officers. Monroe v. Pape may be read as containing
dicta that a remedy by way of declaratory relief
or by injunction is barred by § 1983 as well as suits for
damages. Yet I do not think we should decide that
question without full briefing and considered argument.
*See the Appendix to this opinion.
CITY OF KENOSHA v. BRUNO 517
507 Appendix to opinion of DoliGJ,AS, J., dissenting in part
I do, however, concur in a remand for reconsideration
by the District Court in light of Board of Regents v.
Roth, 408 U. S. 564, Perry v. Sindermann, 408 U. S. 593,
and California v. LaRue, 409 U. S. 109.
APPENDIX TO OPIXION OF MR. Jl:-STICE
DOUGLAS, DISSEKTING IK PART
The holding in Monroe v. Pape that municipalities are
not subject to suits for damages under § 1983 was based
largely on Congress' rejection of the Sherman Amendment,
which would have provided compensation for individuals
from the county, city, or parish for any damage
caused by riots. etc. Two theories were expressed in
the debates for rejecting the amendment.
The first was the notion that civil liability for damages
might destroy or paralyze local governments. Also,
it was thought unjust that local governments (and indirectly
the citizenry at large) should be subject to
damages when they bore no responsibility. Although
the Senate passed the amendment, Senator Stevenson
stated in opposition:
"This amendment wholly ignores the municipal
liability created by the omission of direct, absolute
corporate duty. We are now, for the first time,
presented with an enactment which undertakes to
create a corporate liability for personal injury
which no prudence or foresight could have
prevented ....
"But, Mr. President, this amendment is clearly
unconstitutional. If it is attempted to be carried out
it will destroy the municipal government of every
city and the local government of every county where
this liability is created . . . . Let a judgment be
recovered against any of our cities in the East or
West and a lien is by this amendment created
518 OCTOBER TERM, 1972
Appendix to opinion of DouGLAS, J., dissenting in part 412 r .S.
not only upon the municipal property of such city,
but upon every dollar in the city treasury. The
credit of the city, the means to discharge its contracts
and its most solemn obligations are by the
operation of this act to be applied to such judgment.
"I have heard no reason for such a lien. If carried
out to its full extent, it must prove utterly destructive
of the State municipalities! And whence
does the Federal Government derive its power in
any manner or form to touch the revenues of the
State governments or any of its agencies? . . . "
Cong. Globe, 42d Cong., 1st Sess., 762.
Senators Casserly and Bayard expressed similar concerns.
Id., at 763- 764, 776.
In the House, Congressman Kerr stated:
"There is, therefore, a total and absolute absence
of notice, constructive or implied, within any decent
limits of law or reason. And the bill itself is
significantly silent on the subject of notice to these
counties and parishes or cities. Under this section
it is not required, before liability shall attach, that
it shall be known that there was any intention to
commit these crimes, so as to fasten liability justly
upon the municipality. . . . It takes the property
of one and gives it to another by mere force, without
right, in the absence of guilt or knowledge .... "
Id., at 788.
See also id., at 791 (statement of Cong. Willard). And
Congressman Farnsworth was concerned that the amendment
would "put the hand of the national Government
into [local government'sJ treasury." Id., at 799.
There was another strain, however. Congressman
Brooks viewed the amendment as raising the old struggle
between the Federalists and the Democrats. Id., at 790.
CITY OF KENOSHA v. BRUNO 519
507 Appendix to opinion of DOUGLAS, J., dissenting in part
In the words of Congressman Poland, one of the House
managers of the Conference Committee, " [ w] ith these
local subdivisions we have nothing to do. We can impose
no duty upon them; we can impose no liability upon
them in any manner whatever." Id., at 793. He stated
further:
"But the enforcing a liability, existing by their own
contract, or by a State law, in the courts, is a very
widely different thing from devolving a new duty
or liability upon them by the national Government,
which has no power either to create or destroy
them, and no power or control over them
whatever ....
" ... Counties and towns are subdivisions of the
State government, and exercise in a limited sphere
and extent the powers of the State delegated to
them; they are created by the State for the purpose
of carrying out the laws and policy of the State,
and are subject only to such duties and liabilities
as State laws impose upon them." Id., at 794.
After the House finally had defeated the Sherman
Amendment and the Conference substitute for the
amendment, Poland stated:
"I did understand from the action and vote of the
House that the House had solemnly decided that
in their judgment Congress had no constitutional
power to impose any obligation upon county and
town organizations, the mere instrumentality for the
administration of State law." Id., at 804.
See also id., at 795 (statement of Cong. Burchard), 799
(statement of Cong. Farnsworth).
To the extent that the Sherman Amendment was directed
only at liability for damages and the devastating
effect those damages might have on municipalities, it
520 OCTOBER TERM, 1972
Appendix to opinion of DouGLAs, .J., dissenting in part 412 U .S.
seems that the defeat of the amendment does not affect
the existence vel non of an equitable action. One may,
of course, argue that the sweeping statements of Poland
and others that Congress had no constitutional power
(however defective that argument is in light of developed
constitutional doctrine) to authorize any action against
a subdivision of state government indicated a purpose
to go the whole way and not allow even injunctive relief
against a municipality. But this is a matter which the
Court has never faced.
LOGUE v. UNITED STATES 521
Syllabus
LOG-CE ET AL. v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 72-656. Argued April 24, 1973-Decidcd June 11, 1973
Petitioners, claiming that their son's suicide while he was confined
as a federal prisoner in a county jail was proximate!~· caused by
the negligence of Government agents and employees, brought suit
under the Federal Tort Claims Act, which establishes GovC'rnment
liability for negligent acts or omissions of an "employee uf the
Government," defined, inter alia, as a person officially "acting on
behalf of a federal agency ... with or without compensation."
The Act excludes any contractor with the United States from the
definition of federal agency. Though finding that the county had
contracted with the Federal Government to house federal prisoners
in its jail, the District Court held that the Government was liable
on the grounds that the sheriff's employees negligently failed to
maintain adequate surveillance of the decedent (who had attempted
suicide while initially incarcerated) and that the Deputy
United States Marshal negligently failed specifically to arrange for
constant surveillance. The Court of Appeals reversed on the
grounds that under tho "contractor" exclusion the United States
was not accountable for the negligence of the sheriff's employees
rind those employees were not acting on behalf of a federal agency
in an official capacity within the meanin11: of the Act. Held:
1. The Court of Appeals correctly concluded that, contrary to
petitioners' contention, the deputy marshal had no authority to
control the activities of the sheriff's employees and that the jail
was a "contractor," not a "Federal agency," within the meaning
of the Act; and the statutory authorization for the housing of
federal prisoners in state facilities clearly contemplated that the
day-to-day operation of the contractor's facilities was to be in the
contractor's, not the Government's, hands. Pp. 526-530.
2. Petitioners' alternative contention that even though the
sheriff's employees might not be "employees" of a federal agency,
they might nonetheless be "anting on bC'half of a Federal agency
in an official capacity" and thus "employee[s] of the Government"
within the meaning of the Act is not consistent with the legislative
purpose of the Act. Pp. 530- 532.
522 OCTOBER TER:.v1, 1972
Opinion of the Court 412 U.S.
3. The Court of Appeals, not having given consideration to the
question of the deputy marshal's negligence apart from othC'r issurs,
should address itself to that quc~tion on remand. Pp. 532-533.
459 F. 2d 408 and 463 F. 2d 1340, vacated and remanded.
REHNQUIST, J., delivered the opinion for a unanimous Court.
STEWART and .MAHSHALL, JJ., filed a separate statement.
Jarnes DeAnda argued the cause for petitioners. With
him on the brief were J. Robert McKissick, Ed Idar, Jr.,
Mario Obledo, and Michael Mendelson.
Mark L. Evans argued the cause for the United States.
\Vith him on the brief were Solicitor General Griswold,
Assistant Attorney General Wood, and Robert E. Kopp.
MR. JusTICE REHNQUIST delivered the opinion of the
Court.
Reagan Logue, a federal prisoner confined in a county
jail pending trial. fashioned a noose from a bandage
covering a laceration on his left arm and hanged himself.
His mother and adoptive father sued the United States
for damages under the Federal Tort Claims Act, 28
U. S. C. § 1346 (b),1 claiming that negligence on
the part of Government agents and employees proximately
caused the death of their son. The District
Court determined that Logue's death was the result of
negligence for which the United States was liable, and
awarded damages. 334 F. Supp. 322 (SD Tex. 1971).
1 "Subject to the provisions of chapter 171 of this title, the district
courts, together with the United States District Court for the
District of the Canal Zone and the District Court of the Virgin
Islands, shall have exclusive jurisdiction of civil actions on claims
against the United States, for money damages, accruing on and
after January 1, 1945, for injury or loss of property, or personal
injury or death caused by the negligent or wrongful act or omission
of any employee of the Government while acting within the scope
of his office or employment, under circumstances where t11e United
LOGUE v. UNITED STATES 523
521 Opinion of the Court
The Court of Appeals reversed this judgment, 459 F. 2d
408 (1972), rehearing en bane denied, 463 F. 2d 1340
(1972). We granted certiorari in order to consider the
application to this case of the Act's exclusion of employees
of a "contractor with the United States." 28
U. S. C. § 2671.
On May 22, 1968, Reagan Logue was arrested by
Deputy United States Marshal Del Bowers on a bench
\Varrant charging Logue with conspiracy to smuggle 229
pounds of marihuana into the United States. After a
hearing, he was taken to the Nueces County jail in
Corpus Christi, Texas, to await trial. This jail is one
of some 800 institutions operated by state and local
governments that contract with the Federal Bureau
of Prisons to provide for the safekeeping, care, and
subsistence of federal prisoners.2
States, if a priYate person, would be liable to the claimant in accordance
with the law of the place where the act or omission occurred."
28 U. S. C. § 1346 (b).
2 The Federal Bureau of Prisons has statutory authority to contract
with state prisons for the housing of federal prisoners:
"For the purpose of providing suitable quarters for the safekeeping,
care, and subsistence of all persons held under authority of
any enactment of Congress, the Director of the Bureau of Prisons
may contract, for a period not exceeding three years, with the propC'r
authorities of any State, Territory, or 11olitical subdivi~ion thereof,
for the imprisonment, subsistence, care, and proper employment of
such persons.
"Such Federal prisoners shall be employed only in the manufacture
of articles for, the production of supplies for, the construction
of public works for, and the maintenance and care of the institutions
of, the State or political subdivision in which they arf'
imprisoned.
"The rates to be paid for the care and custody of said persons
shall tak<' into consideration the character of the quarters furnished,
sanitary ronditions, and quality of subsistence and may be such
as will permit and encoura.ge the proper authorities to provide rea524
OCTOBER TER::VI, 1972
Opinion of the Court 412 u. s.
On the day after his initial incarceration Logue attempted
to commit suicide by slashing veins in his left
arm. He was immediately taken to a hospital emergency
room for treatment of the laceration. While
the wound turned out to be relatively minor, Logue was
admitted to the hospital's psychiatric floor because of
the attending doctor's observation that he was actively
hallucinating and out of touch with reality. The psychiatrist
who later took charge of the case, recognizing
Logue's suicidal tendencies, recommended to federal officials
that he be committed to a medical facility for
rehabilitation.3
On the following day, May 24, the District Court
ordered that Logue be transferred to a federal medical
facility pursuant to 18 U. S. C. § 4244. While awaiting
the processing of papers and other steps preparatory
to the actual transfer, however, federal officials made
arrangements to transfer Logue back to the Nueces
County jail.4 Before the transfer, Bowers informed the
chief jailer of Logue's suicidal tendencies and requested
that he prepare for Logue a special cell removed of all
dangerous objects that might be used in another suicide
attempt. Such a cell was prepared by the jail authorities,
and Logue was placed in it. Bowers made no specific
arrangements for constant surveillance of Logue once he
sonably decent, sanitary, and healthful quarters and subsistence for
such persons." 18 U. S. C. § 4002.
The contract with the Nuccm County jail incorporates by reference
the standard of care set forth in this statute.
3 There was testimony that Logue had twice before made suicide
attempts.
4 There was testimony at trial that it normally takes about a week
or two after a commitment order has been entered before a prisoner
can be physically transferred to a mental institution. There was
also testimony that this process can be expedited to obtain commitment
as early as 24 hours after an order has been signed.
LOGUE v. UNITED STATES 525
521 Opinion of the Court
was confined, and the jail employees made only periodic
checks when they were on that floor for some other reason.
The day after his return to the jail, Logue removed the
Ker1ix bandage that had been applied to the laceration
on his left arm and hanged himself.
The District Court found that there had been a contract
between the Government and Nueces County
whereby the latter undertook to house federal prisoners
in the county jail at Corpus Christi. That court nonetheless
found that the United States was liable for the
negligence of the employees of the Nueces County sheriff
as well as for the negligence of its o,vn employee. The
court found the former to have been negligent because
their surveillance of Logue was "inadequate," and it
found Bowers to have been negligent in failing to make
"specific arrangements . . . for constant surveillance
of the prisoner."
The Court of Appeals reversed the judgment of the
District Court, stating in its opinion that:
"We interpret [ 18 U. S. C. § 4002] as fixing the
status of the Nueces County jail as that of a 'contractor.'
Title 28 U. S. C., Sec. 2671 . . . . This
insulates the United States from liability under
the FTCA for the negligent acts or omissions of the
jail's employees. We find no support in the record
for holding that Deputy Marshal Bowers had ru1y
power or authority to control any of the internal
functions of the Nueces County jail. The deputy
marshal, accordingly, violated no duty of safekeeping
with respect to the deceased." 459 F. 2d, at 411.
The Federal Tort Claims Act makes the United States
liable for money damages "caused by the negligent or
wrongful act or omission of any employee of the Gov526
OCTOBER TERM, 1972
Opinion of the Court 412 u. s.
ernment .... " 28 U. S. C. § 1346 (b). Section 2671
of Title 28 U. S. C. contains the following definitions:
"As used in this chapter and sections 1346 (b)
and 2401 (b) of this title, the term 'Federal agency'
includes the executive departments, the military
departments, independent establishments of the
United States, and corporations primarily acting as
instrumentalities or agencies of the United States,
but does not include any contractor with the United
States.
" 'Employee of the government' includes officers
or employees of any federal agency, members of the
military or naval forces of the United States, and
persons acting on behalf of a federal agency in an
official capacity, temporarily or permanently in the
service of the Lnited States, whether with or without
compensation."
For the Government to be liable for the negligence
of an employee of the Nueces County jail, he must be
shovm to be an "employee of the Government" as that
term is used in the Federal Tort Claims Act. Though
petitioners do not always distinguish between their two
theories, they appear to contend alternatively that the
ueces County jail is a "Federal agency" by reason of
its contract for the care of federal prisoners, or that the
employees of the jail arc "acting on behalf of" the Bureau
of Prisons or the Government in performing services
for federal prisoners. The Court of Appeals rejected
these contentions, and ,Ye believe that it was right in
doing so.
\Ve read that portion of the Court of Appeals' opinion
quoted supra as treating the "contractor" exemption from
the definition of "Federal agency" in § 2671 as adopting
the common-la,v distinction between the liability of an
employer for the negligent acts of his own employees
LOGUE v. Ul\ITED STATE..', 527
521 Opinion of the Court
and his liability for the employees of a party with whom
he contracts for a specified performance. Both the
modern common law as reflected in the Restatement of
Agency 5 and the la,v of Texas 6 make the distinction
between the servant or agent relationship and that of
independent contractor turn on the absence of authority
in the principal to control the physical conduct of the
contractor in performance of the contract.
In Maryland v. United States, 381 U. S. 41 (1965),
one of the factors relied upon by the Court in determining
that both military and civilian National Guard personnel
were employees of the States, rather than of the
United States, for purposes of the Federal Tort Claims
Act, ,vas the "supervision exercised by the States over
both military and civilian personnel," id., at ,53. The
courts of appeals that have had occasion to decide
the question appear to have unvaryingly held that the
"contractor with the United States" language of § 2671
adopts the traditional distinction between employees of
the principal and employees of an independent contractor
with the principal, and to have also held that the critical
factor in making this determination is the authority of
5 Restatement (Second) of Agrnry § 2 (1958):
" ( 1) A master is a principal who employs an agent to perform
service in his affairs and who controls or has the right to control
the physical conduct of the other in the performance of the service.
" (2) A servant is an agent employed by a master 1.o perform
service in his affairs whose physical conduct in the performance of
the service is controlled or is subject to the right to control by th<'
master.
"(3) An independent contractor is a person who contracts with
another to do something for him but who is not controlled by thr
other nor subject to the other's right to control with respect to his
physical conduct in the performance of the undertaking. He may
or may not be an agent."
6 E. g., Great Western Drilling Co. v. Simmons, 157 Tex. 268,
302 S. W. 2d 400 (1957) .
528 OCTOBER TEit\1, 1972
Opinion of the Court 412 u. S.
the principal to control the detailed physical performance
of the contractor. See, e. g., Gowdy v. United States,
412 F. 2d 525, 534 (CA6 1969); Eutsler v. United States,
376 F. 2d 634 (CAlO 1967); Yates v. United States, 365
F. 2d 663 (CA.4 1966); Kirk v. United States, 270 F. 2d
110 (CA9 1959).
Petitioners cite the commentary to the Restatement
(Second) of Torts § 409 (1965), to the effect that the
common-law distinction that shields the employer from
liability for injuries caused to another by the negligent act
of a contractor or his servant is subject to so many exceptions
that it is the general rule "only in the sense that
it is applied ,vhere no good reason is found for departing
from it." Congress, of course, could have left the determination
as to whose negligence the Government should
be liable for under the Federal Tort Claims Act to the law
of the State involved, as it did with other aspects of
liability under the Act. But it chose not to do this,
and instead incorporated into the definitions of the Act
the exemption from liability for injury caused by employees
of a contractor. While this congressional choice
leaves the courts free to look to the law of torts and
agency to define "contractor," it does not leave them
free to abrogate the exemption that the Act provides.
Petitioners suggest that because 18 U. S. C. § 4042
imposes a duty on the Bureau of Prisons to "provide
for the safekeeping, care, and subsistence of all persons
charged with ... offenses against the United States ... "
the Nueces County employees who were discharging the
Government's obligation by contract should be held to
be employees of the Government for purposes of liability
under the Act.1 This Court held in United States
v. Muniz, 374 U. S. 150 (1963) , that a breach of the
1 This argument is also put in terms of a "non-delegable duty"
owed by the Government to a prisoner under 18 U. S. C. § 4042.
LOGUE v. UNITED STATES 529
521 Opinion of the Court
duty imposed on the Government by 18 U. S. C. § 4042
was actionable under the Act. But the same public law
that imposed this duty on the Government also authorized
the Government to contract with state and local
authorities to provide safekeeping and care:
"For the purpose of providing suitable quarters
for the safekeeping, care, and subsistence of all persons
held under authority of any enactment of Congress,
the Director of the Bureau of Prisons may
contract, for a period not exceeding three years, with
the proper authorities of any State. Territory, or
political subdivision thereof, for the imprisonment,
subsistence, care, and proper employment of such
persons.
"The rates to be paid for the care and custody
of said persons shall take into consideration the
character of the quarters furnished, sanitary conditions,
and quality of subsistence and may be
such as will perm.it and encourage the proper authorities
to provide reasonably decent, sanitary, and
healthful quarters and subsistence for such persons."
18 U.S. C. § 4002 (emphasis added).
Thus, Congress not only authorized the Government
to make contracts such as the one here in question, but
rather clearly contemplated that the day-to-day operations
of the contractor's facilities were to be in the hands
of the contractor, with the Government's role limited to
the payment of sufficiently high rates to induce the
contractor to do a good job. The contract entered into
between the Government and Nueces County reflects a
similar division of responsibility. The county undertakes
to provide custody in accordance with the Bureau
of Prisons' "rules and regulations governing the care and
custody of persons committed" under the contract.
530 OCTOBER TERM:, 1972
Opinion of the Court 412 U.S.
These rules in turn specify standards of treatment for
federal l)risoners, including methods of discipline, rules
for communicating with attorneys, visitation privileges,
mail, medical services, and employment. But the agreement
gives the United States no authority to physically
supervise the conduct of the jail's employees; it reserves
to the -Cnited States only "the right to enter the institution
. . . at reasonable hours for the purpose of inspecting
the same and determining the conditions under
which federal offenders are housed."
The Court of Appeals' conclusion that the deputy
marshal had no authority to control the activities of the
sheriff's employees is supported by both the enabling
statute and the contract actually executed between the
parties. We agree with its resultant holding that the
sheriff's employees were employees of a "contractor with
the United States," and not, therefore, employees of a
"Federal agency."
The judges of the Court of Appeals who dissented
from the denial of rehearing en bane pointed out that
petitioners alternatively contended in that court, as they
do here, that even though the sheriffs' employees might
not be "employees" of a federal agency, they might
nonetheless be "acting on behalf of a Federal agency
in an official capacity .... " 463 F. 2d, at 1342. If
petitioners were successful in establishing this contention,
of course, an employee of the Nueces County jail would
be an "employee of the government" under § 2671 even
though he was not an "employee" of a federal agency.
The legislative history to which we are referred by
the parties sheds virtually no light on the congressional
purpose in enacting the "acting on behalf of" language
of § 2671. The long gestation period of the Act in the
committees of Congress has been recounted in Dalehite
v. United States, 346 U. S. 15, 24- 30 (1953), and this
lengthy period may have something to do with the pauLOGUE
v. UNITED STATES 531
521 Opinion of the Court
city of helpful committee reports on this point. One
of the more immediate antecedents of the bill that
Congress enacted contained identical "acting on behalf
of" language: "and persons acting on behalf of a Federal
agency in an official capacity, temporarily or permanently
in the service of the United States, whether with
or without compensation." H. R. 5373, 77th Cong., 2d
Sess., § 101 ( 1942), quoted in Hearings on H. R. 5373 and
H. R. 6463 before the House Committee on the Judiciary,
77th Cong., 2d Sess., ser. 13, p. 1 (1942). One of the
appendices to the hearings on these bills compares the
provisions of H. R. 6463, containing the "acting 011 behalf
of" language, with previous drafts, and states that
"'Employee of the Government' in the present bill is
defined to include uncompensated or temporary officers
or employees of the United States." Hearings, supra,
at 58. The committee's observation thus affords some
support to the Government's contention that the language
is designed to cover special situations such as the
"dollar-a-year" man who is in the service of the Government
without pay, or an employee of another employer
who is placed under direct supervision of a federal agency
pursuant t-0 contract or other arrangement.
The dissenting judges in the Court of Appeals expressed
the view that "when the Government decides
that a particular individual should assume obligations and
responsibilities virtually identical to those of a salaried
Federal employee, there may very well be some persuasive
basis for the suggestion that such an individual's breach
of a specific statutory duty owed by the salaried employee
to a specific class of persons should visit identical
liability upon the United States." 463 F. 2d, at
1342-1343. But we are not persuaded that employees of
a contractor with the Government, whose physical performance
is not subject to governmental supervision, are
to be treated as "acting on behalf of" a federal agency
532 OCTOBER TERM, 1972
Opinion of the Court 412 u. s.
simply because they are performing tasks that would
otherwise be performed by salaried employees of the Government.
If this were to be the law, the exclusion of contractors
from the definition of "Federal agency" in § 2671
would be virtually meaningless, since it would be a rare
situation indeed in which an independent contractor with
the Government would be performing tasks that would
not otherwise be performed by salaried Government
employees.8
While we therefore agree with the conclusion of the
Court of Appeals that the Government was not liable for
the negligence of the employees of Nueces County, we
disagree with its implicit determination that such a conclusion
ends the case. For the District Court imposed
liability on the Government, not only for the negligent
acts of employees of the Nueces County sheriff, but also
for negligent acts of Deputy Marshal Bowers, who was
concededly an employee of the Government. The District
Court found that Bowers, knowing of the prisoner's
suicidal tendencies, should have made "specific arrangements
. . . for constant surveillance of the prisoner,"
and that his failure to do so was negligence. The Court
of Appeals in that portion of its opinion quoted supra,
at 525, stated that "[t_]he deputy marshal, accordingly,
8 The two courts of appeals' cases relied upon by petitioners involved
findings of control by the Government that are contrary to
the determination of the Court of Appeals in this case. In Close v.
United States, 130 U. S. App. D. C. 125, 397 F. 2d 686 (1968), the
court reversed a summary judgment in favor of the Government,
observing that there was no reason to assume that the Attorney
General was without power to supervise the District of Columbia's
jailer. The court expressly noted that no contention was made that
the District of Columbia jail was a "contract" jail. Id., at 126, 397
F. 2d, at 687. In Witt v. United States, 462 F. 2d 1261 (CA2 1972) ,
the court held that the supervising employee "was certainly amenable
to some degree of control by the Disciplinary Barracks," id., at 1264,
and that he was therefore "acting on behalf of" the Government.
LOGUE v. UNITED STATES 533
521 Statement of STEWART and MARSHALL, JJ.
violated no duty of safekeeping with respect to the deceased."
459 F. 2d, at 411. But that conclusion appears
to us to follow from the court's discussion of the
nature of the intergovernmental relationship and the
status of the sheriff's employees rather than being a
separate rejection of the finding of the District Court
that Bowers himself was negligent. Since the Court of
Appeals thus did not consider the distinct question regarding
the negligence of Bowers, we believe that the
parties' arguments on that question should be addressed
in the first instance to the Court of Appeals.
We therefore vacate the judgment of the Court of
Appeals and remand the case for consideration of the
liability of the Government insofar as that liability may
be based on the negligence of Deputy Marshal Bowers.
It is so ordered.
MR. JusTICE STEWART and MR. JusTICE MARSHALL
join the opinion of the Court upon the understanding
that, upon remand, the Court of Appeals' consideration of
Bowers' negligence will not be limited to his alleged failure
to make "specific arrangements ... for constant surveillance
of the prisoner."
534 OCTOBER TF,RM, 1972
Syllabus
rNITEn STATES 1•. XEVAD.\ ET AL.
412 P. S.
ON MOTION FOR LEAVE TO FILE BILL OF COMPLAINT
No. 59, Orip:. Argurd April Hl, 19n- DC'rided Jurte 11, 1973
The Pniterl Siates ask< leavr to filr a bill of romplaint against
California and Kr\·ad.1 Eeeking a drrlaration of the respc<'fo·e
rights of the partie;; in the TrurkPP River, whirh flows throuii:h
part of California into :'.°{evada, terminating in Pyramid Lake.
The romplaint state;; that the rnitC'd States rreated a reservation
in 1859 for the Paiute Indian Trib<' that in<'lnded Pyramid Lake,
and that the lakr level has dedin('d since 190fi due chiC'fly to
up~tream use~ and diver;:ion,, making it imperative that the
Gowrnmf'nt's prior right to suffirient water to maintain the
lake bf\ judiriall~· dC'rlared. By derrrr entered in 1944, in
United Statrs v. Orr Watc r Ditch C'o., thr Government was authorized
to diwrt Trurkee Rivn water for a rrrlamation projert
up8tre.am from P~•ramid L'lke, and its prior right was dcrlarrd
to ,nfficient Tru<'ke<> River water to irrigatf' certain bottom land
and benrh land on thr Pymmid Lake Rrsen·ation. The defC'ndant
States han' m'lde a rompar1 , whirh is thr subjert of hills pending
in C'ongrf'ss, re•prrtina: thrir shares of Truckee River watn.
Hrld: Th<' motion to file the bill of romplamt is denied without
prrjudire to refiling it if thf' posturr of the litigation :,hould
rhangP in a mannf'r that pre:=:Pnts a morP substantial basis for the
Pxrrri~P of oria:innl jurisdirtion. Pp. 53i-540.
(a) Thrrr bcinit no rontroYersy bctwf'en California and :'.°{eyada,
the dii-pute i~ betwern thr lTnited State« and two State;;, o\·cr
whirh thr Court haR original but not exrlu~ive jurisdirtion under
28 TT S. C'. § 1251 (b) (2). P. 537.
(b) Thr C'onrt ~rC'k~ to exercisr its original jurisdirtion sparingly,
~pecially whrre thf' plaintiff ha.s another adrquate forum
in which to srttlr his rlaim. P. 538.
(r) The disput<'S over the Orr Wata Ditch derr('{' nnd the
exi~tencr of prior water rights roncrrnin11; the Pyramid Lake
Re,;ervation inYolw rompeting rlaim., within Nevada, ovn which
the Di<trict C'ourt hac; jurisdirtion. Any possible dispute between
thf' United States and California respf'rtin11: Pyramid Lake water
right,; is rrrnotf' and any dispute with California concf'rning water
UNITED STATES v. NEVADA 53S
534 Per Curium
rights in that State can be settled in the lower federal courts in
California. Pp. 538-540.
Motion denied.
Solicitor General Griswold argued the cause for the
United States. \Yith him on the briefs were Assistant
Attorney General Frizzell, Deputy Assistant Attorney
General Kiechel, and Harry R. Sachse.
E. Barrett Prettyman, Jr., argued the cause for defendant
State of Nevada. \Vith him on the brief were Robert
F. List, Attorney General, Timothy James Bloomfield,
and Edward C. Reed, Jr. Roderick Walston, Deputy Attorney
General, argued the cause for defendant State of
California. With him on the brief were Evelle J.
Younger, Attorney General, Carl Boronkay, Assistant
Attorney General, and Bertram G. Buzzini and Dennis
Antenore, Deputy Attorneys General."
PER CURIAM.
The United States asks leave to file a bill of complaint
pursuant to this Court's original jurisdiction against the
States of California and Nevada seeking a declaration
of the respective rights of the States and of the United
States in the Truckee River, a navigable interstate
stream. The Truckee rises in the High Sierra, flows
into Lake Tahoe, through which the California-Nevada
boundary runs, exits on the California side of the Lake,
and flows 20 miles before crossing into Nevada. It then
-:+Briefs of amici wriae in support of motion for leave to file bill of
complaint were filed by Robert S. Pelcyger, David H. Getches, and
Robert D. Stitser for the Pyramid Lake Paiutc Tribe of Indians,
and by Arthur Lazarus, Jr., for the Association on American
Indians Affairs, Inc.
James W. Johnson, Jr. , and E. J. Skeen filed a brief for Truckee-
Carson Irrigation District as amicus curiae in opposition to motion
for leave to file bill of complaint.
536 OCTOBER TERM, 1972
Per Curiam 412 U.S.
continues another 65 miles, through Reno and beyond,
to its termination in Pyramid Lake, a desert lake 20
miles long and five miles wide, with no outlet and a
water level determined by the balance or imbalance between
inflow and evaporation.
The bill of complaint sought to be filed states that in
1859 the United States created a reservation for the Paiute
Indian Tribe that included Pyramid Lake and an extensive
area surrounding it. Allegedly, the United States
intended at the time to reserve sufficient water from the
Truckee River to maintain Pyramid Lake and the lower
reaches of the river as a viable fishery on which the
Indians could depend for their subsistence and livelihood.
The level of the Lake, however, is said to have declined
some 70 feet since 1906, due chiefly to upstream uses
and diversions which make it imperative that the prior
right of the United States to sufficient water to maintain
Pyramid Lake be judicially declared as against
each of the defendant States.
It appears from the bill of complaint that the United
States has several other interests in the waters of the
Truckee River, chief among which is the right to divert at
its Derby Darn, some distance upstream from Pyramid
Lake, large amounts of water from the Truckee River for
transportation and use in connection with the Newlands
Reclamation Project, initiated and completed by the
United States pursuant to the Reclamation Act of 1902,
32 Stat. 388.t Judicial approval for this diversion was
tThe United States also operates the Washoe Reclamation Project
in Nevada and California which was established undn the Washoe
Project Act of 1956, 70 Stat. 775. The Act provides, inter olia,
for establishing facilities to permit. increased releases of water from
Lake Tahoe and restoration of the Pyramid Lake fishery, 43 U. S. C.
§ 614c.
In addition to the right claimed for Pyramid Lake, the United
States seeks to have rights decreed for it to the use of waters in and
UNITED STATES v. NEVADA 537
534 Per Curiam
sought by the United States in a suit brought by it in 1913
in the United States District Court for the District of
Nevada. United States v. Orr Water Ditch Co., Equity
No. A-3 ( 1944). The decree entered in this action in 1944
authorized the United States to divert Truckee River water
at Derby Dam for delivery to the Newlands Project; it
also declared the prior right of the United States to sufficient
Truckee River water to irrigate some 3,130 acres of
bottom land and 2,745 acres of bench land on the Pyramid
Lake Indian Reservation. App. D to Motion for Leave
to File Complaint.
The foremost purpose of the United States in seeking to
institute the present litigation is to perfect a prior water
right against all upstream uses that will maintain
Pyramid Lake at its current level and so prevent further
deterioration of the lake and the river as a habitat for
the native fish that have historically thrived in the lake
and that have provided sustenance for the Tribe.
The motion for leave to file a bill of complaint is denied.
The States of California and Nevada have entered into
a compact with respect to their respective shares in the
Truckee River water, and that compact is the subject of
pending bills in Congress. H. R. 15, S. 24, 93d Cong.,
1st Sess. There is now no controversy between the two
States with respect to the Truckee River. The complaint,
therefore, as the United States concedes, is not
one alleging a case or controversy between two States
within the exclusive jurisdiction of this Court, under
28 U.S. C. § 1251 (a) , but a dispute between the United
States and two States over which this Court has original
but not exclusive jurisdiction under § 1251 (b )(2).
on national forests within the Truckee River watershed, to waters reserved
as public water holes and hot springs, to the use of water~
in and on public lands where the waters ha \"C heretofore bei>n put to
beneficial use on those lands, and to the use of runoff waters from
the Newlands Project for use in a wildlife refuge.
538 OCTOBER TERJVI, 1972
Per Curiam 412 U.S.
We seek to exercise our original jurisdiction sparingly
and are particularly reluctant to take jurisdiction of a suit
where the plaintiff has another adequate forum in which
to settle his claim. Illinois v. City of Milwaukee, 406
U.S. 91 ( 1972); Ohfo v. Wyandotte Chemicals Corp., 401
U. S. 493 (1971); Massachusetts v. Missouri, 308 U.S. 1
(1939). Herc, Nevada disputes the right of the United
States to sufficient water to maintain Pyramid Lake at
any particular level. It also asserts that the United
States is bound by the 1944 Orr Ditch decree to respect
the private water rights of hundreds of landowners who
are served by the Newlands Project and whose rights are
dependent upon the right of the United States to divert
Truckee River water, the decree authoriiing that diversion,
and a contra.ct with the United States to deliver
the water to the project. This dispute over the Orr
Ditch decree and the existence and extent of the prior
water rights of the United States with respect to the
Pyramid Lake Indian Reservation is ·within the jurisdiction
of the District Court. We need not employ our
original jurisdiction to settle competing claims to water
within a single State. This is particula.rly the case
where the individual users of water in the Newlands
Project, who ordinarily would have no right to intervene
in an original action in this Court, New Jersey v.
New York, 345 U. S. 369, 373-375 (1953). would have
an opportunity to participate in their own behalf if
this litigation goes forward in the District Court.
We recognize that the -United States will not be able
to join California as a defendant in a suit in Nevada to
perfect Pyramid Reservation water rights and that,
absent California's voluntary appearance, a Nevada decree
would not bind that State. Hinderlider v. La Plata
Co., 304 U.S. 92, 103 (1938). But these are not determinative
considerations. Under tho proposed interstate
UNITED STATES v. NEVADA 539
534 Per Curiam
compact, California and Nevada have agreed upon their
respective shares of Truckee River water. Nevada has
also agreed that any rights to the use of water in Nevada
by the United States or its wards are to be charged against
X evada's share of Truckee water. For the purposes of
dividing the waters of an interstate stream with another
State, Kevada has the right, parens patriae, to represent
all the nonfederal users in its own State insofar as the
share allocated to the other State is concerned. It is
therefore doubtful at best that there is now any dispute
at all between California and the United States with
respect to the latter's claim to water rights at Pyramid
Lake. 1Vew Jersey v. Xew York, supra, at 372-373;
Hinderlider v. La Plata Co., supra, at 106; Nebraska
v. Wyoming, 295 U. S. 40, 43 (1935); 325 U. S. 589,
612-615, 629 (1945). It is true that upstream or downstream
water uses and priorities are important considerations
when the judiciary equitably apportious
an interstate stream, Hinderlider v. La Plata Co., supra, at
102; N ebras!ca v. Wyoming, 325 U. S., at 617; Wyoming
v. Colorado, 259 U. S. 419, 470 (1922), but the
United States would appear to have occasion to object
to upstream diversions in California on the grounds of
interference with its Pyramid Lake water rights only if
the compact between the two States is not approved or
Nevada, prior to such approval, diso,vns the agreedupon
division of Truckee River water. In that event, a
dispute between the two States may arise, and the "C11ited
States would then perhaps have some ground to participate
and assert that California's share must be reduced
in order to accommodate a prior, long-established use
by the United States in the State of Nevada. Cf. Arizona
v. California, 373 1.7. S. 546 ( 1963); N ebras!ca v.
TVyoming, supra. Any possible dispute with California
with respect to United States water uses in that State
540 OCTOBER TERM, 1972
Per Curiam 412 u. s.
can be settled in the lower federal courts in California;
and the possibility of a ripe controversy bet\veen the
United States and California with respect to Pyramid
Lake water rights appears too remote to warrant granting
the Government's motion for leave to file the instant
complaint. We deny the motion, but without prejudice
to refiling it should the posture of the litigation change
in a manner that presents a more substantial basis for the
exercise of our original jurisdiction.
So ordered.
MR. JUSTICE DOUGLAS dissents.
FRI v. SIERRA CLUB 541
Counsel
FRI, ACTING ADMINISTRATOR, ENVIRONMENT
AL PROTECTION AGENCY v. SIERRA CLUB
ET AL,
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
No. 72-804. Argued April 18, 1973-Decided June 11, 1973
Affirmed by an equally divided Court.
Deputy Solicitor General Wallace argued the cause for
petitioner. With him on the briefs were Solicitor General
Griswold, Assistant Attorney General Frizzell, Harriet
S. Shapiro, Edmund B. Clarie, and Martin Green.
Bruce J. Terris argued the cause for respondents.
With him on the brief were Helen C. Needham, Nathalie
Vayssie Blaclc, and James W. Moorman.-r.•
*Briefs of amici curiae urging reversal were filed by Mark Wilmer,
Rex E. Lee, Gary K. Nelson, Attorney General, J. A. Hughes, John
Conway, WiUiam Duncan, Gordon Pearce, Richard G. Campbell,
Lawrence V. Robertson, Jr., and Donal.d E. Dickerman for the
State of Arizona and Ten Named Public Utilities; by Andrew P.
Miller, Attorney General, and C. Tabor Cronk, Assistant Attorney
General, for the Commonwealth of Virginia; by Milton A. Smith
and Stanley W. Schroeder for the Chamber of Commerce of the
United States; by Cameron F. MacRae, G. S. Peter Bergen, and
Henry V. Nickel for the Edison Electric Institute; and by Edward
A. iWcCabe, Laurence P. Sherfy, and David W. Miller for the
American Mining Congress.
Briefs of amici curiae urging affirmance were filed by Evelle J,
Younger, Attorney General, pro se, Robert H. O'Brien, Assistant
Attorney General, and Nicholas C. Yost, Anthony M. Summers, and
C. Foster Knight, Deputy Attorneys General, for the Attorney
General of California; by William J. Scott, Attorney General, Fred F.
Hen:og, First Assistant Attorney General, and Ilarvey M. Sheldon,
Assistant Attorney General, for the State of Illinois; by Frank J.
Kelley, Attorney General, Robert A. Derengoski, Solicitor General,
and Jerome Maslowski, Stewart H. Freeman, and Charles S. Alpert,
542 OCTOBER TERM, 1972
Per Curiam 412 l'. S.
PER CumAM.
The judgment is affirmed by an equally divided Court.
MR. JUSTICE POWELL took no part in the decision of
this case.
Assistant Attorneys General, for the State of .Michigan, join(.'d by
Warren Spannaus, Attorney General, and Curtis D. Forslund,
Solicitor General, for the St:ttc of Minnesota; by Louis J. Lefkowitz,
Attorney General, Samuel A. Hirshowitz, First Assistant Attorney
General, and Philip Weinberg and James P. Corcora.n, Assistant
Attorneys General, for the State of New York; by John L. Ilill,
Attorney General, Larry F. York, First Assistant Attorney General,
and Mike Willatt, Phil Maxwell, and Troy C. Webb, Assistant Attor,
neys General, for the State of Texas; by David L. Norvell, Attorney
General, for the State of ~cw .Y!exico, joined by the Attorneys
General for their respective States as follows: William J. Baxley
of Alabama, Robert Killicm of Connecticut, Robert L. Shevin of
Florida, Vern Miller of Kansas, William J. Guste, Jr., of Louisiana,
Jon A. Lund of .:\faine, Robert H. Quinn of Massachusetts, Louis J.
Lefkowitz of New York, Robert Morgan of Korth Carolina, William
J. Brown of Ohio, Lee L. Johnson of Oregon, Israel Packet of
Pennsylvania, Kermit A. Sande of South Dakota, John L. Hill
of Texas, and Kimberley B. Cheney of Vermont; by Norman Redlich
for the cities of Kew York and Boston; by Alfred S. Forsyth for
the Association of the Bar of the city of New York; by David H.
Getches for the .Jicarilla Apache Tribe of Indians et al.; and by
Neal A. Jackson, and James F. Bromley for Natural Resources
Defrnse Council, Inc., et al.
DEAN v. GADSDEN TIIvIES PUBLISHING CORP. 543
Per Curiam
DEAN v. GADSDEX TIMES PUBLISHING CORP.
ON PETITION FOR WRJT OF CERTIORARI TO 'l'HF, COURT OF
CIVIL APPEALS OF ALABA11A
No. 72-1310. Decided June 11, 1973
An Alabama statute that provides that an employec excused for jury
duty "shall be entitled to his usual compensation .. less the
fee or compensation he received for sen·ing" as a juror, does not
deprive the employer of property in violation of the Due Process
Clause of the Fourteenth Amendment. Day-Brite Lighting, Inc.
v. Missouri, 342 U. S. 421.
Certiorari granted ; 49 Ala. App. 45, 268 So. 2d 829, reversed.
PER CURIAM.
Petitioner sued respondent, his employer, to recover
compensation lost as a result of the employee's being
required to serve as a juror. An Alabama statute provides
that an employee exrused for jury duty "shall be
entitled to his usual compensation received from such
employment less the fee or compensation he received
for serving" as a juror. Ala. Code of 1940, Tit. 30,
§ 7(1) (Supp. 1971 ) . It appears that petitioner served
on a jury, received pay for the jury duty and submitted
a bill of S63 to respondent, the difference between his reg~
ular wages and his jury pay. Respondent refused to
pay; the trial court rendered a judgment for petitioner;
but the Court of Civil Appeals of Alabama held the state
Act unconstitutional. 49 Ala. App. 45, 268 So. 2d 829.
The Supreme Court of Alabama denied certiorari to review
that judgment. 289 Ala. 743, 268 So. 2d 834. The
case is here on petition for a writ of certiorari which we
grant.
The Court of Civil Appeals held that the Act deprives
the employer of property in violation of the Due Process
Clause of the Fourteenth Amendment, its main reliance
544 OCTOBER TERM, 1972
Prr Curiam 412 U. 8.
being on Coppage v. Kansas, 236 U. S. 1. Coppage declared
unconstitutional as violative of due process a
state statute which made it a misdemeanor for an employer
to require an employee to agree not to join or
remain a member of a union during his employment.
That was when substantive due process was in its heyday.
Wr cited Coppage along with other decisions of
like tenor in Day-Brite Lighting, Inc. v. Missouri, 342
P. S. 421, where we sustained a state statute which made
it a misdemeanor for an employer to deduct wages of an
employee for four hours when the employee absents himself
from his job in order to vote. We held that the
requirement placed on the employer to pay wages for
this brief period when the employee is voting stood constitutional
muster.
We said:
"Most regulations of business necessarily impose
financial burdens on the enterprise for which no
compensation is paid. Those are part of the costs
of our civilization. Extreme cases are conjured up
where an employer is required to pay wages for a
period that has no relation to the legitimate end.
Those rascs can await decision as and when they
arise. The present law has no such infirmity. It
is designed to eliminate any penalty for exercising
the right of suffrage and to remove a practical
obstacle to getting out the vote. The public welfare
is a broad and inclusive concept. The moral,
social, economic. and physical well-being of the
community is one part of it; the political well-being,
another. The police power which is adequate to
fix the financial burden for one is adequate for the
other. The judgment of the legislature that time
out for voting should cost the employee nothing may
be a debatable one. It is indeed conceded by the
543
DEAN v. GADSDEN TL\fES PUBLISHING CORP. 545
Per Curiam
opposition to be such. But if our recent cases mean
anything, they leave debatable issues as respects
business, economic, and social affairs to legislative
decision. We could strike down this law only if
we returned to the philosophy of the Lochner/11
Coppage, and Adkins r21 cases." Id., at 424----425.
The Alabama statute stands on no less sturdy a footing.
Reversed.
1 Lochner v. New York, 198 U. S. 45.
2 Adkins v. Children's Hospital, 261 U. S. 525.
546 OCTOBER TERl\-I. 1972
Syllabus 412 u. s.
GOLDSTEIN ET AL. V. CALIFORNIA
CERTIORARI TO THE APPELLATE DEPARTMENT, SL'PERIOR
COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
No. 71-1192. Argued December 13, 1972-Decided June 18, 1973
Petitioners, ronvirted for rommitting nets of "record piracy" or "tape
piracy" in 1970-1971, challenge thf' Californin statute proscribing
such practices, as violative of the "Copyright Clause," Art. I, § 8,
cl. 8, of the Constitution, and the federal statutes enacted thereunder.
Thf' state appellate court upheld the validity of the statute.
Held:
1. Article I, § 8, cl. 8, does not expressly or by inference vest
all power to grant copyright protection exclusively in the Federal
Government. Pp. 5.52-561.
(a) Although the objective of the Copyright. Clause was to
facilitate the granting of rights national in scope, it docs not indicate
that all "Writings" are of national interest or that protective
state legislation i~, in all cases, unnecessary or precluded. Pp.
555-558.
(b) No substantially prejudicial interstate conflicts result
where some States grant copyright protertion within their own
jurisdictions while othrr States do not. Pp. 558-559.
(c) Conflicts will not necessarily arise between state enactments
and congressional policy when States grant copyright
protection. P. 559.
(d) Unless Congress determines that the na,ional interest
requires frderal protection or freedom from restraint as to a
particular category of "Writings,'' state protection of that category
is not prceludcd. P. 559.
(e) The durational limitation imposed by the Copyright
Clause on Congress does not invalidate state laws, like the one
here, that haw no such limitation. Pp. 560-561.
2. The California statute does not violate the Supremacy Clause
by conflicting wi(h frdrral copyright law. Pp. 561-570.
(a) Congress did not, in passing the Copyright Act of 1909,
determine that recordings, as original writings, were unworthy of
all copyright prot<.'ction. Pp. 563- 566.
(b) Nor did Congress in 17 U.S. C. § 4, which provides that
"the works for which copyrights may be secured under this Act
shall inrlude all writings of an author," or in § 5, pre-empt state
control owr all works to which the term "writings" might apply.
GOLDSTEIN v. CALIFORNIA 547
546 Syllabus
Sears, Roebuck & Co. v. Stiff el Co., 376 U.S. 225; Compco Corp.
v. Day-Brite Lighting, 376 U. S. 234, distinguished. Pp. 567-569.
3. Although in 1971. the federal copyright statutes were amended
to allow federal protel'tion of recordings, such statutory protection
was not intended to altn the legal relationships governing recordings
"fixed" prior to February 15, 1972. Until and unless Congress
takes further action with respect to recordings fixed prior to
February 15, 1972, California remains free to proscribe acts of
record or tapr piracy such a., those involved here. Pp. 570-571.
Affirmed.
BURGER, C. J., delivered the opinion of the Courl, in which Snnv-
ART, \VHITE, PowELL, and RgHXQUIST, JJ., joined. DouGLAs, J.,
post, p. 572, and :'1-IARSHALL, J., post, p. 576, filed dissenting opinions,
in which BREXNAN and BLACK)-IUN, ,T.T., joined.
Arthur Leeds argued the cause and filed briefs for
petitioners.
David M. Schacter argued the cause for respondent.
With him on the briefs was Roger Arnebergh. *
*Francis M. Pinckney filed a brief for Custom Recording Co.,
Inc., et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmancr were filed by Evelle J.
Younger, Attorney General, Edu·ard A. Hinz, Jr., Chief Assistant
Attorney Genera.I. William E. James and Doris 11. kfaier, Assistant
Attorneys General, and Charles P. Just, Deputy Attorney General,
for the State of California; by Robert L. Shevin, Attorney General,
pro se, and William J. Dunaj, Special Assistant Attorney General,
for the Attorney General of Florida; by Louis J. Lefkowitz, Attorney
General, pro se, Samuel A. Hirshowitz, First Assistant Attorney
General, and Daniel J,J. Cohen, Assistant Attorney General, for
the Attorney General of New York; by J. Shane Creamer, Attorney
Gene1,,l, for the Commonwealth of Pennsylvania; by David lvl.
Pack, Attorney General of TennesseP; by Craw/ord C. Martin,
Attorney General, pro se, and Charles F. Ilerring for the Attorney
General of Texas; by Sidney A. Diamond and Ernest S. Meyers for
Recording Industry Association of America, Inc.; by Paul G.
Zurkowski for Information Industry Association; by Htnry Kaiser,
Eugene Gressman, Ronald Rosenberg, and ]vlortimer Becker for
American Federation of 1\fosicians et al.; and by Julian T. Abeles
and Robert C. Osterberg for Harry Fox Agency, Inc.
548 OCTOBER TERM, 1972
Opinion of the Court 412 u. s.
MR. CHIEF JUSTICE BURGER delivered the opinion of
the Court.
\Ve granted certiorari to review petitioners' conviction
under a California statute making it a criminal offense
to "pirate" recordings produced by others.
In 1971, an information ,vas filed by the State of California,
charging petitioners in 140 counts with violating
§ 653h of the California Penal Code. The information
charged that, between April 1970 and March 1971,
petitioners had copied several musical performances from
commercially sold recordings without the permission of
the owner of the master record or tape.1 Petitioners
moved to dismiss the complaint on the grounds that
§ 653h ·was in conflict with Art. I, § 8, cl. 8, of the Con-
1 In pertinent part, the California statute provides:
"(a) Every person is guilty of a misdemeanor who:
" ( 1) Knowingly and willfully transfers or causes to be transferred
any sounds recorded on a phonograph record, . . . tape, . . . or
other article on which sounds are recorded, with intent to sell or
cause to be sold, . . . such article on which such sounds are so
transferred, without the consent of the owner.
"(2)
"(b) As used in this section, 'person' means any individual, partnership,
corporation or association; and 'ownN' means the person
,vho owns the master phonograph record, . . . master tape, . . .
or other device used for reproducing recorded sounds on phonograph
records, ... tapes, . . . or other articles on which sound is
recorded, and from which the transferred recorded sounds are directly
or indirectly derived."
Specifically, each count of the information alleged that, in regard
to a particular recording, petitioners had, "at and in the City of Los
Angeles, in the County of Los Angeles, State of California . . .
wilfully, unlawfully and knowingly transferred and caused to be
transferred sounds recorded on a tape with the intent to sell and
cause to be sold, such tape on which such sounds [ were] so
transferred .... "
GOLDSTEIN v. CALIFORNIA 549
546 Opinion of the Court
stitution,2 the "Copyright Clause," and the federal statutes
enacted thereunder. Upon denial of their motion,
petitioners entered pleas of nolo contendere to 10 of the
140 counts; the remaining counts were dismissed. On appeal,
the Appellate Department of the California Superior
Court sustained the validity of the statute. After exhausting
other state appellate remedies, petitioners sought
review in this Court.
I
Petitioners were engaged in what has commonly been
called "record piracy" or "tape piracy"-the unauthorized
duplication of recordings of performances by major musical
artists.3 Petitioners would purchase from a retail
distributor a single tape or phonograph recording
of the popular performances they wished to duplicate.
The original recordings were produced and marketed by
recording companies with which petitioners had no contractual
relationship. At petitioners' plant, the recording
was reproduced on blank tapes, which could in turn
be used to replay the music on a tape player. The tape
was then wound on a cartridge. A label was attached,
stating the title of the recorded performance-the same
title as had appeared on the original recording, and the
name of the performing artists.' After final packaging,
'Article I, § 8, cl. 8, provides that Congress shall have the power
"To promote the Progress of Science and useful Arts, by securing
for limited Times to Authors and Inventors the exclusive Right to
their respective Writings and Discoveries ... . "
3 Since petitioners did not proceed to trial, the factual record
before the Court is sparse. However, both parties indicatt' that a
complete desC'ription of petitioners' method of operation may be found
in the record of Tape Industries Assn. of America v. Younger, 316
F. Supp. 340 (CD Cal. 1970), appeal dismissed for lack of jurisdiction,
401 U.S. 902 (1971), appeal pending United States Court of
Appeals, CA9, ~o. 26,628.
• An additional label was attached to each cartridge by petitioners,
stating that no relationship existed between petitioners and the pro-
550 OCTOBER TER:\I, 1972
Opinion of the Court 412U.S.
the tapes were distributed to rf'tail outlets for sale to
the public, in competition with those petitioners had
copied.
Petitioners made no payments to the artists whose
performances they reproduced and sold, or to the various
trust funds established for their benefit; no payments
were made to the producer, technicians, or other
staff personnel responsible for producing the original recording
and paying the large expenses incurred in production.~
No payments were made for the use of the
artists' names or the album title.
The challenged California statute forbids petitioners
to transfer any performance fixed on a tape or
record onto other records or tapes with the intention of
selling the duplicates, uHless they have first received
permission from those who, under state law, are the
owners of the master recording. Although the protection
afforded to each master recording is substantial,
lasting for an unlimited time, the scope of the proscribed
activities is narrow. No limitation is placed on the use
of the musir, lyrics, or arrangemPnt employed in making
the master recording. Petitioners are not precluded from
hiring their own musicians and artists and recording
an exact imitation of the performance embodied on the
master recording. Petitioners are even free to hire the
same artists who made the initial recording in order to
tlucer of the original reC'or<lin11: or the individuals whose performanres
had bf'C'n rc<·orded. ConsequC'ntly, 110 claim is mride that p<'titioners
misrepresented the source of the original reC'ording:; or the manufa.
rturer of the tapes.
0 The costs of produC'i1111; a ~intz;le oriii;inal longplaying record of a
mns1(·al 1wrformnnce may rxC'eed $50,000 or $100,000. Tape Industries
Assn. of Amenra v. Younger, supra, at 3-14; Hearings on S. 646
and H. R. 6927 before ~ubrommittee ~o. 3 of the House Corrunittee
on the .Tudiriary, 92d C:onir., 1st Ses~. , 27- 28 (1971). For the
performance recordrd on this record, petitioners would pay only the
retail cost of a single longplaying record or a single tape.
GOLDSTEIN v. CALIFORNIA 551
546 Opinion of the Court
duplicate the performance. In essence, the statute thus
provides copyright protection solely for the specific
expressions ,vhich compose the master record or tape.
Petitioners' attack on the constitutionality of § 653h
has many facets. First, they contend that the statute
establishes a state copyright of unlimited duration, and
thus conflicts with Art. I, § 8, cl. 8, of the Constitution.
Second, petitioners claim that the state statute interferes
with the implementation of federal policies inherent
in the federal copyright statutes. 17 U. S. C. § 1
et seq. According to petitioners, it was the intention
of Congress, as interpreted by this Court in Sears, Roebuck
& Co. v. Stiffel Co., 376 U. S. 225 (1964), and
Cornpco Corp. v. Day-Brite Lighting, 376 U. S. 234
(1964), to establish a uniform law throughout the United
States to protect original writings. As part of the federal
scheme, it is urged that Co11gress intended to allO\v
individuals to copy any work which was not protected by
a federal copyright. Since § 653h effectively prohibits the
copying of works which are not entitled to federal protection,
petitioners contend that it conflicts directly v,:ith
congressional policy and must fall under the Supremacy
Clause of the Constitution. Finally, petitioners argue
that 17 U. S. C. § 2, which allows States to protect u11-
published writings,"' does not authorize the challenged
state provision; since the records which petitioners
copied had previously been released to the public, petitioners
contend that they had, under federal law, been
published.
We notE> at the outset that the federal copyright
statutes to which petitioners rE>fer wE>re amended by Con-
"Titlf' 17 U. S. C. § 2 pro\'ides: ''Kothing iu thi~ titk 8hall be
construed to annul or limit the right of the author or proprietor of
an unpublished work, at common I:iw or iu c•quity, to prf'\·rnt 1 hr
copying, publica1ion. or use of such unpublished work without his
consent, and to obtain damages therefor."
552 OCTOBER TER1-1, 1972
Opinion of the Court 412 U.S.
gress while their case was pending in the state courts.
In 1971, Pub. L. 92-140, 85 Stat. 391, 17 U.S. C. §§ 1 (f),
5 (n), 19, 20, 26, 101 (e), was passed to allow federal
copyright protection of recordings. However, § 3 of the
amendment specifically provides that such protection is
to be available only to sound recordings "fixed, published,
and copyrighted" on and after February 15, 1972,
and before January 1, 1975, and that nothing in Title 17,
as amended is to "be applied retroactively or [to] be construed
as affecting in any way any rights with respect
to sound recordings fixed before" February 15, 1972.
The recordings which petitioners copied \Vere all "fixed"
prior to February 15, 1972. Since, according to the language
of § 3 of the amendment, Congress did not intend
to alter the legal relationships which govern these recordings,
the amendments have no application in petitioners'
case.1
II
Petitioners' first argument rests on the premise that
the state statute under which they were convicted lies
beyond the powers which the States reserved in our
federal system. If this is correct, petitioners must prevail,
since the States cannot exercise a sovereign power
which, under the Constitution, they have relinquished to
the Federal Government for its exclusive exercise.
A
The principles which the Court has followed in construing
state power were stated by Alexander Hamilton
in umber 32 of The Federalist:
"An entire consolidation of the States into one
complete national sovereignty would imply an entire
subordination of the parts; and whatever powers
might remain in them, would be altogether depend-
7 No question is raised in the prcsrnt ease as to the power of the
States to protect recordings fixed after February 15, 1972.
546
GOLDSTEIN" t•. CALIFORNIA 553
Opinion of the Court
ent on the gcnf'ral will. But as the plan of the
[ Constitutional l convention aims only at a partial
union or consolidation, the Rtate governments would
clearly rf'tain all the rights of sovereignty which
they before had, and which were not, by that act,
exclusit•ely <lelegated to the l!nited States. This
exclusive delegation, or rather this alienation, of
State sovereignty, would only exist in three cases:
where thf' Constitution in express terms granted an
exclusive authority to the rnion; where it granted
in one instance an authority to the rnion, and in
another prohibited the States from exercising the
like authority; and where it granted an authority
to the rnion, to which a similar authority in the
States would be absolutely and totally contradictory
and repugnant." 8
The first two instances mentioned present no barrier to
a State's enactment of copyright statutes. The clause of
the Constitution granting to Congress the power to issue
copyrights does not provide that such power shall vest
exclusively in the Federal Government. Nor does the
Constitution expressly provide that such power shall
not be exercised by the States.
In applying the third phase of the test, we must
examine the manner in which the power to grant copyrights
may operate in our federal system. The objectives
of our inquiry were recognized in Cooley v. Board of
Wardens, 12 How. 299 (1852), when, in determining
whether the power granted to Congress to regulate commerce
9 was "compatible with the existence of a similar
power in the States," the Court noted:
"Whatever subjects of this power are in their nature
8 The Federalist No. 32, p. 241 (B. Wright ed. 1961); see Cooley
v. Board of Wardms, 12 How. 299, 318--319 (1851).
9 Art. I, § 8, cl. 3.
554 OCTOBER TERl\I, 1972
Opinion of the Court 412 U. s.
national, or admit only of one uniform system, or
plan of regulation, may justly be said to be of such
a nature as to require exclusive legislation by Congress."
Id., at 319.
The Court's determination that Congress alone may
legislate over matters which arc necessarily national in
import reflects the basic principle of federalism. Mr.
Chief Justice Marshall said,
"The genius and character of the [federal] government
seem to be, that its action is to be applied to all
the rxternal concerns of the nation, and to those intrrnal
concrrns which affect the States generally;
but not to those which arc completely ·within a partirular
State, whirh do not affect other States, and
with which it .is not necessary to interfere, for the
purpose of executing some of the general powers of
the government." Gibbons v. Ogden, 9 'Wheat. 1,
195 (1824).
The question whether exclusive federal power must
bf> inf erred is not a simpk one, for the powers recognized
in the Constitution are broad ancl the nature of
their application varied. The warning sounded by the
Court in Cooley may equally be applicable to the Copyright
Clause:
"Either absolutely to affirm, or deny that the nature
of l the federal power over commerce] requires
exclusive legislation by Congress, is to lose sight of the
nature of the subjects of this power, and to assert
concerning all of them, what is really applicable but
to a part.'' 12 How., at 319.
\V c must also be careful to distinguish those situations
in which the concurrent exercise of a po,ver by the
Federal Government and the States or by the States
alone may possibly lead to conflicts and those situations
,vhere conflicts will necessarily arise. "It is not ... a
GOLDRTEI1'f v. CALIFORNIA 555
546 Opinion of the Court
mere possibility of inconvenience in the exercise of
powers, but an immediate constitutional repugnancy that
can by implication alienate and extinguish a pre-existing
right of I state] sovrreignty." The Federalist o. 32,
p. 243 (B. Wright ed. 1961).
Article I, 8, cl. 8, of the Constitution gives to Congress
the power
"To promote the ProgrePs of Scienct> and useful
Arts, by securing for limited Times to Authors and
Inventors the exclusive Right to their respective
Writings and Discoveries .... "
The clause thus deseribrs both the objeetive which Congress
may st>ck and the means to achieve it. The objective
is to promote the progress of science and the arts.
As employed, the terms "to promote" are synonymous
\vith the words "to stimulate," "to encourage,'' or "to
induce.'' 10 To accomplish its purpose, Congress may
grant to authors thr t>xclusive 1;ght to the fruits of their
respective works. An author who possesses an unlimited
copyright may preclude others from copying his creation
for commercial purpm:e" without permission. In other
words, to t>ncouragr prople to devote themselves to in~
tellcrtual and artistic creation, C'ongrt>ss may guarantee
to authors a11d inventors a reward in the form of control
over the sale or commrrrial use of copies of their works.
Tht> objective of the Copyrif;?;ht Clause was clearly
to facilitate thf' granting of rights national in scope.
Whilt• tht> dt>bates 011 the clau~e at the Co11stitutional
Convention were extremely limited, its purpose was
described by James Madison in the Federalist:
"The utility of this power will scarcely be questioned.
The copyright of authors has been solemnly
10 ~re Kendall "· H'insor , 21 How. 322, 321> (1859); Mitchell v.
Tilghma11, 19 " "all. '..b7, 41S (1 74); Bauer v. O'Donnell, 229 U. 8. 1,
10 (1913).
556 OCTOBER TEKVI, 1972
Opinion of the Court 412 U.S.
adjudged, in Great Britain, to be a right of common
law. The right to useful inventions seems
with equal reason to belong to the inventors. The
public good fully coincides in both cases with the
claims of individuals. The States cannot separately
make effectual provision for either of the
cases, and most of them have anticipated the decision
of this point, by laws passed at the instance
of Congress." 11
The difficulty noted by Madison relates to the burden
placed on an author or inventor who wishes to achieve
protection in all States when no federal system of protection
is available. To do so, a separate application
is required to each state government; the right ,vhich in
turn may be granted has effect only within the granting
State's borders.'" The national system which Madison
supported eliminates the need for multiple applications
and the expense and difficulty involved. In effect, it
allows Congress to provide a reward greater in scope than
any particular State may grant to promote progress in
those fields which Congress determines are worthy of
national action.
Although the Copyright Clause thus recognizes the potential
benefits of a national system, it does not indicate
11 The Federalist No. 43, p. 309 (B. Wright ed. 1961).
12 Numerous examples may be found in our early history of the
diffirultics which the creators of items of national import had in
securing protection of their creations in all States. For exampl<>,
~oah Webster, in his effort to obtain protection for his book, A
Grammatical Institute of the English Language, brought his claim
before the legislatures of at least six States, and perhaps as many
as 12. See B. Bugbee, The Genesis of Amnican Patent and Copyright
Law 108-110, 120-124 (Wash., D. C., 1967); H. R. Rep. No.
2222, 60th Cong., 2d Soss., 2 (1909). Similar difficultirs were
rxperienced by John Fitch and other inventors who desired to protect
their efforts to perfect a steamboat. Sec Federico, State Patents,
13 J. Pat. Off. Soc. 166, 170-176 (1931).
GOLDSTEIN' v. CALIFORNIA 557
546 Opinion of the Court
that all writings are of national interest or that state
legislation is, in all ca~es, unnecesPary or precluded. The
patents grautPd by the Rtates in the 18th century show,
to the contrary, a willingness on the part of the States to
promote those portions of science and the arts which were
of local importance. 11 Whatever the diversity of people's
backgrounds, origins, and interests, and whatever the
variety of businC'ss and industry in the 13 Colonies, the
range of diversity is obviously far greater today in a
country of 210 million people in 50 States. In view
of that enormous diversity, it is unlikely that all citizens
in all parts of the country place the same importance on
13 As early as 1751, Ma~;;achusetts granted to Benjamin Crabb thr
t>xdu~ive nght to employ a specific process for the manufacture of
candle~ out of whale oil. It is not clear whether Crabb invented the
proce~s. ThP Acts and Resol\'es, Publir and Private, of the Pro\'ince
of the 3fo!-<achu•rtt;; Bay, Yo!. 3, Session of .Jan. 10, 1751, c. 19,
pp. 546-547 ( 1878). In 17RO, Pennsylvania granted a patent to
Henry Guest for the proce&<;ing of tanning oil and blubber, notrng
•perifirally that thr patent waR "a rrward for his discovery and for
the purpoRr of promoting u~rful manufar1orirs in this state." The
Statutes at Large of Penn•yhania from 165<2 to 1801, Vol. 10, p. 132
(J. Mitrhrll & IL Flander~ ed~. 1904). Similarly, South Carolina.
ii;rantrd protrrtion to Petrr Belin in 1786 for newly designed
waterworks which aided in the production of rice, a staple
of South Carolina agriculture, and other proclu<'ts. Another patrnt
relating to the prom,~ing of rice was granted by Routh Carolina in
1788. The StatutN> at Large of South Carolina, Vol. 4, p. 755
(T. Cooper ed. 183~); id., Yo!. 5, p. 69 (1839). In 1787, Maryland
granted a patrnt on a spinning and carding machine ··to rnc-ourage
useful invention,;, as well as promote the manufacture of cotton and
wool withm this ~late .... " The Laws of Maryland, Vol. 2,
t¾>ssion of No\'. 6, 1786-Jan.20, 17 7, r. 23 (W. Kilty ed. l\00). In
the ~ame year, Pennsylvania patented certain devices rdating to
ttour mill~. noting that the.,e devic('S would "tend to i-imphfy and
rrnder rhrap thr manufarturr of flour which is one of the princi11al
staples of thi~ rommonwealth .... " The Statute~ at Large of
Penn8ylvania from 1682 to H!Ol, Vol. 12, Pl). 41;,3_4q4 (.T Mitchell &
H. Flanders eds. 1906).
558 OCTOBER TER1\1, 1972
Opinion of the Court 412 U.S.
works relating to all subjects. Since the subject matter
to which the Copyright Clause is addressed may thus be
of purely local importance and not ,vorthy of national
attention or protection, we cannot discern such an unyielding
national interest as to require an inference that
state power to grant copyrights has been relinquished
to exclusive federal control.
The question to which we next turn is whether, in
actual operation, the exercise of the power to grant copyrights
by some States ,vill prejudice the interests of other
States. As we have noted, a copyright granted by a
11articular State has effect only within its boundaries.
If one State grants such protection, the interests of
States which do not are not prejudiced since their citizens
remain free to copy within their borders those works
which may be protected elsewhere. The interests of a
State which grants copyright protection may, however,
be adversely affected by other States that do not; individuals
·who wish to purchase a copy of a work protected
in their own State will be able to buy unauthorized copies
in other States where no protection exists. However, this
conflict is neither so inevitable nor so severe as to compel
the conclusion, that state power has been relinquished to
the exclusive jurisdiction of the Congress. Obviously
when some States do not grant copyright protection-and
most do not-that circumstance reduces the economic
value of a state copyright, but it will hardly render the
copyright worthless. The situation is no different from
that which may arise in regard to other state monopolies.
such as a state lottery, or a food concession in a limited
enclosure like a state park; in each case, citizens may
escape the effect of one State's monopoly by making purchases
in another area or another State. Similarly, in the
case of state copyrights, except as to individuals willing
to travel across state lines in order to purchase records or
other writings protected in their own State, each State's
GOLDSTF:I'.'J v. CALIFORl\'IA 559
546 Opinion of the Court
copyrights will still serve to induce ne,v artistic creations
within that State-the very objective of the grant of
protection. We do not see here the type of prejudicial
conflicts which ,vould arise, for example, if each State
exercised a sovereign power to impose imposts and
tariffs; '4 nor can ,ve discern a need for uniformity such
as that which may apply to the regulation of interstate
shipments.15
Similarly, it is difficult to see how the concurrent
exercise of the po,ver to grant copyrights by Congress
and the States ,vill necessarily and inevitably lead to
difficulty. At any time Congress determines that a particular
category of "writing" is ,vorthy of national protection
and the incidental expenses of federal administration,
federal copyright protection may be authorized.
\Vhere the need for free and unrestricted distribution of
a writing is thought to be required by the national interest,
the Copyright Clause and the Commerce Clause
would allow Co11gress to esche,v all protection. In such
cases, a conflict would develop if a State attempted to
protect that which Congress intended to be free from
restraint or to free that which Congress had protected.
Ho,vever, where Congress determines that neither federal
protection nor freedom from restraint is required by the
national interest, it is at liberty to stay its hand entirely.16
Since state protection would not then conflict with federal
action, total relinquishment of the States' power to
grant copyright protection cannot be inferred.
14 The :Federalist ~o. 42, p. 305 (B. Wright ed. 1961).
15 Cf. Aiorgan v. Virginia, 328 "C. S. 373 (1946); Ribb v. Navajo
Freight Lines, 359 l". S. 520 (1959); Southern Pacific Co. v. Arizona,
325 U.S. 761 (1945); Pennsylvania v. Tllest Virginia, 262 U.S. 553
(1923).
16 For example, Congress has allowed writings which may e\·entually
be the subject of a federal copyright, to be protected under state
law prior to publication. 17 U. S. C. § 2.
560 OCTOBER TER~I, 1972
Opinion of the Court 412 U.S.
As we have seen, the language of the Constitution
neither explicitly precludes the States from granting copyrights
nor grants such authority exclusively to the Federal
Government. The subject matter to ,vhich the
Copyright Clause is addressed may at times be of purely
local concern. No conflict will necessarily arise from
a lack of uniform state regulation, nor will the interest
of one State be significantly prejudiced by the actions of
another. No reason exists why Congress must take
affirmative action either to authorize protection of all
categories of writings or to free them from all restraint.
We therefore conclude that, under the Constitution, the
States have not relinquished all power to grant to authors
"the exclusive Right to their respective Writings."
B
Petitioners base an additional argument on the language
of the Constitution. The California statute forbids
individuals to appropriate recordings at any time
after release. From this, petitioners argue that the State
has created a copyright of unlimited duration, in violation
of that portion of Art. I, § 8, cl. 8, which provides
that copyrights may only be granted "for limited
Times." Read literally, the text of Art. I does not
support petitioners' position. Section 8 enumerates
those powers which have been granted to Congress;
whatever limitations have been appended to such powers
can only be understood as a limit on congressional, and
not state, action. ~oreover, it is not clear that the
dangers to which this limitation was addressed apply
with equal force to both the Federal Government and
the States. When Congress grants an exclusive right
or monopoly, its effects are pervasive; no citizen or State
may escape its reach. As we have noted, however, the
exclusive right granted by a State is confined to its
GOLDSTEIN v. CALIFORNIA 561
546 Opinion of the Court
borders. Consequently, even when the right is unlimited
in duration, any tendency to inhibit further progress in
science or the arts is narrowly circumscribed. The challenged
statute cannot be voided for lack of a durational
limitation.
III
Our conclusion that California did not surrender its
power to issue copyrights does not end the inquiry. We
must proceed to determine whether the challenged state
statute is void under the Supremacy Clause. No simple
formula can capture the complexities of this determination;
the conflicts "vhich may develop between state
and federal action are as varied as the fields to which
congressional action may apply. "Our primary function
is to determine whether, under the circumstances of
this particular case, [the state] law stands as an obstacle
to the accomplishment and execution of the full purposes
and objectives of Congress." Hines v. Davidowitz, 312
U. S. 52, 67 (1941). We turn, then, to federal copyright
law to determine what objectives Congress intended to
fulfill.
By Art. I, § 8, cl. 8, of the Constitution, the States
granted to Congress the power to protect the "Writings"
of "Authors." These terms have not been construed
in their narrow literal sense but, rather, with the
reach necessary to reflect the broad scope of constitutional
principles. ·while an "author" may be viewed as
an individual who writes an original composition, the
term, in its constitutional sense, has been construed to
mean an "originator," "he to whom anything owes its
origin." Burrow-Giles Lithographic Co. v. Sarony, 111
U. S. 53, 58 ( 1884). Similarly, although the ·word "writings"
might be limited to script or printed material, it
may be interpreted to include any physical rendering of
the fruits of creative intellectual or aesthetic labor.
562 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
Ibid.; 'Trade-Mark Cases, 100 U.S. 82, 94 (1879). Thus,
recordings of artistic performances may be within the
reach of Clause 8.
While the area in which Congress may act is broad,
the enabling provision of Clause 8 does not require that
Congress act in regard to all categories of materials which
meet the constitutional definitions. Rather, whether any
specific category of "Writings" is to be brought within the
purview of the federal statutory scheme is left to the
discretion of the Congress. The history of federal copyright
statutes indicates that the congressional determination
to consider specific classes of writings is dependent,
not only on the character of the writing, but also on the
commercial importance of the product to the national
economy. As our technology has expanded the means
available for creative activity and has provided economical
means for reproducing manifestations of such activity,
new areas of federal protection have been initiated.17
11 The first congressional copyright statute, passed in 1790, governed
only maps, charts, and books. Act of ~fay 31, 1790, c. 15,
1 Stat. 124. In 1802, the Act was amended in order to grant. protection
to any person "who shall invent and design, engrave, etch
or work ... any historical or other print or prints .... " Act of
Apr. 29, 1802, c. 36, 2 Stat. 171. Protection was extended to musical
compositions when the copyright laws were revised in 1831.
AcL of Feb. 3, 1831, c. 16, 4 Stat. 436. In 1865, at the time when
Mathew Brady's pictures of the Civil War were attaining fame,
photographs and photographic negatives were expressly added to
the list of prote('ted works. Act of Mar. 3, 1865, c. 126, 13 Stat.
540. Again in 1870, the list was augmented to cover paintings,
drawings, chrornos, statuettes, statuary, and models or designs of fine
art. Act of July 8, 1870, c. 230, 16 Stat. 198.
In 1909, Congress agreed to a major consolidation and amendment
of all federal copyright statutes. A list of 11 categories of
protected works was provided. The relevant sections of the Act are
discussed in the text of our opinion. The House Report on the proposed
bill specifically noted that amendment was required because
GOLDSTEIN v. CALIFORNIA 563
546 Opinion of the Court
Petitioners contend that the actions taken by Congress
in establishing federal copyright protection preclude the
States from granting similar protection to recordings of
musical performances. According to petitioners, Congress
addressed the question of whether recordings of
performances should be granted protection in 1909; Congress
determined that any individual who was entitled to
a copyright on an original musical composition should
have the right to control to a limited extent the use of
that composition on recordings, but that the record
itself, and the performance which it was capable of
reproducing were not worthy of such protection.'" In
"the reproduction of various things which are the subjcrt of copyright
has enormously increased," and that the President has specifically
recommended revision, among other reasons, because the prior
laws "omit[ted] provision for many articles which, under modern
reproductive processes, are entitled to protection." H. R. Rep. No.
2222, supra, n. 12, at 1 ( quoting Samuel J. Elder and President Theodore
Roosevelt).
Since 1909, two additional amendments have been added. In
1912, the list of categories in § 5 was expanded specifically to inrl11de
motion pictures. The House Report on the anH•ndment noted:
"The occasion for this proposed amendment is the fact that the
production of motion-picture photoplays and motion pictures other
than photoplays has become a business of vast proportions. The
money invested therein is so great and the property rights so valuable
that the committee is of the opinion that the copyright law
ought to be so amended as to give to them distinct and definite
recognition and protection." H. Il. Rep. No. 756, 62d Cong., 2d
Sess., 1 (1912).
Finally, in 1971, § 5 was amended to include "sound recordings."
Congress was spurred to action by the growth of record piracy,
which was, in turn, due partly to technological advances. See Hearings
on S. 646 and H. R. 6927, supra, n. 5, at 4- 5, 11 (1971). It
must, be remembered that the "record piracy" charged against petitioners
related to recordings fixed by the original producer prior to
Feb. 15, 1972, the effective date of the 1971 Act. See supra, at
551-552.
1 s 17 U.S. C. § 1 (e).
564 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
support of their claim, petitioners cite the House Report
on the 1909 Act, which states:
"It is not the intention of the committee to extend
the right of copyright to the mechanical reproductions
themselves, but only to give the composer or
copyright proprietor the control, in accordance with
the provisions of the bill, of the manufacture and
use of such devices." H. R. Rep. No. 2222, 60th
Cong., 2d Sess., 9 (1909).
To interpret accurately Congress' intended purpose in
passing the 1909 Act and the meaning of the House Report
petitioners cite, we must remember that our modern
technology differs greatly from that which existed in
1909. The Act and the report should not be read as if
they were written today, for to do so would inevitably
distort their intended meaning; rather, we must read
them against the background of 1909, in which they were
written.
In 1831, Congress first extended federal copyright protection
to original musical compositions. An individual
who possessed such a copyright had the exclusive authority
to sell copies of the musical score; individuals who
purchased such a copy did so for the most part to play the
composition at home on a piano or other instrument. Between
1831 and 1909, numerous machines were invented
which allowed the composition to be reproduced mechanically.
For example, one had only to insert a piano roll
or disc with perforations in appropriate places into a player
piano to achieve almost the same results which previously
required someone capable of playing the instrument. The
mounting sales of such devices detracted from the value of
the copyright granted for the musical composition. Individuals
who had use of a piano roll and an appropriate
instrument had little, if any, need for a copy of the sheet
GOLDSTEIN v. CALIFORNIA 565
546 Opinion of the Court
music.19 The problems which arose eventually reached
this Court in HJ08 in the case of White-Smith Music
Publishing Co. v. Apollo Co., 209 U. S. 1. There, the
Apollo Company had manufactured piano rolls capable
of reproducing mechanically compositions covered
by a copyright owned by appellant. Appellant contended
that the piano rolls constituted "copies" of the
copyrighted composition and that their sale, ·without permission,
constituted an infringement of the copyright.
The Court held that piano rolls, as well as records, were
not "copies" of the copyrighted composition, in terms
of the federal copyright statutes, but were merely component
parts of a machine which executed the composition.
20 Despite the fact that the piano rolls employed
the creative work of the composer, all protection was
denied.
It is against this background that Congress passed the
1909 statute. After pointedly waiting for the Court's
decision in White-Smith Music Publishing Co.,21 Congress
determined that the copyright statutes should
be amended to insure that composers of original musical
works received adequate protection to encourage further
artistic and creative effort. Henceforth, under § 1 (e),
19 H. R. Rep. >l'o. 7083, 59th Cong., 2d Sess., pt. 2, p. 2 (1907)
(Minority Report).
20 "After all, what is the perforated roll? The fact is dearly
established in the testimony in this case that even those skilled in
the making of these rolls are unable to read them as musical compositions,
as those in staff notation are read by the performrr ....
"These perforated rolls arc parts of a machine which, whrn dul?
~pplicd and properly operated in connection with the mechanism
to which they are adapted, produce musical tones in harmonious
combination. But we cannot think 1 hat they are copies within the
meaning of the copyright act." White-Smith 1\iusic Publishing Co.
"· Apollo Co., 209 U. S. 1, 18 (1908).
"H. R. Rep. No. 7083, supra, n. 19, pt. 1, at 10; pt. 2, at 3-4.
566 OCTOBER TERl\1, 1972
Opinion of t hP Court 412 U.S.
records and piano rolls v,:ere to be considered as "copies''
of the original composition they were capable of reproducing,
and could not be mallufactured unless pa.yrnent
was made to the proprietor of the composition copyright.
The section of the Housr Report rited by pPtitioners was
intended only to estabfo:h the limits of the composer's
right; composers were to have no control over the recordings
themselves. ~owherP does the report indicate
that Congress considered records as anything but a component
part of a machine, ca1)able of reproducing an original
composition 22 or that Congress intended records, as
renderings of original artistic performance, to be free from
state control.23
22 This is rspecially clear from the rommrut made by the Committee
on Patent~ in regard to a forrign statutr which, to somP
extent, proterted pnforma111'Ps. The committrr stated that the for-
( ign ~tatute "in no way afferts the reproduction of ~urh music by
phonograph•, graphophonc,-, or the ordinary piano-playing instruments,
for in the~e instrnmcnts t.hr reproduction i~ purely merhanical."
H. R. Rep. ~o. 2222, supra, 11. 12, at 5.
23 PPtitioners do not ar_gue that § 653h ronflicts with that portion
of 17 U. :--. C. § 1 (e) which provides:
"[W]henever the own<>r of a musical copyri_ght has u~Pd or pcrmittrd
or knowmgly acquiesced in the use of thr copyrighted work
upon the parts of instruments srrving 1o reproducp merhanically the
mu0 ira! work, any other person may make ;;imilar 11~r of 1he copyrighted
work upon thr payment to tll<' copyright proprietor of a
royalty of 2 cents on carh such part man11factured .... "
Assuming, argurndo, that pPtitioners' use of 1he composition they
duplicatrd constitutes a "iaimilar use," the rhallenged state statute
might br claimed to dimini,-h the return whirh ii- due the composer
by lessening the number of copies produrcd, and thus to conflict
with § 1 (c). However, as we have noted abov<', thr means presently
availablP for reproduring n·rording:s were not in existence in
1909 when 17 U. ~- C. § 1 (e) was passed. We se<> no indication that
the challenged i:;tate statute detrart~ from royalties which C'ongrPss
intended the compo~er to receive. Furthermore, many ,;tatr fita1 utes
may diminish the number of copies produced. Taxing statutes, for
GOLDSTEI~ v. CALIFORNIA 567
546 Opinion of the Court
Petitioners' argument does not rest entirely on the
belief that Congress intended specifically to exempt recordings
of performances from state control. Assuming
that no such intention may be found, they argue that
Congress so occupied the field of copyright protection
as to pre-empt all comparable stat€ action. Rice v.
Santa Fe Elevator Corp., 331 lT. S. 218 (1947). This
assertion is based on the language of 17 lT. S. C.
§§ 4 and 5, and on this Court's opinions in Sears, Roebuck
& Co. v. Stiff el Co., 376 U. S. 225 ( 1964), and
Compco Corp. v. Day-Brite Lighting, 376 U. S. 234
(1964).
Section 4 of the federal copyright laws provides:
"The works for ,vhich copyright may be secured
under this title shall include all the writings of an
author.'' 17 U. S. C. § 4.
Section 5, which lists specific categories of protected
works, adds:
"The above specifications shall not be held to limit
the subject matter of copyright as defined in section
4 of this title .... " 17 U.S. C. §5.
Since § 4 employs the constitutional term "writings," 2•
it may be argued that Congress intended to exercise its
authority over all works to which the constitutional provision
might apply. However, in the more than 60 years
which have elapsed since enactment of this provision,
neither the Copyright Office, the courts, nor the Congress
ha.s so interpreted it. The Register of Copyrights,
example, may raise thr coBt of producing or selling records and
thereby lessen the number of records which may be sold or inhibit
new companies from entering this field of commerce. \Ve do 11ot
see in these statutes the direct conflict necessary to remln a state
statute invalid.
24 11. R. Rep. :No. 2222, supra, n. 12, a1 10.
568 OCTOBER TERM, 1972
Opinion of the Court 412 u. s.
who is charged with administration of the statute, has
consistently ruled that "claims to exclusive rights in
mechanical recordings ... or in the performances they
reproduce" are not entitled to protection under § 4. 37
CFR § 202.8 (b) (1972).2
" With one early exception,2°
American courts have agreed with this interpretation; 21
and in 1971, prior to passage of the statute which extended
federal protection to recordings fixed on or after
February 15, 1972, Congress acknowledged the validity of
that interpretation. Both the House and Senate Reports
on the proposed legislation recognized that recordings
qualified as ",vritings" within the meaning of
the Constitution, but had not previously been protected
under the federal copyright statute. H. R. Rep. No.
92-487, pp. 2, 5 (1971); S. Rep. No. 92-72, p. 4 (1971).
In light of this consistent interpretation by the courts,
the agency empowered to administer the copyright stat-
25 The regi~tration of records under the provisions of the 1909 Act
would give rise to numerous administrative difficulties. It is difficult.
to discern how an individual who wished to copyright a record could
comply with the notice and deposit provisions of the statute. 17
U. S. C. §§ 12, 13, 19, 20. Kor is it dear to whom the copyright
could rightfully be issued or what constituted publication. Finally,
the administrative and economic burden of classifying and maintaining
copies of records would have been considerable. Sec Cha.fee,
Reflections on the Law of Copyright; TI, 45 Col. L. Rev. 719, 735
(1945); Ringer, The Unauthorized Duplication of Sound Recordings,
Studies Prepared for the Subcommittee on Patents, Trademarks, and
Copyrights of the Senate Committee on the Judiciary, 86th Cong.,
2d Sess., 2 (comm. print 1961); He,arings on S. 646 and H. R. 6927
supra, n. 5, at 11, 14.
2 ,; Fonotipia, Ltd. v. Bradley, 171 F. 951, 963 (EDNY 1909).
27 Aeolian Co. v. Royal Music Roll Co., 196 F. 926, 927 (WDNY
1912); Waring v. WDAS Broadcasting Station, 327 Pa. 433, 437-438,
194 A. 631, 633- 634 (1937); Capitol Records, Inc. v. Mercury Records
Corp., 221 F. 2d 657, 661-662 (CA2 1955) ; Jerome v. Twentieth
Century Fox-Film Corp., 67 F. Supp. 736, 742 (SDNY 1946).
GOLDSTEIN v. CALIFORNIA 569
546 Opinion of the Court
utes, and Congress itself, we cannot agree that§§ 4 and 5
have the broad scope petitioners claim.
Sears and Compco, on which petitioners rely, do not
support their position. In those cases, the question was
whether a State could, under principles of a state unfair
competition law, preclude the copying of mechanical
configurations which did not possess the qualities required
for the granting of a federal design or mechanical patent.
The Court stated:
"[Tlhe patent system is one in which uniform federal
standards are carefully used to promote invention
while at the same time preserving free competition.
Obviously a State could not, consistently
with the Supremacy Clause of the Constitution,
extend the life of a patent beyond its expiration
date or give a patent on an article which lacked the
level of invention required for federal patents. To
do either would run counter to the policy of Congress
of p;ranting patents only to true inventions, and
then only for a limited time. Just as a State cannot
encroach upon the federal patent laws directly,
it cannot, under some other law, such as that forbidding
unfair competition, give protection of a kind
that clashes with the objectives of the federal patent
laws." Sears, Roebuck & Co. v. Stifjel Co., 376
U. S., at 230- 231 (footnotes omitted).
In regard to mechanical configurations, Congress had
balanced the need to encourage innovation and originality
of invention against the need to insure competition in
the sale of identical or substantially identical products.
The standards established for granting federal patent
protection to machines thus indicated not only which
articles in this particular category Congress wished to
protect, but "vhich configurations it wished to remain
free. The application of state law in these cases to pre570
OCTOBER TERM, 1972
Opinion of the Court 412U. S.
vent the copying of articles v.-hich did not meet the requirements
for federa.l protection disturbed the careful
balance which Congress had drawn and thereby necessarily
gave way under the Supremacy Clause of the Constitution.
No comparable conflict between state law
and federal law arises in the case of recordings of musical
performances. In regard to this category of ""Writings,"
Congress has drawn no balance; rather, it has left the
area unattended, and no reason exists why the State
should not be free to act.28
IV
More than 50 years ago, Mr. Justice Brandeis observed
in dissent in International .\Tews Service v. Associated
Press:
"The general rule of law is, that the noblest of
human productions-knowledge, truths ascertained,
conceptions, a.nd ideas--becornc, after voluntary
communication to others, free as the air to common
use." 248 U. S. 215, 250 (1918).
But there is no fixed, immutable line to tell us which
"human productions" are private property and which
are so general as to become "free as the air." In earlier
times, a performing artist's work was largely restricted
to the stage; once performed, it remained "recorded"
only in the memory of those who had seen or heard it.
Today, we can record that performance in precise detail
28 Prtitioners place great stre.'!s on their bf.'licf that the records or
tapes which they copied had been "published." We have no need
to determine whether, under state lau:, these recordings had been published
or what legal consequences suC'h publication might have. For
pur7Joses of federal, law, "publication" serves only as a term of the
art which defines the legal relationships which Congress has adoptC'd
und('r the federal copyright statutes. As to categories of writings
which Congress has not brought within the scope of the federal
statute, the term has no application.
GOLDSTEIN v. CALIFORNIA 571
546 Opinion of the Court
and reproduce it again and again with utmost fidelity.
The California statutory scheme evidences a legislative
policy to prohibit "tape piracy" and "record piracy," conduct
that may adversely affect the continued production
of new recordings, a large industry in California. Accordingly,
the State has, by statute, given to recordings the
attributes of property. No restraint has been placed on
the use of an idea or concept; rather, petitioners and
other individuals remain free to record the same compositions
in precisely the same manner and with the same
personnel as appeared on the original recording.
In sum, we have shown that § 653h does not conflict
with the federal copyright statute enacted by Congress
in 1909. Similarly, no conflict exists between the federal
copyright statute passed in 1971 and the present application
of § 653h, since California charged petitioners only
with copying recording-s fixed prior to February 15, 1972.20
Finally, we have concluded that our decisions in Seai·s
and Compco, which we reaffirm today, have no application
in the present case, since Congress has indicated
neither that it wishes to protect, nor to free from protection,
recordings of musical performances fixed prior to
February 15, 1972.
We conclude that the State of California has exercised
a power which it retained under the Constitution, and
that the challenged statute, as applied in this case, does
not intrude into an area which Congress has, up to now,
pre-empted. Until and unless Congress takes further
action with respect to recordings fixed prior to February
15, 1972, the California statute may be enforced
against acts of piracy such as those which occurred in
the present case.
Affirmed.
20 Supra, at ,551-552.
572 OCTOBER TER).'1, 1972
Doi:GLAS, J., dissenting 412 u. s.
MR. JusTICE DoGGLAS, with whom MR. JusTICE BRENNAN
and MR. JusTICE BLACKMGN concur, dissenting.
Article I, § 8, cl. 8, of the Constitution provides:
"The Congress shall have Power ... [t]o promote
the Progress of Science and useful Arts, by
securing for limited Times to Authors and Inventors
the exclusive Right to their respective Writings and
Discoveries."
Madison made a brief comment on this provision
governing both patents and copyrights:
"The States cannot separately make effectual provision
for either of the cases, and most of them
have anticipated the decision of this point, by laws
passed at the instance of Congress." 1
We have been faithful to that admonition. In Sears
Roebuck & Co. v. Stiff el Co., 376 U. S. 225, 230--231, we
said:
"Thus the patent system is one in which uniform
federal standards are carefully used to promote invention
while at the same time preserving free competition.
Obviously a State could not, consistently
with the Supremacy Clause of the Constitution, extend
the life of a patent beyond its expiration date
or give a patent on an article which lacked the level
of invention required for federal patents. To do
either would run counter to the policy of Congress
of granting patents only to true inventions, and then
only for a limited time. Just as a State cannot
encroach upon the federal patent laws directly, it
cannot, under some other law, such as that forbidding
unfair competition, give protection of a kind
1 The Federalist No. 43, p. 309 (B. Wright ed. 1961).
546
GOLDSTEIN v. CALIFORNIA 573
DouGLAS, J., dissenting
that clashes with the objectives of the federal pa.tent
laws."
An unpatentable article is "in the public domain and
may be made and sold by whoever chooses to do so."
Id., at 231. In that case we did not allow a State to use
its unfair competition law to prevent copying of an article
·which lacked such novelty that it could not be
patented. In a companion case, Compco Corp. v. Day-
Brite Lighting, 376 U.S. 234, 237, where an unfair competition
charge was made under state law, we made the
same ruling, stating:
"Today we have held in Sears, Roebuck & Co. v.
Stifjel Co., supra, that when an article is unprotected
by a patent or a copyright, state law may not
forbid others to copy that article. To forbid copying
would interfere with the federal policy, found
in Art. I, § 8, cl. 8, of the Constitution and in the
implementing federal statutes, of allowing free access
to copy whatever the federal patent and copyright
laws leave in the public domain."
Prior to February 25, 1972, copyright protection was
not extended to sound recordings. Sears and Compco
make clear that the federal policy expressed in Art. I,
§ 8, cl. 8, is to have "national uniformity in patent and
copyright laws," 376 U. S., at 231 n. 7, a policy bolstered
by Acts of Congress which vest "exclusive jurisdiction to
hear patent and copyright cases in federal courts ... and
that section of the Copyright Act which expressly saves
state protection of unpublished writings but does not include
published writings." Ibid.
Prior to February 15, 1972,2 sound recordings had no
2 The effective date of Pub. L. 92-140, 85 Stat. 392.
574 OCTOBER TERM, 1972
DouGLAs, J., dissenting 412 u. s.
copyright protection. And even under that Act the
copyright would be effective "only to sound recordings
fixed, published, and copyrighted on and after the effective
date of this Act [Feb. 15, 1972] and before January
1, 1975." 3
California's law promotes monopoly; the federal policy
promotes monopoly only when a copyright is issued,
and it fosters competition in all other instances. Moreover,
federal law limits its monopoly to 28 years plus a
like renewal period,4 while California extends her monopoly
into perpetuity.
Cases like Sears were surcharged with "unfair competition"
and the present one with "pirated recordings."
But free access to products on the market is the consumer
interest protected by the failure of Congress to extend
patents or copyrights into various areas. The drive for
monopoly protection is strong as is evident from a reading
of the committee reports on the 1971 Act.5 Yet, Congress
took but a short step, setting up a trial period to
consider the new monopoly approach. It was told that
state laws, such as we have in this case, were being challenged
on the ground that the Federal Constitution had
pre-empted the field, even in absence of a provision for
making it possible to obtain a copyright for sound recordings.
But the House Committee made only the
following comment:
"While the committee expresses no opinion concerning
this legal question, it is clear that the extension
of copyright protection to sound recordings would
resolve many of the problems which have arisen in
3 Jd. , §3.
• 17 U. S. C. § 24.
"H. R. Rep. No. 92- 487; S. Rep. No. 92-72.
546
GOLDSTEIN v. CALIFORNIA 575
Dot:-GLAB, J., dissenting
connection with the efforts to combat piracy in State
courts." 6
The Department of Justice in commenting on the proposals
that resulted in the 1971 Act told the House:
"\Ve believe that extending copyright to reprouuction
of sound recordings is the soundest, and in our
interpretation of Sears and Compco, the only_ way
in which sound recordings should be protected.
Copyright protection is narrowly defined and limited
in duration, whereas state remedies, whose validity
is still in doubt, frequently create broad and umvarrante<
l perpetual monopolies. Moreover. there is
an immediate and urgent need for this protection."·
The need for uniformity was stated by Judge Learned
Hand in a dissent in Capitol Records, Inc. v. Mercury
Records Corp., 221 F. 2d 657. That case involved the
duplication of uncopyrighted sound recordings, the court
holding that state law prevailed where there was no
federal copyright provision. Judge Hand emphasized in
his dissent that "uniformity" was one of the principal
purposes of the Patent and Copyright Clause and that
uniformity could be obtained only by pre-emption. He
said:
"If, for example in the case at bar, the defendant
is forbidden to make and sell these records in N e,v
York, that will not prevent it from making and
selling them in any other state which may regard
the plaintiff's sales as a 'publication'; and it will be
practically impossible to prevent their importation
into New York. That is exactly the kind of evil at
which the clause is directed." Id., at 667.
I would reverse the judgment below.
6 H. R. Rep., supra, n. 5, at 3.
• Id., at 13.
576 OCTOBER TERM, 1972
MARSHALL, .J., dissenting 412 U.S.
MR. JusTICE MARSHALL, with whom Mn. JUSTICE
BRENNAN and MR. JesTICE BLACKMUN join, dissenting.
The argument of the Court, as I understand it, is this:
Art. I, § 8, cl. 8, of the Constitution gives Congress
the power " [ t] o promote the Progress of Science and useful
Arts, by securing for limited Times to Authors and
Inventors the exclusive Right to their respective Writings
and Discoveries." The Framers recognized that
individual States might have peculiarly local interests
that Congress might not consider worthy of attention.
Thus, the constitutional provision does not, of its own
force, bar States from promoting those local interests.
However, as the Court noted in Sears, Roebuck & Co. v.
Stiff el Co., 376 U. S. 225 (1964), with respect to every
particular item within general classes enumerated in
the relevant statutes, Congress had balanced the need
to promote invention against the desire to preserve free
competition, and had concluded that it was in the national
interest to preserve competition as to every item
that could not be patented. That is, the fact that some
item could not be patented demonstrated that, in the
judgment of Congress, it was best to let competition in
the production of that item go unrestricted. The situation
with regard to copyrights is said to be similar. There
Congress enumerated certain classes of works for which a
copyright may be secured. 17 U. S. C. § 5. Its silence
as to other classes does not reflect a considered judgment
about the relative importance of competition and promotion
of "Science and useful Arts." Thus, the Court says,
the States remain free to protect as they ·will "writings"
not in the enumerated classes, until Congress acts. Since
sound recordings fixed prior to February 15, 1972, were
not enumerated by Congress as subject to copyrighting,1
the States may protect such recordings.
1 Sound recordings fixed after that date may be copyrighted.
Pub. L. 92-140, 8,5 Stat. 391, 17 U.S. C. § 5 (n) (1970 ed., Supp. I).
GOLDSTET"N v. CALIFORNIA 577
546 MAnSHALI,, .T., dissenting
With respect, I cannot accept the final step of this
argument. In my view, Congress has demonstrated its
desire to exercise the full grant of constitutional pmver.
Title 17 U. S. C. § 4, states: "The works for which
copyright may be secured under this title shall include
all the writings of an author" ( emphasis added). The
use of the constitutional terms "writings" and "author"
rather strongly suggests that Congress intended to follow
the constitutional grant. It could exercise the po,ver
given it by the Constitution in two ways: either by
protecting all writings, or by protBcting all writings within
designated classes and leaving open to competition all
writings in other classes. Section 5 shows that the latter
course ,vas chosen, for it enumerates various classes of
works that may be registered.2 Ordinarily, the failure
to enumerate "sound recordings" in § 5 ,vould not be
taken as an expression of Congress' desire to let free
competition reign in the reproduction of such recordings,
for, because of the realities of tho legislative process, it
is generally difficult to infer from a failure to act any
affirmative conclusions. Cf. Cleveland v. United States,
329 U.S. 14, 22 (1946) (Rutledge, J., concurring). But
in Sears and its companion case, Compco Corp. v. Day-
Brite Lighting, 376 U. S. 234 ( 1964), the Court determined
that with respect to patents and copyrights,
the ordinary practice was not to prevail. In view of the
importance of not imposing unnecessary restraints on
competition, the Court adopted in those cases a rule of
construction that, unless the failure to provide patent
2 From the language of § 4 and the proviso of § 5, it could be
rather strongly argued that Congress had intended to afford protection
to every writing. I agree with the Court, however, that the
consistent administrative interpretation of those sections, in conjunction
with the practical difficulty of applying to novel cases certain
statutory requirements, like that requiring placement of the notice
of copyright on every copy, 17 U. S. C. § 10, precludes such an
argument.
578 nCTOBER TER:\1, 1972
i\lARsHALI,, J., dissentinf( 412 l'. 8.
or copyright protection for some class of works could
clearly be shown to reflect a judgment that state regulation
was permitted, the silence of Congress would be
taken to reflect a judgment that free competition should
prevail. I do not find in Sears and Compco a limitation
on that rule of construction to general classes that Conp;
ress ha,; enumerated although, of cour8€', on the facts
of those cases only items in such classes were involved;
rather, the broadest language was used in those cases.3
Nor can I find in the course of legislation sufficient evidence
to convince me that Congress determined to permit
state regulation of the reproduction of sound recordings.
For, whenev<'r technological advances made extcm;ion of
copyright protertion seem wise, Congress has acted
promptly. See ante, at 562-563, n. This seems to
me to reflect the same judgment that the Court found in
3 It be:i,r~ noting that m Sears, llofbttck &: Co. v. Stiffd C'o., 37(i
F S. 225 (1964), thr Court repeatedly rdrrrrd to the patent and
ropyright 1-tatutcs a~ if the ~amr rules of interprt>tation applied to
both. Set>, c. (]., id., at 22", 231 n. 'i; Compcu Corp. "· Day-Brite
Lighting, 376 F. S. 234, 237 (1964).
• Between 1909 and 1951, Congress' attention wa~ repeatedly
drawn to problrms of copyrigbtin11: sound recording.,. l\Iany bills to
provide copyright protrrtion for such recordings wen' introduced, but
none were enacte<l. ~ct> Ringer, The Unauthorizrd Duplication of
Sound Rccordinii;~, Rtudies Prepared for the Subcommittee on
Patent.,, Tradf'marb, and Copyright;, of the Senate Committee
on thr Judiciary. 86th Cong., 2d Ses~., 21-37 (Comm. Print
1961). Respondent. arguC'R that Congress failed to enact thecie bills
primarily out of uncertainty about the rrlation:-hip between frdrra1
law and international copyright convention~, and was comfortr<l in
the knowledge that protection was availablr under state law. See
BriPf for Respondent 2X-32. Howewr, it i;. ('UOUl!;h that Co11grrs:;
was aware of the problrm, and could have acted, as it did when other
trclmological innovations presented new probkms, rat her exprditiously.
The problems that Congress confronted in 1971 did not
sprmg up in 1970, but had existrd, and Congres., had not acted, for
many years before.
GOLDSTErN v. CALIFORNIA 579
546 MARSHALL, .T., dissenting
Sears and Compco: Congress has decided that free competition
should be the general rule, until it is convinced
that the failure to provide copyright or patent protection
is hindering "the Progress of Science and useful Arts."
The business of record piracy is not an attractive one;
persons in the business capitalize on the talents of others
without needing to assess independently the prospect of
public acceptance of a performance. But the same might
be said of persons who copy "mechanical configurations."
Such people do provide low-cost reproductions that may
well benefit the public. In light of the presumption of
Sears and Compco that congressional silence betokens a
determination that the benefits of competition outweigh
the impediments placed on creativity by the lack of copyright
protection, and in the absence of a congressional
determination that the opposite is true, we should not
let our distaste for "pirates" interfere with our interpretation
of the copyright laws. I would therefore hold
that, as to sound recordings fixed before February 15,
1972, the States may not enforce laws limiting
reproduction.
580 OCTOBER TERM, 1972
Syllabus 412 P. S.
rNITED STATES v. LITTLE LAKE MI8ERE
LA::\fD C'O., I~C.. ET AL.
CERTIORARI TO THE UNITED STATES corRT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 71-1459. Argued January 15-16, 1973-De<>ided June 18, 1973
Pursuant to the Migratory Bird Conservation Act, the United ~tatcs
acquired land parcels in Louisiana for a wildlife refuge, one by
deed in 1937, thl' other by condemnation in 1939. :Mineral rights
were rt>served to thr respondent former owners for a period of
10 years, s11bjert to exten~ion if certain detailt'd exploration and
production conditions were met, after which complete fee title
was to vest in the llnited States. The 10-year period expired
without the extension conditions being met. Respondt>nts continued
to claim the mineral rights, relying on Loui~iana Art 315 of
1940, which, as applied retroactively, provides that mineral rights
re;;en·ed in land conveyances to the United ::-{tate~ ~hall be "imprescriptiblt>,"
thus, in effect, extending indefinitl'ly the former
owners' mineral re,ervations. The Government broug:ht thi:s suit
to quiet title. The District Court entered summary judgment for
the respondents, concluding that Leiter .\1inerals, Inc. \'. Gnited
States, 329 F. 2d 85, was dispositive of thr is~urs, notwith!'-tanding
that that judgment had been vacated by this Court and the
case remanded with instructions to dismiss the complaint as moot.
The Court of Appeals affirmed. Held: Under settlrd prinriples
~overning the choice of law by federal court::-, Louisiana's Art
315 of 1940 does not apply to the mineral reservations agreed to
by the partie~ in 193i and 1939. Pp. 590-604.
(a) Herr, where the land acqui~ition to which the lTnitrd States
is a party arises from and bears heavily upon a fedE'ral rr~ulatory
progrnm, thP rhoirP-of-law task is a frdernl one for federnl ronrtt-,
as <lefinr<l by ClParfield Trust Co. v. Cnited States, 315 F. S. 363.
Pp. 590-593.
(b) Absence of a provision dealing with choire of law in the
Migratory Bird Conservation Act does not limit thr rearh of
federal law, as interstitial fE'deral lawmaking is a basic responsibility
of the fE'dt>ral courts. P. 593.
( r) Even assuming that the established body of state proprrty
law should gE'nerally govern fedt>rnl land acquisitions, Art 315,
UNITED STATES v. LITTLE LAKE MISERE LAND CO. 581
580 Syllabus
as retroactively applied, may not, because in determining the
appropriateness of "borrowing" state law, specific aberrant or
hostile state rules do not provide appropriate standards for federal
law. Under Act 315 land acquisitions expliritly authorized
by federal statute are made subject to a rule of retroactive imprescriptibility,
a rule plainly hostile to the United States, and
one that deprives the United States of bargained-for contractual
interests. Pp. 594-597.
(d) To permit state legislation to abrogate the explirit term~
of a prior fcdrral land acquisition would seriou~ly impair frdnal
statutory programs and the certainty and finality that are indispensable
to land t ransactions. Pp. 597-599.
(e) Act 315, as applied retroactively, serves no legitimate and
important state interests the fulfillment of which Congress might
have contl'mplated through application of "borrowed" state law.
Pp. 599-601.
(f) In 1937 and 1939, the Government could not anticipate that
the mineral reservations in issue might be characterized, under
present Louisiana law, as indefinite in duration and freely revocable.
A late-crystallizing state law dortrine may not modify t he
clear and explicit contractual expectations of the United States.
Pp. 602-603.
(g) As it is clear that Act 315 does not apply here, it is not
necessary to choose between '·borrowing" some residual state rule
of interpretation or formulating an independent federal "common
law" rule; neither rule is the law of Louisiana, yet either rule
resoh'es this dispute in the Government's favor. Pp. 603-604.
453 F. 2d 360, reversed and remanded.
BURGER, C. J., delivered the opinion of the Court, in which
DOUGLAS, BREKNAK, vVHITE, MARSHALL, BLACKMUN, and PoWELL,
.LT., joined. STE,VART, J., post, p. 605, and REHNQUIST, J., post, p.
606, filed opinions concurring in the judgment.
William Bradford Reynolds argued the cause for the
United States. With him on the briefs were Solicitor
General Griswold, Assistant Attorney General Frizzell,
Deputy Solicitor General Wallace, and Edmund B. Clark.
Austin W. Lewis argued the cause for respondents.
With him on the brief was Gene W. Lafitte.
582 OCTOBER TERM, 1972
Opinion of the Court 412 u. s.
MR. CHIEF JrsTICE Bu-RGER delivered the opinion of
the Court.
\Ve granted the \Vrit in this case to consider whether
state la\v may retroactively abrogate the terms of written
agreements made by the -Cnited States when it acquires
land for public purposes explicitly authorized by Congress.
The United States initiated this litigation in 1969
in the United States District Court for the Western
District of Louisiana, seeking to quiet title to two adjacent
parcels of land in Cameron Parish, Louisiana,
which the Government had acquired pursuant to the
Migratory Bird Conservation Act, 45 Stat. 1222, 16 U.S. C.
§ 715 et seq., as part of the Lacassine Wildlife Refuge.1
Title to one parcel was acquired by the United States by
purchase on July 23, 1937; to the other parcel by a judgment
of condem11ation entered August 30, 1939. Both the
1937 act of sale and the 1939 judgment of condemnation
reserved to the respondent Little Lake Misere oil, gas, sulphur,
and other minerals for a period of 10 years from the
date of vesting of title in the United States.2 The reser-
1 The United States brought two separate suits for this purpose
under 28 U. S. C. § 1345, which were consolidated by consent pursuant
to Fed. Rule Civ. Proc. 42 (a).
"In Frost-Johnson Lumber Co. v. Salling's Heirs, 150 La. 756,
91 So. 207 ( 1922), the Louisiana Supreme Court declined to recognize
a perpetual "mineral estate" in Louisiana lands, transferable
independently of the overlying surface property. Instead, the
Louisiana Supreme Court declared that "oil and gas in place are
not subject to absolute ownership as spe<"1fic things apart from the
soil of which they form part," id., at 858, 91 So., at 243, and that
sale or reservation of mineral rights affords no more than a right to
go on the land to search for and reduce to possession all minerals
found. 2 A. Yiam1opoulos, Lou18iana Civil Law Treatise, Property
§ 99 (1967); H. Daggett, l\lincral Rights in Louisiana § 1 (Rev. ed.
1949). Sec generally Hardy, The Birth of Louisiana Mineral Law,
16 Loyola L. Rev. 299 (1970). Since Frost-Johnson, "[s]ale and
UNITED STATES v. LITTLE LAKE MISERE LAND CO. 583
580 Opinion of the Court
vation was to continue in effect "as long [after the initial
ten-year period] as oil, gas, sulphur or other mineral is
produced ... or so long thereafter as [respondents] shall
conduct drilling or reworking operations thereon with no
cessation of more than sixty (60) days consecutively
until production results; and, if production results, so
long as such mineral is produced." The deed and the
judgment of condemnation further recited that. at the end
of IO years or at the end of any period after 10 years
during which the above conditions had not been met,
"the right to mine, produce and market said oil, gas,
sulphur or other mineral shall terminate . . . and the
complete fee title to said lands shall thereby become
vested in the United States."
The parties stipulated, and the District Court found,
that as to both the parcels in issue here, no drilling, re-
,vorking, or other operations were conducted and no minerals
\vere obtained for a period of more than 10 years
following the act of sale and judgment of condemnation,
respectively. Thus, under the terms of these instruments,
fee title in the United States ripened as of 1947
and 1949, respectively-IO years from the dates of creareservation
of mineral right~ have been almost consistently classified
as scrvitudrs." Yiannopoulos, supra, § 62, at 183; Daggett, supra,
§ 2.
"Pre~cription" or rxpiration of thr remedy to protect a mineral
servitude will O<'CUr at the end of 10 years from thr datf' of rre::ition,
if the servitude is not maintained during that time in arc-ordance
with complex requircmrnt~ for use or arknowlcdgmrnt. Thr parties
may not extend the 10-year period of prescription by advance agreement,
see Art. a4GO, La. Ci,·. Code Ann.; Hightower v. Jfaritzky,
194 La. 998, 1006-1007, 195 So. 518, 520-521 (1940). HoweYer, the
parties are not barred from agreeing to a period of rontrartual prescription
shorter than 10 yeni"s. )raborB, The Loui~i[lnft Mineral
Servitude and Royalty Doctrines: A Report to tlH' .Mineral Lnw
Committee of thr Louisi;,n:i State Law Institute, 25 Tu!. L. Rev. 155,
176-177 (1951).
584 OCTOBER TERM, 1972
Opinion of the Court 412 u. s.
tion. In 19-55, the United States issued oil and gas leases
applicable to the lands in question.
Respondents, however, continued to claim the mineral
rights and accordingly entered various transactions purporting
to dispose of those rights. Respondents relied
upon Louisiana Act 315 of 1940, La. Rev. Stat.§ 9:5806 A
(Supp. 1973). which provides:
"When land is acquired by conventional deed or
contract, condemnation or expropriation proceedings
by the United States of America, or any of its subdivisions
or agencies from any person, firm or corporation,
and by the act of acquisition, order or judgment,
oil, gas or other minerals or royalties are reserved,
or the land so acquired is by the act of acquisition
conveyed subject to a prior sale or reservation
of oil, gas or other minerals or royalties, still in
force and effect, the rights so reserved or previously
sold shall be imprescriptible."
Respondents contended that the 1940 enactment rendered
inoperative the conditions set forth in 1937 and
1939 for the extinguishment of the reservations. The
District Court concluded that the Court of Appeals'
prior decision in Leiter Minerals, Inc. v. United States, 329
F. 2d 85 (CA5 1964), required resolution of this case
in favor of respondents, notwithstanding that we had
vacated the Court of Appeals' judgment in Leiter Minerals
and remanded with instructions to dismiss the
complaint as moot. 381 U. S. 413 ( 1965). The Court
of Appeals affirmed, for the reasons stated in its Leiter
Minerals holding. It rejected the Government's Contract
Clause and Supremacy Clause objections on the
authority of United States v. Nebo Oil Co., 190 F. 2d
1003 (CA5 1951), and further rejected the Government's
argument that Act 315 was unconstitutionally discriminatory
against the United States. The Court of Appeals
UNITED STATES v. LITTLE LAKE MISERE LAND CO. 585
580 Opinion of the Court
observed "that the same principle applies to acquisitions
by the State of Louisiana [La. Rev. Stat. § 9 :5806 BJ, and
that the act really does nothing more than place citizens
of Louisiana in the same position as citizens of other
states whose land has been purchased or condemned by
the United States." 453 F. 2d 360, 362 (1971). We
reverse.
I
Litigation involving Act 315 began more than a quarter
century ago. The Leiter Minerals case, upon which the
Court of Appeals based its decision in this case, is only
the principal holding in the area. The first case to arise
involving Act 315, Whitney Nat. Bank v. Little
Creek Oil Co., grew out of a 1932 sale of mineral rights
that specified a IO-year period of prescription. The
surface property was conveyed to the United States in
1936, subject to the 1932 mineral sale, and in 1947 the
question arose whether Act 315 of 1940 had the effect of
extending indefinitely the servitude created by the
1932 sale. The Louisiana Supreme Court held that
Act 315 of 1940 was fully applicable to the 1936 transaction-"
not because there is anything in the terms of
the statute to indicate that it was intended to have a
retroactive application, but because of the general rule
of law established by the jurisprudence of this court
that laws of prescription and those limiting the time
within which actions may be brought are retrospective in
their operation." 212 La. 949, 958, 33 So. 2d 693, 696
(1947).0 The court acknO\vledged the contention that if
' Louisiana law distinguishes between prescription and "peremption."
The .Louisiana Supreme Court has explained the distinction
in the following terms: "'When a statute creates a right of action,
and stipulates the delay within which that right is to be executed,
the delay thus fixed is not, properly speaking, one of prescription,
but it is one of peremption. Statutes of prescription simply bar the
586 OCTOBER TER:\-I, 1972
Opinion of the Court 412 U.S.
Act 315 were applied retroactively, it might be unconstitutional,
but dismissed the constitutional issue without
resolving it for failure to join the United States, a necessary
party.
Whitney Bank set the stage for the first federal court
test of Act 315, as construed to have retroactive application,
in United States v. Nebo Oil Co., supra,
aff'g 90 F. Supp. 73 (WD La. 1950). There the
1:nited States brought suit against Nebo Oil (the
successor to the 1932 mineral purchaser of the Whitney
Bank case) to secure a declaratory judgment that the
United States owned the acreage it purchased in 1936
subject only to the 10-year rule of prescription specified
at the time of the original 1932 sale of mineral
rights. But the Court of Appeals upheld the application
of Act 315 to the previously consummated transaction,
stressing that reversionary estates are unknown
in Louisiana law and that, as a result, the United States
in 1936 took "nothing more than a mere expectation, or
hope, based upon an anticipated continuance of the applicable
general laws . . . . [This] mere expectancy ...
cannot be regarded as a vested right protected by the
Constitution." 190 F. 2d, at 1008-1009.4
remedy. Statutes of percmption destroy the cause of action itself.
That is to say, after the limit of time expires the cause of action
no longer exists; it is lost.'" Brister v. Wray Dickinson Co., Inc.,
183 La. 562, 565, 164 So. 415, 416 (1935), cited in United States v.
Nebo O'tl Co., 90 F. Supp. 73, 80 (WD La. 1950). Because statutes of
prescription are considered "remedial" the Louisiana courts have
generally held that such statutes arc applicable to causes of action
which arose before the statute was enacted. United States v. Nebo
Oil Co., supra, at 81- 82, and cases cited.
• The Court of Appeals also emphasized that officials of the Department
of Agriculture had represented to the Government's vendor
that "the prescriptive provisions of the Louisiana Civil Code would
not apply to lands sold to the United States for national forest purposes."
190 F. 2d 1003, 1005. The Court of Appeals noted that the
UNITED STATES v. LITTLE LAKE 11ISERE LAND CO. 587
580 Opinion of the Court
In the Leiter Minerals litigation, retrospective application
of Act 315 to a detailed, conditional mineral reservation
,vas in issue for the first time. Leiter Minerals,
Inc., succeeded to the interests of the Leiter family, ·which
in 1938 had sold a substantial tract in Plaquemines Parish,
Louisiana, to the United States. Leiter's federal sale
was subject to a mineral reservation in Leiter's favor,
providing in essence that the reservation would be extended
for five years beyond its initial IO-year duration
whenever commercially advantageous mineral extraction
had occurred during 50 days of a defined period."
At the expiration of any period during which the conditions
for extension had not been met, the right to mine
v,rould terminate "and complete fee in the land becomes
vested in the United States." The mineral reservation
expired by its own terms; the Government granted a
valuable mineral lease; and Leiter invoked Act 315 to
support its claim to a servitude of continuing duration.
After a false start in the Louisiana courts, the ensuing
litigation found its way into a federal forum.
The United States sued in the Eastern District of Louisiana
to quiet title and to enjoin the concurrent state
court proceedings initiated by Leiter. The Court of Appeals
affirmed an injunction granted by the District
price paid by the Government did not reflect the value of any mineral
rights and that the vendor would not have agreed to the land sale
absent the Government's representation that Louisiana prescriptive
law would not apply. Id., at 1006.
5 The initial duration of the reservation was 10 years. If mineral
operations took place for "an average of at least 50 days per year"
during the final three years of the specified term, the servitude
would be extended for an additional five-ye.ar period, but only with
respect to "an area of twenty-five acres of land" around each well
or mine producing or being drilled at the "time of first extension."
Additional five-year extensions could be obtained "from time to time"
to permit completion of active drilling operations.
588 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
Court,° and this Court agreed, but remanded to the Court
of Appeals with instructions to secure an authoritative
construction of Act 315 before proceeding to the difficult
constitutional issues in the case. Leiter Minerals, Inc.
v. United States, 352 U. S. 220, 229 (1957).7
Adhering to the terms of the remand, Leiter sought a
declaratory judgment in the Louisiana courts, which expressed
some continuing doubt over the breadth of their
responsibility for resolving the Leiter controversy on its
own facts. Ultimately, the Louisiana Supreme Court
took jurisdiction of the case and rendered a declaratory
judgment limited to general elucidation of Act 315,
without applying the Act to the specific terms of the
Leiter mineral reservation itself. Leiter Minerals, Inc.
v. California Co., 241 La. 915, 132 So. 2d 845 (1961).
The Louisiana Supreme Court expressed its conclusions
as follows:
"First, that if the reservation in the Leiter deed
is construed as establishing a mineral servitude for
a definite, fixed, and specified time which has elapsed,
then Act 315 of 1940 is not applicable and cannot
be constitutionally applied; and second, that if the
reservation is construed as not establishing a servitude
for a fixed, definite and certain time, and if
6 Leiter Minerals, Inc. v. United States, 224 F. 2d 381 (CA5 1955),
aff'g 127 F. Supp. 439 (ED La. 1954).
'The 1957 remand was in effect a remand with instructions
to abstain. It contemplated state court elucidation of
various uncf'rtainties surrounding Act 315, before this Court would
attempt "to decide their relation to the issues in the case." We do
not, therefore, understand the respondents' suggestion, echoed by
]\fa. .JusTICE STEWART, that the 1957 remand foreshadowed final
resolution of the Leiter Minerw.s controversy through state law.
Indeed, the Court's opinion stated that "[i]t need hardly be
added that the state court~ ... ('fill decide definitively only questions
of state law that are not subject to overriding federal law." 352
U. S. 220, 229- 230.
UNITED STATES v. LITTLE LAKE l\HSERE LAND CO. 589
580 Opinion of the Court
it is decided that the provisions of the reservation
show that the parties were stipulating for a period
of contractual prescription for the conditional extinguishment
of the mineral servitude created, then
Act 315 of 1940 is applicable and constitutional."
Id., at 942, 132 So. 2d, at 854---855.
Recognizing that "the interpretation of this reservation
is for the United States courts, and not for us in this
proceeding," id., at 930. 132 So. 2d, at 850, that court
nevertheless hinted broadly that it viewed the Leiter
reservation as one establishing a reservation for an indefinite
period of time, and thus one subject to retroactive
application of Act 315. See id., at 936, 938, 132 So. 2d,
at 852, 853.
The parties then returned to federal court. The District
Court held that the mineral reservation in the
Leiter deed created a mineral servitude for a fixed period
and that, under the terms of the Louisiana Supreme
Court's declaratory ruling, as a matter of state law the
reservation was not affected by Act 315. 204 F. Supp.
560 (ED La. 1962). The Court of Appeals reversed.
It rejected the Government's contention that federal
law controlled the rights of the United States under
the reservation, and held, instead, that those rights were
to be governed by Louisiana law. The Court of Appeals
believed that the Louisiana Supreme Court had viewed
Leiter's servitude as "one of indefinite duration" and it
agreed with that view. Under Louisiana law, therefore,
the reservation "provide [ d] for a contractual
prescription for the conditional cxtinguishrnent of
the mineral servitude which was rendered inoperative
by [ Act 315] ." 329 F. 2d, at 93. As to the
Government's contention that the Act, as so construed,
unconstitutionally impaired the obligation of
contract, the Court of 1;\ppeals concluded that the dis590
OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
cussion of that matter in its prior decision in Nebo Oil,
supra, and in the Louisiana Supreme Court's Leiter opinion,
made it "unnecessary further to labor" the point.
Id., at 94. Judge Gewin dissented. On being advised by
the parties that the case had been settled, we granted certiorari,
vacated the j11dgment of the Court of Appeals. and
remanded the cause to the District Court with instructions
to dismiss the complaint as moot. 381 U.S. 413 (1965).
II
The essential premise of the Court of Appeals' decision
in the Leiter Minerals case was that state law governs
the interpretation of a federal land acquisition authorized
by the Migratory Bird Conservation Act. The
Court of Appeals did not set forth in detail the basis
for this premise,8 but that court's opinion seems to say
s In Leiter Minerals, the Court of Appeals stated that. although
"Congress could make federal law applicable, . . . it had no intention
to do so when it merely authorized the contract by which
the United States acquired the [Leiter] property." The Court of
Appeals expressed the Yiew that "[s]tate law must govern in the
absence of a frderal statute," and in support of its view it cited
Swift v. Tyson, 16 Pet. 1, 18 (1842). Later in its opinion, the
Court of Appeals stated that "since the United States had the
right to invoke federal jurisdirtion (28 U.S. C. § 1345), the ultimate
responsibility for the interpretation of the reservation rests upon
the federal courts. That interpretation, however, must be in arrordance
with State law . . . . " 329 F. 2d 8!i, 90, 91. From these
statements, it appears that the Court of Appeals considered that
the interpretation of the Leiter agreement was governed by state
law (applied of its own force), with the role of the federal courts confined
to interpretation !lf state law "in accordance with State law"
as laid down by the highest rourts of the State. Possibly, though,
the Court of Appeals thought that the rhoice of applicable law
was itself a question of federal law ("ultimate responsibility ...
rests upo11 the federal courts .") but ihat in the grneral
context of this case, involving real property, state law should be
applied through "borrowing."
UNITED STATES v. LITTLE LAKE :.\USERE LAND CO. 591
580 Opinion of the Court
that state law governs this land acquisition because, at
bottom, it is an "ordinary" "local" land transaction to
which the United States happens to be a party. The
suggestion is that this Court's decision in Erie R. Co. v.
Tompkins, 304 U. S. 64 (1938), compels application of
state law here because the Rules of Decisions Act, 28
U. S. C. § 1652,9 requires application of state law in the
absence of an explicit congressional command to the
contrary. We disagree.
The federal jurisdictional grant over suits brought by
the United States is not in itself a mandate for applying
federal law in all circumstances. This principle follows
from Erie itself, where, although the federal courts had
jurisdiction over diversity cases, we held that the federal
courts did not possess the power to develop a concomitant
body of general federal law. Mishkin, The Variousness
of "Federal Lav/': Competence and Discretion
in the Choice of National and State Rules for Decision,
105 U. Pa. L. Rev. 797, 799 (1957). It is true, too, that
"[t)he great body of law in this country which controls
acquisition, transmission, and transfer of property, and
defines the rights of its owners in relation to the state or
to private parties, is found in the statutes and decisions of
the state." Davies Warehouse Co. v. Bowles, 321 U. S.
144, 155 (1944). Even when federal general law was in
its heyday, an exception was carved out for local laws of
real property. Swift v. Tyson, 16 Pet. 1, 18 (1842);
see Kuhn v. Fairmont Coal Co., 215 U.S. 349,360 (1910).
Indeed, before Erie R. Co. v. Tompkins, supra, this
Court's opinions left open the possibility that even "the
United States, while protected by the Constitution from
v "The laws of the several states, except where the Constitution
or treaties of the United States or Acts of Congress otherwise require
or provide, shall be regarded as rules of decision in civil actions
in the courts of the United States, in cases where they apply."
592 OCTOBER TERM, 1972
Opinion of the Court 412 u. s.
discriminatory state action, and perhaps certain other special
forms of state control. ·was nevertheless governed generally
in its ordinary proprietary relations by state la-v."
Hart, The Relations Between State and .Federal Law,
54 Col. L. Rev. 489, 533 (1954). See. e. g., Ma.son v.
United States, 260 lT. S. 545, 558 (1923).
Despite this arguable basis for its reasoning the Court
of Appeals in the instant case seems not to have recognized
that this land acquisition, like that in Leiter Minerals,
is one arising from and bearing heavily upon a
federal regulatory program. Here, the choice-of-law task
is a federal task for federal courts, as defined by Clearfield
Trust Co. v. United States, 318 U. S. 363 (1943). Since
Erie, and as a corollary of that decision, we have consistently
acted on the assumption that dealings which
may be "ordinary" or "local" as behveen private citizens
raise serious questions of national sovereignty when they
arise in the context of a specific constitutional or statutory
provision; particularly is this so when transactions
undertaken by the Federal Government are involved, as
in this case.10 In such cases, the Constitution or Acts of
10 This is not a case where the United States seeks to oust state
substantive law on the basis of "an amorphous doctrine of national
sovereignty" divorced from any specific constitutional or statutory
provision and premised solely on the argument "that every authorized
activity of the United States represents an exercise of its
governmental power," see United States v. Burnison, 339 U. S. 87,
91 and 92 (1950); United State8 v. Fox, 94 U. S. 315 (187i).
Burnison and Fox stand at the opposite end of the spectrum from
cases where Congress explicitly displaces state law in the course
of exercising clear constitutional regulatory power over a particular
subject matter. See, e. g., Sunderland v. United States, 266 U. S.
226, 232-233 (1924) (United States may displace Oklahoma law by
imposing restrictions on alienation of Indian property despite the
"general rule ... that the tenure, transfer, control and disposition
of real property are matters which rest exclusively with the State
where the property lies"). The present case falls between the poles
UNITED STATES v. LITTLE LAKE MISERE LAND CO. 593
580 Opinion of the Court
Congress "require" otherwise than that state law govern
of its ov.:n force.
There will often be no specific federal legislation governing
a particular transaction to which the United States
is a party; here, for example, no provision of the Migratory
Bird Conservation Act guides us to choose state
or federal law in interpreting federal land acquisition
agreements under the Act. But silence on that score
in federal legislation is no reason for limiting the reach
of federal law, as the Court of Appeals thought in Leiter
Minerals. To the contrary, the inevitable incompleteness
presented by all legislation means that interstitial
federal lawmaking is a basic responsibility of the federal
courts. "At the very least, effective Constitutionalism
requires recognition of power in the federal courts
to declare, as a matter of common law or 'judicial legislation,'
rules which may be necessary to fill in interstitially
or otherwise effectuate the statutory patterns
enacted in the large by Congress. In other words, it
must mean recognition of federal judicial competence
to declare the governing law in an area comprising issues
substantially related to an established program of government
operation.'' Mishkin, 105 r. Pa. L. Rev., at
800.
This, then, is what has aptly been described as the
"first" of the two holdings of Clearfield Trust Co. v.
United States, supra- that the right of the United States
to seek legal redress for duly authorized proprietary transactions
"is a federal right, so that the courts of the
United States. may formulate a rule of decision."
Friendly, In Praise of Erie-And of the Kew Federal Common
Law, 39 K. Y. U. L. Rev. 383, 410 (1964). At
of Burnison and Sunderland. Here we deal with an unquestionably
appropriate and specific exercise of congressional regulatory power
which fails to specify whether or to what extent it contemplates
displacement of state law.
594 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
least this first step of the Clearfield analysis is applicable
here. We deal with the interpretation of a land acquisition
agreement (a) explicitly authorized, though not precisely
governed, by the Migratory Bird Conservation Act
and (b) to which the United States itself is a party. Cf.
Banlc of America v. Parnell, 352 U.S. 29, 33 (1956). As
in Clearfield and its progeny, " [ t ]he duties imposed upon
the "Cnited States and the rights acquired by it ... find
their roots in the same federal sources. . . . In absence
of an applicable Act of Congress it is for the federal
courts to fashion the governing rule of law according to
their own standards." 318 U. S., at 366-367; United
States v. Allegheny County, 322 U. S. 174, 183 (1944);
United States v. Standard Oil Co., 332 U. S. 301, 305
(1947); Board of County Comm'rs v. United States, 308
u. s. 343, 349-350 (1939).11
III
The next step in our analysis is to determine whether
the 1937 and 1939 land acquisition agreements in issue
should be interpreted according to "borrowed" state law-
Act 315 of 1940. The availability of this choice was explicitly
recognized in ClearfieLd Trust itself 12 and fully
elaborated some years later in United States v. Standard
Oil Co., supra. There we acknowledged that "in many
situations, and apart from any supposed influence of the
Erie decision, rights, interests and legal relations of the
United States are determined by application of state law,
where Congress has not acted specifically." 332 U. S., at
n United States v. Certain Property, 306 F. 2d 439 (CA2 1962),
the principal decision relied on by the Court of Appeals in Leiter
Minerals, supra, does not suggest application of state law, of its own
force, to federal land acquisitions. See the discussion by the author
of Certain Property in Friendly, 39 K. Y. U. L. Rev., at 411 n. 133.
12 "In our choice of the applicable federal rule we have occasionally
selected state law." 318 U. S., at 367.
UNITED STATES v. LITTLE LAKE .MISERE LAND CO. 595
580 Opinion of the Court
308. We went on to observe that whether state law is to
be applied is a question "of federal policy, affecting not
merely the federal judicial establishment and the groundings
of its action, but also the Government's legal interests
and relations, a factor not controlling in the types of
cases producing and governed by the Erie ruling. And
the answer to be given necessarily is dependent upon a
variety of considerations always relevant to the nature
of the specific governmental interests and to the effects
upon them of applying state law." Id., at 309-310.
See also De Sylva v. Ballentine, 351 U. S. 570, 580
(1956); RFC v. Beaver County, 328 U. S. 204 (1946);
Board of County Comm'rs v. United States, 308 U. S.,
at 351-352; Royal Indemnity Co. v. United States, 313
U. S. 289, 296 ( 1941); United States v. Yazell, 382 U. S.
341, 356-357 (1966); cf. United States v. MitcheU, 403 u. s. 190 (1971).
The Government urges us to decide, virtually without
qualification, that land acquisition agreements of the
United States should be governed by federally created
federal law. Cf. United States v. 93.970 Acres, 360 U. S.
328 ( 1959). We find it unnecessary to resolve this
case on such broad terms. For even if it be assumed
that the established body of state property law should
generally govern federal land acquisitions, we are persuaded
that the particular rule of law before us today-
Louisiana's Act 315 of 1940, as retroactively appliedmay
not. The "reasons which may make state law at
times the appropriate federal rule are singularly inappropriate
here." Clearfield Trust, 318 U. S., at 367.13
The Court in the past has been careful to state that,
even assuming in general terms the appropriateness of
13 In view of our disposition, we decline to resolve the continuing
uncertainty, under Louisiana law, over the applicability of Act 315
to the mineral reservation in issue here. See infra, at 601-602.
596 OCTOBER TERM, 1972
Opinion of the Court 412 u. s.
"borrowing" state law, specific aberrant or hostile state
rules do not provide appropriate standards for federal law.
In De Sylva v. Ballentine, supra, we held that whether
an illegitimate child ,vas a "child" of the author
entitled under the Copyright Act to renew the
author's copyright was to be determined by whether,
under state law, the child would be an heir of the author.
But Mr. Justice Harlan's opinion for the Court took
pains to caution that the Court's holding "does not mean
that a State would be entitled to use the word 'children'
in a way entirely stra11ge to those familiar with
its ordinary usage .... " 351 U. S., at 581. In RFC v.
Beaver County, supra, the issue was whether the definition
of "real property," owned by the RFC and authorized
by Congress to be subject to state and local taxation, ,vas
to be derived from state law or to be fashioned as an
independent body of federal law. The Court concluded
that "the congressional purpose can best be accomplished
by application of settled state rules as to what
constitutes 'real property' "-but again the Court foresaw
that its approach w·ould be acceptable only "so long
as it is plain, as it is here, that the state rules do not
effect a discrimination against the Government, or
patently run counter to the terms of the Act." 328
U. S., at 210. See also U. A. W. v. Hoosier Cardinal
Corp., 383 l;. S. 696, 706 (1966).
Under Louisiana's Act 315, land acquisitions of the
United States,14 explicitly authorized by the Migratory
1 • In 1938, the Louisiana Legislature passed Act 68 and, later,
Act 151. Both statutes barred preocription of mineral reservations
in certain lands conveyed to the United State~. Act 68 applied to
land acquired by the United States or by the State of Louisiana "for
use in the construction, operation or maintenance of any spillway
or floodway" authorized by federal law. Act 151, broad enough in
terms to supersede Act 68, provided that prescription would not
run against mineral or royalty reservations or real estate "acquired
UNITED STATES v. LITTLE LAKE MISERE LAND CO. 597
580 Opinion of the Court
Bird Conservation Act, are made subject to a rule of
retroactive imprescriptibility, a rule that is plainly hostile
to the interests of the United States. As applied to a
consummated land transaction under a contract which
specifically defined conditions for prolonging the vendor's
mineral reservation. retroactive application of Act
315 to the United States deprives it of bargained-for
contractual interests.
To permit state abrogation of the explicit terms of a
federal land acquisition would deal a serious blow to the
congressional scheme contemplated by the Migratory
Bird Conservation Act and indeed all other federal
land acquisition programs. These programs are national
in scope. They anticipate acute and active bargaining
by officials of the United States charged with making
the best possible use of limited federal conservation appropriations.
Certainty and finality are indispensable in
any land transaction, but they are especially critical
when, as here, the federal officials carrying out the mandate
of Congress irrevocably commit scarce funds.
The legislative history of the Migratory Bird Conservation
Act confirms the importance of contractual certainty
to the federal land acquisition program it authorizes.
As originally enacted in 1929, the Act provided
that land acquisitions might include reservations, easeby
the United States of America, the State of Louisiana, or any of its
subdivisions . . for use in any public work and/ or improvement."
See generally Comme,nt., Imprescriptible Mineral Reservations
in Sales of Land to the State and Federal Governments,
22 Tu!. L. Rev. 496 (1948).
Whether because the "floodway" and "public work" qualifications
of the 1938 Acts make them inapplicable to the 1939 condemnation
reservation in issue here, or because the parties' own agreement in
1939 reflects their belief 'that Act 151 was inapplicable, respondents
do not argue that the 1938 legislation is material to the outcome of
this case.
598 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
men ts, and rights of way but that these were to be subject
to "such rules and regulations" as the Secretary of
Agriculture might prescribe "from time to time." § 6,
45 Stat. 1223. This sweeping statement of the Secretary's
po\ver to modify contract terms in favor of the
Government had an unsettling effect on potential vendors;
in 1935, the Act was amended to require the Secretary
either to include his rules or regulations in the
contract itself or to state in the contract that the reservation
or easement would be subject to rules and
regulations promulgated "from time to time." 15 A
Congress solicitous of the interests of private vendors
15 See S. Rep. No. 822, 74th Cong., 1st Sess., Report of the Special
Co=ittee on Conservation of Wildlife Resources on S. 3006, pp. 2-3
(1935):
"The 111:igratory Bird Conservation Act of 1929 established the
Federal policy for the acquisition of areas for migratory waterfowl
refuges. Under ·the provisions of that act, the Secretary of Agriculture
was authorized when purchasing property for waterfowl
refuges, to make certain reservations to be retained by the vendors
of the property, but these reservations were subjected to regulations
of the Secretary of Agriculture which might be made 'from time
to time.' The arlmini~tration of this act has developed some
harassments in the acquisition of desirable waterfowl areas because
some owners are not willing to convey their lands to the Federal
Government on the indefinite and uncertain terms as provided in
regulations made 'from time to time.'
"Obviously they may well be justified in their view, and, just as
obviously, the Government may re.;sonably be secured in its interests
by providing for enjoyment on the reservations under regulations
to be stated in the conveyance at the time of its execution,
leaving the vendor who has made the reservation to the general
requirement of existing law that he will be subject to the rules and
regulations of the Secretary of Agriculture governing the general
administration of the area as a migratory bird refuge.
"Accordingly it is proposed to amend section 6 of the act of
1929 so that these reservations, in the discretion of the Secretary of
Agriculture, may be subjected to regulations to be stated in the
instrument of conveyance."
UNITED STATES v. LITTLE LAKE MISERE LAND CO. 599
580 Opinion of the Court
in the certainty of contract would hardly condone state
modification of the contractual terms specified by the
United States itself as vendee, \Vhethcr or not those
terms may be characterized as "rules and regulations"
within the meaning of the Act.
Conceivably, our conclusion might be influenced if
Louisiana's Act 315 of 1940, as applied retroactively,
served legitimate and important state interests the fulfillment
of which Congress might have contemplated
through application of state law. But that is not the
case. \Ve do not deprecate Louisiana's concern with
facilitating federal land acquisitions by removing uncertainty
on the part of reluctant vendors over the duration
of mineral reservations retained by them. From
all appearances, this concern was a significant force
behind the enactment of the 1940 legislation.16 But
today we are not asked to consider Act 315 on its face,
or as applied to transactions consummated after 1940;
we are concerned with the application of Act 315 to a
pair of acquisition agreements in 1937 and 1939. And
however legitimate the State's interest in facilitating federal
land acquisitions, that interest has no application
to transactions already completed at the time of the
enactment of Act 315: the legislature cannot "facilitate"
transactions already consummated.11
The Louisiana Supreme Court has candidly acknowledged
two additional purposes which help to explain
retroactive application of Act 315: to clarify the taxa-
16 See the discussion in Leiter Minera/.s, Inc. v. California Co.,
241 La. 915, 932, 132 So. 2d 845, 851 (1961).
17 Because we are concerned here with retroactive application of
Act 315, there is likewise no basis for the Court of Appeals' suggestion
that Act 315 simply places Louisiana citizens on the same
footing as other States' citizens whose land is purchased or condemned
by the United States.
600 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
bility by the State of mineral interests in the large federal
land holdings in Louisiana, otherwise in doubt by virtue
of the arcane and fluctuating doctrines of intergovernmental
tax immunity; and to ensure that federal mineral
interests could be subjected to state mineral conservation
laws \vithout federal pre-emption.1 8 vVe are not
unsympathetic to Louisiana's concern for the consequences
of a continuing, substantial, even if contingent,
federal interest in Louisiana minerals. Congress, however,
could scarcely have viewed that concern as a proper
justification for retroactive application of state legislation
which effectively deprives the Government of its
bargained-for contractual interests. Our Federal 'Gnion
is a complicated organism, but its legal processes cannot
legitimately be simplified through the inviting expedient
18 "There can be no doubt . . . that there were other objects
and purposes for the enactment of Act 315 of 1940 ....
"One of the important sources of revenue of the State of Louisiana.
is the severance tax which is levied and collected by the state
when natural resources surh as oil and gas are produced and extracted
from the land. If the mineral rights were owned by the
federal government in lands which the government had purchased,
the mineral owner's share of the oil and gas produced from these
lands would not be subjeC't to taxation by the State of Louisiana,
and the state would he deprived of large sums in taxes, especially
since an immense area is owned by the federal government in oilproducing
section,; of this state, as the very fact s of this case
disclose.
"Moreover, the State of Louisiana in the exercise of its police
power has authority to protect, conserve, and replenish the natural
resources of the state a.nd to prohibit and prevent their waste ....
Under this power the Legislature has adopted laws regulating and
cont.rolling the production of oil and gas within the state. By
making mineral rights imprescriptible in lands sold to the government
and retaining these rights in the vendors, Act 315 of 1940
avoided a possible conf-lict by the state in the exercise of its police
power with the federal government." 241 La., at 933-934, 132 So. 2d,
at 851-852.
UNITED STATES v. LITTLE LAKE MISERE LAND CO. 601
580 Opinion of the Court
of special legislation which has the effect of confiscating
interests of the United States.19
Respondents point out that " [ o] ne who owns land
subject to an outstanding mineral reservation possesses
no vested property interest [under Louisiana law], inasmuch
as 'estates in reversion' are unknown to Louisiana
law. Such an owner of the land possesses only a hope
or expectancy to acquire these mineral rights; and .
this hope or expectancy is not an object that can be
legally sold." Brief for Respondents 27, citing, e. (J.,
Hicks v. Clark, 225 La. 133, 72 So. 2d 322 (1954). But
whether Louisiana recognizes the interests at stake here
as transferable interests in real property, as such, has
19 In 1958, 18 years after the passage of Act 315, Louisiana enacted
legislation that subjects the Sta.te and certain of its subdivisious to
the rule of impresrriptibility. Louisiana Act 278 of 1958, La. Rev.
Stat. § 9:5806 B (Supp. 1973). But this belated effort at statutory
parity does not eliminate the adverse effect upon the ·(Tuited States,
and upon the .Yiigratory Bird Conservation Art, of retroactive application
of Aet 315 of 1940. For one thing, it is not clear whethrr
the 1958 legislation will be givrn full retrospective effect by the
Louisiana <'ollrts, reaching baek to 1937 and carlin. :.Iore basic,
l'WII assuming retrospective application of the 1958 statute, the
effect of the 1958 statute on Louisiana is not compnrablr to the
effect of the 1940 Act on the United States. ·with or without leg-islation
relating to prescription of mineral interests tied to governmental
land acquisitions, Loui~iana could plainly apply its own
Ponsrrvation laws and its own severance tax to any propPrty in
which the Stak hrld a rontingrnt or even a present min8ral intPTest.
ThC' 1958 ll'gislation did nothing to reduce Louisiana's freedom in
this respect. Art 315 of 1940, however, as applied retroactively, had
the avowed purpose and would have the clear effect of pC'rmitting
taxation and consnvation regulation of minerals which, quitC' possibly,
would otherwise fall within the Federal Government's rxrlusiw
domain. However parallrl thr two statutes in purpose and in their
potrntial effect on actual mineral right ownership by the respcrtiw
sovereigns, it is only Act 315 of 1940 that significant!:,· affects intl'rests
of the Cnitcd States in intergovernmrntal immunity.
602 OCTOBER TER1I, 19i2
Opinion of the Court 412 U.S.
no bearing on our conclusion that after-the-fact modification
of explicit contractual terms would be adverse to
the United States and contrary to the requirements of
the Migratory Bird Conservation Act.
It is also of no import that, under Louisiana law as
it might be articulated in 1973, the United States acquired
from respondents only the reversion to a mineral interest
of indefinite duration, a "hope" or "expectancy" revocable
at any time by after-enacted legislation. Respondents
place heavy reliance on the opinion of the Louisiana
Supreme Court in Leiter Minerals, where that court held
that a mineral reservation for an indefinite duration
was one traditionally subject to retroactive prescriptive
change. But even if this rule of law could have been
anticipated in 1937 and 1939, when the United States
agreed to the mineral reservations in issue here, that
the 1937 and 1939 reservations were of "indefinite" duration
could not have been. Indeed, some 20 years later,
in 1957, when Leiter Minerals came to this Court for the
first time, we were not in a position to resolve the Government's
contention that the Leiter reservation was one
of specific duration. Uncertainty over this question of
Louisiana law was the guiding force behind our remand
in hopes of obtaining the vie\v of the Louisiana Supreme
Court. In its advisory opinion, the Louisiana Supreme
Court did not decide whether the Leiter-type reservation
was "indefinite" and subject to retroactive modification-
to the extent that the Federal District Court,
in Louisiana, subsequently concluded that the servitude
in the Leiter reservation was not, under state law,
freely revocable. In Leiter Minerals, one Court of
Appeals judge dissented 011 this state law issue, and, with
reason, the Government renews the issue before the Court
in this case.
Were the terms of the mineral reservations at issue
here less detailed and specific, it might be said that the
UNITED STATES v. LITTLE LAKE MISERE LAND CO. 603
580 Opinion of the Court
Government acknowledged and intended to be bound by
unforeseeable changes in state law. But the mineral reservations
before us are flatly inconsistent with the respondents'
suggestion that the United States in fact
expected that these reservations \vould be wholly sub,iect
to retroactive modification. Nor, given the absence of
any reliable contemporaneous Louisiana signpost and the
absence even today of any final resolution of the pertine·nt
state law question, can we say that the United States
ought to have anticipated that its deed contained an
empty promise. Respondents' reliance on the Louisiana
Supreme Court's holding in its opinion in 1961 in Leiter
Minerals assumes that a late-crystallizing doctrine of
state law is appropriately applied to modify the expectations
of the 'Cnited States established by the terms of
1937 and 1939 bargains. The argument, however, is indistinguishable
from respondents' defense of Act 315
itself. Years after the fact, state law may not redefine
federal contract terminology "in a way entirely strange
to those familiar with its ordinary usage .... " De Sylva
v. Ballentine, 351 U. S., at 581.
IV
In speaking of the choice of law to be applied, the
alternatives are plain although in this case identifying
them in fixed categories is somewhat elusive. One
"choice" would be to apply the law urged on us by respondents,
i. e., Louisiana Act 315 of 1940. In some circumstances,
such as those suggested by RFC v. Beaver
County, 328 U. S. 204 (1946), or Wallis v. Pan American
Petroleum Corp., 384 U. S. 63 (1966),2° state
law may be found an acceptable choice, possibly even
20 Wallis is readily distinguisha hie from the instant case; there
the assignabilit-y of an oil and gas lease was in controversy between
two private parties. That presented "no significant threat to any
identifiable federal policy or interest." 384 U. S. 63, 68.
604 OCTOBER TERM, 1972
Opinion of the Court 412 u. s.
when the "United States itself is a contracting party.
However, in a setting in which the rights of the United
States are at issue in a contract to which it is a
party and "the issue's outcome bears some relationship
to a federal program, no rule may be applied which would
not be wholly in accord with that program." Mishkin.
105 U. Pa. L. Rev., at 805-806.
Since Act 315 is plainly not in accord with the federal
program implemented by the 1937 and 1939 land acquisitions,
state law is not a permissible choice here. The
choice of law merges with the constitutional demands
of controlling federal legislation; we turn away from
state la.w by default. Once it is clear that Act 315 has
no application here, we need not choose between "borrowing"
some residual state rule of interpretation or
formulating an independent federal "common law" rule;
neither rule is the law of Louisiana yet either rule resolves
this dispute in the Government's favor. The
contract itself is unequivocal; the District Court concluded,
and it is not disputed here, that by the clear and
explicit terms of the contract reservations, "[respondents']
interests in the oil, gas, sulphur and other minerals
terminated ... no later than July 23, 1947, and
August 30, 1949, unless Act 315 of 1940 has caused the
reservations of the servitudes in favor of [respondents]
to be imprescriptible."
We hold that, under settled principles governing the
choice of law by federal courts, Louisiana's Act 315 of
1940 has no application to the mineral reservations agreed
to by the United States and respondents in 1937 and
1939, and that, as a result, any contract interests of respondents
expired on the dates identified by the District
Court. Accordingly, we reverse the judgment of the
Court of Appeals and remand the case for entry of an
order consistent with this opinion.
Reversed and remanded.
UNITED STATES v. LITTLE LAKE MISERE LAND CO. 605
580 STEWART, .J., concurring in judgment
:MR. JusTICE STEWART, concurring in the judgment.
I cannot agree with the Court that the mineral reservations
agreed to by the United States and the respondents
in 1937 and 1939 are governed by some brooding
omnipresence labeled federal common la\v. It seems
clear to me, as a matter of law, not a matter of "choice"
or "borrowing," that when anyone, including the Federal
Government, goes into a State and acquires real property,
the nature and extent of the rights created are to be
determined, in the absence of a specifically applicable
federal statute, by the law of the State.
That was the very premise of the decision in Leiter
Minerals, Inc. v. United States, 352 U. S. 220, 228-230
( 1957), which remanded the case to the Court of Appeals
with instructions to secure an authoritative construction
of the state statute by the state courts, in order possibly
to avoid deciding the federal constitutional issues. Other
decisions of this Court lead to the same conclusion.
United States v. YazeU, 382 U. S. 341, 352-358 (1966);
United States v. Burnison, 339 U.S. 87, 89 (1950); Dames
Warehouse Co. v. Bowles, 321 U. S. 144, 155 (1944);
Sunderland v. United States., 266 U. S. 226, 232-233
(1924); Mason v. United States, 260 U. S. 545, 557-558
( 1923); United States v. Fox, 94 U. S. 315, 320 ( 1877).
Cf. Wallis v. Pan American Petroleum Corp., 384 U. S.
63 ( 1966).
Since I think the Government's property acquisitions
here are controlled by state law, the decisive question for
me is whether the retroactive application of Louisiana Act
315 of 1940 to those acquisitions is constitutional! The
1937 deed of purchase and the 1939 condemnation judg-
1 Thus, I do not suggest, as the Court seems to think I do (ante,
at 588 n. 7), that this controversy can necessarily be finally resolved
through state law. Rather, my analysis is wholly consistent with
the statement. in Leiter Minera/,s, Inc. V. United States, 352 P. s. 220,
229-230 (1957), quoted by the Court today (ante, at 588 n. 7), that
606 OCTOBER TER:.\1, 1972
REHN'QUIST, J ., concurring in judgment 412 u. s.
ment ,vere unequivocal: the mineral rights were reserved
to the former owners of the land for a 10-year period, after
which time-if certain conditions regarding exploration
and production were not met-the reserved rights were
to terminate, and complete fee title to the land, including
the mineral rights, was to become vested in the
United States. The Federal Government bargained for
this contingent future interest in the minerals; it was
clearly agreed to in the conveyances, and was thus reflected
in the consideration paid by the Government to
the former owners.
Yet the Court of Appeals held that Louisiana Act 315,
which was enacted subsequent to those conveyances, operated
to abrogate the agreed-upon terms of the mineral
reservations by eliminating the Government's future interest.
This retroactive application of Act 315, I believe,
is a textbook example of a violation of Art. I, § 10, cl. 1,
of the Constitution, which provides that no State shall
pass any law "impairing the Obligation of Contracts." 2
Accordingly, I concur in the judgment of the Court.
:'.viR. JrSTICE RKHKQliIST, concurring in the judgment.
I agree with my BROTHER STEWART that the central
question presented by this case is whether Louisiana has
the constitutional power to make Act 315 applicable to
this transaction, and not whether a judicially created
rule of decision, labeled federal common law, should
state courts "can deridr drfinitivrly only questions of state law that
are not subjrct to overriding federal law."
2 This case is a far cry from Home Building & Loan Assn. v.
Blaisdell, 290 U. S. 398 (1934), which upheld, in the face of a challenge
based on th<' Contract Clause, c-merge>ncy state legislation enacted
1o cope with the extraordinary economic depression existing in
19:14. The retroactive application of Louisiana Act 315 serves no
such paramount state interest. Cf. City of El Paso Y. Simmons,
379 u. s. 497 ( 1965).
UNITED STATES v. LITTLE LAKE MISERE LAND CO. 607
580 REHKQUIST, .J., concurring in judgment
displace state law. The Migratory Bird Conservation
Act does not establish a federal rule controlling the rights
of the United States under the reservation. Whether
Congress could enact such a provision is a question not
now before us. In Clearfield Trust Co. v. United States,
318 U. S. 363, 366 (1943), this Court held that federal
common law governed the rights and duties of the United
States "on commercial paper which it issues .... " The
interest in having those rights governed by a rule which
is uniform across the Nation was the basis of that decision.
But the interest of the Federal Government in
having real property acquisitions that it makes in the
States pursuant to a particular federal program governed
by a similarly uniform rule is too tenuous to invoke the
Clearfield principle, especially in light of the consistent
statements by this Court that state lav-: governs real
property transactions.
\Vhat for my Brother ST~WART, however, is a "textbook
example" of a violation of the Obligation of Contracts
Clause, is for me something more difficult. The
scope of this clause has been restricted by past decisions
of the Court such as Home Building & Loan Assn. v.
Blaisdell, 290 U. S. 398 (1934), in which a Minnesota
statute extending the period of time in which the mortgagor
might redeem his equity following foreclosure was
upheld in the face of vigorous arguments that the statute
impaired a valid contract. Were there no simpler ground
for disposing of the case, it would be necessary to resolve
this very debatable question.
I believe that such another ground is present here, in
view of the fact that Act 315 enacted by Louisiana by
its terms applies only to transactions in which "the
United States of America, or any of its subdivisions or
agencies" is a ·party. While it is argued that Louisiana
by other legislation made the same principle applicable
608 OCTOBER TERJvI, 1972
REHXQUIST, J., roncurring in judgment 412 U.S.
to the state government, this proposition is, as the Court's
opinion points out, by no means demonstrated. And in
any event the change in the period of prescriptibility was
not made applicable to nongovernmental grantees.
Implicit in the holdings of a number of our cases
dealing with state taxation and regulatory measures applied
to the Federal Government is that such measures
must be nondiscriminatory. See, e. (J., James v. Dravo
Contractinq Co., 302 "C". S. 134 (1937); New York v.
United States, 326 U. S. 572 ( 1946); RFC v. Beaver
County, 328 U. S. 204, 210 (1946).
The doctrine of intergovernmental immunity enunciated
in McCulloch v. Maryland, 4 Wheat. 316 (1819),
hov.,ever it may have evolved since that decision, requires
at least that the United States be immune from discriminatory
treatment by a State which in some manner
interferes with the execution of federal la·ws. If the
State of Pennsylvania could not impose a nondiscriminatory
property tax on property owned by the United
States, United States v. Allegheny County, 322 U. S. 174
( 1944), a fortiori, the State of Louisiana may not enforce
Act 315 against the property of the United States involved
in this case. I therefore concur in the judgment
of the Court.
WEINBERGER v. HYNSON, WESTCOTT & DUNNING 609
Syllabus
\VEINBERGER, SECRETARY OF HEALTH, EDUCATION,
AND WTELFARE, ET AL. v. HYNSON,
WESTCOTT & DUNNING, INC.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT
No. 72-394. Argued April 17, 1973-Dcrided June 18, 1973«·
The Federal Food, Drug, and Cosmetic Act of 1938, as amended in
1962, establishes a system of premarketing clearance for drugs and
prohibits in § 505 (a) the introduction into commerce of any "new
drug" unless a new drug application (NDA) filed with the Food
and Drug Administration (FDA) was effective with respCl't to
such drug. Fnder the Aet procedures were established for filing
"new drug" applications not only for the safety of drugs but for
their efficacy as well. Standards were provided undi>r which, after
notice and hearing, FDA could refuse to allow an NDA to become
effective, or could suspend an :'-JDA in effect on the ha.sis of new
evidence that the drug was not effective. FDA is directed to
ri>fuse approval of an NDA and to withdraw prior approval if
"substantial evidence" (§ 505 (d)) that the drug is effective for its
intended use is lacking. All NDA's "effective" prior to 1962 were
deemed "approved" and manufacturers were givrn two years to
develop substantial evidence of rffectiveness during which previously
approved NDA's could not be withdrawn by FDA for
the drug's lack of effectiveness. The 1962 Act also contained a
"grandfather" clausP exempting from the effectiveness requirements
any drug which on thr day preceding cna.<'tment. ( 1) was rommcr<'
ially used or sold in thr Fnited States, (2) was not a "new
drug" as dPfined in the 1938 Act, and (3) "was not covered
by an effective application" for a new drug under the 1938 Act.
FDA had permitted more than 9,000 NDA's to become effective
between 1938 and 1962, of which some 4,000 werr still on the
market. Additionall~', manufacturers have marketed thousands of
"me-too" drugs without applying for clearance, drugs similar or
identical to drugs with effective NDA's, marketed in rdiancP on
·*Together with Ko. 72- 414, Ilynson, Westcott & Dunning, Inc. v.
Weinberger, Secretary of Health, Education, and Welfare, et ol,., also
on certiorari to the same court.
610 OCTOBER TERM, 1972
Syllabus 412 U.S.
the "pioneer" drug application approYed by FDA. To aid it
in fulfilling the statutory mandate to review all marketed drugs,
whether or not previously approwd, for their efficacy, FDA
retained the National Academy of Sciences-National Research
Council (NAS---NRC) to create expert panels to review by class
the efficacy of each approved drug. Holders of NDA's were
invited to furnish the panels with the best available data to establish
efficacy and FDA announced that it would apply NAS---
NRC efficacy findings to all drugs, including the "me-too" drugs.
Respondent in No. 72-394 (Hynson) had filcxl an application for
a drug called Lutrexin under the 1938 Act. FDA informed
Hynson that the studies submitted with the application were not
sufficiently well controlled to justify the claims of effectiveness, but
allowed the application to become effective since the 1938 Act permitted
evaluation of a new drug solely on the basis of its safety.
When the 1962 amendments became effective Hynson submitted
evidence of the efficacy of the drug, but the NAS-~RC panel reported
that Hynson had not satisfied the requirements. Notice
of an intention to withdraw approval of the NDA's covering the
drug was given by the Commissioner of Food and Drugs. Before
the hearing, Hynson brought mit in the District Court for a
declaratory judgment that the drug was exempt from the efficacy
review provisions of the 1962 Act, or that there was no lack of
substantial evidence of the drug's efficacy. Petitioners' motion to
dismiss was granted. While the District Court litigation was pending,
the Commissioner denied Hynson's request for a hearing
based on claims of "substantial evidence" of Lutrexin's effectiveness,
and withdrew the NDA for the drug, ruling that it was not
exempt from the 1962 amendments and that Hynson had not
submitted adequate evidence that the drug was not a new
drug or was effective. The Court of Appeals reversed, holding
that while the drug was not exempt, Hynson was entitled
to a he:tring on the substantial-evidence issue. No. 72-414
is a cross-petition by Hynson from the judgment of the Court of
Appe:tls, which suggested that only a district court has authority
to determine whether Lutrexin is a "new drug." While Hynson
agrees that the Commissioner has authority to dl'termine new drug
status in proceedings to withdraw approval of the product's NDA,
some manufacturers, parties to other suits in this group of cases,
advance the contrary view. Held:
1. The 1962 amendments and the regulations issued thereunder,
which express well-established principles of scientific inWEINBERGER
v. HYNSON, WES~COTT & DUNNING 611
609 Syllabus
vestigation, in their reduction of the "substantial evidence" standard
to detailed guidelines for the protection of the public, make
FDA's so-called administrativ<> summary judgment proccdur<>
appropriate. Pp. 617-619.
2. FDA's procedure, whereby it will not provide a formal hearing
when it is apparent at the threshold that the applicant has not
tendered any evidence whieh on its face meets the statutory standards
as partil'ularized by the regulations, is rnlid. Cnited States
v. Storer Broadcasting Co., ;151 U. S. 192; FPC v. Texaco, 377
U. S. 33. Pp. 620-622.
3. In ~o. 72-394, the Court of Appeals' holding that Hynson
was entitled to a hearing on whether its submission of evidencf'
satisfied its threshold burden of providing "substantial evidence"
is affirmed. Pp. 622- 623.
4. The heart of the statutory proe<·durr is the grant of primary
jurisdiction to FDA, subject to judicial rrvicw when administrative
rem('dics are exhausted. Pp. 623-627.
5. Although a drug can be "generally recognized" by expC'rts
as effective for intended use within the meaning of the Act only
wl1C'n that expert consensus is founded upon "substantial eYidence,"
any ruling on Lutrexin's "new drug" status is premature, and
must await the outcome of thf' hearing on whether Hynson submitted
"substantial eviderl('c," as held in >l"o. 72-394 (itrm 3,
supra). Pp. 628-632.
6. Lntrexin i~ not exempt under the "grandfather" provi~ions
of the 1962 Act, as held by FDA and the Court of Appc>als,
and their construction accords with the legislatiw history which
suggests th:1t thC' exemption is afforded only for drugs that never
had bcC'n subject to new drug rl'gulation. Pp. 632-634.
461 F. 2d 21/i, afiirmed as modified.
DouGLAS, .J., deliwr<>d thr opinion of the Court, in whiC'h Tli::nG~;H,
C . .T., and WHITE, l\1ARSHALL, BLACIOIUN, and HEH:-l"l!l'IST, .TJ.,
joirwd. POWELL, J., fi!C'd rm opinion concurring in thP result as t o
Pa.rt I and joining in Part II of the Court's opinion. post, p. 637.
BRENNAN, J., took no part in the consideration or decision of the
cases. ST};WAHT, J., took rio part in the decision of the cases.
Deputy Solicitor General Friedman and Andrew L.
Frey argued the cause for petitioners in ~o. 72-394 and
respondents in Xo. 72-414. "\Vith Mr. Frey on the briefs
were Solicitor General Griswold, Assistant Attorney Gen612
OCTOBER TERl\I, 19i2
Opinion of the Court 412 U.S.
cral Kauper, Deputy Solicitor General JVallace, Robert
B .• Yicholson, Howard E. Shapiro, and Peter Barton Hutt.
b:d1card Brov:n Williams argued the caus0 for petitioner
in Xo. 72--414 and respoudcnt in Xo. 72-394. With
him on the briefs was Jan Edward Williams.t
~IR. JrsncE DoeGLAS <leliverc<l the opinion of the
Court.
ThesC' cases. together with Weinberger v. Rentex Pharmaceuticals,
Inc., post, p. 645, CIBA Corp."· Weinberger,
post, p. 640, a11d USly f>JwrmacC'utical C'orp. v. Treinberyer,
post, p. 655, all here on certiorari, raise a series of
qu<>stions under the 1962 amendments 1 to the Federal
Food. Drug, and Cosmetic Act of 1!)38. 52 Stat. 1040.
The rn:~8 A.et, which C'stablished a system of prrmarketing
ckarance for drugs, prohibited the introduction into
conunnce of any ''nev.- drug" unless a new drug applicatio11
( XDA) filed with the Food and Drug Administration
(FD.\) 2 was effective with respect to that drug. 505
(a), 52 8tat. 1052. l 1 nder the 1938 Act a ''new drug"
t Briefs of amici curiae iu both ca~C'~ were filed by Lloyd S. Cutler,
Danit! ,llarcus. and lr1/liam T. Lake for PharmacentiC'al ~IanufarturC'r~
As~n.; by Brurr .J. Terri..~, Joseph Ond·, and J->cter H.
Schuck for .\meriC'an P11bhc Health Assn. et al.; and by Thomas D.
Finn(y, .Jr., Thomas Rithard Spradlin. and Daniel F. O'K.c1ft, Jr.,
for the Proprict:ir~· .\s,-u. Brief~ of amici curiae in Ko. 7:2-894 were
filed by Alan I I. K.apla11 for K n. :--q11ibb & Sens, Inc·., and by
Rol>ert L. lrald, :iclma JI. I,rviru, Joel E. Hoffman, Philip Elman,
:111d Philip .J. Franks for r::;Y Pharmaceutical Corp.
1 Drup; .\ml'ndment~ of l!J62 (lfarris-Kefauver .\ct), ';'(i .Stat. 71'0.
:mu..>nding ~l l'. S. C. § 301 d seq.
J The .\ct originally pro\·icled for filing applicai ion~ with the :'ii>c-
!'('tar~· of Agnculturr, but hi~ iullctious wrrr a,~ig1ll'd to FIL\.
FlJ \ i., 110,\· part of the DC'partmPnt of Hr,ilth, h!twation, and
Welfare (IIEW), and th(' ~<·rrrtar~· of IIE\Y h:tti drlrgatP<l hie rrspon-
ibilitit"' under tlw Fc<krnl Food, Dru!!;, amt Co;:amdic Art to the
Commi~siuner of Food and Drngs. 21 C} H. § 2.120.
WEINBERGER v. HYNSON, WESTCOTT & DUNNING 613
609 Opinion of the Court
,vas one not generally recognized by qualified experts as
safe for its intended use. § 201 (p)(l). The Government
could sue to enjoin violations, prosecute criminally,
and seize and condemn the articles. §§ 301 (d), 302 (a),
30:1, 304. The Act established procedures for filing
~DA's, § 505 (b), and provided standards under which,
after notice and hearing, FDA could refuse to allow an
NDA to become effective, §§ 505 (c) and (d), or could
suspend an NDA in effect on the basis of new evidence
that the drug was unsafe. § 505 ( e). Orders denying
or suspending an NDA could be reviewed in a district
court on the administrative record. § 505 (h).
The 1962 Act amended § 201 (p)(l) of the 1938 Act
to define a "new drug" as a drug not generally recognized
among experts as effective as well as safe for its intended
use. 21 U.S. C. §321(p)(l). A new drug, as now
defined, still may not be marketed unless an NDA is in
effect. FDA is now directed to refuse approval of an NDA
and to withdraw any prior approval if ''substantial evidence"
3 that the drug is effective for its intended use is
larking. 21 U.S. C. §§ 355 (d) and (e). Thus, the basic
clearance system, requiring FDA approval of an NDA before
a "new drug" may be lawfully marketed, vrns continued,
except that FDA now either must approve or
disapprove an application within 180 days. 21 U. S. C.
§ 355 (c). (Under the 1938 Act an application automatically
became effective if it was not disapproved.)
Judicial review was transferred to the courts of appeals.
21 U. S. C. § 355 (h).
3 "Substantial evidence" was defined to mean "evidPnre consi~ting
of adequate and well-eontrollPd inwstigations, inrluding dinii'al inwstign1
ion~, b:v Pxpcrts qualified by ~<"icntific training nnd experience
to evaluate the effectiveness of the drug involwd, on the basis of
which it could fair]~- and rcspon~ihl~- be roneludrd by rnch experts
that the drug will have the effect it purports or is represented to
have . . . . " 21 U. S. C. § 355 (d).
614 OCTOBER TER;\1, 1972
Opinion of the Court 412 U.S.
Since the Act as amended requires affirmative agency
approval, all NDA's "effective" prior to 1962 were deemed
"approved" under the new definition, and manufacturers
were given two years to develop substantial evidence of
effectiveness, during which previously approved NDA's
could not be withdrawn by FDA for a drug's lack of effectiveness.'
The 1962 amendments also contain a "grandfather"
clause exempting from the effectiveness requirements
any drug which on the day preceding enactment
(1) was commercially used or sold in the United States,
(2) was not a "new drug" as defined in the 1938 Act (it
being generally recognized as safe), and (3) "was not
covered by an effective application" for a new drug under
the 1938 Act.•
Between 1938 and 1962 FDA had permitted 9,457
NDA's to become effective. Of these, some 4,000 were
still on the market. In addition, there were thousands
of drugs which manufacturers had marketed without applying
to FDA for clearance. These drugs, known as
"me-toos," are similar to or identical \Vith drugs with
effective 2'\DA's and are marketed in reliance on the
"pioneer" drug application approved by FDA. In some
cases, a manufacturer obtained an advisory opinion letter
from FDA that its product was generally recognized
among experts as safe.
To aid in its task of fulfilling the statutory mandate
to review all marketed drugs for their therapeutic efficacy,
whether or not previously approved, FDA retained
the National Academy of Sciences-National Hesearch
Council (NAS- NRC) to create expert panels to
review by class the efficacy of each approved drug.
Holders of 2'\DA's were invited to furnish the panels \vith
'Drug AmPndments of 1962, §§107(r)(2) and (c)(3)(B), 76
Stat. 788, note following 21 U . S. C. § 321.
5 Id., § 107 (c) (4).
WEINBERGER v. HYNSON, WESTCOTT & DUNNING 615
609 Opinion of th<' Court
the best available data to establish the effectiveness of
their drugs.6 The panels reported to FDA; and on
January 23, 1968, FDA announced its policy of applying
the NAS-NRC efficacy findings to all drugs, including
the related "me-too" drugs.7
I
Respondent in No. 72-394, Hynson, Westcott & Dunning,
Inc., had filed an application under the 1938
Act for a drug called Lutrexin, recommended by
Hynson for use in the treatment of premature labor,
threatened and habitual abortion, and dysmenorrhea.
FDA informed Hynson that Hynson's studies submitted
with the application were not sufficiently well
controlled to justify the claims of effectiveness and
urged Hynson not to represent the drug as useful
for threatened and habitual abortion. But FDA allowed
the application to become effective, since the 1938
Act permitted evaluation of a new drug solely on the
grounds of its safety. Before the 1962 amendments
Hynson filed an application for a related drug which
FDA, again on the basis of the test of safety, allowed to
become effective. When the 1962 amendments became
effective and N AS-NRC undertook to appraise the efficacy
of drugs theretofore approved as safe, Hynson submitted
a list of literature references, a copy of an unpublished
study, and a representative sample testimonial
letter on behalf of Lutrexin. The panel of NAS- NRC
6 31 Fed. Reg. 9426.
7 FDA has recently adopt<'<l a regulation declaring the manner
in which Drug Efficacy Study Implemc.ntation Notices and Notices
of Opportunity for Hearing apply to identical, related, and similar
drugs. Any person with an interest in such drugs is provided
an opportunity for hearing on any proposed withdrawal of NDA
approval for the basic or pioneer drug. 37 Fed. Reg. 23185,
adding § 130.40 to 21 CFR.
Gl6 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
working in the relevant field reported to FDA that Hynson's
claims for effectiveness of the drug were either inappropriate
or unwarranted in the absence of submission
of further appropriate documentation. At the invitation
of the Commissioner of Food and Drugs, Hynson submitted
additional data. But the Commissioner concluded
that this additional information was inadequate
and published notice of his intention to ,vithdraw approval
of the NDA's covering the drug, offering Hynson
the opportunity for a prewithdrawal hearing. Before
the hearing could take place, Hynson brought suit in the
District Court for a declaratory judgment that the drugs
in question were exempt from the efficacy review provisions
of the 1962 amendments or, alternatively. that
there was no lack of substantial evidence of the drug's
efficacy. The Government's motion to dismiss was
granted, the District Court ruling that FDA had primary
jurisdiction and that Hynson had failed to exhaust its
administrative remedies.
While the District Court litigation was pending, FDA
promulgated new regulations establishing minimal standards
for "adequate and well-controlled investigations"
and limiting the right to a hearing to those applicants
who could proffer at least some evidence meeting those
standards.8 Although Hynson maintained that it was
not subject to the new regulations because its initial
request for a hearing predated their issuance, it renewed
its request and submitted the material which it claimed
constituted "substantial evidence" of Lutrexin 's effectiveness.
The Commissioner denied the request for a hearing
and withdrew the NDA for Lutrexin. He ruled that
Lutrexin is not exempt from the 1962 amendments and
that Hynson had not submitted adequate evidence that
Lutrexin is not a new drug or is effective. The Court
8 35 Fed. Reg. 7251, amending 21 CFR §§ 130.12 (a) (5) and 130.14.
WEINBERGER v. HYNSON, WESTCOTT & DUNNING 617
609 Opinion of the Court
of Appeals reversed, 461 F. 2d 215, holding that while the
drug in question was not exempt, Hynson was entitled
to a hearing on the substantial-evidence question.
Section 505 ( e) 9 directs FDA to withdm,;v approval
of an NDA if the manufacturer fails to carry the burden
of showing there is "substantial evidence" '0 respecting
the efficacy of the drug. As the Court of Appeals says,
"substantial evidence" was substituted for "preponderance"
of the evidence. 461 F. 2d, at 220. The Act and
the Regulations, in their reduction of that standard to
detailed guidelines,11 make FDA's so-called administrative
summary judgment procedure appropriate.
The general contours of "substantial evidence" are defined
by § 505 ( cl) of the Act to include "evidence consisting
of adequate and \.vell-controlled investigations,
including clinical investigations, by experts qualified by
scientific training and experience to evaluate the effectiveness
of the drug involved, on the basis of which it
could fairly and responsibly be concluded by such experts
that the drug will have the effect it purports or is represented
to have under the conditions of use prescribed,
recommended, or suggested in the labeling or proposed
labeling thereof." 21 U.S. C. §355(d). Acting pur-
9 Section .505 (c) as amended, 21 U. S. C. § 355 (e) , provides in
relevant part:
"The Secretary shall, after due notice and opportunity for hearing
to the applicant, withdraw approval of an application with respect
to any drug under this section if the Secretary finds ... (3) on
the basis of new information before him with respect to such drng,
evaluated tog<"thn with the evidence available to him when the application
was approved, that there is a lack of substantial evidence
that thf' drug will have the effect it purports or is rrpresented to
havP under the conditions of use prescribed, recommended, or suggested
in the labeling thereof . "
10 See n. 3, supra.
11 Title 21 CFR §130.12(a)(5) as amended, 35 Fed. Reg. 7251,
is set forth in relevant 1iart in an Appendix to this opinion.
OCTOBER TER:.\I, 1972
Opinion of the Court 412 U.S.
suant to his "authority to promulgate regulations for the
efficieut euforcement'' of the Act, § 701 (a), 21 'C. S. C.
§ 371 (a), the Commissioner has detailed the "principles
... recognized by the scientific community as
the essentials of adequate and well-controlled clinical
iuvestigations. They provide the basis for the determination
whether there is 'substantial evidence' to support
the claims of effectiveness for 'new drugs' .... "
21 CFR § 130.12 (a)(5)(ii). They include a "plan or
protocol" setting forth the objective of the study and
an adequate method for selecting appropriate rnbjects,1
~
explaining the methods of observation and steps taken
to minimize bias, providing a comparison by one of
four "recognized" methods of the results of treatment
or diagnosis with a control. and summarizing the methods
of analysis, including any appropriate statistical methods.
Id., § 130.12 (a)(5)(ii)(a). Xo investigation will
be considered ''adequate for approval of a new drug"
unless the test drug is "standardizf'd as to identity,
strC'ngth, quality, purity, and dosage form to give signifi.-
ranre to the results of the investigation." Id., § 130.12
( a) ( 5) (ii)( b). Finally, the regulation providE's that
" [ u J ncontrolled studiE's or partially controlled studies are
not acceptable as the sole basis for the approval of claims
of effectivE>ncs:-. Ruch studies, carefully conducted and
documented, may providr corroborative support ....
Isolated case reports, random €'xperienrc, and reports
lacking the details which permit scientific evaluation will
not be considered." Id., § 130.12 (a){5)rii)(c).
Lower courts have upheld the validity of thePe regu-
12 ~ubjl'ds mu~t he rhosPn so that thPy are "i=:uitabll' for the purposPs
of thP ,tud~·," a~signPd to te,t group.~ in fiuch a way as to
minunize bia,, and <'Omparable 111 tC'rm, of ''pntinent variables, su<'h
as age, SPX, SPverity, or duration of <lisea,e. nnd 11~e of drugs other
than the test drug." 21 CFR §130.12(a)(5)(ii)(a)(2).
WEINBERGER v. HYNSON, WESTCOTT & DUNNING 619
609 Opinion of the Court
lations, '" and it is not disputed here that they express
well-established principles of scientific investigation.
Moreover, their strict and demanding standards, barring
anecdotal evidence indicating that doctors "believe" in
the efficacy of a drug, are amply justified by the legislative
history. The hearings underlying the 1962 Act show a
marked concern that impressions or beliefs of physicians,
no matter how fervently held, are treacherous.14
Congress in its definition of "substantial evidence" in
§ 505 ( d) wrote the requirement of "evidence consisting
of adequate and well-controlled investigations." The
Senate Report makes clear that an abrupt departure vms
being taken from old norms for marketing drugs. There
had been mounting concern over efficacy of drugs as \Vell
as their safety.'" The Report stated: 16
"[A] claim could be rejected if it were found
(a) that the investigations were not 'adequate';
( b) that they were not 'well controlled'; ( c) that they
had been conducted by experts not qualified to
evaluate the effectiveness of the drug for ·which the
application is made; or ( d) that the conclusions
13 Upjohn Co. v. Finch, 422 F. 2d 944 (CA6); Pharmaceutical
Manufacturers Assn. v. Uichardson, 318 F. Supp. 301 (Del.). FDA
was enjoined from enforcing the regulations as originally issued
on September 19, 1969, 34 Fed. Reg. 14.596, on the ground that
FDA had not romplicd with the notice requirements of the Administrative
Procedure Act. Pharmaceutical Manufacturers Assn. v.
Finch, 307 F. Supp. 858 (Del.). The regulations were reissued in
their current form on }fay 8, 1970. 35 Fed. Reg. 7251.
14 See Hearing, on S. 1552 before the Subcommittee on Antitrust
and Monopoly of the' Senate Committee on the .Tudiciary, 87th Cong.,
1st Sess., pt. 1, pp. 195, 282, 411-412. :\Iuch of this aspect of the
legislative background of the 1962 Act is reviewed in enlightening
detail by Judge Latchum in Pharmaceutical Afanufacturers Awn. v.
Richardson, supra, at 306 et seq.
15 S. Rep. Ko. 1744, 87th Cong., 2d Sess., pt. 2, p. 1.
10 Id., at 6.
620 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
drawn by such experts could not fairly and responsibly
be derived from their investigations."
To be sure, the Act requires FDA to give "due notice
and opportunity for hearing to the applicant"
before it can withdraw its approval of an NDA. § 505
(e), 21 U. S. C. § 355 (e). FDA, however, by regulation,
requires any applicant who desires a hearing to
submit reasons "·why the application . . . should not
be withdrawn, together with a well-organized and fullfactual
analysis of the clinical and other investigational
data he is prepared to prove in support of his opposition
to the notice of opportunity for a hearing. . . . \Vhen it
clearly appears from the data in the application and from
the reasons and factual analysis in the request for the
hearing that there is no genuine and substantial issue
of fact ... , e. g., no adequate and well-controlled clinical
investigations to support the claims of effectiveness,"
the Commissioner may deny a hearing and enter an order
withdrawing the application based solely on these data.
21 CFR § 130.14 (b). \Vhat the agency has said. then, is
that it v,:ill not provide a formal hearing where it is apparent
at the threshold that the applicant has not tendered
any evidence which on its face meets the statutory
standards as particularized by the regulations.
The propriety of such a procedure was decided in
United States v. Storer Broadcasting Co., 351 U. S. 192.
205, and FPC v. Texaco, 377 1J. S. 33, 39. We mid in
Texaco:
"[T]he statutory requirement for a hearing under
§ 7 [ of the X atural Gas Act] does not preclude the
Commission from particularizing statutory standards
through the rulemaking process and barring at the
threshold those who neither measure up to them nor
show reasons why in the public interest the rule
should be waived." Ibid.
WEINBERGER v. HYKSON, WESTCOTT & DUNNING 621
609 Opinion of the Court
There can be no question that to prevail at a hearing
an applicant must furnish evidence stemming from "adequate
and well-controlled investigations." We cannot
impute to Congress the design of requiring, nor does due
process demand, a hearing when it appears conclusively
from the applicant's "pleadings" that the application
cannot succeed.]7
The NAS-NRC panels evaluated approximately 16,500
claims made on behalf of the 4,000 drugs marketed pursuant
to effective NDA's in 1962. Seventy percent of
these claims were found not to be supported by substantial
evidence of effective11ess. and only 434 drugs were
found effective for all their claimed uses. If FDA
were required automatically to hold a hearing for each
product whose efficacy was questioned by the NAS-NRC
study, even though many hearings '°';ould be an exericse
in futility, ·we have no doubt that it could not fulfill its
statutory mandate to remove from the market all those
drugs which do not meet the effectiveness requirements
of the Act.
17 This applic-s, of course, only to those regulations that are precise.
For example, the plan or protocol for a study must include "[a] snmmar~'
of the methods of analysis and an evaluation of data. derived
from thC' study, including an~· appropriate statistirnl methods." 21
CFR § 130.12 (a) (5) (ii) (a) (5). A mere reading of the study submitted
will indieate whethC'r the study is totally deficit>11t in thi~
regard. Some of the regulations, however, arc not pre('i•r, as they
call for the exercise of discretion or subjertive judgment in determining
whether a study i0 adequate and well controlled. For PYample,
§ 130.12 (a) (.5) (ii) (a) (2) (i) requires thnt tlH' plan or proto('ol
for thC' study include a method of selection of the subjects that
provide "adequate assurance that thc-y are suitable for the purposes
of the study." (Emphasis added.) The qualitative standards "adequate"
and ''suitabl('" do not lend themselves to clear-rut dc-finition.
and it may not br possible to tell from the face of a study whether
the standards have been met. Thus, it might not bf' proper to deny
a hearing on the ground that the study did not comply with this
regulation.
622 OCTOBER TER:VI, 1972
Opinion of the Court 412 U.S.
If this were a case involving trial by jury as provided
in the Seventh Amendment, there would be sharper limitations
on the use of summary judgment,18 as our decisions
reveal. See, e. g., Adickes v. Kress & Co., 398
U. S. 144, 153- 161; White Motor Co. v. United Sta.tes,
372 "CJ. S. 253. But Congress surely has great leeway in
setting standards for releasinp: on the public, drugs which
may well be miracles or, on the other hand, merely easy
money-making schemes through use of fraudulent articles
labeled in mysterious scientific dress. The standard of
"well-controlled investigations" particularized by the
regulations is a protective measure designed to ferret out
those drugs for which there is no affirmative, reliable evidence
of effectiveness. The drug manufacturers have full
and precise notice of the evidence they must present to
sustain their NDA's, and under these circumstances we
find FDA hearing regulations unexceptionable on any
statutory or constitutional ground.
Our conclusion that the summary judgment procedure
of FDA is valid does not end the matter, for Hynson
argues that its submission to FDA satisfied its threshold
burden. In reviewing an order of the Commissioner
denying a hearing, a court of appeals must determine
whether the C'ommissioner's findings accurately reflect
the study in question and if they do, whether the deficiencies
he finds conclusively ren<ler the study inadequate
or uncontrolled in light of the pertinent r eg ulations.19
18 Under the Rules of Ci\'il Procedure the party moving for summary
judgment has the burden of showing the absence of a genuine
issue as to any material fact. Adickes v. Kress & Co., 398 -U. S.
144, 157.
19 l'nder the Administrative Procc•dure Act, a court r<>Yirws agency
findings to determine whether th<'y are supported by substantial
evidence only in a case subject to the hearing provisions of 5 U. S. C.
§§ 5.56 and 557 or "otherwise reviewed on the rrrord of an agency
hearing provided by statute .... " 5 U. S. C. § 706 (2) (El This
WEINBERGER v. HYNSON, WESTCOTT & DUNNING 623
609 Opinion of the Court
There is a contrariety of opinion within the Court concerning
the adequacy of Hynson's submission. Since a
majority are of the view that the submission was sufficient
to warrant a hearing, we affirm the Court of Appeals
on that phase of the case.
II
No. 72-414 is a cross-petition by Hynson from the judgment
of the Court of Appeals. This cross-petition raises
questions concerning the "new drug" provisions of the
1962 amendments. The Court of Appeals suggested that
only a district court has authority to determine whether
Lutrexin is a "ne,v drug." The Government contends
that the Commissioner has authority to determine new
drug status in proceedings to withdraw approval of the
product's NDA under § 505 (e). Although Hynson
agrees, some of the manufacturers, parties to other suits
in this group of cases, advance the contrary view.
Prior to 1938 there ,vas no machinery for the premarketing
approval of drugs sold in commerce. Under
the 1906 Act, 34 Stat. 768, adulterated and misbranded
drugs were narrowly defined, and the Act provided only
criminal sanctions and seizure by libel for condemnation.
As previously noted, the 1938 Act provided for regulatory
clearance of drugs prior to marketing and for administrative
suspension of any clearance if required in the interests
of public safety. To introduce a new drug an application
had to be effective with respect to that drug. The
application was to become effective within a fixed period
unless the agency after notice and opportunity for hearing
refused to permit it to become effective, finding that
is not such a case. The question with which we are concerned involves
the initial agency determination whether a hearing is required
by statute. Sec Pfizer, Inc. v. Richardson, 434 F. 2d 536, 546- 547
(CA2).
624 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
it could not determine from existing evidence or had not
been shown that it was safe. 52 Stat. 1041-1042, 1052.
Any NDA could be suspended if clinical experience or
new testing showed that the drug was not safe. Id., at
1053. Orders denying or suspending an NDA were reviewable
on the administrative record in a district court.
Ibid. Marketing a new drug without an effective NDA
could be enjoined or made the basis of a criminal prosecution,
or the drug could be seized in libel and condemnation
proceedings.
There was a steady stream of NDA's under that Act
supported by voluminous data.20 Many new drugs
claiming "me-too" status were marketed illegally or
were launched with an advisory opinion of FDA that
they were recognized as safe. It is estimated that by
1969 there were five identical or similar drugs for every
drug with an effective NDA. Enormous administrative
problems were created. Each NDA contained about 30
volumes, a stack 10 to 12 feet high; and some contained
as many as 400 volumes of data.
It is clear to us that FDA has power to determine
whether particular drugs require an approved NDA in
order to be sold to the public. FDA is indeed the
administrative agency selected by Congress to administer
the Act, and it cannot administer the Act intelligently
and rationally unless it has authority to determine what
drugs are "new drugs" under § 201 (p) and whether they
are exempt from the efficacy requirements of the 1962
amendments by the grandfather clause of § 107 (c)(4).
Regulatory agencies have by the requirements of particular
statutes usually proceeded on a case-by-case basis,
giving each person subject to regulation separate hear-
20 1939 Annual Report FDA; 1941 Annual Report FDA; Annual
Reports Federal Security Agency (1938-1952); Annual Reports
HEW (1953-1962).
WEINBERGER v. HYNSON, WESTCOTT & DUNNING 625
609 Opinion of the Court
ings. But there is not always a constitutional reason
why that must be done. United States v. Storer Broadcasting
Co., 351 U. S. 192, is one example. We there
upheld rules of the Federal Communications Commission
limiting the number of broadcasting stations a single
individual might own, saying that that was a proper
exercise of the agency's "rule-making authority necessary
for the orderly conduct of its business." Id., at 202.
The comprehensive, rather than the individual, treatment
may indeed be necessary for quick effective relief. See
Permian Basin Area Rate Cases, 390 U.S. 747. A generic
drug-which is found to be unsafe and/ or lacking in
efficacy- may be manufactured by several persons or
manufacturers. To require separate judicial proceedings
to be brought against each, as if each were the owner of a
Black Acre being condemned, would be to create delay
where in the interests of public health there should be
prompt action. A single administrative proceeding in
which each manufacturer may be heard is constitutionally
permissible measured by the requirements of procedural
due process.
FDA maintains that a withdrawal of any NDA approval
covers all "me-too" drugs. For the reasons stated,
that procedure is a permissible one where every manufacturer
of a challenged drug has an opportunity to be
heard. FDA under § 554 of the Administrative Procedure
Act may issue a declaratory order governing all
drugs covered by a particular NDA. 5 U. S. C. § 554 ( c).
That section prescribes the procedures an agency must
follow "in every case of adjudication required by statute
to be determined on the record after opportunity for an
agency hearing." § 554 (a). The industry maintains
that § 554 (e) is of no av:ail to FDA because in a withdrawal
proceeding a common issue is whether a drug is a
"new drug." That issue, it is argued, can be resolved only
in a court proceeding where there is an adjudication
626 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
"on the record of [aJ hearing." But that assumes an individualized
hearing and ad,judication as is common in
regulatory proceedings. Section 554 ( e), however, does not
place administrative proceedings in that straitjacket. It
provides that an agency "in its sound discretion, may issue
a declaratory order to terminate a controversy or remove
uncertainty." The termination of a controversy over a
"new drug" may often be of prime importance. This
is an age of ever-expanding dockets at the administrative
as well as at the judicial level. If the administrative
controls over drugs are to be efficient, they must be exercised
with dispatch. Only paralysis would result if caseby-
case battles in the courts ,vere the only way to protect
the public against unsafe or ineffective drugs. Moreover,
if every "me-too" drug in a particular generic category
had to be put to the test in court actions, great
inequities might well result. It might take months to
eliminate one "me-too" drug manufactured by one company
from the market. Meanwhile, competitors selling
drugs in the same category would go scot-free until the
tedious and laborious procedures of litigation reached
them. We cannot believe that Congress engaged in such
an exercise in futility when it enacted the 1962 amendments.
That would in effect restore the enforcement
provisions to the status they enjoyed under the rather
primitive 1906 A.ct. We hold that FDA by reasons of
§ 554 ( e) of the Administrative Procedure Act may issue
a declaratory order to t erminate a controversy over a
"new drug" or to remove any uncertainty whether a particular
drug is a "new drug" within the meaning of § 201
(p) (1) of the 1938 Act. See Abbott Laboratories v.
Gardner, 387 U. S. 136.
It is argued , however, that the only lawful purpose of
an FDA hearing is to allow it a method for determining
which lawsuits it will file in the future. Yet that is
only anoth er version of the tactics of delay and procrasWEINBERGER
v. HYNSON, WESTCOTT & DUNNING 627
609 Opinion of the Court
tination which the industry offers a.s the way best to
serve industry's needs. The public needs are, however,
opposed and paramount. We do not accept the invitation
to hold that FDA has no jurisdiction to determine
whether a particular drug is a "new drug" and to decide
whether an NDA should be withdrawn.
Its determination that a product is a "new drug" or
a "me-too" drug is, of course, reviewable. But its jurisdiction
to determine whether it has jurisdiction is as
essential to its effective operation as is a court's like
power. Cf. United States v. Shipp, 203 U. S. 563, 573.
The heart of the new procedures designed by Congress
is the grant of primary jurisdiction to FDA, the expert
agency it created. FDA does not have the final say,
for review may be had, not in a district court ( except in
a limited group of cases we will discuss), but in a court
of appeals. FDA does not have unbridled discretion to
do what it pleases. Its procedures must satisfy the rudiments
of fair play. Judicial relief is available only after
administrative remedies have been exhausted.
It is argued that though FDA is empowered to decide
the threshold- question whether the drug is a "new drug,"
that power is only an incident to its power to approve or
withdraw approval of NDA's. Some manufacturers,
however, have no NDA's in effect and are not seeking
approval of any drugs. Nevertheless, FDA may make a
declaratory order that a drug is a "new drug." While
that order is not reviewable in the court of appeals
under § 505 (h), it is reviewable by the district court
under the Administrative Procedure Act. 5 U. S. C.
§§ 701-704; Citizens to Preserve Overton Park v. Volpe,
401 U. S. 402, 410; Abbott Laboratories v. Gardner, supra,
at 139-148. By analogy an agency order declaring a
commodity not exempt from regulation is normally a
declaratory order that is reviewable, as we held in Frozen
Food Express v. United States, 351 U. S. 40.
628 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
The question then presented is whether FDA properly
exercised its jurisdiction in this instance. As indicated
above, Hynson in requesting an administrative hearing
also asked FDA to decide that Lutrexin is not a ''new
drug" within the meaning of § 201 (p) as amended, 21
U. S. C. § 321 (p) .21 In addition, it asked that Lutrexin
be "grandfathered" under § 107 (c)(4) of the 1962
amendments.22 The Commissioner rejected both claims.
Finding that Hynson had failed to present any evidence
of adequate and well-controlled investigations in support
21 That section provides:
"The term 'new drug' means-
" ( 1) Any drug ( except a new animal drug or an animal feed
bearing or containing a new animal drug) the composition of which
is such that such drug is not generally recognized, among experts
qualified by scientific training and experience to evaluate the safety
and effectiveness of drugs, as safe and effective for use under the
conditions prescribed, recommended, or suggested in the labeling
thereof, except that such a drug not so recognized shall not be
deemed to be a 'new drug' if at any time prior to the enactment
of this chapter it was subject to the Food and Drugs Act of June 30,
1906, as amended, and if at such time its labeling contained the same
represent a !ions concerning the conditions of its use; or
"(2) Any drug (except a new animal drug or an animal feed
bearing or containing a new animal drug) the composition of which
is such that such drug, as a result of investigations to determine its
~afety and effectiveness for use under such conditions, has become
so recognized, but which has not, otherwise than in such invest igations,
been used to a material extent or for a material time under
such conditions."
22 That section provides:
"In the case of any drug which, on the day immediately prereding
the enactment date, (A) was commercially used or sold in
the United States, (B) was not a new drug as defined by section
201 ( p) of the basic Act as then in force, and ( C) was not conred
by an effective application under section 505 of that Act, the amendments
to section 201 (p) made by this Act shall not apply to such
drug when intended solely for use under conditions prescribed, recommended,
or suggested in labeling with respect to such drug on that
day."
WEINBERGER v. HYNSON, WESTCOTT & DUNNING 629
609 Opinion of the Court
of Lutrexin's effectiveness, he concluded that "there is
no data base upon which experts can fairly and responsibly
conclude that the safety and effectiveness of the
drugs has been proven and is so well established that the
drugs can be generally recognized among such experts as
safe and effective for their intended uses." The Commissioner
also held that Lutrexin is not exempt under
§ 107 (c)(4) because its NDA, which had become effective
in 1953, had not been withdrawn prior to the enactment
of the 1962 amendments and thus was "covered by
an effective application" within the meaning of § 107
(c)(4)(C). The Court of Appeals affirmed the Commissioner's
ruling that Lutrexin is not exempt under
§ 107 ( c )( 4). It did not discuss his holding that Lutrexin
currently is a "new drug." Although we agree that the
Commissioner properly ruled that Lutrexin does not
come within§ 107 (c)(4), we conclude that the Commissioner's
order with respect to Lutrexin's "new drug"
status must be vacated.
The thrust of § 201 (p) is both qualitative and quantitative.
The Act, however, nowhere defines what constitutes
"general recognition" among experts. Hynson
contends that the "lack of substantial evidence" is applicable
only to proof of the actual effectiveness of drugs
that fall within the definition of a new drug and not to
the initial determination under § 201 (p) whether a drug
is "generally recognized" as effective. It would rely
solely on the testimony of physicians and the extant
literature, evidence that has been characterized as "anecdotal."
We agree with FDA, however, that the statutory
scheme and overriding purpose of the 1962 amendments
compel the conclusion that the hurdle of "general recognition"
of effectiveness requires at least "substantial evidence"
of effectiveness for approval of an NDA. In the
absence of any evidence of adequate and well-controlled
investigation supporting the efficacy of Lutrexin, a fortiori
630 OCTOBER TERM, 1972
Opinion of the Court 412 u. s.
Lutrexin would be a "new drug" subject to the provisions
of the Act. 23
As noted, the 1962 amendments for the first time gave
FDA power to scrutinize and evaluate drugs for effectiveness
as well as safety. The Act requires the Commissioner
to disapprove any application when there is a lack of "substantial
evidence" that the applicant's drug is effective.
§ 505 (d), 21 U.S. C. § 355 (d). Similarly, he may withdraw
approval for any drug if he subsequently determines
that there is a lack of such evidence. § 505 ( e), 21
U. S. C. § 355 ( e). Evidence may be accepted only if
it consists of "adequate and well-controlled investigations,
including clinical investigations, by experts qualified by
scientific training and experience to evaluate the effectiveness
of the drug involved .... " §505 (d), 21 U.S. C.
§ 355 (d). The legislative history of the Act indicates
that the test was to be a rigorous one. The "substantial
evidence" requirement reflects the conclusion of Congress,
based upon hearings,2" that clinical impressions of practicing
physicians and poorly controlled experiments do not
constitute an adequate basis for establishing efficacy.
This policy underlies the regulations defining the contours
of "substantial evidence": "Uncontrolled studies
or partially controlled studies are not acceptable as the
sole basis for the approval of claims of effectiveness.
Such studies, carefully conducted and documented, may
provide corroborative support of well-controlled studies
. . . . Isolated case reports, random experience,
and reports lacking the details which permit scientific
evaluation will not be considered." 21 CFR § 130.12
(a) ( 5) ( jj )( C) .
23 It also follows that if Hynson were not entitled to a hearing
under § 505 ( e), it would not be entitled to a hearing on its claim
that Lutrexin is not a "new drug."
24 See Hearings, supra, n. 14.
WEINBERGER v. HYNSON, WESTCOTT & DUNNING 631
609 Opinion of the Court
These efficacy requirements were not designed to be
prospective only. Clearly, after the initial two-year
moratorium on existing drugs, FDA has the power to
withdraw an application which became effective prior to
the adoption of the 1962 amendments, if the applicant
has not provided "substantial evidence" of the drug's
efficacy. The Act plainly contemplates that such drugs
will be evaluated on the basis of adequate and wellcontrolled
investigations. Hynson would have us hold
that withdrawal proceedings can be thwarted by a
showing of general recognition of effectiveness based
merely on expert testimony and reports with respect to
investigations and clinical observation regardless of the
controls used. But, we cannot construe § 201 (p) to
deprive FDA of jurisdiction over a drug which, if subject
to FDA regulation, could not be marketed because it had
not passed the "substantial evidence" test. To do so
"would be to impute to Congress a purpose to paralyze
with one hand what it sought to promote with the other."
Clark v. Uebersee Finanz-Korp., 332 U.S. 480, 489.
Moreover, the interpretation of § 201 (p) urged by
Hynson is not consistent with the statutory scheme as it
operates on a purely prospective basis. Under subsection
(2), a drug cannot transcend "new drug" status until
it has been used "to a material extent or for a material
time." Yet, a drug cannot be marketed lawfully before
an NDA has been approved by the Commissioner on the
basis of "substantial evidence." As the Solicitor General
argues, "the Act is designed so that drugs on the
market, unless exempt, will have mustered the requisite
scientifically reliable evidence of effectiveness long before
they are in a position to drop out of active regulation by
ceasing to be a 'new drug.' "
It is well established that our task in interpreting
separate provisions of a single Act is to give the Act "the
most harmonious, comprehensive meaning possible" in
632 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
light of the legislative policy and purpose. Clark v.
Uebersee Finanz-Korp., supra, at 488; see United States
v. Bacto-Unidisk, 394 'C. S. 784, 798. We accordingly
have concluded that a drug can be "generally recognized"
by experts as effective for intended use within the meaning
of the Act only \Vhen that expert consensus is founded
upon "substantial evidence" as defined in§ 505 (d). We
have held in No. 72-394, however, that the Commissioner
was not justified in withdrawing Hynson's NDA without
a prior hearing on ,vhether Hynson had submitted "substantial
evidence" of Lutrexin's effectiveness. Consequently,
any ruling as to Lutrexin's /(new drug" status is
premature and must a,vait the outcome of this hearing.
FinaUy, we cannot agree with Hynson that Lutrexin is
exempt from the provisions of the Act by virtue of § 107
(c)(4) of the 1962 amendments. That section provides
that no drug will be treated as a "ne,v drug" if, on the day
preceding the adoption of the amendments, the drug
"(A) was commercially used or sold in the United States,
(B ) was not a new drug as defined by section 201 (p)
of the basic Act as then in force, and (C) was not covered
by an effective application under section 505 of that
Act .... " The applicability of this section turns solely
on whether Lutrexin ,vas "covered" by an effective NDA
immediately prior to the adoption of the 1962 amendments.
Hynson argues that when Lutrexin became generally
recognized as safe and was no longer a "new drug,"
its XDA ceased to be effective.25
05 Hynson also argues that Lutrexin is exempt by operation of
§ 107 (r) (2) , which providPs:
"An application filpd pursuant to section 505 (b) of tlw ba$ir
Art which was •effective' within thl' meaning of that Act on th<'
<la~· immf'diately preceding the ena!'tment date ~hall be deC'[lled, as
of the enactment date, to be an application 'appro,·ed' b~, the Secretary
within the meaning of th<' basic Art as amt>nded by this Act.''
Hynson contends that Lutrexin, genrrnlly re(•ognized as safe prior
WEINBERGER v. HYXSOK, \VESTCOTT & DuN"NING 633
609 Opinion of the Court
That argument draws no statutory support. The 1!)38
Act did not provide any mechanism other than the Commissioner's
suspension authority under § 505 ( e), ,vhereby
an :'\DA once effective could cease to be effective. Indeed,
§ 505 ( e) leads to the conclusion that an NDA remains
effective unless it is suspended. That section
empowers FDA to withdraw approval of an XDA whenever
new evidence comes to light suggesting that the drug
has become unsafe, whether or not the drug was generally
recognized as safe in the interim.
lVloreover, Hynson's argument, as the Court of Appeals
recognized, would render clause { C) superfluous.
L'"nder Hynson's reasoning. any drug that could satisfy
clause (B)-i. e., any drug that had become generally
recognized as safe- automatically would satisfy clause
(C). This construction, therefore, offends the wellsettled
rule of statutory construction that all parts of
a statute, if at all possible, are to be given effect. See.
e. g., Jarecki v. G. D. Searle & Co., 367 U. S. 303. 307;
Ginsberg & Sons v. Popkin, 285 e. S. 204, 208. The
to 1962, was not a "new drug" under :1pplicable standard~ before the
1962 amendment;;. Thus, the argumrnt p;oes. it;; .\'DA had rca;;Pd
to be effecti1·e and could not be dcrmed "nppnmcd" 1111drr § lOi
( r) (2). Consequently, there was no approYal that C'Ould ur withdrawn
in administrative proreC'dingo pursuant to § ,'i05 (<').
This argumrnt shares a common thread with the argunwnt nndC'r
§ 107 (c) (4)-that the KDA for Lutrc>xin had eea~(•d to br rffrrtiYc.
The argument is no more persua~iw under § lOi ( c) (2) th:m § IOi
(c) (-!). In addition, the c·on~trurtion offered b>· H:rn;o11 1rnuld
upset the carefully drawn tran~itionary proYi,ions of §§ lOi (cl (2)
and (c) (3). Sinre the Commi~fionC'r now must affirmatin•l:-· nppron
or di~a ppro\·e all ND A's, § 107 ( c) (2) was cnaded to remo\·e
1he administrative burden of appro1·ing each and e1·ery KDA then
effectin. It al~o protected th<' marketing authority of all manufacturer~
that had rffrcti.-e NDA's. \Vithout this provision. no manufacturer
whosC' drug had become gPm·rally recognized as safe could
haYe continued 'to market the drug if it was not also genPrally recognized
as effective.
634 OCTOBER TERM, 1972
Appendix to opinion of the Court 412 U.S.
interpretation accorded by the Commissioner and the
Court of Appeals, on the other hand, does give clause (C)
operative effect. It would limit the exemption to drugs,
generally recognized as safe, which had not come under
the blanket of an effective NDA. This interpretation
accords with the legislative history which suggests that
the exemption is afforded only for drugs that never had
been subject to new drug regulation.2G
Except for the modification with respect to Lutrexin's
"new drug" status, the judgment of the Court of Appeals
IS Affirmed.
MR. JUSTICE BRENN AN took no part in the consideration
or decision of these cases. MR. JUSTICE STEWART
took no part in the decision of these cases.
APPENDIX TO OPINION OF THE COURT
Title 21 CFR § 130.12 (a) (5) provides:
(ii) The following principles have been developed over
a period of years and are recognized by the scientific community
as the essentials of adequate and well-controlled
clinical investigations. They provide the basis for the
determination whether there is "substantial evidence" to
support the claims of effectiveness for "new drugs" and
antibiotic drugs.
26 See S. Rep. No. 1744, 87th Cong., 2d Sess, pt. 2, p. 8; H. R. Rep.
No. 2464, 87th Cong., 2d Sess., 12; H. R. Rep. No. 2526, 87th
Cong., 2d Sess., 22-23. Hynson contends that the construction
afforded by FDA renders the exemption nugatory and defeats the
legislative purpose. The provision, however, does exempt drugs that,
as a generic class, were never subject to new drug regulation. These
consist primarily of over-the-counter drugs which, although they
were not "grandfathered" under the 1938 Act, were not subject to
new drug regulation because of universal recognition of the safety
of their old, established ingredients at the time they came on the
market.
WEINBERGER v. HYNSON, WESTCOTT & DUNNING 635
609 Appendix to opinion of the Court
(a) The plan or protocol for the study and the report
of the results of the effectiveness study must include the
following:
(1) A clear statement of the objectives of the study,
(2) A method of selection of the subjects that-
(i) Provides adequate assurance that they are suitable
for the purposes of the study, diagnostic criteria of the
condition to be treated or diagnosed, confirmatory laboratory
tests where appropriate, and, in the case of prophylactic
agents, evidence of susceptibility and exposure to
the condition against which prophylaxis is desired.
( ii) Assigns the subjects to test groups in such a way
as to minimize bias.
( iii) Assures comparability in test and control groups
of pertinent variables, such as age, sex, severity, or duration
of disease, and use of drugs other than the test drug.
(3) Explains the methods of observation and recording
of results, including the variables measured, quantitation,
assessment of any subject's response, and steps taken to
minimize bias on the part of the subject and observer.
( 4) Provides a comparison of the results of treatment
or diagnosis with a control in such a fashion as to permit
quantitative evaluation. The precise nature of the control
must be stated and an explanation given of the
methods used to minimize bias on the part of the observers
and the analysts of the data. Level and methods of
"blinding," if used, are to be documented. Generally,
four types of comparison are recognized:
(i) No treatment: Where objective measurements of
effectiveness are available and placebo effect is negligible,
comparison of the objective results in comparable groups
of treated and untreated patients.
( ii) Placebo control: Comparison of the results of use
of the new drug entity with an inactive preparation designed
to resemble the test drug as far as possible.
636 OCTOBER TERM, 1972
Appendix to opinion of the Court 412 U.S.
( iii) Active treatment control: An effective regimen
of therapy may be used for comparison, e. g., where the
condition treated is such that no treatment or administration
of a placebo would be contrary to the interest of
the patient.
(iv) Historical control: In certain circumstances, such
as those involving diseases with high and predictable
mortality (acute leukemia of childhood), with signs and
symptoms of predictable duration or severity (fever in
certain infections), or in case of prophylaxis, where
morbidity is predictable, the results of use of a new drug
entity may be compared quantitatively with prior experience
historically derived from the adequately documented
natural history of the disease or condition in
comparable patients or populations with no treatment or
with a regimen ( therapeutic, diagnostic, prophylactic)
the effectiveness of which is established.
( 5) A summary of the methods of analysis and an
evaluation of data derived from the study, including any
appropriate statistical methods.
Provided, however, That any of the above criteria may
be waived in whole or in part, either prior to the investigation
or in the evaluation of a completed study, by the
Director of the Bureau of Drugs with respect to a specific
clinical investigation; a petition for such a waiver may be
filed by any person who would be adversely affected by
the application of the criteria to a particular clinical investigation;
the petition should show that some or all of
the criteria are not reasonably applicable to the investigation
and that alternative procedures can be, or have been,
followed, the results of which will or have yielded data
that can and should be accepted as substantial evidence
of the drug's effectiveness. A petition for a waiver shall
set forth clearly and concisely the specific provision or
provisions in the criteria from which waiver is sought,
why the criteria are not reasonably applicable to the parWEINBERGER
v. HYNSON, WESTCOTT & DUNNING 637
609 Opinion of POWELL, J.
ticular clinical investigation, what alternative procedures,
if any, are to be, or have been, employed, what results
have been obtained, and the basis on which it can be, or
has been, concluded that the clinical investigation will or
has yielded substantial evidence of effectiveness, notwithstanding
nonconformance with the criteria for which
waiver is requested.
( b) For such an investigation to be considered adequate
for approval of a new drug, it is required that the
test drug be standardized as to identity, strength, quality,
purity, and dosage form to give significance to the results
of the investigation.
( c) Uncontrolled studies or partially controlled studies
are not acceptable as the sole basis for the approval of
claims of effectiveness. Such studies, carefully conducted
and documented, may provide corroborative support of
well-controlled studies regarding efficacy and may yield
valuable data regarding safety of the test drug. Such
studies will be considered on their merits in the light of
the principles listed here, with the exception of the requirement
for the comparison of the treated subjects with
controls. Isolated case reports, random experience, and
reports lacking the details which permit scientific evaluation
will not be considered.
MR. JUSTICE POWELL, concurring in part, and concurring
in the result in part.
I concur in Part II of the Court's opinion, which disposes
of the issues raised by Hynson, Westcott &
Dunning, Inc., in its cross-petition (No. 72-414).
As to Part I, which addresses issues raised in the petition
filed by the Commissioner of FDA (No. 72- 394), I
concur only in the result and state briefly the limited
sense in which I accept the Court's conclusion.
Insofar as the Court. today sustains the holding below
that Hynson's submission to FDA raised "a genuine and
638 OCTOBER TER:\I, 1972
Opinion of POWELL, J. 412 U.S.
substantial issue of fact" requiring a hearing on the
ultimate issue of efficacy, 21 CFR § 130.14 (b), I
am in accord. Hynson's presentation in support of the
efficacy of Lutrexin clearly justified a hearing as to
whether the drug was supported by "adequate and ,vellcontrolled
investigations," 21 U. S. C. § 355 ( d), even as
that term is defined in the Commission's regulations. 21
CFR 130.12 (a) ( 5). For this reason I concur in
the result reached in this case. I cannot agree on
this record, however, with any implications or conclusions
in thf' Court's opinion to the effect that the regulationsas
construed and applied by the Commissioner in this
case-are either compatible with the statutory scheme
or constitutional under the Due Process Clause.' Such
questions have not been squarely presented here a.nd, in
light of the Court's conclusion that Hynson has complied
with the regulations, their resolution is unnecessary to
the Court's decision.
Were we required to reach these issues, there might well
be serious doubt whether the Commissioner's rigorous
threshold specifications as to proof of "adequate and wellcontrolled
investigations," coupled with his restrictive
summary judgment regulation, go beyond the statutory
requirements and in effect frustrate the congressional
mandate for a prewithdrawal "opportunity for hearing."
21 U. S. C. § 355 (e). There is also a genuine issue of
procedural due process where, as in this case, the Commissioner
construes his regulations to deny a hearing as
to the efficacy of a drug established and used by the
medical profession for two decades, and where its effec-
1 Cf. J,'uentes v. Shevin, 407 U. S. 67, 80 (1972), and cases cited
therein. I do not question, of course, the authority of the Commissioner
to adopt reasonable regulations C'onsistf'nt with the statute
and which do not, as applif'd, depri,·c persons of their property
without the elementary dnr process of a fair opportunity for a
hearing.
WEINBERGER v. HYNSON, WESTCOTT & DUNNING 639
609 Opinion of PowELL, J.
tiveness is supported by a significant volume of clinical
data and the informed opinions of experts whose qualifications
are not questioned.2
These important and complex questions should await
decision in future cases in which the issues are briefed
fully and are necessary to the Court's decision.
2 There can be no doubt, both from the legislative history and the
language of the 1962 amendments to the Act, that Congress intended
to impose standards that would bar reliance upon anecdotal evidence
or mere professions of belief by doctors as determinative of a drug's
efficacy. But it is also clear that Congress intended to prot.ect
against the arbitrary withdrawal or withholding of approval of a
drug where therr is "substantial evidence" of its effectiveness. To
provide protection against such action, especially when authority is
vested in an official who acts in an administrative as well as judicial
capacity, the Act specifically provides for a hearing. The public
interest is twofold: (i) to remow from the market, in accordance
with due process, drugs of ho utility or effectiveness; and (ii) to
retain on the market those drugs that are efficacious. In an understandable
zeal to remove the former, an administrative agency must
not overlook both the interest of the public and the right of the
proprietor in protecting the drugs that arc useful in the prevention,
control, or treatment of illness.
640 OCTOBER TERM, l!l72
Syllabus 412 U.S.
CIBA CORP. v. WEINBERGER, SECRETARY OF
HEALTH, EDUCATIOX AND WELFARE. ET AL.
CERTIORARI TO THE rNITED STATES COl'R'r OF APPEALS FOR
THR THIRD CIRCUIT
No. 72-528. Argued April 17, 1973-Dericfrd June 18, 1973
Petitioner manufactures a rlrng railed Ritonic Caprnles, for which
it filed a new drug appliration (KDA) that became cff Pc•tive in
l!l.59, on the basis of the drug's safety. After the enactment of
the 1962 nmrndmrnts to the Federal Food. Drug, and Cosmetir
Act, the Food and Drug Admini,tration (FDA) withdrew approval
of the ~DA on tlw gro1111d that there was no substantial
evidence that the dmg wns Pfferti1•e as claimed, under § 505 of
thr Act. Petitioner ~onght rPvirw of the withdrawal order in
thr Court of Appe:ils for the Srcond Circuit, as provided in
§ 50.5 (h), and that court affirmPd the order. Prior to the issuance
of the withdrawal ordPr, petitioner ~ought dcrlaratory and injunctive
relirf in the District Court in )if'w Jersey, which granted the
Government's motion to dismiss the complaint for lack of jurisdirtion.
Th!' Court of Appeals for thr Third Circuit affirmed,
holding that FDA was authorized to drridC' the jmisdictional
quC'stion as an inciclrnt of its power to approvr or withdraw
approval for NDA's, that its decision was revicwable on direct
appeal by a rourt of appeals, and sinc!' the Court of Appeals for
the Serond Circuit had ruled 8gainst rwtitionrr on that appeal,
the jurisdiction8l issue could not be relitigatrd in a separate suit
for a r!eclarntor~• judgm<'nt. Held:
I. FDA !ms jnrisdirtion in an administratin' proce('ding
to detnmi11C' whether a drng prodmt is a "ne1,· drng" witl1in 1hP
meaning of § 201 (p) of the Art. Trrinbcrger v. B entex Pharmaceuticals,
Inc .. post, p. fi4.5. Pp. 643-644.
2. While the Art provides FDA with sanctions, snch as ci,•il
injun<'tion proceedings, rriminal 11en:1lties, and in rem srizurc and
condemnation, to enforce the prohibition against sale in commerce
of any article in Yiolation of§ 505, the Art does not create a dual
system, onP 11dministmtiv<> and the other judicial. P. 644.
3. Whf'r<' petitioner had an opportunity to litigate the "new
drug" issue before FDA and to raise tlw issue on appeal to
CIBA CORP. v. WEINBERGER 641
640 Opinion of the Court
a court of appeals, it may not relitigate the issue m another
proceeding. P. 644.
463 F. 2d 225, affirmed.
DoUGLAS, J., delivered the op1rnon of the Court, in which all
::V1embers joined, execpt BREX~AX, J., who took no part in the consideration
or dreision of the ease, and STEWART, J., who took no part
in the decision of the rase.
Clyde A. Szuch argued the cause and filed a brief for
petitioner.
Deputy Solicitor General Friedman argued the cause
for respondents. On the briefs were Solicitor General
Griswold, Assistant Attorney General Kauper, Andrew L.
Frey, Howard E. Shapiro, George Edelstein, and Peter
Barton Hutt.*
MR. JUSTICE DouGLAS delivered the opm1on of the
Court.
Petitioner manufactures a drug called Ritonic Capsulest
for which it filed a new drug application (NDA)
that became effective in 1959. Under the Act then in
force, an NDA for a "new drug" required the manufacturer
to submit to the Food and Drug Administration
(FDA) adequate proof of the drug's safety. This
*Briefs of amici curiae urging fC'\'crsal werf' filed by Lloyd N.
Cutler, Daniel Marcus, and William '1'. Lake for Pharmaceutical
Manufacturers A,sn., and by Thomas D. Finney, Jr., Thomas Richard
Spradlin, and Daniel F. O'Keefe , Jr., for the Proprietary Assn.
Brua J. T erris. Joseph Onek, and Peter H. Schuck filed a brief
for Anwrimn Publie lfrnlth Assn. C't. al. as amici curiae urging
aftirmancc.
tit is a presC"ription drug rf'rornmenclecl "for 1iatients who are
losing their drive, alertness, vitality and zest for li\ing; bcr·ause of
the natural degenerative changes. of adv:rncing ~·ears"; and for
patients who arc "debilitatf'd or depressed by chronic illuess, o\·erwork,
etr., as well a.s t.l10sr recuperating from illness or surgery."
642 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
particular NDA became effective on the basis of the
drug's safety. As we have noted in the companion
cases, the 1962 amendments to the Federal Food, Drug,
and Cosmetic Act of 1938, 52 Stat. 1040, as amended,
76 Stat. 780, directed FDA to v.:ithdraw approval for
KDA's \Vhich b8came effective prior to that time if,
after notice and opportunity for hearing, it found a lack
of "substantial rvidence" that the drug involved was
effective as claimed in its labeling. And, as we have
noted, "substantial evidence" as used in the Act,
§§ 505 (d) and 505 (e)(3), 21 U. S. C. §§ 355 (d) and
355 (e)(3), means "adequate and well-controlled investigations"
from which experts may conclude that the
drug will have the claimed effect.
A panel of the National Academy of Sciences-
National Research Council (NAS~NRC) reviewed the
claims made for Ritonic Capsules and found it "ineffective"
for each of the claims. FDA concluded there was
a lack of substantial evidence of its efficacy and gave
notice of its intent to withdraw the NDA, offering petitioner
an opportunity to submit the required kind of
data bearing 011 the efficacy of the drug and stating that
withdrawal of approval of the XDA ,vould cause the
Ritonic Capsules to be a "new drug" for which no NDA
was in effect, thcrcb} making future sales unlawful.
Petitioner responded, submitting data on the issue of
efficacy and maintained that Ritonic Capsules was not a
"ne,v drug" for purposes of the Act as amended. FDA
concluded that petitioner's evidence was insufficient to establish
effectiveness and gave notice of a hearing on the
withdrawal of the NDA. Petitioner responded, contested
FDA's authority to proceed further, and claimed
that the product was not a "new drug" under the 1962
Act. It reserved the right to establish its position in
the administrative proceedings, in judicial proceedings,
or i11 both. Petitioner filed no more data to support its
CIBA CORP. v. WEINBERGER 643
1340 Opinion of the Court
position; and accordingly FDA withdrew approval of
the NDA on the ground that there was no substantial
evidence that the drug was effective as claimed. Petitioner
sought review of the withdrawal order in the
Court of Appeals for the Second Circuit, as provided in
§ 505 (h), 21 1:. S. C. § 355 (h). The Court of Appeals
affirmed thP withdrawal order. CIBA-Geigy Corp. v.
Richardson, 446 F. 2d 466.
Meanwhile, and prior to the issuance of the withdrawal
order, petitioner brought suit in the District Court
for the District of New Jersey seeking declaratory and
injunctive relief. After hearing, the District Court
granted the Government's motion to dismiss the complaint
for lack of jurisdiction. On appeal, the Court of
Appeals for the Third Circuit affirmed, 463 F. 2d 225,
holding that FDA was authorized to decide the jurisdictional
question as an incident of its power to approve or
withdraw approval for NDA's, that its decision on that
issue was reviewable on direct appeal by a court of appeals,
and since the Court of Appeals for the Second Circuit had
ruled against petitioner on that appeal, the jurisdictional
question could not be relitigated in a separate suit for a
declaratory judgment. \Ve affirm the Court of Appeals.
\Ve have stated in Weinberger v. Bentex Pharmaceuticals,
Inc., p.?st, p. 645, our reasons for concluding
that FDA has jurisdiction in an administrative proceeding
to determi11e whether a drug product is a "new
drug" within the meaning of § 201 (p) of the Act. 21
U. S. C. § 321 (p). A decision that FDA lacks authority
to determine in its o,vn proceedings the coverage
of the Act it administers. subject of course to judicial
review, would seriously impair FDA's ability to discharge
the responsibilities placed on it by Congress.
As we said in Weinberger v. Hynson, Westcott & Dunning,
Inc., ante, p. 609, and the Bentex case, supra, the
definition of "new drug" as used in § 201 (p) (1) in644
OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
volves a determination of technical and scif'ntific questions
by experts. The agt•ncy is thPrefore appropriately
the arm of Government to make the threshold determination
of the i~su0 of coverage. ('f. Oklahoma Press
J>1iblishing Co. v. Walling, 327 r. f-;. 186. 210-211, n 47.
It is, of course. true that the Act givC's FDA a second
line of defollse civil i11junction procerdings. criminal
penalties, and in rem seizure and condemnation. See
§§ 302 (al. :303, 304, 21 r. S. ('. §§ 332 (a>, 333,
334. Those arr ~anctions to f'nforce the prohibition
of the Art against thr sale in commerce of
any artiele in violation of § 505. But the Act does not
create a dual system of control-one administrative. and
the other judicial. Cases may arise where there has
been no formal administrative determination of the "r.ew
drug'' issue, it being first tendered to a district court.
Even then, however, the district court might well stay
its hand, awaiting an appropriate administrative determination
of the thrf'shold question. 8ee the Bentei:
case. supra. \YherP thPre is. however, an administrativr
determination, whether it be explicit or implicit in
the withdrawal of an NDs\, the tactic of "re~erving" the
threshold question (the jurisdictional issue/ for later judicial
determination is not tolerable. There is judicial
review of FDA's ruling. But petitioner, having an opportunity
to litigate the "new drug" issue brfore FDA
and to raise the issue on appeal to a court of appeals,
may 11ot relitigate the i~sue in another proceeding.
i'akus "· r.:nited States, 321 U. S. 414, 444- 446.
Affirmed.
l\In. JrsTICE BRENNAN took no part in the consideration
or derision of this case. ::\1R. JPSTICE STEWART took
no part in the decision of this case.
WEINBERGER v. BENTEX PHARMACEUTICALS, INC. 645
Syllabus
WEI:-{BERGER, SECRETARY OF HEALTH, EDUCATION,
AND WELFARE, ET AL. v. BENTEX
PHARMACEl'TICALS, INC., E'l' AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT
='l'o. 72-555. Argued April 17, 1973-Decided June 18, 1973
Respondent drug marketers filed suit for a declaratory judgment
that their drugs containing pentylenetetrazol are generally recognized
as safo and effectiYe and thus are not "new drugs" within
the meaning of§ 201 (p) of the Federal Food, Drug, :md Cosmetic
Act of 1938, as amended. They also sought exemption under
§ 107 (c) (4), the grandfather clause, of the 1962 amendments
to the Act. The Food and Drug Administration (FDA) Commissioner,
based on NAS-NRC panel reports, concluded that
there was a lack of substantial evidence that the drugs were effect.
in for thrir intended uses and gave notice of his intention to
initiate proreedings to withdraw approval of the new drug applications
(KDA's). In light of FDA's position that withdrawal
of approval of an NDA would operate to remove marketing
approval for all drugs of similar composition, known as "me-too"
drugs, whether or not expressly covered by an effective NDA,
the Commissioner invited holders of NDA's for drugs containing
pentylenetetrazol "and any interested person who might be adversely
affected by their removal from the market" to submit
"adequate and well-controlled studies" to establish the effectiveness
of the drugs. Only one NDA holder submitted further evidence,
which the Commissioner held did not satisfy the statutory standard.
He gave notice of intent to issue an order withdrawing approval
of the KDA's, and only one NDA holder requested a hearing but
filed no supporting data. The Commissioner issued orders withdrawing
approval of the NDA's and no appeal was taken. Respondents
here all market "me-too" drugs, none of which was
expressly covered by an effective NDA. The District Court held
that FDA should resolve the "new drug" and "grandfather"
issues in an administrative proceeding. The Court of Appeals
reversed and remanded with directions to the District Court to
determine whether the challenged drugs may lawfully be marketed
without approved NDA's, holding that FDA has no juris646
OCTOBER TERM, 1972
Syllabus 412 u. s.
diction, primary or concurrent, to decide what 1s a "new drug"
for which an NDA is required. Held: The District Court's referral
of the "new drug" and "grandfather" issues to FDA was
proper. Pp. 649-654.
(a) While an FDA order denying an NDA and withdrawing
one is reviewable by the Court of Appeals under § 505 (h), an
order declaring a "new drug" status under § 201 (p) is reviewable
under the Administrative Procedure Act by the District Court.
Pp. 651-652.
(b) The reach of scientific inquiry under both § 505 (d) and
§ 201 (p) is the same, Weinberger v. Hynson, Westcott & Dunning,
Inc., ante, p. 609, and it is implicit in the regulatory scheme
that FDA has jurisdiction to decide with administrative :finality,
subject to judicial review, the "new drug" status of individual
drugs or classes of drugs. Pp. 652-653.
(c) The "new drug" and "grandfather" issues are peculiarly
suited to initial determination by FDA with its specialized
competence and expertise. Pp. 653-654.
463 F. 2d 363, reversed.
DouGLAS, J., delivered the opinion of the Court, in which all
:vlembers joined, except BRENNA:-., J., who took no part in the consideration
or decision of the case, and STEWART, J., who took no part
in the decision of the case.
Deputy Solicitor General Friedman argued the cause
for petitioners. On the briefs were Solicitor General
Griswold, Assistant Attorney General Kauper, Deputy
Solicitor General Wallace, Andrew L. Frey, Howard E.
Shapiro, George Edelstein, and Peter Barton Hutt.
George F. Townes argued the cause for respondents.
With him on the brief were Sol E. Abrams and C. Ben
Bowen.*
*Bruce J. Terris, Joseph Onek, and Peter JJ. Schuck filed a brief
for American Public Health Assn. et al. as amici curiae urging
reversal
Briefs of amici curiae urging affirmance were filed by Lloyd N.
Cutler, Daniel 1',forcu.s, and William T. Lake for Pharmaceutical
Manufacturers Assn., and by Thomas D. Finney, Jr., Thom!Ul Richard
Spradlin, and Daniel F. O'Keefe, Jr., for the Proprietary Assn .
WEINBERGER v. BENTEX PHARMACEUTICALS, INC. 647
645 Opinion of the Court
MR. JrsTrCE DOUGLAS delivered the op1mon of the
Court.
In this case Bentcx and some 20 other firms that market
drugs containing pentylenetetrazol filed this suit for
a declaratory judgment that their drugs containing
pentylenetetrazol are generally recognized as safe and
effective, and thus not "ne\v drugs" within the meaning of
§ 201 (p) (1) of the Federal Food, Drug, and Cosmetic
Act of 1938, as amended, 76 Stat. 781, 21 U. S. C. § 321
( p) ( 1). They also sought exemption from the new eff ectiveness
requirements by reason of § 107 ( c )( 4) of the
1962 amendments to the Act, known as the "grandfather"
clause.
As part of the Food and Drug Administration's (FDA's)
Drug Efficacy Study lmplemen tation program, three
separate Xational Acad0my of Sciences-~ational Research
Council (XAS-~RC) panels reviewed the evidence
concerning these drugs, and each concluded that
the drug was "ineffective" for the indicated use. The
Commissioner concluded there was a lack of substantial
evidence that these drugs ·were effective for their intended
uses and gave notice of his intention to initiate proceedings
to withdraw approval of the new drug applications
(XDA's). FDA had taken the position that
withdrawal of approval of an NDA would operate to
remove marketing approval for all drugs of similar composition,
known as "me-too" drugs, whether or not they
were expressly covered by an effective KDA.1 Accord-
' Volume 37 Fed. Reg. 23187, adding § 130.40 to 21 CFR, defines
"idrntical, related, or similar drug" as used in this Act to include
"other brands, potencies, dosage forms, salts, and esters of the same
drug moiety as well as of any drug moiety related in chemical structure
or known pharmacological properties." It also provides all
persons with an interest in such drugs an opportunity for hearing
on any proposed withdrawal of NDA approval for the basic drug.
A district court order directing FDA to apply the NAS-NRC evaluation
to all "me-too" drugs is reproduced in 37 Fed. Reg. 26623-26624.
648 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
ingly, the notice invited the holders of the NDA's for
drugs containing pentylenetetrazol, "and any interested
person who might be adversely affected by
their removal from the market," to submit "adequate
and we11-control1ed studies" to establish the
effectiveness of the drugs. See § 505 ( d), 21 U. S. C.
§ 355 (d). Only one NDA holder submitted further
evidence, which the Commissioner held did not
satisfy the statutory standard. He thereupon gave notice
of intent to issue an order withdrawing approval of
the NDA's under§ 505 (e), 21 U.S. C. § 355 (e). Again,
all those who might be adversely affected by withdrawal
of the NDA's were given the opportunity to participate.
Only one J\TDA holder requested a hearing but filed no
data to support it. The Commissioner issued orders
\vithdrawing approval of the three NDA's (35 Fed. Reg.
14412); no appeal was taken. This suit in the District
Court followed. It appears that all of the parties to
this suit market "me-too" drugs, none of which was expressly
covered by an effective NDA.
The District Court held that although it could determine
whether the drugs were "new" or "grandfathered"
drugs, its jurisdiction was concurrC'nt with that of FDA
and that FDA should resolve the "new drug" issue in an
administrative proceeding. It entered an injunction to
preserve the status quo and ruled that if FDA should
decline to hold a hearing it would determine the issue.
The Court of Appeals reversed and remanded with directions
that the District Court determine whether the
challenged drugs may lawfully be marketed without
approved KDA's. 463 F. 2d 363. It held that FDA
has no jurisdiction, either primary or concurrent, to
decide in an administrative proceeding what is a
"new drug" for which an NDA is required. In its view
the 1962 Act established two forums for the regulation
of drugs: an administrative one for premarketing clearWEINBERGER
v. BENTEX PHARMACEUTICALS, INC. 649
645 Opinion of the Court
ances for "new drugs" or ,vithdrawal of previously approved
NDA's, with the right of appeal; and, second, a
judicial one for enforcement of the requirement that
"new drugs" be cleared as safe and effective before marketing
by providing the Government with judicial remedies
of seizure, injunction, and criminal prosecution
available solely in the District Court. Id., at 371-372.
We reverse the Court of Appeals.
FDA, as a result of an NAS-~RC study and after due
notice, faced up to the problem of proposing withdra,val
of drugs found to be lacking in substantial evidence of
effectiveness. One method would be to have 1,000 withdra,
val hearings-perhaps as many as 3,500, each one
lasting probably for weeks. The cost in time and budget
,vould be enormous. Accordingly, FDA issued regulations,"
already discussed in Weinberger v. Hynson, Westcott
& Dunning, Inc., ante, p. 609, defining the "scientific
principles which characterize an adequate and wellcon
trolled clinical investigation," 3 which elaborates on
the statutory "substantial evidence" test. And, as we
held in Hynson, no basis for a hearing under these regulations
would bP laid unless a party seeking a hearing
proffered at least some evidence of that nature and
quality.
By May 1972, 102 final orders effecting withdrawal of
approval for 452 :ND A's had been issued; and they resulted
in the removal from the market of an additional
1,473 "me-too" drugs.4 FDA was still troubled because
under the 1962 Act no census of the marketplace was
authorized. That is why Congress enacted the Drug
2 35 Fed. Reg. 3073 and 72.50.
3 See the Appendix in Hynson, ante, p. 634.
4 Hearings on the Present. Status of Competition in the Pharmaceutical
Industry before the Subcommittee on Monopoly of the
Senate Select Committee on Small Business, 92d Cong., 2d SPss.,
pt. 22, p. 8525.
650 OCTOBER TER:\-1, 1972
Opinion of the Court 412 U.S.
Listing Act of 1972, 86 Stat. 559, 21 U.S. C. §§ 331 (p),
335 (e), 360 (e), (f), (c), (d) (1970 ed., Supp. II). That
Act requires manufacturers to submit to FDA a list of all
drugs they market, including data showing their composition,
labeling, and ad1rertising.5 The Senate Report
stated: 6
"The effective enforcement of the drug provisions
of the Act requires the ready availability of a current
inventory of all marketed drugs. The Secretary is
just completing a thorough review of the effectiveness
of drugs marketed pursuant to new drug applications
during the period 1938-1962, as required by the
Drug Amendments of 1962. Application of the results
of this important review to related drugs would
be frustrated if a list of all marketed drugs were
not easily obtained."
FDA also realized that it is impossible to apply the
1962 amendments to over-the-counter (OTC) drugs on a
case-by-case basis. There are between 100,000 and
500,000 of these products, few of which ,vere previously
approved by FDA. In May 1972 FDA adopted a procedure
for determining whether particular OTC products,
not covered by NDA's are safe products, not ineffective,
and not misbranded. 37 Fed. Reg. 9464. The procedure
involves the establishment of independent expert panels
for different categories of OTC drugs ( e. g., antacids,
laxatives, analgesics) ,vhich would review all available
data and prepare monographs prescribing drug composition,
labeling, and manufacturing controls. OTC's conforming
to the monograph will 110t be considered either
misbranded or a "new drug" requiring an NDA. The
regulation provides for a hearing before the expert panel,
comments and rebuttal comments on the monograph, and
'' Filings are due in June 1973. 37 Fed. R1:g. 26432.
t. S. R ep. Ko. 92-924, p. 2.
WEINBERGER v. BEKTEX PHARMACEUTICALS, INC. 651
645 Opinion of the Court
finally a hearing before the Commissioner and judicial
review. Id., at 9475.
This case. like the cross-petition in the Hynson case
(Xo. 72-414) raises the question whether FDA has authority
to decide in an administrative hearing ,vhether a
drug satisfies the new· effectiveness requirements of the
Act. As noted, the Commissioner ordered that three
XDA's for the drugs in question be ·withdrawn. Revie,v
of the order was not sought in the Court of Appeals as
provided in§ 505 (h), 21 U.S. C. § 355 (h). Rather, the
aggrieved mallufacturers of "me-too" drugs filed suit in
the District Court, ,Yith the results we have already detailed.
The narrow questiou is ,vhether the FDA may
decide whether a drug is a "ne,v drug" on referral from a
district court.
As already noted, an order denying an NDA or withdrawing
one is reviewable by the Court of Appeals,
§ 505 (h); and we see no reason why Congress could
not make one method of review the exclusive one. Certainly
an order that does not deny or withdraw an NDA
is reviewable under the Administrative Procedure Act, if
it declares a "new drug" status. See Hynson, supra,
at 627. In bolstering that conclusion ,ve should note in
passing that Abbott Laboratories v. Gardner, 387 U. S.
136. 144, said that the provisions stated in this Act for
judicial revie,v do not manifest "a congressional purpose
to eliminate judicial review of other kinds of agency
action .. , "\Vhile § 505 (h) would appear to be the exclusive
method of obtaining jud1cial review of FDA's order
withdrawing an NDA covering the instant drugs, the
Government apparently did not oppose the District
Court's taking jurisdiction, or appeal from its action, and
presents no objection to the exercise by the courts of
jurisdiction in this case. It does, hmvever, strenuously
oppose the conclusions reached by the Court of Appeals.
652 OCTOBER TERTvI, 1972
Opinion of the Court 412 U.S.
That court, in holding that FDA has no jurisdiction
to determine the "new drug" status of a drug, stated
that the question of "new drug" status is never presented
when an application of a manufacturer for approval
is filed. Parties, of course, cannot confer jurisdiction;
only Congress can do so. The line sought to
be drawn by the Court of Appeals is FDA action on
J\TDA's pursuant to 505 (d) and § 505 (e), on the one
hand, and the question of "ne"" drug" determination on
the other. We can discern no such jurisdictional line
under the Act. The FDA, as already stated, may
deny an NDA where there is a lack of "substantial
evidence" of the drug's effectiveness, based, as ,ve have
outlined, on clinical investigation by experts. But the
"new drug" definition under § 201 (p) encompasses a
drug "not generally recognized, among experts qualified
by scientific training and experience to evaluate the
safety and effectiveness of drugs, as safe and effective
for use." ·whether a particular drug is a "new drug,"
depends in part on the expert knowledge and experience
of scientists based on coHtrolled clinical experimentation
and backed by substantial support in
scientific literature. One function is not peculiar to
judicial expertise, the other to admi11istrative expertise.
The two types of cases overlap and strongly suggest that
Congress desired that the administrative agency make
both kinds of determination. Even where no such administrative
determination has been made and the issue
a.rises in a district court in enforcement proceedings, it
would be commonplace for the court to a.wait an appropriate
administrative declaration before it acted. See
Myers v. Bethlehem Shipbuilding Corp., 303 U. S. 41,
50-51; FPC v. Louisiana Power & Light Co., 406 'C'. S.
621, 647. It may, of course. be true that in some cases
general recognition that a drug is efficacious might be
made without the kind of scientific support necessary to
WEINBERGER v. BE~TEX PHARMACElJTICALS, INC. 653
645 Opinion of the Court
obtain approval of an NDA. But, as we indicate in Hynson,
supra, at 631, the reach of scientific inquiry under
both § 505 (d) and § 201 (p) is precisely the same.
We think that it is implicit in the regulatory scheme,
not spelled out in haec verba, that FDA has jurisdiction
to decide with administrative finality, subject
to the types of judicial revie,v provided, the "new drug"
status of individual drugs or classes of drugs. The deluge
of litigation that would follov; if "me-too" drugs and
OTC drugs had to receive de novo hearings in the courts
would inure to the interests of manufacturers and merchants
in drugs, but not to the interests of the public
that Congress was anxious to protect by the 1962 amendments,
as well as OTC drugs and drugs covered by the
1972 Act. \Ve are told that FDA is incapable of handling
a caseload of more than perhaps 10 or lS de novo
judicial proceedings in a year. Clearly, if FDA were
required to litigate, on a case-by-case basis, the "new
drug" status of each drug now marketed, the regulatory
scheme of the Act would be severely undermined, if not
totally destroyed. Moreover, a case-by-case approach is
inherently unfair because it requires compliance by one
manufacturer ·while his competitors marketing similar
drugs remain free to violate the Act. In a case much
more clouded with doubts than this one, we held that we
would not "in the absence of compelling evidence that
such was Congress' intention ... prohibit administrative
action imperative for the achievement of an agency's
ultimate purposes." Permian Basin Area Rate Cases,
390 U.S. 747, 780. And see Ricci v. Chicago Mercantile
Exchange, 409 U. S. 289, 304-306.
iYe conclude that the District Court's referral of the
"ne\v drug" and the "grandfather" issues to FDA was
appropriate, as these are the kinds of issues peculiarly
suited to initial determination by the FDA. As the District
Court said: "Evaluation of conflicting reports a& to
654 OCTOBER TER:VI, 1972
Opinion of the Court 412 U.S.
the reputation of drugs among experts in the field is not
a matter well left to a court ,vithout chemical or medical
background." The determination whether a drug
is generally recognized as safe and effective within
the meaning of § 201 (p)(l) necessarily implicates
complex chemical and pharmacological considerations.
Threshold questions within the peculiar experfoe of
an administrative agency are appropriately routed to
the agency, while the court stays its hand. As we
stated in Far Eastern Conference v. United States, 342
U. S. 570, 574- 575: "[I]n cases raising issues of fact
not ,vithin the conventional experience of judges or cases
requiring the exercise of admillistrative discretion, agencies
created by Congress for regulating the subject matter
should not be passed over. This is so even though
the facts after they have been appraised by specialized
competence serve as a premise for legal consequences to
be judicially defined. Uniformity and consistency in the
regulation of business entrusted to a particular agency
are secured, and the limited functions of revie,v by the
judiciary are more rationally exercised, by preliminary
resort for ascertaining and interpreting the circumstances
underlying legal issues to agencies that arc better
equipped than courts by specialization, by insight gained
through experience, and by more flexible procedure."
And see Port of Boston Marine Terminal Assn. v.
Rederiaktiebolaget Transatlantic, 400 U. S. 62, 68; Ricci
v. Chicago Mercantile Exchange, supra, at 304-306.
Reversed.
MR. JUSTICE BRENNAN took no part in the consideration
or decision of this case. MR. JUSTICE STEWART took
no part in the decision of this case.
USV PHARMACEUTICAL CORP. v. WEINBERGER 655
Syllabus
USV PHARMACEUTICAL CORP. v. WEINBERGER,
SECRETARY OF HEALTH, EDUCATION, AND
WELFARE, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT
No. 72-666. Argued April 17, 1973-Decided June 18, 1973
Petitioner sells drug products containing citrus bioflavonoid, an extract
from fruit skins, as a principal active ingredient. In the
1950's new drug applications (NDA's) were filed and became
effective for seven products, and two were sold without any NDA.
After the ena.ctment of the 1962 amendments to the Federal Food,
Drug, and Cosmetic Act, these products, together with a large
number of other bioflavonoid products were examined by the
Food and Drug Administration (FDA) for effectiveness. Based
upon National Academy of Sciences-National Research Council
(NAS-NRC) reports and its own evaluation, FDA gave notice
of opportunity for hearing on its proposal to withdraw approvals
of NDA's for all drugs containing these compounds, alone or in
combination with other drugs. Petitioner then brought suit in
the District Conrt, seeking a declaratory judgment that its drugs
are exempt from the efficacy requirements under § 107 (c) (4),
the so-called "grandfather" clause. FDA refused a stay
pending the judicial proceedings and went forward with its administrative
action. Petitioner submitted no evidence of "adequate
and well-controlled investigations" as required by § 505 (d) to
support its claims of effectiveness, and FDA withdrew petitioner's
ND A's. Section 107 ( c) ( 4) exempts from the effectiveness
requirements any drug which on the day preceding the 1962
enactment (1) was commercially used or sold in the United States,
(2) was not a ''new drug" as defined in the 1938 Act, and (3) '·was
not covered by an effective application" for a new drug under
the 1938 Act. The District Court found that two of the products
had never been covered by effective NDA's ·and that, while seven
had been covered, their applications had later been withdrawn
by petitioner. It concluded that petitioner's drugs were not covered
by effective applications, and hence were exempt from the
effectiveness criterion. The Court of Appeals reversed on the
merits. It held that petitioner's drugs were not entitled to an
exemption, that an applicant could not withdraw an NDA once
656 OCTOBER TERM, 1972
Syllabus 412 u. s.
it became rffoctive, that the drugs were "covered by an effective
application," and that although "me-too" drugs (similar drugs)
of other manufacturers would be exempt, petitioner's "me-too's"
were not exrmpt. Held:
1. "Any drug" is used in § 107 ( c) ( 4) in the generic sense,
which means that the "me-too's" whether the products of the
same or of different manufacturers "covered" by an "effective"
NDA are not exempt from the efficacy requirement of § 201 (p).
Pp. 663-665.
2. Prescription drugs on the market are subject to the 1962
efficacy requirements, for if the 1962 amendments are to be comprehensively
meaningful, § 107 (c) (4) cannot be read so as to
provide a loophole to permit the marketing of drugs previously
subject to new drug regulation without demonstrating by the new
statutory standards that they have the claimed efficacy. Pp. 665-
666.
3. The congressional purpose was to exempt only those drugs
that never had been subject to the new drug regulation, and therefore
any drug for which an NDA had once been effective does not
fall within the exempt category. Pp. 666- 668.
461 F. 2d 223, affirmed.
DouGLAS, J., deliwred the opinion of the Court, in which all
Members joined, except B1lEN).AN, J., who took no part in the consideration
or decision of the case, and STEWART, J., who took no part
in the decision of the case.
Joel E. Hoffman argued the cause for petitioner. With
him on the briefs were Robert L. Wald, Selma M. Levine,
Philip Elman, and Philip J. Franks.
Deputy Solicitor General Friedman and Andrew L.
Frey argued the cause for respondents. With Mr. Frey
on the briefs were Solicitor General Griswold, Assistant
Attorney General Kauper, Deputy Solicitor General Wallace,
Haward E. Shapiro, and Peter Barton Hutt.*
*Lloyd N. Cutler, Daniel Marcus, and William T. Lake filed a brief
for Pharmaceutical Manufacturers Assn. as amicus curiae urging
reversal.
Bruce J. Terris, Joseph Onek, and Peter H. Schuck filed a brief
USV PHAK\[ACEUTICAL CORP. v. 1VEINDERGER 657
655 Opinion of the Court
:.\In . .JeSTICE DOUGLAS delivered the opunon of the
Court.
Petitioner se11s a line of drugs containing, as a
principal active iugredient. citrus biofiavonoid, which
is an extract from fruit skins. The drugs arP sold
in capsules, syrup, and tablets. In the 1950's new drug
applications ( XDA's I \YCI'l.' filed and bPcame effective for
seven of them; two, howPver, were sold without any NDA.
In 1961 the Food and Drug Administration (FDA) advised
petitioner that two of the products, when distributed
under tlte existing labels. were not new drugs. These
drugs were recommended for a ,vide variety of ailments
from bleeding, to hypertension, to ulcerative colitis.
After the 1062 amendments to the Federal Food, Drug.
and Copmetic Act of 1938. ."i2 Stat. 1040, as amended,
76 Stat. 780. these products, together with a large number
of otlwr bioflavonoid products. were examined by FDA
for drug effectiveness. The N a.tional Academy of
Scif'nces-Xational Research Council (XAS-XRC) panels
reviewed them. One panel on metabolic disorders concluded
that tlw "use of the:ae materials as hemostatic
agents for capillary fragility is felt to be unjustifiable
and not proved." "\ panel on hematologic disorders
found then' was uo proof that these products \Yere efficacious
for any medical use.
Based upon the NAS- J\'HC reports and its own evaluation,
FDA gave notice of opportunity for hearing on its
proposal to withdraw approvals of XDA's for all drugs
containing these compounds, alone or in combinatiou
with other drugs. Petitioner thereupon brought snit in
the District Court, asking for a declaratory judgment that
its drugs are exempt from tlw efficacy requirements under
for .\mPrir·an Pnblic Health .\~sn. <'t al. a~· amici ruriae urging
atfirmancc.
Thomas D. Finney. Jr., ThomQf! Richard Spradlin, and Daniel F.
O'Keefe, Jr., fikd a brief for the Proprietary Assn. as amicus curiae.
658 OCTOBER TERM, 1972
Opinion of the Court 412 u. s.
§ 107 (c) (4). The administrative proceedings went forward,
FDA refusing a stay pending the judicial proceedings.
Petitioner submitted no evidence of "adequate and
welt-controlled investigations" as required by § 505 ( d)
of the Act, 21 U. S. C. § 355 ( d), to support its claims of
effectiveness. The Commissioner made findings and
·withdre,v petitioner's NDA's.
In the District Court petitioner contended that the
drugs were exempt from regulation by reason of § 107
(c)(4) of the 1962 amendments, which provides:
"In the case of any drug which, on the day immediately
preceding the enactment date, (A) ,vas
commercially used or sold in the United States,
(B) was not a new drug as defined by section 201 (p)
of the basic Act as then in force, and (C) was not
covered by an effective application under section 505
of that Act, the amendments to section 201 (p)
made by this A('t shall not apply to such drug when
intended solely for use under conditions prescribed,
recommended, or suggested in labeling \Vith respect
to such drug on that day."
The District Court found that two of the products had
never been covered by effective XDA's and that. while
seven had been covered, their applications had later been
withdrawn by petitioner. It found that the products
were "safe" for use in treating abnormal capillary permeability
and fragility. It therefore concluded that, as of
the day the 1962 amendments became effective, petitioner's
products were not new drugs, \vere not covered
by effective applications within the meaning of § 107 ( c)
( 4), and hence were exempt from the effectiveness criterion
added to the regulatory provisions of §§ 505 and
201 (p), 21 V. S. C. §§ 355 and 321 (p). In so ruling,
USV PHARMACEUTICAL CORP. v. WEINBERGER 659
655 Opinion of the Court
the District Court necessarily dctcrmi11ed that it, and not
FDA, had jurisdiction to decide exemption questions.
The Court of Appeals agreed that the District Court
alone had jurisdiction but reversed on the merits.1 461
F. 2d 223. It held that none of petitioner's bioflavonoid
drugs were entitled to exemption under § 107 ( c) ( 4). As
to the seven for which ~DA's had been filed, it held that
an applicant could not withdraw an NDA once it became
effective. It concluded that even if the drugs were generally
recognized as safe on the day preceding the effective
date of the 1962 Act, they were "covered by an
effective application" within the meaning of§ 107 (c)(4)
(C) and thus were not exempt from the 1962 amendments.
As to the "me-too" drugs, those specific drugs for
which petitioner had not filed an KDA, the Court of
Appeals held that although the "me-too's" of other manufacturers
competing with petitioner's bioflavonoids
would be exempt, petitioner's "me-too's" were not exempt
because the KDA's covering the pioneer drugs prepared
by petitioner covered all of its products similar in formula
and labeling. While the Government agrees that pcti-
1 Unlike the situation in CIBA Corp. v. Weinberger, ante, p. 640,
the order of the Commissioner withdrawing petitioner's NDA's had
not become final prior to the District Court's assuming jurisdiction.
In fact, the Court of Appeals for the District of Columbia Circuit
reversed the Commissioner's decision, 151 U. S. App. D. C. 284, 466
F. 2d 455, and the proceedings on remand are now pending before the
Commission. Thus, petitioner was not barred from proceeding in the
District Court. Cf. CIBA Corp. v. W einberger, supra. Our decision
today is not meant to indicate that the District Court, had it concluded
that its jurisdiction was concurrent with that of FDA, would
not have abused its discretion in refusing to stay this action pending
the outcome of administrative proceedings. Cf. W einberger v. Bentex
PharrnaceuticaJ,s, Inc., ante, p. 645. The Court of Appeals below
found it unnecessary to consider w hcther petitioner had failed to
exhaust its administrative remedies. 461 F. 2d, at 226.
660 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
tioner's "me-too" products should be accorded the same
treatment as the "me-too's" of other manufacturers who
had never filed NDA's, the parties are at odds on other
issues.2
The resolution of the questions presented turns essentially
on the meaning of § 107 (c) (4), quoted above.
But as background for the problem of construction,
references should be made to other 1962 amendments.
Section 201 (p) 3 was amended to redefine a "new drug"
as one not generally recognized by experts as both safe
and effective for use under the conditions prescribed
or one that has not been used to a material extent and
for a material time. Section 505 (a) was amended to
require affirmative approval of FDA, where previously it
2 There lurks in the case a question whether a drug could have
been unsafe prior to the 1962 amendments because it was ineffective
in treating the conditions for which its use was recommended by the
label. That question, however, was not presented in the petition
for certiorari.
3 "The term 'new drug' means-
" ( l) Any drug ( except a new animal drug or an animal feed
bearing or containing a new animal drug) the composition of which
is such that such drug is not generally recognized, among experts
qualified by scientific training and experience to evaluate the safety
and effectiveness of drugs, as safe and effective for use under the
conditions prescribed, recommended, or suggested in the labeling
thereof, except that such a drug not so recognized shall not be deemed
to be a 'new drug' if at any time prior to the enactment of this
chapter it was subject to the Food and Drugs Act of June 30, 1906,
as amended, and if at such time its labeling contained the same
representations concerning the conditions of its use; or
"(2) Any drug ( except a new animal drug or an animal feed
bearing or containing a new animal drug) the composition of which
is such that surh drug, as a result of investigations to determine
its safety and effectiveness for use under such conditions, has become
so recognized, but which has not, otherwise than in such investigations,
been used to a material extent or for a material t ime under such
conditions." 21 U.S. C. § 321 (p).
USV PHARMACEUTICAL CORP. v. WEINBERGER 661
655 Opinion of the Court
had provided that an NDA would automatically become
effective unless a contrary order were issued.4 Section
505 ( d) 5 was amended to require disapproval of an appli-
4 Section 505 (c) provides:
"Within one hundred and eighty days after the filing of an
application under this subsection, or such additional period as may
be agreed upon by the Secretary and the applicant, the Secretary
shall either-
" ( ! ) approve the application if he then finds that none of the
grounds for denying approval specified in subsection (d) applies, or
"(2) give the applicant notice of an opportunity for a hearing
before the Secretary under subsection (d) . . . on the question
whether such application is approvable. If the applicant elects to
accept the opportunity for hearing by written request within thirty
days after such notice, such hearing shall commence not more than
ninety days after the expiration of such thirty days unless the Secretary
and the applicant otherwise agree. Any such hearing shall thereafter
be conducted on an expedited basis and the Secretary's order
thereon shall be issu!'d within ninety days after the date fixed by
the Secretary for filing final briefs." 21 U. S. C. § 355 (c).
5 That section provides:
"If the Secretary finds, after due notice to the applicant in accordance
with subsection ( c) ... and giving him an opportunity for
a hearing, in accordance with said subsection, that (1) the investigations,
reports of which are required to be submitted to the Secretary
pursuant to subsection (b) ... , do not include adequate tests
by all methods reasonably applicable to show whether or not such drug
is safe for use under the conditions prescribed, recommended, or
suggested in the proposed labeling thereof; (2) the results of such
tests show that such drug is unsafe for use under such conditions
or do not show that such drug is safe for use under such conditions;
(3) the methods used in, and the facilities and controls
used for, the manufacture, processing, and packing of such drug
are inadequate to preserve its identity, strength, quality, and purity;
( 4) upon the basis of the information submitted to him as part of
the application, or upon the basis of any other information before
him with respect to such drug, he has insufficient information to
determine whether such drug is safe for use under such conditions;
or (5) evaluated on the basis of the informa.tion submitted to him
as part of the application and any other information before him
with respect to such drug, there is a lack of substantial evidence
662 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
cation if there is "a lack of substantial evidence that the
drug will have the effect it purports or is represented to
have." Section 505 ( e) was amended to require that
any previous approval of an application be withdrawn
whenever it appears from new information or otherwise
that there is a lack of substantial evidence of the drug's
eff ec ti veness.
There remained the problem of the application of the
new drug efficacy provisions to drugs already on the market.
Without transitional protection all drugs-except
those marketed prior to the 1938 Act whose labeling
had not been changed and which were exempt from
the "new drug" provision of § 201 (p )-would have been
in violation of the amended Act unless generally recognized
as effective. Even NDA's which were outstanding
would have become ineffective because FDA had not
approved them under the new criteria. Section 107 (c)
(2) of the amendments therefore provides that applications
which were effective on the day before the enactment
date of the 1962 amendments should be deemed
"approved." Section 107 (c)(2) thus eliminated the
that the drug will have the effect it purport.'l or is represented to
have under the conditions of use prescribed, recommended, or suggested
in the proposed labeling thereof; or (6) based on a fair
evaluation of all material facts, such labeling is false or misleading
in any particular; he shall issue an order refusing to approve the
application. If, after such notice and opportunity for hearing, the
Secretary finds that clauses (1) through (6) do not apply, he shall
issue an order approving the application. As used in this subsection
and subsection (e) ... , the term 'substantial evidence' means evidence
consisting of adequate and well-controlled investigations, including
clinical investigations, by experts qualified by scientific training
and experience to evaluate the effectiveness of the drug involved, on
the basis of which it could fairly and responsibly be concluded by
such experts that the drug will have the effect it purports or is
represented to have under the conditions of use prescribed, recommended,
or suggested in the labeling or proposed labeling thereof."
21 U.S. C. §355 (d).
USV PHAR}:1ACEUTICAL CORP. v. WEINBERGER 663
655 Opinion of the Court
necessity to review and approve every application already
on file.
Section 107 (c)(3) provides that drugs covered by
NDA's already on file \vhose labeling remains unchanged
are not affected by the amended provisions of § 505 (b)
or by approvals or refusals under § 505 ( d) insofar as the
effectiveness of the drugs is concerned, so long as the application
is not withdrawn or suspended under § 505 (e).
It also provides that the new effectiveness requirement
in the \vithdrawal provision would not apply until two
years after the amendments were adopted, or until the
KDA approval ,vere withdrawn for reasons other than
lack of the drug's effectiveness, whichever came first.
It seems apparent that by reason of § 107 (c) (3) the
industry ,vas assured it could continue to market previously
approved NDA's unless and until the NDA ,vas
,vithdrawn and that before such withdrawal they would
be given a minimum of two years within which to submit
"substantial evidence" to support the claims for their
products.
Section 107 (c) (4) exempted drugs from the new effectiveness
requirements so long as their composition and
labeling remained unchanged. This exemption, however,
applies only to a product that, on the day before
the 1962 amendments became effective, (A) was used
or sold commercially in the United States, (B) was generally
recognized by the experts as safe; and (C) was
not "covered" by an "effective" application.
The first question is, which "me-too" copies of an NDA
drug are subject to the efficacy requirements to the same
extent as the NDA product itself? Are only the "metoos"
of the same manufacturer "covered" by an effective
application within the meaning of § 107 (c)(4)(C) and
thus not exempt from § 201 (p) or are no "me-too's"
exempt whoever manufactures them? It seems clear
that § 107 (c) was designed in general to make the new
664 OCTOBER TERM, Hl72
Opinion of the Court 412 U.S.
1962 requirements applicable to drugs then on the market
after a two-year grace period. Section 107 (c)(4) created
an exception from this general policy. Senator
Eastland explained these "transitional provisions," stating:
"Established drugs which have never been required
to go through new drug procedures will not be
affected by the new effectiveness test insofar as their
existing clauses are concerned." 6 It is true that an
NDA covers a particular product or products that it
names and that § 505 when applied to an KDA is personal
to the manufacturer who files it. Section 505, in
other words, addresses itself to drugs as individual products.
But we agree with the Government that "any
drug" ,vhen used in § 107 ( c) ( 4) is used in the generic
sense, which means that the "me-too's," whether products
of the same or of different manufacturers "covered" by
an "effective" NDA, are not exempt from the efficacy
requirements of 201 (p). If that were not true, then,
as the Court of Appeals said, the "me-too's" of one manufacturer
covered by an NDA of another manufacturer
would be exempt from regulation, while the "me-too's" of
the manufacturer holding the NDA could be regulated.
That seems to be a reading of § 107 (c)(4) that is discriminatory
and needlessly so. For it is avoided by taking
"any drug" in that subsection as a generic term.
The transitional nature of § 107 ( c) works in that direction.
A reading to exclude all "me-too" drugs from
the ,vord "covered" as used in § 107 ( c )( 4) would create
a hiatus in the regulatory scheme for which there
seems to be no cogent reason. We find no persuasive
reason to resolve the ambiguities in favor of the manufacturers
so that pre-existing pioneer drugs would be
subject to the new efficacy requirements but the "metoo's"
which of ten do equal service for them would escape
G 108 Cong. Rec. 17366.
USV PHAR~'lACEUTICAL CORP. v. WEINBERGER 665
655 Opinion of the Court
the thrust of the 1962 amendments. That resolution
of the ambiguities would largely leave pre-1962 drugs of
unproved effectiveness untouched by the 1962 amendments
and perpetuate a competitive contest in tho marketing
of ineffective pre-1962 drugs. FDA would, of course,
have authority to pursue that category of drugs under
the misbranding provisions of the Act. But that slow,
cumbersome method is utterly unsuited to the need. We
decline to attribute such a self-defeating purpose to the
Congress. After all, the 1962 regulatory scheme proposes
administrative control through an expert agency
in lieu of the more cumbersome 1938 devices, as a result
of which, "good medical practice is hampered, and
the consumer is misled until, perhaps years later, the
Government has gathered the necessary evidence to sustain
its burden of proving the violation in court." 7
Petitioner, focusing on prescription drugs,8 contends
that the construction of § 107 ( c )( 4) urged by the Government
would make the exemption meaningless. Prescription
drugs, as FDA points out, are not likely to have
come on the market subsequent to 1938 without being a
"new drug" for some time. But the over-the-counter
(OTC) drugs, known as the proprietaries, are often made
up of old, established ingredients. Such products, coming
on the market for the first time between 1938 and
1962, might never have been subject to new drug regulation.
If so, they would be entitled to the exemption
provided by § 107 (c) (4). Senator Kefauver, the main
7 H. R. Rep. No. 2464, 87th Cong., 2d Sess., p. 3.
8 Prescription drugs, as defined by§ 503 (b), 21 U.S. C. § 353 (b),
include any drug for human use which (A) is habit forming; (B) "because
of its toxicity or other potentiality for harmful effect, or the
method of its use, or the collateral measures necessary to its use, is
not safe for use except under the supervision of a practitioner licensed
by law to administer such drug"; or (C) is limited to prescription
use in the application under § 505.
66G OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
sponsor of the 1962 Act, deplored the absence in an earlier
bill of the failure to submit proprietaries on the market to
tests of efficacy. He said:
"Effectiveness, as we11 as safety, should apply to
new pro1)rietary drugs, but proprietaries now on the
market are not to be subject under the present bill
to the provisions requiring them, upon notice by the
FOA [sic], to support their claims for effectiveness.
I think they should be so required. That is a matter
which can be remedied in conference or by other
legislation." 0
It can be inferred from this statement that prescription
drugs on tho market were to be subjected to the
eflicary requirements. Jf the 1962 amendments are to be
comprehensively meaningful, we decline to read § 107 ( c)
( 4) so as to provide a loophole so that the manufacturers
can go on marketing drugs previously subject to new
drug regulation ,vithout demonstrating by the new statutory
standards that they are effective as claimed.
The second question presented by this case is whether
an applicant could have ,vithdrawn or "deactivated" an
NDA prior to the 1962 amendments so that its drug was
no longer "covered by an effective application" and thus
is no,v exempt from efficacy regulation by reason of § 107
(c)(4). Petitioner in 1961 had stated in a letter to the
Director of N e,v Drug Bra11ch of the Bureau of Medicine
in FDA that "[iJ t is our recollection that the C. V. P.
class of products were no longer considered to be new
drugs .... " Petitioner in 1961 also stopped filing supplemental
illforrnation as required by regulation with
regard to the products for which NDA's had become
effective. It claims that these acts were sufficient to
11 108 Cong. Rec. 17368.
USV PHARMACEUTICAL CORP. v. WEINBERGER 667
655 Opinion of the Court
withdraw the NDA's and to bring its products within the
exemption.
Initially, we repeat that the legislative history indicates
that it was Congress' purpose to exempt only those
drugs that never had been subject to the new drug regulation.
10 Quite obviously, any drug for which an NDA
once had been effective does not fall within that category.
Congress rejected an approach that would have exempted
from the efficacy requirements of the 1962 amendments
all drugs then marketed which had become generally
recognized as safe. It now would be irrational for us
to construe § 107 (c) (4) of the amendments to exempt a
drug merely because the manufacturer had taken some
formal steps totally unrelated to the drug's effectiveness
to indicate that the drug was no longer a "new drug"
under the pre-1962 standards. The result would be that
some drugs for which an NDA had been filed would be
subject to the efficacy requirements and some would not,
even though one could not differentiate between the drugs
on the grounds of effectiveness. For example, 43 NDA's
had been filed with respect to bioflavonoids and related
compounds. There is no reason to believe that any
product is more or less effective than another. According
to the Solicitor General, the "state of activity, inactivity,
or withdrawal" of the applications varied from
one to the next when the 1962 amendments became effective.
It would be tota11y inconsistent with the statutory
scheme and the policy underlying the 1962 amendments,
as well as patently unjust, to conclude that some manufacturers
could continue to market their bioflavonoid
products, but others could not. We cannot attribute such
10 See S. Rep. No. 1744, 87th Cong., 2d Sess., pt.. 2, p. 8; H. R.
Rep. No. 2464, 87th Cong., 2d Sess., 12; H. R. Rep. No. 2526, 87th
Cong., 2d Sess., 22-23; 108 Cong. Rec. 17366.
668 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
an intention to Congress and, accordingly, cannot agree
with petitioner that its ~DA's had been withdrawn prior
to 1962 so that its bioflavonoid products were no longer
"covered by an effective application."
Affirmed.
MR. JUSTICE BRENNAN took no part in the consideration
or decision of this case. MR. JUSTICE STEWART took
no part in the decision of this case.
UNITED STATES v. SCRAP 669
Syllabus
UNITED STATES ETAL. v. STUDENTS CHALLENGING
REGULATORY AGENCY PROCEDURES
(SCRAP) ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA
No. 72-535. Argued February 28, 1973-Decided .Tune 18, 1973*
The Interstate Commerce Act permits railroads to filP proposed
freight rate increases, with at least 30 days' notice to the Interstate
Commerce Commission (ICC) and the public before putting
the new rates into effect. The ICC may, pursuant to § 15 (7) of
the Act, suspend the operation of the proposed rates for as long
as seven months, in order to investigate the lawfulness of the
rates. At the end of the seven-month period, the carrier may put
the suspended rates into effect. unless the ICC has completed its
im·cstigation and found the rates unlawful. Proceeding under the
statutory scheme, substantially all the Nation's railroads sought
a 2.5% sur<'harge on nearly all freight rates, as an emergency
measure to obtain increased revenues pending adoption of selective
rate increases on a permanent basis. Shippers, competing carriers,
and other interested persons requested the ICC to suspend
the tariff for the statutory seven-month period. Various rnvironmental
groups, including Studrnts Challenging Regulatory Agency
Procedures (SCRAP) and the Environmental Defense Fund,
appellees hC're, protested that failure to suspend the surcharge
would cause their members "economic, recreational and
aesthetic harm," and specifically, that the new rate structure would
discourage the use of "recyclable" materials and promote the use
of raw materials that compete with scrap, thus adversely affecting
the environment. On February 1, 1972, the ICC issued an order
announcing its decision not to suspend the surcharge for the sevenmonth
period, and on April 24, 1972, ordered the proposed selective
increases filed by the carriers to be suspended for the full
seven-month period ending November 30, 1972, and permitted the
collection of the surcharge until that date. SCRAP filed the
*Together with No. 72-562, Aberdeen & Rockfish Railroad Co.
et al. v. Students Challenging Regulatory Agency Procedures
(SCRAP) et al,., also on appeal ~rom the same court.
670 OCTOBER TER~l, 1972
Syllabus 412 U.S.
presPnt suit sE>eking, inter alia, an injunrtion to restrain enforcement
of the February 1 and April 24 ordc>rs allowing the carriers
to collect the surcharge. SCRAP, an unincorporated association
formed b:v five law students to PnhancP the quality of the environment,
!'!aimed that its members "suffered economir, recreational
and aesthetic harm directly as a result of the adverse mvironmental
impart of the railroad frdght structure," that each of its
members was caused to pay more for finishPd products, that each
of its members uses the forests, rivers, mo1mtains, and other natural
resource,;; of thr \Va~hington, D. C., area and at his legal residence
for ramping, hiking, fishing, and other purposes, and that
these uses have been adversely affected by increased freight rates.
The main thrust of SCRAP's complaint was that the ICC's orders
were unlawful for failurr to include a detailed environmental impact
statement as required by § 102 (2) (C) of the National Environmental
Policy Act of 1969 (NEPA), 42 U. S. C. § 4332 (2) (C).
The three-judge District Court found that appellees had standing to
sue. The court held that its powC'r to grant an injunction was not
barred by Arrow Transportation C'o. v. Southern R. Co., 372 U.S.
658, because NEPA "implicitly confers authority on the federal
courts to enjoin any federal action taken in violation of KEPA's
procedural requirements ... so long as the review is confined to a
drtcrmination as to whether the procedural requisites of NEPA
have been followed." The court concluded that the ICC's decision
not to suspend the surcharge for the seven-month period wa.s a
"major federal action significantly affeding the quality of the
human environment," and granted an injunction prohibiting the
ICC "from permitting" and the railroads "from collecting" the
surcharge "insofar as that surcharge relates to goods being transport<'
d for purposes of rrcycling." Ileld:
1. Appcllee~' pleadings sufficiently alleged that they were "adversely
affected" or "agg-rieved" within the meaning of § IO of
the Administrath-e Procedure Act to withstand a motion to dismiss
on the ground of laek of standing to sue. Sierra Club v.
Morton, 405 U. S. 727, distinguished. Pp. 683-690.
(a) Standing is not confined to those who show economic
harm, as "[a]esthetic and environmen1al well-being, likr economic
well-being, arc important ingrPdients of the quality of life in our
society." Sierra Club, supra, at 734. P. 686.
(b) Here, the appellees claimed that thr spc>cific :wd allegedly
illcgnl action of thr ICC would directly harm them in their use
of the natural resources of the Washington area. Pp. 686- 687.
UNITED STATES v. SCRAP 671
669 Syllabus
(c) Standing is not to be denied because many people suffer
the same injury. Pp. 687-688.
(d) It cannot be said on these pleadings that appellees could
not prove their allegations, which, if proved, would place them
squarely among those persons injured in fact by the ICC's action
and entitled to review under Sierra Club, supra. Pp. 688-690.
2. The District Court lacked jurisdiction to issue the injunction.
Pp. 690-698.
(a) Arrow Transportation, supra, held that Congress in
§ 15 (7) had vested exclusive jurisdiction in the ICC to suspend
rates pending its final decision on their lawfulness and had deliberately
extinguished judicial power to grant such rdiC'f; and the
factual distinctions between the instant case and Arrow Transportation
are inconsequential. Pp. 690-692.
(b) The alleged noncompliance by the ICC with NEPA did
not give the District Court authority to grant the injunction, as
NEPA was not intended to repeal by implication any other statut(',
and the policies identified in Arrow Transportation as the basis
for § 15 (7) would be substantially undermined if the courts were
found to have suspension powers simply because of noncompliance
with NEPA. Pp. 692-698.
346 F. Supp. 189, reversed and remanded.
STEWART, J., delivered the opinion of the Court, in which BRENNAN
and BLACKMUN, JJ., joined; in Parts I a.nd II of which DouGLAS
and MARSHALL, JJ., joined; and in Parts I and III of which BURGER,
C. J., a.nd WHITE and REHNQUIST, J.J., joined. BLACKMUN, .J.,
filed a concurring opinion, in which BRENNAN, J., joined, post, p. 699.
DOUGLAS, J., filed an opinion dissenting in part, post, p. 699. WHITE,
J., filed an opinion dissenting in part, in which BURGER, C. J., and
REHNQUIST, J., joined, post, p. 722. MARSHALL, J., filed an opinion
concurring in part and dissenting in part, post, p. 724. PowELL, J.,
took no part in the consideration or decision of the cases.
Solicitor General Griswold argued the cause for the
United States et al. in No. 72-535. With him on the
briefs were Assistant· Attorney General Frizzell, Edwa?'d
R. Korman, Fritz R. Kahn, Betty Jo Christian, and James
F. Tao. Hugh B. Cox argued the ca.use for appellants in
No. 72-562. With him on the briefs were Charles A.
Horsky, Michael Boudin, and Edward A. Kaier.
OCTOBER TER\1, 19i:2
Opinion of th(' f'ourt 412 P. 8
f>pfer H. Jf, yHs arg:11rd the C'aU'-<' pro !we vire for
Studrnt'- Cha}l('lliinμ; Rriulatory ..\.p:eney Procedures, appeller
in both cases. With hi111 on thC' brief was John F.
Ba11zhaf Ill. John F. Dirndl arμ:ued thr <'aU'-C' pro liac
vice for F.nvironmrntal I >efensr Fund et al., appellees in
both easec;. With him on the brief was Drnnis J.,f.
Plannery.t
~fn. JrsncE STE, .... ART dC'livered the opinion of the
Court.
l'nder the Interstate Commerce Act, the initiative for
ratr i11rreases remains with the railroads. But in the
ab.~enre of i;pecial permission from the Interstate CommerC'e
( 'ornmi~sion, a railroad seeking an increase must
provide at least 30 day~• noti<'e to the Commission and
tl1P publie hefore putti1Jg the 11ew rate into rffrct. 49
r. :--. C. § 6 ( 3 J.1 During that :~O-day period, tht· ComtJl'roml'
.! . .llrGrath filrri 3 brief for IndPpendent Xntural Gas
Assoriation of \mrrir:i. [1~ amirus ruria, urc:in_g r€'ver~al.
Rd1card L. Jltrrigan fil<'d a brief for .'.\"ational \ssoriation of
~crondar) :.\Iatrnal Indu•trie'-. Inc., as nmirns ruriat mging
affirmance.
1 T1tl€' 49 C :-\. (' § G (~) pro,·ide,: "~o ch:rnge ,hall be made in the
ra.tr0 , fan>0 , ,11Jd rhnr(!Ps or joint rate~, fan•s, and rhnrges whirh
liaw• bet·n fil1•d anJ puhh,hPd b~· ·tny rommon rarrier Ill rnmplianr€'
with thP rPqrnrcment~ of thi., -<'rlion <'X<'Ppt :lftl'r thirty days'
noti<"c to lht> t ·ommi,«1011 and 'o the p11blir pubhshrd as afore~ai<l,
whiC'h sh:ill plain]\- ,-,tat1· t!JP l'hanges propo,<'d to bP made in the
~clH'rlulr then m lurrP am! th!' tun€' ,1lu•n the c-bangPd rntr,i, fares,
or l'hargP~ mil go mtn pffrl't.. and tlw propo~('d rhan_gl'~ ~hall be
,ho1\11 b~· printmg 11r,1· ~rhe<lulP,,-, or ~i1nll br plall)]y indicated upon
th<' ,wh('({ tlr- 111 forcP at the tune :t11,! kt•pt 0111·11 to publll' i11.-p1•et1on:
Pro1•i<lcd, That tlw 10111mi,,1on m.1~·, in its d1~rr€'tion and for good
c·rru,:p ,hown, allow d1an2:1•, 141,on \.,,,, than the nottrP hc•rpm ~pcrificd,
ur modit\· th<' rrquir€'mr•1,ts of this ~rr·tion in rr,pert to publishing,
po-t111g, ncl filmg of tanff~ , 1thr·r in particular i11,t:.111rr, or by a
genn·d order applw1blr to sp<•,,ial or per111i::r rirc·nmsranec~ or
rondit1011,: l1 ro1'id, d fut'l!ter, Tlut thr (. omm1~,;ion 1::; authorized to
UNITED STATES v. SCRAP 673
669 Opinion of the Court
mission may suspend the operation of the proposed rate
for a maximum of seven months pending an investigation
and decision on the lawfulness of the new· rates.
49 U. S. C. § 15 (7).2 At the end of the seven-month
make suitable rules and regulations for the simplification of schedules
of rates, fares, charges, and classifications and to permit in such
rules and regulations the filing of an amendment of or change in
any rate, fare, charge, or classification without filing complete
schedules covering rates, fares, charges, or classifications not changed
if, in its judgment, not inconsistent with the public interest."
2 Title 49 U. S. C. § 15 (7) provides in pertinent part: "Whenever
there shall be filed with the Commission any schedule stating a.
new ... rate, fare, or cha.rge, . . the CommiSEion shall have ...
authority, either upon complaint or upon its own initiative without
complaint, at once, and if it so orders without answer or other
formal pleading by the interested carrier or carriers, but upon
reasonable notice, to enter upon a hearing concerning the lawfulness
of such rate, fare, [or] charge . . . ; and pending such
hearing and the decision thereon the Commission, upon filing with
surh schedule and delivering to the rarrier or carriers affected
thereby a statement in writing of its reasons for such suspension,
may from time to time suspend the operation of such schedule
and defer the use of such rate, fare, [ or] charge ... , but not
for a longn period than seven months beyond the time when it
would otherwise go into effect; and after full hearing, whether
completed before or after the rate, fare, [or] charge . . . goes
into effect, the Commission may make such order with reference
thereto as would be proper in a proceeding initiated after it had
berome effective. If the proceeding has not been concluded and
an order made within the period of suspension, the proposed change
of rate, fare, [ or] charge . . . shall go into effect at the end of
such period; but in case of a. proposed increased rate or charge
for or in respect to the transportation of property, the Commission
may by order require the interested carrier or carriers
to keep accurate account in detail of all amounts received by reason
of such increase, specifying by whom and in whose behalf
such amounts are paid, and upon completion of the hearing and
decision may by further order require the interested carrier or
carriers to rPfnnd, with interest, to the persons in whose behalf
such amounts were paid, such portion of such increased rates or
674 OCTOBER TERM, 1972
Opinion of the Court 412 u. s.
period, the carrier may put the suspended rate into effect
unless the Commission has earlier completed its investigation
and found the rate unlawful.3
Proceeding under this regulatory scheme, on December
13, 1971, substantially all of the railroads in the
United States requested Commission authorization to file
on 5 days' notice a 2.5% surcharge on nearly all freight
rates. The railroads sought a January 1, 1972, effective
date for the new rates. The surcharge was proposed as
an interim emergency measure designed to produce some
$246 million annually in increased revenues pending
adoption of selective rate increases on a permanent basis.
As justification for the proposed surcharge, the railroads
alleged increasing costs and severely inadequate
revenues. In its last general revenue increase case, less
than two years earlier, the Commission had found:
"[TJhe financial condition of the railroad industry
as a whole, and the financial status of many
individual carriers by rail, must be found to be at a
dangerously low level. The precipitous decline in
working capital and serious loss of liquidity has reduced
many carriers to a truly marginal operation.
This has been most clearly demonstrated by the
recent bankruptcy application of the Penn Central.
We think it undeniable that a number of
charges as by its decision shall be found not justified. At any
hearing involving a change in a rate, fare, [ or] charge ... after
September 18, 1940, the burden of proof shall be upon the carrier
to show that the proposed changed rate, fare, [or] charge ...
is just and reasonable, and the Commission shall give to the hPnring
and decision of such questions preference over all other questions
pending before it and decide the same as speedily as possible."
3 Other statutory provisions giving suspension powers to the
Commission include 49 U. S. C. §§ 316 (g), 318 (c) (Motor Carrier
Act); 49 U. S. C. §§ 907 (g), (i) (Water Carrier Act); 49 U. S. C.
§ 1006 (e) (Freight Forwarders Act).
I
669
UNITED STATES v. SCRAP 675
Opinion of the Court
other roads are approaching a similar financial crisis."
Ex parte Nos. 265/ 267, Increased Freight Rates,
1970 and 1971, 339 I. C. C. 125, 173.
The railroads alleged that, since the close of that proceeding,
their costs had increased by over $1 billion on
an annual basis, including $305 million in increased wages,
while economic indicators such as decreased working
capital and increased debt obligations pointed toward an
ever-worsening financial condition.'
In an order dated December 21, 1971, the Commission
acknowledged the need, particularly of some carriers, for
increased revenues, but it concluded that five days' notice
and a January 1, 1972, effective date "would preclude
the public from effective participation." Ex parte No.
281, Increased Freight Rates and Charges, 1972, 340
I. C. C. 358, 361. The Commission authorized the railroads
to refile the 2.5% surcharge with not less than 30
days' notice, and an effective date no earlier than February
5, 1972.
On January 5, 1972, the railroads refiled the surcharge,
to become effective on February 5, 1972. Shippers, competing
carriers, and other interested persons requested the
Commission to suspend the tariff for the statutory sevenmonth
period. Various environmental groups, including
Students Challenging Regulatory Agency Procedures
(SCRAP) and the Environmental Defense Fund (EDF),
two of the appellees here, protested that failure to suspend
the surcharge would cause their members "economic,
4 Figures reported to the Commission indicated that the net working
capital of the Class I railroads for the 12 months ending September
30, 1971, was only $75.4 million, approximately $33.7 million
less than the year-end 1970 figure. Long-term debt maturing within
one year from September 30, 1971, was $43.6 million higher than on
December 31, 1970. Equipment obligations at the end of 1970
were $4,448 million, or almost twice the total in 1960.
676 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
recreational and aesthetic harm." Specifically, they
claimed that the rate structure would discourage the use
of "recyclable" materials, and promote the use of new
raw materials that compete with scrap, thereby adversely
affecting the environment by encouraging unwarranted
mining, lumbering, and other extractive activities. The
members of these environmental groups were allegedly
forced to pay more for finished products, and their use of
forests and streams was allegedly impaired because of
unnecessary destruction of timber and extraction of raw
materials, and the accumulation of otherwise recyclable
solid and liquid waste materials. The railroads replied
that since this was a general rate increase, recyclable materials
would not be made any less competitive relative
to other commodities, and that in the past general rate
increases had not discouraged the movement of scrap
materials.
The Commission issued an order on February 1, 1972,
shortly before the surcharge would have automatically
become effective. It recognized that "the railroads have
a critical need for additional revenue from their interstate
freight rates and charges to offset, in part, recently incurred
increased operating costs," and announced its decision
not to suspend the 2.5% surcharge for the sevenmonth
statutory period.5 In anticipation of the proposed
permanent selective increases to be filed by the
railroads and to avoid further complication of the tariff
rates, the Commission specified that its refusal to suspend
was conditioned upon the carriers' setting an expiration
date for the surcharge of no later than June 5,
1972.6 The Commission ordered the investigation into
5 The order of the ICC is unreported.
6 The Commission also imposed a,5 a condition on its refusal to
suspend the exclusion of increased rates "on freight in trailer bodies,
semi-trailers, vehicles or containers on flat cars, on export and
UNITED STATES v. SCRAP 677
669 Opinion of the Court
the railroads' rates which had been instituted by its December
21 order to be held in abeyance until the carriers
requested permission to file the indicated permanent rate
increases on a selective basis. With respect to the appellees'
environmental arguments, the Commission found
that "the involved general increase will have no significant
adverse effect on the movement of traffic by
railway or on the quality of the human environment
within the meaning of the [National] Environmental
Policy Act of 1969."
The proposed permanent selective increases, averaging
4.1 %, were subsequently filed with the Commission, and
various parties again requested that these proposed rates
also be suspended. By order served March 6, 1972, the
Commission did not grant the railroads' request to have
the selective increases go into effect on April 1, 1972, as
they had sought but it allowed the carriers to republish
their rates to become effective on May 1, 1972, upon
not less than 45 days' notice to the public. The carriers
did republish the rates, and on April 24, 1972, the Commission
entered an order suspending the proposed selective
increase for the full seven-month period allowed by
statute, or to and including November 30, 1972.7 The
investigation into the increased rates was continued.
Since the selective increases were to supplant the temporary
surcharge, and since they had been suspended, the
Commission modified its February 1 order and authorized
the railroads to eliminate the June 5 expiration date for
import traffic." Since such increases had been proposed only by
the western and southern carriers and not by the eastern carriers,
such increases would, in the Commission's view, have disrupted
existing port relationships.
Finally, the Commission ()Onditioned its action on the provision
that the proposed surcharge would not apply to shipments originating
prior to February 5, 1972, and moving under transit arrangements.
7 The March 6 and April 24 orders of the ICC are unreported.
678 OCTOBER TER:0.1, 1972
Opinion of the Court 412 U.S.
the surcharge and to continue collecting the surcharge
until November 30, 1972.
I
Ou ~fay 12, 1972, SCRAP filed the present suit against
the rnited States and the Commission in the District
Court for the District of Columbia seeking, along with
other relief, a preliminary injunction to restrain enforcement
of the Commission's February 1 and April 24 orders
allowing the railroads to collect the 2.5% surcharge.
SCRAP stated in its amended complaint that it was
"an unincorporated association formed by five law students
... in September, 1971. Its primary purpose is
to enhance the quality of the human environment for its
members, and for all citizens ... .'' To establish standing
to bring this suit, SCRAP repeated many of the allegations
it had made before the Commission in Ex parte
281. It claimed that each of its members "suffered economic,
recreational and aesthetic harm directly as a result
of the adverse environmental impact of the railroad
freight structure, as modified by the Commission's actions
to date in Ex l'arte 281." Specifically, SCRAP alleged
that each of its members ·was caused to pay more for
finished products, that each of its members " [ u] ses the
forests, rivers, streams, mountains, and other natural resources
surrounding the ·w ashington Metropolitan area
and at his legal residence, for camping, hiking, fishing,
sightseeing, and other recreational [and) aesthetic purposes,"
and that these uses have been adversely affected
by the increased freight rates, that each of its members
breathes the air within the Washington metropolitan
area and the area of his legal residence and that this air
has suffered increased pollution camed by the modified
rate structure, and that each member has been forced to
pay increased taxes because of the sums which must be
expended to dispose of otherwise reusable waste materials.
UNITED STATES v. SCRAP 679
669 Opinion of the Court
The main thrust of SCRAP's complaint was that the
Commission's decisions of February 1 and April 24, insofar
as they declined to suspend the 2.5% surcharge, ,vere unlawful
because the Commission had failed to include a
detailed environmental impact statement as required by
§ 102 (2) (C) of the National Environmental Policy Act of
1969 (NEPA), 42 U.S. C. § 4332 (2)(C). NEPA requires
such a statement in "every recommendation or report on
proposals for legislation and other major Federal actions
significantly affecting the quality of the human environment
. . " Ibid.8 SCRAP contended that because
8 Section 102, 42 U. S. C. § 4332, provides in pertinent part:
"The Congress authorizes and directs that, to the fullest extent
possible: (1) the policies, regulations, and public laws of the United
States shall be interpreted and administered in accordance with
the policies set forth in this chapter, and (2) all agencies of the
Federal Government shall-
"(C) include in every recommendation or report on proposals for
legislation and other major Federal actions significantly affecting
the quality of the human environment, a detailed statement by the
responsible official on-
" (i) tho 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 rnmmPnt~ of any Federal
agency which has jurisdiction by law or special expertise with respect
to any environmental impact involved. Copies of such statement
and the comments and views of the appropriate Federal, State, and
local agenries, which are authorized to develop and enforce environmental
standards, shall be made available to the President,
680 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
of its alleged adverse impact upon recycling, the Commission's
action with respect to the surcharge constituted
a major federal action significantly affecting the
environment.
Three additional environmental groups, also appellees
here, were allowed to intervene as plaintiffs, and a group
of railroads, appellants here, intervened as defendants to
support the 2.5% surcharge.0 After a single district
the Council on Environmental Quality and to the public ... and
shall accompany the proposal through the existing agency review
processes."
9 The Environmental Defense Fund, National Parks and Conservation
Association, and Izaak Walton League of America intervened
as plaintiffs. The aUegations as to standing made by
each of these groups were similar to those made by SCRAP.
EDF, for example, alleged as follows:
"EDF has a nationwide membership of over 32,000 persons composed
of scientists, educators, lawyers and other citizens dedicated
to the protection of our environment and the wise use of our
natural resources. Each of EDF's members has a personal interest
in the maintenance of a safe, healthful, productive environment as
free from waste substances as is possible. EDF's members have
contributed financially to EDF in part so that they may obtain
adequate representation of their legally protected environmental
interests, which representation they could not otherwise individually
afford. Each of EDF's members has under § 101 (c) of NEPA,
'a responsibility to contribute to the preservation and enhancement
of the environment,' which responsibility they fulfill in part by
becoming a member of and contributing to EDF.
"The increased freight, rates and charges in Ex Pa.rte 281 and
the continuance of the underlying rate structure, which discriminate
against movement of secondary (recyclable) materials, will cause
EDF members individualized injury and adversely affect them in
one or more of their act.ivities and pastimes. Specifically, each
EDF member: (i) has been or will be caused to pay more for
products in the market place, made more expensive by both the
non-use of recycled materials in their manufacture, and the need
to use comparatively more energy in processing primary raw materials
as opposed to secondary (recyclable) materials; (ii) uses the
UNITED STATES v. SCRAP 681
669 Opinion of the Court
judge had denied the defendants' motion to dismiss and
SCRAP's motion for a temporary restraining order, a
statutory three-judge district court was convened pursuant
to 28 U. S. C. §§ 2284, 2325, to decide the motion
for a preliminary injunction and the cross-motion to dismiss
the complaint.
On July 10, 1972, the District Court filed an opinion,
346 F. Supp. 189, and entered an injunction prohibiting
the Commission "from permitting," and the railroads
"from collecting" the 2.5% surcharge "insofar as that
surcharge relates to goods being transported for purposes
of recycling, pending further order of this court." 10
The court first rejected the contention that the appellees
were without standing to sue because they allegedly
had no more than "a general interest in seeing that the
law is enforced," id., at 195, and distinguished our recent
decision in Sierra Club v. Morton, 405 U. S. 727, on the
nation's forests, rivers, streams, mountains, and other natural resources
for camping, hiking, fishing, sightseeing, and other recreational
and aesthetic purposes. These uses have been and will
continue to be adversely affected to the extent that the freight
rate structure, as modified thus far in Ex Parte 281, encourages
destruction of virgin timber, the unnecessary extra.dion of nonrenewable
resourres, and the discharge and accumulation of otherwise
recyclable ill/\ terials."
10 The court dismissed as moot that part of the complaint relating
to the Commission's February 1 ordn because that order
had expired by its own terms on June 5. Since the environmental
groups have not appealed from the judgment below, we have before
us for review only the District Court's artion with regard to the
Commission's April 24 order that allowed the surcharge to continue
until ::--Iowmber 30, 1972.
The court also conduded that since the Commission had taken
no final artion with respect to the 4.1 % selertive increase, the
lawfulness of that tariff was not ripe for review. The court did,
however, retain jurisdiction over the case to review the final order
of the Commission.
682 OCTOBER TERM, 1972
Opinion of the Court 412 u. s.
basis that, unlike the petitioner in Sinra Club, the environmental
groups here had alleged that their members
used the forests, streams, mountains and other resources
in the \Vashington area and that this use was disturbed
by the environmental impact caused by nonuse of recyclable
goods.
Second, the court found that its power to grant an
injunction was not barred by our decision in Arrow
Transportation Co. v. Southern R. Co., 372 U. S. 658,
667, where we held that in enacting 49 U. S. C. § 15 (7),
Congress had intentionally vested "in the Commission
the sole and exclusive power to suspend" and withdrew
"from the judiciary any pre-existing power to
grant injunctive relief." The court reasoned that NEPA
"implicitly confers authority on the federal courts to
enjoin any federal action taken in violation of XEPA's
procedural requirements" "so long as the revie\v is
confined to a determination as to whether the procedural
requisites of NEPA have been followed." 346 F. Supp.,
at 197 and n. 11.
Finally, turning to the merits, the court concluded
that the Commission's April 24 decision not to suspend
the surcharge for the statutory seven-month period ,vas a
" 'major Federal action significantly affecting the quality
of the human environment.'" Id., at 199. On the
premise that an environmental impact statement is required
"whenever the sction arguably will have an adverse
environmental impact." id., at 201, the court held
that "the danger of an adverse impact is sufficiently real
to require a statement in this case." Ibid.
The District Court declined to stay its injunctive order
pending appeal to this Court, and on July 19, 1972, THE
CHIEF JUSTICE, as Circuit Justice for the District of Columbia
Circuit, denied applications to stay the preliminary
injunction. 409 U. S. 1207. On December 18, 1972, we
noted probable jurisdiction of the appeals filed by the
UNITED STATES v. SCRAP 683
669 Opinion of the Court
United States, the Commission, and the railroads. 409
u. s. 1073,ll
II
The appellants challenge the appellees' standing to sue,
arguing that the allegations in the pleadings as to stand-
11 While subsequent events do not bear directly on the validity
of the District Court's action in granting the preliminary injunction,
they do highlight the problems that hover in the backgrcund of this
litigation.
On October 4, 1972, the Commission served its report and order
in Ex parte 281 approving, with some except.ions, the general increases
filed by the railroads. Increased Freight Rates and Charges, 1972,
341 I. C. C. 290. In that report, although the Commission gave
extensive consideration to environmental aspects of the rate increases,
it declined to include a formal environmental impact statement
because it concluded that its actions "will neither actually
nor potentially significantly affect the quality of the human environment
.... " Id., at 314.
The selective increases were to become effective on October 23,
1972, but the Commission delayed unt,il November 12 the effective
date for rate increases on recyclable commodities in order to allow
the submission of comments by interested parties. Upon the submission
of critical comments, the Commission, in an unreported
order served on November 8, reopened the rate proceeding in
Ex parte 281 for further evaluation of the rates on recyclable commodities,
and ordered the proposed selective tariff increases on
those commodities suspended for the full seven-month period authorized
by sta.tut~until June 10, 1973. Accordingly, with respect to
recyclable commodities on which the proposed selective increase had
been suspended, the Commission extended the expiration date of the
2.5% surcharge until June 10, 1973, the expiration date for the
suspension of the selective increases. But the Commission acknowledged
that the power to collect the surcharge on these recyclable
commodities was barred by the preliminary injunction issued by
the District Court in the present case and which is the subject of
the present appeals. In short, the temporary 2.5% surcharge would
have been in effect throughout this period on recyclable commodities
but for the District Court's resilient preliminary injunction. Whether
the Commission deliberately continued the surcharge beyond the time
it would have been supplanted by the selective increases in order to
684 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
ing were vague, unsubstantiated, and insufficient under
our recent decision in Sierra Club v. Morton, supra. The
appellees respond that unlike the petitioner in Sierra
give the surcharge and the District Court's injunction continuing
effect and thus avoid mooting this litigation, and whether the Commission
acted beyond its powers under 49 U.S. C. § 15 (7) by suspending
the selective increaseB for a second seven-month period and by treating
the District Court's injunction as having continuing effect, are
questions not raised here. No pa.rty now maintains that these cases
are moot. Cf. Southern Pacific Terminal Co. v. ICC, 219 U. S. 498,
515.
Both sets of appellees filed motions in the District Court:
SCRAP sought a preliminary injunction against the Commis.oion'~
October 4 order, and EDF and the other intervening plaintiffs
sought leave to file an amended and supplemental complaint and
requested other relief. On January 9, 1973, the court deferred
consideration of the EDF motions and denied SCRAP's request
for a preliminary injunction. The court found that as a result
of the Commission's November 8 order, neither the selective rate
increases nor the temporary surcharge could be assessed on recyclable
commodities. Consequently, the court found, no injunctive relief
was justified as to those materials. While the permanent rate increase
approved by the Commission in Ex parte 281 was then being
collected on shipments of all other commodities, and although the
Com.mission had concededly failed to file an impact statement, the
court concluded that "the danger of an adverse impact appears
to be sufficiently speculative . . . that it would be unsound to
grant preliminary relief." The court continued: "The record indicates
that many railroads are in dire financial straits-some on
the verge of bankruptcy-and badly need the revenues now being
obtained under the Commission's rate increase. The increase amounts
to some $340 million per year, and were this revenue flow halted
it could not easily be recouped should it later appear that no NEPA
statement was necessary." The merits of neither the Commission's
October 4 order nor the District Court's January 9 decision are
before us, and we therefore express no opinion on them.
On May 7, 1973, the Com.mission served its final environmental
impact statement relating to the selective rate increases on recyclable
commodities. It concluded that the proposed increases would have
no significant adverse effect on the environment. Contending that
the impact statement was inadequate, EDF and SCRAP sought to
UNITED STATES v. SCRAP 685
669 Opinion of the Court
Club, their pleadings sufficiently alleged that they were
"adversely affected" or "aggrieved" within the meaning
of § 10 of the Administrative Procedure Act (APA), 5
U. S. C. § 702,12 and they point specifically to the allegations
that their members used the forests, streams, mountains,
and other resources in the \Yashington metropolitan
area for campiug, hiking, fishing, and sightseciug. and
that this use vvas disturbed by the adverse environmental
impact caused by the nonuse of recyclable goods brought
about by a rate increase on those commodities. The District
Court found these allegations sufficient to withstand
a motion to dismiss. We agree.
The petitioner in Sierra Club, "a large and longestablished
organization, with a historic commitment to
the cause of protecting our X ation's natural heritage from
man's depredations," 405 U. S., at 739, sought a declaratory
judgment and an injunction to restrain federal officials
from approving the creation of an extensive skiresort
development in the scenic Mineral King Valley of
the Sequoia National Forest. The Sierra Club claimed
standing to maintain its "public interest" lawsuit because
it had " 'a special interest in the conservation and
the sound maintenance of the national parks, game refuges
and forests of the country ... .' " Id., at 730. We
held those allegations insufficient.
enjoin collection of the selective rate increases. On .Tune 7, 1973,
the District Court temporarily enjoined the railroads from collecting
the selective inrreases on recyclable commodities. On June 8, 1973,
THE CHIEF JusTrc~;, as Circuit Justice for the District of Columbia
Circuit, stayed the District Court's injunction pending further order
of this Court.
12 Like the petitioner in Sierra Club, the appellee~ here base their
standing lo sue upon the APA, 5 U. S. C. § 702, which provides:
"A person suffrring legal wrong· because of agency action, or adversely
affected or aggrieved by agency action within the meaning
of a relevant statute, is entitled to judicial review thereof." ·
686 OCTOBER TERM. 1972
Opinion of the Court 412 u. s.
Relying upon our prior decisions in Data Processing
Service v. Camp, 397 U. S. 150, and Barlow v. Collins,
397 U. S. 159, we held that § 10 of the APA conferred
standing to obtain judicial review of agency action only
upon those who could show "that the challenged action
had caused them 'injury in fact,' and where the alleged
injury was to an interest 'arguably within the zone of
interests to be protected or regulated' by the statutes
that the agencies were claimed to have violated." 405
U. S., at 733.13
In interpreting "injury in fact" we made it clear
that standing was not confined to those v.1ho could show
"economic harm," although both Data Processing and
Barlow had involved that kind of injury. Nor, we said,
could the fact that many persons shared the same injury
be sufficient reason to disqualify from seeking review of
an agency's action any person who had in fact suffered
m.1ury. Rather, we explained: "Aesthetic and environmental
well-being, like economic well-being, are important
ingredients of the quality of life in our society, and
the fact that particular environmental interests are shared
by the many rather than the few does not make them
less deserving of legal protection through the judicial
process." Id., at 734. Consequently, neither the fact
that the appellees here claimed only a harm to their use
and enjoyment of the natural resources of the Washington
area, nor the fact that all those who use those
B As in Sierra Club, it is unnecessary to rea.ch any question concerning
the scope of the "zone of interests" test or its appliration
to this case. It is undisputPd that the "environmental interest"
that the a ppellecs seek to protect is within the intrrests to br proterted
by NEPA, and it is unnecessary to consider the various
allegations of economic harm on which the appcllees also relied in
their pleadings and which the Government contends are outside
the intended purposes of NEPA.
UNITED STATES v. SCRAP 687
669 Opinion of the Court
resources suffered the same harm, deprives them of
standing.
In Sierra Club, though, we went on to stress the importance
of demonstrating that the party seeking review
be himself among the injured, for it is this requirement
that gives a litigant a direct stake in the controversy a.nd
prevents the judicial process from becoming no more than
a vehicle for the vindication of the value interests of concerned
bystanders. No such specific injury was alleged
in Sierra Club. In that case the asserted harm "will be
felt directly only by those who use Mineral King and
Sequoia National Park, and for whom the aesthetic and
recreational values of the area will be lessened by the
highway and ski resort," id., at 735, yet " [ t] he Sierra
Club failed to allege that it or its members would be
affected in any of their activities or pastimes by the ...
development." Ibid. Here, by contrast, the appellees
claimed that the specific and allegedly illegal action of
the Commission would directly harm them in their use of
the natural resources of the Washington Metropolitan
Area.
Unlike the specific and geographically limited federal
action of which the petitioner complained in Sierra Club,
the challenged agency action in this case is applicable to
substantially all of the Nation's railroads, and thus allegedly
has an adverse environmental impact on all the
natural resources of the country. Rather than a limited
group of persons who used a picturesque valley in California,
all persons who utilize the scenic resources of the
country, and indeed all who breathe its air, could claim
harm similar to that alleged by the environmental groups
here. But we have already made it clear that standing is
not to be denied simply because many people suffer the
same injury. Indeed some of the cases on which we relied
in Sierra Club demonstrated the patent fact that persons
688 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
across the Nation could be adversely affected by major
governmental actions. See, e.g., Environmental Defense
Fund v. Har.din, 428 F. 2d 1093, 1097 (interests of consumers
affected by decision of Secretary of Agriculture
refusing to suspend registration of certain pesticides containing
DDT); Reade v. Ewing, 205 F. 2d 630, 631-632
(interests of consumers of oleomargarine in fair labeling
of product regulated by Federal Security Administration).
To deny standing to persons who are in fact injured
simply because many others are also injured, would mean
that the most injurious and widespread Government
actions could be questioned by nobody. We cannot accept
that conclusion.
But the injury alleged here is also very different from
that at issue in Sierra Club because here the alleged injury
to the environment is far less direct and perceptible. The
petitioner there complained about the construction of a
specific project that would directly affect the Mineral
King Valley. Here, the Court was asked to follow a far
more attenuated line of causation to the eventual injury
of which the appellees complained-a general rate increase
would allegedly cause increased use of nonrecyclable
commodities as compared to recyclable goods,
thus resulting in the need to use more natural resources
to produce such goods, some of which resources might be
taken from the Washington area, and resulting in more
refuse that might be discarded in national parks in the
Washington area. The railroads protest that the appellees
could never prove that a general increase in rates
would have this effect, and they contend that these allegations
were a ploy to avoid the need to show some injury
in fact.
Of course, pleadings must be something more than
an ingenious academic exercise in the conceivable. A
plaintiff must allege that he has been or will in fact
be perceptibly harmed by the challenged agency action,
UNITED STATES v. SCRAP 689
669 Opinion of the Court
not that he can imagine circumstances in which he could
be affected by the agency's action. And it is equally
clear that the allegations must be true and capable of
proof at trial. But we deal here simply with the pleadings
in which the appellees alleged a specific and perceptible
harm that distinguished them from other citizens
who had not used the natural resources that were claimed
to be affected.14 If, as the railroads now assert, these
allegations were in fact untrue, then the appellants
should have moved for summary judgment on the standing
issue and demonstrated to the District Court that the
allegations were sham and raised no genuine issue of
fact.15 We cannot say on these pleadings that the ap-
14 The Government urges us to limit standing to those who have
been "significantly" affected by agency action. But, even if we
could begin to define what such a test would mean, we think it
fundamentally misronceived. "Injury in fact" reflects the statutory
requirement that a pnson be "adversely affected" or "aggrieved,"
and it serves to distinguish a person with a direct stake in the
outcome of a litigation- even though small-from a person with a
mere interest in the problem. We have allowed important interests
to be vindicated by plaintiffs with no more at stake in the outcome
of an action than a fraction of a vote, see Baker v. Carr, 369 U. S.
186; a $5 fine and costs, see McGowan v. Maryland, 366
U.S. 420; and a $1.50 poll tax, Harper v. Virginia Bd. of Elections,
383 U. S. 663. While these cases were not <lea.ling specifically
with § 10 of the APA, we see no reason to adopt a more restrictive
interpretation of "adversely affected" or "aggrieved." As Professor
Davis has put it: "The basic idea that comes out in numerous cases
is that an identifiable trifle is enough for standing to fight out a
question of primiple; the trifle is the basis for standing and the
principle supplies the motivation." Davis, Standing: Taxpayers
and Others, 35 U. Chi. L. Rev. 601, 613. See also K. Davis, Admini~
trative Law Treatise §§ 22.09- 5, 22.09- 6 (Supp. 1970).
1 5 The railroads object to the fact that the allegations wore not
more precisc--that no specific• "forest" was named, that there was no
assertion of t he existence of any lumbering ramp or other extractive
facility in the area. They elaim that they had no way to answer
such allegations which were wholly barren of specifics. But, if that
690 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
pellees could not prove their allegations which, if proved,
would place them squarely among those persons injured
in fact by the Commission's action, and entitled under
the clear import of Sierra Club to seek review. The
District Court was correct in denying the appellants'
motion to dismiss the complaint for failure to allege sufficient
standing to bring this lawsuit.
III
We need not reach the issue whether, under conventional
standards of equity, the District Court was justified
in issuing a preliminary injunction, because we
have concluded that the court lacked jurisdiction to enter
an injunction in any event.
The District Court enjoined the Commission from
"permitting," and the railroads from "collecting," the
2.5% interim surcharge on recyclable commodities.
Finding that NEPA implicitly conferred authority "on
the federal courts to enjoin any federal action taken in
violation of NEPA's procedural requirements," 346
F. Supp., at 19·7, it concluded that our decision in Arrow
Transportation Co. v. Southern R. Co., 372 U. S. 658, did
not affect judicial power to issue an injunction in the circumstances
of this case. We cannot agree.
In Arrow, the Commission had suspended a railroad's
proposed rates for the statutory seven-month period, and
the railroad had voluntarily deferred the proposed rate
were really a problem, the railroads could have moved for a more
definite statement, see Frd. Rule Civ. Proc. 12 (e), and certainly
normal civil discovery devices were available to the railroads.
Similarly, the District Court cannot be faulted for failing to take
evidence on the issue of standing. This case came before the court
on motions to dismiss and for a preliminary injunction. If the
railroads thought that it was necessary to take evidence, or if they
believed summary judgment was appropriate, they could have moved
for such relief.
UNITED STATES v. SCRAP 691
669 Opinion of the Court
for an additional five months. When the Commission had
not reached a final decision within that period, the railroad
announced its intent to adopt the new rates. In a suit
brought to enjoin the railroad from effectuating that
change, we held that the courts were without power to
issue such an injunction. From the language and history
of § 15 (7) of the Interstate Commerce Act, we concluded
that Congress had vested exclusive power in the Commission
to suspend rates pending its final decision on
their lawfulness, and had deliberately extinguished judicial
power to grant such relief. The factual distinctions
between the present cases and Arrow are inconsequential.
It is true that the injunction in Arrow was sought
after the statutory seven-month period had expired and
thus represented an attempt to extend judicially the
suspension period, while here the injunction was issued
during the suspension period. But Arrow was grounded
on the lack of power in the courts to grant any injunction
before the Commission had finally determined the
lawfulness of the rates, and that holding did not depend
on the fact that the availability of the Commission's
power of suspension had passed. Indeed, the
federal court decisions cited and approved in Arrow
involved instances where the courts had been asked to
enjoin rates during the statutory seven-month period.
See, e. g., M. C. Kiser Co. v. Central of Georgia R. Co.,
236 F. 573, aff'd, 239 F. 718; Freeport Sulphur Co. v.
United States, 199 F. Supp. 913; Bison S. S. Corp. v.
United States, 182 F. Supp. 63; Luckenbach S. S. Co.
v. United States, 179 F. Supp. 605, 609-610, v:wated in
part as moot, 364 U. S. 280; Carlsen v. United States,
107 F. Supp. 398.
Similarly, there is no significance in the fact that,
unlike Arrow, the injunction in this litigation ran against
the Commission as well as the railroads. The only
692 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
way in which the Commission could comply with the
court's order would be to exercise its power of suspension
and suspend the surcharge. The injunction
constitutes a direct interference with the Commission's
discretionary decision whether or not to suspend the
rates. It would turn Arrow into a sheer formality and
effectively amend § 15 (7) if a federal court could accomplish
by injunction against the Commission what it could
not accomplish by injunction directly against the railroads.
And, again, the federal court decisions on which
Arrow relied were for the most part cases in which the
courts had held that they were without power to compel
the Commission to grant a rate suspension. See, e. g.,
Bi-son S. S. Corp. v. United States, supra; Luckenba.ch
S.S. Co. v. United States, supra; Carlsen v. United States,
supra; cf. Freeport Sulphur Co. v. United States, supra.10
Thus, the only arguably significant distinction between
the present litigation and Arrow is that here the Commission
allegedly failed to comply with NEPA. However, we
cannot agree with the District Court that NEPA has
amended § 15 (7) sub silentio and created an implicit
exception to Arrow so that judicial power to grant in-
16 EDF suggests that the April 24 order of the Commission was
in fact a final order finding the surcharge "just and reasonable,''
not simply a refusal to suspend the surcharge. But the Commission's
reference to the "just and reasonable" nature of the surcharge
was a preliminary assessment commonly made in suspension orders.
See, e. g., the suspension orders quoted in Na.pk-Sol Refining Co.
v. United States, 269 F. Supp. 530, 531; Oscar Mayer & Co. v.
United States, 268 F. Supp. 977, 978-979. It did not represent a
final determination by th<> Commission that any particular rate was
just and reasonable. Indeed the Commission made it clear in its
February l order that the surcharge was not considered a prescribed
rate within the meaning of Arizona Grocery Co. v. Atchison,
T. & S. F. R. Co., 284 U. S. 370, and was subject to complaint
and investigation under the Act.
UNITED STATES v. SCRAP 693
669 Opinion of the Court
junctive relief in this case has been revived.11 NEPA,
one of the recent major federal efforts at reversing the
deterioration of the country's environment, declares
"that it is the continuing policy of the Federal Government
... to use all practicable means and measures ...
in a manner calculated to foster and promote the general
welfare, to create and maintain conditions under which
man and nature can exist in productive harmony, and
fulfill the social, economic, and other requirements of
present and future generations of Americans." 42
U. S. C. § 4331. To implement these lofty purposes,
Congress imposed a number of responsibilities upon federal
agencies, most notably the requirement of producing
a detailed environmental impact statement for "major
Federal actions significantly affecting the quality of the
human environment." 42 U. S. C. § 4332 (2) (C).18 But
11 An alternative ground for avoiding the Arrow decision, which
was suggested but not relied on by the District Court, was that
the surcharge here was an "agency-made" rate, not a "carriermade"
rate. Moss v. CAB, 430 F. 2d 891, which was cited by the
court is, however, plainly inapposite. There the CAB suspended the
rates proposed by the carriers, but suggested in their place "a complete
and innovative scheme for setting all passenger rates for the
continental United States." Id., at 899. It was clear that when the
carriers filed the rates suggested by the Board they would not be
suspended. "Even a cursory reading of the order makes it clear
that the Board told the carriers what rates to file; it set forth a
step-by-step formulu requiring major changes in rate-making practices
and in rates which it expected the carriers to adopt." Id.,
at 899-900. Here, by contrast, the level and structure of the rates
were proposed entirely by the carriers. While the Commission
suggrsted an expiration date for the surcharge, this was simply
to make the surcharge expire when the general selective increases
went into effect. This expiration date and the other sta.ndard conditions
attached to the Commission's refusal to suspend the surcharge
did not, in any meaningful sense, transform the carriermade
rate into a Commission-made rate.
18 See n. 8, supra.
694 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
nowhere, either in the legislative history or the statutory
language, is there any indication that Congress intended
to restore to the federal courts the power temporarily to
suspend railroad rates, a power that had been clearly
taken away by § 15 (7) of the Interstate Commerce Act.
The statutory language, in fact, indicates that NEPA
was not intended to repeal by implication any other
statute. Thus, 42 U. S. C. § 4335 specifies that "[t]he
policies and goals set forth in [NEPA] are supplementary
to those set forth in existing authorizations of Federal
agencies," and 42 U. S. C. § 4334 instructs that the Act
"shall [not] in any way affect the specific statutory obligations
of any Federal agency . . . . " Rather than
providing for any wholesale overruling of prior law,
NEPA requires all federal agencies to review their "present
statutory authority, administrative regulations, and
current policies and procedures for the purpose of determining
whether there are any deficiencies or inconsistencies
therein which prohibit full compliance with
the purposes and provisions of [NEPA] and shall propose
to the President ... such measures as may be
necessary to bring their authority and policies into conformity
with the intent, purposes, and procedures set
forth in [NEPA]." 42 U. S. C. § 4333. It would be
anomalous if Congress had provided at one and the same
time that federal agencies, which have the primary responsibility
for the implementation of NEPA,1
" must
comply with present law and ask for any necessary new
legislation, but that the courts may simply ignore what
19 See Greene County Planning Board v. FPC, 455 F. 2d 412,
420; Calvert Cliffs' Coordinating Comm. v. Atomic Energy Comm'n,
146 U.S. App. D. C. 33, 43,449 F. 2d 1109, 1119; City of New York
v. United States, 337 F. Supp. 150, 160; Cohen v. Price Comm'n, 337
F. Supp. 1236, 1241.
UNITED ST ATES v. SCRAP 695
669 Opinion of the Court
we described in Arrow as "a clear congressional purpose
to oust judicial power .... " 372 U. S., at 671 n. 22.20
The District Court pointed to nothing either in the
language or history of NEPA that suggests a restoration
of previously eliminated judicial power. \Vhile it
relied primarily on the decisions of the Court of Appeals
for the District of Columbia Circuit in Calvert
Cliffs' Cooi·dinating Comm. v. Atomic Energy Comm'n,
146 U. S. App. D. C. 33, 449 F. 2d 1109, and Committee
for Nuclear Responsibility, Inc. v. Seaborg,
149 U. S. App. D. C. 380, 463 F. 2d 783, neither
case supports an injunction under the circumstances of
this case. Calvert Cliffs' held that a federal court had
power to review rules promulgated by the Atomic Energy
Commission, and there the court ordered further consideration
of the rules on the ground that there had not
been compliance with NEPA. In Committee for Nuclear
Responsibility it was held that federal courts had
jurisdiction to consider whether an executive decision to
conduct a nuclear test had satisfied the procedural re-
20 The argument that NEPA impli!'itly restored to the courts the
injunctive power that § 15 (7) had divested is similar to a contention
rejected in Arrow itself. There the petitioners claimed that
congressional adoption of the National Transportation Policy, 54
Stat. 899, had implicitly altered § 1.5 (7). They claimed that the
proposed new railroad rates would drive the barge lines out of
existence, contrary to the congressional declaration of concern for
the protection of water carriers threatened by rail competition.
The Court concluded that "nothing in the National Transportation
Policy, enacted many years aft.er . . . § 15 (7), indicates that
Congress intended to revive a judicial power which . . . was
extinguished when the suspension power was vested in the Commission."
Arrow Transportation Co. v. Southern R. Co., 372 U. S.
658, 673. In addition, the Court noted that, as is also true with
NEPA, the mandate was directed not to the courts but to the
Commission. There is nothing about NEPA that makes it any more
amenable for finding an implicit amendment of § 15 (7), than the
National Transportation Policy was.
696 OCTOBER TERM, 19i2
Opinion of the Court 412 U.S.
quirements of NEPA. The question here, however, is
not whether there is general judicial power to determine
if an agency has complied with NEPA, and to grant
equitable relief if it has not, cf. Arrow Transportation
Co. v. Southern R. Co., supra, at 671 n. 22; Scripps-
Howard Radio, Inc. v. FCC, 316 U. S. 4, but rather
whether in a specific context NEPA sub silentio revived
judicial power that had been explicitly eliminated by
Congress. Calvert Clifjs' and Committee for Nuclear
Responsibility have nothing to say on this issue, for
neither was concerned with a specific statute that restricts
the power of the federal courts to grant injunctions.21
Our conclusion that the District Court lacked the power
to grant the present injunction is confirmed by the fact
that each of the policies that we identified in Arrow as
the basis for § 15 (7) would be substantially undermined
if the courts were found to have suspension powers simply
because noncompliance with NEPA was alleged.
First, Arrow found that the Commission had been
granted exclusive suspension powers in order to avoid
the diverse results that had previously been reached by
the courts. District courts had differed as to the existence
and scope of any power to grant interim relief, with the
consequence that the uniformity of rates had been jeopardized,
and different shippers, carriers, and areas of
the country had been subjected to disparate treatment.
Similarly, since a suit to enjoin a national rate increase
on NEPA grounds could be brought in any federal district
court in the country, see 28 U. S. C. §§ 2284, 2321-
2325, the result might easily be that the courts would
21 Indeed Cafoert Clifls' indicated that the requirements of § 102
of NEPA, sec n. 8, supra, did not have to be complied with, if ,:;uch
compliance was precluded by another statutory provision. 146 U. S.
App. D. C., at 39, 449 F. 2d, at 1115. And Committee for Nuclear
Responsibility, in another context, endorsed a principle, equally applicable
here, that "repeal by implication is disfavored." 149 U. S.
App. D. C. 380, 382, 463 F. 2d 783, 785.
UNITED ST ATES v. SCRAP 697
669 Opinion of the Court
"[reach] diverse results, ... [engendering] confusion
and [producing] competitive inequities." 372 U. S., at
663. In short, a rate increase allowed in New York
might be disallowed in New Jersey.
Second, we stressed in Arrow that § 15 (7) represents a
careful accommodation of the various interests involved.
The suspension period was limited as to time to prevent
excessive harm to the carriers, for the revenues lost during
that period could not be recouped from the shippers.
On the other hand, Congress was aware that if the Commission
did not act within the suspension period, then
the new rates would automatically go into effect and the
shippers would have to pay increased rates that might
eventually be found unlawful. To mitigate this loss,
Congress authorized the Commission to require the carriers
to keep detailed accounts and eventually to repay
the increased rates if found unlawful. To allow judicial
suspension for noncompliance with NEPA, would disturb
this careful balance of interests. A railroad may
depend for its very financial life on an increased rate,
and the rate may be perfectly just and reasonable.
Granting an injunction against that rate based on
the Commission's alleged noncompliance with NEPA,
although the Commission had determined not to suspend
the rate, would deprive the railroad of vitally needed
revenues and result in an unjustified windfall to shippers.
Finally, we found in Arrow that any survival of a
judicial power to grant interim injunctive relief would
represent an undesirable interference with the orderly
exercise of the Commission's power of suspension. Similarly,
to grant an injunction in the present context, even
though not based upon a substantive consideration of
the rates, would directly interfere with the Commission's
decision as to when the rates were to go into effect,
and would ignore our conclusion in Arrow that "Congress
meant to foreclose a judicial power to interfere
698 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
with the timing of rate changes which would be out of
harmony with the uniformity of rate levels fostered by
the doctrine of primary jurisdiction." 372 U. S., at 668.
As the Court of Appeals for the Second Circuit explained
in Port of New York Authority v. Unite,d States, 451
F. 2d 783, 788, where, on the basis of alleged noncompliance
with NEPA, an injunction was sought against a
Commission order refusing to suspend rates:
"The basis of the decision in Arrow-that to permit
judicial interference with the Commission's suspension
procedures would invite the very disruption
in the orderly review of the lawfulness of proposed
tariffs that Congress meant to preclude-applies
with equal force to the issue now before us."
Accordingly, because the District Court granted a preliminary
injunction suspending railroad rates when it
lacked the power to do so,22 its judgment must be re-
22 In view of our conclusion that there was no power to grant
the preliminary injunction, it is unnecessary for us to reach the
other questions posed by the parties. For example, the Government
and the railroads urge that, because of the pressures of time, an
environmental impact statement is not required at the suspension
stage of a rate proceeding, and, in any event, a decision by the
Commission whether or not to suspend rates is not subject to
judicial review. See Port of New York Authority v. United States,
451 F. 2d 783; Oscar Mayer & Co. v. United States, 268 F. Supp.
977; M. C. Kiser Co. v. Central of Georgia R. Co., 236 F. 573;
Freeport Sulphur Co. v. United States, 199 F. Supp. 913; Luckenbach
S. S. Co. v. United States, 179 F. Supp. 605; Carlsen v. United
States, 107 F. Supp. 398. The appellees .in turn contend that
some compliance with NEPA is possible at the suspension stage,
and that such compliance is required if the statute is to be
enforced "to the fullest extent possible." See 42 U. S. C. § 4332.
And they urge that there is, or should be, an exception to the general
principle of nonreviewability of suspension decisions for those cases
where the Commission has acted beyond its statutory authority, or
in violation of a clear statutory command or a procedural requirement,
a standard that the appellees view as broad enough to enUNITED
STATES v. SCRAP 699
669 DouGLAs, J., dissenting in part
versed and the cases remanded to that court for further
proceedings consistent with this opinion.
It is so ordered.
Mn. Jl;STICE Po-wELL took no part in the consideration
or decision of these cases.
MR. JUSTICE BLACKMUN, with whom MR. JUSTICE
BRENNAN joins, concurring.
I join the Court's judgment and its opinion, but because
of the presence of the first sentence of Part III
of the opinion, and to avoid any misunderstanding as
to my posture, I add a few words.
For the reasons stated in my dissenting opinion m
Sierra Club v. Morton, 405 U. S. 727, 755 (1972), I
would hold that the appellees here have standing to
maintain this action based on their allegations of harm
to the environment resulting from the Commission's
order of April 24, 1972. And, in evaluating whether injunctive
relief is warranted, I would not require that the
appellees, in their individual capacities, prove that they
in fact were injured. Rather, I would require only that
appellees, as responsible and sincere representatives of
environmental interests, show that the environment
would be injured in fact and that such injury would be
irreparable and substantial.
MR. JUSTICE DOUGLAS, dissenting in part.
I
These cases present important environmental problems.
They concern ratemaking for the shipment of
compass alleged noncompliancP with NEPA. SPe Naph-Sol Refining
Co. v. United States, 269 F. Supp. 530, 532; Oscar Mayer & Co.
v. United Slates, supra, at 982 (Doyle, J., con<'urring); Long Island
R. Co. v. United States, 193 F. Supp. 795. We express no view
on a.ny of these issues. ·
700 OCTOBER TERM, 1972
DOUGLAS, J., dissenting in part 412 U.S.
litter for recycling. Paper, glass, and metals are the
main items in today's garbage.1 As indicated by the
Bureau of Mines in Appendix I to this opinion, America's
method of disposing of garbage is either to use it for
landfill or to put it first through incinerators and then
to bury the residue. Sorting and recycling have several
environmental impacts: (1) reduction in the use of incinerators
lessens air pollution; (2) establishing or encouraging
removal of litter from the landscape; (3) recycling
saves both renewable and nonrenewable resources. As
respects the last, the tons of paper that are recycled,
rather than burned, can be translated into the number
of standing trees that need not be cut for pulp the next
year; the metals recycled protect our remaining nonrenewable
supplies of ore, and so on.
Rates fixed so as to encourage vast shipments of litter
are, therefore, perhaps the most immediate and dramatic
illustration of a policy which will encourage protection
1 In a Bureau of Mines' survey, it was established that metals and
glass account for approximately 75 percent of the weight of the residues
in municipal incinerator waste. Economics of Recycling Metals
and Minerals from Urban Refuse, Bureau of Mines Technical Progress
Report No. 33, p. 2 (Apr. 1971). From these materials, if recycled,
familiar products such as bottles, newspapers, iron ingots,
paper pulp, fuel oil, and methane gas can be manufactured. In addition,
new products are being developed, such as glassphalt for street
paving, insulation, glass wool, and glass bricks, in various colors that
meet specifications for "severe weather" facing brick. Id., at 7.
This project was launched under the Resource Recovery Act of
1970, 84 Stat. 1227, 42 U. S. C. § 3251 et seq., under which the Secretary
of HEW was authorized to provide technical and financial
assistance in planning and developing resource recovery and solid
waste disposal programs.
For a detailed account of a Resource Recovery Mill see Ross, How
to Succeed in Recycling, Environmental Quality Magazine, June
1973, p. 51.
UNITED STATES v. SCRAP 701
669 DouGLAs, J., dissenting in part
of the environment against several erosive conditions.2
I would, therefore, affirm the eminently responsible decision
of the District Court. 346 F. Supp. 189.
The National Environmental Policy Act of 1969, 83
Stat. 852, 42 U. S. C. § 4321 et seq., declares a congressional
policy
"which will encourage productive and enjoyable
harmony between man and his environment;
to promote efforts which will prevent or eliminate
damage to the environment and biosphere and stimulate
the health and welfare of man; to enrich the
understanding of the ecological systems and natural
resources important to the Nation; and to establish
a Council on Environmental Quality." 42
U. S. C. § 4321.
That broad policy is further expounded in § 4331 (b)
to include, inter alia, the objective that "the Nation
may ... (2) assure for all Americans safe, healthful, productive,
and esthetically and culturally pleasing surroundings
... and (6) enhance the quality of renewable
resources and ... depletable resources."
2 The necessity of reasonable transportation rates is even more apparent
when it is realized that the volume of residue which is processed
at a major recycling plant is between 250 and 1,000 tons pn
day. (Economics of Recycling ::VIetals and Minerals from Urban
Refuse, supra, n. 1, at 1.) Massive bulk transportation is therefore
essential to these plant operations.
Tho problem is eyen more critical in urban areas wlwre there is a
high concentration of solid waste being generated and transportation
to outlying recycling plants is a major cost factor. In 1968 a national
survey found that an average of 8.2 pounds of waste per
capita was collected daily in urban areas; this figure has now risen
to 9 pounds. If present trends continue, this figure could be as high
as 12 pounds in another 10 years. In our urban ti.teas as a whole,
the solid waste generated is fast approaching a ton a year for each
man, woman, and child. Kramer, Energy Conservation and Waste
Recycling, Science and Public Affairs 13, 17 (Apr. 1973).
702 OCTOBER TERM, 1972
DOUGLAS, J., dissenting in part 412 u. s.
The Government urges that appellees do not have
standing to challenge the administrative determination
of railroad freight rate increases. SCRAP alleged in its
amended complaint that its members suffered environmental
and economic injury as a result of the alleged increase,
because the increase diminished the total amount
of waste recycling in the United States, and made those
products, which were in fact manufactured from the waste
materials after the rate increase, more expensive in the
marketplace. In addition, SCRAP alleged that each
of its members in fact used the "forests, rivers, streams,
mountains, and other natural resources . . ." for recreational
purposes, and these uses were adversely affected
because the Commission's rate increases discourage the
reuse of recyclable commodities, such as bottles and
cans, and encourage the depletion of natural resources.
In Sierra Club v. Morton, 405 U. S. 727, 734, this Court
stated that, "We do not question that [environmental]
harm may amount to an 'injury in fact' sufficient to lay
the basis for standing under ... the APA [5 U. S. C.
§ 702]. Aesthetic and environmental well-being, like economic
well-being, are important ingredients of the quality
of life in our society, and the fact that particular environmental
interests are shared by the many rather than the
few does not make them less deserving of legal protection
through the judicial process." The members of SCRAP
have clearly alleged an "injury in fact" to the enviro11-
ment and to their own personal continued use of it.
"There is nothing unusual or novel in granting the
consuming public standing to challenge administrative
actions." Office of Communication of United Church
of Christ v. FCC, 12;3 U.S. App. D. C'. 328,359 F. 2d 994.
This Court has indicated that where "statutes are concerned,
the trend is toward enlargement of the class of
people who may protest administrative action." Data
Processing Service v. Camp, 397 U. S. 150, 154.
UNITED STATES v. SCRAP 703
669 DouGLAS, J., dissenting in part.
Littering is a commonplace phenomenon that affects
every person, almost everywhere. From reports and writings
we know that littering defaces mountain trails,
alpine meadmvs, and even our highest peaks. Those in
the valleys are of ten almost inundated with litter.
Where a river is polluted and a person is dependent on
it for drinking water, I suppose there would not be the
slightest doubt that he would have standing in court to
present his claim. I also suppose there is not the slightest
doubt that where smog settles on a city, any person
who must breathe that air or feel the sulphuric acid forming
in his eyes, would have standing in court to present
his claim. I think it is equally obvious that any resident
of an area whose paths are strewn with litter, whose
parks, or picnic grounds are defaced by it has standing
to tender his complaint to the court. Sierra Club v.
Morton, supra, would seem to cover this case, for littering
abetted by the failure to recycle would clearly seem to
implicate residents to whom "the aesthetic and recreational
vaues of the area" are important. ld., at 735.
For the reasons stated in my opinion in Sierra Club v.
Morton, supra, I agree with the Court tha.t appellees
have standing, but like MR. JUSTICE BLACKMON, I would
not require appellees, in their individual capacity, to
prove injury in fact. As MR. JusTICE BLACKMUN states,
it should be sufficient if appellees, "as responsible and
sincere representatives of environmental interests, show
that the environment would be injured in fact .... "
II
The Council on Environmental Quality (CEQ), created
in the Executive Office of the President, 42 U. S. C.
§ 4342, estimated in 1969 that this Nation produced more
than 4.3 billion tons of solid ref use, including about 30
million tons of paper, 30 million tons of industrial fly
ash, 15 million tons of scrap metal, 4 million tons of
704 OCTOBER TERM, 1972
DOUGLAS, J., dissenting in part 412 U.S.
plastics, 100 million automobile tires, 30 billion bottles,
60 billion cans, and millions of discarded automobiles
and appliances. First Annual Report of CEQ, Aug. 1970,
pp. 107-113. It reported that while most of the secondary
material could be reused as a replacement for
virgin material, only a small fraction was recycled. Ibid.
One of the reasons for the absence of recycling was the
high cost both of collection of the material and the transportation
costs. Ibid.
As noted, one of the purposes of the Act was to "enhance
the quality of renewable resources and approach
the maximum attainable recycling of depletable resources."
42 U. S. C. § 4331 (b)(6). On October 9,
1970, Chairman Russell Train of CEQ wrote the Interstate
Commerce Commission as follows:
"The Council on Environmental Quality is deeply
concerned with all facets of environmental quality.
Solid waste disposal is one important aspect of the
total pollution problem, and recycling is a new and
desirable alternative to solid waste disposal which
the Council strongly supports. The degree to which
this technique will be used depends almost entirely
on economics. Transportation costs, to the degree
they increase secondary or scrap materials costs compared
to the raw materials with which they compete,
act as a disincentive to recycling. The Council believes
that several rail haul costs biases currently
exist and would like to discuss these cases with
you. . . . In general, across-the-board percentage
increases only widen existing price biases against
secondary materials. Also, these increases raise the
costs of doing business which can hinder the salvage
and reclamation industry.
"In light of the President's concern with environmental
quality, the growing problems of solid waste
669
UNITED STATES v. SCRAP 705
DOUGLAS, ,T., dissenting in part
and the importance of recycling to alleviating them,
I would like to express the Council's hope that the
Interstate Commerce Commission's actions on the
key issue of scrap material transportation rates will
be consistent with the Nation's environmental quality
goals." App. 68.
In December 1971 substantially all the railroads filed
with the Commission a request to impose a 2.5% surcharge
on virtually all freight. The procedural details
which followed are not presently material. Suffice it to
say that shippers of recyclable materials submitted verified
statements in support of their view that rate increases
would intensify the disincentives to shipment and use of
recyclable materials. Thus the Institute for Scrap Iron
and Steel submitted a study showing:
"(I) Present scrap markets are retarded because
of transport rates which encourage the usage of iron
ore. (2) Future scrap markets are being affected
because new investment that ·would logically be directed
to scrap-intensive steelmaking is diverted because
of the existing freight rate structure to oreintensive
steelmaking. (3) Iron ore (a limited
domestic natural resource) is being exploited when
it can and should be conserved. ( 4) Some scrap iron
that should be recycled is unable to move, thus the
environment is despoiled by unnecessary accumulations
of solid metallic waste." T. Barnes, Impact
of Railroad Freight Rates on the Recycling of Ferrous
Scrap (Jan. 14, 1972).
The Commission instituted a proceeding concerning
the guidelines ,vhich environmental impact statements
required under the Act should follow. 339 I. C. C. 508.
A spokesman for the eastern railroads filed an impact
statement ,vhich said that "any possible adverse environmental
impact in the form of reduced movements of com706
OCTOBER TERM, 1972
DOUGLAS, J., dissenting in part 412 U.S.
modities by rail will come only if we fail to provide
adequate and efficient service" and that the need of the
railroads to that end was for increased revenues. Appellees
filed a protest and a request for a suspension of
the proposed surcharge alleging that the present railroad
rate structure discourages the movement of "recyclable"
goods and that the surcharge would further discourage
recycling.
The Commission, allowing the surcharge for a limited
period, found that it would "have no significant adverse
effect in the movement of traffic by railway or on the
quality of the human environment" within the meaning
of the 1969 Act. See 340 I. C. C. 358; 341 I. C. C. 287.
Chairman Train of CEQ protested to the Commission
on October 30, 1972:
"It is understandable that difficulties will be encountered
in quantifying the environmental consequences
of an incremental freight rate increase on
recyclable materials. In our view, however, these
consequences must be assessed in the light of the
rate disparity between secondary and primary materials
that gives rise to the problem in the first place.
This disparity is a matter of an entirely different
magnitude, calling for a thorough environmental
assessment as a precondition to determining whether
subsequent incremental increases require additional
environmental impact statements. . . . Clearly at
some point increases which might be individually
'insignificant' become cumulatively 'significant.' In
addition, the claim that freight rates on recycled
products must be increased to respond to 'emergency'
revenue needs pending completion of the required,
overall environmental evaluation, loses much of its
force as months turn into years and the basic investigation
remains uncompleted. Finally, even the
'emergency' argument itself, however legitimate, in
669
UNITED STATES v. SCRAP 707
DouoLAs, J., dissenting in part
no way forecloses the consideration of alternatives
which would both meet revenue needs and at the
same time avoid further potential environmental
damage while the basic rate structure issue is being
resolved. Alternatives of this sort were, in fact,
suggested in the partial dissenting opinions of Commissioners
Brown and Deason ( who would have denied
approval of increases for recyclable commodities),
with no indication in the Commission's majority
report that such measures would not have been
sufficient to meet the revenue needs relied on to
justify the rate increases. . . . In summary, the
Council feels that the basic environmental issues related
to the existing freight rate structure and
changes thereto, must be evaluated in a logical,
analytical and timely fashion in compliance with the
requirements of the National Environmental Policy
Act. The Commission's actions to date appear to
be inconsistent with the objectives of NEPA, and the
analyses undertaken to date by the Commission appear
to offer an inadequate basis from which to
draw conclusions concerning the impact of freight
rates on recycling and enviromental quality. Our
staff is available to discuss the NEPA procedural issues
as well as to assist in structuring the analytical
work required to assess adequately the environmental
impact of freight, rates." 3 App. 87-89.
3 In his report before the Senate, Senator Jackson, one of the three
legislators most responsible for NEPA, stated: "To insure that the policies
and goals defined in this act arc infused into the ongoing programs
and actions of the Federal Government, the act also establishes some
important 'action-forcing' procedures. Section 102 authorizes and
directs all Federal agencies, to the fullest extent possible, t o administer
their existing laws, regulations, and policies in conformance
with the policies set forth in this act. It also directs all agencies
to assure consideration of the environmental impact of their actions
in decision-making. It requires agencies which propose actions to
708 OCTOBER TERM, 1972
DouGLAS, .T., dissenting in part 412 u. s.
The three-judge District Court held that the conclusion
of the Commission that the rate increase would have "no
significant adverse effect" on the environment within the
meaning of EPA was "transparent" and "a ruse." 346
F. Supp., at 200-201. This leads to an analysis of § 102
of NEPA.4
That section is directed to "all agencies of the Federal
Government," which of course includes the Interstate
Commerce Commission. It directs the agency to interpret
and administer "the policies, regulations, and public laws"
which it administers "to the fullest extent possible" in
accordance with the policies of EPA. It directs the
agency 5 to include in "major Federal actions significantly
affecting the quality of the human environment"
a detailed statement "by the responsible official
on-(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be
avoided should the proposal be implemented, (iii) alternatives
to the proposed action, (iv) the relationship
consult with appropriate Federal and State agencies having jurisdiction
or expertise in environmental matters and to include any
comments made by those agencies which outline the environmental
considerations involved with such proposals.
"Taken together, the provisions of section 102 directs [sic] any
Federal agency which takes action that it must take into account
environmental management and environmental quality considerations."
115 Cong. Rec. 40416 ( 1969).
4 The totality of § 102 is so important to this litigation that I have
set it forth in Appendix II to this dissent.
5 Senator Jackson was reported as saying:
"We expected Section 102 of the act which requires environmental
impact statements and analysis of alternatives for all major federal
actions significantly affecting the quality of the human environment
to force the agencies to move. . . . We did not anticipate that it
would be private parties through the courts that would force the
compliance. This i~ what has made it work." Cahn, Can Federal
Law Help Citizens Save Nature's Fragile Beauty?, Christian Science
Monitor 12 (Feb. 28, 1973).
UNITED STATES v. SCRAP 709
669 DoUGLAS, J., dissenting in part
between local short-term uses of man's environment and
the maintenance and enhancement of long-term productivity,
and ( v) any irreversible and irretrievable
commitments of resources which would be involved in
the proposed action should it be implemented. Prior
to making any detailed statement, the responsible
Federal official shall consult with and obtain the
comments of any Federal agency which has jurisdiction
by law or special expertise with respect to any environmental
impact involved. Copies of such statement
and the comments and views of the appropriate
Federal, State, and local agencies, which are authorized
to develop and enforce environmental standards, shall be
made available to the President, the Council on Environmental
Quality and to the public as provided by section
552 of Title 5, ... and shall accompany the proposal
through the existing agency review processes." 83 Stat.
853.
Rates affecting litter, like rates affecting other commodities,
obviously are relevant to the ease and expedition
with which it will be transported. To get the
litter to appropriate recycling plants in the quantities
needed to protect our fast depleting forests and our nonrenewable
resources 6 and to relieve our landscape of the
litter that plagues us may need special incentive rates.
The report, H. R. Conf. Rep. No. 91-765, makes clear
that no agency of the Federal Government is exempt and
that each should comply unless existing law applicable
to the agency "expressly prohibits or makes full complir.
Waldo E. Smith, of the American Geophysical Union, recently
stated: "The total supply of most metals is sharply limited; even now
we must dig deeper, go farther, and use lower grade ores. Ko optimism
is justified here. The supply can be extended substantially by
intelligent recycling, which should be an important by-product of our
cleaning up to maintain a clean environment." Resources and Long-
Forecasts, Science and Public Affairs 21, 22 (May 1973).
710 OCTOBER TERM, 1972
DouGLAS, .J., dissenting in part 412 U.S.
ance with one of the directives impossible." The report
states:
"The purpose of the new language is to make it clear
that each agency of the Federal Government shall
comply with the directives set out in such subparagraphs
(A) through (H) unless the existing law
applicable to such agency's operations expressly prohibits
or makes full compliance with one of the directives
impossible. If such is found to be the case,
then compliance with the particular directive is not
immediately required. However, as to other activities
of that agency, compliance is required. Thus,
it is the intent of the conferees that the provision 'to
the fullest extent possible' shall not be used by any
Federal agency as a means of avoiding compliance
with the directives set out in section 102. Rather,
the language in section 102 is intended to assure
that all agencies of the :Federal Government shall
comply with the directives set out in said section
'to the fullest extent possible' under their statutory
authorizations and that no agency shall utilize an
excessively narrow construction of its existing statutory
authorizations to avoid compliance." Id., at
9-10.
The District Court, acting responsibly in light of
the broad and clear-cut policy of the Act concluded that
it sets a " 'high standard' " for federal agencies, that there
is no " 'escape hatch for footdragging agencies,'" that the
Act does not make the preparation and use of these impact
statements " 'discretionary,' " that Congress did not
intend that this Act be "'a paper tiger.' " 346 F. Supp.,
at 199.7
7 When Congress desires exceptions to be made to the impact
statement requiremf'nt under the NEPA, express exemption is
provided. For example, Pub. Law 92-307, 86 Stat. 191, proUNITED
STATES v. SCRAP 711
669 DouGLAS, J., dissenting in part
Arrow Transportation Co. v. Southern R. Co., 372
U. S. 658, does not preclude review here. In Arrow there
were rates which the Commission had the power to suspend
but ha<l not suspended. The pmver of suspension
was entrusted to the Commission only; and we held that
the courts should not intrude when the Commission has
not acted. Here the Commission has acted; it has found
that "the increases here proposed are just and reasonable,
that the revenues derived therefrom will result in earnings
vides that the Atomic Energy Commission can grant a temporary
operating license for a nuclear power reactor without the
completion of an environmental impact statement, if the application
for the operating license was filed before September 9, 1971,
and the Commission holds a hearing which leads to the findings,
among others, that the operation of the facility during the period
of the temporary operating license in accordance with its terms and
con<litions will prcffide adequate protection of the environment during
that period nnd that the operation of the facility is essential
toward insuring the power-generating capacity of a utility system.
The Commission is C'mpowcr<'d to impose surh terms and conditions
as it deems necessarY, and its decision is subject to judicial review.
Some frderal agencie~ ar<' taking affirmative a<'tion to promote the
purposes of § 105. Tims the Securities an<l Exchange Commission
recently adopted amendments to its registration and reporting forms
to require more meaningful disclosure of certain items pertaining to
1 he effe('t on the issuer's business of compliarce with federal, state,
and loeal laws and regulations rdating to the protPclion of the environnwnt.
The amendments will require as a part of the description
of the i~suer's business, appropriatP diselosures with respect to
the material effrets which cornpliancP with environmental laws an<l
regulations may have upon the rapital expenditures, earnings, and
competitive position of 1 he issuer and its subsidiaries. Other amPndments
describe the extent to which litigation disclosures should contain
specific descriptions of pm·ironmcntal proceedings. Securities
and Exchange Comm'n Release (Securities Art Rel. No. 5386,
Apr. 20, 1973). See Scientists' Institute v. AEC, 156 U.S. App. D. C.
395, 481 F. 2d 1079, holding that an impact statement must be
filed for the Atomic Energy Commission's liquid metal fast breeder
reactor program.
712 OCTOBER TER~I, 1972
DOUGLAS, J., dissenting in part 412 U.S.
and rates of return ... not in excess of that required to
enable" the carriers "to render adequate and efficient
transportation at the lowest cost consistent with the
furnishing of such sen,ice." Ex parte 281, Order of
Feb. 1, 1972 (unreported). The Commission said it
was not prescribing rates, though it attached conditions
on approval of the rates without suspension.
It made clear it would suspend the new rates if
the conditions were not added. As stated by the threejudge
court: "A suspension decision which effectively
blackmails the carriers into submitting agency-authored
rates is functionally indistinguishable from an agency
order setting those rates." 346 F. Supp., at 197.
Moreover, as the three-judge court held and as Judge
Friendly observed in City of New York v. United States,
337 F. Supp. 150, 164, "XEPA is a new and unusual
statute imposing substantive duties which overlie those
imposed on an agency by the statute or statutes for which
it has jurisdictional responsibility."
The Court today greatly weake11s NEPA in a crucially
important segment of the federal environmental
field. Movement of litter to recycling plants 8 is critica.
lly important, as Chairman Train makes abundantly
clear. The alternative is to leave it underfoot or to cart
it off as garbage to incinerators that pollute the air or to
landfills that are getting more and more difficult to find.9
We know that recycled paper, recycled copper, recycled
8 Senator Jackson recently wa.s reported as sa.ying about these
impact statements:
"\Ve also should be able to get generic environmental impact statements-
updated eycry six months or so-for energy poliey, transportation
policy, and other major policy decisions." Cahn, supra,
n. 5.
"Most of the Nation's waste is relocated into dumps with only
approximately 10% to 15% finding its way into sanitary landfills.
Kramer, supra, n. 2, at 17.
UNITED STATES v. SCRAP 713
669 DoUGLAs, J., dissenting in part
iron, and recycled glass are practical. The Federal Bureau
of Mines in its pilot plant at Edmonston, Maryland,
boasts that "urban ore," as it calls this debris, costs about
$3 a ton and recycled is worth $11 a ton. We know that
we deal here ,vith nonrenewable resources. \Ve are told
that recycling paper saves thousands of acres of trees
a year.10
Under the Act, the appraisal by the Council on Environmental
Quality of which Russell Train is the chairman
is a weighty one, for under § 204 of the Act it has the
responsibility "to appraise the various programs and
activities of the Federal Government" in light of the
policy of the Act and "to develop and recommend . . .
national policies to foster and promote the improvement
of environmental quality." 83 Stat. 855; 42 U. S. C.
§§ 4344 (3), (4). CEQ is, in other words, the expert
ombudsman in the environmental area.
1 ° Congressman Dingell, another main sponsor of NEPA, recently
was reported as saying:
"The success of the environmental impact statements is not so much
that they were used as we intended they should, but that cit izens
have been able to use the process as a [way] to get into courts ....
Some agcucies are c·omplying poorly. They decide what they are
going to do and then write an environmental impact statement to
support the decision. That is not what Congress bad in mind. I
am fearful tlrnt we are breeding a race of impact statement writers
who put all the right words down but don't really get cm·ironmental
concerns involved in the decision-making proC'ess. The impact
statement itself is not important. The important thing is that
proper judgments are made reflecting environmental <"onsidcrations
in the decision-making process. The impact statement should be
a discipline for this and also a process by which the public can bP
informed and brought into the decision-making process." Cahn,
supra, n. 5.
For a recent account of impact statements on transportation problems
see Robert Cairn (former member of CEQ), Environmentalists
Wary of Transport Trend, Christian Science Monitor 12 (Feb. 28,
1973) .
714 OCTOBER TERM, 1972
Appendix I to opinion of DOUGLAS, ,T., dissenting in part 412 U.S.
The apparent tendency among federal agencies, Congressman
Dingell says,n is to decide first what they want
to do and then prepare an impact statement as an apologia
for what they have done. That puts the cart before the
horse. That is what the Commission did here. But that
is to adopt "an excessively narrow construction" of its
statutory power "to avoid compliance" with the new
environmental standards~all as condemned in the Conference
report, supra, at 10. That is to say, environmental
considerations are, so far as possible, to shape all
agency policies and decisions.
These cases are, indeed, Exhibit A of the current practice
of federal agencies to undermine the policy announced
by Congress in NEPA. Rail rates were long
discriminatory in retarding the industrial development
of the South. New York v. United States, 331 U.S. 284.
The present rates are arguably discriminatory against
the removal of the litter which is about to engulf us.
The wisdom of Chairman Train, rather than the technical
maneuvers of the Commission, should be our guide.
I would affirm the judgment of the District Court.
APPENDIX I TO OPINION OF DOUGLAS, J.,
DISSENTI~G IN PART
The Bureau of Mines had at Edmonston, Maryland, for
several years an incinerator residue processing plant on
the basis of which Lowell, Massachusetts, instituted its
Resource Recovery Project.
The Edmonston project is now engaged in recycling of
raw waste and the following is the Bureau's description
of the nature and scope of that project.
11 See n. 10, supra.
UNITED STATES v. SCRAP
669 Appendix I to opinion of DouGLAS, J., dissenting in part.
FACT SHEET
Edmonston (M<l.) Solid Waste Recycling Project
Bureau of Mines
DEPARTMENT OF THE INTERIOR
715
An important part of the solid waste utilization researl'h carried
on by the Bureau of Mines is to develop methods and processes for
recycling mineral materials present in urban refuse. Engineers from
the Bureau's College Park (Md.) ::\1et.allurgy Research Center operate
a pilot plant at Edmonston, Maryland, where they reclaim ferrous
metals, nonferrous metals, glass, plastics, and pa.per from raw unburned
refuse. The following facts are pertinent to the research
underway at the Edmonston pilot plant.
xxx-100 pounds of typical municipal refuse contains:
36.6 pounds of paper and cardboard; 20.2 pounds of garbage;
8.4 pounds of metal; 8.5 pounds of glass; 17.4 pounds of leaves,
grass, hedge clippings and tree prunings; 2.6 pounds of scrap
wood; 1.1 pound of plastics; and 5.2 pounds of miscellaneous
material including leather, rubber, textiles, bricks, stones, and
dirt.
xxx-Urban refuse generated in the U. S. in 1972 totaled 300 million
tons, or the equivalent of more than 8 pounds daily for every
man, woman, and child.
xxx-Only 220 million tons of municipal refuse was regularly collected
by public agencies and private firms. The remainder
(80 million tons) was abandoned, dumped at the point of
origin, or hauled to uncontrolled disposal sites.
xxx-The Yolume of municipal refuse accumulating in the U. S. in a
single year would cover an area half the size of the State of
Connecticut (2,500 sq. mi.) with a layer of refuse 1 foot deep.
This refuse contains some 12 million tons of iron and steel, 13
million tons of glass, and OYer a million tons of aluminum, zinc,
lead, tin, and copper.
xxx-Collecting and disposing of refuse costs cities an average of
$23 per ton ($18, for collection and $5, for disposal). New
York City, at a cost of $40 per ton, spends almost a million
dollars each day to collect and dispose of solid waste. Total
U. S. bill runs about $6 billion annually.
xxx-Most municipal refuse is disposed of by dumping, landfill, or
incineration. About 30 million tons of municipal refuse is
716 OCTOBER TERM, 1972
Appendix I to opinion of DouGLAS, J., dissenting in part 412 U.S.
burned annually in more than 300 municipal incinerators.
These incinerators generate 7.5 million tons of residues, which
are then buried. The process developed by the Bureau to
reclaim the values from incinerator residues has attracted worldwide
attention. A commercial size plant of this type will soon
be under construction in Lowell, Massachusetts, with seventyfive
percent of the $3.2 million required, being provided by the
Environmental Protection Agency.
xxx-Successful reclamation of mineral values from incinerator residues
at the Bureau's pilot plant prompted research to save
also that part of municipal refuse that is now being lost during
burning. This would reduce the need for building more municipal
incinerators, saving their construction and operating costs,
and would bring income from salvaged paper and plastics as
well as metals and glass. It would also i>limin11.t.e air pollution
problems connected with incineration.
xxx-Equipment for mechanical separation of metals, glass, paper,
and plastics from municipal refuse before incineration has been
assembled at Edmonston. The process involves coarse shredding
of the refuse, followed with air classification, magnetic
separation, screening, optical sorting, electrostatic separation,
and gravity concentration-all proven methods used in the
minerals industries.
xxx-Other refuse recycling schemes have been proposed and some
are already under development. The process developed by the
Bureau is unique in the following major respects: (1) it is
the only process that embodies a complete system, (2) it is the
only process capable of capturing and concentrating putrescibles
and glass, (3) it is the only process that produces a tin can product
suitable for detinning, ( 4) it is the only process capable of
accepting extremely massive pieces of metal, (5) it is the only
process that can successfully separate plastics and paper, and
(6) energy requirements for the Bureau's process a.re by far
the least of all proposed processes.
xxx-A plant processing 1,000 tons of raw refuse per day could be
expected to reclaim each day enough ferrous metal to make all
the iron and steel parts for more than 55 4-door sedans.
xxx-About 36 billion bottles are discarded each year in the U. S.
as solid waste. Each American discards a glass bottle on the
average of about one every two days. The average returnable
beer bottle used to make 31 round trips from the brewery, to
the consumer, and back to the brewery. The average is now
UNITED STATES v. SCRAP 717
669 Appendix I to opinion of DOl.:GLAS, ,J., dissenting in part
19 trips. In some cities, it is only 4. People are discriminating
less between returnable and non-returnable bottles.
xxx-Glass reclaimed from raw refuse can be used in making new
glass, or for such salable products a.s building bricks, mineral
wool for insulation, and road surfacing (when ground and
mixed with asphalt).
xxx-Alwninum present in refuse in the form of cans alone amounts
to 10 percent of the total primary production. This metal together
with other aluminum recovered from refuse would find
a ready market at existing secondary smelters for conversion
to high grade casting alloys.
xxx-The other heavy nonferrous metals could be used readily in
producing brass ingot or the mixture could be further refined
and separated into the constituent metals.
xxx-The rate at which we generate refuse is growing so fast that
within 20 years, even if we are able to recycle 70 percent of
our solid wastes our needs for landfill space will remain the
same. And landfill space is, even now, becoming harder and
harder to find.
[Refuse-disposal and refuse-recovery charts appear on
pp. 718 and 719 respectively.]
718 OCTOBER TERM, 1972
Appendix I to opinion of DouGLAS, J., dissenting in part 412 U.S.
UUAII REFUSE DISPOSAL IN THE UNITED STATES 1972
"unlclp1l refuse of
Cype which could be
diverted to
processing plants.
140 N household
20 N co...:relal
160 mi 11 lon
tons. annually
Urban ore
(Urban refuse)
300 ml I I Ion tons
generated annually
140 mil lion
tons annua 11 y
Other urban refuso
eon ta Ins
80 N conmercial
JO N fly ash
2 N junk autos
3 N tires
2 H appliances
Z) K misc. rubble,
I lght industrial
w,as te, trees,
rocks, other
30 11111 lion
/ tons
130 million
tons '-,
140 million
tons
Operating municipal
incinerators
7.5 million
tons ' Jncinerator residues
presently going to dwnps.
Could be diverted to
residue plants.
Hunlcipal refuse
now going to dumps~
C~uld be diverted
to raw refuse
process!ng systems.
Ave rage compos it i or,
applies to 160 million ton,
municipal refuse only
Material
Nonferrous Metal
r~rrous metal
Paper
food ><aste
Percent
7":"s
.1
1.1
J6.6
20. 2
Yard ><aste 17 .~
Plastic$ l. I
Leather, rubber l.5
Wood 2.6
T•xt 1le5 2 .0
DI rt l. 7
Aver•g• composition of
inc.lnerator residue.s
Material
Ferrous meta I
Nonferrous meta I
Ash and slag
Percent -w.r )0.8
2.8
32.4
Disposed in part to
dumps, by abandonment
or disposal at orI91n,
litter, other
UNITED STATES v. SCRAP 719
669 Appendix I to opinion of Dou gl as , J., dissenting in part
BUREAU OF MINES DRYSORT REFUSE RECOVERY SYSTEM
720 OCTOBER TERM, 1972
Appendix II to opinion of DoUGLAS, J ., dissenting in part 412 U.S.
APPENDIX II TO OPINION OF DOUGLAS, J.,
DISSENTING IN PART
Section 102 of the National Environmental Policy Act,
42 U. S. C. § 4332 provides:
§ 4332. Cooperation of agencies; reports; availability
of information; recommendations; international and national
coordination of efforts.
The Congress authorizes and directs that, t-0 the fullest
extent possible: (1) the policies, regulations, and public
laws of the United States shall be interpreted and administered
in accordance with the policies set forth in
this chapter, and (2) all agencies of the Federal Government
shall-
(A) utilize a systematic, interdisciplinary approach
which will insure the integrated use of the
natural and social sciences and the environmental
design arts in planning and in decisionmaking which
may have an impact on man's environment;
(B) identify and develop methods and procedures,
in consultation with the Council on Environmental
Quality established by subchapter II of this chapter,
which will insure that presently unquantified
environmental amenities and values may be given
appropriate consideration in decisionmaking along
with economic and technical considerations;
(C) include in every recommendation or report on
proposals for legislation and other major Federal
actions significantly affecting the quality of the
human environment, a detailed statement by the
responsible official on-
( i) the environmental impact of the proposed
action,
UNITED STATES v. SCRAP 721
669 Appendix II to opinion of DouGLAs, J., dissenting in part
(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 shortterm
uses of man's environment and the maintenance
and enhancement of long-term productivity,
and
( v) any irreversible and irretrievable commitments
of resources which would be involved
in the proposed action should it be
implemented.
Prior to making any detailed statement, the responsible
Federal official shall consult with and obtain
the comments of any Federal agency which has j urisdiction
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;
(D) study, develop, and describe appropriate alternatives
to recommended courses of action in any
proposal which involves unresolved conflicts concerning
alternative uses of available resources;
(E) recognize the worldwide and long-range character
of environmental problems and, where consistent
with the foreign policy of the United States,
lend appropriate support to initiatives, resolutions,
and programs designed to maximize international
722 OCTOBER TERM, 1972
WHITE, .T., dissenting in part 412 U.S.
cooperation in anticipating and preventing a decline
in the quality of mankind's world environment;
(F) make available to States, counties, municipalities,
institutions, and individuals, advice and information
useful in restoring, maintaining, and enhancing
the quality of the environment;
(G) initiate and utilize ecological information in
the planning and development of resource-oriented
projects; and
(H) assist the Council on Environmental Quality
established by subchapter II of this chapter.
Pub. L. 91-190, Title I, § 102, Jan. I, 1970, 83 Stat. 853.
MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE
and MR. JusTICE REHNQUIST join, dissenting in part.
I would reverse the judgment of the District Court
and order the complaint dismissed because appellees
lack standing to bring this suit. None of our cases, including
inferences that may be drawn from dicta in
Sierra Club v. Morton, 405 U.S. 727 (1972), where we denied
standing to petitioner there, are sufficient to confer
standing on plaintiffs in circumstances like these. The allegations
here do not satisfy the threshold requirement of
injury in fact for constituting a justiciable case or controversy.
The injury alleged is that the failure of the Commission
to suspend a 2.5% freight rate increase may discourage
the transportation of recyclable materials, thus
retarding the use of recycled materials, causing further
consumption of our forests and natural resources (some
of which might be taken from the Washington metropolitan
area), and resulting in more refuse and undisposable
materials to further pollute the environment.
The majority acknowledges that these allegations reflect
an "attenuated line of causation," ante, at 688,
but is willing to suspend its judgment in the dim hope
that proof at trial will in some unexplained way flesh
UNITED STATES v. SCRAP 723
669 WHITE, J., dissenting in part
them out and establish the necessary nexus between these
appellees and the across-the-board rate increase they
complain of. To me, the alleged injuries are so remote,
speculative, and insubstantial in fact that they fail to
confer standing. They become no more concrete, real,
or substantial when it is added that materials will cost
more at the marketplace and that somehow the freight
rate increase will increase air pollution. Allegations
such as these are no more substantial and direct and
no more qualify these appellees to litigate than allegations
of a taxpayer that governmental expenditures
will increase his taxes and have an impact on his pocketbook,
Massachusetts v. Mellon, 262 U. S. 447, 486-489
(1923), or allegations that governmental decisions are
offensive to reason or morals. The general "right, possessed
by every citizen, to require that the Government be
administered according to law and that the public moneys
be not wasted" does not confer standing to litigate in
federal courts. Fairchild v. Hughes, 258 U. S. 126, 129
(1922). New York did not have standing to complain
when it asserted merely the possible adverse effects of
diversion of water from Lake Michigan upon hypothetical
power developments in "the indefinite future." New
York v. Illinois, 274 U. S. 488, 490 (1927). Assumed
potential invasions are insufficient bases for a justiciable
case or controversy. Arizona v. California, 283 U. S.
423, 462 ( 1931). As I see the allegations in this case,
they are in reality little different from the general-interest
allegations found insufficient and too remote in
Sierra Club. If they are sufficient here, we are well on
our way to permitting citizens at large to litigate any
decisions of the Government which fall in an area of
interest to them and with which they disagree.
Assuming, however, that a majority of the Court adheres
to the conclusion that a constitutional case or
controversy exists in these circumstances and that plain724
OCTOBER TERM, 1972
Opinion of MARSHALL, J. 412 u. s.
tiffs may sue, I would agree that the District Court erred
in entering an injunction which Congress quite clearly
had long since divested it of the power to enter. Accordingly,
I join Part III of the Court's opinion. I add
only that failure to maintain this country's railroads
even in their present anemic condition will guarantee
that recyclable materials will stay where they are-far
beyond the reach of recycling plants that as a consequence
may not be built at all.
MR. JusTICE MARSHALL, concurrmg m part and dissenting
in part.
I fully agree with and join in Part II of the Court's
opinion wherein it sustains the District Court's determination
that the appellees have standing to challenge
the 2.5% interim surcharge on the ground that the Interstate
Commerce Commission's order of April 24 permitting
the surcharge to take effect was not issued in
compliance with the requirements of the National Environmental
Policy Act of 1969 (NEPA) , 42 U. S. C.
§ 4321 et seq. The Court goes on, however, to hold in
Part III of its opinion that the District Court lacked
power to issue a preliminary injunction barring implementation
of the surcharge due to the Commission's
alleged failure to comply with NEPA in the suspension
stage of the rate proceeding. The Court's decision in
this respeet is, to be sure, a very narrow one; the decision
clearly concerns only the scope of remedies available to
the District Court in the context of a case of this particular
character/ that is, an ICC rate suspension case.
1 Given that the Court holds only that the District Court lacked
power to grant preliminary injunctive relief, it presumably remnins
open to appellecs to challenge the Commission's alleged failure to
comply with NEPA in the suspension stage of the proceedings concerning
the interim surcharge in an action for declaratory relief.
Nor does anything in the Court's opinion today deny to the disUNITED
STATES v. SCRAP 725
669 Opinion of MARSHALL, J.
The Court specifically refrains from deciding whether or
not the Commission's alleged failure to comply with
NEPA in the suspension stage is a proper subject for
judicial review and, if so, what ,vould constitute adequate
compliance with NEPA at that juncture in the administrative
process. See ante, at 698-699, n. 22. Nonetheless,
I am unable to join the third portion of the Court's
opinion, for I am convinced that there is no lack of judicial
power to issue a preliminary injunction against the
interim surcharge in the context of these cases. I therefore
must respectfully dissent from Part III of the
Court's opinion.
At the outset, it is essential for purposes of analysis to
put the issue upon which the Court disposes of the cases
in proper perspective. Since the Court addresses only
the issue of the District Court's power to grant preliminary
relief, we must, of course, assume for the sake of
argument that the issues which the Court does not now
reach-namely, whether the procedural requirements of
NEPA 2 are applicable at the suspension stage and
whether the issue of Commission compliance is a proper
one for judicial review 3-are to be decided in appellees'
favor. In addition, we must accept for the present
appellees' assertions that the interim surcharge, by raistrict
courts power to enjoin the Commission to comply with
NEPA in the context of a particular rate proceeding so long as no
injunction is issued barring implementation of the rates themselves,
cf. Atchison, T. & S. F. R. Co. v. Wichita Board of Trade, post,
p, 800.
2 See in particular § 102 (2) (C) of the Act, 42 U. S. C.
§ 4332 (2) (C).
3 Cf., e. g., Upper Pecos Assn. v. Stans, 452 F. 2d 1233 (CAIO
1971), vacated and remanded for consideration of mootness sub nom.
Upper Pecos Assn. v. Peterson, 409 U. S. 1021 (1972); Calvert
Cliffs' Coordinating Comm. v. Atomic Energy Comm'n, 146 U. S.
App. D. C. 33,449 F. 2d 1109 (1971); City of New York v. United
States, 337 F. Supp. 150, 158-160 (EDNY 1972).
726 OCTOBER TERM, 1972
Opinion of MARSHALL, J. 412 U.S.
ing the cost of shipping recyclable materials, will further
accentuate the allegedly unjustifiable disparity between
the cost of shipping those materials and the cost of shipping
primary goods, thereby irrationally encouraging the
use of primary goods which will lead to a further degradation
of our environment. In other words, in considering
the question of judicial power, we must accept the correctness
of th~ District Court's determination that there
was a "strong likelihood" that the Commission had erred
in its conclusion that the interim surcharge "'will have
no significant adverse effect on ... the quality of the
human environment within the meaning of the Environmental
Policy Act of 1969,'" 346 F. Supp., at 200, 201,
a conclusion that had effectively excused the Commission
from compliance with the procedural requirements of
NEPA in the context of the surcharge, see 42 U. S. C.
§ 4332 (2)(C).
Turning then to the issue of judicial power, it must
first be recalled that we deal here with the grant of only
a preliminary injunction; the District Court did not
permanently enjoin enforcement of the interim surcharge
upon determining that the Commission had, in all likelihood,
failed to comply with NEPA in the suspension
stage. Properly viewed, I think the injunction at issue
in this case amounts to nothing more than a legitimate
effort by the District Court, following the Commission's
refusal to suspend the surcharge, to maintain the status
quo pending final judicial determination of the legality
of the Commission's action at the suspension stage in
light of the requirements of NEPA. And, by now, the
equitable power of the federal courts to grant interim
injunctive relief pending determination of an a.ppeal is
well established. The nature of that power was explored
at length by the Court in Scripps-Howard Radio, Inc. v.
FCC, 316 U. S. 4 (1942), where it was held that a court
of appeals had power, pending determination of an apUNITED
STATES v. SCRAP 727
669 Opinion of MARSHALL, J.
peal, to stay the Federal Communications Commission's
grant of a construction permit although the Federal Communications
Act made no provision for such a stay.
Speaking for the Court, Mr. Justice Frankfurter
explained:
"No court can make time stand still. The circumstances
surrounding a controversy may change
irrevocably during the pendency of an appeal, despite
anything a court can do. But within these limits
it is reasonable that an appellate court should be
able to prevent irreparable injury to the parties or
to the public resulting from the premature enforcement
of a determination which may later be found to
have been wrong. It has always been held, therefore,
that as a part of its traditional equipment for
the administration of justice, a federal court can stay
the enforcement of a judgment pending the outcome
of an appeal." Id., at 9-10.
See also FTC v. Dean Foods Co., 384 U. S. 597, 604
(1966); Whitney National Bank in Jefferson Parish v.
Bank of New Orleans & Trust Co., 379 U. S. 411, 425
( 1965).
This Court has consistently adhered to the view that
it will find federal courts to have been deprived of their
traditional power to stay orders under review only in
the face of the clearest possible evidence of a congressional
intent to do so. See Scripps-Howarid Radio, Inc.
v. FCC, supra, at 11, 15. No such clear intent is to
be found in the Interstate Commerce Act, at least not
with respect to a case such as this where the Commission
has already acted on the relevant issue and the issue lies
m an area outside the Commission's traditional expertise.
4 In Arrow Transportation Co. v. Southern R.
4 Thus, I cannot. accept the Court's assertion that 'the question
here is "whether in a specific context NEPA sub silentio revived
728 OCTOBER TERM, 1972
Opinion of MARSHALL, J. 412 U.S.
Co., 372 U.S. 658, 664 (1963), this Court specifically acknowledged
that "[i] t cannot be said that the legislative
history of the grant of the suspension power to the Commission
includes unambiguous evidence of a design to extinguish
whatever judicial power may have existed prior
to [the establishment of suspension powers in the Commission]
to suspend proposed rates." The Arrow Court
was asked to extend by injunction the statutory sevenmonth
suspension period. ~ee 49 U. S. C. § 15 (7), because
the Commission had not reached a decision on the lawfulness
of the proposed rates at the end of the suspension
period and the rail carriers, following a period of voluntary
suspension, were threatening to implement the rate
change without awaiting final agency action. Despite
the ambiguity of the legislative history, the Court, upon
careful examination of the character of and reasons for
the suspension scheme, concluded that Congress must
have intended to deprive the federal courts of the power
to suspend rates pending completion of agency action
and thus that the traditional equitable powers of the federal
courts had been overridden to that extent. But, as
detailed consideration of the factors that motivated the
decision in Arrow reveals, this litigation presents a significantly
different problem.
The Arrow Court felt that an injunction extending the
suspension period pending final agency action would involve
a serious, unintended intrusion on the primary
jurisdiction of the Commission. This problem of primary
jurisdiction had two aspects in Arrow. First, where
the issue is the reasonableness of proposed rates, an
application for an injunction against implementation of
judicial power that had been exphciHy eliminated by Congress."
Ante, at 696 . That is a question which I do not believe need ever be
reached here, for-as shaU be seen-Congress has not, to begin with,
deprived the federal courts of their traditional equitable powers in
the context of these cases.
UNITED STATES v. SCRAP 729
669 Opinion of MARSHALL, J.
those rates pending final agency action would necessarily
require a federal court "to pass before final Commission
action upon the question of reasonableness of a rate,"
372 U. S., at 671, thereby providing, in effect, an advisory
judicial opinion to the Commission on an issue which
Congress intended that the Commission decide in the first
instance. Certainly, the Commission's expertise in matters
of rail carrier operations and economics is well recognized,
and Arrow clearly indicates that the courts should
not interfere with the exercise of that expertise. However,
the grant of preliminary relief here involves no
such interference with the Commission's initial exercise
of its particular expertise.
So far as I am aware, the Commission has never been
deemed especially expert in matters of environmental
policy or impact.5 It is, of course, true that the Commission
must decide in the first instance whether particular
proposed action constitutes "major Federal action
significantly affecting the quality of the human environment,"
thus necessitating agency compliance with
the detailed requirements of § 102 (2)(C) of NEPA, 42
U. S. C. § 4332 (2)(C). But that decision had already
been made in this case prior to the time when judicial
intervention by the District Court was soughtr-in contrast
to the situation in Arrow where the question of the
reasonableness of the rates remained unresolved by the
Commission. Even assuming that some element of
agency expertise is involved in the decision at issue here,
the District Court, in granting preliminary relief against
the interim surcharge, passed only upon a question of
which the Commission had finally disposed, namely, the
environmental impact of not suspending the interim sur-
• Administrative expertise in such matters is surely lodged with
the Environmental Protection Agency and the Council on Environmental
Quality.
730 OCTOBER TERM, 1972
Opinion of ::VIARSHALL, .T. 412 U.S.
charge a11d of permitting it to take effect at once. Thus,
for purposes of the particular issue raised here, the
District Court \Vas pre~ented with final agency action
" and was not in danger of interfering \vith the
Commission's expertise when it stayed the Commission's
order pending final determination of the appeals.7
The other aspect of the problem of primary jurisdiction
focused upon in Arrow was the timing of the implementation
of new rates. The Court concluded that
Congress had intended that the Commission should determine
,vhen new rates should take effect. See 372 U. S.,
at 668. Insofar as the economic impact of rat.e increases
was concerned, Congress enacted a scheme which permitted
the Commission to take into account the interests
of both rail carriers and shippers. Thus, Congress recognized
that economic necessity might persuade the Commission
to permit otherwise questionable rates to go
unsuspended while they were being investigated, and, at
most, it allowed the Commission to suspend proposed
rates for only seven months, see 49 U.S. C. § 15 (7). At
the same time, Congress attempted to accommodate the
economic interests of shippers, for it gave the Commission
power, pending final agency action, to require the
rail carriers to maintain detailed records of monies received
due to the increase and to compel payment of
refunds if a rate increase was ultimately found to be
unreasonable.8 See ibid.
° Cf. L . .Taffe, Judicial Cont.rol of Administrative Action 688
(1965).
7 Contrast Atchison, T. & S. F. R. Co. v. Wichita Board of Trade,
post, p. 800.
8 Moreover, even if thr Commission fails to require recordkceping
and the payment of rpfunds sua sponte, Congress also provided a
merhanism by whi<,h shippers may initiate an action before the
Commission to seek reparations from a carrier on the ground that
particular rates arc unrrasonablc. See 49 U. S. C. § 13 (1).
Arrow Transportclion Co. v. Southern R. Co., 372 U. S. 658
UNITED STATES v. SCRAP 731
669 Opinion of MARSHALL, J.
But where does the Interstate Commerce Act make
provision for an accounting and "refund" to the people
of our Nation for the irreversible ecological damage that
results from a rate increase which discriminates unreasonably
against recyclable materials and has been allowed
to take effect without compliance with the procedural
requirements of NEPA? 9 The Court today says that
" [ t] o allow judicial suspension for noncompliance with
NEPA, would disturb the careful balance of interests"
struck by Congress in the suspension and refund provisions.
Ante, at 697. Yet the simple fact is that in the
( 1963), to be sure, did not involve an economic dispute between
shippers and rail carriers, but was, instead, an action brought by
water carriers which contended that certain challenged decreases in the
rates of competing rail carriers were designed to destroy them rather
than to reach legitimate economic objectives. Obviously, the
refund and reparation provisions of the Interstate Commerce
Act were of no more value to the water carriers in Arrow than they
arc to the nonshipper appellees in this case. But, as the Court
pointed out in Arrow, " [ c] onflicts over rates between competing carriers
were familiar to the Commission long before [thr enactment of
the suspension provisions] . . . . Indeed, in another provision
[namely, 49 U.S. C. § 4 (2)] of the very same statute [that established
the suspension powers] Congress ... dealt explicitly with the
reduction of rates by railroads competing with water carriers ....
In addition § 8 of the Act, 49 U. S. C. § 8, creates a private right of
action for damages-based upon conduct violative of the Act-which
might be available ... . " 372 U. S., at 669. Thus, Congress had
taken into account, and had provided for, disputes betwren competing
carriers, as well as between shippers and carriers, in enacting the suspension
provisions. The same can hardly be said for conflicts between
the environmental policies of NEPA and the Commission's suspension
power.
9 Indeed, given the substantial element of public interest at stake
in a case such as this, it is appropriate to recall Mr. Justice Stone's
oft-quoted admonition: "Courts of equity m;;y, and frequently do, go
much farther both to give and withhold relief in furtherance of the
public interest than they are accustomed to go when only private
interests are involved." Virginian R. Co. v. Systems Federation No.
40, 300 U. S. 515, 552 (1937).
732 OCTOBER TERM, 1972
Opinion of MARSHALL, J. 412 U.S.
carefully designed suspension and refund scheme no balance
was struck with respect to the environmental interests
that have been recognized by Congress in NEPA
since the introduction of the suspension provisions into
the Interstate Commerce Act. Under these circumstances,
we can hardly infer an intent on the part of
Congress to deprive the federal courts of their traditional
responsibility, in passing upon a request for equitable
relief, to work an accommodation in each particular
case of the competing interests of the relevant parties -io_
that is, of a rail carrier's alleged need for increased income
that will otherwise be forever lost each day that
the new rate is not charged and of the extent of irreversible
environmental damage that might result if the
rates are not suspended. The District Court, in its
effort to preserve the status quo pending final review
of the Commission's April 24 order, gave full consideration
to the effects on all parties of either granting or
denying preliminary relief against the interim surcharge.11
In then temporarily enjoining the surcharge, I believe
that the District Court acted within the scope of its
legitimate powers.
To summarize, then, I obviously cannot agree with
the Court's assertion that "each of the policies that we
identified in Arrow as the basis for § 15 (7) would be
substantially undermined if the courts were found to
have suspension powers simply because noncompliance
with NEPA was alleged." Ante, at 696. In Arrow itself,
the Court was at pains to point out that its deci-
1° Cf. Hecht Co. v. Bowles, 321 U.S. 321, 329-330 (1944).
11 Thus, the District Court, fully recognizing the financial plight
of the rail carriers, carefully limited its preliminary injunction to
the application of the interim surcharge to recyclable materials,
"allowing [ the rail carriers] to collect the surcharge on all nonrecyclable
goods." 346 F. Supp., at 202.
UNITED STATES v. SCRAP 733
669 Opinion of MARSHALL, J.
sion did not "reflect in any way upon decisions which
have recognized a limited judicial power to preserve the
court's jurisdiction or maintain the status quo by injunction
pending review of an agency's action through the
prescribed statutory channels." 372 U. S., at 671 n. 22.
True, the Court went on to say there that "[sJuch
power . . . has never been recognized in derogation of
such a clear congressional purpose to oust judicial power
as that manifested in the Interstate Commerce Act."
Ibid. But the import of that remark must be judged
with a full understanding of the factors underlying the
Arrow Court's finding of "such a clear congressional purpose."
As has been seen, close analysis of those factors
identified certainly does not compel extension of the
Arrow holding to the request for preliminary injunctive
relief in this litigation.12 The Court would do well to re-
12 The Arrow Court also pointed out that experience with judicial
injunctions against rates prior to the establishment of the Commission's
suspension powers in § 15 (7) had "resulted in disparity of
treatment as between different shippers, carriers, and sections of the
country, causing in turn 'discrimination and hardship to the general
public.'" 372 U. S., at 664. These results were due both to the
conflicting views of lower federal courts as to their power to enjoin
rates pending agency determination of their lawfulness and conflicting
judgments of different courts as to the reasonableness of the same
rates. Seo id., at 663--664. But the danger of conflicting judgments
concerning the same rates and unevenhanded treatment of shippers
and carriers, merely because of the fortuity of the particular judicial
district in which they are located, is not present where, as here, the
allegation is that the Commission has failed to follow the requirements
of a statute-NEPA-relevant to the exercise of its regulatory
jurisdiction and the Commission has, as a consequence, been joined
in the suit as a defendant. So long as the Commission has been
made a party, it is possible to ensure uniformity of treatment by
enjoining the Commission to exercise its suspension powers where a
failure to comply with NEPA is believed to exist. This is what the
District Court did here when it enjoined the Commission "from permitting
. . . the 2.5 per cent surcharge" to be collected by the rail
734 OCTOBER TERM, 1972
Opinion of MARSHALL, .J. 412 U.S.
member that " [ w] here Congress wished to deprive the
courts of [their] historic power [ to enjoin orders pending
review], it knew how to use apt words .... " Scripps-
Howard Radio, Inc. v. FCC, 316 U.S., at 17. Cf. Hecht
Co. v. Bowles, 321 U. S. 321, 329 (1944). Nothing in
the language of the Interstate Commerce Act or in the
particular structure of that Act or even in our decision
in Arrow compels the conclusion that Congress has done
so here. I must therefore dissent from the Court's ultimate
disposition of these cases.
carriers "pending further order of this court." See Jurisdictional
Statement 30a. It may be that the danger of conflicting results
where the Commission has not been made a party would warrant
a court staying its hand, but that, is not a problem here.
GAFFNEY v. CUMMINGS 735
Opinion of the Court
GAFFNEY V. CUMMINGS ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF CONNECTICUT
No. 71-1476. Argued February 26-27, 1973-Decided June 18, 1973
Connecticut's legislative apportionment plan was held by the District
Court to be unconstitutional because partisan political structuring
had resulted in excessive population deviations in the House districting.
Held:
1. Minor deviations from mathematical equality among state
legislative districts do not make out a prima facie case of invidious
discrimination under the Equal Protection Clause of the Fourteenth
Amendment, and in this case, where the House districts
deviated on the average by 1.9% and the maximum deviation was
7.83%, a prima facie case was not made out. Pp. 740-751.
2. A "political fairness principle" that achieves a rough approximation
of the statewide political strengths of the two major
parties does not violate the Equal Protection Clause. Pp. 751-754.
341 F. Supp. 139, reversed.
WHITE, J., delivered the opinion of the Court, in which BuRGER,
C. J., and STEWART, BLACKMUN, PowELL, and REHNQUIST, JJ.,
joined. BRENNAN, J., filed a dissenting opinion, in which DoUGLAS
and MARSHALL, JJ., joined, post, p. 772.
Robert G. Dixon, Jr., argued the cause for appellant.
With him on the briefs were Harry W. Hultgren, Jr.,
Franc-is J. McCarthy, and Gordon W. Hatheway, Jr.
Robert A. Satter argued the cause for appellees. With
him on the brief was James A. Wade.
MR. JUSTICE WHITE delivered the opm1on of the
Court.
The questions in this case are whether the population
variations among the election districts provided by a
reapportionment plan for the Connecticut General Assembly,
proposed in 1971, made out a prima facie
736 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
case of invidious discrimination under the Equal Protection
Clause and whether an otherwise acceptable reapportionment
plan is constitutionally vulnerable where its
purpose is to provide districts that would achieve "political
fairness" between the political parties.
I
The reapportionment plan for the Connecticut General
Assembly became law when published by Connecticut's
Secretary of State in December 1971. Under the State's
Constitution, the legislature is given the initial opportunity
to reapportion itself in the months immediately
following the completion of a decennial census of the
United States. Conn. Const., Art. III, § 6 (b). In the
present case, the legislature was unable to agree on a
plan by the state constitutional deadline of April 1, 1971.
The task was therefore transferred, as required by the
constitution, to an eight-member bipartisan commission.
Ibid. The Democratic and Republican Party leaders in
the legislature each appointed four commissioners. The
commission was given until July 1, 1971, to devise a
reapportionment plan, id., § 6 (c); but, although the
commission approached agreement, it too was unable to
adopt a plan within the deadline. Accordingly, as
a final step in the constitutional process, a three-man
bipartisan Board was constituted. Id., § 6 ( d). The
Speaker of the House of Representatives, a Democrat,
and the Republican Minority Leader of the House each
chose a judge of the State Superior Court to be a Board
member, and the two judges in turn designated a third
Board member, who was a justice of the State Supreme
Court. Ibid.
This Apportionment Board, using the census data
available during the summer of 19·71, and relying heavily
on the legislative commission's tentative plans, filed a
GAFFNEY v. CUMMINGS 737
735 Opinion of the Court
reapportionment plan on September 30, 1971 , with one
member dissenting.
According to the 1970 census data before the Board,
the population of Connecticut is 3,032,217. The Board's
reapportionment plan provides for a Senate consisting
of 36 senators elected from single-member districts. The
ideal senatorial district, in terms of population, would
thus contain 84,228 people. The districts actually created
deviate, on the average, by 0.45 % from this ideal,
the median deviation being 0.47 %. The largest and
smallt>st senatorial districts deviate by +0.88 % and
-0.93%, respectively, making the total maximum deviation
1.81 %. 1
The reapportionment plan proposed a House of 151
single-member districts. The population of the ideal
assembly district would be 20,081. The average deviation
from perfect equality for all the plan's assembly
districts is 1.9 %, the median deviation, l.8 o/o . The maximum
deviation from the ideal is +3.93% and 3.9%.
The maximum deviation between any two districts thus
totals 7 .83 o/c. 2
In Connecticut, towns rather than counties are the
basic unit of local government. See Butterworth v.
Dempsey, 229 F. Supp. 754, 761 (Conn.), aff'd, 378 U.S.
564 (1964). The State Constitution provides that "no
town shall be divided" for the purpose of creating House
districts, except where districts are formed "wholly
within the town." Art. III, § 4. No comparable directive
exists for the creation of Senate districts. The Constitution
further provides, however, that the "establishment
of districts ... shall be consistent with federal
1 The ratio of the largest Senate district to the smallest is 1.018
to 1.
2 Tho ratio of the largest assembly district to the s mallest is 1.082
to 1.
738 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
constitutional standards." Id., § 5. To meet those
standards and to reach what it thought to be substantial
population equality, the Board cut the boundary lines
of 47 of the State's 169 towns.3 The Board also consciously
and overtly adopted and followed a policy of
"political fairness," which aimed at a rough scheme of
proportional representation of the two major political
parties. Senate and House districts were structured so
that the composition of both Houses would reflect "as
closely as possible ... the actual [statewide] plurality
of vote on the House or Senate lines in a given election." 4
Rather than focusing on party membership in the respective
districts, the Board took into account the party
voting results in the preceding three statewide elections,
and, on that basis, created what was thought to be a
proportionate number of Republican and Democratic
legislative seats.
In November 1971, not long after the Board filed the
reapportionment plan with the Secretary of the State, an
action was brought in federal district court seeking declaratory
and injunctive relief against implementation
of the plan. The complaint alleged that the Board
"erroneously applied the one man-one vote doctrine of
the Fourteenth Amendment ... to achieve smaller deviations
from population equality for the assembly dis-
3 Some town boundaries were cut more than once, resulting in
what the parties have termed "town segments," or portions of a
town that were used to form an assembly district not wholly within
that town. The Board's plan creates 78 such segments in the formation
of the 151 assembly districts.
4 Testimony of Judge George A. Saden, the Republican Board
member. App. 264. According to Mr. James F. Collins, a staff
member of the Board, the plan for the House resulted in approximately
70 safe Democratic seats, 55 to 60 safe Republican seats,
with the balance characterized as probable or swing Democratic or
Republican or "just plain swing," 341 F. Supp. 139, 147. See App.
126-127.
GAFFNEY v. CUMMINGS 739
735 Opinion of the Court
tricts than was required by the Fourteenth Amendment
. . . and thereby was compelled to segment an
excessive number of towns in forming assembly districts."
The complaint further alleged the plan amounted to a
political gerrymander and contained "a built-in bias in
favor of the Republican Paxty." Appellant Gaffney, the
Chairman of the State Republican Party, was permitted
to intervene in support of the Board's plan and, after
a three-judge court was empaneled, the court heard testimony
in March 1972. At the hearing, plaintiff-appellees
introduced three alternative House apportionment plans
that required fewer town-line cuts, although all three
plans involved total deviations from population equality
in excess of those contained in the Board plan.5 A fourth
plan for the House was submitted with a total maximum
deviation from population equality among districts of
2.61 % , as compared with the Board plan, which contained
a 7.83% total maximum deviation. This alternative
plan, however, was prepared without regard for
town lines, which were cut substantially more times than
in the Board plan.6 Considerable evidence was introduced
demonstrating the obvious political considerations
in the Board's district making.7 In late March, the District
Court filed its decision invalidating the Board plan
and permanently enjoining its use in future elections.
341 F. Supp. 139. The court held that "the deviations
5 The Board's Senate plan was not challenged in the District Court
and no alternative Senate plan was introduced. Appellces do not
challenge the Senate districts on the ground of their population
deviations. Brief for Appellees 14 n. 4; Tr. of Oral Arg. 20.
6 Plaintiff-appcllees' plan resulted in 58 town-line cuts and 88 town
segments, as opposed to the corresponding figures of 47 and 78 in the
Board's plan.
7 Plaintiff-appellees further offered testimony illustrating the undesirability-
in the context of the State's administrative apparatus-o.f
excessive cutting of town lines.
740 OCTOBER TERM, 1972
Opinion of the Court 412 u. s.
from equality of populations of the Senate and House
districfa are not justified by any sufficient state interest
and that the Plan denies equal protection of the law to
voters in the districts of greater population .... " Id.,
at 148. The court relied in part on Kirkpatrick v.
Preisler, 394 U. S. 526 (1969). More particularly, the
court found that the policy of "partisan political structuring,"
341 F. Supp., at 150, "cannot be approved as
a legitimate reason for violating the requirement of
numerical equality of population in districting.'' Id.,
at 149. The court therefore required that a plan
reflecting "closer adherence to the constitutional guidelines"
be adopted. Jurisdiction over the case was retained
for all purposes, and the court announced that
it "will appoint a master . . . to devise a plan conforming
to federal and state constitutional requirements
.... " Id., at 150.
On June 12, 1972, after a motion to expedite consideration
of the appeal had been denied (406 U.S. 942),
this Court granted appellant's motion for a stay of the
District Court's judgment. 407 U. S. 902. On the basis
of that stay, and a subsequent supportive state order,8
the 1972 fall elections for the State Assembly were held
under the Board's reapportionment plan. When this
Court convened in October 1972, we noted probable jurisdiction
over the appeal. 409 U. S. 839. By this time, a
Special Master had been appointed by the District Court
and had prepared a reapportionment plan.
II
We think that appellees' showing of numerical deviations
from population equality among the Senate and
8 The order was entered in a parallel state proceeding, Miller v.
Schaffer, No. 173606, Super. Ct., Hartford County, filed November
12, 1971, which was directed at correcting certain clerical errors
or omissions in the Board's plan.
GAFFNEY v. CUMMINGS 741
735 Opinion of the Court
House districts in this case failed to make out a prima
facie violation of the Equal Protection Clause of the
Fourteenth Amendment, whether those deviations are
considered alone or in combination with the additional
fact that another plan could be conceived with lower
deviations among the State's legislative districts. Put
another way, the allegations and proof of population deviations
among the districts fail in size and quality to
amount to an invidious discrimination under the Fourteenth
Amendment which would entitle appellees to relief,
absent some countervailing showing by the State.
The requirement of Art. I, § 2, of the Constitution, that
representatives be chosen "by the People of the several
States," mandates that "one man's vote in a congressional
election is to be worth as much as another's."
Wesberry v. Sanders, 376 U. S. 1, 8 (1964) (footnote
omitted). This standard "permits only the limited population
variances which are unavoidable despite a goodfaith
effort to achieve absolute equality, or for which
justification is shown." Kirkpatrick v. Preisler, 394
U. S., at 531. In Kirkpatrick and in Wells v. Rocke-
! eller, 394 U. S. 542 ( 1969,), the Court found inconsistent
with this standard state statutes creating congressional
districts having total maximum deviations of 5.97% and
13.1 %, respectively. It is the standard of these cases
which is the prevailing rule under Art. I and which we
confirm in White v. Weiser, post, p. 783, today, for the
purposes of congressional reapportionment.
Earlier this Term, the question arose whether the same
standard is applicable when reviewing state legislative
reapportionments under the Equal Protection Clause of
the Fourteenth Amendment. Mahan v. Howell, 410
U. S. 315 (1973). We concluded that there are fundamental
differences between congressional districting
under Art. I and the Wesberry line of cases on the
one hand, and, on the other, state legislative reappor742
OCTOBER TERM, 1972
Opinion of the Court 412 u. s.
tionments governed by the Fourteenth Amendment and
Reynolds v. Sims, 377 U. S. 533 (1964), and its progeny.
Noting that the "dichotomy between the two lines of
cases has consistently been maintained," 410 TJ. S., at
322, we concluded that "the constitutionality of Virginia's
legislative redistricting plan was not to be judged
by the more stringent standards that Kirkpatrick and
Wells make applicable to congressional reapportionment,
but instead by the equal protection test enunciated in
Reynolds v. Sirns," id., at 324, that test being that
districts in state reapportionments be "as nearly of
equal population as is practicable," Reynolds, supra, at
577, and that "[s]o long as the divergences from a strict
population standard are based on legitimate considerations
incident to the effectuation of a rational state policy,
some deviations from the equal-population principle are
constitutionally permissible with respect to the apportionment
of seats in either or both of the two houses of a
bicameral state legislature." Id., at 579. In Mahan, the
ideal district was 46,485 persons per delegate. The maximum
variation from the ideal was 16.4%-"the 12th
district being overrepresented by 6.8 % and the 16th
district being underrepresented by 9.6 %." 410 U. S., at
319 (footnote omitted). The average percentage variation
under the plan was + 3.89 %. Of the 52 house districts,
35 were within 4% of the ideal district, and nine
exceeded a 6% variation from the ideal.
The asserted justification for the divergencies in
Mahan \Vas "the State's policy of maintaining the integrity
of political subdivision lines," id., at 325, a
policy we found to be rational and wholly sufficient to
justify the district population disparities of the size and
quality that had been found to exist. We ruled that the
"relatively minor variations present in the Virginia plan
contrast sharply with the larger variations in state legislative
reapportionment plans that have been struck
GAFFNEY v. CUMMII·.;GS 743
735 Opinion of the Court
down by previous decisions of this Court," id., at 329,
and that "Virginia has not sacrificed substantial equality
to justifiable deviations." Ibid.
Although requiring that the population variations
among legislative districts in Mahan be justified by substantial
state considerations, we did not hold that in
state legislative cases any deviations from perfect population
equality in the districts, hmvever small, make out
prima facie equal protection violations and require that
the contested reapportionments be struck down absent
adequate state justification. Nor had we so held in any
prior state reapportionment case. Swann v. Adams, 385
U. S. 440 (1967), and Kilgarlin v. Hill, 386 C S. 120
( 1967), required state justification of population variations
found in state legislative reapportionments, but the
variations involved in each of these cases exceeded those
we dealt with in Mahan.
In the case no\v before us, appellant urges that the
population variations among Senate and House districts
in the Board plan did not in and of themselves demo11-
strate an equal protection violation and that the State
was not required to justify them, absent further proof
of invidiousness by appellees. For several reasons we
think the point is well taken and that the District Court
erred in holding to the contrary.
As we noted in Mahan v. Howell, Reynolds v. Sirns
recognized that a State must make an honest and goodfaith
effort to construct its districts "as nearly of equal
population as is practicable," but that absolute equality
was a "practical impossibility": "Mathematical exactness
or precisio11 is hardly a workable constitutional requirement."
377 U. S., at 577. Moreover, the Reynolds
court also noted that "some distinctions · may well be
made between congressional and state legislative representation,"
a11d that "[s]omewhat more flexibility may
therefore be constitutionally permissible with respect to
744 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
state legislative apportionment than in congressional
districting." ld., at 578. All that would be required
was "substantial equality of population among the various
districts, so that the vote of any citizen is approximately
equal in weight to that of any other citizen in the
State." Id., at 579. In other words, "[s]imply stated,
an individual's right to vote for state legislators is unconstitutionally
impaired when its weight is in a substantial
fashion diluted when compared with votes of citizens living
in other parts of the State." Id., at 568.
As these pronouncements have been worked out in our
cases, it has become apparent that the larger variations
from substantial equality are too great to be justified
by any state interest so far suggested. There were thus
the enormous variations struck down in the early cases
beginning with Reynoids v. Sims,9 as well as the much
smaller, but nevertheless unacceptable deviations, appearing
in later cases such as Swann v. Adams, 385 U. S.
440 (1967); Kilgarlin v. Hill, 386 U.S. 120 (1967); and
Whitcomb v. Chavis, 403 U. S. 124, 161-163 (1971).
9 Reynolds v. Sinz.s involved the Alabama State Legislature, which
had not reapportioned itself in over 60 years. Under the apportionment
existing in 1964, some senatorial districts with the same
number of representatives had over 40 times more people than others.
House districts with idmtical representation could vary by 16 to 1.
In Maryland in 1964, some House districts with nominally equal
representation could have six times more people than others, while
senatorial districts could be 32 times larger than others. Maryland
Committee for Fair Representation v. Tawes, 377 U.S. 656 (1964).
The list may easily be expanded to include other States, and Connecticut
is no exception. In 1964, the Connecticut towns of Hartford
and Union had the same representation in the House, but Union
had a population of 383 people, while Hartford had a population
of 162,178. A vote in Union was thus weighted about 425 times
more heavily than a vote in Hartford. At that time, it would ha.ve
taken only 11.9% of Connecticut's population to elect a majority of its
House, and only 31 % to elect a Senate majority. See Butterworth
v. Dempsey, 229 F. Supp. 754 (Conn.), aff'd, 378 U.S. 564 (1964).
GAFFNEY v. CUMMINGS 745
735 Opinion of the Court
On the other hand, as Mahan v. Howell demonstrates,
population deviations among districts may be sufficiently
large to require justification but nonetheless be justifiable
and legally sustainable. It is now time to recognize,
in the context of the eminently reasonable approach of
Reynolds v. Sims, that minor deviations from mathematical
equality among state legislative districts are insufficient
to make out a prima facie case of invidious
discrimination under the Fourteenth Amendment so as
to require justification by the State.
We doubt that Reynolds would mandate any other result,
if for n0 other reason than that the basic statistical
materials which legislatures and courts usually have to
work with are the results of the United States census taken
at 10-year intervals and published as soon as possible
after the beginning of each decade. These figures may
be as accurate as such immense undertakings can be, but
they are inherently less than absolutely accurate. Those
who know about such things recognize this fact,1° and,
unless they are to be wholly ignored, it makes little sense
10 See, e. g., H. Alterman, Counting People: The Census in History
262 ( 1969) :
"A census, by its nature, can never be an exact count of a nation.
This is especially true of the United States . . . . Thus, an error of
l or 2 percent in the count of the total population is to be expected;
professionally, it is regarded as an 'acceptable' error."
The Census Bureau estimates that the 1970 census had an undercoverage
rate of 2.5%, or about 5,300,000 people. Address of J. 8.
Siegel, Population Association of America Annual Meeting, in New
Orleans, La., Apr. 26, 1973. See N. Y. Times, Apr. 26, 1973, p. 1,
col. 1.
Inexactness of census data is most evident with respect to minorities.
It is estimated, for example, that Negroes were underenumerated
in the 1970 census by 7.7%, as compared to an estimatrd 1.9%
undercount for white persons. Ibid. See also Siegel, Completeness
of Coverage of the Nonwhite Population in the 1960 Census and
Current Estimates, and Some Implications, in Social Statistics and
the City 13 (D. Heer ed. 1968).
746 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
to conclude from relatively minor "census population"
variations among legislative districts that any person's
vote is being substantially diluted. The "population"
of a legislative district is just not that knowable to be
used for such refined judgments.
What is more, it must be recognized that total population,
even if absolutely accurate as to each district when
counted, is nevertheless not a talismanic measure of the
weight of a person's vote under a later adopted reapportionment
pla.n. The United States census is more of
an event than a process. It measures population at only
a single instant in time. District populations are
constantly changing, often at different rates in either direction,
up or down. Substantial differentials in population
growth rates are striking and well-known phenomena."
So, too, if it is the weight of a person's vote
that matters, total population-even if stable and accurately
taken-may not actually reflect that body of
voters whose votes must be counted and weighed for
the purposes of reapportionment, because "census persons"
are not voters.12 The proportion of the census
11 See, e. g., M. Spiegrlman, Introduction to Demography 415-416
(1968); U. S. Bureau of the Census, 2 The Materials and Methods of
Demography 806 (1971).
In Connecticut, for example, the population of the State as a whole
grew by 19.6% during the 1960's. But the population in the area
comprising the Second Congressional District grew by over 28%,
while the population in the Fourth District grew by only 11.2%.
The U. S. Bureau of the Census, Congressional District Data Book,
93d Congress, Connecticut 7 (1972).
12 See Burns v. Richardson, 384 U. S. 73, 91-92 (1966):
"We start with the proposition that the Equal Protection Clause
does not require the States to use total population figures derived
from the federal census as the standard by which this substantial
population equivalcncy is to be measured. . . . Neither in Reynolds
v. Sims nor in any other derision has this Court suggested that the
States a.re required to include aliens, transients, short-term or ternGAFFNEY
v. CUMMINGS 747
735 Opinion of the Court
population too young to vote or disqualified by alienage
or nonresidence varies substantially among the States
and among localities within the States. The six congressional
districts in Connecticut, for example, vary from
one another by as much as 4% in their age-eligible voters,
with the first district having 68% of its census population
at voting age while the sixth district has 64% at 18
years or older. Bureau of the Census, Congressional
District Data Book. 93d Congress, Connecticut 7-8
(1972). Other States have congressional districts that
vary from one another by as much as 29% and as little
as 1 % with respect to their age-eligible voters.'3 And
these figures tell us nothing of the other ineligibles making
up the substantially equal census populations among
election districts: aliens, nonresident military personnel,
nonresident students, for example. See Burns v. Richardson,
384 U. S. 73, 90--97 (1966); Davis v. Mann, 377
U. S. 678, 691-692 (1964); Ely v. Klahr, 403 U. S. 108,
115-116, n. 7 (1971); Mahan v. Howell, 410 U. S.,
at 330-332. Nor do these figures tell anything at all
about the proportion of all those otherwise eligible inporary
residents, or persons denied the vote for conviction of crime,
in the apportionment base by which their legislators are distributed
and against which compliance with the Equal Protection Clause is
to be measured. The decision to include or exclude any such group
involves choices about the nature of representation with which we
have been shown no constitutionally founded reason to interfere.
Unless a choice is one the Constitution forbids, cf., e. g., Carrington
v. Rash, 380 U. S. 89, the resulting apportionment base offends
no constitutional bar, and compliance with the rule established in
Reynolds v. Sims is to be measured thereby."
13 Utah, Rhode Island, New Hampshire, and Missouri have only
1 % variations. New York has a 29% variation in age-eligible voters
among its congressional districts, while California has a 25% and
Illinois a 20% variation. These figures may be computed from the
Bureau of the Census' Congressional District Data, 93d Congress,
for the respective States.
748 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
dividuals whose vote cannot be counted or weighed because
they either failed to register or failed to vote.14
Reynolds v. Sims, of course, dealt with more than the
statistical niceties involved in equalizing individual voting
strength. It argued that "if a State should provide
that the votes of citizens in one part of the State should
be given two times, or five times, or 10 times the weight
of votes of citizens in another part of the State, it could
hardly be contended that the right to vote of those residing
in the disfavored areas had not been effectively
diluted." 377 U. S., at 562. To conclude differently,
"and to sanction minority control of state legislative
bodies, would appear to deny majority rights in a way
that far surpasses any possible denial of minority rights
that might otherwise be thought to result." Id., at 565.
More fundamentally, Reynolds recognized that "the
achieving of fair and effective representation for all citizens
is ... the basic aim of legislative apportionment,"
id., at 565-566, and it was for that reason that the
decision insisted on substantial equality of populations
among districts.
This is a vital and worthy goal, but surely its attainment
does not in any commonsense way depend upon
eliminating the insignificant population variations involved
in this case. Fair and effective representation
may be destroyed by gross population variations among
districts, but it is apparent that such representation does
not depend solely on mathematical equality among dis-
,. Again using Connecticut congressional districts as an example,
in the November 1972 elections, the percentage of registered voters
who actually voted varied by a maximum of 2.8%. See Statement
of Vote, General Election Nov. 7, 1972, State of Conn. Pub. Doc.
No. 26, p. 72 ( 1973). The percentages of registered voters who
voted varied by as much as about 23% among the towns in the
State. Id., at 65-71.
GAFFNEY v. CUMMINGS 749
735 Opinion of the Court
trict populations.15 There are other relevant factors to
be taken into account and other important interests that
States may legitimately be mindful of. See Mahan v.
Howell, supra; Abate v. Mundt, 403 U. S. 182 (1971);
Dusch v. Davis, 387 U. S. 112 (1967); Sailors v. Board
of Education, 387 U.S. 105 (1967); Burns v. Richardson,
supra. An unrealistic overemphasis on raw population
figures, a mere nose count in the districts, may submerge
these other considerations and itself furnish a ready tool
for ignoring factors that in day-to-day operation are important
to an acceptable representation and apportionment
arrangement.
Nor is the goal of fair and effective representation
furthered by making the standards of reapportionment
so difficult to satisfy that the reapportionment task is
recurringly removed from legislative hands and performed
by federal courts which themselves must make the
political decisions necessary to formulate a plan or accept
those made by reapportionment plaintiffs who may have
wholly different goals from those embodied in the official
plan. From the very outset, we recognized that the
apportionment task, dealing as it must with fundamental
"choices about the nature of representation," Burns v.
Richardson, 384 U. S., at 92, is primarily a political
and legislative process. Reynolds v. Sims, 377 U. S.,
at 586. We doubt that the Fourteenth Amendment
requires repeated displacement of otherwise appropriate
state decisionmaking in the name of essentially
minor deviations from perfect census-population equality
that no one, with confidence, can say will deprive any
person of fair and effective representation in his state
legislature.
That the Court was not deterred by the hazards of the
1 5 For discussions of the vast and growing literature in this area,
see Reapportionment in the 1970s (N. Polsby ed. 1971).
750 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
political thicket vvhcn it undertook to adjudicate the reapportionment
cases does not mean that it should become
bogged dmvn in a vast, intractable apportionment
slough, particularly when there is little, if anything, to
be accomplished by doing so.
This very case represents what should not happen in
the federal courts. The official state functionaries proposed
a plan ,vith a maximum variation among the districts
of 7.83 % in the House and 1.81 % in the Senate, and
with respective average variations of 1.90% and .45 % .
Appellees then proposed four alternate plans for the
House, three of which involved slightly larger variations
among districts but cut fe,ver town lines. The fourth
cut more lines, but had a maximum variation between
its largest and smallest district of only 2.6 % . The District
Court thought the state plan involved unacceptably
large variations between districts, although in the House,
with districts of about 20,000 people, the average variation
involved only 399 people, and the largest variations
involved only 1,573 people.1,; But neither did the District
Court adopt any of the plans submitted by appellees.
Instead, it appointed its own Master to come up with still
another scheme. That plan, we are told, involves a total
maximum deviation in the House of only 1.16% .17 Was
the Master compelled, as a federal constitutional matter,
to come up with a plan with smaller variations than
were contained in appellees' plans? And what is to
happen to the Master's plan if a resourceful mind hits
upon a plan better than the Master's by a fraction of a
percentage point? Tnvolvemcnts like this must end at
some point, but that point constantly recedes if those
16 Among the Senate districts (of about 84,000 people each) , the
average deviation invokes only about 400 people and the maxim11m
deviation only 1,532 people.
17 H,eply Brief for Appellant 19. Apparently, more refined census
data were available to the .'.\faster in preparing this bter plan.
GAFFNEY v. CUMMINGS 751
735 Opinion of tho Court
who litigate need only produce a plan that is marginally
"better" when measured against a rigid and unyielding
population-equality standard.
The point is, that such involvements should never begin.
We have repeatedly recognized that state reapportionment
is the task of local legislatures or of those organs
of state government selected to perform it. Their work
should not be invalidated under the Equal Protection
Clause when only minor population variations among
districts are proved. Here, the proof at trial demonstrated
that the House districts under the State Apportionment
Board's plan varied in population from one
another by a maximum of only about 8% and that the
average deviation from the ideal House district was only
about 2%. The Senate districts had even less variations.
On such a showing, we are quite sure that a prima facie
case of invidious discrimination under the Fourteenth
Amendment was not made out.
III
State legislative districts may be equal or substantially
equal in population and still be vulnerable under the
Fourteenth Amendment. A districting statute otherwise
acceptable, may be invalid because it fences out a
racial group so as to deprive them of their pre-existing
municipal vote. Gomillion v. Lightfoot, 364 U. S. 339
(1960). A districting plan may create multimember districts
perfectly acceptable under equal population standards,
but invidiously discriminatory because they are
employed "to minimize or cancel out the voting strength
of racial or political elements of the voting population."
Fortson v. Dorsey, 379 U.S. 433,439 (1965). See White
v. Regester, post, p. 755; Whitcomb v. Chavis, 403 U. S.
124 (1971); Abate v. Mundt, 403 U. S., at 184 n. 2;
Burns v. Richardson, 384 U. S., at 88-89. We must,
therefore, respond to appellees' claims in this case
752 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
that even if acceptable populationwise, the Apportionment
Board's plan was invidiously discriminatory
because a "political fairness principle" was followed in
making up the districts in both the House and Senate.
The record abounds with evidence, and it is frankly
admitted by those who prepared the plan, that virtually
every Senate and House district line was drawn with the
conscious intent to create a districting plan that would
achieve a rough approximation of the statewide political
strengths of the Democratic and Republican Parties, the
only two parties in the State large enough to elect legislators
from discernible geographic areas. Appellant insists
that the spirit of "political fairness" underlying this
plan is not only permissible, but a desirable consideration
in laying out districts that otherwise satisfy the population
standard of the reapportionment cases. Appellees,
on the other hand, label the plan as nothing less than a
gigantic political gerrymander, invidiously discriminatory
under the Fourteenth Amendment.18
We are quite unconvinced that the reapportionment
plan offered by the three-member Board violated the
Fourteenth Amendment because it attempted to reflect
the relative strength of the parties in locating and defining
election districts. It would be idle, we think, to
contend that any political consideration taken into account
in fashioning a reapportionment plan is sufficient
to invalidate it. Our cases indicate quite the contrary.
18 Appellces also maintain that the shapes of the districts would not
have been so "indecent" had the Board not attempted to "wiggle
and joggle" boundary lines to ferret out pockets of each party's
strength. That may well be true, although any plan that attempts
to follow Connecticut's "oddly shaped" town lines (App. 98) is bound
to contain some irregularly shaped districts. But compactness or
attractiveness has never been held to constitute an independent
federal constitutional requirement for state legislative districts. Cf.
White v. Weiser, post, p . 783; Wright v. Rockefeller, 376 U.S. 52,
54 (1964), and id., at 59-61 (DouGLAS, J., dissenting).
GAFFNEY v. CUMMINGS 753
735 Opinion of the Court
See White v. Regester, supra; Burns v. Richardson,
supra; Whitcomb v. Chavis, supra; Abate v. Mundt,
supra. The very essence of districting is to produce a
different-a more "politically fair"-result than would be
reached with elections at large, in which the winning
party would take 100% of the legislative seats. Politics
and political considerations are inseparable from districting
and apportionment. The political profile of a State,
its party registration, and voting records are available
precinct by precinct, ward by ward. These subdivisions
may not be identical with census tracts, but, when overlaid
on a census map, it requires no special genius to recognize
the political consequences of drawing a district
line along one street rather than another. It is not only
obvious, but absolutely unavoidable, that the location
and shape of districts may well determine the political
complexion of the area. District lines are rarely neutral
phenomena. They can well determine what district will
be predominantly Democratic or predominantly Republican,
or make a close race likely. Redistricting may pit
incumbents against one another or make very difficult
the election of the most experienced legislator. The
reality is that districting inevitably has and is intended
to have substantial political consequences.
It may be suggested that those who redistrict and reapportion
should work with census, not political, data
and achieve population equality without regard for
political impact. But this politically mindless approach
may produce, whether intended or not, the most grossly
gerrymandered results; and, in any event, it is most
unlikely that the political impact of such a plan would
remain undiscovered by the time it was proposed or
adopted, in which event the results would be both known
and, if not changed, intended.
It is much more plausible to assume that those who
redistrict and reapportion work with both political and
754 OCTOBER TER1I, 1972
Opinion of the Court 412 U.S.
census data. Within the limits of the population equality
standards of the Equal Protection Clause, they seek,
through compromise or otherwise, to achieve the political
or other ends of the State, its constituents, and its officeholders.
\Vhat is done in so arranging for elections, or
to achieve political ends or allocate political power, is
not wholly exempt from judicial scrutiny under the
Fourteenth Amendment. As we have indicated, for example,
rnultimember districts may be vulnerable, if
racial or political groups have been fenced out of the
political process and their voting strength invidiously
minimized. See White v. Regester, supra; Whitcomb v.
Chavi,s, supra. See also Gomillion v. Lightfoot, supra.
Beyond this, we have not ventured far or attempted the
impossible task of extirpating politics from what are the essentially
political processes of the sovereign States. Even
more plainly, judicial interest should be at its lo·west ebb
when a State purports fairly to allocate political power to
the parties in accordance with their voting strength and,
within quite tolerable limits, succeeds in doing so. There
is no doubt that there may be other reapportionment
plans for Connecticut that would have different political
consequences and that would also be constitutional. Perhaps
any of appellees' plans would have fallen into this
category, as would the court's, had it propounded one.
But neither we nor the district courts have a constitutional
warrant to invalidate a state plan, otherwise within
tolerable population limits, because it undertakes, not to
minimize or eliminate the political strength of any group
or party, but to recognize it and, through districting, provide
a rough sort of proportional representation in the
legislative halls of the State.
Reversed.
[For dissenting opinion of MR. JUSTICE BRENNAN, see
post, p. 772.]
WHITE v. REGESTER 755
Syllabus
WHITE, SECRETARY OF STATE OF TEXAS,
ET AL. V. REGESTER ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF TEXAS
No. 72-147. Argued February 26, 1973-Decided .June 18, 1973
In this litigation challenging the Texas 1970 legislative reapportionment
scheme, a three-judge District Court held that the Housr
plan, statewide, contained constitutionally impermissible deviations
from population equality, and that the multimember districts provided
for Bexar and Dallas Counties invidiously discriminated
against cognizable racial or ethnic groups. Though the entire plan
was declared invalid, the court permitted its use for the 1972
election except for its injunction order requiring those two county
multimember districts to be reronstitutcd into single-member districts.
Held:
1. This Court has jurisdiction under 28 U. S. C. § 1253 to consider
the appeal from the injunction order applicable to the Bexar
County and Dallas County districting, since the three-judge court
had been properly convened, and this Court can review the declaratory
part of the judgment below. Roe v. Wade, 410 U. S. 113.
Pp. 759-761.
2. State reapportionment statutes are not subject to the stricter
standards applicable to congressional reapportionment under
Art. I, § 2, and the District Court erred in concluding that this
case, where the total maximum variation between House districts
was 9.9%, but the average deviation from the ideal was 1.82%,
involved invidious discrimination in violation of the Equal Protection
Clause. Cf. Gaffney v. Cummings, ante, p. 735. Pp. 761-764.
3. The District Court's order requiring disestablishment of the
multimember districts in Dallas and Bexar Counties was warranted
in the light of the history of political discrimination against Negroes
and Mexica.n-Americans residing, respectively, in those counties
and the residual effects of such discrimination upon those groups.
Pp. 765-770.
343 F. Supp. 704, affirmed in part, reversed in part, and remanded.
WHITE, J., delivered the opinion of the Court, in Parts I, III,
and IV of which all Members i oined, and in Part II of which
BURGER, C . .J., and STEWART, BLACKMUN, POWELL, and REHNQUIST,
756 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
JJ., joined. BRENNAN, .T., filed an opinion concurring in part and
dissenting in part, in which DOUGLAS and MARSHALL, JJ., joined,
post, p. 772.
Leon Jaworski, Special Assistant Attorney General of
Texas, argued the cause for appellants. With him on the
briefs were John L. Hill, Attorney General, Larry Yark,
Executive Assistant Attorney General, Alton F. Curry,
Special Assistant Attorney General, and Lewis A. Jones,
Assistant Attorney General.
David R. Richards argued the cause for appellees
Regester et al. With him on the brief were Ronald L.
Clower and Jame,s A. Mattox. Ed ldar, Jr., argued the
cause for appellees Bernal et al. With him on the brief
were Mario Obledo, George J. Korbel, and Frank
Hernandez. Thomas Gibbs Gee argued the cause for
appellees Willeford et al. With him on the brief was
William Terry Bray. J. Douglas McGuire filed a brief
for appellees Van Henry Archer, Jr., et al. D. Marcus
Ranger and E. Brice Cunningham filed a brief for appellees
Washington et al.*
MR. JUSTICE WHITE delivered the opinion of the
Court.
This case raises two questions concerning the validity
of the reapportionment plan for the Texas House of Representatives
adopted in 1970 by the State Legislative Redistricting
Board: First, whether there were unconstitutionally
large variations in population among the districts
defined by the plan; second, whether the multimember
districts provided for Bexar and Dallas Counties were
properly found to have been invidiously discriminatory
against cognizable racial or ethnic groups in those
counties.
*William A. Dobrovir filed a brief for League of Women Voters of
the United States et al. as amici curiae urging affirmance.
WHITE v. REGESTER 757
755 Opinion of the Court
The Texas Constitution requires the state legislature
to reapportion the House and Senate at its first regular
session following the decennial census. Tex. Const.,
Art. III, § 28.1 In 1970, the legislature proceeded to
reapportion the House of Representatives but failed to
agree on a redistricting plan for the Senate. Litigation
1 Article III, § 28, of the Texas Constitution provides:
"The Legislature shall, at its first regular session after the publication
of each L'nited States decennial census, apportion the state
into senatorial and representative districts, agreeable to the provisions
of Sections 25, 26, and 26- a of this Article. In the event the Legislature
shall at ::my such first regular session following the publication
of a United States decenni:d census, fail to make sud1 apportionment,
same shall be done by the Legislature Redistricting Board of Texas,
which is hereby created, and shall be composed of five (5) members,
as follows: The Lieutrnant Governor, the Speaker of the House of
Representatives, the Attorney General, the Comptroller of Public
Accounts and the Commis,ioner of the General Land Office, a majority
of whom shall constitute a quorum. Said Board shall assemble in
the City of Austin within ninety (90) days after the final adjournment
of such regular session. The Board shall, within sixty (60) days
after assembling, apportion the state into senatorial and representative
districts, or into senatorial or representative districts, as the
failure of action of such Legi~lature may make necessary. Such
apportionment shall be in writing and signed by three (3) or more
of the members of the Board duly acknowledged as the act and deed
of such Board, and, when so executed and filed with the Secretary
of State', shall have force and effect of law. Such apportionment shall
become effective at the next succeeding statewide general election.
The Supreme Court of Texas shall have juri~diction to comprl such
Commission [Board] to perform its dutie~ in accordance with the
provisions of this section by writ of mandamus or other extraordinary
writs conformable to the usages of law. The Legislature shall provide
neressary funds for clerical and technical aid and for other expenses
incidental to the work of the Board, and the Lieutenant Governor
and the Speaker of the House of Representatives shall be entitled to
receive per diem and travel expense during the Board's session in
the same manner and amount as they would receive while attending
a special session of the Legislature. This amendment shall become
effective January 1, 1951. As · amended Nov. 2. 1948."
758 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
was immediately commenced in state court challenging
the constitutionality of the House reapportionment.
The Texas Supreme Court held that the legislature's
plan for the House violated the Texas Constitution.2
Smith v. Craddick, 471 S. W. 2d 375 (1971). Meanwhile,
pursuant to the requirements of the Texas Constitution,
a Legislative Redistricting Board had been
formed to begin the task of redistricting the Texas Senate.
Although the Board initially confined its work to the
reapportionment of the Senate, it was eventually ordered,
in light of the judicial invalidation of the House plan,
to also reapportion the House. Mauzy v. Legislative
Redistricting Board, 471 S. W. 2d 570 (1971).
On October 15, 1971, the Redistricting Board's plan for
the reapportionment of the Senate was released, and, on
October 22, 1971, the House plan was promulgated.
Only the House plan remains at issue in this case. That
plan divided the 150-member body among 79 singlemember
and 11 multimember districts. Four lawsuits,
eventually consolidated, were filed challenging the
2 The Court held that the plan violated Art. III, § 26, of the Texas
Constitution, which provides:
"The members of the House of Representatives shall be apportioned
among the several counties, according to the number of population
in each, as nearly as may be, on a ratio obtained by dividing
the population of the State, as ascertained by the most recent United
States census, by the number of members of which the House is
composed; provided, that whenever a single county has sufficient
population to be entitled to a Representative, such county shall be
formed into a separate Representative District, and when two or
more counties are required to make up the ratio of representation,
such counties shall be contiguous to each other; and when any one
county has more than sufficient population to be entitled to one or
more Representatives, such Representative or Representatives ,-hall
be apportioned to such county, and for any surplus of population it
may be joined in a Representative District with any other contiguous
county or counties."
WHITE v. REGESTER 759
755 Opinion of the Court
Board's Senate and House plans and asserting with respect
to the House plan that it contained impermissible
deviations from population equality and that its multimember
districts for Bexar County and Dallas County
operated to dilute the voting strength of racial and ethnic
minorities.
A three-judge District Court sustained the Senate
plan, but found the House plan unconstitutional.
Graves v. Barnes, 343 F. Supp. 704 (WD Tex. 1972).
The House plan was held to contain constitutionally
impermissible deviations from population equality, and
the multimember districts in Bexar and Dallas Counties
were deemed constitutionally invalid. The District
Court gave the Texas Legislature until July 1, 1973, to
reapportion the House, but the District Court permitted
the Board's plan to be used for purposes of the 1972
election, except for requiring that the Dallas County
and Bexar County multimember districts be reconstituted
into single-member districts for the 1972 election.
Appellants appealed the statewide invalidation of the
House plan and the substitution of single-member for
multimember districts in Dallas County and Bexar
County.3 Mn. JUSTICE POWELL denied a stay of the
judgment of the District Court, 405 U. S. 1201, and we
noted probable jurisdiction sub nom. Bullock v. Regester,
409 u. s. 840.
I
We deal at the outset with the challenge to our jurisdiction
over this appeal under 28 U. S. C. § 1253, which
permits injunctions in suits required to be heard and
determined by a three-judge district court to be ap-
3 In a separate appeal, we summarily affirmed that portion of the
• judgment of the District Court upholding the Senate plan. Archeiv.
Smith, 409 U. S. 808 (1972).
760 OCTOBER TERM, 1972
Opinion of the Court 412 u. s.
pealed directly to this Court.4 It is first suggested that
the case was not one required to be heard by a threejudge
court. The contention is frivolous. A statewide
reapportionment statute was challenged and injunctions
were asked against its enforcement. The constitutional
questions raised were not insubstantial on their face, and
the complaint clearly called for the convening of a threejudge
court. That the court declared the entire apportionment
plan invalid, but entered an injunction only
with respect to its implementation for the 1972 elections
in Dallas and Bexar Counties, in no way indicates that
the case required only a single judge. Appellants are
therefore properly here on direct appeal with respect to
the injunction dealing with Bexar and Dallas Counties, for
the order of the court directed at those counties was
literally an order "granting ... an ... injunction in
any civil action . . . required . . . to be heard and determined
by a district court of three judges" within the
meaning of § 1253.
We also hold that appellants, because they appealed
from the entry of an injunction, are entitled to review of
the District Court's accompanying declaration that the
proposed plan for the Texas House of Representatives, including
those portions providing for multimember districts
in Dallas and Bexar Counties, was invalid statewide.
This declaration was the predicate for the court's
order requiring Dallas and Bexar Counties t-0 be reapportioned
into single districts; for its order that "unless the
Legislature of the State of Texas on or before July 1, 1973,
has adopted a plan to reapportion the legislative districts
• Title 28 U. S. C. § 1253 provides:
"Except as otherwise provided by law, any party may appeal to
the Supreme Court from an order granting or denying, after notice
and hearing, an interlocutory or permanent injunction in any civil
action, suit or proceeding required by any Act of Congress to be
heard and determined by a district court of three judges."
WHITE v. REGESTER 761
755 Opinion of the Court
within the State in accordance with the constitutional
guidelines set out in this opinion this Court will so reapportion
the State of Texas"; and for its order that the Secretary
of State "adopt and implement any and all procedures
necessary to properly effectuate the orders of this
Court in conformance with this Opinion .... " 343 F.
Supp., at 737. In these circumstances, although appellants
could not have directly appealed to this Court
the entry of a declaratory judgment unaccompanied
by any injunctive relief, Gunn v. University Committee,
399 U. S. 383 (1970); Mitchell v. Donovan,
398 U. S. 427 (1970), we conclude that we
have jurisdiction of the entire appeal. Roe v.
Wade, 410 U. S. 113 (1973); Florida Lime & Avocado
Growers v. Jacobsen, 362 U. S. 73 (1960). With the
Texas reapportionment plan before it, it was in the interest
of judicial economy and the avoidance of piecemeal
litigation that the three-judge District Court have jurisdiction
over all claims raised against the statute when a
substantial constitutional claim was alleged, and an appeal
to us, once properly here, has the same reach. Roe
v. Wade, supra, at 123; Carter v. Jury Comm'n., 396 U.S.
320 (1970); Florida Lime & Avocado Growers v. Jacobsen,
supra, at 80.
II
The reapportionment plan for the Texas House of
Representatives provides for 150 representatives to be
selected from 79 single-member and 11 multimember
districts. The ideal district is 74,645 persons. The districts
range from 71,597 to 78,943 in population per representative,
or from 5.8% overrepresentation to 4.1 %
underrepresentation. The total variation between the
largest and smallest district is thus 9.9%5
The District Court read our prior cases to require any
deviations from equal population among districts to be
5 See Appendix to opinion of the Court, post, p. 770.
762 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
justified by "acceptable reasons" grounded in state
policy; relied on Kirkpatrick v. Prfdsler, 394 U. S. 526
( 1969), to conclude that the permissible tolerances suggested
by Reynolds v. Sims, 377 U. S. 533 (1964), had
been substantially eroded; suggested that Abate v.
Mundt, 403 U. S. 182 (1971), in accepting total deviations
of 11.9% in a county reapportionment was sui
generis; and considered the "critical issue" before it to
be whether "the State [has] justified any and all variances,
however small, on the basis of a consistent, rational
State policy." 343 F. Supp., at 713. Noting the single
fact that the total deviation from the ideal between District
3 and District 85 was 9.9%, the District Court
concluded that justification by appellants was called for
and could discover no acceptable state policy to support
the deviations. The District Court was also critical of
the actions and procedures of the Legislative Reapportionment
Board and doubted "that [the] board did the
sort of deliberative job ... worthy of judicial abstinence."
M., at 717. It also considered the combination of singlemember
and multimember districts in the House plan
"haphazard," particularly in providing single-member
districts in Houston and multimember districts in other
metropolitan areas, and that this "irrationality, without
reasoned justification, may be a separate and distinct
ground for declaring the plan unconstitutional." 0 Ibid.
6 It may be, although we are not sure, that the District Court
would have invalidated the plan statewide because of what it thought
was an irrational mixture of multimember and single-member districts.
Thus, in questioning the ust> of single-member districts in Houston
but multimember districts in all other urban areas, and remarking
that the State had provided neither "compelling" nor "rational"
explanation for the differing treatment, the District Court merely
concluded that this classification "may be" an independent ground
for invalidating the plan. But there are no authorities in this Court
for the proposition that the mere mixture of multimember and singlemember
districts in a single plan, even among urban areas, is inWHITE
v. REGESTER 763
755 Opinion of the Court
Finally, the court specifically invalidated the use of multimember
districts in Dallas and Bexar Counties as unconstitutionally
discriminatory against a racial or ethnic
group.
The District Court's ultimate conclusion was that "the
apportionment plan for the State of Texas is unconstitutional
as unjustifiably remote from the ideal of 'one man,
one vote,' and that the multi-member districting schemes
for the House of Representatives as they relate specifically
to Dallas and to Bexar Counties are unconstitutional in
that they dilute the votes of racial minorities." Id., at
735.7
Insofar as the District Court's judgment rested on the
conclusion that the population differential of 9.9% from
the ideal district between District 3 and District 85
made out a prima facie equal protection violation under
the Fourteenth Amendment, absent special justification,
the court was in error. It is plain from Mahan v.
Howell, 410 U.S. 315 (1973), and Gaffney v. Cummings,
ante, p. 735, that state reapportionment statutes are not
subject to the same strict standards applicable to reapportionment
of congressional seats. Kirkpatrick v.
Preisler did not dilute the tolerances contemplated by
Reynolds v. Sims with respect to state districting, and
we did not hold in Swann v. Adams, 385 U. S. 440
(1967), or Kilgarlin v. Hill, 386 U. S. 120 (1967), or
vidiously discriminatory, and we construe the remarks not as part
of the District Court's declaratory judgment invalidating the state
plan but as mere advance advice to the Texas Legislature as to what
would or would not be acceptable to the District Court.
7 The District Court also concluded, contrary to the assertions of
certain plaintiffs, that the Senate districting srheme for Bexar County
did not "unconstitutionally dilute the votes of any political faction
or party." 343 F. Supp. 704, 735. The majority of the District
Court also concluded that the Senate districting scheme for Harris
County did not dilute black votes.
764 OCTOBER TERM, 1972
Opinion of the Court, 412 U.S.
later in Mahan v. Howell, supra, that any deviations
from absolute equality, however small, must be justified
to the satisfaction of the judiciary to avoid invalidation
under the Equal Protection Clause. For the reasons
set out in Gaffney v. Cummings, supra, we do not
consider relatively minor population deviations among
state legislative districts to substantially dilute the
weight of individual votes in the larger districts so as to
deprive individuals in these districts of fair and effective
representation. Those reasons are as applicable to Texas
as they are to Connecticut; and we cannot glean an
equal protection violation from the single fact that two
legislative districts in Texas differ from one another by
as much as 9.9%, when compared to the ideal district.
Very likely, larger differences between districts would
not be tolerable without justification "based on legitimate
considerations incident to the effectuation of a rational
state policy," Reynoids v. Sims, 377 U. S., at 579•; Mahan
v. Howell, supra, at 325, but here we are confident that
appellees failed to carry their burden of proof insofar
as they sought to establish a violation of the Equal Protection
Clause from population variations alone. The
total variation between two districts was 9.9·%, but the
average deviation of all House districts from the ideal
was 1.82%. Only 23 districts, all single-member,
were overrepresented or underrepresented by more than
3%, and only three of those districts by more than 5%.
We are unable to conclude from these deviations alone
that appellees satisfied the threshold requirement of proving
a prima facie case of invidious discrimination under
the Equal Protection Clause. Because the District Court
had a contrary view, its judgment must be reversed in
this respect. 8
8 The court's conclusion that the variations in this case were not
justified by a rational state policy would, in any event, require reWHITE
v. REGESTER 765
755 Opinion of the Court
III
We affirm the District Court's judgment, however,
insofar as it invalidated the multimember districts in Dallas
and Bexar Counties and ordered those districts to be
redrawn into single-member districts. Plainly, under our
cases, multimember districts are not per se unconstitutional,
nor are they necessarily unconstitutional when
used in combination with single-member districts in other
parts of the State. Whitcomb v. Chavis, 403 U. S. 124
(1971); Mahan v. Howell, supra; see Burns v.
Richardson, 384 U. S. 73 (1966); Fortson v. Dorsey,
379 U. S. 433 (1965); Lucas v. Colorado General
Assembly, 377 U. S. 713 (1964); Reynolds v.
Sims, supra.9 But we have entertained claims
that multimember districts are being used invidiously
to cancel out or minimize the voting strength of
racial groups. See Whitcomb v. Chavis, supra; Burns v.
Richardson, supra; Fortson v. Dorsey, supra. To sustain
such claims, it is not enough that the racial group alconsideration
and reversal under Mahan v. Howell, 410 U. S. 315
( 1973). The Texas Constitution, Art. III, § 26, expresses the state
policy against cutting county lines wherever possible in forming
representative districts. The District Court recognized the policy
but, without the benefit of Mahan v. Howell, may have thought the
variations too great to be justified by that policy. It perhaps
thought also that the policy had not been sufficiently or consistently
followed here. But it appears to us that to stay within tolerable
population limits it was necessary to cut some county lines and that
the State achieved a constitutionally acceptable accommodation between
population principles and its policy against cutting county
lines in forming representative districts.
9 See Whitcomb v. Chavis, 403 U. S. 124, 141-148 (1971), and
the cases discussed in n. 22 of that opinion, including Kilgarlin v.
Hill, 386 U. S. 120 (1967), where we affirmed the District Court's
rejection of petitioners' contention that the combination of single--
member, multimember, and floterial districts in a single reapportionment
plan was "an unconstitutional 'crazy quilt.'" Id., at 121.
766 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
legedly discriminated against has not had legislative seats
in proportion to its voting potential. The plaintiffs' burden
is to produce evidence to support findings that the
political processes leading to nomination and election
were not equally open to participation by the group in
question-that its members had less opportunity than
did other residents in the district to participate in the
political processes and to elect legislators of their choice.
Whitcomb v. Chav-is, supra, at 149-150.
With due regard for these standards, the District Court
first ref erred to the history of official racial discrimination
in Texas, which at times touched the right of Negroes
to register and vote and to participate in the democratic
processes. 343 F. Supp., at 725. It referred also to the
Texas rule requiring a majority vote as a prerequisite to
nomination in a primary election and to the so-called
"place" rule limiting candidacy for legislative office from
a multimember district to a specified "place" on the
ticket, with the result being the election of representatives
from the Dallas multimember district reduced to
a head-to-head contest for each position. These characteristics
of the Texas electoral system, neither in
themselves improper nor invidious, enhanced the opportunity
for racial discrimination, the District Court
thought.10 More fundamentally, it found that since
Reconstruction days, there have been only two Negroes
in the Dallas County delegation to the Texas House of
Representatives and that these two were the only two
Negroes ever slated by the Dallas Committee for Responsible
Government (DCRG), a white-dominated organization
that is in effective control of Democratic Party
10 There is no requirement that candidates reside in subdistricts
of the multimember district. Thus, all candidates may be selected
from outside the Negro residential area.
WHITE v. REGESTER 767
755 Opinion of the Court
candidate slating in Dallas County." That organization,
the District Court found, did not need the support of
the Negro community to win elections in the county, and
it did not therefore exhibit good-faith concern for the
political and other needs and aspirations of the Negro
community. The court found that as recently as 1970
the DCRG was relying upon "racial campaign tactics in
white precincts to defeat candidates who had the overwhelming
support of the black community." Id., at
727. Based on the evidence before it, the District Court
concluded that "the black community has been effectively
excluded from participation in the Democratic primary
selection process," id., at 726, and was therefore generally
not permitted to enter into the political process in a
reliable and meaningful manner. These findings and
conclusions are sufficient to sustain the District Court's
judgment with respect to the Dallas multimember district
and, on this record, we have no reason to disturb
them.
IV
The same is true of the order requiring disestablishment
of the multimember district in Bexar County.
Consistently with Hernandez v. Texas, 347 U. S. 475
( 1954), the District Court considered the Mexican-
Americans in Bexar County to be an identifiable class for
Fourteenth Amendment purposes and proceeded to inquire
whether the impact of the multimember district
on this group constituted invidious discrimination. Surveying
the historic and present condition of the Bexar
County Mexican-American community, which is concen-
11 The District Court found that "it is extremely difficult to secure
either a representative seat in the Dallas County delegation or the
Democratic primary nomination without the endorsement of the
Dallas Committee for Responsible Government." 343 F. Supp., at
726.
768 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
trated for the most part on the west side of the city of
San Antonio, the court observed, based upon prior cases
and the record before it, that the Bexar community, along
with other Mexican-Americans in Texas,12 had long "suffered
from, and continues to suffer from, the results and
effects of invidious discrimination and treatment in the
fields of education, employment, economics, health, politics
and others." 343 F. Supp., at 728. The bulk of
the Mexican-American community in Bexar County occupied
the Barrio, an area consisting of about 28 contiguous
census tracts in the city of San Antonio. Over
78% of Barrio residents were Mexican-Americans, making
up 29% of the county's total population. The Barrio
is an area of poor housing; its residents have low income
and a high rate of unemployment. The typical Mexican-
American suffers a cultural and language barrier 1
• that
makes his participation in community processes extremely
difficult, particularly, the court thought, with
respect to the political life of Bexar County. "[A] cultural
incompatability ... conjoined with the poll tax and
the most restrictive voter registration procedures in the
nation have operated to effectively deny Mexican-
Americans access to the political processes in Texas even
longer than the Blacks were formally denied access by
the white primary." 343 F. Supp., at 731. The residua.I
impact of this history reflected itself in the fact that
Mexican-American voting registration remained very
poor in the county and that only five Mexican-Americans
since 1880 have served in the Texas Legislature from
12 Mexican-Americans constituted approximately 20% of the population
of the State of Texas.
13 The District Court found that " [ t] he fact that [Mexican-
Americans] are reared in a sub-cult.me in which a dialect of Spanish
is the primary language provides permanent impediments to their
educational and vocational advancement and creates other traumatic
problems." 343 F. Supp., at 730.
WHITE v. REGESTER 769
755 Opinion of the Court
Bexar County. Of these, only two were from the Barrio
area.14 The District Court also concluded from the
evidence that the Bexar County legislative delegation
in the House was insufficiently responsive to Mexican-
American interests.
Based on the totality of the circumstances, the District
Court evolved its ultimate assessment of the multimember
district, overlaid, as it was, on the cultural and
economic realities of the Mexican-American community
in Bexar County and its relationship with the rest of the
county. Its judgment was that Bexar County Mexican-
Americans "are effectively removed from the political
processes of Bexar [County] in violation of all the
Whitcomb standards, whatever their absolute numbers
may total in that County." Id., at 733. Single-member
districts were thought required to remedy "the effects
of past and present discrimination against Mexican-
Americans," ibid., and to bring the community into the
full stream of political life of the county and State by
encouraging their further registration, voting, and other
political activities.
The District Court apparently paid due heed to Whitcomb
v. Chavis, supra, did not hold that every racial or
political group has a constitutional right to be represented
in the state legislature, but did, from its own special
vantage point, conclude that the multimember district,
as designed and operated in Bexar County, invidiously
excluded Mexican-Americans from effective participation
in political life, specifically in the election of representatives
to the Texas House of Representatives. On the
record before us, we are not inclined to overturn these
findings, representing as they do a blend of history and
an intensely local appraisal of the design and impact of
14 Two other residents of the Barrio, a Negro and an Anglo-
American, have also served in the Texas Legislature.
770 OCTOBER TERM, 1972
Appendix to opinion of the Court 412 U.S.
the Bexar County multimember district in the light of
past and present reality, political and otherwise.
Affirmed in part, reversed in part, and remanded.
APPENDIX TO OPINION OF THE COURT
The Redistricting Board's plan embodied the following districts:
Percent
Average Deviation
Multi- (Under) Over
District Population member Over (Under)
1 76,285 1,640 2.2
2 77,102 2,457 3.3
3 78,943 4,298 5.8
4 71,928 (2,717) (3.6)
5 75,014 369 .5
6 76,051 1,406 1.9
7 (3) 221,314 73,771 ( 874) (1.2)
8 74,303 ( 342) ( .5)
9 76,813 2,168 2.9
10 72,410 (2,235) (3.0)
11 73,136 (1,509) (2.0)
12 74,704 59 .1
13 75,929 1,284 1.7
14 76,597 1,952 2.6
15 76,701 2,056 2.8
16 74,218 ( 427) ( .6)
17 72,941 (1,704) (2.3)
18 77,159 2,514 3.4
19 (2) 150,209 75,104 459 .6
20 75,592 947 1.3
21 74,651 6 .0
22 73,311 (1,334) (1.8)
23 75,777 1,132 1.5
24 73,966 ( 679) ( .9)
25 75,633 988 1.3
26 (18) 1,327,321 73,740 ( 905) (1.2)
27 77,788 3,143 4.2
28 72,367 (2,278) (3.1)
29 76,505 1,860 2.5
30 77,008 2,363 3.2
31 75,025 380 .5
32 (9) 675,499 75,055 410 .5
33 73,071 (1,574) (2.1)
34 76,071 1,426 1.9
35 (2) 147,553 73,777 ( 868) (1.2)
36 74,633 ( 12) ( .0)
37 (4) 295,516 73,879 ( 766) (LO)
WHITE v. REGESTER 771
755 Appendix to opinion of the Court
APPENDIX-Continued
Percent
Average Deviation
Multi- (Under) Over
District Population member Over (Under)
38 78,897 4,252 5.7
39 77,363 2,718 3.6
40 71,597 (3,048) ( 4.1)
41 73,678 ( 967) ( 1.3)
42 74,706 61 .1
43 74,160 ( 485) ( .6)
44 75,278 633 .8
45 78,090 3,445 4.6
46 (11) 826,698 75,154 509 .7
47 76,319 1,674 2.2
48 (3) 220,056 73,352 (1,293) ( 1.7)
49 76,254 1,609 2.2
50 74,268 ( 377) ( .5)
51 75,800 1,155 1.5
52 76,601 1,956 2.6
53 74,499 ( 146) ( .2)
54 77,505 2,860 3.8
55 76,947 2,302 3.1
56 74,070 ( 575) ( .8)
57 77,211 2,566 3.4
58 75,120 475 .6
59 (2) 144,995 72,497 (2,148) (2.9)
60 75,054 409 .5
61 73,356 (1,289) (1.7)
62 72,240 (2,405) (3.2)
63 75,191 546 .7
64 74,546 ( 99) ( .1)
65 75,720 1,075 1.4
66 72,310 (2,335) (3.1)
67 75,034 389 .5
68 74,524 ( 121) ( .2)
69 74,765 120 .2
70 77,827 3,182 4.3
71 73,711 ( 934) (1.3)
72 (4) 297,770 74,442 ( 203) ( .3)
73 74,309 ( 336) ( .5)
74 73,743 ( 902) (1.2)
75 (2) 147,722 73,861 ( 784) (1.1)
76 76,083 1,438 1.9
77 77,704 3,059 4.1
78 71,900 (2,745) (3.7)
79 75,164 519 .7
80 75,111 466 .6
81 75,674 ·1,029 1.4
82 76,006 1,361 1.8
772
District
83
84
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
100
101
OCTOBER TERM, 1972
Opinion of BRENNAN, J.
APPENDIX-Continued
Population
75,752
75,634
71,564
73,157
73,045
75,076
74,206
74?,77
73,381
71,908
72,761
73,328
73,825
72,505
74,202
72,380
74,123
75,682
75,204
Average
Multimember
(Under)
Over
1,107
989
(3,081)
(1,488)
(1,600)
431
( 439)
( 268)
(1,264)
(2,737)
(1,884)
(1,317)
( 820)
(2,140)
( 443)
(2,265)
( 522)
1,037
559
412 U.S.
Percent
Deviation
Over
(Under)
1.5
1.3
(4.1)
(2.0)
(2.1)
.6
( .6)
( .4)
( 1.7)
(3.7)
(2.5)
(1.8)
(1.1)
(2.9)
( .6)
(3.0)
( .7)
1.4
.7
MR. JUSTICE BRENNAN, with whom MR. JusTICE
DOUGLAS and MR. JusTrCE MARSHALL join, dis.senting in
No. 71-1476, ante, p. 735, and concurring in part and
dissenting in part in No. 72-147.
The Court today upholds statewide legislative apportionment
plans for Connecticut and Texas, even though
these plans admittedly entail substantial inequalities in
the population of the representative districts, and even
though the States have made virtually no attempt to
justify their failure "to construct districts ... as nearly
of equal population as is practicable." Reynolds v.
Sims, 377 U. S. 533, 577 ( 1964). In reaching this conclusion,
the Court sets aside the judgment of the United
States District Court for the District of Connecticut holding
the Connecticut plan invalid, and the judgment of
the United States District Court for the Western DisWHITE
v. REGESTER 773
755 Opinion of BRENNAN, J.
trict of Texas reaching a similar result as to the Texas
plan. In the Texas case, the Court does affirm, however,
the District Court's determination that the use of multimember
districts in Dallas and Bexar Counties had the
unconstitutional effect of minimizing the voting strength
of racial groups.1 See Whitcomb v. Chavi,s, 40~ U. S.
124, 142-144 (1971); Burns v. Richardson, 384 U. S. 73,
88 (1966); Fortson v. Dorsey, 379 U.S. 433, 439 (1965).
With 1that latter conclusion I am in full agreement, as I
alrn agree with and join Part I of the Court's opinion in
No. 72-147, White v. Regester. But the decision to uphold
the state apportionment schemes reflects a substantial
and very unfortunate retreat from the principles
established in our earlier cases, and I therefore must state
my dissenting views.
I
At issue in No. 71-1476, Gaffney v. Cummings, is the
1971 reapportionment plan for election of members of
the House of Representatives of Connecticut. The plan
was premised on a 151-member House, with each member
elected from a single-member district. Since the
population of the State was 3,032,217, according to 1970
census data, the ideal would fix the population of each
district at 20,081. In fact, the population of many
1 In Fortson , .. Dorsey, 379 U. S. 433 (1965), we hrld that a
multimember district is not per se unconstitutional under the Equal
Protection Clause, even though we had previously recognized certain
inherently undesirable features of the <levier. See Lucas v. Colorado
General Assembly, 377 U S 713, 731 n. 21 (1964). We have
eoncluded, however, that the use of the device is, in fact, unconstitutional,
where it operates to "'minimize or cancel out the voting
strength of racial or political elements of the voting population,'"
Burns v. Richardson, :384 U.S. n, 88 (1966), quoting from Fortson v.
Dorsey, supra, at 439. Today's decision is the first in which we
have sustained an attack on the use of multimember districts. Cf.
Whitcomb v. Chavis, 403 U. S 124, 144 (1971).
774 OCTOBER TERM, 1972
Opinion of BRE~~AK, J. 412 u. s.
districts deviated substantially from the ideal, ranging
from a district undenepresented by 3.93% to one overrepresented
by 3.9%. The total spread of deviation-a
figure deemed relevant in each of our earlier decisionswas
7.83%. The population of 39 assembly districts
deviated from the average by more than 3%. Another
34 districts deviated by more than 2%. The average
deviation was just under 2%. To demonstrate that the
state plan did not aehieve the greatest practicable degree
of equality in per-district population, appellees submitted
a number of proposed apportionment plans, including
one that would have significantly reduced the
extent of inequality. The total range of deviation under
appellees' plan would have been 2.61 %, as compared to
7.83% under the state plan.
The District Court held the state plan invalid on the
ground that "the deviations from equality of populations
of the ... House districts are not justified by any
sufficient state interest." 2 341 F. Supp. 139, 148 (Conn.
1972). Instead of adopting one of appellees' plans, the
court, appointed a Special Master to chart a new plan,
and his effort produced a scheme with a total range of
deviation of only 1.16%. In overturning the District
Court's decision, the Court does not conclude, as it did
earlier this Term in Mahan v. Howell, 410 U. S. 315
(1973), that the District Court failed to discern the
State's sufficient justification for the deviations. Indeed,
in view of appellant's halfhearted attempts to justify
2 \Vitl1 rl'gard to the senatorial distri<'ts, the 19il phrn produced
a total varian<'c of 1.81%. Although appel!ees did not
specifically challenge the apportionment of senatorial districts, the
District Court properly concl11ded that its finding of nnrnnstitutional
deviation in one house required invalidation of the entire apportionment
11lan. Maryland Committee for Fair Representation v.
Tawes, 377 U.S. 656, 67:3 (1964); Lucas v. Colorado General Assembly,
supra, at 735. Burns v. Richardson, supra, at 83.
WHITE v. REGESTER 775
755 Opinion of BRENNAN, J.
the deviations at issue here, such a conclusion could
hardly be supported. Whereas the Commonwealth of
Virginia made a substantial effort to draw district lines
in conformity with the boundaries of political subdivisions--
an effort that was found sufficient in Mahan v.
Howell to validate a plan with total deviation of 16.4%-
the evidence in the case before us requires the conclusion
that Connecticut's apportionment plan was drawn in
complete disregard of political subdivision lines. The
District Court pointed out that "[t]he boundary lines
of 47 towns are cut under the Plan so that one or more
portions of each of these 47 towns are added to another
town or a portion of another town to form an assembly
district." 341 F. Supp., at 142. Moreover, the boundary
lines of 29 of these 47 towns ,vere cut more than once,
and the plan created "78 segments of to,vns in the formation
of 151 assembly districts." Ibid.
Although appellant failed to offer cogent reasons in
explanation of the substantial variations in district population,
the Court nevertheless upholds the state plan.
The Court reasons that even in the absence of any explanation
for the failure to achieve equality, the showing
of a total deviation of almost 8% does not make
out a prima facie case of invidious discrimination under
the Fourteenth Amendment. Deviations no greater than
8% are, in other words, to be deemed de minimis, and
the State need not offer any justification at all for the
failure to approximate more closely the ideal of Reynolds
v. Sims, supra.
The Texas reapportionment case, No. 72~147, White
v. Regester, presents a similar situation, except that the
range of deviation in district population is greater and
the State's justifications are, if anything, more meager.
An ideal district in Texas, which chooses the 150 members
of the State House of Representatives from 79 singlemember
and 11 multimember districts, is 74,645. As
776 OCTOBER TERM, 1972
Opinion of BRENNAN, J. 412 u. s.
defined in the State's 1970 plan, a substantial number
of districts departed significantly from the ideal. The
total range of deviation was at least 9.9%, and arguably
almost 30%, depending on the mode of calculation.3 The
District Court pointed out that
" [ i] n all of the evidence presented in this case, the
State has not attempted to explain in terms of
rational State policy its failure to create districts
equal in population as nearly as practicable, nor has
the State sought to justify a single deviation from
precise mathematical equality. The lengthy depositions
of the members of the legislative redistricting
board and of the staff members who did the actual
drawing of the legislative district lines are devoid
of any meaningful indications of the standards used."
343 F. Supp. 704, 714 (WD Tex. 1972).
As the District Court's opinion makes clear, the variations
surely cannot be def ended as a necessary byproduct
of a state effort to avoid fragmentation of political subdivisions.
Nevertheless, the Court today sets aside the
District Court's decision, reasoning, as in the Connecticut
case, that a showing of as much as 9.9% total deviation
still does not establish a prima facie case under the
Equal Protection Clause of the Fourteenth Amendment.
Since the Court expresses no misgivings about our recent
decision in Abate v. Mundt, 403 U. S. 182 (1971),
where we held that a total deviation of 11.9% must be
3 The District Court pointed out that "the State's method of
computing deviations in the multi-member districts may distort the
actual percentage deviations in those eleven districts. . . . Since
we have concluded that the 9.9% total deviation is not the result
of a good faith attempt to achieve population equality as nearly
as practicable, it is unnecessary for us to resolve this complex
computational conflict." 343 F. Supp. 704, 713 n. 5. A ~imih1r
conflict existed in Mahan v. Howell, 410 U. S. 315 ( 1973), as I
pointed out in my dissenting opinion, id., at 333, and there too the
Court declined to indicate any awareness of the dispute.
WHITE v. REGESTER 777
755 Opinion of BRENNAN, .J.
justified by the State, one can reasonably surmise that a
line has been drawn at 10%-deviations in excess of that
amount are apparently acceptable only on a showing of
justification by the State; deviations less than that
amount require no justification whatsoever.
II
The proposition that certain deviations from equality
of district population are so small as to lack constitutional
significance, while repeatedly urged on this Court
by States that failed to achieve precise equality, has
never before commanded a majority of the Court.4 Indeed,
in Kirkpatrick v. Preisler, 394 U.S. 526,530 (1969),
we expressly rejected the argument
"that there is a fixed numerical or percentage population
variance small enough to be considered de
minimis and to satisfy without question the 'as nearly
as practicable' standard. The whole thrust of the
'as nearly as practicable' approach is inconsistent
with adoption of fixed numerical standards which
excuse population variances without regard to the
circumstances of each particular case."
The Court reasons, however, that Kirkpatrick v. Preisler,
• There is a statement, to be sure, in Swann v. Adams, 385 U. S.
440, 444 (1967), that " [d] e minimis deviations arc unavoidable," but
that statement must be viewed in context. By way of clarification,
the Court immediately added that "the Reyrwlds opinion limited
the allowable deviations to those minor variations which 'are
based on legitimate considerations irwident to the effectuation of
a rational state policy.' 377 U. S. 533, 579.'' Ibid. S.im.ilarly,
the Court noted, quoting from Roman v. Sincock, 377 U. S. 695,
710 ( 1964), t-hat " the Constitution permits 's uch minor deviations
only as may occur in recognizing certain factors that are free from
any taint of arbitrariness or discrimination.'" 385 U. S., at 444.
Swann v. Adams d oes not, in my view, suggest any support for the
proposition that deviations as great as 10% are tolerable in the
absence of any justification or explanation by the State.
778 OCTOBER TERM, 1972
Opinion of BnENNAN, ,J. 412 U.S.
supra, a case that concerned the division of Yiissouri into
congressional districts, has no application to the apportionment
of seats in a state legislature. In my dissenting
opinion in .Mahan v. Howell, supra, I pointerl
out that the language, reasoning. aud background of the
Kirkpatrick decision all command the conclusion that
our holding there is applicable to state legislative apportionment
no less than to congressional districting. In
fact, this Court specifically recognized as much in the
context of a challenge to an Arizona apportionment
scheme in Ely v. Klahr, 403 r. S. 108 (1971). Describing
the opinion of the District Court whose judgment
was under review, ,Ye noted that the court belo,v had
"properly concluded that this plan ,vas invalid under
Kirkpatrick v. Preisler, 394 F. S. 526 (1069), and Wells
v. Rockefeller, 394 F. S. 542 (1969), since the legislature
had operated on the notion that a 16% deviation was
de minimis and consequently made no effort to achieve
greater equality." 403 U. S., at ll 1. Yet it is precisely
such a notion that the Court today approves.f,
Moreover, even if Kirkpatrick should be deemed inapplicable
to the apportionment of state legislative districts,
the reasoning that gave rise to our rejection of a
0 By co!ltrast, in Nlahan v. Howell, supra, the Court express]:,·
reaffirmed the holding of Reynolds v. Sims, 377 l.:. S. 533 (1964), that
"some deviations from th(' ('qual-popnlation principle ar!' eonstitutionally
permissible" •· [s]o long as the divergences from a strict population
standard are based on legitimate considerations incident to the
effectuation of a rational state policy." Id., at 57\J, quoted in Mahan
v. Howell, supra, at 325 (empha~is added). In my view, the Court illcorrectly
concluded in Mahan v. Howell th:1t Virginia had justified the
population variations at issue there. :"Jenrthrles~, the Court did follow
th(' lille of analysis prescribed in our earlier decisions-requiring
the State> to justify C\'ory deviation from prc<'isc equality. The ariproach
of 11[ aha11 is, therefore, directly at odds with· 1 he appro:wh
adoptPd today. Sec also, e.g., Abate v . •U undt, 40:3 l'. S. 182, Ji-,5
(1971); Kilgatlin \·. Ilill, 386 U. S. 120, 122 (1967); Swann \.
Adams, supra, at 443-446.
WHITE v. REGESTER 779
755 Opinion of BREXXAN, J.
de rninimis approach is fully applicable to the case before
us. \Ve pointed out there that the "as nearly as
practicable" standard-the standard that controls legislative
apportionment as well as congressional districting,
Reynolds v. Sims, supra, at 577-dcmands that "the State
make a good-faith effort to achieve precise mathematical
equality. . . . Equal representation for equal numbers
of people is a principle designed to prevent debasement
of voting power and diminution of access to elected representatives.
Toleration of even small deviations detracts
from these purposes." 394 U. S., at 530- 531.
Kirkpatrick recognized that "to consider a certain range
of variances de minimis would encourage legislators to
strive for that rang8 rather than for equality as nearly
as practicable." 394 r. S., at 531.
Although not purporting to quarrel with the principle
that precise mathematical equality is the constitutionally
mandated goal of reapportionment. the Court
today establishes a wide margin of tolerable error, and
thereby undermines the effort to effectuate the principle.
For it is clear that the state legislatures and the state
and federal courts have viewed Kirkpatrick as controlling
011 the issue of legislative apportionment, and
the outgrov.rth of that assumption has beell a truly extraordinary
record of compliance with the co11stitutional
mandate. Appe11ePs in ;{o. 71~1476 make the point
forcefully by comparing the extent of inequality in the
population of legislative districts prior to 1969, the year
of our decision in Kirkpatrick, with the extent of inequality
in subsequent years." Prior to H)6D, the range
of variances in population of state senatorial districts
exceeded 15%- in 44 of the 50 States. Three States had
r, Appellccs' figure~ arc compiled from a table entitled Apportionment
of Legi~hturC'~, in 17 Council of f:tatc GovPmnwnts, thr Book
of the States: l9fi8-19G9, pp. GG-Gi' (l!lG8), and from Council of State
Governments, Reapportionment in thP Scventic•,; (197:3) .
780 OCTOBER TERM, 1972
Opinion of BRENNAN, .J. 412 U.S.
reduced the total variance to between 10% and 15%; two
had cut the variance to between 5% and 10%; only one
had reduced the variance below 5%. The record of apportionment
of state House districts was even less encouraging.
Variances in excess of 15% characterized all
but two of the States, and only one of these had brought
the total variance under 10%. The improvement in the
post-1969 years could not have been more dramatic. The
table provided by appellees, set out in full in the margin,7
reveals that in almost one-half of the States the total
variance in population of senatorial districts was within
5% to zero. Of the 45 States as to which information
was available, 32 had reduced the total variance below
10% and only eight had failed to bring the total variance
below 15%. With regard to House districts the improvement
is similar. On the basis of information concerning
42 States, it appears that 20 had achieved a total variance
of less than 5%, and only 14 retained districts with
a total variance of more than 15% from the constitutional
ideal.
To appreciate the significance of this encouraging development,
it is important to understand that the demand
for precise mathematical equality rests neither on
Deviations After 1970
Percentage of
Range of Deviations Number of States States
Senate:
Under 1% 3 6.7%
1-5% 21 46.7%
5--10% 8 17.8%
10-15% 5 11.1%
Over 15% 8 17.8%
House:
Under 1% 4 9.5%
1-5% 16 38.1%
5--10% 8 19.1%
10-15% 4 9.5%
Over 15% 10 23.8%
WHITE v. REGESTER 781
755 Opinion of BRENNAN, J.
a scholastic obsession with abstract numbers nor a rigid
insensitivity to the political realities of the reapportionment
process. Our paramount concern has remained an
individual and personal right-the right to an equal vote.
"\Vhile the result of a court decision in a state legislative
apportionment controversy may be to require the
restructuring of the geographical distribution of seats in a
state legislature, the judicial focus must be concentrated
upon ascertaining whether there has been any discrimination
against certain of the State's citizens which constitutes
an impermissible impairment of their constitutionally
protected right to vote." Reynolds v. Sims,
supra, at 561. We have demanded equality in district
population precisely to insure that the weight of a person's
vote will not depend on the district in which he
lives. The conclusion that a State may, without any
articulated _justification, deliberately weight some persons'
votes more heavily than others, seems to me fundamentally
at odds with the purpose and rationale of
our reapportionment decisions. Regrettably, today's
decisions are likely to jeopardize the very substantial gains
that have been made during the last four years.
Moreover, if any approach ascribes too much importance
to abstract numbers and too little to the realities
of malapportionmcnt, it is not Kirkpatrick's demand for
precise equality in district population, but rather the
Court's own de minimis approach. By establishing an
arbitrary cutoff point expressct! in terms of total percentage
variance from the constitutional ideal, the Court
fails to recognize that percentage figures tend to hide
the total number of persons affected by unequal ·weighting
of votes. In the Texas case, for example, the District
Court pointed out that
"the total deviations for Dallas and Bexar Counties.
respectively, amount to about 16,000 people and
5,500 people, for a total of around 21,500 people.
782 OCTOBER TERM, 1972
Opinion of BRENKAN, J. 412 U.S.
The percentage deviation figures are only a shorthand
method of expressing the 'loss,' dilution, or
disproportionate ,veighting of votes. Just as the
Court in Reynolds concluded that legislators represent
people, not trees or cows. so we would emphasize
that legisla.tors represent people, not percentages
of people." 343 F. Supp., at 713 n. 5.
Finally, it is no answer to suggest that precise mathematical
equality is an unsatisfactory goal in view of the
inevitable inaccuracies of the census data on which the
plans are based. That argument, which ,ve implicitly
rejected in Kirkpatrick v. Preisler, supra} mixes two
distinct questions. In the first place, a state apportionment
plan must be grounded on the most accurate
available data, and the unreliability of the data may
itself necessitate the invalidation of the plan. But once
the data arc established, the State's constitutional obligation
is to achieve the highest practicable degree of equality
,vith ref ere nee to the information at hand. In my
view, the District Courts properly concluded that neither
Texas nor Connecticut had satisfied this obligation. I
would therefore affirm both judgments.
8 See 394 U. S., at 538-540 (1969) (Fortas, J., concurring); Wells
v. Rockefeller, 394 U. S. 542, 554 (1969) (WHITE, J., dissenting).
WHITE v. WEISER
Syllabus
783
\VHITE, SECRETARY OF STATE OF TEXAS v.
WEISER ET AL.
APPEAL FROM THE UNITED STATES DISTHlCT COlTRT FOR
THE NORTHERN DISTRICT OF TEXAS
:-Jo. 71-162::l. Argued February 26, 1973-Decided June 18, IQ73
Texas enaeted Senate Bill One (S. B. 1) providing; for congres~ional
redistricting. The State was di\·ided into 24 districts, with an
average deviation from the ideal district of .745%, and a maximum
deviation of 2.43% above and 1.7% below the ideal. Appellees
alleged that the reapportionmrnt violated thrir constitutional rights
nnd<'f Art. I , § 2, and submittrd Phn B, whid1, although cutting
across more county lines, grnrrally followed the distri('t lines of
S. B. 1. Plan B had a total maximum deviation of .149% . Shortly
before the three-judge court hearing, appellees submittrd, alternatively,
Plan C. That srlJPmr, with a total maximum deviation of
.284% , sub$tantially cli$r<'garcl<'d the configuration of the districts in
8. B. 1, using population as the only consideration. The District
Court found S. B. 1 unconstitutional and ordered tho adoption of
Plan C, as being more compact and contiguous than the other
plans. II eld:
1. Although the percrntngr dniations in S. B. 1 are snrnllf'r
than those invulidated in Kirkpatrick v. Preisler, 394 F 8 . .5 26,
and Wells v. Rockefeller, 394 U. S. 542, they were not " unavoidable"
and thC' diEtrirts were not as mathrmatically eqnal as rC'asonably
possible. The argument that variancrs are justified if
they necessarily result from the Statr's att('mpt to avoid fr:1gment
ing political subdivisions b:,· drawing <fotrirt lines along existing
political subdivision lines is not IC'gaily acceptable. Kirkpatrick,
supra, at 53i!- 5:-l4. Pp. 790- 791.
2. Though the drawing of distri('t bonndarif's in a way that
minimizes the number of contests bctwreu presrnt inc-umbents does
not of itself establish invidiousness, Burns v. Richardson, 384 U. S.
7:3, 89 n. 16, it is not necessary to decide' whethn such state
interest will justify the deviations in S. B. 1, since Plan B sen·es
this pmpose as well with less population varianrr. Pp. 791-792.
:-l. Population variances do im:idiou8ly devalue the individual's
vote at some point or lewl in size, and this is f'specially notireablr
in congressional districts with thrir substantial populations. Pp.
792-793.
784 OCTOBER TERM, 1972
Opinion of the Court 412 u. s.
4. Plan B, to a greater extent than Plan C, while eliminating
population variances, adhered to the districting preferences of the
state legislature, which has "primary jurisdiction" over legislative
reapportionment. Pp. 793-797.
Affirmed in part, reversed in part, and remanded.
WHITE, J., delivered the opinion of the Court, in Part I of which
all Members joined and in Part II of which BURGER, C. J., and
DouGLAS, BRENNAN, STEWART, BLACKMUN, PowELL, and REHNQUIST,
JJ., joined. PowELL, J., filed a concurring opinion, in which
BURGER, C. J., and REHNQUIST, J., joined, post, p. 798. MARSHALL,
J., filed an opinion concurring in part in Part II of the opinion of
the Court, post, p. 798.
Charles L. Black, Jr., argued the cause for appellant.
With him on the briefs were Crawford C. Martin, former
Attorney General of Texas, John L. Hill, Attorney General,
John M. Barron, First Assistant Attorney General,
and Samuel D. McDaniel.
Lawrence Fu,chman argued the cause for appellees.
With him on the brief was David H. Rosenberg. J. Douglas
McGuire filed a brief for appellees Van Henry Archer,
Jr., et al.
MR. JUSTICE WHITE delivered the opinion of the
Court.
This case concerns the congressional reapportionment
of the State of Texas.
On June 17, 1971, the Governor of the State of Texas
signed into law Senate Bill One (S. B. 1), Tex. Acts,
62d Leg., 1st Called Sess., c. 12, p. 38, providing for the
congressional redistricting of the State. S. B. 1 divided
the State into 24 congressional districts for the ensuing
decennium.1 Based upon 1970 census figures, absolute
1 Prior to the passage of S. B. 1, tho Texas Senate had twice defea~
ed redistricting bills, passed by the House, with total deviations
smaller than the total deviation in S. B. 1.
WHITE v. WEISER 785
783 Opinion of the Court
population equality among the 24 districts ·would mean
a population of 466,530 in each district. The districts
created by S. B. 1 varied from a high of 477,856 in the
13th District to a low of 458,581 in the 15th District.
The 13th District exceeded the ideal district by 2.43%
and the 15th District was smaller by 1.7%. The population
difference between the two districts was 19,275 persons,
and their total percentage deviation was 4.13%.
The ratio of the 13th District to the 15th was 1.04 to 1.
The average deviation of all districts from the ideal district
of 466,530 was .745% or 3,421 persons.2
2 The redistricting of tho 24 Texas congressional districts under
S. B. 1 follows:
Absolute Variance % Variance
District Population from Ideal from Ideal
1 461,870 - 4,651 1.00
2 466,836 + 306 .07
3 465,221 - 1,309 .28
4 463,142 - 3,388 .73
5 465,093 - 1,437 .31
6 467,913 + 1,383 .30
7 461,704 - 4,826 1.03
8 461,216 - 5,314 1.14
9 467,483 + 953 .20
10 465,493 1,037 .22
11 468,148 + 1,618 .35
12 465,671 859 .18
13 477,856 +11,326 2.43
14 467,839 + 1,309 .28
15 458,581 - 7,949 1.70
16 477,614 +11,084 2.38
17 467,912 + 1,382 .30
18 462,062 - 4,468 .96
19 477,459 +10,929 2.34
20 467,942 + 1,412 .30
21 466,656 + 126 .03
22 461,448 - 5,082 1.09
23 466,248 282 .06
24 465,315 - 1,216 .26
786 OCTOBElt TERM, 1972
Opinion of the Court 412 u. s.
On October 19, 1971, appellecs, residents of the 6th,
13th, 16th, and 19th congressional districts, filed suit
in the United States District Court for the l'\orthern
District of Texas against appellant, the Secretary of State
of Texas and the chief election officer of the State. Appellees
alleged that the reapportionment of the Texas
congressional seats as embodied in S. B. 1 violated their
rights under Art. I, § 2, and the Equal Protection Clause
of the Fourteenth Amendment." They requested an injunction
against the use of S. B. 1, an order requiring
a new apportionment or the use of a plan submitted
with their complaint, or at-large elections. The plan
appended to appellees' original complaint, which came
to be called Plan B, generally followed the redistricting
pattern of S. B. 1. However, the district lines were
adjusted where necessary so as to achieve smaller population
variances among districts. Plan B created districts
varying from 466,930 to 466,234, for a total absolute
deviation between the largest and smallest district of
696 persons. District 12 exceeded the ideal by .0861/c
and District Four was under the ideal by .068 %, for a total
percentage deviation of .149 '.l'r,. Although the plan fol-
10\ved the district lines of S. B. 1 where possible, in order
to achieve maximum population equality, Plan B cut
across 18 more county lines than did S. B. 1.4
3 At. a subsC'quC'nt prC'trial conference, the Fourteenth Amendment
claims were eliminated.
• Plan B resulted in the following districting:
District
1
2
3
4
5
Population
466,545
466,565
466,266
466,234
466,620
Absolute Variance
from Ideal
+ 1/)
+ 35
-264
- 296
+ 90
[Footnote 4 continued on p. 787]
WHITE v. WEISER 787
78.'3 Opinion of the Court
A three-judge court was convened. 28 U.S. C. §§ 2281.
2284. On January 10, 1972, several days prior to the
scheduled hearing of the case, appellees filed an amended
complaint suggesting an alternative plan. which came to
be called Plan C. Plan C, unlike Plan B, substantially
disregarded the configuration of the districts in S. B. l.
Instead. as the authors of the plan frankly admitted and
the District Court found, Plan C represented an attempt
to attain lower deviations without regard to any consideration
other than population . The districts in
Plan C varied in population from 467,173 as a high to
465.855 as a low, a differeuce of 1,318 persons. The largest
district was overpopulated by _139c:{ , and the smallest
undPrpopulated by .145%. the total percentage deviation
being .284%. Plan C had 14 districts with greater
deviations than Plan B, eight districts with deviations
Ab•olule \"ariinrr-
Distnrt Population from ldPal
6 466,2ii5 -245
7 46(3,336 - 191
8 466,704 +174
9 466,678 + 14/..
10 466,313 217
11 466,258 272
12 46(3,930 ·HOO
13 466.663 +133
14 466,437 - 93
15 466,359 - 171
16 466,663 -i-- la3
17 466,432 - !)~
18 466,520 10
19 466,649 l Hl
20 466,514 16
21 466,753 223
22 466,707 + 177
23 466,424 -106
24 466,~75 +345
788 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
equal to those found in Plan B, and two districts with
deviations smaller than those in Plan B.5
On January 21, 1972, the District Court heard argument
and received into evidence various depositions.
The next day, the court announced its decision. Relying
upon this Court's decision in Kirkpatrick v. Prei,sler,
394 U.S. 526 (1969), the District Court declared S. B. 1
unconstitutional and enjoined appellant from "conducting
or permitting any primary or general elections based
upon the districts established by S. B. l." The District
Court ordered the adoption of Plan C as "the plan of
this Court for the congressional districts of the State
5 Plan C resulted in the following districts:
District
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Population
465,986
466,817
466,835
467,108
466,258
467,023
466,336
466,704
466,678
466,303
466,569
466,926
467,173
466,437
466,359
465,941
466,340
466,520
466,154
466,654
466,875
466,707
466,167
465,855
Absolute Variance
from Ideal
-544
+287
+305
-t-578
-272
+493
-194
+174
+148
- 227
+ 39
+396
-t-648
- 93
-171
-589
-190
- 10
-376
+124
-t-345
+ 177
-363
- 675
WHITE v. WEISER 789
783 Opinion of the Court
of Texas." 6 Noting that its order was entered "without
prejudice to the legislative and executive branches of the
State of Texas to proceed with the consideration and
adoption of any other constitutionally permissible plan
of congressional redistricting at a called or regular session
of the Legislature," the District Court retained
jurisdiction "for the purposes of considering any such
plan which might be adopted by the Legislature of the
State of Texas until congressional reapportionment is
enacted based on the Twentieth Decennial Census to be
conducted in 1980." 7
This Court, on application of appellant, granted a stay
of the order of the District Court. 404 U. S.1065 (1972).
The 1972 congressional elections were therefore conducted
under the plan embodied in S. B. 1. We noted probable
jurisdiction of the appeal. 409 U. S. 947 (1972).
6 The District Court's entire discussion of its reasons for selecting
Plan C follows :
"Defendant has not submitted any plan of reapportionment as an
alternative to S. B. 1. Plaintiffs have proposed two plans, B and C.
Plan B is based on S. B. 1, but has a significantly lower deviation
than S. B. 1. Plan C is based solely on population and is significantly
more compact and contiguous than either S. B. 1 or Plan B. ...
The Court has considered Plans B and C, as well as the plan submitted
by the intervening plaintiffs, and concludes that Plan C best
effectuates the principle of 'one man, one vote' enunciated by the
Supreme Court."
7 The District Court's order also granted leave to intervene to
Van Henry Archer, Chairman of the Bexar County Republican Party,
and others. The intervenors, appellees in this Court, filed a suggested
reapportionment plan with their complaint-in-intervention which was
rejected by the District Court and is not pressed here. The District
Court also retained jurisdiction for the purpose of extending the
impending February 7, 1972, filing date for congressional candidates
"in the event it is made known to [the District] Court that a called
session of the Legislature will include congressional reapportionment."
However, the Governor refused to call a special session of the
legislature.
790 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
I
The command of Art. I, § 2, that representatives be
chosen "by the People of the several States" was elucidated
in Wesberry v. Sanders, 376 U.S. 1 (1964), and in
Kirkpatrick v. Preisler, 394 U. S., at 527-528, to
permit only those population variances among congressional
districts that "are unavoidable despite a good-faith
effort to achieve absolute equality, or for which justification
is shown." Id., at 531." See also Well$ v. Rockefeller,
394 U.S. 542, 546 (1969). Kirkpatrick and Wells
invalidated state reapportionment statutes providing for
federal congressional districts having total percentage
deviations of 5.97% and 13.1 %, respectively. In both
cases, we concluded that the deviations did not demonstrate
a good-faith effort to achieve absolute equality and
were not sufficiently justified.
The percentage deviations now before us in S. B. I are
smaller than those invalidated in Kirkpatrick and Wells,
but we agree with the District Court that, under the
standards of those cases, they were not "unavoidable,"
and the districts were not as mathematically equal as
reasonably possible. Both Plans B and C demonstrate
this much, and the State does not really dispute it."
8 Kirkpatrick v. Preisler "reject[ed] Missouri's argument that there
is a fixed numerical or percentage population variance small enough
to be considered de minimis and to satisfy without question the 'as
nearly as practicable' standard." 394 U. S., at 530. We concluded,
"Unless population variances among congressional districts are shown
to have resulted despite such [good-faith] effort, the State must
justify each variance, no matter how small." Id., at 531.
9 Prior to the passage of S. B. 1, the Texas House twice passed
a congressional reapportionment bill with lower deviations. Each
bill had a total deviation of 2.5%. Although both bills were ultimately
defeated in the Senate, their passage by the House, and indeed
their very existence, indicates that it was possible and practicable
to construct a redistricting scheme with lower population deviations
among districts than those embodied in S. B. I.
WHITE v. WEISER 791
783 Opinion of the Court
Also, as in Kirkpatrick and Wells, "we do not find legally
acceptable the argument that variances are justified if
they necessarily result from a State's attempt to avoid
fragmenting political subdivisions by drawing congressional
district lines along existing county, municipal, or
other political subdivision boundaries." Kirkpatrick v.
Preisler, supra, at 533-534.
The State asserts that the variances present in S. B. 1
nevertheless represent good-faith efforts by the State
to promote "constituency-representative relations," 10 a
policy frankly aimed at maintaining existing relationships
between incumbent congressmen and their constituents
and preserving the seniority the members of
the State's delegation have achieved in the United States
House of Representatives. We do not disparage this interest.
We have, in the context of state reapportionment,
said that the fact that "district boundaries may
have been drawn in a way that minimizes the number of
contests between present incumbents does not in and of
itself establish invidiousness." Burns v. Richar,dson, 384
U. S. 73, 89 n. 16 (1966). Cf. Gaffney v. Cummings,
ante, at 752. But we need not decide whether this state
interest is sufficient to justify the deviations at issue
here, for Plan B admittedly serves this purpose as well
10 "Appellant earnestly submits that the term 'constituencyrepresentative
relations' is the more accurate term; indeed it is very
hard to see why those who are so concerned about representation
should stigmatize as a mere euphemism a term which brings in both
parties to the representational relationship . . . . (The assumptions
seem to be that while a Congressman may like his job, no constituency
can like its Congressman, or care whether he continues to
represent it or not-and that no Congressman can possibly learn to
know his constituency well enough to serve it better than he can
serve another constituency selected for him by, it may be, a young
mathematician in Dallas.) Under either name, appellant would
defend this motive as entirely proper, if the burden of that defense
fell upon him on the facts herein." Brief for Appellant 72.
792 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
as S. B. 1 while adhering more closely to population
equality.11 S. B. 1 and its population variations, therefore,
were not necessary to achieve the asserted state goal,
and the District Court was correct in rejecting it.12
Appellant also straightforwardly argues that Kirkpatrick
and Wells should be modified so as not to require
the "small" population variances among congressional districts
involved in this case to be justified by the State.
S. B. 1, it is urged, absent proof of invidiousness over
and above the population variances among its districts,
does not violate Art. I, § 2. It is clear, however,
that at some point or level in size, population variances
do import invidious devaluation of the individ-
11 It appears that the two plans passed by the House and defeated
by the Senate may also have fostered this goal while achieving lower
population variances.
12 Appellant contends that the authors of S. B. 1, and the legislature
in passing on the plan, took into account projected population
shifts among the districts. Remembering that the congressional
districting plan will be in effect for at least 10 years and five congressional
elections, the appellant argues that the legislature might
properly consider population changes in devising a redistricting plan.
In Kirkpatrick v. Preisler, we recognized that " [ w l here these shifts
can be predicted with a high degree of accuracy, States that are
redistricting may properly consider them." 394 U. S., at 535. We
were, however, careful to note:
"By this we mean to open no avenue for subterfuge. Findings as
to population trends must be thoroughly documented and applied
throughout the State in a systematic, not an ad hoc, manner." Ibid.
In the present case, we conclude that Texas' attempt to justify
the deviations found in S. B. 1 falls far short of this standard.
The record is barren, with the exception of scattered and vague
assertions in deposition testimony, of adequate documentation of
the projected population shifts and firm evidence that the alleged
shifts were in fact relied upon.
There is also some suggestion that passage of S. B. 1 was preceded
by a dispute as to who would fill the Second District congressional
seat. The State docs not urge this alleged goal as a justification for
the deviations in S. B. 1, nor can we tell from this record whether
S. B. 1 in fact resolved this dispute.
WHITE v. WEISER 793
783 Opinion of the Court
ual's vote and represent a failure to accord him fair and
effective representation. Appellant concedes this and
would locate the line differently than the Court did in
Kirkpatrick and Wells. Keeping in mind that congressional
districts are not so intertwined and freighted with
strictly local interests as are state legislative districts and
that, as compared with the latter, they are relatively
enormous, with each percentage point of variation representing
almost 5,000 people, we are not inclined to
disturb Kirkpatrick and Wells. This is particularly so
in light of Mahan v. Howell, 410 U.S. 315 (1973), decided
earlier this Term, where we reiterated that the Wesberry,
Kirkpatrick, and Wells line of cases would continue to
govern congressional reapportionments, although holding
that the rigor of the rule of those cases was inappropriate
for state reapportionments challenged under the
Equal Protection Clause of the Fourteenth Amendment.
II
The District Court properly rejected S. B. 1, but it
had before it both Plan Band Plan C, and there remains
the question whether the court correctly chose to implement
the latter.13 Plan B adhered to the basic district
configurations found in S. B. 1, but adjusted the
district lines, where necessary, in order to achieve maximum
population equality among districts. Each district
in Plan B contained generally the same counties as the
equivalent district in S. B. l.14 Plan C, on the other
hand, was based entirely upon population considerations
13 The court had before it a plan submitted by the plaintiffsintervenors
and, possibly, other plans. Only Plan B and Plan C
appear to have been seriously urged by the parties and considered
by the court, and only those plans are defended before this Court.
14 "Plan B, presented by Appellees, merely took the plan of the
legislature and adjusted that plan to achieve greater equality to
present to the court, in a graphic manner, what the legislature could
794 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
and made no attempt to adhere to the district configurations
found in S. B. l.15 Both plans were submitted to
the District Court by appellees. After deciding that
S. B. 1 was unacceptable, the District Court ordered the
implementation of Plan C. In announcing its decision,
the court said only:
"Plan C is based solely on population and is significantly
more compact and contiguous than either
S. B. 1 or Plan B. . . . The Court has considered
Plans B and C ... and concludes that Plan C best
effectuates the principle of 'one man, one vote'
enunciated by the Supreme Court."
Appellant argues that, even if the District Court properly
struck down S. B. 1, it should have selected Plan B
rather than Plan C. Appellees defend the selection of
Plan C as an exercise of the remedial discretion of the
District Court, although in doing so they argue against
a plan that they proposed and frequently urged upon
the District Court.
From the beginning, we have recognized that "reapportionment
is primarily a matter for legislative consideration
and determination, and that judicial relief
becomes appropriate only when a legislature fails to reapportion
according to federal constitutional requisites
have done if it had been disposed to make an attempt at population
equality .... " Brief for Appellees 25.
' 5 Appellees' amended complaint explained Plan C, as follows:
"That had the legislature desired to enact a statute consonant
with the mandate of Article I, § 2 of the U. S. Constitution, that
is a plan which made CaC'h district as compact and contiguous and
as nearly equal in population to each other district as practicable,
taking into account solely population and not taking into account
'social,' 'cultural,' 'economic' or 'other factors' including preservation
of incumbent congressman, it could have enacted a plan the same
as or substantially similar to that plan set forth in Exhibit C annexed
hereto and herewith incorpora.tcd by reference as though set forth
at length herein. That such plan is hereinafter referred to as
'Plan C.'"
WHITE v. WEISER 795
783 Opinion of the Court
in a timely fashion after having had an adequate opportunity
to do so." Reynolds v. Sims, 377 U. S. 533, 586
( 1964). See also, id., at 584, 586-587; id., at 588-589
(opinion of STEWART, J.). We have adhered to the view
that state legislatures have "primary jurisdiction" over
legislative reapportionment. See Maryland Committee
for Fair Representation v. Tawes, 377 U. S. 656, 676
( 1964) ; Davis v. Mann, 377 U. S. 678, 693 ( 1964) ; Roman
v. Sincock, 377 U.S. 695, 709-710, 711-712 (1964); Burns
v. Richardson, 384 U. S., at 84-85; Ely v. Klahr,
403 U.S. 108, 114 (1971); Whitcomb v. Chavis, 403 U.S.
124, 160-161 (1971); Sixty-seventh Minnesota State
Senate v. Beens, 406 U. S. 187, 195-201 (1972); Mahan
v. Howell, 410 U. S., at 327. Just as a federal district
court, in the context of legislative reapportionment,
should follow the policies and preferences of the
State, as expressed in statutory and constitutional provisions
or in the reapportionment plans proposed by the
state legislature, whenever adherence to state policy does
not detract from the requirements of the Federal Constitution,
we hold that a district court should similarly
honor state policies in the context of congressional reapportionment.
In fashioning a reapportionment plan or
in choosing among plans, a district court should not
pre-empt the legislative task nor "intrude upon state
policy any more than necessary." Whitcomb v. Chavis,
supra, at 160.
Here, it is clear that Plan B, to a greater extent than
did Plan C, adhered to the desires of the state legislature
while attempting to achieve population equality among
districts. S. B. 1, a duly enacted statute of the
State of Texas, established. the State's 24 congressional
districts with locations and configurations found appropriate
by the duly elected members of the two houses
of the Texas Legislature. As we have of ten noted, reapportionment
is a complicated process. Districting
796 OCTOBER TERlVI, 1972
Opinion of the Court 412 U.S.
inevitably has sharp political impact and inevitably
political decisions must be made by those charged with
the task. See Gaflney v. Cummings, ante, at 753. Herc
those decisions were made by the legislature ill pursuit
of what were deemed important state interests. Its decisions
should not be unnecessarily put aside in the course
of fashioning relief appropriate to remedy what were held
to be impermissible populatio11 variatious between congressional
districts.
Plan B, as all parties concede, represented an attempt
to adhere to the districtillg preferences of the state legislature
v,:hile eliminating population variances. Indeed,
Plan B achieved the goal of population equality to a
greater extent than did Plan C. Despite the existence
of Plan B, the District Court ordered implementation of
Plan C, which, as conceded by all parties, ignored legislative
districting policy and constructed districts solely on
the basis of population considerations. The District
Court erred in this choice. Given the alternatives, the
court should not have imposed Plan C, with its very
different political impact, on the State. It should have
implcrncnted Plan n, which most clearly aJ)proximated
the reapportionment plan of the state legislature, while
satisfyi11g constitutional requirements. The court said
only that Plan C is "significantly more compact and
colltiguous" than Plan B. But both Plan B and Plan C
feature contiguous districts, and, even if the districts
in Plan C can be called more compact, the District
Court's preferences do not override whatevrr state goals
were embodied in S. B. 1 and, derivatively, in Plan B.
"The remedial powers of an equity court must be adequate
to the task, but they are not unlimited. Here the
District Court erred in so broadly brushing aside state
apportionment policy without solid co11stitutio11al or
equitable grounds for doing so." Whitcomb v. Chavis,
supra, at 161. If there was a good reason for adoptWHITE
v. WEISER 797
783 Opinion of the Court
ing Plan C rather than Plan B, the District Court failed
to state it.
Of course, the District Court should defer to state
policy in fashioning relief only where that policy is consistent
with constitutional norms and is not itself vulnerable
to legal challenge. The District Court should not,
in the name of state policy, refrain from providing remedies
fully adequate to redress constitutional violations
which have been adjudicated and must be rectified. But
here, the District Court did not suggest or hold that the
legislative policy of districting so as to preserve the
constituencies of congressional incumbents was unconstitutiona.
l or even undesirable. We repeat what we
have said in the context of state legislative reapportionment:
"The fact that district boundaries may have been
drawn in a way that minimizes the nurnbt:r of contests
bet,veen present incumbents does not in and of itself
establish invidiousness." Burns v. Richardson, 384 U. S.,
at 89 n. 16. Cf. Gaffney v. Cummings, ante, at 752;
Tayior v. McKeithen, 407 U.S. 191 (1972). And ,ve note
that appellees themselves submitted Plan B to the District
Court and defended it on the basis that it adhered
to state goals, as embodied in S. 13. 1, while eliminating
impermissible deviations.10
The judgment of the District Court invalidating
S. B. 1 is affirmed. The adoption of Plan C is, however,
reversed, and the case is remallded for further
proceedillgs consistent with this op1111011.
It is so ordered.
16 S. B. 1 is concedrd also to have sought aclhrrrnrf' to county
linc8. While Plan B admittedly rnts morr· eo11nty linc-s than dors
Plan C, it also arhic\·es lower deviations. Becausr both Plan B and
Plan C wrre req11ired to frac·ture more political boundaries than did
S. B. 1, il) order to achieve population equality among <fotricts,
appellant does not c·ontend that Plan B is unaccrptable brC'a11se of
more cutting of county lines.
798 OCTOBER TERM, 1972
MARSHALL, J., concurring in part 412 U.S.
MR. JusTICE PowELL, with whom THE CHIEF JusTICE
and MR. JusTICE REHNQUIST join, concurring.
Had I been a member of the Court when Kirkpatrick
v. Preisler, 394 U. S. 526 (1969), and Wells v. Rockefeller,
394 U. S. 542 (1969), were decided, I would not
have thought that the Constitution-a vital and living
charter after nearly two centuries because of the wise
flexibility of its key provisions-could be read to require
a rule of mathematical exactitude in legislative reapportionment.
Moreover, the dissenting opinions of Justices
Harlan* and WHITE and the concurring opinion of
Justice Fortas in those cases demonstrated well that the
exactitude required by the majority displayed a serious
misunderstanding of the practicalities of the legislative
and reapportioning processes. Nothing has occurred
since Kirkpatrick and Wells to reflect adversely on the
soundness, as I view it, of the dissenting perceptions. Indeed,
the Court's recent opinions in Mahan v. Howell, 410
U. S. 315 ( 1973), Gaffney v. Cummings, ante, p. 735, and
White v. Regester, ante, p. 755, strengthen the case against
attempting to hold any reapportionment scheme-state or
congressional-to slide-rule precision. These more recent
cases have allowed modest variations from theoretical
"exactitude" in recognition of the impracticality
of applying the Kirkpatrick rule as well as in deference
to legitimate state interests.
However all of this may be, Kirkpatrick is virtually
indistinguishable from this case, and unless and until the
Court decides to reconsider that decision, I will follow it.
Accordingly, I join the Court's opinion.
MR. JusTICE MARSHALL, concurring in part.
While I join Part I of the Court's opinion, I can agree
with Part II wherein the Court reverses the District
*MR. JUSTICE STEWART joined Mr. Justice Harlan's opinion.
WHITE v. WEISER 799
783 MARSHALL, J ., concurring in part
Court's selection of Plan C over Plan B only insofar as
that determination rests upon the fact that Plan B comes
closer than Plan C to achieving the goal of "precise
mathematical equality," see Kirkpatrick v. Preu;ler, 394
U.S. 526, 530-531 (1969). See also Wells v. Rockefeller,
394 U. S. 542 (1969). Whatever the merits of the view
that a legislature's reapportionment plan will not be
struck down merely because "district boundaries may
have been drawn in a way that minimizes the number of
contests between present incumbents," Burns v. Richardson,
384 U. S. 73, 89 n. 16 ( 1966), it is entirely another
matter to suggest that a federal district court which has
determined that a particular reapportionment plan fails to
comport with the constitutional requirement of "one man,
one vote" must, in drafting and adopting its own remedial
plan, give consideration to the apparent desires of the
controlling state political powers. In my opinion, the
judicial remedial process in the reapportionment areaas
in any area-should be a fastidiously neutral and objective
one, free of all political considerations and guided
only by the controlling constitutional principle of strict
accuracy in representative apportionment. Here the District
Court gave ample recognition to the legislature's
"primary responsibility"* in the area of apportionment
when it added that its redistricting order was "without
prejudice to the legislative and executive branches of the
State of Texas to proceed with the consideration and
adoption of any other constitutionally permissible plan of
congressional redistricting at a called or regular session of
the Legislature of the State of Texas." Nevertheless,
because the District Court failed to adhere strictly to the
principle of mathematical precision in selecting between
Plan B and Plan C, its choice of Plan C must be reversed.
*See, e. (!., Maryland Committee for Fair Representation v. 'l'awes,
377 U.S. 656,676 (1964); Ely v. Klahr, 403 U.S. 108, 114 (1971);
Burns v. Richardson, 384 U. S. 73, 84-85 (1966).
800 OCTOBER TER1"1, 1972
Syllabus 412 U.S.
ATCHISON, TOPEKA & SANTA FE RAILWAY CO.
ET AL. v. \VICHITA BOARD OF TRADE ET AL.
APPEAL FROM THE l'NITED STATES DISTRICT COl'RT FOR
THE DISTRICT OF KANSAS
No. 72-214. Argued February 28, 197:3-Decided .June 18, 1973-x•
The Interstate Commerce Commission (ICC), after hearings, approved
imposition by aPiiell:rnt railroads of srparate ('barges for
inspection of grain while in transit, a servirf' that had prf'viously
been pro\·itlcd under the line-haul rates. Appellf'es thert'upon
brought this action in District Court contesting the validity of
the ICC order. That rourt found that the ICC had not adequately
jn~lifird dPparture from its longstanding rule that such
SPpa.rate charges are unlawful unless the carriers can sati~fy the
burdPu that rests upon them of proving that their line-haul rates
are insuffil'irut to cover the total trnn.,portation service including
the portion thereof for which separate charges are proposed. The
court ordered suspemion of the in-transit charges unlcs~ otherwise
ordPred by the court and n'manded the case to the ICC. Held:
The aetion of the District Court is affirmed as to the remand to
the ICC aml is reversed as lo the injunction susrwnding the proposed
charges. J'p. 806-820; 828-829.
352 F. Supp. :~G.5, affirmed in part and reversed in part.
l\fa. Jusnm ~IAHSHALL, in an opinion joined by THE CHIEF
JUSTICE, i\lrr. JUSTICE STEWART, and 1fa. JUSTICE BLACKMUN,
concluded that:
1. Thi' ICC, which justified its departure from its prior cases
on the !,!;l'Oll!ld that the many rates involved rendered the previous
requirement impractical and the new charges when added
to the line-haul ralf.'S would not ex('ccd the ICC-prescribed maximum
rate level, has not stated its reasons with sufficient clarity
to facilitate propt•r judicial review of its approval of the in-transit
inspection clwrges. Pp. 806- 817.
2. Equitable considrrations, including the doctrine of prim:iry
jurisdi('tion as applied to the facts of this case, required that the
District Court refrain from expressing a view upon what it
·•Together with No. 72-433, Interstate Commerce Commission v.
Wichita Board of Trade et al., also on appeal from the same court.
ATCHISO::-l", T. & S. F. R. CO. v. \VICHITA BD. OF TRADE 801
800 Syllabus
brlicHd was permitted hy na1 ional t rnnsportation policy before
the ICC on rem:rnd C'011ld babnrP tlw <'onflicting interests of
shippers, railroad;. prod11eers, and consumc·rs in the proposed
rate Phanges, cf. Arrow Transportation Co. v. Southern R. Co.,
372 U. S. fi58; hence, it was improper for tht' District Court to
enjoin implemrnt:ition of the propo~cd m'w C'harge~. Pp. 1'117-82,5.
:'.\In. ,h:-snc-E Douc;1.,1S concurrl'd in the affirmance of the remand
to the ICC .
.'.\In. JUSTICE WHITE, joined by :\1R . .TusTJct: 13nENKAK and
l\1R . .TusTICE REHNQUIST, concurring in the reversal of the injunction,
concluded that only the ICC was grantrd the statutory
authority to su~pcnd new freight rntrs for seven months and the
District Court has no powrr to rxteud that period. Pp. 828-829.
MARSHALL, J., anno\lllCC'd the Court's judgment and delivered an
opinion, in whie!t Bvma;H, C. J., and STEWART and BLACKMUK, JJ.,
joined. DOUGLAS, J., filed an opiniou 1·onrurring m the affirmame
of thr: r<'mand to the ICC aud di~~('nting from the revrr~al of the
decree authorizing the injunrtion, post, p. 826. WRITE, J., filed an
opinion concurring in the rc-vcr~al of the inj11nction and dissenting
from the affirmancc of the remand to the ICC, in which BRENNAN and
Rt;IINQt;IST, ,J,1., joinc>cl, post, p. 828. Powi,;LL, .T., took no part in the
consideration or decision of the cases.
Earl E. Pollock argued the cause for appella11ts i11 No.
72-214. With him on the briefs were William F. Cottrell
and Christopher A. Mills. Betty Jo Christian argued the
cause for appellant in No. 72-433. Vfith her on the briefs
were Pritz R. Kahn and Hanford O'Hara.
Daniel J. Sweeney argued the cause for ·wichita Boar<l
of Trade et al., appellces in both cases. \Vith him ou the
brief was Harold E. Spencer. William A. Imhof argued
the cause for the Secretary of Agriculture. \Vith him on
the brief were John A. Knebel, Harold Af. Carter, and
Kenneth H. Vail.
Solicitor General Griswold, Assi.stant Attorney General
Kauper, Keith A. Jones, and Howard E. Shapiro filed a
memorandum for the United States.
802 OCTOBER TERM, 1972
Opinion of MARSHALL, J. 412 U.S.
MR. JUSTICE MARSHALL announced the judgment of
the Court, and an opinion in which THE CHIEF JUSTICE,
MR. JUSTICE STEWART, and MR. JusTICE BLACKMUN join.
We noted probable jurisdiction in these cases to resolve
two important questions relating to the proper role
of courts in reviewing approval by the Interstate Commerce
Commission of proposed rate increases by railroads.
409 U. S. 1005 (1972). First, under what circumstances
may a reviewing court find that the Commission has
failed adequately to explain its apparent departure from
settled Commission precedent? Because the problem of
determining what policies an agency is following, as a
prelude to determining whether the agency is acting in
accordance with Congress' will, is a recurring one, this
issue raises general problems of judicial review of agency
action. The second question in these cases is a more limited
one: in order to enjoin a proposed rate increase after
a final order by the Interstate Commerce Commission,
what sort of error must a District Court find in the proceedings
of the Commission? We hold that in these cases
the Commission did not explain its apparent departure
from precedent in a manner sufficient to permit judicial
review of its policies, but that, nevertheless, that kind
of error does not justify the District Court in entering
an injunction against imposition of the rates pending
review of the Commission's action on remand. We
therefore vacate the judgment of the District Court and
remand for the entry of a proper order.1
1 We have previously stayed the judgment of the District Court
on condition that appellant railroads keep accounts of the amounts
received from the in-transit charges. 409 U. S. 801 (1972). We
hereby direct the District Court to enter an order, consistent with
this opinion, regarding the disposition of those amounts.
ATCHISON, T. & S. F. R. CO. v. WICHITA BD. OF TRADE 803
800 Opinion of MARSHALL, J.
I
In these cases, the railroads proposed to establish a
separate charge for inspection of grain while in transit.2
In order to inspect the grain, the railroad cars loaded
with it are stopped and placed on track facilities. A
sample of the grain is taken, and the official grade is
determined. Once the grade is known and the commercial
value of the grain established, the shipper orders
the car to proceed to the appropriate market. In-transit
inspections have substantial advantages to shippers over
inspection at the destination. If the grain were to be
found to be of a different grade than expected only after
arrival at the destination, sending it to another market
might be quite expensive. The advantages of in-transit
inspections to purchasers, instead of inspection at
the source that might satisfy shippers, are less marked
but are nonetheless significant. The grain might deteriorate
while in transit, thus leaving the purchaser with
grain of a lower quality than he expected. And the
possibility of bias of the inspector is greater if the inspection
is made at the source.
The Commission found that "the orderly marketing
of grain under present practices requires that a substantial
portion of the commodity moving in commercial
2 Such a charge is already made for the first in-transit inspection
in the eastern territory. The proposed rates would increase that
charge from $7.42 to $14.33. There would be a slight increase in
the currently effective charge for the second and subsequent inspections.
A large majority of the number of in-transit inspections occur
in the western territory, where most of this country's grain is
produced and where no separate charge is now made for the first
in-transit inspection. Only a .few cars are stopped for more than
one inspection. Thus, for convenience of exposition, we treat this
litigation as involving a proposal for a separate new charge; that is
the real effect of the railroads' proposal in most instances.
804 OCTOBER TERM, 1972
Opinion of MARSHALL, J. 412 u. s.
channels must be subjected to some form of sampling
and inspection to determine grade or quality." 339
I. C. C. 364, 385 (1971).3 However, it also found that
this sampling need not take place while the grain is in
transit. The practice of in-transit inspections developed
when federal law required inspections for the purpose
of grading. 39 Stat. 483. But the diversion of grain
from railroads to motor trucks made it difficult to
enforce the inspection requirements. When trucks are
used, in-transit inspections are not generally made.
Thus, in order to simplify the movement of grain, Congress
abolished the requirement of inspections. Pub. L.
90-487, 82 Stat. 761. In addition, the convenience
of sampling at the source of the grain has increased
with the widening reliance on low-cost mechanical samplers
installed at grain elevators. The Commission
therefore concluded that in-transit inspections were not
necessary for the orderly marketing of grain.
It also concluded that in-transit inspections resulted
in a substantial decrease in the number of freight cars
available for general use.4 Relying on a variety of studies
conducted by the railroads, the Commission found that
each inspection kept a freight car out of use for roughly
three days, and that the cumulative impact of the delays
due to in-transit inspection was to reduce the available
freight car fleet by several thousand cars.
Finally, the Commission considered whether the proposed
separate charge for each in-transit inspection fairly
reflected the cost to the railroad of such an inspection.
Again, it relied on quite detailed studies that established
3 The report of Division 2 of the Commission is found at 339
I. C. C. 364 (1971). The entire Commission "adopt[ed] and
affirm[ed] the findings and conclusions reached" in that report. 340
I. C. C. 69, 70 (1971).
• For a description of the car-utilization problem, see United States
v. Allegheny-Ludlum Steel Corp., 406 U. S. 742, 745-746 (1972).
ATCHISON, T. & S. F. R. CO. v. WICHITA BD. OF TRADE 805
800 Opinion of MARSHALL, J.
the cost of detaining a car, the cost of switching it on
and off the main line, and the clerical costs of conducting
inspections. The Commission concluded that the proposed
charges were "not excessive in amount ... on the
basis of the convincing evidence of record showing the
costs sustained by the railroads in performing the intransit
inspection service." 340 I. C. C., at 71- 72.
Shippers who had objected to the proposed new charges
before the Commission sought review of the Commission's
order, and a statutory three-judge District Court was convened.
The District Court found that these conclusions
were supported by substantial evidence, and they are not
challenged here. But the District Court held that the
Commission had not adequately justified its failure to follow
"its long established rule that it will not allow a separate
charge for an accessorial service previously performed
as part of the line-haul rates without substantial evidence
that such an additional charge is justified measured
against the overall services rendered and the overall reasonableness
of the increased line-haul rate resulting
therefrom." 352 F. Supp. 365, 368. The Commission,
although it analyzed the cost of each in-transit inspection,
had made no attempt to consider the reasonableness of
continuing the existing line-haul rate, which included
some charge for in-transit inspections. Instead, the
Commission had attempted to distinguish this case from
prior cases in which the rule was invoked, but the District
Court, relying on Secretary of Agriculture v. United
States, 347 U.S. 645 (1954), was "not convinced that the
instant proceeding can be 'distinguished' as the Commission
has indicated." 352 F. Supp., at 369.
Although the Commission must be given some leeway
to re-examine and reinterpret its prior holdings, it is not
sufficiently clear from its opinion that it has done so in
this case. A reviewing court must be able to discern
in the Commission's actions the policy it is now pur806
OCTOBER TERM, 1972
Opinion of MARSHALL, J. 412 u. s.
suing, so that it may complete the task of judicial review-
in this regard, to determine whether the Commission's
policies are consistent with its mandate from
Congress. Since we cannot tell from the Commission's
opinions what those policies are, we therefore agree with
the District Court that the Commission's order finding
the rates just and reasonable cannot be sustained.
II
Judicial review of decisions by the Interstate Commerce
Commission in rate cases necessarily has a limited
scope. Such decisions "are not to be disturbed by the
courts except upon a showing that they are unsupported
by evidence, were made without a hearing, exceed constitutional
limits, or for some other reason amount to
an abuse of power." Manufacturers R. Co. v. United
States, 246 U. S. 457, 481 (1918).5 As this Court has
observed, "The process of rate making is essentially
empiric. The stuff of the process is fluid and changing--
the resultant of factors that must be valued as well as
weighed. Congress has therefore delegated the enforcement
of transportation policy to a permanent expert body
and has charged it with the duty of being responsive to
the dynamic character of transportation problems."
Board of Trade of Kansas City v. United States, 314 U.S.
534, 546 (1942).
The delegation to the Commission is not, of course,
unbounded, and it is the duty of a reviewing court to
determine whether the course followed by the Commission
is consistent with its mandate from Congress. See
ICC v. Inland Waterways Corp., 319 U. S. 671, 691
(1943); Burlington Truck Lines, Inc. v. United States,
371 U. S. 156, 167-169 (1962). Cf. NLRB v. Wyman-
Gordon Co., 394 U.S. 759, 767 (1969) (opinion of Fortas,
5 See also 5 U. S. C. § 706 (2).
ATCHISON, T. & S. F. R. CO. v. WICHITA BD. OF TRADE 807
800 Opinion of ?vfA1tSHALL, .T.
J.). But a simple examination of the order being reviewed
is frequently insufficient to reveal the policies that the
Commission is pursuing. Thus, this Court has relied Oll
the "simplP but fundamental rule of administrative law,''
SEC v. Chenery Corp., 3;32 U.S. 194, 19fi (H)4i), that thP
agency must set forth clearly the grounds on which it
acted. For "[w]e must know what a decision means before
the duty becomes ours to say whether it is right or
wrong." Fnited States v. Chicago, JJ., St. P. & P.R. Co.,
294 U.S. 499, 511 (1935). Sec also Phelps Dodge Corp. v.
1\'LRB, 313 r. S. 177, 197 (1941); SEC v. C'henery Corp.,
318 U. S. 80. 94 ( 1943). And we must rely on the
rationale adopted by the agency if ·we arc to guarantee
the integrity of the administrative process. Id., at 88.
Cf. 1YLRB v. Jfetropolitan Life Ins. Co., 380 1T. S. 438,
443-444 ( HJG5). Only in that way may we "guard
against the danger of sliding unconsciously from the narrow
confines of law into the more spacious domain of
policy." Phelps Dodge Corp. v. XLRB, supra, at 194.
An agency "may articulate the basis of its order by
reference to other de<'isiolls." XLRB v. 1lirtrovolitan Life
Ins. C'o., supra, at 443 n. 6. For "[a]djudicatcd casrs
may and do, of course, serve as vehicles for the
formulatioll of agency policiPs. ,vhic-h are applied and
announced tlwreill. SeP II. Friendly, The Federal Administrative
Agencies :36-52 (l 9G2). They generally provide
a guide to action that the age11cy may be expected
to take in future cases. Subject to the qualified role of
stare decisis in the administrative process, they may
serve as precedents." XLRB v. Wyman-Gordon Co.,
supra, at 7H5- 766 (opinion of Fortas, .J.). This is
essentially a corollary of the general rule requiring that
the agency explain the policies underlying its action.
A settled course of behavior embodios the agency's informed
judgment that, by pursuing that course, it will
carry out the policies committed to it by Congress.
808 OCTOBER TERM, 1972
Opinion of MARSHALL, J. 412 u. s.
There is, then, at least a presumption that those policies
will be carried out best if the settled rule is adhered to.
From this presumption flows the agency's duty to explain
its departure from prior norms. Secretary of Agriculture
v. United States, supra, at 653. The agency may
flatly repudiate those norms, deciding, for example,
that changed circumstances mean that they are no longer
required in order to effectuate congressional policy. Or
it may narrow the zone in which some rule will be applied,
because it appears that a more discriminating invocation
of the rule will best serve congressional policy.
Or it may find that, although the rule in general serves
useful purposes, peculiarities of the case before it suggest
that the rule not be applied in that case. Whatever
the ground for the departure from prior norms, however,
it must be clearly set forth so that the reviewing court
may understand the basis of the agency's action and so
may judge the consistency of that action with the
agency's mandate.
A further complication arises when, as here, the
agency distinguishes earlier cases in which it invoked
the rule. An initial step, and often the only one
clearly taken, is to specify factual differences between
the cases. Those factual differences serve to distinguish
the cases only when some legislative policy makes the
differences relevant to determining the proper scope of
the prior rule. It is all too easy for a court to judge the
adequacy of an asserted distinction in light of the policies
the court, rather than the agency, seeks to implement;
that is, after all, what an appellate court does with respect
to courts of the first instance. Yet when an agency's
distinction of its prior cases is found inadequate, the
reviewing court may inadvertently adopt the stance it
ordinarily takes with respect to other courts, and thereby
may invade "the domain which Congress has set aside
exclusively for the administrative agency," SEC v. Chen- 1
I I
ATCHISON, T. & S. F. R. CO. v. WICHITA BD. OF TRADE 809
800 Opinion of MAHSHALL, J.
ery Corp., supra, at 196, that is, the choice of particular
actions to carry out the broad policies stated
by Congress. Instead, it is enough to satisfy the requirements
of judicial oversight of administrative action if
the agency asserts distinctions that, when fairly and
sympathetically read in the context of the entire opinion
of the agency, reveal the policies it is pursuing. So long
as t.he policies can be discerned, the court may exercise
its proper function of determining whether the agency's
policies are consistent ,vith congressioual directives.
These princir)les gain content when applied to the present
cases. The District Court held that the Commission
had not repudiated or adequately distinguished its prior
cases establishing the rule that "it will not allow a separate
charg<' for an accessorial service previously performed
as part of the li11e-haul rates without substantial evidence
that such an additional charge is justified measured
against the overall services rendered and the overall reasonableucss
of the increased line-haul rate resulting thercfrom."
352 F. Supp., at 368. While this is a fair summary
of the Commission's established practicc,6 it conceals
n In Transit Charges, Southern Territory, 332 I. C. C. 664, 683
(1968), the Commission stated the rule in these tC'rms; "[TJhe
proposrd charge may not b<· cli,·orced from the line-lwul wtP, for
both, insofar as transit is eoncerned, are inextricabl~- in1C'rdrpc•rn!Pi:t.
[Citations omitted.] Whik it would seem preferable to ha\C' t hp
rnrious elC'meuts rntering iuto, and eono.:tituting, the whole analnrd,
if indeed the~· could be separntrd, the entirt' tran~portation senicr
rrudercd, induding transit, must be examined in rrl:ttion to thr
total rates and eharges assessed." The District Court re\'irwiug that
case rephrased t!w rule: "The question herr is what $ho11ld thP
carrier be paid for a sen·iC'C which it has been rendering, and ha~
been charging for, aud has brC'n paid for (one knowrtll not what)
whieh it proposes to separate and chargi' separatrly for. Both the
courts and the Commission ha\'r rnnsistentl~- lwlcl tlwt what is a
.iust and reasonable rate for thr sen·ice to be separa1<'d and chargrd
for separately cannot be dc>tcrmined by examining only the t~·piral
810 OCTOBER TERM, 1972
Opinion of MARSHALL, J. 412 u. s.
the apparent purpose of the rule, to protect two distinct
classes: shippers who will continue to utilize the accessorial
service-in this case, those who will still have their
grain inspected while in transit-and shippers who will
not. To decide whether the Commission has adequately
explained its failure to follow that rule, we must consider
each class in turn, for the Commission may have made
clear why it need not protect one class by invoking the
rule but it may nonetheless have failed to say why it
need not protect the other class.
In Unloading Lumber to New York Harbor, 256 I. C. C.
463 (1943), the Commission dealt with a proposal to
charge separately for unloading, a service that was inextricably
bound up with the line-haul service. Cf. Secretary
of Agriculture v. United States, supra, at 648-
649. The Commission said, "It follows that respondents
may not now segregate a component of that [line-haul]
service, making a separate charge therefor, without an
questions of cost, etc., with respect to the separate service. On the
contrary, the typical questions must be directed to the overall or
combined picture so that one may conclude (a) that the rate for
the separated service, looked at by itself in the light of the applicable
questions, is just and reasonable; and (b) that the remaining
rate for the services, sans the separated service, is not rendered
unjust or unreasonable." Cincinnati, N. 0. & T. P. R. Co. v. United
States, Civil Action No. 6992 (SD Ohio, Jan. 12, 1970), aff'd,
400 U. S. 932 (1970). The District Court continued, somewhat
more obscurely: "Whether the examination is in terms of
'what portion of the line-haul rate represented the rate for the
service to be separated,' or whether the search in terminology is for
the answer to this question: Does the new aggregate rate, composed
of line-haul plus transit rates represent a just and reasonable rate
for all of the services (the aggregate of the severed and the nonsevered)-
the principle is the same." And in Secretary of Agriculture
v. United States, 347 U.S. 645,654 (1954), this Court referred
t.o it as "the prevailing rule ... that a service necessarily encompassed
by the line-haul rate cannot be separately restated without
examining the sufficiency of the line-haul rate to cover it."
ATCHISON", T. & S. F. R. CO. v. "WICHITA BD. OF TRADE 811
800 Opinion of ]\fanSIIALL, J.
adequate showing that the aggregate charge for the
through service is reasonable." 256 I. C. C., at 468. The
explicit purpose of the rulf' in this situation is to guarantee
that shippers receiving the same service that they
had previously rc<'eivecl do not pay an unreasonable
amount. See also Duluth Dockage Absorption, 44
I. C. C. :300 ( 1917); Terminal Charges at Pacific Coast
Ports, 255 I. C. C. 673, 682 (1D43). The rule, in this
regard, is that the railroads must demonstrate both
that the proposed charge is reasonable in light of the
costs of the separate service. alld that the total charge
for line haul plus the separate service is reasonable.
The Commission justified its departure from its prior
cases by giving two rrasons that relate to this aspect of
the rule. First, it noted that "[t]hc line-haul rates applicable
on the grain to, from, and through I theJ inspection
points number in the thousands and, because of
the complexities of the grain rate structure, vary to a
large degree." Thus, applying the general rule "effectively
precludes respondents from ever establishing a separate
chargP for the accessorial first stop for inspection
regardless of the need for such a charge." Second, the
Commis~ion said that "the line-haul rate applicable to
any movement of grain ... when coupled with the proposed
chargc is less than the maximum reasonable level
determined by this Commission. In no instance will
the combined rate and char~e exrccd the maximum level
prescribed in Grain and Grain Products[, 205 I. C. C. 301
(Hl34) and 215 I. C. C. S:3 (19:-36)]." 339 I. C. C., at
386-887.
The maxim um ratPs prescribed in Chain and Grain
Products have been subjected to a large number of general
rate increases.' See, e. (!., Ex parte 1Vos. 265 and
; Cnrrrutly Pff('cti,·e rat('S arr. on almost cwry route, lower than
thr rates permitted b~· th(• grncral maximum. Sec ;~.rn I. C. C., at
il. Often this results from competition from other modes of trans812
OCTOBER TERM, 1972
Opinion of MARSHALL, J. 412 U.S.
267, Increased Freight Rates, 1970 and 1971, 339 I. C. C.
125 (1971). In those proceedings, the Commission's
focus is on the general revenue needs of the railroads.
Across-the-board percentage increases are permitted
without detailed examination of individual rates. As a
result, there may be specific routes on which the maximum
is in fact unreasonable, because, for example, the
costs of operating those routes have not increased as
rapidly as the costs elsewhere. Thus, the Commission
has held that its approval of a general increase "does
not have the effect of approving any particular increased
rate as not being in excess of a maximum reasonable
rate." Coal from Illinois to Alton and East St. Louis,
274 I. C. C. 637, 670 (1949). See also Tennessee Produce
& Chemical Corp. v. Alabama G. S. R. Co., 277 I. C. C.
207 (1950); Brimstone R. Co. v. United States, 276
U.S. 104 (1928). However, in other contexts, the Commission
has treated the prescribed rates as modified by
general increases as "the best evidence of the reasonableness
of corresponding rates on a ... date" after the
general increase. Agsco Chemicals, Inc. v. Alabama
G. S. R. Co., 314 I. C. C. 725, 733 (1961). Cf. Public
Service Comm'n of North Dakota v. Great Northern R.
Co., 340 I. C. C. 739, 750 (1972).
The Commission thus has not determined that a rate
which does not exceed the current general maximum
is reasonable. A shipper can challenge any such rate
as unreasonable and, if he succeeds, may recover reparations.
In addition, the Commission may prescribe a
rate to be charged in the future. 49 U. S. C. §§ 8, 9,
13 (1), 15(1); ICC v. Inland Waterways Corp., 319
U. S. 671, 687 (1943). In such proceedings, the shipper
must show that the rate charged was unreasonable. Cf.
port which forces rates below what the railroads would like to
charge.
ATCHISON, T. & S. F. R. CO. v. WICHITA ED. OF TRADE 813
800 Opinion of MARSHALL, J.
Louisville & N. R. Co. v. United States, 238 U. S. 1
(1915); Shaw Warehouse Co. v. Southern R. Co., 288
F. 2d 759 (CA5 1961).8 In contrast, when a proposed
rate increase is challenged by a shipper before it goes
into effect, "the burden of proof shall be upon the carrier
to show that the proposed changed rate ... is just
and reasonable." 49 U. S. C. § 15 (7) .9
The Commission in this litigation ref erred to the burden
that applying the rule would place on the railroads. It
rather clearly intended by this to suggest that the importance
of implementing the new charges and so of
increasing the supply of available freight cars justified
some modification of its usual allocation of the burden of
going forward. Instead of requiring the railroads to
produce substantial evidence that the total charges were
reasonable, it would leave that determination to later
proceedings in which a shipper seeking reparations might
point to particular individual charges as unreasonable.
If this were all that was at stake, the Commission
would have adequately identified the concerns behind
8 MR . .TusTICE WHITE argues that, if a rate at the level of the
general maximum is reasonable, and if the separate charge is reasonable,
then surely a line-haul rate that is equal to the general maximum
less the separate charge is reasonable. The flaw in his argument
is that the Commission ha.s never determined that rates at the
level of the current general maximum are reasonable. That is, in
the example suggested by l\fR. JUSTICE WHITE, the Commission has
not determined what he says that it has "previously found-that 120
is a reasonable charge for both services." Without this premise, his
argument fails.
0 If the Commission finds that the proposed rates are unreasonable,
rather than that the railroads failed to carry their burden of proof,
that finding might be conclusive in a subsequent proceeding. Cf.
Mitchell Coal & Coke Co. v. Pennsylvania R. Co., 230 U. S. 247,
258 (1913); ICC v. Atlantic Coast Line R. Co., 383 U. S. 576,
590-594 (1966). This does not, however, affect the burden placed
on carriers in the suspension proceedings.
814 OCTOBER TERM, 1972
Opinion of MARSHALL, J. 412 u. s.
its course-in light of the pressing need to increase the
freight car supply, it was not too much to require that
shippers carry the burden of going forward. Such an
assessment would surely permit a reviewing court to
determine whether the Commission's action was consistent
with congressional transportation policy. Unfortunately,
though, the change involved in making the
shippers claim that particular rates are unreasonable is
not all that is at stake. For in proceedings for reparations,
there is also a change in the burden of proof: the
shipper must produce substantial evidence that the rate
is unreasonable. This would appear to affect the likelihood
that the shipper will prevail. There is a zone in
which rates are reasonable, United States v. Chicago,
M., St. P. & P.R. Co., 294 U.S. 499, 506 (rn35), and it
would seem to be harder to establish that the proposed
rates fell outside that zone than that they fell within it.
Or so Congress believed, for it specified the allocation of
the burden of proof in suspension proceedings as part
of the cost to the carriers; in return for confining the
power to suspend rates to the Commission, and so of
eliminating the threat of long-drawn-out injunctive proceedings
in the courts, Congress made the carriers carry
a burden of proof that would otherwise not have been
theirs. Cf. Part III, infra.10
10 The argument urged in support of the Commission's order is,
in essence, that the separate charge approved by it was just like a
general rate increase because of the breadth of its a.pplication. However,
the Commission did not use the language characteristic of
general increase proceedings. See, e. g., Ex parte 259, Increased
Freight Rates, 1968, 332 I. C. C. 714, 715, 792 (1969). And, if
this were just like a general rate increase, serious questions would
arise about the jurisdiction of the District Court to review the Commission's
order. See Atlantic City Electric Co. v. United States, 306
F. Supp. 338 (SDNY 1969); Alabama Power Co. v. United States,
316 F. Supp. 337 (DC 1969), both aff'd by an equally divided court,
400 U. S. 73 {1970). Yet, although the parties have cited those
ATCHISON, T. & S. F. R. CO. v. '\\IICHITA BD. OF TRADE 815
800 Opinion of MARSHALL, .T.
The Commission did not suggest that its approval of
the proposed rates on the grounds it gave would alter
the usual practice in actions for reparations. Nor did
it say why the need for an increased supply of freight
cars justified a significant change in the burden of proof.
fo this sense, the Commission's action was, as the District
Court noted, "discriminatory per se."
It is even harder to understand from the Commission's
opinion why it departed from the rule in prior cases protecting
shippers who decide not to have in-transit inspections.
If the separate charges are to be effective in
alleviating the car-shortage problem, there must be a
substantial number of shippers who do not seek in-transit
inspections. Y ct according to the Commission, the
railroads need not show that the present line-haul rates
are reasonable charges for the services provided to
shippers who do not seek in-transit inspections. It
would appear, thus, that the Commission has approved
a policy that discriminates against what it hopes will
be a very large number of shippers; it seems to have
tried to justify its policy by citing reasons that affect
only a much smaller class.
Some of the shippers ,d10 previously sought in-transit
inspections will no longer do so. Others had the opportunity
for such inspcC'tions. Now the railroads propose
to eliminate some of the service previously provided,
yet charge the same rates. The Commission i11 its
prior cases bas required railroads proposing a similar
rC'cluction in service either to show that the rates then in
cases to us, see Brid for the Int<>rstate Commerce Commission
3fi; Brief for the Secretary of Agriculture 18 ; Brief for Wichita
Board of Trad<> 3:Z, !hey ban' not contended at any length that
the Di~triC't Court lacked jurisdiction owr this litigation. This suggests
that the parties, including the Commission, do not interpret the
Commission's opinion as resting on the similarity between these cases
a nd general rate increase cases.
816 OCTOBER TERM, 1972
Opinion of l\lrnsHALL, J. 412 U.S.
effect did not compensate them for the service, and thus
that the service was being provided at no charge, or to
reduce the existing rates. Sec. e. g., Transit Charges,
Southern Territory, 332 I. C. C. 664,683 (1968); Loading
of Less-Than-Carload Freight on Lighters in Norfolk, Va.,
Harbor, ~HI. C. C. 394 (1924); ICC v. Chicago, B. & Q.
R. Co., 186 U.S. 320 (1902).
Nothing the Commission said suggests any reason why
the railroads should not be required to follow the same
rule in this case. At 110 time have rates ever been established,
or found just and reasonable, when the railroads
did not include the service of in-transit inspection. Perhaps
the imperative need to increase the number of freight
cars available to all ::,hippers justifies some alteration
of the general rule. Yet the Commission, \vhcn dealing
·with shippers who will continue to have in-transit inspections,
invoked the fact that the new charges would
not raise rates above those permitted by the general maximum.
As to that class, the Commission apparently believed
that it could not simply refuse to follow preexisting
practices on the ground of exigency alone. The
Commission offered no reason to distinguish the larger
class from the smaller one, in that respect. But it might
be that rates for services including an in-transit inspection,
at the level of the general maximum, would be
reasonable while rates for services without such inspections
,vould be unreasonable at that level, or even below
it. Thus, the fact that the new charges will not exceed
the general maximum seems to have no bearing on the
question of the reasonableness of the rates that will continue
to be in force for now-reduced services."
Perhaps the current line-haul rates really do not include
a substantial amount attributable to the cost of
11 The Commission may have intended to leaw this question for
later proceedings. But. this course runs into the difficul ties notPd
supra, at 813-814.
ATCHISON, T. & R. F. R. C'O. v. \\'ICHITA BD. OF TRADE 817
00 Opinion of ::\l.\ll.SHALL, J.
providing in-transit inspections. But cf. Tr. 231-232,
258-266. Or perhaps the Commission has some reason
to reinterpret the prior cases suggesting that its rule
reflects a concern for rates that are "increased" simply
because of a reduction in services.
As in Secretary of Agriculture v. United States, 347
r. S., at c-i52, the Commission may have reasons
for "following a procedure fairly adapted to the unique
circumstanecs of this case.'' •~ But, as in that case,
it must make the:,:e rrasons k1mwn to a reviewing court
with sufficiPnt clarity to permit it to do its job. Even
giving the Commission's opillion the most sympathetic
reading that wt' find possible. ,w rannot discover in it
an expressrd reason for permitting the railroads to reduce
their sen·ices without showing that the rates they
propose to maintain are reasonable rates for the service
they intend to provide.
III
After holdi1ig that the matter must be remanded to
the Interstate Commerce Commission for further prnceeclings,
the DistriC't Court orderrd, "The proposed
rhargrs are smprmlcd and shall be ineffective until and
unless otherwise ordered by this Court." Ko rrasons for
such au order wf'n' given ; the District Court did not, for
example, specify the llature of the harm to the shippers
that would, pn'i::urnably, injure them irreparably. Xor
1 " On rrmand, thr Commission might e,plain more fully 1 he rour~r
it followed, or it might adopt a difforent course, for example, by
requiring the carriers to demonstrate the reasonablc>ness of the linehaul
rates for scrYiees provided without an in-trnns1t inspection on
a represn1tati\·e snmple of routes. Most of the prior cases in
which the Commiss ion inrnkecl the rule invoh·ed quite limitP<l
problems, oftt>n confined to a single route. 13ut cf. Transit Charges,
Southern Territory, ~32 I. C. C. 664 (1968). lf the Commission then
explaim'd why that procedure was r!IBponsin:! to the needs of the
particular case, the prerequisites of judicial reYiew would be satisfied.
818 OCTOBER TERM, 1972
Opinion of MARSHALL, J. 412 u. s.
did it explain the basis for its apparent belief that Arrow
Transportation Co. v. Southern R. Co., 372 U. S. 658
( 1963), was distinguishable.
It was error to enter such an injunction. The District
Court clearly had power to suspend the operation of the
Commission's order pending the final determination of
the shippers' suit. That power is given in terms by 28
U. S. C. § 2324: "The pendency of an action to enjoin,
set aside, annul, or suspend any order of the Interstate
Commerce Commission shall not of itself stay or suspend
the operation of the order, but the court may restrain
or suspend, in whole or in part, the operation of
the order pending the final hearing and determination of
the action." But an injunction forbidding the railroads
to implement a proposed change in rates is not,
strictly speaking, an injunction suspending the Commission's
order. In this case, for example, the Commission's
order stated that "the proposed new or increased
charges for in-transit inspection of grain at various points
in the United States are just and reasonable .... " 340
I. C. C., at 74. The only consequence of suspending that
order is that the railroads may not rely, in some subsequent
proceeding, on a Commission finding that the proposed
rates were just and reasonable. In an action for
reparations, for example, the railroads could not gain any
benefit from the purported Commission approval of the
increases.13 See Arizona Grocery v. Atchison, T. & S. F.
R. Co., 284 U. S. 370 (1932). See also 49 U. S. C. §§ 1 (5),
10 ( 1). The Commission's order also provided that the
proceeding be discontinued, and suspension of the order
requires the Commission to reopen its inquiry.
13 The Commission may, of course, a.pprove the rates on a theory
similar to that discussed in Part II of this opinion, justifying its
refusal to require a showing of reasonableness by the fact that that
question would be open in subsequent proceedings. A suspension of
the Commission order would then have almost no practical meaning.
ATCHISON, T. & S. F. R. CO. v. WICHITA BD. OF TRADE 819
800 Opinion of MARSHALL, J.
Carriers may put into effect any rate that the Commission
has not declared unreasonable. 49 U. S. C. §§ 6
(3), 15 (1). Suspension of the Commission's order thus
does not in itself preclude the carriers from implementing
a new rate. The power conferred on the District Court
by § 2324 does not in itself include a power to enjoin the
railroads from implementing a proposed new charge.
Rather, that power must be considered as at best ancillary
to the general equitable powers of the reviewing
court, and protective of its jurisdiction. See Arrow
Transportation Co. v. Southern R. Co., supra, at 671
n. 22; Order of Conductors v. Pitney, 326 U. S. 561, 567
(1946). Cf. Pittsburgh & W. Va. R. Co. v. United States,
281 U. S. 479, 488 (1930); 28 V. S. C. § 1651 (a). As
this Court noted in Scripps-Howard Radio, Inc. v. FCC,
316 U. S. 4 (1942), such a power must be inferred from
Congress' decision to permit judicial review of the agency
action. "If the administrative agency has committed
errors of law for the correction of which the legislature
has provided appropriate resort to the courts, such judicial
review would be an idle ceremony if the situation
were irreparably changed before the correction could be
made." Id., at 10.
Yet it would be surprising if that power could be exercised
to the extent that it might substantially interfere
with the function of the administrative agency. "The
existence of power in a reviewing court to stay the
enforcement of an administrative order does not mean,
of course, that its exercise should be without regard to
the division of function which the. legislature has made
between the administrative body and the court of review."
Ibid. Proper regard for that division of function requires
that we hold erroneous the District Court's decision
to enjoin not only the Commission's order finding
the proposed rates just and reasonable but also the implementation
of those rates.
820 OCTOBER TERM, 1972
Opinion of MARSHALL, J. 412 U.S.
In Arrow Transportation Co. v. Southern R. Co., supra,
this Court considered a similar problem. The Interstate
Commerce Commission has the power to suspend proposed
rate changes for seven months, while it proceeds
to consider the reasonableness of the proposal. "If the
proceeding has not been concluded and an order made
within the period of suspension, the proposed change of
rate ... shall go into effect at the end of such period."
49 U. S. C. § 15 (7). In Arrow, parties affected by proposed
reductions sought an injunction against the implementation
of the proposed reductions when, at the end of
the suspension period, the railroads announced that they
intended to put the new rates into effect. The Commission
had not determined that those rates were reasonable.
The Court concluded that Congress, by giving the
Commission the power to suspend rates, had intended
to preclude the courts from doing the same.
Here, of course, the Commission's proceeding has been
concluded, or at least so the Commission thought when
it entered its order. The terms of § 15 (7) do not specifically
govern this situation. Nor is there any other
provision in the relevant statutes depriving federal courts
of their general equitable power to preserve the status quo
to avoid irreparable harm pending review. Yet many
of the considerations, relied on in Arrow and influencing
this Court's definition of the proper relation between
the courts and the Interstate Commerce Commission,
must be drawn on to delineate guidelines for the exercise
of the ancillary power, in a proceeding to review a Commission
order, to enjoin a rate increase pending final determination
of the suit.
The most important of these considerations is the
group of policies that are encompassed by the term "primary
jurisdiction." National transportation policy reflects
many often-competing interests. Congress has established
an administrative agency that has developed
ATCHISON, T. & S. F. R. CO. v. WICHITA BD. OF TRADE 821
800 Opinion of MARSHALL, J.
a close understanding of the various interests and that
may draw upon its experience to illuminate, for the
courts, the play of those interests in a particular case.
Cf. Great Northern R. Co. v. Merchants Elevator Co.,
259 U.S. 285 (19-22); United States v. Western Pacific
R. Co., 352 U. S. 59 (1956). Ordinarily, then, a court
should refrain from expressing a preliminary view on
what national transportation policy permits, before the
ICC expresses its view. But when a court issues an
injunction pending final determination, one important
element of its judgment is its estimate of the probability
of ultimate success on the merits by the party challenging
the agency action. Virginia Petroleum Jobbers Assn.
v. FPC, 104 U.S. App. D. C. 106,110,259 F. 2d 921,925
(1958). Depending on the type of error the reviewing
court finds in the administrative proceedings, the issuance
of an injunction pending further administrative
action may indicate what the court believes is permitted
by national transportation policy, prior to an expression
by the Commission of its view. This is precisely what
the doctrine of primary jurisdiction is designed to avoid.
Cf. Order of Conductors v. Pitney, supra; Locomotive
Engineers v. M.-K.-T. R. Co., 363 U.S. 528, 533 (1960).
The fact that issuing an injunction may undercut the
policies served by the doctrine of primary jurisdiction is
therefore an important element to be considered when
a federal court contemplates such action.14
u Locomotive Engineers v. M.-K.-T. R. Co., 363 U. S. 528
(1960), shows that not all judicial injunctions infringe on an
agency's primary jurisdiction. There the Court noted that the
District Court's "examination of the nature of the dispute is
so unlike that which the [agency J will make of the merits of the
same dispute, and is for such a dissimilar purpose, that it could not
interfere with the later consideration of the grievance by the
[agency]." Id., at 534. Here, in contrast, the District Court must
consider whether the Commission is likely to find reasons for its
822 OCTOBER TERM, 1972
Opinion of MARSHALL, J. 412 u. s.
As we have indicated in Part II of this opinion, we
require the agency to justify its departure from its prior
decisions so that we may understand what policies it
is pursuing. If a reviewing court cannot discern those
policies, it may remand the case to the agency for clarification
and further justification of the departure from
precedent. But an injunction pending the completion
of those proceedings would be warranted only if the
reviewing court entertained substantial doubt about the
consistency of the Commission's action with its mandate
from Congress. Cf. Virginian R. Co. v. United States,
272 U. S. 658, 673 (1926).15 When a case is remanded
on the ground that the agency's policies are unclear, an
injunction ordinarily interferes with the primary jurisdiction
of the Commission.1
• Cf. Arrow Transportation
Co. v. Southern R. Co., 372 U. S., at 669-670.
action that are consistent with congressional policy. Not only is
such a question exceedingly complex, it is also just what the Commission
itself must decide before approving the proposed new
charges.
15 In some cases, the reviewing court might explicitly refrain from
considering the likelihood of success on the merits in deciding
whether or not to issue an injunction. Then, if the possibility of
irreparable damage to the party seeking review or to othn interests
is great enough, an injunction may perhaps be justified. See, e. g.,
Semmes Motors, Inc. v. Ford Motor Co., 429 F. 2d 1197, 1205-1206
(CA2 1970); Checker Motors Corp. v. Chrysler Corp., 405 F. 2d
319, 323 (CA2 1969). Herc, however, the District Court did not
clearly refuse to assess the likelihood of ultimate success and, as
indicated infra, the possibility of irreparable harm to the shippers
is quite small.
~• This analysis turns on the fact that the type of error in these
cases involves precisely a failure by the Commission to do the job committed
to it, the proper performance of which is a predicate of the
doctrine of primary jurisdiction. Where the error might be considered
purely procedural, for example where the Commission failed
to consider relevant evidence on grounds the reviewing court finds
inadequate, the issuance of an injunction might not interfere with
ATCHISON, T. & S. F. R. CO. v. WICHITA BD. OF TRADE 823
800 Opinion of MARSHALL, J.
In addition, the reviewing court must consider whether
irreparable harm will result if the injunction is not issued
and the party seeking it prevails on the merits. Order
of Conductors v. Pitney, supra. That too may interfere
with the agency's primary jurisdiction. We deal
here with a dispute between shippers and carriers. In
giving the Interstate Commerce Commission power to
suspend proposed rate increases, Congress allocated the
benefit and harm of a suspension. For a period of up
to seven months, the carriers may not collect the increases
if the Commission suspends them. The income
that they might have gained is lost to them forever.
Congress did provide protection to shippers for the period
after the rates go into effect. The Commission may
require the carriers to keep detailed accounts of the
income received as a result of the increase. If the intho
agency's primary jurisdiction quite so severely. Yet even there,
before issuing an injunction the reviewing court must consider
whether the Commission would have come to a different conclusion
had it considered the evidence. And that may sometimes impinge
on the sphere committed to the Commission for initial decision.
This Court has distinguished between blatantly lawless action
and mere procedural error in cases raising similar questions of the
power of courts to intervene in administrative action. See Oestereich
v. Selective Service Bd., 393 U. S. 233 (1968); Fein v. Selective
Service System, 405 U. S. 365 ( 1972).
Different considerations would come into play, too, when the reviewing
court finds some failure by the carriers in the suspension
proceeding, rather than a failure by the Commission to do its task.
A reviewing court might find, for example, that the Commission's
conclusion that the carriers had carried the burden of proof to
justify the increase was not supported by substantial evidence.
Although phrased as a finding of administrative error, this in fact
relates to the presentation of evidence by the carriers.
Finally, this litigation involves only claims under the Interstate
Commerce Act. Subsequent legislation might affect the relation
between court and agency and so the propriety of injunctive relief.
Whether it docs so must be determined by examining that legislation.
824 OCTOBER TERM, 1972
Opinion of MARSHALL, J. 412 U.S.
crease is ultimately found unjustified, the Commission
may order a refund. 49 U. S. C. § 15 (7). Even if the
Commission does not do so in a. suspension proceeding,
the shippers may recover reparations under some circumstances.
49 U. S. C. §§ 8, 9. Thus, it is often quite
unlikely that shippers will be irreparably damaged by the
implementation of a rate increase.11
There are, however, public interests at stake in this
litigation, as well as the private interests of the shippers
and carriers. The Commission found that inspection of
grain is required for the orderly marketing of grain. 339
I. C. C., at 385. Inspections will thus continue to be
made. But now, if the Commission ultimately approves
the new charges, there will be a separate charge for
them, either by the railroads under the new charges, or
by someone else engaged in marketing grain. This extra
cost must be absorbed by someone, perhaps by farmers,
perhaps by the ultimate consumers of grain. See Tr. 1299.
The impact of rates on various groups in this country is
surely relevant to deciding that the rates are consistent
with national transportation policy.
But the public interest is not a simple fact, easily determined
by courts. Here, for example, the interests
of farmers and consumers of grain must be balanced
against the interests of producers and consumers of all
sorts of other goods shipped by rail. For the premise of
the Commission's action in this case was that separate
charges for in-transit inspections would alleviate the
freight-car shortage. The shortage itself increases the
17 The interests of other carriers who might object to a proposed
rate change are somewhat different. They are not damaged, as the
shippers are, by out-of-pocket expenditures, and refunds or reparations
do not remedy the loss of business that they might suffer.
This factor would thus have less weight in suits by such carriers,
although the problem of interfering with primary jurisdiction must
still be considered.
ATCHISOK, T. & S. F. R. CO. v. WICHITA BD. OF TRADE 825
800 Opinion of nlARSHALL, J,
cost of transporting a ,vide range of products by rail.
Thus, the decision that must be made is whether the
car shortage has a more significant impact on the national
economy than does increased cost for grain products.
Congress has committed that derision to the Interstate
Commerce Commission in the first instance, and
the extent of harm to farmers and consumers of grai11
cannot be estimated without interfering ·with the primary
jurisclictioll of the Commission."
As this discussion shows, it is vny likely that a decision
to enjoiu rates pending reconsideration by the Commission
in order to clarify its policies ,Yill imply some view
by the District Comt about decisions committed to the
Commi:;:sion by the doctri1w of primary jurisdiction.
The District Court's power to e11joi1i rates, in order to
protect its jurisdiction to review C'omrnission orders,
must therefore be exercised with great care and after full
18 Althoup;h they are far k~s substantial than the problrms of
primary juri,diction and irreparable injmy, procedural problm1s
might also arise when a district court l'Oll~idern a requr,t for an
injunction like that i~~urd here. R eview of Commis~ion orders
is by a thn'r-judp;r distrirl l'0nrt. The United States is the
defPndant. 28 1'. S. C. §§ 2321, 2322. Railroads which appeared
before the Commission haw a right to int<-rwnc, 28 F . .-:. C. § 2:323,
but they need not do so. lf a railroad d1ose not to inte•n-('IH'. the
distriet court could not enjoin it from implementing the new
charge•. The plaintiff, could, of conrnf', ('Oinpel an unwilling r:1ilroad
to appear. Fed. Huie Civ. Proc. 19 (a). But, c\·en though
sen·il'e of process is nationwide, 28 U. S. C. § 2321, some• plailltiffs
mip;ht find it difficult to serve every railro:1d that did not apJH'ar
willingly. The prrsPnc·e before the rP\·icwing court of all illtcrr~ted
partiPs, or only some· of them, is therc·forc relernnt to th<' l'xcrri,;e
of the court's disrrction to enjoin a proposed rate inere:1sr. Like
the other faeton; discussed in this opiJJion, 1,his does not Psta blish
that tlw district ('Omt lacks power to Pnjoin the implementation of
proposed rnte inrrc·a~cs aftrr a final Commi~~ion order, but it is a
factor to be ('onsid(,rcd in determining whrther to exercisr cquit:ihle
discretion to iE~ue sueh an injunction.
826 OCTOBER TERM, 1972
Opinion of DOUGLAS, J. 412 u. s.
and detailed consideration of the problems set out above.
It will not do to enter such an injunction in the offhand
manner of the District Court. Cf. Virginian R.
Co. v. United States, 272 U. S. 658 (1926). Here the
DiF-trict Court could not consider the likelihood of success
on the merits or \\·here the public interest lies without
infringing on decisions committed by Congress to the
primary jurisdiction of the Interstate Commerce Commission,
and the possibility of harm to the shippers was
small. It was therefore improper to enter an injunction
against the implementation of the proposed new charges.
Here the Commission ordered the railroads to maintai11
records of the amounts collected as a result of
the new charge. It may be that this adequately protects
the shippers from irreparable damage, in light of
the availability of actions for reparations. The Commission
may determine on remand that some further steps
must be taken to protect the shippers. But in any event,
it is clear that the District Court should not have entered
the injunction it did. The action of the District Court
is affirmed as to the remand to the Commission and is
reversed as to the injunction suspending the proposed
charges.
So ordered.
MH. JusTrc~, PowELL took no part in the consideration
or decision of these cases.
MR. JUSTICE DOUGLAS, concurring in the affirmance
of the remand to the Commission and dissenting from the
reversal of the decree authorizing the injunction.
Though T concur in the affirmance of the remand to
the Interstate Commerce Commission, I dissent from the
reversal of the decree authorizing the injunction, since
in my viev.- the District Court was quite correct in
issuing its injunction. Arrow Transportation Co. v.
ATCHISON, T. & S. F. R. CO. v. WICHITA BD. OF TRADE 82i
800 Opinion of DOUGLAS, J.
Southern R. Co., 372 U. S. 658, is not relevant here,
for the reason that 49 U. S. C. § 15 (7) only purports
to control the suspension of rates up until
the time the Commission has rendered a decision.
After that decision has been made, the reviewing
court has, I believe, the pO\ver to enjoin the affected
rates. The new charges which the Commission would
impose would have an immediate impact upon the grainmarketing
system. It ·would affect the volume of business
of the grain merchants, it would affect the employment
of grain inspectors, and it would result in lower
prices being paid to the farmers. None of these incidences
can be remedied under the existing statutory
scheme, because none of these interests is enabled to
bring suit for a later rate refund. Hence, in my vicrnr,
the grain trade and the farmers need this interim protection
lest in inspection the marketing system suffer sever£>
attrition during the period of remand. The deciding
principle is that the District Court sits as a court of
equity, United States v. Morgan, 307 U. S. 183, 191, and
as a court of equity has, I believe, ample power to protect
the grain market nationally which v,rould otherwise
be without remedy u11der the existing statutory regime.
Jurisdiction is granted the District Court "to enforce,
enjoin, set aside, annul or suspend" any order of the
Interstate Commerce Commission. 28 U.S. C. § 1336 (a).
For years, the type of order here involved" ,vas not reviewable.
See Procter & Gamble Co. v. Gnited States,
225 U. S. 282. But that "negative" order concept
was abandoned in Rochester Tel. Corp. v. United
States, 307 U. S. 125, 145. The j)rovisions of 28
U. S. C. § 1336 (a), are an explicit grant of power to
*The order of Dh·ision 2 of the Commission provided t ha1 the
proceeding "be, and it is hereby, discontinu<'d." 339 I. C . C. 364,
401. The ord<·r of 1 he Commission en bane affirming is in 340 I. C. C.
69, i4.
828 OCTOBER TERM, 1972
Opinion of WHITE, J. 412 U.S.
provide injunctive relief. Under that Act the "governing
principle" is "that it is the duty of a court of equity
granting injunctive relief to do so upon conditions that
will protect all- including the public-whose interests
the injunction may affect." Inland Steel Co. v. United
States, 306 U. S. 153, 157. That power exists whether the
Commission's authority over rates is challenged under
49 U. S. C. § 15 ( 1) as being unjust or unreasonable or
under 49 U. S. C. § 15 (7) relating, as here, to "a new
individual or joint rate, fare, or charge." In all cases the
District Court by reason of 28 U. S. C. § 1336 (a) sits as
a court of equity.
11R. JUSTICE ·WHITE, with whom MR. JUSTICE BRENNAN
and MR. JUSTICE REHNQUIST join, concurring in the
reversal of the injunction and dissenting from the affirmance
of the remand to the Commission.
I dissent because the District Court erred both in
holding that the Commission had inadequately explained
the basis for its judgment and in suspending the new intransit
inspection tariff beyond the time the statute permits
new rates to be suspended without a finding that
they are unjust and unreasonable.
As to the latter, 49 U. S. C. § 15 (7) forbids the suspension
of nev.- freight rates for more than seven
months without the requisite finding of unreasonableness
by the Commission. Only the Commission may suspend
in the first instance; and if the agency refuses to do so,
the court is powerless itself to suspend. The Commission
may postpone effectiveness of nev.: rates for seven months,
but if it does, the statute commands that, absent the
appropriate order of the Commission ,vithin that
period, "the proposed change of rate ... shall go into
effect . . . ." To permit the District Court nevertheless
to extend this period seems to me to be flatly contrary
to the will of Congress. I therefore cannot
ATCHISON, T. & S. F. R. CO. v. WICHITA BD. OF TRADE 829
800 Opinion of WHITE, J.
agree that, although the District Court has no statutory
power to do so, it nevertheless retains sufficient
power to enjoin the rates as "ancillary to the
general equitable powers of the reviewing court, and
protective of its jurisdiction." Ante, at 819. As I see
it, the District Court contravened the precepts of Arrow
Transportation Co. v. Southern R. Co., 372 U. S. 658
(1963).
As for the remand to the Commission, there is somewhat
more to be said. The Commission found, and it
is not questioned by the District Court or by the majority
here, that in-transit inspection of grain is not an
essential part of transportation service but only ancillary
to it; that the premarketing inspection of grain, in transit
or otherwise, is no longer required by federal law; that
in-transit inspection of grain has been the regular practice
in Western territory, to some extent the practice in
Southern territory, but not in Eastern territory; that the
line-haul rates for grain in Western and Southern territories
established by the railroads or prescribed by the
Commission have provided one free in-transit inspection
stop, but a separate charge for that service is the practice
in Eastern territory; 1 and that, because of recent developments
in-transit inspection is no longer an essential service
1 The Commission noted:
"It is again emphasized that the major impact of the proposal
under consideration will be on the movement of grain in the western
district. Most inspections occur in this territory. There is presently
effertive a separate charge for this service in the East. A
substantial increase in those charges will result, however, if the
proposed charges are permitted to become effective. The number
of in-transit inspections in the South is limited and take place chiefly
at the ports on export grain tonnage. There is little, if any, opposition
to establishment of the charges in southern territory. Practically
all of the controversy is concerned with establishment of the
separate charge for the first inspection of grain within the western
district." 339 I. C. C. 364, 385.
830 OCTOBER TERJ\I, 1972
Opinion of ·wmTE, J. 412 U.S.
for the orderly marketing of grain in "\Vestern and Southern
territories. Furthermore, the unquestioned finding of
the Commission was that the principal motivation for
imposing a separate charge for in-transit grain inspection
was not to increase railroad revenues through collection
of the charge itself but to promote efficient utilization
of freight cars by discouraging the practice of in-transit
inspection which had proved extremely wasteful in terms
of car utilization. The Commission finding, also undisturbed,
was that the separately stated inspection fee
would discourage the practice of in-transit inspection,
would contribute to a more efficient utilization of freight
cars, and hence help relieve the unquestioned grain-car
shortage.
With these important preliminary findings and conclusions
behind it, the Commission examined in detail
the reasonableness of the separate charge being imposed
for in-transit inspection of grain. Its conclusion was
that the charge was reasonable, a judgment not overturned
either here or in the District Court. Finally,
thf' Commission noted that by the terms of the new
tariff itself, separate in-transit inspection charges could
not be collected where the combination of the new,
separate charge and the existing line-haul rate exceeded
the maximum reasonable level of grain rates established
in Docket 17,000, pt. 7, Grain and Grain Products, 205
I. C. C. 301 (1934); 215 I. C. C. 83 (1936), as raised by
subsequent general revenue increases. Docket 17,000,
pt. 7, Rate Structure Investigation, was a major national
effort, a comprehensive investigation of rates on agricultural
products, and resulted, among other things, in the
Commission's prescribing maximum reasonable freight
rate levels for movements of grain. Since that time, there
have been general rate increases for revenue purposes. in
tlw coursP of which the rates on grain and their structure
as required by the 1934 and 1936 determinations have
ATCHISON, T. & S. F. R. CO. v. WICHITA BD. OF TRADE 831
800 Opinion of WHITE, J.
been given special attention. See, for example, Increased
Freight Rates, 1967, 332 I. C. C. 280, 300 (1968).
Under the new tariffs now filed, as I have said, if
the applicable line-haul rate on the particular grain
movement involved is at the maximum reasonable level
theretofore prescribed by the Commission in previous
proceedings, no separate in-transit inspection charge is
imposed or allowable, nor may the combination of the
new charge and the existing line-haul rate collected by
the railroad exceed the maximum allowable rate as previously
determined. This is the key to understanding
that, in approving the separate inspection charge, the
Commission did not ignore its longstanding rule that
railroads may not impose separate charges for an ancillary
service previously furnished under a line-haul rate
unless both the reasonableness of the separate charge
and the line-haul rate are scrutinized. Transit Charges,
Southern Territory, 332 I. C. C. 664, 683~684 (1968),
is, for example a relatively recent restatement of the
rule.2 The Commission thought this rule not controlling
here because, in the first place, the magnitude of the task
of justifying each one of a countless number of line-haul
grain rates would, as a practical matter, prohibit the
imposition of a separate in-transit inspection charge and
so frustrate the important nonrevenue goal of discouraging
in-transit inspection and so improving car utilization.
But, more fundamentally, the Commission in any event
deemed the rule satisfied; for here the reasonableness of
2 The Commission's order was sustnine<l, on other grounds, in
Cincinnati, N. 0. & T. P. R. Co. v. United States, Civil Action No.
6692 (SD Ohio, Jan. 12, 1970), aff'd, 400 U.S. 932 (1970). The District
Court sustained the Commission on the basis that the proposed
increase in charge,, might well result in a substantial diversion of the
considerrd traffie, with a diminut ion, rather than an increase, in
revenues. In the pre~cnt c·aRe, thf' Commission noted: "Similar conclusions
are not warranted here."
832 OCTOBER TERM, 1972
Opinion of WHITE, J. 412 U.S.
the line-haul rate was sufficiently examined and ensured
by proof that the new charge was itself reasonable and
by prohibiting its collection if the total cost of the grain
movement-its line-haul charge plus the separate inspection
charge-exceeded the maximum reasonable rate
theretofore prescribed by the Commission, that is, the
maximum reasonable rate the Commission had thereto-
! ore 'f)T'escribed for both the transportation service and
the privilege of in-tramit inspection.
This app!oach seems straightforward and adequate.
Keeping in mind that Docket 17,000, Part 7, as was
customary in Western territory, prescribed rates for grain
movements permitting one in-transit inspection without
extra charge, let us assume, for example, that the maximum
rate prescribed by the Commission for a particular
grain movement with in-transit inspection privileges was
120. Assume further what is the recurring situation in
the case before us--that the railroad is charging less
than it may, say 100, for the grain movement with that
privilege. The railroad then publishes a tariff under
which the line-haul rate of 100 no longer entitles the
shipper to in-transit inspection, and a separate charge
of 20 is imposed on those who want that service. The
line-haul charge plus the separate in-transit inspection
charge does not exceed what the Commission has heretofore
ruled the railroad may collect for both the transportation
and the inspection service. This calculus seems
to me an adequate basis for concluding that the line-haul
rate of 100 is itself within the zone of reasonableness. If
a railroad may charge 120 for a grain movement with intransit
inspection provided, and the inspection stop is
proved reasonably worth 20, why should there also be
occasion for considering the reasonableness of 100 as a
line-haul rate and so proving again what the Commission
previously found-that 120 is a reasonable charge for
both services?
ATCHISON, T. & S. F. R. CO. v. WICHITA BD. OF TRADE 833
800 Opinion of Wm'l'E, J.
The District Court thought the Commission ignored
Secretary of Agriculture v. United States, 347 U. S. 645
( 1954), but I read that case far differently. There the
Court, although beiug of the opinion that the Commission
had not adequately explained why it was approving
a separate charge without examining the legality of the
line-haul rate, was careful to point out that the Commission
was not precluded "from following a procedure
fairly adapted to the unique circumstances of this case";
nor did the Court question "the Commission's power,
under appropriate findings, to approve such unloading
charges without pursuing one of these courses. In dealing
with technical and complex matters like these, the
Commission must necessarily have wide discretion in
formulating appropriate solutions." Id., at 652. That
case does not stand for the rule that a separate charge
for an ancillary service may in no circumstances be permitted
without new proof in that proceeding of the
reasonableness of the line-haul rate.
The prior decisions of the Commission relied upon by
the District Court establish clearly enough that. the Commission
must be satisfied with the reasonableness of the
line-haul rate as an exaction for the remaining services
before approving a separate charge for a service previously
covered by the line-haul rate. Transit Charges,
Southern Territory, supra; Terminal Charges at Pacific
Coast Ports, 255 I. C. C. 673 (1943); Reconsignment Case
No. 3, 53 I. C. C. 455 (1919); Loading of Less-Than-
Carload Freight on Lighters in Norfolk, Va., Harbor, 91
I. C. C. 394 ( 1924). In these cases, the carriers simply
failed to carry their burden of proof.
The District Court also cited for this proposition Grand
Forks Chamber of Commerce v. Great 1Vorthern R.
Co., 321 I. C. C. 356 ( 1963), but the Commission in
that case, see id., at 360---362, did precisely what it has
done in this one: it approved a separate in-transit in834
OCTOBER TERM, 1972
Opinion of WHITE, J. 412 u. s.
spection charge in the case of so-called Group 3 rates
where the line-haul rate and the new charge together
were less than so-called Group 1 rates prescribed in Grain
and Grain Products, 205 I. C. C. 301 (1934); 215 I. C. C.
83 (1936). See also Public Service Comm'n of North
Dakota v. Great Northern R. Co., 340 I. C. C. 739 ( 1972) ;
Alabama State Docks Dept. v. Alabama, T. & N. R. Co.,
321 I. C. C. 347 (1963); Agsco Chemicals, Inc. v. Alabama
G. S. R. Co., 314 I. C. C. 725 (1961).
Neither do I understand why the majority is comforted
by the opinion in Cincinnati N. 0. & T. P.R. Co.
v. United States, Civil Action No. 6992 (SD Ohio, Jan. 12,
1970), in which the District Court affirmed, but on very
limited grounds (grounds that would save the cases before
us now), the Commission's disallowance of a separate
transit charge for cotton movements but disapproved the
stringent standard by which the Commission required
the railroads to prove the reasonableness of the resulting
line-haul rate. The District Court restated the prevailing
rubric:
"The question here is what should the carrier be
paid for a service which it has been rendering, and
has been charging for, and has been paid for ( one
knoweth not what) which it proposes to separate
and charge separately for. Both the courts and the
Commission have consistently held that what is a
just and reasonable rate for the service to be separated
and charged for separately cannot be determined
by examining only the typical questions of
cost, etc., with respect to the separate service. On
the contrary, the typical questions must be directed
to the overall or combined picture so that one may
conclude (a) that the rate for the separated service,
looked at by itself in the light of the applicable
questions, is just and reasonable; and (b) that the
ATCHISON, T. & S. F. R. CO. v. WICHITA BD. OF TRADE 835
800 Opinion of WHITE, J.
reml.',ining rate for the services, sans the separated
service, is not rendered unjust or unreasonable."
The District Court continued:
"Whether the examination is in terms of 'what
portion of the line-haul rate represented the rate
for the service to be separated,' or whether the
search in terminology is for the answer to this
question: Does the new aggregate rate, composed
of line-haul plus transit rates represent a just and
reasonable rate for all of the services ( the aggregate
of the severed and the nonsevered)-the principle
is the same." (Emphasis added.)
A few paragraphs later, the court repeated the same
alternate approach. This Court affirmed the District
Court summarily. 400 U.S. 932 (1970). In the litigation
now before us the total of the line-haul rate and the
separate in-transit charge will in no case exceed what
the Commission has heretofore found to be a reasonable
charge for the aggregate service.
The maximum permissible rates for grain movements
with in-transit inspection privileges were established
some years ago, it is true, but they have been subject
to repeated examination upon the occasions of general
rate increases and, as this litigation itself shows, they are
far from dead letters from the standpoint of either the
railroads or the Commission. They remain the foundation
of the Commission's opinion as to what just and reasonable
grain rates are with in-transit privileges furnished
by the railroad. I see no reason for now disagreeing
with the Commission's judgment that the reasonableness
of a line-haul rate lower than the maximum allowable
has been sufficiently re-examined to permit imposition
of a separate in-transit inspection charge, in itself found
reasonable, when it is also determined that the existing
836 OCTOBER TERM, 1972
Opinion of WHITE, J. 412 u. s.
line-haul rate and the new inspection charge together
total less than the maximum Commission-prescribed rate
for the two services combined. Surely this presents an
inadequate occasion or context in which to frustrate what
the Commission found to be a promising effort to solve
a critical problem-the freight car shortage-by seeking
to deter a wasteful practice not indispensable or even,
in the Commission's view, unusually important to the
orderly marketing of grain under modern conditions.
For these reasons, I respectfully dissent.
BARNES v. UNITED STATES 837
Syllabus
BARNES v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUl'l'
No. 72-5443. Argued :.larch 20, 1973-Decided June 18, 1973
Petitioner was convicted of possessing United States Treasur~· checks
stolen from the mails, knowing them to bC' stolen; forging; and
uttering the checks, knowing the endorsements to be forged. The
District Court instructed the jury that "rp]ossession of recently
stolen property, if not ~atisfactorily expbincd, i~ ordin:irily a
rircmnstance from which you may reasonabl)· draw the inferenc<'
a11d find, in the light of the surrounding circumstnnces shown by
the evidence in the case, that the person in possession knew the
property had been stolen." The Court of Appeals affirrnc>d, finding
no lack of "rational connection" between unexplained possession
of recently stolen property and knowledgl" that thl' pro[)(>rty
wns stolen. Held: The instruction comports with due process.
Pp. 841-847.
(a) If a statutory inferenrr submitted to the jury as suffirien1
to support ronviction satisfies the reasonable-doubt $tandard
( i. e., the e\·idence necessary to invoke the inference is ~ufficient
for a rational juror to find the inferred fart beyond a reasonable
doubt) as well as the more-likely-than-not standard, then it clearly
accords with due process. Pp. 841-843.
(b) Here, where the evidence established that petitioner possessed
recently stolen Treasury rlwrks payable to persons he did
not know and it provided no plausible E'Xplanation for such possession
consistent with innorrner, the traditional common-law
inference satisfies the reasonable-doubt standard, the most stringent
standard applied by the Court in judging permissive criminal law
inferences, and. thnrfore, comports with due process. Pp. 843-846.
(c) Although the introduetion of any evidence, direct or circumstantial,
tending to implicate the defendant in the alleged
rrimc increases the pressure on him to testify, the mere massing
of evidence ngainst him cannot be rcgardrd as a violation of his
privilt"gP against self-incrimination. Yee Ham v. United States,
268 U. S. 178, 185. Pp. 846-847.
(d) In light of its le11:islatiYe history and consistent judicial
construction, 18 U. S. C. § 1708 requires only knowledge that the
838 OCTOBER TERl\I, 1972
Opinion of the Court 412 u. s.
checks were stolen, and not knowledge that they were stolen from
the mails. P. 847.
466 F. 2d 1361, affirmed.
POWELL, J., delivered the opinion of the Court, in which BURGER,
C . .J., and STEWART, WHITE, BLACKMUN, and REHNQUIST, ,JJ.,
joined. Dm:GI,AS, .J., filed a. dissenting opinion, post, p. 848. 13REN-
:NAN, .J., filed a dissenting opinion, in whirh l'vlARSHALL, J., joined,
post, p. 852.
Malcolm H. Mackey, by appointment of the Court,
411 U. S. 946, argued the cause and filed a brief for
petitioner.
Deputy Solicitor General Friedman argued the cause
for the United States. With him on the brief were
Solicitor General Griswold, Assistant Attorney General
Petersen, Mark L. Evans, and Sidney 111. Glazer.
MR. J US'l'ICE POWELL delivered the opinion of the
Court.
Petitioner Barnes was convicted in Fnited States District
Court on two counts of posseflsing rnited States
Treasury cherks stolen from the mails, knowing them
to be stolen, two counts of forging the checks, and two
counts of uttering the checks, knowing the endorsements
to be forged. The trial court instructed the jury that
ordinarily it v.:ould be justified in inferring from unexplained
possession of recently stolen mail that the defendant
possessed the mail with knowledge that it was
stolen. We granted certiorari to consider whether this
instruction comports with due process. 409 U. S. 1037
(1972).
The evidence at petitioner's trial established that on
Ju11e 2, 1971, he opened a checking account using the
pseudonym "Clarence Smith." On July 1, and July 3,
1971, the United States Disbursing Office at San Francisco
mailed four Government checks in the amounts of
BARNES v. UNITED STATES 839
837 Opinion of the Court
$269.02, $154.70, $184, and $268.80 to Nettie Lewis,
Albert Young, Arthur Salazar, and Mary Hernandez,
respectively. On July 8, 1971, petitioner deposited these
four checks into the "Smith" account. Each check bore
the apparent endorsement of the payee and a second
endorsement by "Clarence Smith."
At petitioner's trial the four payees testified that they
had never received, endorsed, or authorized endorsement
of the checks. A Government handwriting expert testified
that petitioner had made the "Clarence Smith" endorsement
on all four checks and that he had signed the
payees' names on the Lewis and Hernandez checks.1
Although petitioner did not take the stand, a postal
inspector testified to certain statements made by petitioner
at a post-arrest interview. Petitioner explained to
the inspector that he received the checks in question
from people who sold furniture for him door to door and
that the checks had been signed in the payees' names
when he received them. Petitioner further stated that
he could not name or identify any of the salespeople.
Nor could he substantiate the existence of any furniture
orders because the salespeople allegedly wrote their orders
on scratch paper that had not been retained. Petitioner
admitted that he executed the Clarence Smith endorsements
and deposited the checks but denied making the
payees' endorsements.2
The District Court instructed the jury that "[p] ossession
of recently stolen property, if not satisfactorily explained,
is ordinarily a circumstance from which you
may reasonably draw the inference and find, in the light
1 The witness' findings with respect to the Young and Salazar
signatures were inconclusive.
2 This explanation of petitioner's possession of the checks, presented
through the postal inspector's testimony, was adopted by petitioner's
counsel in argument to the jury. Tr. 107-108.
840 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
of the surrounding circumstances shown by the evidence
in the case, that the person in possession knew the property
had been stolen." 3
The jury brought in guilty verdicts on all six counts,
and the District Court sentenced petitioner to concurrent
three-year prison terms. The Court of Appeals for
3 The full instruction on the inference arising from possession of
stolen property stated:
"Possession of recently stolen property, if not satisfactorily explained,
is ordinarily a circumstance from which you may reasonably
draw the inference and find, in the light of the surrounding circumstances
shown by the evidence in the case, that the person in possession
knew the property had been stolen.
"However, you are never required to make this inference. It is
the exclusive province of the jury to determine whether the facts
and circumstances shown by the evidence in this case warrant any
inference which the law permits the jury to draw from the possession
of recently stolen property.
"The term 'recently' is a relative term, and has no fixed meaning.
Whether property may be considered as recently stolen depends
upon the nature of the property, and all the facts and circumstances
shown by the evidence in the case. The longer the period of time
since the theft the more doubtful becomes the inference which may
reasonably be drawn from unexplained possession.
"If you should find beyond a reasonable doubt from the evidence
in the case that the mail described in the indictment was stolen,
and that while recently stolen the contents of said mail here, the
four United States Treasury checks, were in the possession of the
defendant you would ordinarily be justified in drawing from those
facts the inference that the contents were possessed by the accused
with knowledge that it was stolen property, unless such possession
is explained by facts and circumstances in this case which are in some
way consistent with the defendant's innocence.
"In considering whether possession of recently stolen property has
been satisfactorily explained, you are reminded that in the exercise
of constitutional rights the accused need not take the witness stand
and testify.
"Possession may be satisfactorily explained through other circumstances,
other evidence, independent of any testimony of the accused."
Tr. 123-124.
BARNES v. UNITED STATES 841
837 Opinion of the Court
the Ninth Circuit affirmed, finding no lack of "rational
connection" between unexplained possession of recently
stolen property and knowledge that the property was
stolen. 466 F. 2d 1361 (1972). Because petitioner received
identical concurrent sentences on all six counts,
the court declined to consider his challenges to conviction
on the forgery and uttering counts. We affirm.
I
We begin our consideration of the challenged jury instruction
with a review of four recent decisions which
have considered the validity under the Due Process
Clause of criminal law presumptions and inferences.
Turner v. United States, 396 U. S. 398 (1970); Leary v.
United States, 395 U. S. 6 ( 1969); United States v.
Romano, 382 U. S. 136 (1965); United States v. Gainey,
380 u. s. 63 (1965).
In United States v. Gainey, supra, the Court sustained
the constitutionality of an instruction tracking a statute
which authorized the jury to infer from defendant's
unexplained presence at an illegal still that he was carrying
on "the business of a distiller or rectifier without
having given bond as required by law." Relying on the
holding of Tot v. United States, 319 U.S. 463,467 (1943),
that there must be a "rational connection between the fact
proved and the ultimate fact presumed," the Court upheld
the inference on the basis of the comprehensive nature of
the "carrying on" offense and the common knowledge that
illegal stills are secluded, secret operations. The following
Term the Court determined, however, that presence
at an illegal still could not support the inference that the
defendant was in possession, custody, or control of the
still, a narrower o~ense. "Presence is relevant and
admissible evidence in a trial on a possession charge;
but absent some showing of the defendant's function at
the still, its connection with possession is too tenuous to
842 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
permit a reasonable inference of guilt-'the inference of
the one from proof of the other is arbitrary ... .' Tot
v. United States, 319 U. S. 463, 467.'' United States v.
Romano, supra, at 141.
Three and one-half years after Romano, the Court in
Leary v. United States, supra, considered a challenge to a
statutory inference that possession of marihuana, unless
satisfactorily explained, was sufficient to prove that the
defendant knew that the marihuana had been illegally imported
into the United States. The Court concluded that
in view of the significant possibility that any given marihuana
was domestically grown and the improbability
that a marihuana user would know whether his marihuana
was of domestic or imported origin, the inference
did not meet the standards set by Tot, Gainey, and
Romano. Referring to these three cases, the Leary
Court stated that an inference is " 'irrational' or 'arbitrary,'
and hence unconstitutional, unless it can at lea.st
be said with substantial assurance that the presumed fact
is more likely than not to flow from the proved fact on
which it is made to depend." 395 U. S., at 36. In a footnote
the Court stated that since the challenged inference
failed to satisfy the more-likely-than-not standard, it
did not have to "reach the question whether a criminal
presumption which passes muster when so judged must
also satisfy the criminal 'reasonable doubt' standard if
proof of the crime charged or an essential element thereof
depends upon its use." Id., at 36 n. 64.
Finally, in Turner v. United States, supra, decided the
year following Leary, the Court considered the constitutionality
of instructing the jury that it may infer from
possession of heroin and cocaine that the defendant knew
these drugs had been illegally imported.4 The Court
4 The Turner Court also considered the validity of inferring that
a defendant knowingly purchased, sold, dispensed, or distributed a
BARNES v. UNITED STATES 843
837 Opinion of the Court
noted that Leary reserved the question of whether the
more-likely-than-not or the reasonable-doubt standard
controlled in criminal cases, but it likewise found no need
to resolve that question. It held that the inference with
regard to heroin was valid judged by either standard.
396 U. S., at 416. With regard to cocaine, the inference
failed to satisfy even the more-likely-than-not standard.
Id., at 419.
The teaching of the foregoing cases is not altogether
clear. To the extent that the "rational connection,"
"more likely than not," and "reasonable doubt" standards
bear ambiguous relationships to one another, the
ambiguity is traceable in large part to variations in language
and focus rather than to differences of substance.
What has been established by the cases, however, is at
least this: that if a statutory inference submitted to the
jury as sufficient to support conviction satisfies the reasonable-
doubt standard ( that is, the evidence necessary
to invoke the inference is sufficient for a rational juror
to find the inferred fact beyond a reasonable doubt) as
well-as the more-likely-than-not standard, then it clearly
accords with due process.
In the present case we deal with a traditional commonlaw
inference deeply rooted in our law. For centuries
courts have instructed juries that an inference of guilty
knowledge may be drawn from the fact of unexplained
possession of stolen goods. James Thayer, writing in his
Preliminary Treatise on Evidence (1898), cited this inference
as the descendant of a presumption "running
narcotic drug not in or from the original package bearing tax stamps
from the fact that the drugs had no tax stamps when found in the
defendant's possession. 26 U. S. C. § 4704 (a) (1964 ed.). The
Court ·upheld the inference that a defendant possessing unstamped
heroin knowingly purchased it in violation of the statute, but
struck down the inference with regard to cocaine. 396 U. S., 398,
419-424.
844 OCTOBER TERM, 1972
Opinion of the Court 412 U.S.
through a dozen centuries."-' Id., at 327. Early American
cases consistently upheld instructions permitting conviction
upon such an inference,6 and the courts of appeals
on numerous occasions have approved instructions essentially
identical to the instruction given in this case.7
This longstanding and consistent judicial approval of
the instruction, reflecting accumulated common experience,
provides strong indication that the instruction comports
with due process.
This impressive historical basis, however, is not in itself
sufficient to establish the instruction's constitutionality.
Common-law inferences, like their statutory counterparts,
must satisfy due process standards in light of
5 Thayer also described the historical development of the
presumption:
"[T]he laws of Ine [King of Wessex, A. D. 688-725] provide
that, 'if stolen property be attached with a chapman, and he have
not brought it before good witnesses, let him prove . . . that he
was neither privy (to the theft) nor thief; or pay as wite (fine)
xxxvi shillings.' To be found thus in the possession of stolen goods
was a serious thing; if they were recently stolen, then was one
'taken with the mainour,'-a state of things that formerly might
involve immediate punishment, without a trial; and, later, a trial
without a formal accusation; and, later still, a presumption of guilt
which, in the absence of contrary evidence, justified a verdict, and
at the present time is vanishing away into the mere judicial recognition
of a permissible inference . . . ." Id., at 328. (Citations
omitted.)
6 See, e. g., Wilson v. United States, 162 U. S. 613 (1896); Commonwealth
v. Millard, l Mass. 6 (1804); Knickerbocker v. People,
43 N. Y. 177 (1870); State v. Raymond, 46 Conn. 345 (1878); Cook
v. State, 84 Tenn. 461 (1886).
7 E. g., United States v. Russo, 413 F. 2d 432 (CA2 1969); United
States v. Smith, 446 F. 2d 200 (CA4 1971); United States v.
Winbush, 428 F. 2d 357 (CA6), cert. denied, 400 U. S. 918
(1970); United States v. Hood, 422 F. 2d 737 (CA7), cert. denied,
400 U. S. 820 (1970); United States v. Dilella, 354 F. 2d 584
(CA7 1965).
BARNES v. UNITED STATES 845
837 Opinion of the Court
present-day experience.8 In the present case the challenged
instruction only permitted the inference of guilt
from unexplained possession of recently stolen property.0
The evidence established that petitioner possessed recently
stolen Treasury checks payable to persons he did
not know, and it provided no plausible explanation for
such possession consistent with innocence. On the basis
of this evidence alone common sense and experience tell
us that petitioner must have known or been aware of the
high probability that the checks were stolen. Cf. Turner
v. United States, 396 U. S., at 417; 10 Leary v.
United States, 395 U. S., at 46. Such evidence
was clearly sufficient to enable the jury to find beyond
a reasonable doubt that petitioner knew the checks were
8 The reasoning of the statutory-inference> cases is applicable to
analysis of common-law inferences. Cf. United States ,·. Gainey,
380 U. S. 63, 70 (196,5); Rules of Evidence for UnitC'd Rtates Courts
and l'viagi~trates (proposed Nov. 20, 1972), Rule 303 (a), 56
F. R. D. 212. Common-law inferences, howt'nr, presen1 fpwer
constitutional problems. Surh inferences are invoked only in the
discretion of the trial judge. While statutes creating criminal law
inferences may be interprrtrd also to presnve the trial court's traditional
discretion in dP!ermining whether there is sufficient evidence
to go to the jury and in 1·harging the jury, Turner v. United States,
396 U. S. 398, 406 11. 6 (1970); ['nited States v. Gainey, supra, at 68-
70, such discretion is inherent in the use of common-law inferences.
9 Of course, the mere fact that then' is some evidence tending to
explain a defendant's possession consi~knt with innocence does not
bar instructing the jury on the infrren('e. Th" jury must weigh the
explanation to drtcrminc wlwther it is "satisfactory." Supra, at 840
n. 3. The jury i3 not bound to accept or believe any particular explanation
any more than it i~ bound to accept the correctness of the
inferrncc. But the burden of proving beyond a reasonable doubt
that the defendant did h:n-e knowledge that the property was stolen,
an essential element of the crime, remains on the Government.
10 " 'Common sense' ... tells us that those who traffir in hC'roin
will inevitably become aware that the produet they dl'al in is smuggled,
unless they practice a studied ignorance to whi('h thry ar<· not
entitled."
846 OCTOBER TERM, 1972
Opinion of the Court 412 u. s.
stolen. Since the inference thus satisfies the reasonabledoubt
standard, the most stringent standard the Court has
applied in judging permissive criminal law inferences, we
conclude that it satisfies the requirements of due process.11
II
Petitioner also argues that the permissive inference
in question infringes his privilege against self-incrimination.
The Court has twice rejected this argument,12
Turner v. United States, 396 U. S., a.t 417-418; Yee
Hem v. United States, 268 U. S. 178, 185 (1925), and
we find no reason to re-examine the issue at length. The
trial court specifically instructed the jury that petitioner
had a constitutional right not to take the witness stand
and that possession could be satisfactorily explained by
11 It is true that the prartical effect of instructing the jury on
the infercnrc arising from unexplained possession of recently stolen
property is to shift the burden of going forward with evidence to
the defmdant. If the Government pro,·cs possession and nothing
more, this evidence rrmains unexplained unless the defendant introduces
evidence, sin re ordinarily the Government's evidence will
not provide an explanation of his possession consistent with innorrnce.
In Tot v. United States, 319 U.S. 463 (194:3) , the Court stated
that the burden of going forward may not be freely shifted to the
defendant. See also Leary\". United States, 395 U.S. 6, 44-45 (1969).
Tot held, howenr, that. where there is a "rational connection" between
the farts proved and the fact prernmed or inferred, it is permissible to
shift the burden of going forward to the defendant. \Vhere an inference
satisfies the reasonable-doubt standard, as in the present
case, there will c-ertainly be a rational connection between the fact
presumed or inferred (in this case, knowledge) and the facts the
Government mmt prove in order to shift the burden of going
forward (possession of recently stolrn property).
We do not decid<' today whether a judge-formulated inference of
less antiquity or authority may properly be emphasized by a jury
instruct ion.
'" Nor can the instruction " be fairly understood as a comment on
the petitioner's failure to testify." United States v . Gainey, 380
U. S., at 70-71.
BARNES v. UNITED STATES 847
837 Opinion of the Court
evidence independent of petitioner's testimony. Introduction
of any evidence, direct or circumstantial, tending
to implicate the defendant in the alleged crime increases
the pressure on him to testify. The mere massing of
evidence against a defendant cannot be regarded as a
violation of his privilege against self-incrimination. Yee
Hem v. United States, supra, at 185.
III
Petitioner further challenges his conviction on the
ground that there was insufficient evidence that he knew
the checks were stolen from the mails. He contends that
18 U. S. C. § 1708 13 requires know ledge not only that
the checks were stolen, but specifically that they were
stolen from the mails. The legislative history of the
statute conclusively refutes this argument 14 and the
courts of appeals that have addressed the issue have
uniformly interpreted the statute to require only knowledge
that the property was stolen."
13 "Whoever . . . unlawfully has in his possession, any . . .
mail ... which has been so stolen ... , knowing the same to have
been stolen, ... [shall be fined or imprisoned or both]."
14 Prior to 1939 the statute requirl'd proof of possession of articles
stolen from the mail "knowing the same to ha\·e been so stolen."
18 U.S. C. § 317 (1934 ed.) (emphasis added). See, e.g., Brandenburg
v. United States, 78 F. 2d 811 (CA3 1935). In 1939 Congress
eliminated the word "so" peeeding the word "stolen." H. R. Rep.
:ilo. 734, 76th Cong., 1st Sess., 1 (1939), explains the change:
"The reportl'd bill amends the existing law so that it will sustain
a conviction for the Government to prove that the property was in
fact stolen from the mails and that the defendant knew the propt>rty
hf' received had been stolen. The committee feel that this should
be sufficient without requiring the Government to prove also that the
dl'fcndant knew the property received had been stolen from the
mails."
See also S. Rep. No. 864, 76th Cong., 1st Bess (1939).
15 C'nited States v. Hines, 256 F. 2d 561 (CA2 1958); Smith v.
United States, 343 F. 2d 539 (CA5), cert. denied, 382 U. S. 861
848 OCTOBER TERM, 1972
DOUGLAS, .T., dissenting 412 U.S.
Since we find that the statute was correctly interpreted
and that the trial court's instructions on the inference
to he dra"·n from unexplained possession of stolen
property were fully consistent with petitioner's constitutional
rights, it is unnecessary to consider petitioner's
challenges to his conviction on the forging and uttering
counts.16
Affirmed.
Ma. Jusnci,: DouGLAS, dissenting.
Possession of stolen property is traditionally under our
federal system a local law question. It becomes a federal
concern in the present case only if the '1mail" was
implicated. The indictment, insofar as the unlawful
possession counts are concerned, charges that the items
had been "stolen from the mail." While there was evidence
that these items had gone through the mail, petitioner
did not take the stand, nor i.vas there any evidence
that petitioner knew that the items had been "stolen
from the mail." As to the possession counts in the indictment
the District Court charged the jury that "three
essential clements" were required to prove the possession
offenses:
"FIRST: The act or acts of unlawfully having in
one's possession the contents of a letter, namely,
the United States Treasury checks as alleged;
"SECO~D: That the contents of the letter,
(1965); United States v. Gardner, 454 F. 2d 534 (CA.9), cert.
denied, 409 U. S. 867 (1972); United States v. Schultz, 462 F. 2d
622 (CA9 1972).
16 Although affirrnance of petitioner's conYirtion on t wo of the
six counts carrying identical concurrent sentences does not moot the
i,sucs he rai8es pertaining to the remaining counts, Benton ,·. Maryland,
395 U.S. 784 (1969), we decline as a disrrc-tionary matter to
reach these issues. Cf. United States v. Romano, 382 U. S. 136, 138
(1965).
837
BARNES v. UNITED STATES 849
DouGLAs, .T., di3seming
namely, the United States Treasury checks as
alleged, were stolen from the mail; and
"THIRD: That the defendant James Edward
Barnes knew the contents had been stolen."
The District Court also charged the jury:
"If you should find beyond a reasonable doubt
from the evidence in the case that the mail described
in the indictment was stolen, and that ,vhile
recently stolen the contents of said mail here, the
four "C'nitcd States Treasury checks, were in the
possession of the defendant you ,vould ordinarily
be justified in drawing from those facts the inference
that the contents were possessed by the accused
with knowledge that it was stolen property, unless
such possession is explained by facts and circumstances
in this case ,vhich are in some way consistent
with the defendant's."
As noted by the Court, the Act, which originally required
proof of possession of articles stolen from the
mail "knmving the same to have been so stolen," 18
U. S. C. § 317 (1934 ed.), was changed by eliminating
the word "so" before "stolen." H. R. Rep. No. 734, 76th
Cong., 1st Sess., 1. And the Act under which petitioner
was charged and convicted does not require as an
ingredient of the offense that petitioner knew the property
had been stolen from the mails.
That, however, is the beginning, not the end of the
problem. For without a nexus with the "mails" there is
no federal offense. How can we rationally say that
"possession" of a stolen check allows a judge or jury
to conclude that the accused knew the check was stolen
from the mails? We held in Tot v. United States, 319
U. S. 463, that where a federal Act made it unlawful
for any convicted person to possess a firearm that had
850 OCTOBER TERM, 1972
DOUGLAS, J., dissenting 412 U.S.
been shipped in interstate or foreign commerce, it was
unconstitutional to presume that a firearm possessed by
such person had been received in interstate or foreign
commerce.1 The decision was unanimous. The vice in
Tot was that the burden is on the government in a criminal
case to prove guilt beyond a reasonable doubt and
that use of the presumption shifts that burden. We
said: " [I] t is not permissible th us to shift the burden
by arbitrarily making one fact, which has no relevance
to guilt of the offense, the occasion of casting on the
defendant the obligation of exculpation." Id., at 469.
The use of presumptions and inferences to prove an
element of the crime is indeed treacherous, for it allows
men to go to jail without any evidence on one essential
ingredient of the offense. It thus implicates the integrity
of the judicial system. We held in In re Winship,
397 U. S. 358, 364, that the Due Process Clause requires
"proof beyond a reasonable doubt of every fact necessary
to constitute the crime ... . " Some evidence of wrongdoing
is basic and essential in the judicial system, unless
the way of prosecutors be made easy by dispensing with
the requirement of presumption of innocence, which is
the effect of what the Court does today. In practical
effect the use of these presumptions often means that the
great barriers to the protection of procedural due process
contained in the Bill of Rights are subtly diluted.2
May Congress constitutionally enact a law that says
1 Tot v. United States was decided in 1943, four years after the
passage by Congress of the 1939 amendment to the present Act
eliminating the need to prove knowledge that the property had been
stolen from the mails. Had Tot been decided before 1939 it is inconceivable
that Congress would have made the 1939 change in the
present Act.
2 Mr. Justice Black and I previously have voiced this concern.
Turner v. United States, 396 U. S. 398, 425 (dissenting opinion);
United States v. Gainey, 380 U. S. 63, 72, 74 (dissenting opinions).
BARNES v. UNITED STATES 851
837 DouGLAS, J., dissenting
juries can convict a defendant without any evidence at
all from which an inference of guilt could be drawn?
If Thompson v. Louisville, 362 U. S. 199, means anything,
the answer is in the negative. The Congress is
as un-warranted in telling courts what evidence is enough
to convict an accused as we would be to tell Congress
what criminal la,vs should be enacted. That seems inescapably
plain by the regime of separation of powers
under which we live.
In Leary v. United States, 395 U. S. 6, ,ve held that
it was constitutionally impermissible to presume that
one who possessed marihuana would be presumed to
know of its unlawful importation. We said it would be
sheer "speculation" to conclude that even a majority
of the users of the plant knew the sourc€ of it. Id.,
at 53. The overall test, we said, was whether it can be
said "with substantial assurance that the presumed fact
is more likely than not to flow from the proved fact on
,vhich it is made to depend." Id., at 36.
In that case there were some statistics as to the quantity
of marihuana grmvn here and the amount grown
abroad that enters the country. There was evidence of
the characteristics of local and foreign marihuana, and
the like.
Stolen checks may be the product of local burglaries
of private homes or offices.
Stolen checks may come from purses snatched or
purloined.
Stolen checks may involve any one of numerous
artifices or tricks.
In other ,vords, there arc various sources of stolen
checks which in no way implicate federal jurisdiction.
Checks stolen from natioual banks, checks stolen from
federal agencies, checks lifted from the mails are other
sources.
852 OCTOBER TERM, 1972
BRENNAN, J., dissenting 412 U.S.
But, unlike Leary, we have no evidence \vhatsoever
showing what amount of stolen property, let alone stolen
checks, implicates the mails. Without some evidence or
statistics of that nature we have no way of assessing the
likelihood that this petitioner knew that these checks
were stolen from the mails. \Ve can take judicial notice
that checks are stolen from the mails. But it ·would
take a large degree of assumed omniscience to say with
"substantial assurance" that this petitioner more likely
than not knew from the realities of the underworld that
this stolen property came from the mails. But without
evidence of that knowledge there would be no federal
offense of the kind charged.
The step we take toda.y will be applauded by prosecutors,
as it makes their way easy. But the Bill of
Rights was designed to make the job of the prosecutor
difficult. There is a presumption of innocence. Proof
beyond a reasonable doubt is necessary. The jury, not
the court, is the factfinder. These basic principles make
the use of these easy presumptions dangerous.3 What
we do today is, I think, extremely disrespectful of the
constitutional regime that controls the dispensation of
criminal .i ustice.
Mrt. JusTICE BRENNAN, with whom MR. JuSTICE MARSHALL
joins, dissenting.
Petitioner was charged in two counts of a six-count
indictment with possession of United States Treasury
:J What. we said in Christoffel v. United States, 338 U. S. 84, 89,
that "all the elemrnts of the erimr charged shall be proYed beyond a
reasonable doubt" has been the guiding rule at least on the issue of
guilt. And it is cogently argued that presumptions of the existence
of elemrnt~ of a crime have no place in our constitutional framework.
See 22 Stan. L . Rev. :{41 (1970). That scC'ms indubitably true to
me, at least in thC' present ra~e where knowledge that the checks were
stolen from the mails has only suspicion to support it.
BARNES v. UNITED STATES 853
837 BRENN AN, J ., dissenting
checks stolen from the mails, knowing them to be stolen.
The essential elements of such an offense are (1) that
the defendant was in possession of the checks, (2) that
the checks were stolen from the mails, and (3) that the
defendant knew that the checks were stolen. The Government
proved that petitioner had been in possession
of the checks and that the checks had been stolen from
the mails; and, in addition, the Government introduced
some evidence intended to show that petitioner knew or
should have known that the checks were stolen. But
rather than leaving the jury to determine the element
of "knowledge" on the basis of that evidence, the trial
court instructed it that it was free to infer the
essential element of "knowledge" from petitioner's unexplained
possession of the checks. In my view, that
instruction violated the Due Process Clause of the Fifth
Amendment because it permitted the jury to convict
even though the actual evidence bearing on "knowledge"
may have been insufficient to establish guilt beyond a
reasonable doubt. I therefore dissent.
We held in In re Winship, 397 U.S. 358, 364 (1970),
that the Due Process Clause requires "proof beyond a
reasonable doubt of every fact necessary to constitute
the crime . . . . " Thus, in Turner v. United States,
396 U. S. 398, 417 (1970), we approved the inference
of "knowledge" from the fact of possessing smuggled
heroin because " ' [ c J ommon sense' . . . tells us that
those who traffic in heroin will inevitably become aware
that the product they deal in is smuggled .... " (Emphasis
added.) The basis of that "common sense" judgment
was, of course, the indisputable fact that all or
virtually all heroin in this country is necessarily smuggled.
Here, however, it cannot be said that all or virtually
all endorsed United States Treasury checks have
been stolen. Indeed, it is neither unlawful nor unusual
854 OCTOBER TERM, 1972
BRENNAN, J., dissenting 412 U.S.
for people to use such checks as direct payment for goods
and services. Thus, unlike Turner, "common sense"
simply will not permit the inference that the possessor
of stolen Treasury checks "inevitably" knew that the
checks were stolen. Cf. Leary v. United States, 395 U. S.
6 (1969).
In short, the practical effect of the challenged instruction
was to permit the jury to convict petitioner even
if it found insufficient or disbelieved all of the Government's
evidence bearing directly on the issue of
"knowledge." By authorizing the jury to rely exclusively
on the inference in determining the element of "knowledge,"
the instruction relieved the Government of the
burden of proving that element beyond a reasonable
doubt. The instruction thereby violated the principle of
Winship that every essential element of the crime must
be proved beyond a reasonable doubt.
REPORTER'S NOTE
The next page is purposely numbered 901. The numbers between
854 and 901 were intentionally 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 MAY 17 THROUGH
JUNE 19, 1973
MAY 17, 1973
Dismissal Under Rule 60
No. 72-6442. KING, AKA RAVELLI v. UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS.
Motion for leave to file petition for writ of mandamus
dismissed under Rule 60 of the Rules of this Court.
MAY 21, 1973
Affirmed on Appeal
No. 72-1105. STEPHENS TRUCK LINE, lNc., ET AL. v.
UNITED STATES ET AL. Affirmed on appeal from D. C.
E. D. Tenn.
No. 72-1215. DIAMOND ET AL. v. UNITED STATES ET
AL. Appeal from D. C. D. C. Motion to dispense with
printing jurisdictional statement granted. Judgment
affirmed. MR. JUSTICE PowELL took no part in the consideration
or decision of this case. Reported below: 354
F. Supp. 1021.
Ko. 72-1342. KAPLAN ET AL. v. MILLIKEN, JuDGE, ET
AL. Affirmed on appeal from D. C. W. D. Ky. For the
reasons stated in their dissent in Wells v. Edwards, 409
U.S. 1095 (1973), MR. JUSTICE WHITE and MR. JusTICE
MARSHALL would note probable jurisdiction and give
plenary consideration to this case.
Appeals Dismissed
No. 72- 1313. SrLVERTON v. CALIFORNIA. Appeal from
Ct. App. Cal., 2d App. Dist., dismissed for want of substantial
federal question.
901
902 OCTOBER T:ZRM, 1972
May 21, 1973 412 U.S.
No. 72-6197. SHOEMAKER v. DWYER ET AL. 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 denied.
Vacate.d and Remanded on Appeal
No. 70-42. RosEN v. LOUISIANA STATE BOARD OF MEDICAL
EXAMINERS. Appeal from D. C. E. D. La. Judgment
vacated and case remanded for further consideration
in light of Roe v. Wade, 410 U.S. 113 (1973), and
Doe v. Bolton, 410 U. S. 179 (1973). Reported below:
318 F. Supp. 1217.
Certiorari Granted- Vacated and Remanded
No. 71-939. JoINER ET AL. v. CITY OF DALLAS, TEXAS,
ET AL. C. A. 5th Cir. Certiorari granted, judgment
vacated, and case remanded for further consideration in
light of Mitchum v. Foster, 407 U. S. 225 ( 1972); Lynch
v. Household Finance Corp., 405 U. S. 5,38 (1972); and
Younger v. Harris, 401 U. S. 37 ( 1971). Reported below:
447 F. 2d 1403.
No. 72-6241. WEBB v. UNITED STATES. Motion for
leave to proceed in fonna pauperis granted. Motion for
leave to file petition for writ of habeas corpus denied.
Treating the papers submitted as a petition for writ of
certiorari, certiorari granted. Upon representation of the
Solicitor General as set forth in his memorandum for the
United States filed April 24, 1973, judgment vacated and
case remanded to the United States Court of Appeals
for the Tenth Circuit for further consideration in light
of the position presently asserted by the Government.
Reported below: 466 F. 2d 190.
Certiorari Dismissed
No. 72-498. TINDER v. VIRGINIA. Corp. Ct., Norfolk,
Va. It appearing that petitioner, a defendant in
ORDERS 903
412 U.S. May 21, 1973
a state criminal proceeding, died on March 17, 1973,
petition for writ of certiorari dismissed. Gersewitz v.
New York, 3,26 U. S. 687 (1945).
M isceUaneous Orders
No. 61, Orig. PETERSEN v. SPILIOTOP0UL0S. Motion
of plaintiff for leave to proceed in Jonna pauperis granted.
Motion for leave to file bill of complaint denied.
No. A-1069. APPLEGATE ET AL. v. XEw JERSEY. Super.
Ct. N. J. Application for stay of judgment, presented
to Mn. JusTICE DouGLAS and by him referred to the Court,
denied.
No. A-1118. MICELI ET AL. v. UNITED STATES ET AL.
C. A. 6th Cir. Application for stay of mandate, presented
to MR. JUSTICE STEWART and by him referred to
the Court, denied. MR. JusTICE DouGLAS would grant
the stay. Reported below: 474 F. 2d 1234.
No. A-1123. REID v. MARQUETTE UNIVERSITY ET AL.
C. A. 7th Cir. Application for stay of malldate, presented
to MR. JUSTICE DOUGLAS and by him referred to
the Court, denied.
No. A-1136. GREENSPHAN v. UNITED STATES. C. A.
7th Cir. Application for recall of mandate, presented to
MR. JusTICE D01;GLAS and by him referred to the Court,
denied. Reported below: 477 F. 2d 508.
No. 72-586. CADY, \VARDEN v. DOMBROWSKI. C. A.
7th Cir. [Certiorari granted, 409 U. S. 1059.] Motion
of the State of Florida for leave to file a brief as arnicus
curiae in support of petitioner, after argument, granted.
No. 72- 782. GATEWAY CoAL Co. v. UNITED MINE
\VoHKERS OF AMERICA ET AL. C. A. 3d Cir. [Certiorari
granted, 410 U.S. 953.] Motion of National Association
of Manufacturers for leave to file a brief as amicus curiae
in support of petitioner granted.
904 OCTOBER TEH'.\I, 1972
May 21, 1973 412 l:. S.
No. 72-812. STORER E'l' AL. v. BRowN, SECRETARY OF
STATE OF CALIFORNIA, ET AL.; and
No. 72- 6050. FROMMHAGEN v. BROWN, SECRETARY OF
STATE OF CALlFORNIA, ET AL. Appeals from D. C. --X. D.
Cal. [Probable juric:;diction noted, 410 U.S. 965.] Motion
of appellants in Ko. 72-812 for divided argument
granted. H is ordered that Paul K. Halvonik, Esquire.
and Joseph Remcho, Esquire, be permitted to preseut
oral argument in the consolidated cases. Motion of appellant
in No. 72-6050 to argue orally pro se denied.
No. 72-822. RENEGOTIATION BOARD v. BANNERCHAFT
CLOTHING f'o., INC., ET AL. C. A. D. C. Cir. [Certiorari
granted. 410 U. R. 907.1 Motion of rE>spondents to
permit two counsel to argue orally granted.
:No. 72 887. AMERICAN PARTY OF TEXAS ET AL. v.
WHITE, SECRETARY OF STATE OF TEXAS. Appeal from
D. C'. \V. D. Tex. [Probable jurisdiction noted, sub nom.
American Party of Tex-as v. Bullock, 410 r. S. 965.]
:\!lotion of appE>llant Dunn for leave to proceed further
herein in Jonna pauperis granted only to the extent that
a typewritten brief may be filed.
No. 72- 1148. f'rPP, PENITENTIARY SrPERINTENDENT
v. °XAl'GHTEN. C'. A. 9th Cir. [Certiorari granted , 411
r. f;_ 947.1 Motion of respondent for appointmC'nt of
counsel granted. It is ordere<l that Ross R. Runkel,
Esquire, of Salem, Oregon, a member of the Bar of this
Court. be, and he is hereby, appointed to serve as counsel
for respondent in this case.
Xo. 72-6575. JOHNSON V. \\.YOMING ET AL.;
Xo. 72- 6578. LoDDY v. MEACHAM ET AL.; and
~0- 72-6601. HAWKINS V. WYOMING ET AL. Motions
for )pave to file petitions for writs of habeas corpus
df'nied.
I
412 U. 8.
ORDERS
]\,fay 21, 1973
905
No. 72-6432. SPROUSE v. UNITED STATES. Motion for
leave to file petition for writ of mandamus denied.
Probable Jurisdiction Noted
No. 72- 1254. SMITH, SHERIFF v. GOGUEN. Appeal
from C. A. 1st Cir. Probable jurisdiction noted. Reported
below: 471 F. 2d 88.
Certiorari Granted
Xo. 72-1319. UNITED STATES v. CHAVEZ ET AL. C. A.
9th Cir. Motion of respondent George Apodaca for leave
to proceed inf orma pauperis and certiorari granted. Reported
below: 478 F. 2d 512.
Certiorari Denied. (See also No. 72-6197, supra.)
Xo. 72-1097. BURKS ET AL. v. PERK, MAYOR OF CLEVELA~
D, Omo. C. A. 6th Cir. Certiorari denied. Reported
below: 470 F. 2d 163.
No. 72-1153. BRICK v. UNITED STATES. C. A. 8th
Cir. Certiorari denied.
No. 72-1200. LINDSEY v. UNITED STATES. C. A. 6th
Cir. Certiorari denied. Reported below: 473 F. 2d 810.
Ko. 72-1211. MENDOZA v. UNITED STATES. C. A. 9th
Cir. Certiorari denied.
No. 72-1222. CoPE ET AL. v. ALLSTATE INSURANCE
Co. ET AL. C. A. 5th Cir. Certiorari denied. Reported
below: 469 F. 2d 693.
No. 72- 1224. TERESI v. UNITED STATES. C. A. 9th
Cir. Certiorari denied.
No. 72-1239. OLSON v. UNITED STATES. C. A. 8th
Cir. Certiorari denied. Reported below: 473 F. 2d 686.
Xo. 72- 1250. HAGEN v. UNITED STATES. C. A. 10th
Cir. Certiorari denied. Reported below: 470 F. 2d 110.
906 OCTOBER TERM, 1972
May 21, 1973 412 U.S.
No. 72-1265. SIMAS BRos. v. NATIONAL LABOR RELATIONS
BOARD. C. A. 9th Cir. Certiorari denied.
No. 72-1298. COMMISSIONER OF INTERNAL REVENUE
v. MORITZ. C. A. 10th Cir. Certiorari denied. Reported
below: 469 F. 2d 466.
No. 72-1312. AossEY v. IowA. Sup. Ct. Iowa. Certiorari
denied. Reported below: 201 N. W. 2d 731.
No. 72-1314. SNITOFF v. BOARD OF MANAGERS OF CHICAGO
BAR AssN. Sup. Ct. Ill. Certiorari denied. Reported
below: 53 Ill. 2d 50, 289 N. E. 2d 428.
No. 72-1335. MooRE v. ARIZONA. Sup. Ct. Ariz.
Certiorari denied. Reported below: 108 Ariz. 532, 502
P. 2d 1351.
No. 72-1336.
Super. Ct. D. C.
KEARNEY V, DISTRICT OF COLUMBIA.
Certiorari denied.
No. 72-1337. W. J. JoNES & SoN, INC. v. WEYERHAEUSER
Co. ET AL. C. A. 9th Cir. Certiorari denied.
Reported below: 471 F. 2d 369.
No. 72-1358. O'MEARA ET AL. v. McDONALD. C. A.
5th Cir. Certiorari denied. Reported below: 473 F.
2d 799.
No. 72-6152. MrxEN v. UNITED STATES. C. A. 8th
Cir. Certiorari denied. Reported below: 469 F. 2d 203.
No. 72-6189. HENSLEY v. HARDY. C. A. 5th Cir.
Certiorari denied.
No. 72-6291. CONNORS v. HARRISON, CORRECTIONS
DIRECTOR, ET AL. C. A. 6th Cir. Certiorari denied.
No. 72-6332. ARGO v. UNITED STATES. C. A. 9th Cir.
Certiorari denied. Reported below: 473 F. 2d 1315.
No. 72- 6335. DENMAN v. UNITED STATES. C. A. 9th
Cir. Certiorari denied.
ORDERS 907
412 U.S. May 21, 1973
No. 72-6353. D1MAmo v. UNITED STATES. C. A. 6th
Cir. Certiorari denied. Reported below: 473 F. 2d 1046.
No. 72-6366. DEBETHAM v. UNITED STATES. C. A.
9th Cir. Certiorari denied. Reported below: 470 F.
2d 1367.
:N"o. 72-6367. MANDINA v. UNITED STATES. C. A. 8th
Cir. Certiorari denied. Reported below: 472 F. 2d lllO.
No. 72-6368. BUTLER v. UNITED STATES. C. A. 4th
Cir. Certiorari denied. Reported below: 471 F. 2d 648.
No. 72-6373. HAUFF v. UNITED STATES. C . A. 7th
Cir. Certiora.ri denied. Reported below: 473 F. 2d 1350.
No. 72- 6376. MILES v. UNITED STATES. C. A. 8th
Cir. Certiorari denied. Reported below: 472 F. 2d 1145.
Xo. 72-6457. WASHINGTON v. MARYLAND. C. A. 4th
Cir. Certiorari denied.
No. 72-6458. O'SHEA v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 472 F. 2d 1406.
No. 72-6461. CANTY v. BoAHD OF EDL"CATION OF THE
CITY OF NEW YOHK. C. A. 2d Cir. Certiorari denied.
Reported below: 470 F. 2d 1111.
Xo. 72- 6462. THOMPSON v. LAMBERT'S POINT DOCKS,
INc., ET AL. C. A. 4th Cir. Certiorari denied.
No. 72-6465. SANDER v. OHIO. Ct. App. Ohio, Darke
County. Certiorari denied.
I\To. 72-6474. O'NEILL v. SUPERIOR CouRT OF ALA-
1\fEDA CouNTY. Ct. App. Cal., 1st App. Dist. Certiorari
denied.
No. 72-6487. RIVERA v. ILLINOIS. App. Ct. Ill., 1st
Dist. Certiorari denied. Reported below: 7 Ill. App.
3d 983, 289 N. E. 2d 36.
908 OCTOBER TER.\il, 1972
May 21, 1973 412 U.S.
No. 72-6493. BoNAFINI v. NEw JERSEY ET AL. C. A.
3d Cir. Certiorari denied.
No. 72-6494. FARESE ET UX. V. HOME SAVINGS & LOAN
AssN. ET AL. C. A. 9th Cir. Certiorari denied.
No. 72-6496. GERMAN v. FLORIDA ET AL. Sup. Ct.
Fla. Certiorari denied.
No. 72-6501. RICHARDSON v. ESTELLE, CORRECTIONS
DIRECTOR. C. A. 5th Cir. Certiorari denied. Reported
below: 472 F. 2d 169.
No. 72-6502. LAYMAN v. TOLLETT, WARDEN. C. A.
6th Cir. Certiorari denied.
No. 72-6508. MITCHELL v. CONBOY, CORRECTIONAL
SUPERINTENDENT. C. A. 2d Cir. Certiorari denied.
No. 72-1064. BARTON, REFORMATORY SUPERINTENDENT
v. TABASKO. C. A. 6th Cir. Motion to dispense
with printing petition and motion of respondent for leave
to proceed in Jonna pauperis granted. Certiorari denied.
Reported below: 472 F. 2d 871.
No. 72-1209. HANLY ET AL. v. KLEINDIENST, ATTORNEY
GENERAL, ET AL. C. A. 2d Cir. Application for
stay presented to MR. JUSTICE MARSHALL, and by him
referred to the Court, denied. Certiorari denied. MR.
JUSTICE DouGLAS would grant certiorari. Reported below:
471 F. 2d 823.
No. 72-1232. WILLIS v. UNITED STATES. C. A. 6th
Cir. Certiorari denied. MR. JuSTICE DouGLAS would
grant certiorari. Reported below: 473 F. 2d 450.
No. 72-1311. CALIFORNIA v. FRITO-LAY, INc., ET AL.
C. A. 9th Cir. Certiorari denied. MR. JUSTICE DouGLAS
would grant certiorari. Reported below: 474 F. 2d 774.
ORDERS 909
412 u. s. },<fay 21, 1973
~o. 72-6201. ELDRIDGE v. NEW YORK. Ct. App.KY.
Certiorari denied. MR. JusTICE DOUGLAS would grant
certiorari. Reported below: 31 N. Y. 2d 820, 291 K E.
2d 719.
~o. 72-6287. ROSENTHAL v. UNITED STATES. C. A.
2d Cir. Certiorari denied. MR. JUSTICE DOUGLAS would
grant certiorari. Reported below: 470 F. 2d 837.
No. 72-1331. ALLEN ET AL. v. CITY OF MOBILE ET AL.
C. A. 5th Cir. Certiorari denied. MR. JUSTICE DOUGLAS
and MR. JusTICE MARSHALL would grant certiorari. Reported
below: 466 F. 2d 122.
No. 72-1349. FREEMAN v. SUPERIOR CouRT OF CALIFORNIA,
COUNTY OF ALAMEDA ( BA y FARM ISLAND RECLAMATION
DISTRICT No. 2105 ET AL., REAL PARTIES IN INTEREST).
Ct. App. Cal., 1st App. Dist. Motion to dispense
with printing petition granted. Certiorari denied.
No. 72-6075. BLAND v. UNITED STATES. C. A. D. C.
Cir. Certiorari denied. Reported below: 153 U.S. App.
D. C. 254,472 F. 2d 1329.
MR. JusTICE DOUGLAS, with whom MR. JusncE BRENNAN
and MH. JusTICE MARSHALL concur, dissenting.
Petitioner was 16 years old at the time of his arrest
and at the time of his indictment for armed robbery of
a post office. He was charged as an adult under D. C.
Code Ann. § 16-2301 (3) (A) (Supp. V, 1972).* He
*That section reads:
'' (3) The term 'C'hild' means an individual who is under 18 years
of age, except that the term 'child' does not include :rn individual
who is sixteen years of age or older and-
" (A) charged by the United States attorney with (i) murder,
for<'iblc rape, burglary in the first degree, robbrry while armed, or
assault with intent to commit any such offense, or (ii) an offens<'
listed in clause (i) and any other off Pr:i~e properly joinable with such
an offense."
910 OCTOBER TERM, 1972
DOUGLAS, J., dissenting 412 U.S.
moved to dismiss the indictment, alleging that the statutory
basis for prosecuting him as an adult failed to
provide him with procedural due process. The District
Court dismissed the indictment, 330 F. Supp. 34, and the
Court of Appeals by a divided vote reversed that judgment,
153 U.S. App. D. C. 254,472 F. 2d 1329.
Under the statute of the District of Columbia involved
in Kent v. United States, 383 U. S. 541, a juvenile, age
16 or older, who was charged with a felony, might be held
for trial as though he were an adult, if the Juvenile Court
waived jurisdiction. Kent held that the Act, read in
light of "the essentials of due process and fair treatment,"
id., at 562 and 557, required a hearing on whether the
Juvenile Court should waive its exclusive jurisdiction
over the juvenile and transfer him to the criminal court
of the District. And in In re Gault, 387 U.S. 1, we held
that where under a state juvenile court act a juvenile is
declared "delinquent" and either confined or held for
regular criminal prosecution, there must be a due process
hearing on the issue of "delinquency."
The District of Columbia Act was modified after Kent
so as to give the U. S. Attorney the po,ver to remove
a juvenile from the statutory category of "child" merely
by charging him with a designated felony. The House
Report No. 91- 907, p. 50, explains the reason for the
change:
"Because of th e great increase in the number of
serious felonies committed by juveniles and because
of the substantial difficulties in transferring
juvenile offenders charged with serious felonies to
the jurisdiction of the adult court under present law,
provisions are made in this subchapter for a better
mechanism for separation of the violent youthful
off ender and recidivist from the rest of the juvenile
community."
ORDERS 911
909 DouGLAS, J ., dissenting
The "substantial difficulties" are obviously the constitutional
rights explicated in Kent and in Gault. The
"better mechanism" is the use of the shortcut employed,
viz., the discretion of the prosecutor. Two rather large
questions are presented and they seem to me to be
substantial.
First. A juvenile or "child" is placed in a more protected
position than an adult, not by the Constitution,
but by an Act of Congress. In that category he is
theoretically subject to rehabilitative treatment. Can
he, on the whim or caprice of a prorncutor, be put in the
class of the run-of-the-mill criminal defendants, \Vithout
any hearing, without any chance to be heard, without an
opportunity to rebut the evidence against him, without
a chance of showing that he is being given an invidiously
different treatment from others in his group? Kent and
Gault suggest that those are very substantial constitutional
questions.
Second. The barricade behind which the prosecutor operates
is that this, like other prosecutions, is committed
to his informed discretio11, which is beyond the reach of
judicial intrusion. Mr. Justice Black and I said, in dissent
in Berra v. United States, 351 U.S. 131, at 140:
" [ I] t is true that under our system Congress
may vest the judge and jury with broad power to
say how much punishment shall be imposed for a
particular offense. But it is quite different to vest
such powers in a prosecuting attorney. A judge
and jury act under procedural rules carefully prescribed
to protect the liberty of the individual.
Their judgments and verdicts are reached after a
public trial in which a defendant has the right to be
represented by an attorney. No such protections
are thrown around decisions by a prosecuting attorney.
Substitution of the prosecutor's caprice for
912 OCTOBER TER:vr, 1972
Dot:GLAS, J., dissenting 412 U.S.
the adjudicatory process is an action I am not willing
to attribute to Congress in the absence of clear command.
Our system of justice rests on the conception
of impersonality in the criminal law."
The Administrative Procedure Act, 5 U. S. C. § 701
et seq., gives the courts power to review "agency action"
and to hold it unlawful, if found to be "contrary to constitutional
right, power, privilege, or immunity." § 706
(2)(B). This arguably is broad enough to reach the
exercise of a prosecutor's discretion in a way that violates
the standards of due process laid down in Kent
and in Gault.
One needs no reminder that government too can be
lawless, that government cannot lead the way in law and
order when it is the great malefactor. The Administrative
Procedure Act is indeed part of the citizen's arsenal
against lawless government. As Professor Kenneth Davis
said in Discretionary Justice 210 ( 1969): "Under the Administrative
Procedure Act judicial review of the exercise
of executive discretion is the rule and unreviewability
is the exception."
Respecting ''the ~cttled judicial tradition" not to interfere
\vith the prosecuting function, Professor Davis says:
"Is it because the tradition became settled during
the nineteenth century when courts were genera.Uy
assuming that judicial intrusion into any administration
would be unfortunate? Is it because the
tradition became settled while the Supreme Court
was actuated by its 1840 remark that 'The interference
of the Courts with the performance of the
ordinary duties of the executive departments of the
government, would be productive of nothing but
mischief'? Is it because the tradition became settled
before the courts made the twentieth-century
discovery that the courts can interfere with executive
412U. S.
ORDERS
May 21, 1973
913
action to protect against abuses but at the same time
can avoid taking over the executive function? Is it
because the tradition became settled before the successes
of the modern system of limited judicial review
became fully recognized?
"On the basis of what the courts know today about
leaving administration to administrators but at the
same time providing an effective check to protect
against abuses, should the courts not take a fresh
look at the tradition that prevents them from reviewing
the prosecuting function? Throughout the
governmental system, courts have found that other
administrative or executive functions are in need of
a judicial check, with a limited scope of review.
The reasons for a judicial check of prosecutors' discretion
are stronger than for such a check of other
administrative discretion that is now traditionally
reviewable. Important interests are at stake.
Abuses are common. The questions involved are
appropriate for judicial determination. And much
injustice could be corrected." Id., at 211-212.
These two questions are large questions and substantial
ones. I would grant the petition for certiorari in
order to resolve them.
No. 72-6491. BECKNER v. SEARS, ROEBUCK & Co. ET
AL. Ct. App. Cal., 2d App. Dist. Certiorari denied.
MR. JusTrCE POWELL took no part in the consideration
or decision of this petition.
Rehearing Denied
No. 71- 1097. YvMICH ET AL. v. CrTY OF CHICAGO,
410 U. S. 908;
No. 72-1025. B. P. 0. E. LODGE No. 2043 OF BRUNSWICK
ET AL. v. INGRAHAM ET AL., 411 r. S. 924; and
No. 72-1087. CARD v. UNITED STATES, 411 U. S. 917.
Petitions for rehearing denied.
914 OCTOBER TERM, 1972
l\fay 21, 29, 1973 412 U.S.
No. 72-1114. HvTTER ET ux. v. KoRzEN, 411 U. S.
912;
No. 72-1134. REIBERT ET AL. v. ATLANTIC RICHFIELD
Co. ET AL., 411 U.S. 938;
No. 72-6040. FAYNE v. BERG, 410 U.S. 969·;
No. 72-6052. LANDRY v. UNITED STATES, 411 U. S.
918; and
No. 72- 6318. LANDES v. PAGEANT-POSEIDON, LTD., 411
U. S. 950. Petitions for rehearing denied.
No. 71-1270. McKEE v. UNITED STATES, 407 U. S. 910,
409 U. S. 899 and 1019. Motion for leave to dispense
with printing petition granted. Motion for leave to file
third petition for rehearing denied.
No. 72-5175. MEYER v. WEIL ET AL., 409 U. S. 1060.
Motion for leave to file petition for rehearing denied.
MAY 29, 1973
Affirmed on Appeal
No. 72-287. MILLER, COMMISSIONER OF MENTAL HYGIENE
OF NEW YORK, ET AL. v. GOMEZ ET AL.; and
No. 72-5272. DEMUNDO ET AL. v. MILLER, COMMISSIONER
OF MENTAL HYGIENE OF NEW YORK, ET AL. Appeals
from D. C. S. D. N. Y. Motion of appellees for
leave to proceed in forma pauperis in No. 72-287 granted.
Judgment affirmed. Reported below: 341 F. Supp. 323.
No. 72-6344. BELL ET AL. v. HEIM, EXECUTIVE DIRECTOR,
NEW MEXICO HEALTH AND SOCIAL SERVICES DEPARTMENT,
ET AL. Affirmed on appeal from D. C. N. M.
Vacated and Remanded on Appeal
No. 72-1302. EDELMAN, DIRECTOR, DEPARTMENT OF
PUBLIC Arn OF ILLINOIS v. TowNSEND ET AL. Appeal
from D. C. N. D. Ill. Motions of appellees Alexander
412 U.8.
ORDERS
May 29 , 1973
915
and Huch er for leave to proceed in f orma JXlUperis
granted. Judgment vacated and case remanded so that
District Court may enter a fresh judgment from which
a timely appe31 may be taken to the Court of Appeals.
Reported below: 345 F. Supp. 666.
Appeals D-isrn-issed
:N"o. 72-1338. GIANT OF MARYLAND , INC. v . STATE 'S
ATTORNEY FOR PRINCE GEORGES CouNTY. Appeal from
Ct. App. Md. dismissed for want of substantial federal
question. Reported below: 267 Md. 501, 298 A. 2d 427.
:N"o. 72 1365. LILLIAN B. A. v. ARTH UR 0. S. Appeal
from Ct. App. N. Y. dismissed for want of substantial
federal question.
No. 72-6506. AMITH v. CALIFORNIA. Appeal from Ct.
App. Cal., 1st App. Dist .. dismissed for want of substantial
federal question.
No. 72 5924. KING v. WEST VIRGINIA. Appeal from
Cir. Ct. W. Ya., Marion County, dismissed for want of
jurisdiction. Treating the papers whereon the appeal
was taken as a. petition for writ of certiorari, certiorari
denied.
No. 72 6412. QuIN'I\T v. FNITED STATES. Appeal from
C. A. 6th Cir. dismissed for want of jurisdiction. Treating
the papers whereon the appeal was ta.ken as a petition
for writ of certiorari, certiorari denied.
No. 72-6047. LAtTRSEN v. CALIFORNIA. Appeal from
Sup. Ct. Cal. dismissed for want of jurisdiction. Treating
the papers whereon the appeal was taken as a petition
for writ of certiorari, certiorari denied. MR. J r sTICE
DoeGLAS would note probable jurisdiction and se t case
for oral argument. Report€d below: 8 Cal. 3d 192, 501
P. 2d 1145.
916 OCTOBEH TERM, 1972
May 29, 1973
Certiorari Granted-Vacated and Remanded
412 u. s.
Ko. 72-780. CALIFORNIA AD"C'LT AUTHORITY ET AL. v.
GRIFFIN ET AL.; and
No. 72-5770. M'CLARY v. CALIFORNIA ADULT AUTHORITY
ET AL. C. A. 9th Cir. Motion of respondents in
I\"" o. 72-780 and of petitioner in No. 72--5770 for leave to
proceed in forma pauperis granted. Certiorari granted,
judgments vacated and cases remanded for further consideration
in light of Gagnon v. Scarpelli, 411 1:. S. 778
(1973). Reported below: No. 72-780, 464 F. 2d 585 and
602; No. 72-5770, 466 F. 2d 1122.
No. 72-5398. GARDNER v. McCARTHY, FACILITY Su-
PERINTENDENT. C. A. 9th Cir. Motion for leave to proceed
in for1na pauperis and certiorari granted. Judgment
vacated and case remanded for further consideration in
light of Gagnon v. Scarpelli, 411 U.S. 778 (1973).
Miscellaneous Orders
~o. A-1137. SMITH v. TEXAS. Ct. Crim. App. Tex.
Application for stay of mandate, presented to MR. J-us-
TICE DouGLAS and by him referred to the Court, denied.
Reported below: 491 S. \V. 2d 924.
No. A-1164. MARBURGER, COMMISSIONER OF EoucATION
OF KEW JERSEY, ET AL. V. PUBLIC FUNDS FOR PUBLIC
ScHooLs OF NEW JERSEY ET AL. D. C. N. J. Application
for stay of preliminary injunction, presented to MR.
JUSTICE BRENNAN and by him referred to the Court,
granted pending further order of this Court. Reported
below: 358 F. Supp. 29.
No. A-1173. RcDERER v. UNITED STATES ET AL. Applications
for immediate equitable aud all other relief,
presented to MR. JUSTICE REHNQDIST and by him referred
to the Court, denied. MK JusTICE BLACKMUN
took no part in the consideration or decision of these
applications.
ORDERS 917
412 u. s. May 29, 1973
No. 72-782. GATEWAY CoAL Co. v. UNITED MINE
WORKERS OF AMERICA ET AL. C. A. 3d Cir. [ Certiorari
granted, 410 U. S. 953.] Motion of Chamber of Commerce
of the United States for leave to file a brief as
amicus curiae in support of petitioner granted.
No. 72-1118. PHILLIPS, ACTING DIRECTOR, OFFICE OF
ECONOMIC OPPORTUNITY, ET AL. V. KENNEDY ET AL. Appeal
from D. C. N. D. Ill. [Probable jurisdiction noted,
411 U. S. 915.] Motion of Michael Kaye for leave to
intervene and to file a brief on the merits denied.
No. 72-6773. SHAVER v. SANDELL ET AL. Justice
Court, East Phoenix Precinct No. 2, Maricopa County,
Arizona. Motion of petitioner to expedite denied.
No. 72-6551. LEWIS v. UNITED STATES CouRT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT ET AL.
Motion for leave to file petition for writ of mandamus
denied.
No. 72-6553. DrxoN v. YouNG, U.S. DISTRICT Jt:DGE.
Motion of petitioner to add Harry Friberg et al. as par•
ties respondent granted. Motion for leave to file petition
for writ of mandamus denied.
Probable Jurisdiction Noted
No. 72-1180. OLD DOMINION BRANCH No. 496, NATIONAL
ASSOCIATION OF LETTER CARRIERS, AFL--CIO, ET
AL. v. AusTIN ET AL. Appeal from Sup. Ct. Va. Probable
jurisdiction noted and case set for oral argument
with No. 72-617 [Gertz v. Robert Welch, Inc., certiorari
granted, 410 U. S. 925]. Reported below: 213 Va. 377,
192 S. E. 2d 737.
Certiorari Granted
No. 72-1355. UNITED STATES v. MATLOCK. C. A. 7th
Cir. Motion of respondent for leave to proceed in forma
918 OCTOBER TERM, 1972
May 29, 1973 412 u. s.
pauperis and certiorari granted. Reported below: 476
F. 2d 1083.
Certiorari Denie.d. (See also Nos. 72-5924, 72-6412, and
72-6047, supra.)
No. 72-304. HowARD, WARDEN v. HEMPHILL. C. A.
6th Cir. Certiorari denied.
No. 72-679. UNITED MINE WORKERS OF AMERICA ET
AL. v. YABLONSKI ET AL. C. A. D. C. Cir. Certiorari
denied. Reported below: 151 U. S. App. D. C. 253, 466
F. 2d 424.
No. 72-1059. ScREEN EXTRAS GUILD v. KERR. C. A.
9th Cir. Certiorari denied. Reported below: 466 F. 2d
1267 and 1271.
No. 72-1119. GOLDEN GRAIN MACARONI Co. v. FEDERAL
TRADE COMMISSION. C.A. 9th Cir. Certiorari denied.
Reported below: 472 F. 2d 882.
No. 72-1165. KAPRELIAN v. ILLINOIS. App. Ct. Ill.,
1st Dist. Certiorari denied. Reported below: 6 Ill. App.
3d 1066, 286 N. E. 2d 613.
No. 72-1181. PRIM v. ILLINOIS. Sup. Ct. Ill. Certiorari
denied. Reported below: 53 Ill. 2d 62, 289 N. E.
2d 601.
No. 72-1183. GrANONE ET AL., DBA GIANONE's STEAK
HOUSE V. ALCOHOLIC BEVERAGE CONTROL BOARD OF CALIFORNIA.
C. A. 9th Cir. Certiorari denied.
No. 72-1268. WILLIAMS v. AETNA LIFE & CASUALTY
Co. C. A. 5th Cir. Certiorari denied. Reported below:
468 F. 2d 952.
No. 72-1271. BRUMBAUGH v. UNITED STATES. C. A.
6th Cir. Certiorari denied. Reported below: 471 F. 2d
1128.
412 U.S.
ORDERS
l\Iay 29, 1973
919
No. 72-1281. EssEx, ADMINISTRATRIX v. WALTERS,
COMMISSIONER OF INTERNAL REVENUE, ET AL. C. A. 8th
Cir. Certiorari denied.
:No. 72-1295. CONSOLIDATED FREIGHTWAYS CORPORATION
OF DELAWARE V. GILSTRAP , COLLECTOR OF REVENUE
OF MISSOURI , ET AL. Sup. Ct. Mo. Certiorari denied.
Reported below: 503 S. W. 2d 1.
No. 72-1299. GARRIS v. UNITED STATES;
N'o. 72- 6389. WILHELM V. °GNITED STATES; and
Xo. 72-6429. TERRY v. UNITED STATES. C. A. 4th
Cir. Cntiorari denied. Reported below: 473 F. 2d 909.
No. 72- 1332. LoEVSKY E'l" AL. V. COMMISSIONER OF
INTERNAL REVENUE. C. A. 3d Cir. Certiorari denied.
Reported below: 471 F. 2d 1178.
No. 72-1344. CALIFORNIA v. KRIVDA ET AL. Sup. Ct.
Cal. Certiorari denied. Reported below: 8 Cal. 3d 623 ,
504 P. 2d 457.
Xo. 72 1347. LoMBARDI v. TArRo ET AL. C. A. 1st
Cir. Certiorari denied. Reported below: 470 F. 2d 798.
Ko. 72 1352. IN RE BAKER. C. A. 9th Cir. Certiorari
denied.
No. 72 1357. \VESTERN DEALER MANAGEMENT, INC.
11• ENGLAND, TRl'STEE IN BANKRUPTCY. C. A. 9th Cir.
CNtiorari denied. Reported below: 473 F. 2d 262.
Xo. 72 13M. \YESTROADS, lNc. v. PEDERSEN ET AL.
Sup. Ct. Xeb. Certiorari denied. Reported below: 189
Keb. 236, 202 N. W. 2d 198.
N'o. 72-1372. DAILEY 11• LISZKA, AKA GHEENE. C'. A.
4th Cir. Certiorari de11ied. Reported below: 473 F. 2d
906.
920 OCTOBER TERM, 1972
May 29, 1973 412 u. s.
No. 72-1373. TRIMBLE v. TEXAS STATE BoARD OF REGISTRATION
FOR PROFESSIONAL ENGINEERS. Ct. Civ. App.
Tex., 8th Sup. Jud. Dist. Certiorari denied. Reported
below: 483 S. W. 2d 275.
No. 72-1376. PERMIAN CORP. ET AL. v. COFFEE. C. A.
5th Cir. Certiorari denied. Reported below: 474 F. 2d
1040.
No. 72- 5709. MARTINEZ v. ALLDREDGE. C. A. 3d Cir.
Certiorari denied. Reported below: 468 F. 2d 684.
No. 72-6203. HALL v. UNITED STATES. C. A. 2d Cir.
Certiorari denied.
No. 72-6224. BERKLEY v. UNITED STATES. C. A. 6th
Cir. Certiorari denied. Reported below: 471 F. 2d 655.
No. 72-6230. MARTIN v. UNITED STATES. C. A. 6th
Cir. Certiorari denied.
No. 72-6244. EscoBAR v. UNITED STATES. C. A. 2d
Cir. Certiorari denied.
No. 72-6295. BoYSAW v. OHIO. Ct. App. Ohio, Ashtabula
County. Certiorari denied.
No. 72-6309. LARSEN V. PROCUNIER, CORRECTIONS DIRECTOR,
ET AL. C. A. 9th Cir. Certiorari denied.
No. 72-6315. RODRIGUES v. DAGGET, WARDEN. C. A.
9th Cir. Certiorari denied.
No. 72-6324. O'DELL v. ILLINOIS. Sup. Ct. Ill. Certiorari
denied. Reported below: See 8 Ill. App. 3d 203,
289 N. E. 2d 686.
No. 72- 6336. JACOBS v. UNITED STATES. C. A. 10th
Cir. Certiorari denied. Reported below: 473 F. 2d 461.
No. 72-6351. STUDT v. UNITED STATES. C. A. 8th
Cir. Certiorari denied.
ORDERS 921
412 U.S. .\fay 29, 1973
No. 72-6357. MAxw.1<,LL v. UNITED STATES. Ct. App.
D. C. Certiorari denied. Reported below: 297 A. 2d
771.
No. 72--6363. MATNEY v. UNITED STATES. C. A. 6th
Cir. Certiorari denied. Reported below: 472 F. 2d 704.
No. 72-6370. RANCE v. NEW YoRK. App. Div., Sup.
Ct. N. Y., 4th Jud. Dept. Certiorari denied.
No. 72-6375. STANSEL v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 473 F. 2d 1045.
No. 72-6384. O'CLAIR v. UNITED STATES. C. A. 1st
Cir. Certiorari denied. Reported below: 470 F. 2d 1199.
No. 72--6386. BETANCOURT v. UNITED STATES. C. A.
2d Cir. Certiorari denied.
No. 72-6392. WHEELER v. UNITED STATES. C. A. 4th
Cir. Certiorari denied.
No. 72-6393. ALVAREZ v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 472 F. 2d 111.
No. 72-6394. BRIGHT v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 471 F. 2d 723.
No. 72-6395. KACZYNSKI v. UNITED STATES ET AL.
C. A. 6th Cir. Certiorari denied.
No. 72--6404. FISCH v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 474 F. 2d 1071.
No. 72-6405. HEARD v. UNITED STATES. C. A. 6th
Cir. Certiorari denied.
No. 72- 6408. BURNS v. UNITED STATES. C. A. 4th
Cir. Certiorari denied.
No. 72-6415. DucKWORTH v. UNITm STATES. C. A.
6th Cir. Certiorari denied.
922
No. 72-6420.
C. A. 5th Cir.
OCTOBER TER.1\1, 1972
]\fay 29, 1973 412 u. s.
TATE V. BLACKWELL, WARDEN, ET AL.
Certiorari denied.
No. 72-6516. REARDON v. MEACHAM, PENITENTIARY
SUPERINTENDENT. C. A. 10th Cir. Certiorari denied.
No. 72-6517. DAVID v. MARYLAND. C. A. 4th Cir.
Certiorari denied. Reported below: 473 F. 2d 906.
No. 72-6521. BRYANT ET AL. v. ALABAMA. Ct. Crim.
App. Ala. Certiorari denied. Reported below: 49 Ala.
App. 359, 272 So. 2d 286.
No. 72-6525. LEE v. BLACKLEDGE, WARDEN. C. A.
4th Cir. Certiorari denied.
::-.To. 72-6536. REESE v. MARS1No, CORRECTIONAL Sv-
PERINTENDENT. C. A. 6th Cir. Certiorari denied.
No. 72-6545. POTTER v. CALIFORNIA. Ct. App. Cal.,
2d App. Dist. Certiorari denied.
No. 72-1207. BRANDYWINE-MAIN LINE RADIO, INc.
V. FEDERAL COMMUNICATIONS COMMISSION ET AL. C. A.
D. C. Cir. Certiorari denied. MR. JusTICE DouGLAS
would grant certiorari. Reported below: 153 U. S. App.
D. C. 305,473 F. 2d 16.
No. 72-1212. CouNTY OF NASSAU ET AL. v. UNITED
STATES. C. A. 2d Cir. Certiorari denied. MR. JUSTICE
DouGLAS would grant certiorari. Reported below: 470
F. 2d 675.
No. 72- 1367. RHINEHART v. RHAY, PENITENTIARY
S1IPERINTENDENT, ET AL. C. A. 9th Cir. Certiorari denied.
MR. JusTICE DOUGLAS would grant certiorari.
No. 72- 6308. SANDERS v. ILLINOIS. Sup. Ct. Ill.
Certiorari denied. MR. JUSTICE DOUGLAS ,vould grant
certiorari. Reported below: See 6 Ill. App. 3d 820, 286
N. E. 2d 785.
ORDERS 923
412 U.S. May 29, 1973
Ko. 72 6528. SOLOMON v. TENNESSEE. Ct. Crim.
App. Tenn. Certiorari denied. MR. JUSTICE DouGLAS
would grant certiorari. Reported below: 489 S. W. 2d
547.
No. 72-6541. SrLLIVAN v. PENNSYLVANIA. Sup. Ct.
Pa. Certiorari denied. MR. JUSTICE DouGLAS would
grant certiorari. Reporte>d below: 450 Pa. 273, 299 A.
2d 608.
~o. 72 1341. PLACID OIL Co. ET AL. v. MclLWAIN
ET AL. C. A. 5th Cir. Motion of re8pondent Mcilwain
for leave to proceed in forma pauperis granted. Certiorari
denied. Reported below: 472 F. 2d 248.
No. 72-1343. LENNY v. MELLODY ETAL. Pa. Commw.
Ct. Motion to diRpense with printing petition granted.
Certiorari denied.
Xo. 72-1353. CORPORACION DEL C'oBRE ET AL. v . ANACONDA
Co. ET AL. C. A. 2d Cir. Certiorari denied. l\'[R.
JvsTICE DouGLAS took no part in the consideration or
decision of this petition.
~o. 72-1375. HOBART BROTHERS Co. v. MALCOLM T.
GILLILAND , INC. C'. A. 5th Cir. Motion of Ohio Manufacturers
Assn. for leave to file a brief as amicus curi.ae
granted. Certiorari denied. Reported below: 471 F. 2d
894.
Rehearing Denied
:No. 72 871. SILVERS v. DowLING, JrDGE, ET AL., 411
LT. S. 944;
No. 72-5961. KELLY v. UNITED STATES, 411 U. S. 933;
and
No. 72-6264. KRIKMANIS v. RocKEFELLER, GovERNOR
OF K,rw YORK, ET AL., 411 F. f;. 937. Petitions for rehearing
denied.
924 OCTOBER TERM, 1972
:\lay 29, .June 4, 1973 412 U.S.
No. 72-6273. BoYD v. NEw MExico, 411 U. S. 937;
and
Ko. 72-6409. HAWKINS v. HAWKINS, 411 U. S. 971.
Petitions for rehearing denied.
Xo. 71-6873. NEELY v. FIELD, U. S. DISTRICT JUDGE,
ET AL., 409 U.S. 871, 1050, and 410 U.S. 917. Motion
for leave to file third petition for rehearing denied.
No. 72-1294. \VASHINGTON KELPERS AssN. v. WASHINGTON
ET AL., 411 U. S. 982. Motion to dispense with
printing petition for rehearing granted. Petition for rehearing
denied.
Jl,"'NE 4, 1973
Affirmed on Appeal
No. 72-745. RYAN v. KLEIN ET AL. Affirmed on appeal
from D. C. E. D. N. Y. Reported below: 347 F.
Supp. 946.
X 0. 72-943. FISHER, COMMISSIONER, DEPARTMENT OF
HEALTH AND "WELFARE OF MAINE, ET AL. v. GRAVES ET AL.
Appeal from D. C. Me. Motion of appellees for leave
to proceed in forrna pauperis granted. Judgment affirmed.
Reported below: 361 F. Supp. 1356.
No. 72-1251. STANDARD OIL COMPANY OF CALIFORNIA
v. UNITED STATES. Affirmed on appeal from D. C. N. D.
Cal. MR. JusTICE WHITE took no part in the consideration
or decision of this appeal
No. 72-1406. OLDROYD ET AL. v. KuGLER, ATTORNEY
GENERAL OF NEW JERSEY, ET AL. Affirmed on appeal
from D. C. N. J. MR. JUSTICE DouGLAS would note
probable jurisdiction and set case for oral argument. Reported
below: 352 F. Supp. 27.
No. 72- 1408. CARLESON, DIRECTOR, DEPARTMENT OF
SocIAL WELFARF; v. YEE-LITT ET AL. Appeal from D. C.
N. D . Cal. Motion of appellees for leave t o proceed in
ORDERS 925
412 U.S. June 4, 1973
for1na pauperis granted. Judgment affirmed. Reported
below: 353 F. Supp. 996.
Appeals Dismissed
No. 72-1178. STEIN v. HOWLETT, AUDITOR OF PUBLIC
AccouNTS OF ILLINOIS, ET AL. Appeal from Sup. Ct. Ill.
dismissed for want of substantial federal question. Reported
below: 52 Ill. 2d 570, 289 N. E. 2d 409.
No. 72-1413. !Tz ET ux. v. PENICK ET AL. Appeal
from Sup. Ct. Texas dismissed for want of substantial
federal question. Reported below: 493 S. W. 2d 506.
No. 72-1415. RICHTER ET ux. v. COMMISSIONER OF
INTERNAL REVENUE. Appeal from C. A. 2d Cir. dismissed
for want oi jurisdiction. Treating the papers
whereon the appeal was taken as a petition for writ of
certiorari, certiorari denied.
No. 72-1447. BLACKBURN v. INDIANA. Appeal from
Sup. Ct. Ind. dismissed for want of substantial federal
question. Reported below: - Ind. - , 291 N. E. 2d
686.
No. 72-6221. SAYLES v. ALBERT MrnMAN & Assoc1-
ATES, INC. Appeal from Ct. App. D. C. dismissed for
want of jurisdiction. Treating the papers whereon the
appeal was taken as a petition for writ of certiorari,
certiorari denied.
No. 72-6293. GEMMILL ET AL. v. CALIFORNIA. Appeal
from Super. Ct. Cal., Shasta County, dismissed for
want of substantial federal question. MR. JusTICE DouGLAS
would note probable jurisdiction and set case for oral
argument.
Vacated an,d Remande.d on Appeal
No. 72-770. COMMISSIONER OF SocIAL SERVICES OF
NEw YoRK ET AL. v. KLEIN ET AL.; and
No. 72-803. NASSAU COUNTY MEDICAL CENTER ET AL.
v. KLEIN ET AL. Appeals from D. C. E. D. N. Y. Judg926
OCvfOBER TERM, 1972
June 4, 1973 412 u. 8.
ment vacated and cases remanded for further consideration
in light of Roe v. Wade, 410 r. S. 113 (1973), and
Doe v. Bolton, 410 l . S. li9 (1973). Reported below:
347 F. Supp. 496.
Certiorari Granted-Vacated and Remanded. (See No.
72 1164. ant(, p. 427.)
Certiorari Granted-Reversed and Remanded. ( See
No. 72-6198, ante, p. 430.)
Miscellaneous Orders
~o. A-1124. HENRY ET AL. v. WARNER, SECRETARY OF
THE NAVY, ET AL. Application for order to vacate in
part order of the United States Court of Appeals for the
~inth Circuit, dated May 8, 1973, presented to MR. Jus-
TICE DOl:GLAS, and by him referred to thr Court, denied.
No. 71-1255. "CNITED STATES v. AsH. C. A. D. C. Cir.
[Certiorari granted, 407 C. S. 909.] Motion of respondent
for leave to file supplemental brief after argument
granted.
No. 72- 6660. BUCKLES V. MEACHAM, PENITENTIAltY
SUPERINTENDENT, ET AL.;
Xo. 72-6662. \YAHD v. ANDEHSON, WARDEN; and
Xo. 72-6682. l\1cKe-rnEY v. CRAVEN, \YARDEN. Motions
for leave to file petitions for writs of habeas corpus
denied.
No. 72 6537. ACARINO V. MISHL~R. CHIEF JrDGE,
lT. S. DISTRICT CovRT. Motion for leave to file petition
for writ of mandamus denied.
Probable Jurisdiction Noted
No. 72- 6156. LEw1s v. CITY OF NEw ORLEANS. Appeal
from :--;up. Ct. La. .Motiou for leave to proceed in
forma pauperis granted. Probable jurisdiction not<'d.
Reported below: 263 La. 808, 269 So. 2d 450.
ORDERS 927
412 U.S. June 4, 1973
Certiorari Granted
No. 72-851. ONEIDA INDIAN NATION OF NEw YORK
ET AL. v. CovNTY OF ONEIDA, NEw YoRK, ET AL. C. A.
2d Cir. Certiorari granted. Reported below: 464 F. 2d
916.
No. 72-1061. WINDWARD SHIPPING (LONDON), LTD.,
ET AL. v. AMERICAN RADIO AssocIATION, AFL-CIO, ET AL.
Ct. Civ. App. Tex., 14th Sup. Jud. Dist. Certiorari
granted. Reported below: 482 S. W. 2d 675.
No. 72-1371. WALTERS, COMMISSIONER OF INTERNAL
REVENUE v. "AMERICANS UNITED" INc. C. A. D. C. Cir.
Certiorari granted. Reported below: 155 U.S. App. D. C.
284,477 F. 2d 1169.
Certiorari Denied. (See also Nos. 72-1415 and 72-6221,
supra.)
Ko. 71-6416. HARRIS v. UNITED STATES. C. A. 8th
Cir. Certiorari denied. Reported below: 453 F. 2d 1317.
No. 71- 6770. FIELDS v. UNITED STATES. C. A. 3d Cir.
Certiorari denied. Reported below: 458 F. 2d 1194.
Ko. 72-267. KELLY ET AL. v. UNITED STATES. C. A.
5th Cir. Certiorari denied. Reported below: 465 F. 2d
147.
No. 72- 1117. PROSCH v. UNITED STATES. C. A. 5th
Cir. Certiorari denied.
No. 72-1219. BALLARD v. CALIFORNIA. App. Dept.,
Super. Ct. Cal., County of San Francisco. Certiorari
denied.
Ko. 72-1243. RACHAL v. UNITED STATES; and
Ko. 72-6364. HUNNICUTT v. UNITED STATES. C. A.
5th Cir. Certiorari denied. Reported below: 473 F. 2d
1338.
928 OCTOBER TER.\11, 1972
June 4, 1973 412 u. s.
Ko. 72-1262. STANu;y WORKS v. FEDERAL TRADE COMMISSION.
C. A. 2d Cir. Certiorari denied. Reported
below: 469 F. 2d 498.
No. 72-1266. SEUSS v. UNITED STATES. C. A. 1st Cir.
Certiorari denied. Reported below: 474 F. 2d 385.
No. 72-1270. CUNDY v. SOl,"TH DAKOTA. Sup. Ct.
S. D. Certiorari denied. Reported below: 86 S. D. 766,
201 N. \V. 2d 236.
Ko. 72-1290. BuFALINO v. IMMIGRATION AND NATURALIZATION
SERVICE. C. A. 3d Cir. Certiorari denied.
Reported below: 473 F. 2d 728.
No. 72-1293. SELB MANUFACTURING Co. v. UNITED
STATES. C. A. 8th Cir. Certiorari denied. Reported
below: 472 F. 2d 207.
No. 72-1324. GooDING v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 473 F. 2d 425.
No. 72-1354. GRACI ET AL. v. UNITED STATES. C. A.
5th Cir. Certiorari denied. Reported below: 472 F. 2d
124.
No. 72-1363. MoNROE AuTo EQUIPMENT Co., HARTWELL
DIVISION V. !-;'ATIONAL LABOR RELATIONS BOARD.
C. A. 5th Cir. Certiorari denied. Reported below: 470
F. 2d 1329.
No. 72-1381. UNITED STATES v. TINNEY. C. A. 3d
Cir. Certiorari denied. Reported below: 473 F. 2d 1085.
No. 72-1384. DuMoN v. KENTUCKY. Ct. App. Ky.
Certiorari denied. Reported below: 488 S. W. 2d 343.
No. 72-1397. LOPEZ v. WASHINGTON, MAYOR OF
WASHINGTON, D. C., ET AL. C. A. D. C. Cir. Certiorari
denied.
ORDERS 929
412 U.S. June 4, 1973
No. 72-1400. CARTER-WALLACE, INC. v. OTTE, TRUSTEE
IN BANKRUPTCY. C. A. 2d Cir. Certiorari denied. Reported
below: 474 F. 2d 529.
No. 72-5496. BRUMLEY ET AL. v. UNITED STATES.
C. A. 10th Cir. Certiorari denied. Reported below: 466
F. 2d 911.
No. 72-5691. YouNG v. UNITED STATES. C. A. 7th
Cir. Certiorari denied. Reported below: 471 F. 2d 109.
No. 72-5776. SPRoss v. CRAVEN, WARDEN. Sup. Ct.
Cal. Certiorari denied.
No. 72-6288. JoNES v. SWENSON, WARDEN. C. A. 8th
Cir. Certiorari denied. Reported below: 469 F. 2d 535.
No. 72-6321. ROJAS v. ARIZONA ET AL. C. A. 9th Cir.
Certiorari denied.
No. 72-6322. MEYER v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 471 F. 2d 652.
No. 72-6358. GRANGER v. UNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 475 F. 2d 1022.
No. 72--6388. MARTIN v. ADMINISTRATOR OF VETERANS'
AFFAIRS. C. A. D. C. Cir. Certiorari denied.
No. 72--6398. ALLEN v. UNITED STATES. C. A. D. C.
Cir. Certiorari denied.
No. 72-6400. BURROUGHS v. UNITED STATES. C. A.
D. C. Cir. Certiorari denied.
No. 72- 6402. LEMONS v. UNITED STATES. C. A. 3d
Cir. Certiorari denied. Reported below: 470 F. 2d 135.
No. 72-6411. TUCKER v. UNITED STATES. C. A. 8th
Cir. Certiorari denied. Reported below: 470 F. 2d 220.
No. 72- 6418. TREXLER v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 474 F. 2d 369.
930 OCTOBER TERM, 1972
June 4, 1973 412 U.S.
Xo. 72 6424. STROUD v. rNITED STATES. C. A. 9th
Cir. Certiorari denied. Reported below: 474 F. 2d 737.
Xo. 72- 6425. WASHINGTON V . rNITED STATES. C. A.
5th Cir. Certiorari denied. Reported below: 471 F. 2d
402.
No. 72-6427. SMITH v. ESTELLE, CoRRECTIONS DIRECTOR.
C. A. 5th Cir. Certiorari denied. Reported below:
471 F. 2d 609.
~o. 72 6435. NOVAK v. UNITED STATES. C'. A. 7th
Cir. Certiorari denied. Reported below: 475 F. 2d 180.
Xo. 72-6436. SAVAGE l'. rNITED STATES. C. A. 3d Cir.
Cntiorari denied. Reported below: 470 F. 2d 948.
~o. 72 6440. ROWE V. rNITED STATES. C. A. 5th Cir.
Certiorari denied.
I\o. 72 6445. SrMIDA v. UNITED STATES. C. A. 9th
Cir. Certiorari denied.
No. 72 6450. PREZZI v. BERZAK ET AL. C. A. 2d Cir.
Certiorari denied.
N"o. 72 6488. BARFIELD V. HARRIS, ,v ARDEN, ET AL.
C. A. 10th Cir. Certiorari denied.
N"o. 72 6543. OLIVER v. SHAPP, GovERNOR OF PENNSYLVANIA,
ET AL. C. A. 3d Cir. Certiorari <leuied.
~o. 72 6557. SMILEY V. LAYALLEB, CORRECTIONAL Sr-
PEIUNTENDENT. C. A. 2d Cir. Certiorari d('nicd.
~o. 72 6558. SMILEY v. LAYALLEE, C'oRRECTIONAI, Sr-
PERINTENDENT. C. A. 2d Cir. Certiorari denied.
No. 72-6571. TANNER v. TwoMEY, WARDEN. C. A.
7th Cir. Certiorari denied.
ORDERS 931
412 U.S. June 4, 1973
No. 72-6572. LICON v. CALIFORNIA. Ct. App. Cal.,
2d App. Dist. Certiora.ri denied.
No. 72-6577. WHEELER v. KEW YORK. App. Div.,
Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied. Reported
below: 40 App. Div. 2d 348, 340 X Y. S. 2d 196.
No. 72-6581. DODGE v. JOHNSON, WARDEN. C. A. 6th
Cir. Certiorari denied. Reported below: 471 F. 2d 1-249.
No. 72-6584. SCOTT V. ESTELLE, CORRECTIONS DIRECTOR.
Ct. Crim. App. Tex. Certiorari denied.
No. 72-6590. HINSON v. NORTH CAROLINA. Ct. App.
N. C. Certiorari denied. Reported below: 17 N. C. App.
25, 193 S. E. 2d 415.
No. 72-6603. JAYNES v. JAYNES ET AL. C. A. 5th Cir.
Certiorari denied. Reported below: 474 F. 2d 1345.
No. 72-1108. MOBIL OIL CoRP. v. FEDERAL POWER
COMMISSION. C. A. D. C. Cir. Certiorari denied. MR.
JUSTICE DouGLAS would grant certiorari. Reported below:
469 F. 2d 130.
No. 72-1169. ENVIRONMENTAL DEFENSE FuND, !Ne.,
ET AL. V. CORPS OF ENGINEERS OF THE UNITED STATES
ARMY ET AL. C. A. 8th Cir. Certiorari denied. MR.
JusTICE DouGLAS would grant certiorari. Reported below:
470 F. 2d 289.
No. 72-1247. Two v. UNITED STATES ET AL. C. A.
9th Cir. Certiorari denied. MR. JusTICE DouGLAS would
grant certiorari. Reported below: 471 F. 2d 287.
No. 72- 1291. ATKINS v. UNITED STATES. C. A. 8th
Cir. Certiorari denied. MR. JUSTICE DOUGLAS would
grant certiorari. Reported below: 473 F. 2d 308.
932 OCTOBER TERM, 1972
June 4, 1973 412 U.S.
No. 72-6355. MosLEY v. SMITH, WARDEN. C. A. 5th
Cir. Certiorari denied. MR. JUSTICE DovGLAS would
grant certiorari. Reported below: 470 F. 2d 1320.
No. 72-6391. THOMAS v. UNITED STATES. C. A. 10th
Cir. Certiorari denied. MR. JUSTICE DOUGLAS would
grant certiorari. Reported below: 474 F. 2d 110.
No. 72-6503. DRAGONETTE V. CITY OF EAST CLEVELAND.
Sup. Ct. Ohio. Certiorari denied. MR. JUSTICE
DouGLAS would grant certiorari. Reported below: 32
Ohio St. 2d 147, 290 N. E. 2d 571.
Ko. 72-6529. DUKE v. NORTH TEXAS STATE UNIVERSITY
ET AL. C. A. 5th Cir. Certiorari denied. MR. Jus-
'rICE DOl,"GLAS would grant certiorari. Reported belov,:
469 F. 2d 829.
No. 72-6559. WILLIAMS v. CLINCHFIELD CoAL Co.
Sup. Ct. Va. Certiorari denied. MR. JUSTICE DouGLAS
would grant certiorari. Reported below: 213 Va. 445,
192 S. E. 2d 751.
No. 72- 1048. CARDWELL, WARDEN v. WORKMAN; and
No. 72- 6600. WORKMAN v. CARDWELL, WARDEN. C. A.
6th Cir. .Motion to dispense with printing petition and
motion of respondent for leave to proceed in forma
pauperis in No. 72-1048 granted. Certiorari denied.
Reported below: 471 F. 2d 909.
Xo. 72-1279. DIAMOND v. UNITED STATES. C. A. 9th
Cir. Motion to dispense with printing petition granted.
Certiorari denied. Reported below: 471 F. 2d 771.
No. 72- 1425. UNITED STATES v. LEATHERS ET AL.
C. A. 8th Cir. Certiorari denied. MR. JusTICE DouGLAS
and l\1R. JUSTICE BLACKMt;N took no part in the
ORDERS 933
412 U.S. June 4, 8, 1973
consideration or decision of this petition. Reported below:
471 F. 2d 856.
No. 72-1436. UNITED TRANSPORTATION UNION LODGE
550 ET AL. v. RocK ET AL. C. A. 4th Cir. Certiorari
denied. MR. JusTICE POWELL took no part in the consideration
or decision of this petition. Reported below:
473 F. 2d 1344.
Rehearing Denied
No. 71-1082. ASKEW, GovERNOR OF FLORIDA, ET AL.
V. AMERICAN WATERWAYS OPERATORS, INC., ET AL., 411
u. s. 325;
No. 71-1545. BuTz, SECRETARY OF AGRICULTURE, ET
AL. v. GLOVER L1vEsTocK CoMMrssrnN Co., INc., 411 U.S.
182; and
No. 72-6133. LANDIS v. UNITED STATES, 411 U.S. 935.
Petitions for rehearing denied.
No. 72-5024. CAMPBELL V. GEORGIA ET AL., 409 U. S.
984; and
No. 72- 5921. STOKES v. UNITED STATES POSTAL SERVICE
ET AL., 410 U. S. 985. Motions for leave to file petitions
for rehearing denied.
JUNE 8, 1973
MisceUaneous Order
No. A-1219. HELFANT v. KuGLER, ATTORNEY GENERAL
OF NEW JERSEY, ET AL. Application for injunction
pending disposition of appeal in the United States Court
of Appeals for the Third Circuit presented to MR. JUSTICE
BRENNAN, and by him referred to the Court, denied.
Mr. JusTICE BRENNAN took no part in the consideration
or decision of this application.
934 OCT013ER TERM, rnn
JrNE 11, 1973
Affirmed 011 A7>peal
412 u. s.
No. 72-1327. REA EXPRESS, INC. v. ALARAMA GREAT
SorTHERN RAILROAD Co. ET AL. Affirmed on appeal from
D. C. ~- D. ~- Y. ~IR. JrsT1n: PowELL took no part in
the coni;:idE'ration or dE'Ci"ion of this appeal RPported
below: Sec 343 F. Supp. 851.
No. 72-1594. DIAMOND ET AL. v. "CNITED STATES ET
AL. Appeal from D. C. D. C. Motion to dispense with
printing jurisdictional statement granted. Judgment affirmed.
Motion for injunction denied. MR. JrsTJCE
POWELL took no part in thE' consideration or decision of
this appeal and these motions.
Ko. 72-6725. Ross ET AL. v. BRo,vN TITLE ConP. ET
AL. Affirmed on appeal from D. C. E. D. La. MR. Jrs-
TICE DorGLAS dissents from affirmance. Reported below:
:356 F. Supp. 595.
,lppeals Dismissed
Xo. 72 1405. ~OSES LAKE SCHOOL DISTRICT 161 ET
AL. 11• Bm BEND CoMMPNITY COLLEGE, DrsTRICT 18. ET
AL. Appeal from Sup. Ct. Wwh. dismiei;:ed for want of
substantial federal question. Reported below: 81 Wash.
2d ,'551. ,503 P. 2d 86.
No. 72-1438. SMITH v. YrnGINIA. Appeal from Sup.
Ct. Ya. diim1issr<l for want of substantial federal question.
Xo. 72 6611. ANDER v. ANDEH. Appeal from Ct.
App. X. Y. dismiesed for want of substantial federal
question.
Xo. 72 6350. MASON v. PANAMA CANAL Co. Appeal
from C. A. 5th Cir. dismissed for want of juriediction.
Treating: the papers whereon thC' appeal was takf'11 as a
ORDERS 935
412U. S. June 11, 1973
petition for -writ of certiorari, certiorari denied. MR.
JusTICE DouGLAS dissents from denial of petition believing
that case is not moot, and would vacate judgment and
remand the cause to the trial court for resolution of respondent's
counterclaim. Reported below: 469 F. 2d
1120.
Certiorari Granted-Vacated and Remanded
No. 71-1245. SLAYTON, PENITENTIARY SUPERINTENDENT
v. HAMMER. C. A. 4th Cir.;
No. 71-1472. NEIL, WARDEN v. PENDERGRASS. C. A.
6th Cir. Reported below: 456 F. 2d 469;
No. 71-1495. CowAN, PENITENTIARY SUPERINTENDENT
v. BRUCE. C. A. 6th Cir. Reported below: 457 F.
2d 365; and
No. 72-400. RosE, WARDEN v. RIVERA. C. A. 6th Cir.
Reported below: 465 F. 2d 727. Motions of respondents
for leave to proceed in forma pauperis and certiorari
granted. Judgments vacated and cases remanded for
further consideration in light of Michigan v. Payne, ante,
p. 47, and Chaffin v. Stynchcombe, ante, p. 17. MR.
JusTICE DouGLAS would affirm the judgments. See
Michigan v. Payne, ante, p. 58. Chaffin v. Stynchcombe,
ante, p. 35, and Moon v. Maryland, 398 U. S. 319, 321
( 1970), dissenting opinions.
No. 71-1281. LINDER, WARDEN v. RECOR. C. A. 6th
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 Chaffin
v. Stynchcombe, ante, p. 17. MR. JusTICE DouGLAS
would affirm the judgment. See Chaffin v. Stynchcombe,
ante, p. 35, and Moon v. Maryland, 398 U. S. 319, 321
( 1970) (dissenting opinions).
936 OCTOBER TERM, 1972
June 11, 1973 412 U.S.
No. 72-761. UNITED STATES v. McGRATH. C. A. 7th
Cir. Motion of respondent for leave to proceed inf orma
pauperis and <!ertiorari granted. Judgment vacated and
case remanded for further consideration in light of United
States v. Russell, 411 U. S. 423 (1973). Reported below:
468 F. 2d 1027.
Certiorari Granted-Reversed. (See No. 72-1310, ante,
p. 543.)
1'1 iscell.aneous Orders
:!\o. D-10. IN RE DISBARMENT OF KmTz. It is ordered
that Frank G. Kirtz, of St. Louis, Missouri, be
suspended from the practice of law in this Court and
that a rule issue returnable \Vithin 40 days requiring
him to show cause why he should not be disbarred from
the practice of law in this Court.
No. A-1034. RuDERER v. JOHNSON. Application for
equitable relief by injunction and enforcement of orders,
etc., denied. MR. JusTICE BLACKMUN took no part in
the consideration or decision of this application.
No. 35, Orig. UNITED STATES v. MAINE ET AL. Motion
of Commonwealth of Massachusetts for preliminary
injunction denied. MR. JUSTICE DouGLAS would grant
the preliminary injunction. [For earlier orders herein,
see, e. g., 408 U. S. 917.]
No. 72-700. HERNANDEZ ET AL. v. VETERANS' ADMINISTRATION
ET AL. C. A. 9th Cir. Certiorari granted, 411
U. S. 981. Motion of petitioners for leave to proceed on
original record granted.
Ko. 72-936. UNITED STATES v. ROBINSON. C. A.
D. C. Cir. [Certiorari granted, 410 U. S. 982.] Motion
of Americans for Effective Law Enforcement, Inc., et al.,
for leave to file a brief as amici curiae in support of petitioner
granted.
ORDERS 937
412 U.S. June 11, 1973
No. A-1194 (72- 1418). SENDAK, ATTORNEY GENERAL
OF INDIANA v. DILLIN, u. s. DISTRICT JUDGE. C. A. 7th
Cir. Application for stay of order of U. S. District Court
for the Southern District of Indiana, dated March 19,
1973, denied.
No. A-1196 (72-6862). BROWN v. UNITED STATES.
C. A. 4th Cir. Application for stay of mandate presented
to MR. JusTICE DouGLAS, and by him referred to
the Court, denied.
No. 72-6753. HYDE v. CRAVEN, WARDEN. Motion for
leave to file petition for writ of habeas corpus denied.
No. 72-6555. PARKER v. UNITED STATES CouRT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ET AL.
Motion for leave to file petition for writ of mandamus
and/or prohibition denied.
No. 72-6608. RicE v. BouRBON CrncurT CouRT, PARIS,
KENTUCKY. Motion for leave to file petition for writ
of mandamus denied.
Certiorari Granted
No. 72-1035. ROGERS v. LOETHER ET AL. C. A. 7th
Cir. Motion to dispense with printing respondents' brief
and petition for writ of certiorari granted. Case set for
oral argument with No. 72-6041 [Pernell v. Southall
Realty, certiorari granted, 411 U.S. 915]. Reported below:
467 F. 2d 1110.
No. 72-1322. BRADLEY ET AL. v. ScHOOL BOARD OF THE
CrTY OF RICHMOND ET AL. C. A. 4th Cir. Certiorari
granted. MR. JUSTICE MARSHALL and MR. JusTICE
PowELL took no part in the consideration or decision of
this petition. Reported below: 472 F. 2d 318.
No. 72-1410. EDELMAN, DIRECTOR, DEPARTMENT OF
PUBLIC Arn OF ILLINOIS v. JORDAN. C. A. 7th Cir. Mo938
OCTOBER TERM, 1972
June 11, 1973 412 u. s.
tion of respondent Jordan for leave to proceed in forma
pauperis and certiorari granted. Reported below: 472
F. 2d 985.
~o. 72-6476. HAGANS ET AL. v. LAVINE, COMMISSIONER,
NEW YORK DEPARTMENT OF SOCIAL SERVICES,
ET AL. C. A. 2d Cir. Motion for leave to proceed in
forma pauperis and certiorari granted. Reported below:
471 F. 2d 347.
No. 72-6520. LAu ET AL. v. NICHOLS ET AL. C. A. 9th
Cir. Motion for leave to proceed in forma pauperis
and certiorari granted.
Certiorari Denied. (See also No. 72-6350, supra.)
No. 72- 1163. BITHONEY ET AL. v. UNITED STATES.
C. A. 2d Cir. Certiorari denied. Reported below: 472
F. 2d 16.
No. 72-1166. WRIGHT v. UNITED STATES. C. A. 6th
Cir. Certiorari denied. Reported below: 468 F. 2d 1184.
No. 72-1179. KANAREK v. SUPERIOR CouRT OF CALIFORNIA,
COUNTY OF Los ANGELES, ET AL. Ct. App. Cal.,
2d App. Dist. Certiorari denied.
No. 72-1182. GAus v. UNITED STATES. C. A. 7th Cir.
Certiorari denied. Reported below: 471 F. 2d 495.
No. 72- 1198. AN ARTICLE OF DRUG . . . "BENTEX
ULCERINE" v. UNITED STATES. C. A. 5th Cir. Certiorari
denied. Reported below: 469 F. 2d 875.
No. 72- 1235. WHITMAN CENTER, INc. v. GuLF OIL
CORP. C. A. 9th Cir. Certiorari denied.
No. 72-1285. STANDARD OIL Co., INC., ET AL. v.
WRIGHT ET ux. C. A. 5th Cir. Certiorari denied. Reported
below: 470 F. 2d 1280.
ORDERS 939
412 u. s. .Tune 11, 19i3
Xo. 72-1300. RraGIERO v. °CNITED STATES. C'. A. 2d
Cir. Certiorari denied. Reported below: 472 F. 2d 590.
Xo. 72- 1306. RAmo-TELEvrsrnN, S. A., ET AL. v. FEn-
EHAL C'OMMl'NICATIONS COMMISSION. C. A. D. C. Cir.
Certiorari denied.
~o. 72-1309. "\Voon, WrnE & METAL LA'rIIERS INTERNATIONAL
rNION, LOCAL 1.JNION 46, ET AL. V. UNITED
STATES. <1. A. 2d Cir. Certiorari denied. Reported below:
471 F. 2d 408.
~o. 72-1321. NORTHERN ~ATl'RAL GAS Co. ET AL. V.
UNITED STATES. C. A. 8th Cir. Certiorari denied. Reported
below: 470 F. 2d 1107.
No. 72-1325. MANGAIAMELI v. UNITED STATES. C. A.
2d Cir. Certiorari denied.
No. 72 1329. H. KESSLER & Co. v . EQ"lfAL EMPLOYMENT
0PPORT1'NITY COMMISSION. C. A. 5th Cir. Certiorari
denied. Reported below: 472 F. 2d 1147.
::--;o. 72 1346. RYAN ET rx. V. COMMISSIONER OF lNTEUNAL
HEVENrE ET AL. C. A. 7tt Cir. Certiorari
denied.
No. 72- 1351. ARBAl.'GH's RESTAVRANT, INc. v. SMrTH
ET rx. C' . A. D. C. Cir. Certiorari denier!. Reported
below: 152 U. S. App. D. C'. 86, 469 F. 2d 97.
~o. 72- 1361. "\Voon v. lTNrTED STATES PosT OFFICE
DEPARTMENT ET AL. C'. A. 7th Cir. Certiorari denied.
Reported b('}ow: 472 F. 2d 96.
~o. 72 1380. BRELAND v. TEXAS. Ct. Crim .• \pp.
Tex. Certiorari denied. Reported below : 489 R. V{. 2d
623.
940 OCTOBER TERM, 1972
June 11, 1973 412 U.S.
No. 72--1390. SANSANESE v. UNITED STATES. C. A.
2d Cir. Certiorari denied.
No. 72-1402. CALANDRILLO v. O'CONNOR ET AL.
Super. Ct. N. J. Certiorari denied. Reported below:
121 N. J. Super. 135, 296 A. 2d 326.
No. 72-1403. LocAL 42, INTERNATIONAL AssocIATION
OF HEAT & FROST INSULATORS & ASBESTOS WORKERS V.
NATIONAL LABOR RELATIONS BOARD. C. A. 3d Cir. Certiorari
denied. Report€d below: 469 F. 2d 163.
No. 72--1417. SIMMONS v. WETHERELL ET AL. C. A.
2d Cir. Certiorari denied. Reported below: 472 F. 2d
509.
No. 72-1419. STROM ET AL. v. ALFVEBY, REFEREE.
C. A. 8th Cir. Certiorari denied.
No. 72-1421. DEKALB COUNTY ET AL. v. ATLANTA GAs
LIGHT Co. ET AL. Sup. Ct. Ga. Certiorari denied. Reported
below: 230 Ga. 65, 19-5 S. E. 2d 427.
No. 72--1430. PERKINS v. STANDARD OIL COMPANY OF
CALIFORNIA. C. A. 9th Cir. Certiorari denied. Reported
below: 474 F. 2d 549.
No. 72-1433. INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 12 v. SOUTHERN CALIFORNIA TESTING
LABORATORY, INC., ET AL. C. A. 9th Cir. Certiorari
denied.
No. 72-1456. McCLUNG v. FoRD MoTOR Co. C. A.
4th Cir. Certiorari denied. Report€d below: 472 F. 2d
240.
No. 72--1459. STOCKHOLDERS' PROTECTIVE COMMITTEE
FOR MOULDED PRODUCTS, INC. V. BARRY, TRUSTEE, ET AL.
C. A. 8th Cir. Certiorari denied. Reported below: 474
F. 2d 220.
ORDERS 941
412 u. s. June 11, 1973
No. 72-1607. PFINGST v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. Reported below: 477 F. 2d 177.
Ko. 72-5507. WILLIAMS v. HENDERSON, WARDEN.
C. A. 5th Cir. Certiorari denied. Reported below: 463
F. 2d 1136.
No. 72-6282. MORTON v. WYOMING ETAL. C. A. 10th
Cir. Certiorari denied.
No. 72-6290. BRUCE v. VIRGINIA. Sup. Ct. Va. Certiorari
denied.
No. 72-6312. CASTELLON-DUARTE V. IMMIGRATION
AND XATURALIZATION SERVICE. C. A. 9th Cir. Certiorari
denied.
No. 72-6443. MACKEY v. UNITED STATES. C. A. 4th
Cir. Certiorari denied. Reported below: 474 F. 2d 55.
No. 72-6447. STANFIELD v. UNITED STATES; and
No. 72-6448. TERRELL v. UNITED STATES. C. A. D. C.
Cir. Certiorari denied.
No. 72-6459. BILLINGSLEY v. UNITED STATES. C. A.
7th Cir. Certiorari denied.
o. 72-6460. ISENBERG v. UNITED STATES; and
Xo. 72-6466. ISENBERG v. UNITED STATES. C. A. 3d
Cir. Certiorari denied.
No. 72-6463. WALSH v. UNITED STATES. C. A. 7th
Cir. Certiorari denied.
No. 72- 6464. BARROW v. UNITED STATES. C. A. 6th
Cir. Certiorari denied.
Ko. 72-6468. LAUGHLIN v. UNITED STATES. C. A.
D. C. Cir. Certiorari denied. Reported below: 154 U.S.
App. D. C. 196,474 F. 2d 444.
942 OCTOBER TERM, 1972
June 11, 1973 412 u. s.
No. 72 6469. BATTLE v. UNITED STATES. C. A. D. C.
Cir. Certiorari denied.
Ko. 72 6478. LAVAN ET AL. v. UNITED STATES. C. A.
2d Cir. Certiorari denied.
No. 72-6481. HAMILTON v. UNITED STATES; and
No. 72 6482. BENTON v. lTNITED STATES. C. A. 2d
Cir. Certiorari denied.
No. 72 6483. TUCKER v. UNITED STATES. C. A. 6th
Cir. Certiorari denied. Reported below: 473 F. 2d 1290.
No. 72 6485. McDONNELL v. UNITED STATES. C. A.
8th Cir. Certiorari denied. Reported below: 472 F. 2d
1153.
No. 72-6489. NocERINO v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. Reported below: 474 F. 2d 993.
No. 72-6495. KuNG How FONG v. UNITED STATES.
C. A. 9th Cir. Certiorari denied. Reported below: 475
F. 2d 189.
No. 72-6568. SCHUTT v. TENNESSEE. Ct. Crim. App.
Tenn. Certiorari denied.
No. 72-6593. CooK ET ux. v. OHIO. C. A. 6th Cir.
Certiorari denied.
No. 72- 6598. BoAG v. CRAVEN, WARDEN. Sup. Ct.
Cal. Certiorari denied.
No. 72- 6607. MORGAN V. ESTELLE, CORRECTIONS DIRECTOR.
C. A. 5th Cir. Certiorari denied.
No. 72-6623. RoY v. MANCHESTER GAs Co. Sup. Ct.
N. H. Certiorari denied. Reported below: 113 N. H.
140,302 A. 2d 825.
ORDERS 943
412U. S. June 11, 1973
No. 72-6625. BRADLEY v. ESTELLE, CORRECTIONS DIRJ<:
CTOR. C. A. 5th Cir. Certiorari denied. Reported
below: 473 F. 2d 1039.
No. 72-6633. EcKERT v. Bunn Co. ET AL. C. A. 3d
Cir. Certiorari denied.
No. 72-6691. BEZAK v. OHIO. Ct. App. Ohio, Cuyahoga
County. Certiorari denied.
No. 72-1305. GRAY ET AL. v. SHELL OIL Co. C. A.
9th Cir. Certiorari denied. MR. JusTICE DOUGLAS
would grant certiorari. Reported below: 469 F. 2d 742.
No. 72-1362. STRINGER ET ux. v. UNITED STATES.
C. A. 5th Cir. Certiorari denied. MR. JUSTICE DOUGLAS
,vould grant certiorari. Reported below: 471 F. 2d 381.
No. 72-1443. SAVARD, ADMINISTRATRIX, ET AL. v.
PERINI CORP. C. A. 2d Cir. Certiorari denied. MR.
JUSTICE DouGLAS would grant certiorari. Reported below:
471 F. 2d 536.
No. 72-6467. SHEARD, AKA NIXON v. UNITED STATES.
C. A. D. C. Cir. Certiorari denied. MR. JusTrCE DouGLAS
would grant certiorari. Reported below: 154 U. S.
App. D. C. 9. 473 F. 2d 139.
No. 72-6622. MooRE v. ILLINOIS. Sup. Ct. Ill. Certiorari
denied. MR. JUSTICE DOUGLAS would grant certiorari.
Reported below: 54 Ill. 2d 33, 294 N. E. 2d 297.
No. 72-6666. THOMPSON v. INDIANA. Sup. Ct. Ind.
Certiorari denied. MR. JusTICE DouGLAS would grant
certiorari. Reported below: - Ind. - , 290 N. E. 2d
724.
No. 72-1389. PENNSYLVANIA v. STAFFORD. Sup. Ct.
Pa. Motion of respondent for leave to proceed in forma
pauperis granted. Certiorari denied. Reported below:
450 Pa. 252, 299 A. 2d 590.
944 OCTOBER TERM, 1972
June 11, 1973 412 U.S.
No. 72-1424. VowELL, COMMISSIONER OF PUBLIC
WELFARE OF TEXAS v. RODRIGUEZ ET AL. C. A. 5th Cir.
Motions of respondents for leave to proceed in f orma
pauperi.s granted. Certiorari denied. Reported below:
472 F. 2d 622.
No. 72-1426. NANES v. EsTELLE, CORRECTIONS DIRECTOR.
C. A 5th Cir. Motion to dispense with printing
petition granted. Certiorari denied. Reported below:
471 F. 2d 651.
Rehearing Denied
No. 71-1178. GULF STATES UTILITIES Co. v. FEDERAL
POWER COMMISSION ET AL., 411 U. S. 747;
No. 72-1086. DELONG CORP. ET AL. v. OREGON, BY
AND THROUGH STATE HIGHWAY COMMISSION, 411 u. s.
965;
No. 72-1281. EssEx, ADMINISTRATRIX v. WALTERS,
COMMISSIONER OF INTERNAL REVENUE, ET AL., ante,
p. 919;
No. 72-5,572. GAY v. UNITED STATES, 411 U. S. 974;
No. 72-6211. LucAs v. WYOMING ET AL., 411 U. S.
983;
No. 72-6374. RANDO v. ESTELLE, CORRECTIONS DIRECTOR,
411 U. S. 972;
No. 72-6410. WALTERS v. WALTERS, COMMISSIONER
OF INTERNAL REVENUE, 411 U. S. 985;
No. 72-6452. MORRIS v. SPARROW ET AL., 411 U. S.
985; and
No. 72-6496. GERMAN v. FLORIDA ET AL. , ante, p. 908.
Petitions for rehearing denied.
No. 71-6423. HousE v. HousE, 409 U. S. 812; and
No. 72-1084. GROSSMAN v. KAVANAGH, CHIEF Jus-
TICE, SUPREME CouRT OF MICHIGAN, 411 U. S. 914. Motions
for leave to file petitions for rehearing denied.
ORDERS 945
412 u. s. June 11, 13, 1973
No. 72-1134. REIBERT ET AL. v. ATLANTIC RICHFIELD
Co. ET AL., 411 U. S. 938, and ante, p. 914. Motion for
leave to file second petition for rehearing denied.
No. 72-5925. RuDERER v. SESSIONS ET AL., 410 U. S.
949;
Ko. 72-6153. RunERER v. UNITED STATES ARMY Avr-
ATION MATERIEL COMMAND ET AL., 411 U. S. 928; and
No. 72-6255. RuDERER v. UNITED STATES ET AL., 411
U. S. 945. Motions for leave to file petitions for rehearing
and all other relief denied. MR. JUSTICE BLACKMUN
took no part in the consideration or decision of
these motions.
Ko. 72-6271. RuDERER v. VANCE ET AL., 411 U.S. 961.
Petition for rehearing and all other relief denied. MR.
JusTICE BLACKMUN took no part in the consideration or
decision of this petition.
JUNE 13, 1973
Miscellaneous Orders
~o. A-1221. SHAPIRO v. FERRANDINA. C. A. 2d Cir.
Application for stay of mandate presented to MR. Jus-
TICE MARSHALL and by him referred to the Court, denied.
MR. JGSTICE DouGLAS would grant the application.
ReportP<l bt>low: 478 F. 2d 894.
No. A-1206 (72-1173). INTERNATIONAL BUSINESS
MACHINES CoRP. v. UNITED STATES. Application for
stay of execution and enforcement of pretrial order No. 5
of the United States District Court for the Southern District
of New York and for a stay of mandate of the United
States Court of Appeals for the Second Circuit presented
to MR. JusTICE MARSHALL, and by him referred to the
Court, denied. MR. JUSTICE STEWART, MR. JUSTICE
BLACKMUN, and MR. JUSTICE PowELL took no part in
946 OCTOBER TERM, 1972
June 13, 18, 1973 412 U.S.
the consideration or decision of this application. MR.
JusTICE DouGLAS would grant the application. Reported
below: See 471 F. 2d 507.
JUNE 18, 1973
Dismissal Under Rule 60
No. 72-1573. APPLEGATE ET AL. v. NEw JERSEY.
Super. Ct. N. J. Petition for writ of certiorari dismissed
under Rule 60 of the Rules of this Court.
Affirmed on Appeal
No. 72-1565. UNITED STATES v. TRANS TEXAS BANCORPOHATION,
INC., ET AL. Affirmed on appeal from
D. C. W. D. Tex. MR. JUSTICE BRENNAN, MR. JUSTICE
WHITE, and MR. JusTICE lvIARSHALL would note probable
jurisdiction and set case for oral argument.
Appeals Dismissed
No. 72-1259. TEITELBAUM v. CALIFORNIA. Appeal
from Ct. App. Cal., 2d App. Dist. 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. 72-6329. McALLISTER v. VIRGINIA. Appeal from
Sup. Ct. Va. dismissed for want of jurisdiction. Treating
the papers \vhereon the appeal was taken as a petition
for writ of certiorari, certiorari denied.
No. 72-6385. LOGAN v. WESTERN UNION TELEGRAPH
Co. Appeal from D. C. S. D. N. Y. dismissed for want
of jurisdiction. Treating the papers whereon the appeal
was taken as a petition for writ of certiorari, certiorari
denied.
ORDERS 947
-!12tT.S. June IS, 1973
l'acated and Remanded on Appeal
~o. 72-635. GLrSMAN ET AL. v. BOARD OF TRrsTEES
OF THE PNl\'EHSITY oF ?\°ORTH CAROLINA. Appeal from
Sup. Ct. N . C. Judgment vacated and case remanded
for further consideration in light of nandis v. Kline, ante,
p. 441. :\1R. JrSTICE Dorcus would affirm the judgment.
Reported below: 281 N. C. 629. 190 S. E. 2d 213.
Certiorari Granted-Vacated and Remanded
No. 72-6012. KELSAW v . OREGON. C"t. App. Ore.
~fotion for leave to proceed in Jonna pauperis and certiorari
granted. Judgment vaC'ated and ca$f' remanded
for further consid0ration in light of Wardius Y. Oregon,
ante, p . 470. Mn. JrsTICE DoFGLAS would grant certiorari
and reverse the judgment for reasons set forth in his separate
opinion in Trardius v. Oregon, ante, p. 479. Reported
below: 11 Ore. App. 289,502 P . 2d 278.
Miscellaneous Orders
~o. A- 1079. JOHNSON v. ~11ss01.'R1. Sup. Ct. :\lo.
Application for bail presented to Mn. JrsncE DorGLAS,
and by him referred to the Court, denied.
Ko. A 1186. WALLER v. FLORIDA. Application for
stay of execution and enforcement of judgment of conviction
in Circuit Court for Pinellas County, Florida,
prt>sented to MR. JrsTICE PowELL, and by him referr ed
to the Court, granted pending further order of this Court.
No. 72 1035. ROGERS V. 1oETHER ET AL. ('. A. 7th
Cir. [Certiorari granted. a11tP, p . 937. l '.\1otion of respondents
for leave to proceed fur ther hert>in in Jonna
pauperis or in the altemative to submit respondents'
brief in typewritteu form denied.
~o. 72 1086. DELONG CORP. ET AL. V. OREG0)1, BY
AND THROl'GH STATE HIGHWAY C"OMMISSION, 411 F ~-
965. Motion of respondent fo r allowanc(' of attorney's
fees denied.
948 OCTOBER TERM, 1972
June 18, 1973 412 U.S.
No. 72-1264. MAYOR OF PHILADELPHIA ET AL. v. EDUCATIONAL
EQUALITY LEAGUE ET AL. C. A. 3d Cir. [Certiorari
granted, 411 U. S. 964.] Motion of respondents
for leave to proceed further herein in forma pauperis
denied.
~o. 72-1355. UNITED STATES v. MATLOCK. C. A. 7th
Cir. [Certiorari granted, ante, p. 917.] Motion of respondent
for appointment of counsel granted. It is ordered
that Donald S. Eisenberg, Esquire, of Madison,
Wisconsin, be, and he is hereby, appointed as counsel for
respondent in this case.
No. 72-6534. ORSINGER v. RICHARDSON, ATTORNEY
GENERAL. Motion for leave to file petition for writ of
habeas corpus denied.
Probable Jurisdiction Noted
No. 72-1465. PnocuNIER, Co1tRECTIONS DIRECTOR, ET
AL. v. MARTINEZ ET AL. Appeal from D. C. N. D. Cal.
Motion of appellees for leave to proceed inf orma pauperis
granted. Probable jurisdiction noted. Reported below:
354 F. Supp. 1092.
Certiorari Denied. (See also Nos. 72-1259, 72-6329, and
72-6385, supra.)
No. 72-1218. VALENTINE ET AL. v. OREGON. Sup. Ct.
Ore. Certiorari denied. Reported below: 264 Ore. 54,
504 P. 2d 84.
No. 72-1345. MoscA ET AL. v. UNITED STATES;
No. 72- 6456. WOLFSON v. UNITED STATES; and
No. 72-6479. ZAVOD ET AL. v. UNITED STATES. C. A.
2d Cir. Certiorari denied. Reported below: 475 F. 2d
1052.
No. 72-1368. RoscIANO v. UNITED STATES. C. A. 7th
Cir. Certiorari denied. Reported below: 474 F. 2d 1350.
ORDERS 949
412 u. s. June 18, 1973
No. 72-1370. BERLIN v. UNITED STATES. C. A. 2d
Cir. Certiorari denied. Reported belO\v: 472 F. 2d 1002.
No. 72-1374. J\EFF v. UNITED STATES. C. A. 3d Cir.
Certiorari denied. Reported below: 475 F. 2d 861.
No. 72-1383. DECKER ET AL. v. \VEINSTEIN, TRUSTEE,
ET AL. C. A. 3d Cir. Certiorari denied.
No. 72-1387. AMERICAN CoNCRETE CONSTRUCTION
Co .. INC., ET AL. v. BRENNAN, SECRETARY OF LABOR. C. A.
6th Cir. Certiorari denied. Reported below: 471 F. 2d
1183.
No. 72- 1414. Mm:Lu:R v. XIxON E'l' AL. C. A. 6th
Cir. Certiorari denied. Reported below: 470 F. 2d 1348.
No. 72-1418. SENDAK, A'l'TORNEY GENERAL OF INDIANA
v. DILLIN, U. S. DISTRICT JL"DGE. C. A. 7th Cir.
Certiorari denied.
Xo. 72-1431. LEONHARD v. RICHARDSON, ATTORNEY
GENERAL, ET AL. C. A. 2d Cir. Certiorari denied. Reported
below: 473 F. 2d 709.
No. 72-1434. HITCHCOCK v. CrvrL SERVICE COMMISSION
OJ<' CITY OF MOSES LAKE. Ct. App. Wash. Certiorari
denied.
No. 72-1435.
C. A. 5th Cir.
F. 2d 651.
Xo. 72-1442.
C. A. 5th Cir.
F. 2d 1026.
ROBBINS v. NoBLE DRILLING Co. ET AL.
Certiorari denied. Reported below: 471
TRAVELERS INSURANCE Co. v. CHouEsT.
Certiorari denied. Reported below: 472
No. 72-1444. KELLEN v. ALABAMA. Ct. Crim. App.
Ala. Certiorari denied. Reported below: 49 Ala. App.
467, 273 So. 2d 227.
950 OCTOBER TERM, 1972
.Tune 18, 197:3 412 U.S .
~o. 72-1451. LAVINE, COMMISSIONER, NEW YoRK
DEPARTMENT OF SOCIAL SERVICJ,;S V. LINDSAY, MAYOR OF
XEw YoRK, ET AL. C. A. 2d Cir. Certiorari denied.
Reported below: 473 F. 2d 923.
:No. 72-1452. OwNBY v. UNITJ,;D STATES. C. C. P.A.
Certiorari denied. Reported below: 471 F. 2d 1233.
Xo. 72-1464. VAN VLIET v. LEBosQm~T. App. Div.,
Sup. Ct. X. Y., 1st Jud. Dept. Certiorari denied.
No. 72- 1466. ADMINISTRATOR, NATIONAL AERONAUTICS
A:--rD SPACE ADMINISTRATION V. \VILLIAMS ET AL.
C. C. P. A. Certiorari denied. Reported below: 59
C. C. P.A. (Pat.) 1329, 463 F. 2d 1391.
No. 72-1467. PERRERRA ET AL. v. UNITED STATES.
C. A. 3d Cir. Certiorari denied. Reported below: 474
F. 2d 1246.
No. 72-1468. \VILSON v. COMMISSIONER OF INTERNAL
REVENUE. C. A. 5th Cir. Certiorari denied. Reported
below: 474 F. 2d 600.
l\To. 72-1471. AMERICAN DAIRY AssN. ET AL. v. RASMUSSEN.
C. A. 9th Cir. Certiorari denied. Reported
below: 472 F. 2d 517.
Ko. 72- 5432. BnowN v. JOSEPH. C. A. 3d Cir. Certiorari
denied. Reported below: 463 F. 2d 1046.
No. 72-6115. JACKSON v. ZELKER, CORRECTIONAL Su-
PERINTENDENT. C. A. 2d Cir. Certiorari denied.
Xo. 72-6231. G uTHRIE v. GEORGIA. C. A. 5th Cir.
Certiorari denied.
No. 72- 6233. KENNEDY v. ·WAINWRIGHT, CoRR~:cTroNs
DmECTOR. C. A. 5th Cir. Certiorari denied. Reported
below: 469 F. 2d 1405.
ORDERS 951
412 U.S. June 18, 197,'l
No. 72-6286. :NELSON v. MooRE, CORRECTIONAL St:-
PERINTENDENT. C. A. 1st Cir. Certiorari denied. Reported
below : 4 70 F. 2d 1192.
No. 72-6316. BurrnANK v. ILLINOIS. Sup. Ct. Ill.
Certiorari denied. Reported below: 53 Ill. 2d 261, 291
K. E. 2d 161.
No. 72-6365. CoNKLLN v. GASAWAY, TRUSTEE. C. A.
8th Cir. Certiorari denied. Reported below: 468 F. 2d
752.
~o. 72-6372. McLEOD v. UNITED STArns. C. A. 9th
Cir. Certiorari denied. Reported below: 470 F. 2d 962.
~o. 72-6379. SAUNDERS v. SLAYTON, PENITENTIARY
SUPERINTENDENT. C. A. 4th Cir. Certiorari denied.
Reported below: 470 F. 2d 734.
No. 72- 6401. EvANS v. JOHNSON, CORRECTIONAL Su-
PERI:N"TENDENT. C. A. 3d Cir. Certiorari denied.
~o. 72-6455. OWENS v. FNlTED STATES. C. A. 8th
Cir. Certiorari denied. Reported below: 4 72 F. 2d 780.
Xo. 72-6490. MONTGOMERY v. UNITED STATES. C. A.
5th Cir. Certiorari denied.
:No. 72-6498. JACKSON v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below·: 470 F. 2d 684.
No. 72-6507. IRONS v. UNITED STATES. C. A. 8th Cir.
Certiorari denied. Reported below: 475 F. 2d 40.
No. 72-6511. WooDs v. UNITED STATES. C'. A. 4th
Cir. Certiorari denied. Reported below: 474 F. 2d 1:343.
:No. 72-6512. JUDSON v. UNITED STATES. C. A. 9th
Cir. Certiorari denied.
~o. 72-6524. HANKS v. L"NITED STATES. C. A. 10th
Cir. Certiorari denied.
952 OCTOBER TERM, 1972
June 18, 1973 412 u. s.
No. 72-6532. KRULL v. UNITED STATES. C. A. 5th
Cir. Certiorari denied. Reported below: 474 F. 2d 1345.
No. 72-6546. COPELAND v. ESTELLE, CORRECTIONS DIRECTOR.
C. A. 5th Cir. Certiorari denied. Reported
below: 471 F. 2d 710.
No. 72-6585. ANDRADE v. HAUCK, SHERIFF, ET AL.
C. A. 5th Cir. Certiorari denied. Reported below: 468
F. 2d 950.
No. 72-6635. BABCOCK v. SWENSON, WARDEN. C. A.
8th Cir. Certiorari denied.
No. 72-6641. CRENSHAW v. JAMES ET AL. C. A. 6th
Cir. Certiorari denied. Reported below: 471 F. 2d 655·.
No. 72-6643. SMILEY V. LA VALLEE, CORRECTIONAL SUPERINTENDENT.
C. A. 2d Cir. Certiorari denied. Reported
below: 473 F. 2d 682.
No. 72-6656. CLEVELAND v. WARDEN, MARYLAND STATE
PENITENTIARY. C. A. 4th Cir. Certiorari denied.
No. 72-6664. HIGGENS, AKA RoBINSON v. NORTH
CAROLINA. Ct. App. N. C. Certiorari denied. Reported
below: 16 N. C. App. 434, 192 S. E. 2d 93.
No. 72-6673. OAKES v. BLACK, REFORMATORY SUPERINTENDENT.
C. A. 6th Cir. Certiorari denied. Reported
below: 473 F. 2d 672.
No. 72-6674. LEMMO v. VINCENT, CORRECTIONAL Su-
PERINTENDENT. C. A. 2d Cir. Certiorari denied.
No. 72-1041. DouGLAS ET AL. v. CovELL. Sup. Ct.
Colo. Motion of respondent for leave to proceed in
forma pauperis granted. Certiorari denied. MR. Jus-
TICE DouGLAS would grant the petition and affirm the
judgment. Reported below: - Colo. - , 501 P. 2d
1047.
ORDERS 953
412 U.S. .June 18, 1973
No. 72-1090. ANNUNZIO v. HoELLEN. C. A. 7th Cir.
Certiorari denied. MR. JusTICE DouGLAS would grant
certiorari. Reported below: 468 F. 2d 522.
No. 72-1249. STOVER v. VIRGINIA. Sup. Ct. Va.
Certiorari denied. MR. JUSTICE DouGLAS would grant
certiorari.
Xo. 72-1317. \VHITAKER ET AL. v. l.JNITED STATES.
C. A. 3d Cir. Certiorari denied. MR. JusTICE DouGLAS
would grant certiorari. Reported below: 474 F. 2d 1246.
No. 72-1340. STANLEY ET AL. v. UNITED STATES. C. A.
6th Cir. Certiorari denied. MR. JusTICE DouGLAS would
grant certiorari. Reported below: 472 F. 2d 1204.
No. 72-1377. :METROPOLITAN SCHOOL DISTRICT OF
LAWRENCE TOWNSHIP, MARION COUNTY, INDIANA, ET AL.
V. DILLIN, u. S. DISTRICT JUDGE, ET AL. C. A. 7th Cir.
Certiorari denied. MR. JUSTICE DouGLAS would grant
certiorari.
No. 72-6499. RETHERFORD v. FLORIDA. Sup. Ct. Fla.
Certiorari denied. MR. JusTICE DOUGLAS would grant
certiorari. Reported below: 270 So. 2d 363.
No. 72-6513. CIOFFI v. UNITED STATES. C. A. 2d Cir.
Certiorari denied. MR. JusTICE DOUGLAS would grant
certiorari.
No. 72-6523. MANCINO v. UNITED STATES. C. A. 8th
Cir. Certiorari denied. MR. JUSTICE DouGLAS would
grant certiorari. Reported below: 474 F. 2d 1240.
No. 72-6647. GRON v. VrcoNOVIC. Sup. Ct. Ohio.
Certiorari denied. MR. JUSTICE DouGLAS would grant
certiorari.
No. 72-6689. RODRIGUEZ ET AL. V. JONES ET AL. C. A.
5th Cir. Certiorari denied. MR. JusTICE DouGLAS would
grant certiorari. Reported below: 473 F. 2d 599.
954 OCTOBER TERM, 1972
June 18, 1973 412 u. s.
No. 72-1260. McCUNE v. NEBRASKA. Sup. Ct. Neb.
Motion to dispense with printing petition granted. Certiorari
denied. Reported below: 189 Neb. 165, 201 N. W.
2d 852.
No. 72~1350. MEISEL ET AL. v. UNITED STATES. C. A.
9th Cir. Certiorari denied. Reported below: 472 F. 2d
548.
MR. JUSTICE DOUGLAS, dissenting.
Electronic surveillance has increasingly infected criminal
trials. My hearing in the Pentagon Papers case last
summer (Russo v. Byrne, 409 U.S. 1219), was the beginning
of vast disclosures which showed how seriously that
trial had in fact been infected. See also 409 U. S. 1013.
The indictments involved in it were indeed later dismissed,
in part on the grounds that the prosecution failed
to disclose the existence and results of wiretaps.
It has become painfully apparent that wiretapping and
electronic surveillance are a commonplace tool of those
who pursue prosecutions with zeal that knows no bounds,
not even the clear mandate of our Constitution or
laws. The Nation early eschewed this Machiavellian
philosophy.
"The makers of our Constitution undertook to
secure conditions favorable to the pursuit of happiness.
They recognized the significance of man's
spiritual nature, of his feelings and of his intellect.
They knew that only a part of the pain, pleasure
and satisfactions of life are to be found in material
things. They sought to protect Americans in their
beliefs, their thoughts, their emotions and their
sensations. They conferred, as against the Government,
the right to be let alone-the most comprehensive
of rights and the right most valued by civilized
men. To protect that right, every unjustifiable
954
ORDERS 955
Dornu.s, J., dissenting
intrusion by the Government upon the privacy of
the individual, whatever the means employed, must
be deemed a violation of the Fourth Amendment."
Olmstead v. United States, 277 U. S. 438, 478
(Brandeis, J., dissenting).
This case presents a more related facet of the problem
than Russo v. Byrne, supra. Here we are concerned with
witnesses called to testify before the grand jury. See
Tierney v. United States, 410 U. S. 914 (DouGLAS, J.,
dissenting). This particular grand jury was investigating
firearms transactions between certain Irish-Americans
and the Irish Republican Army. The center of attention
apparently was one Charles Farrell Malone, who,
subsequent to the proceedings below, pleaded guilty to
a federal firearms offense. Petitioners, one a friend of
Malone's and the other a babysitter for his seven children,
were subpoenaed to appear before the grand jury on
October 25 and 26, 1972. Both appeared but refused to
testify. Approximately one month later, the Government
advised petitioners' counsel that it would apply
for an order granting petitioners testimonial immunity,
see 18 C S. C. § 6003, and in the event immunity was
granted and petitioners still refused to testify, it would
seek immediately to have petitioners held in contempt.
On November 28 petitioners were granted immunity,
and the same morning they were brought before the
grand jury. They refused to testify on the grounds, inter
alia, that the questions propounded to them were the
product of illegal electronic surveillance of themselves
and their attorney.1 The contempt hearing took place
1 Petitioners' attorney, who also represented Malone, who had been
indicted before petitioners were granted immunity, had withdrawn as
counsel that morning in order to avoid any conflict of interest. It
is clear to me that we must treat that attorney as petitioners' counsel
in considering their constitutional rights before the grand jury.
956 OCTOBER TERM, 1972
DouGLAs, .T., dissenting 412 U.S.
at 2 o'clock that afternoon. Petitioners again asserted
that they had been subjected to illegal electronic surveillance,
and they submitted an affidavit of their attorney
claiming that his telephones hail been wiretapped.
The Government attorney filed affidavits disclaiming any
surveillance upon petitioners or their premises. The
affiant also stated that he knew "the identity of all the
sources of information upon which the questioning of
[petitioners] is based and no questions asked are the
result of electronic surveillance . . . . " The Government
,did not specifioolly respond to the allegation that the
attorney had been subjected to surveillance.
Based upon these affidavits and oral argument, the District
Court held petitioners in civil contempt. The District
Judge refused to hold a hearing regarding the claims
of electronic surveillance and wiretapping or to require
the Government to search its files to assure the nonexistence
of electronic surveillance on their attorney.
Bail was denied, and petitioners were ordered to jail for
the life of the grand jury, but not to exceed 18 months.
The Court of Appeals, however, granted bail pending
appeal. On December 29, 1972, the Court of Appeals
affirmed the contempt adjudications and revoked bail.
472 F. 2d 548. I ordered that petitioners be released
on their own recognizance pending the timely filing and
disposition of a petition for a writ of certiorari. I now
would grant their petition and set this case for oral
argument.
The sole ground for denying a hearing was the Government
disclaimer that petitioners themselves had been
subject to electronic surveillance or that any questions
to be asked were the result of surveillance of third parties.
In Alderman v. United States, 394 U. S. 165, we
held that when the results of electronic surveillance are
arguably relevant to the defense, the records must be
ORDERS 957
954 DOUGLAS, J., dissenting
submitted for adversary hearing before the trial judge.
"Adversary proceedings are a major aspect of our system
of criminal justice. Their superiority as a means
for attaining justice in a given case is nowhere more
evident than in those cases, such as the ones at bar .... "
Id., at 183. I find the failure to afford a hearing especially
troubling in this case. The Government's affiant,
an official of the Internal Security Division of the Justice
Department, stated that he had "caused an inquiry to be
made" among certain listed federal agencies and this inquiry
had not disclosed that petitioners had been subject
to any illegal electronic surveillance. Even though the
subject of the grand jury investigation was firearms
transactions with the Irish Republican Army, the affiant
had not checked with military intelligence agencies. We
have learned that the results of illegal surveillance often
are secreted away, whether for reasons of national security
or for fear of public disclosure. For that reason,
no stone should remain unturned. Although the District
Judge himself was concerned with the failure to consult
with these agencies, he nevertheless denied petitioners
an evidentiary hearing either on the adequacy of the
Government's denial or the actual existence of surveillance
of petitioners by more federal agencies. Moreover,
the Government totally jailed to respond to the claim
that petitioners' attorney had been subjected to illegal
surveillance. 2
We should no longer tolerate procedures which allow
the prosecution to pyramid the secrecy of its clandestine
2 In Ge/bard v. United States, 408 U. S. 41, we held that a grand
jury witness has standing to challenge questions propounded to him
on the ground that they are derived from illegal electronic surveillance.
The interrelationship of the Fourth, Fifth, and Sixth
Amendments in this area requires, in my mind, that this rule extend
to surveillance of a witness' attorney. See Tierney v. United States,
410 U. S. 914 (DOUGLAS, J., dissenting).
9.58 OCTOBER TEK\I, 1972
June 18, 1973 412 U.S.
activities." It is by no means an easy task to uncover
the intricacies and interrelationships of the Executive's
evcr-0xpanding 1-ecurity mechanism. but we certainly cannot
even start without the rudiments of due process.
~o. 72- 1409. LOCAL UNJON 1791, rNITED MINE
"\VO!{KE11S OF ,\l\CERICA, ET AL. V. ~IcGl' IRE SHAFT &
Tu~NEL CortP. 1':T AL. Temp. Emerg. Ct. App. Certiorari
denied. Reported below: 475 F. 2d 1209.
:'.\fo . .JuSTlCE DOUGLAS, dissenting.
\Ve are asked to review a decision of the Temporary
Emergency Court of Appeals holding that § 210 (a) of
the Economic Stabilization Act of 1970,1 84 Stat. 799,
as amended. 85 Stat. 748, 12 U.S. C. § 1904, Note (1970
ed., Supp. II), overrides the anti-injunction provisions of
3 As we 8aid in Alderman\'. Cnited States, 394 U. S. 165:
"An apparently innocent phrase, a chance remark, a reference to
what appears to IX' a neutral person or ewnt, the ident ity of a
caller or th!' irnlividual on ti](' other end of a telephone, or p,·en thP
manner of s1waki11g or using words may ha\'e spc>cinl signifif'anrc
to one who knows the more intimate facts of an accused's life. And
vet that information may be wholly colorlrss and devoid of meaning
to one, le~s wPII acquaintPd with all re[eyant circumstance~. Gnavoidably,
this is a matter of judgment, but in onr view the task is
too complex, and the margin for error too great, to rrl~- wholl_,. on
the in camera judgment of the trial rourt to identify those rer ords
which might have contributed to the Government's case." Id., at
182,
1 Tlmt section provides :
"Any person suJTering legal wrong bcrause of any act or practice
arising out of this title, or any order or n·gulation is~urcl pur~ua nt
thereto, may bring an action in a district court of thr l'nited States,
without regard to the amount in cont roversy, for appropriate relief,
including an action for a declaratory judgment, writ of injunction
(subject to the limitations in section 211) , and/ or damages ."
ORDERS 959
958 DouGLAS, J., dissenting
the Norris-LaGuardia Act,2 47 Stat. 70, 29 U. S. C. § 101
et seq., and permits a district court to enjoin a work
stoppage in violation of regulations of the Pay Board.
On January 14, 1972, respondent construction companies
entered i11to a collective-bargaining agreement
with the United Mine Workers of America providing for
a wage increase in excess of 18%. In accordance with
the Economic Stabilization Act, this agreement was submitted
to the Pay Board for approval, but the Board authorized
an increase of only 9.54%. Subsequently, employees
of the construction companies, members of three
different locals of the United Mine \Yorkers, went out
on strike in support of their demand for a wage increase
as provided by the agreement. Pickets soon appeared at
five coal mines operated by two other respondents, and
the miners honored the picket lines.
The four employers affected by the work stoppages
immediately sought preliminary injunctions from the
District Court. The District Court issued the injunctions,
and the Temporary Emergency Court of Appeals
affirmed.' 475 F. 2d 1209. It determined that the work
stoppages constituted a violation of 1 (a) of Executive
"Section 1 of the :forri~-LaG11ardia Act proYides:
"That no court of 1 he United Stntcs, as hnein defined, shall haYe
jurisdiction to issue any restraining order or tC'mpornr:-· or perm:nlC'nt
in.iunction in a <'asc invoh-ing or growing out of a labor di"pntc,
except, in a strict conformity with the prO\·isions of this Art; nor shall
nny such restraining ordrr or tempornr:-' or permanent injunction be
issurd contrar:-· to the public pofay dedared in this Act."
Section 4 specifies acts which may not be enjoined, including'' r c]rnsing
or refusing to perform any work or to remnin in any relation
of employment."
3 The District Court also concludrd that the strik<' Yiolated pro-
Yisions of the rolkctiYe-bnrgaining agreemrnt and <'Ould be enjoined
under Boys Markets, Inc. , .. Retail Clerks l/ 11ion, Local 770, 398
U. S. 235. The Court of Appeals did not reaeh this issue.
960 OCTOBER TERM, 1972
DoUGLAs, J., dissenting 412 U.S.
Order 11640, which provides that "no person shall, directly
or indirectly, ... use any means to obtain payment
of wages and salaries in any form, higher than those
permitted hereunder . . . . " 37 Fed. Reg. 1214. It
also determined that the stoppages constituted a violation
of Pay Board Reg.§ 201.17 (c), which provided that
it shall be a violation of Pay Board regulations to "[i] nduce,
solicit, encourage, force, or require, or attempt
to induce, solicit, encourage, force or require, any other
person to pay or to receive any portion of a wage and
salary increase not authorized by such regulations or
Pay Board decision .... " 6 CFR § 201.17 (c) (1972).
The court concluded that respondents were persons "suffering
legal wrong" within the meaning of§ 210 (a) of the
Economic Stabilization Act of 1970 and were thereby entitled
to injunctive relief. As to petitioners' claim that
the Norris-LaGuardia Act barred injunctive relief against
a union work stoppage in an action brought by an employer,
4 the court stated:
"In light of the importance of the Economic Stabilization
Program to economic welfare of the
United States, the Norris-LaGuardia Act must be
interpreted to accommodate the overriding Congressional
intent expressed in the Economic Stabilization
Act. Such accommodations have been made
in the past when the provisions of the Norris-
LaGuardia Act conflicted with other specific intentions
of Congress." 475 F. 2d, at 1215.
Heretofore, this Court has recognized implicit exceptions
to the anti-injunction provisions of the Norris-
LaGuardia Act only when there was an unavoidable clash
4 Petitioners concede that the Norris-LaGuardia prohibitions do
not apply in Government suits to enforce the Economic Stabilization
Act. See § 209 of the Act, 85 Stat. 748.
ORDERS 961
958 DouGLAS, J., dissenting
with other labor legislation. See, e. g., Boys Markets,
Inc. v. Retail Clerks Union, Local 770, 398 U. S. 235
(§ 301 of the Labor Management Relations Act); Brotherhood
of Railroad Trainmen v. Howard, 343 U. S. 768.
We have stated before that "the Norris-LaGuardia Act's
ban on federal injunctions is not lifted because the conduct
of the union is unlawful under some other, nonlabor
statute." Order of Railroad Telegraphers v. Chicago &
N. W. R. Co., 362 U. S. 330, 339. See also Brotherhood
of Railroad Trainmen v. Chicago R . .& I. R. Co., 353
U. S. 30, 42. The unmistakable mandate of the Norris-
LaGuardia Act is to preclude the federal courts from
interfering with peaceful labor disputes by resort to
"objective tests." See Order of Railroad Telegraphers v.
Chicago & N. W. R. Co., supra, at 336; Milk Wagon
Drivers' Union v. Lake Valley Farm Products, Inc., 311
U. S. 91, 101. Although the Economic Stabilization Act
affects wages, it is clear to me that it falls within the
area of general economic legislation rather than the
narrow scope of "labor legislation" as that concept is·
used in our prior decisions.
Moreover, even when we have carved out an exception
to the Norris-LaGuardia Act to accommodate it with
later, more specific labor legislation, we have circumscribed
the courts' discretion to award injunctive relief.
In International Association of Machinists v. Street, 367
U. S. 740, 772-773, we stated:
"The Norris-LaGuardia Act ... expre~ses a basic
policy against the injunction of activities of labor
unions. . . . [T] he policy of the Act suggests
that the courts should hesitate to fix upon the injunctive
remedy for breaches of duty owing under the
labor laws unless that remedy alone can effectively
guard the plaintiff's right."
962 OCTOBER TERM, 1972
June 18, 1973 412 U.S.
Petitioners contend that private injunctions are not a
necessary part of the enforcement scheme of the Economic
Stabilization Act, which includes provisions for
governmental enforcement, supplemented by private
actions for damages.
Finally, § 210 (a) of the Economic Stabilization Act
provides for "appropriate relief." Petitioners argue that
the word "appropriate" must be construed to encompass
the ordinary constraints of federal equity jurisprudence,
thus precluding private suits for injunctive relief against
a union in a labor dispute.5 See Hecht Co. v. Bowles,
321 U. S. 321. They buttress this argument with the
assertion that the legislative history of the Act gives no
indication that § 210 (a) was meant to override the antiinjunction
provisions of the Norris-LaGuardia Act.
To my mind, this case presents substantial questions
that deserve consideration by this Court. The decision
below is a clear extension of the accommodation doctrine
as it has developed in this Court and threatens to erode
the Norris-LaGuardia Act. We hardly can conclude
that wage and price controls are merely a specter of the
past. I would grant the petition for a writ of certiorari
and set the case for oral argument. I would not
without impelling legislative reasons make the Norris-
LaGuardia Act-once the pillar of labor strength- a mere
ghost to be driven hence by the slogan "stabilization"
and made a mockery by financial aggrandizement.
No. 72-6359. REECE v. CRAVEN, WARDEN. Sup. Ct.
Cal. Certiorari denied. MR. JUSTICE DouGLAS concurs
in the denial of certiorari solely because the judgment
below rests on an adequate state ground.
5 The Government contended below, as amicus curiae, that the
dispute between the parties does not come within the Norris-
LaGuardia Act's definition of "labor dispute," 29 U. S. C. § 113 (c).
ORDERS 963
412 U.S. June 18, 1973
No. 72-6526. MuNCASTER v. UNITED STATES. C. A.
5th Cir. Motion for leave to file an amended petition
granted. Certiorari denied. Reported below: 472 F. 2d
1407.
Rehearing Denied
Ko. 72-10. MooR ET AL. v. Cot:-NTY OF ALAMEDA ET AL.,
411 u. s. 693;
No. 72-1112. COFFEE-RICH, INC., ET AL. v. FIELDER,
DIRECTOR OF AGRICULTURE, ET AL., 411 U. S. 979;
No. 72-1199. CULPEPPER v. UNITED STATES, 411 U.S.
982;
No. 72-5398. GARDNER v. McCARTHY, FACILITY SUPERINTENDENT,
ante, p. 916;
No. 72-5964. BLACK ET AL. v. ILLINOIS, 411 U.S. 967;
N 0. 72-6090. KING V. CALIFORNIA, 411 U. s. 983;
No. 72-6149. HousE v. Sr. AGNES_ HOSPITAL, INC.,
ET AL., 411 U. S. 961;
No. 72-6197. SHOEMAKER v. DwYER ET AL., ante, p.
902;
No. 72-6392. WHEELER v. 'G~ITED STATES, ante, p.
921;
No. 72-6423. MENDES v. BROTHERHOOD OF RAILWAY
& AIRLINE CLERKS, FREIGHT HANDLERS, EXPRESS & STATION
EMPLOYEES, AFL-CIO-CLC, ET AL., 411 u. s. 971;
and
No. 72-6603. JAYNES v. JAYNES ET AL., ante, p. 931.
Petitions for rehearing denied.
No. 6505. October Term, 1970. NIEMEYER v. CrccoNE,
MEDICAL CENTER DIRECTOR, ET AL., 401 U.S. 1011. Motion
for leave to file petition for rehearing denied.
No. 72-780. CALIFORNIA ADULT AUTHORITY ET AL. v.
GRIFFIN ET AL., and
No. 72-5770. M'CLARY v. CALIFORNIA ADULT Au-
THORITY ET AL., ante, p. 916. Petition for rehearing or
modification denied.
96i OCTOBER TERM, 1972
June 18, 19, 1973 412 U.S.
No. 72-5935. RL""DERER v. KLEINDIENST, ATTORNEY
GENERAL, 410 U. S. 949. Motion for leave to file petition
for rehearing and all other relief denied.
JUNE 19, 1973
Dismissal Under Rule 60
No. 72-6818. D1Az-RooRIGUEZ v. UNITED STATES.
C. A. 9th Cir. Petition for writ of certiorari dismissed
under Rule 60 of the Rules of this Court. Reported below:
478 F. 2d 1005.
REPORTER'S NOTE
The next page is purposely numbered 1201. The numbers betweC'n
964 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.
OPINION OF INDIVIDUAL JUSTICE
IN CHAMBERS
HE1\TRY ET AL. V. WARNER, SECRETARY OF THE
NAVY, ET AL.
ON APPLICATION TO VACATE ORDERS STAYING DISTRICT COURT
JUDGMENT PENDING DISPOSITION OF CASE
BY COURT OF APPEALS
No. A-1124. Decided May 18, 1973
1. Application to vacate Court of Appeals' stay of District Court's
ordn in habeas corpus proceeding denic>d, Solicitor GC'neral having
represented that applicants have been released and no uncounseled
persons summarily court-martialed are in military confim•mcnt in
Central District. of California.
2. Question of District Court's authority to grant habeas corpus
relief for unnamed class members outside Distrirt and/ or on worldwidP
basis is so novel that relief should be granted only aftrr full
argument.
MR. JGSTICE DovGLAS, Circuit Justice.
The application for an order vacating the stay of the
Court of Appeals is denied on the representation of the
Solicitor General that the named applicants in the case
have all been released from confinement and that within
the Ceutral District of California no persons are currently
confined in any military detention facility as a
result of a conviction by summary court-martial without
the aid of counsel. Whether the District Court has
authority to issue a writ of habeas corpus for unnamed
members of the class outside the District and/ or on a
worldwide basis is so novel a question that an order
granting such relief should be issued only after full
argument. Application denied.
1201
INDEX
ABUSE OF DISCRETION. See Attorneys' Fees, 2; Labor-
Management Reporting and Disclosure Act.
ACCESS TO MEDIA. SP<' Constitutional Law, V; Federal Communications
Act.
ACQUISITIONS OF LAND. See Federal-State Relations, 1; Public
Lands.
ACTIONS. See Courts-Martial; Habeas Corpus.
ADMINISTRATIVE PROCEDURE. See also Administrative Procedure
Act; Constitutional Law, V; Evidence, 1-2; Federal
Communications Act; Federal Food, Drug, and Cosmetic Act,
1-6; Injunctions, 1-2; Interstate Commerce Commission; Judicial
Review, 1-2; Jurisdiction, 1-2; National Environmental
Policy Act; National Labor Relations Act, 1-2; Procedure,
3-4; Standing to Sue.
1. Food and Drug Administration-Federal Food, Drug, and Cosmetic
Act-Summary judgment procedure.-The 1962 Amendments
to the Act and the regulations issued thereunder, which express wellestablished
principles of scientific investigation, in their reduction of
the "substantial evidence" standard to detailed guidelines for the
protection of the publir, make the FDA's so-called administrative
summary-judgment procedure appropriate. Weinberger v. Hynson,
Westcott & Dunning, p. 609.
2. Food and Drug Administration-Hearings- Evidence.- FDA's
procedure, whereby it will not provide a formal hearing when it is
apparent at thr threshold that the applicant has not tendered any
evidence which on its fate meets the statutory standards as particularized
by the regulations, is valid. Weinberger v. Hynson, Westcott
& Dunning, p. 609.
3. Food and Drug Administration-"A'eu: drug."-FDA has jurisdiction
in an administratiw proceeding to determine whether a drug
product is a "new drug" within the meaning of § 201 (p) of the Federal
Food, Drug, and Cosmetic Act. CIBA Corp. v. Weinberger,
p. 640.
4. Food and Drug Administration-New drug applications-Judicial,
review.-While an FDA order denying a new drug application
1203
1204 INDEX
ADMINISTRATIVE PRO CED URE-Cont inned.
and withdrawing one is reviewable by tho Court of Appeals under
§ 505 (h) of the Federal Food, Drug, and Cosmetic Act, an order
declaring a "new drug" status undrr § 201 (p) is reviewable under the
Administrative Procedure Act by the District Court. Weinberger
v. Bentex Pharmaceuticals, Inc., p. 645.
5. Food and Drug Administration-New drugs-Administrative
finality.-The reach of scientific inquiry under both § 505 (d) and
§ 201 (p) of tho Act is the same, and it is implicit in the regulatory
scheme that FDA has jurisdiction to decide with administrative finality,
subject to judicial review, the "new drug" status of individual
drugs or classes of drugs. Weinbrrger v. Bentex Pharmaceuticals,
Inc., p. 645.
6. Food and Drug Administration-New drugs-Grandfather
clause.-Tlw ;'new drug" and "grandfather" issues are peculiarly
suited to initial determination by FDA with its specialized competence
and expertise. Weinberger v. Bcntex Pharmaceuticals, Inc.,
p. 645.
7. National Labor R elations Board-L"nfair labor practice-Disciplinary
fines.-Adjudiration by NLRB undrr § 8 (h) (1) (A) of the
National Labor Relations Act of an unfair labor practice allegedly
committed b~- a union does not include authority to determine
wlwther the amount of a disciplinary fine levied by the union against
a member is reasonable, the issue being one of internal union affairs
over which the NLRB exercises no juri~diction. NLRB v. Boeing
Co., p. 67.
ADMINISTRATIVE PROCEDURE ACT. See also Administrative
Procedure, 1-6; Evidence, 1-2; Federal Food, Drug, and
Cosmetic Act, 1-6; Injunctions, 1-2; Jurisdiction, 1-2; National
Environmental Policy Act; Procedure, 3-4 ; Standing
to Sue.
Standing to sue-Persons aggrieved.-Appollees' pleadings sufficiently
alleged that they were "adversely affected" or "aggrieved"
within the meaning of § 10 of the Act to withstand a motion to dismiss
on thc ground of lack of standing to sue. Standing is not
confined to those who show economic harm, as "[a]esthctic and environmental
well-being, like economic well-being, arc important ingrediPnts
of the quality of life in our society." United States v.
SCRAP, p. 669.
ADMINISTRATIVE SUMMARY JUDGMENT. See Administra•
tive Procedure, 1-6; Evidence, 1-2; Federal Food, Drug, and
Cosmetic Act, 1-6; Judicial Review, 1; Jurisdiction, 1; Procedure,
3 .
INDEX 1205
ADVERSARY HEARINGS. Sec Jurisdiction, 5---6.
AESTHETIC HARM. See Administrative Procedure Act; Injunctions,
1-2; Jurisdiction, 2; National Environmental Policy Act;
Standing to Sue.
AGENCY APPROVAL. SC'c Administrative Procedure, 1-6; Evidence,
1-2; Federal Food, Drug, and Cosmetic Act, 1-6; Judicial
Review, 1-2; Jurisdiction, 1; Procedure, 3-4.
AGGRIEVED PERSONS. See Administrative Procedure Act;
Injunctions, 1-2; Jurisdiction, 2; National Environmental
Policy Act; Standing to Sue.
ALABAMA. Sec Constitutional Law, II, 2.
ALCOHOLIC BEVERAGES. See Constitutional Law, X; Taxes, 4.
ALIBI EVIDENCE. SN' Constitutional Law, II, 1; Procedure, 1.
ALLOTMENTS TO INDIANS. See Indians, 1.
ANTIWAR VIEWS. See Constitutional Law, V; Federal Communications
Act.
APPEALS. See Administrative Procedure, 3; Constitutional Law,
II, 5; IV, 1; Federal Food, Drug, and Cosmetic Act, 6; Jurisdiction,
7; Procedure, 3.
APPORTIONMENT PLANS. SPc Constitutional Law, III, 1-7;
Jurisdiction, 7.
APPROVALS. SC'c Administrative Procedure, 1-6; Evidence, 1-2;
Federal Food, Drug, and Cosmetic Act, J-6; Judicial Review,
1-2; Jurisdiction, 1 ; Procedure, 3-4.
ARKANSAS. Sec Constitutional Law, II, 7; Probation.
ARRESTS. Ser Constitutional Law, II, 7; VI, 2; Probation;
Search and Seizure, 2.
ASSAULT. S('e Indians, 2; Jurisdiction, 3; Procedure, 6.
ASSAULT WITH INTENT TO COMMIT SERIOUS BODILY
INJURY. See Indians, 2; Jurisdiction, 3; Procedure, 6.
ASSISTANCE OF COUNSEL. Sec Courts-Martial; Habeas
Corpus.
ATTORNEY GENERAL OF WISCONSIN. See Jurisdiction, 5-6.
ATTORNEYS. See Courts-Martial; Habeas Corpus.
ATTORNEYS' FEES. See also Emergency School Aid Act of
1972; Labor-Management Reporting and Disclosure Act.
1. Emergenry Srhool Aid Art of 1972-Successful litigants-Desegregation
oj Memphis schools.-Since Court of Appeals' denial of
1206 INDEX
ATTORNEYS' FEES-Continued.
costs and attorneys' fees under § 718 of the Act to petitioners, who
were successful in litigation aimed at desegregation of Memphis
public schools, was without stated reasons, this Court cannot determine
whether the proper standard was correctly applied. Northcross
v. Memphis Board of Education, p. 427.
2. Reinstatement of union member-Equitable powers of trial
court-Labor-Management Reporting and Disclosv,re Act.-Respondent's
suit under § 102 vindicated not only his own rights of
free speech guaranteed by the statute but furthered the interests of
the union and its members as well. As a result, the award of attorneys'
fees under these circumstances comported with the trial
court's inherent equitablr power of making such an award whenever
"overriding considerations indicate the need for such recovery." HaU
v. Cole, p. 1.
AUTOMOBILE ACCIDENTS. See Constitutional Law, II, 7;
Probation.
AUTOMOBILE SEARCHES. See Constitutional Law, VI, 1;
Search and Seizure, 1.
BARS. See Jurisdiction, 5-6.
BILL OF COMPLAINT. See Jurisdiction, 4.
BIOFLA VONOID PRODUCTS. Sec Federal Food, Drug, and
Cosmetic Act, 1, 4-5.
BONA FIDE RESIDENCE. See Constitutional Law, II, 6.
"BORROWING" STATE LAW. See Federal-State Relations, 1;
Public Lands,
BOUNDARIES OF ELECTION DISTRICTS. See Constitutional
Law, III, 1-3.
BROADCASTING. Sec Constitutional Law, V; Federal Communications
Act.
BUCK ACT. See Constitutional Law, X; Taxes, 4.
BURDEN OF PROOF. See Administrative Procedure, 1-6; Constitutional
Law, VI, 1; Evidence, 1-2; Federal Food, Drug, and
Cosmetic Act, 1-6; Judicial Review, l; Jurisdiction, 1; Procedure,
3; Search and Seizure, l.
BUSINESS EXECUTIVES' MOVE FOR VIETNAM PEACE.
See Constitutional Law, V; Federal Communications Act.
BYLAWS. See National Labor Relations Act, 1; Unions.
INDEX 1207
CALIFORNIA. Sec Constitutional Law, I; IX; Copyrights, 1-3;
Indians, 1; Jurisdiction, 4.
CAPITAL CONTRIBUTIONS. See Internal Revenue Code, 1;
Taxes, 2.
CAPTIVE AUDIENCES. See Constitutional Law, V; Federal
Communications Act.
CARRIERS. See Injunctions, 1-2; Interstate Commerce Commission;
Judicial Review, 2; National Environmental Policy Act;
Procedure, 4; Standing to Sue.
CHARGES FOR GRAIN INSPECTIONS. See Interstate Commerce
Commission; Judicial Review, 2; Procedure, 4.
CHARGES TO JURY. Sec Constitutional Law, IV, 2; Evidence,
3-5; Indians, 2; Internal Revenue Code, 2; Jurisdiction, 3;
Procedure, 6; Taxes, 1.
CHECKS. See Constitutional Law, II, 3; Evidence, 4-5.
CHILDREN. See Constitutional Law, VIII; Immunity, 1-3.
CHOICE OF LAW. See Federal-State Relations, 1; Public Lands.
CITIES. See Jurisdiction, 5-6.
CITRUS BIO FLA VO NO IDS. Sre Federal Food, Drug, and Cosmetic
Act, 1, 4-5.
CIVIL RIGHTS ACTIONS. See Jurisdiction, 5-6.
CLASS ACTIONS. See Courts-Martial; Habeas Corpus.
CLEARANCE OF NEW DRUGS. See Administrative Procedure,
1-6; Evidence, 1-2; Federal Food, Drug, and Cosmetic Act,
1-6; Judicial Review, 1; Jurisdiction, 1; Procedure, 3.
COLLATERAL ATTACK. See Constitutional Law, II, 4; IV, I;
Procedure, 5.
COLLEGE STUDENTS. See Constitutional Law, II, 6.
COMMERCE. Sec Administrative Procedure, 1-6; Evidence, 1-2;
Federal Food, Drug, and Cosmetic Act, 1-6; Judicial Review,
I; Jurisdiction, 1; Procedure, 3.
COMMISSIONER OF FOOD AND DRUGS. Sec Administrative
Procedure, 1-6; Evidence, 1-2; Federal Food, Drug, and Cosmetic
Act, 1-6 _; Judicial Review, l; Jurisdiction, 1; Procedure,
3.
COMMITTEES OF CONGRESS. See Constitutional Law, VIII,
1-2; Immunity, 1-3.
1208 INDEX
COMMON CARRIERS. ::,,'(' Injunctions, 1-2; Interstate Commerce
Commission; Judicial Review, 2; National Environmental
Policy Act; Procedure, 4; Standing to Sue.
COMMON-LAW INFERENCES. Src· Constitutional Law, II, 3;
Evidence, 4-5.
COMMUNICATIONS ACT. ~N' Constitutional Law, V; Federal
Communications Act.
COMPENSATION WHILE ON JURY DUTY. See Constitutional
Law, II, 2.
CONCURRENT JURISDICTION. See Constitutional Law, X;
Taxes, 4.
CONDEMNATION. SC'c Federal-State Relations, 1; Public Lands.
CONFINEMENT. Srr Courts-Martial; Habeas Corpus.
CONFLICT OF LAWS. See Federal-State Relations, 1; Public
Lands.
CONGRESSIONAL APPORTIONMENT. Srr Constitutional Law,
III, 1-7; Jurisdiction, i.
CONGRESSIONAL COMMITTEES. See Constitutional Law,
VIIT, 1-2; Immunity, 1-3.
CONGRESSIONAL DISTRICTING. 8ef' Constitutional Law, III,
1-3.
CONGRESSIONAL REPORTS. See Constitutional Law, VIII,
1- 2; Immunity, 1- 3.
CONNECTICUT. Sn• Constitutional Law, 11, 6.
CONSENTED SEARCHES. Sec Constitutional Law, VI, 1; Search
and Seizure, 1.
CONSTITUTIONAL LAW. Sc(' also Copyrights, 1-3; Evidence,
3-5; Federal Communications Act; Immunity, 1-3; Jurisdiction,
5- 7; Probation; Procedure, 1-2, 5, 7; Search and Seizure,
1-2; Taxes, 4.
I. Copyright Clause.
Federal-state relations-California's protection of recordings.-
Article I, § 8, cl. 8, of the Constitution does not cxprrssly or by inference
vest all powrr to grant copyright protection exclusively in the
Federal Government. UnleBs Congress determines that the national
interest requires federal protection or freedom from restraint. as to
a particular category of "Writings," state protection of that category
is not precluded. Goldstein v. California, p. 546.
INDEX
CONSTITUTIONAL LAW-Continued.
II. Due Process.
1209
l. Alibi Pl!id('nte-Reciprocal, discovery-Fundamental fairness.-
Reciprocal di~covery is required by fundamental fairness and it is
insufficient that although statute does not require it, State might
grant reciprocal discovrr:,· in a given case. Tn absrnce of fair notice
that petitioner will haYC' o])J)(H·tunity to discover State's rebuttal
witnesses, petitioner cannot, ronsistently with due process requirements,
be required to reveal his alibi defense. \Vardius v. Oregon,
p. 470.
2. Deprivation of property-Compensation while on jury duty.-
Alabama statute that provides that employee excused for jury duty
"shall be entitled to hi3 usual compensation . . less the fee or compensation
he received for serving" as a juror, does not deprive employn
of property in violation of the Due Process Clause of the
Fourteenth AmendmPnt. Dean Y. Gadsden Times Publishing Co.,
p, 543.
3. Evidence-Statutory inference.-If statutory inference submitted
to jmy as sufficient to support conviction satisfies the reasonabledoubt
standard (i. e., the> rvidence necessary to invoke the inference
is sufficient for rational juror to find the inferred fact beyond a reasonable
doubt) as well as the rnorr-likely-than-not standard, then it
clearly accords with due process. Barnes v. United States, p. 837.
4. Increased sentence on retrial-Knowledge of jury.-Rendition of
higher sentE-nce by jury on retrial does not violate the Double Jeopardy
Clause, and does not offend the Due Process Clause as long as
the jury is not informed of the prior sentence and the second sentence
is not otherwise shown to be product of vindictiveness. Nor does
the possibility of higher sentence impermissibly "chill" exercise of
criminal defendant's right to ch:illenge his first ronviction by direct
appeal or collateral attack. Chaffin v. Stynchcombe, p. 17.
5. Increased sentence on retrial-Retroactivity.-The "prophylactic"
due procrss limitations established by North Carolina v.
Pearce, 395 U. S. 711, to guard against the possibility of vindictiveness
in rnsC's whrrr judge imposes more severe sentence after a new
trial, are not retroactively applicable to resentencing proceedings
that, like the one involved here, occurred prior to the date of the
Pearce decision. Michigan v. Payne, p. 47.
6. lrrebuttable statutory presumptions-Nonresident tuition
rates.-Due Process Clause of Fourteenth Amendment does not permit
Connerticut to deny an individual the opportunity to present
evidence that he is a bona fide resident entitled to in-state rates, on
1210 INDEX
CONSTITUTIONAL LAW-Continued.
basis of a permanent and irrebuttable presumption of nonresidence,
when that presumption is not necessarily true in fact, and when
State has reasonable alternative means of making the crucial determination.
Vlandis v. Kline, p. 441.
7. Probation conditions-Traffic citation.-Issuance of traffic citation
was not an "arrest" under either Missouri or Arkansas law,
and finding that petiti(lner violated his probation conditions was so
totally devoid of evidentiary support as to violate due process. Even
were it clear that respo11dent judge held Missouri law to be that
traffic citation is equivalrnt to arrest, such an unforeseeable holding,
retroactively applied, would also deprive petitioner of due process.
Douglas v. Buder, p. 430.
III. Equal Protection of the Laws.
l. District boundaries-Political incumbents.-Though the drawing
of district boundaries in a way that minimizes the number of
contests between present incumbents does not of itsrlf establish in-
Yidiousness, it is not necessary to del'ide whcthrr such state interest
will justify the deviations in S. B. I, since Plan B serves this purpose
as well with less population variance. White v. \Veiser, p. 783.
2. Population variances-Congressional reapportionment.-Population
variances do invidiously devalue the individual's vote at some
point or level in size, and this is especially noticeable in congressional
districts with their substantial population. Plan B, to a greater extent
than Plan C, while eliminating population variances, adhered to
the districting prC'ferC'nces of thc state legislature, which has "primary
jurisdiction" over legislative reapportionment. White v.
Weiser, p. 783.
3. Prpulation variances-District lines.-Although the percentage
deviations in S. B. I are smaller than those invalidated in Kirkpatrick
v. Preisler, 394 U.S. 526, and Wells v. Rockefeller, 394 U.S. 542, they
were not "unavoidable" and the districts were not as mathematically
equal as reasonably possible. The argument that variances are
justified if they necessarily result from the State's attempt to avoid
fragmenting political subdivisions by drawing district lines along
existing political subdivision lines is not legally acceptable. White v.
Weiser, p. 783.
4. State legislative apportionment-Deviations in population.-
State reapportionment statutes are not subject to the stricter standards
applicable to congressional reapportionment under Art. I, § 2,
and the District Court erred in concluding that this case, where the
INDEX 1211
CONSTITUTIONAL LA W-Continue<l.
total maximum variation between House districts was 9.9%, but the
average deviation from the ideal was 1.82%, invoh·cd invidious discrimination
in violation of the Equal ProtPction Clause. White v.
Regester, p. 755.
5. State legislative apportionment-Minor deviations.-Minor deviations
from mathematical equality among state legislative districts
do not make out a prima facie case of invidious di~crimination under
the Equal Protection Clause of the Fourteenth Amendment, and in
this case, where the House districts deviated on the average of 1.9%
and the maximum deviation was 7.83%, a prima facie case was not
made out. Gaffney v. Cummings, p. 735.
6. State legislative apportionment-Political f airness.-A "political
fairness principle" that arhieves a rough approximation of the statewide
political strengths of the two major parties does not violate the
Equal Protection Clause. Gaffney v. Cummings, p. 735.
7. Texas legislative apportionment-Political discrimination.-District
Court's order rrquiring disestablishment of the multimember
distriC'tS in Dallas and Bexar Counties was warranted in light of history
of political discrimination against Negroes and Mexican-Americans
residing, rrspectively, in those counties and the residual effects
of such discrimination upon those groups. White \', Regester, p. 755.
IV. Fifth Amendment.
I. Double jeopardy-Increased sentence on retrial-Due process.-
Rendition of higlH'r scntrncr by ,iur~· on rdrial does not violate the
Double Jeopardy Clause, and does not offend the Due Process Clause
as long as the jur~ is not informed of the prior sentence and the
second sentence is not otherwise shown to be produrt of vindictiveness.
Nor does the possibility of higher sentence impermissibly "chill"
exercise of criminal defendant's right to challenge his first conviction
by direct. appeal or collateral attack. Chaffin v. Stynchcombe, p. 17.
2. Self-incrimination-Pressure to testify-Massing of evidence.-
Although the introduction of an? evidC'ncC', direct or circum~tantial,
tending to implicate defendant in the iillrgc•d crime increases the
pressure on him to testif~-, the mrrc• massing of evidence against
him cannot be rl'gardl'd as a violation of his privilegr against selfincrimination.
Barnrs v. Unitt'd States, p. 837.
V. First Amendment.
Radio broadcasters-Paid editorial advertisements.-Ncithcr the
Communications Act nor the First Amendmrnt requires broadcasters
to accept paid rditorial advertisemrnts. Columbia Broadcasting \'.
Democratir Comm., p. 94.
1212 INDEX
CONSTITUTIONAL LAW-Continued.
VI. Fourth Amendment.
1. Search and seizure-Consented searth-Knowledge of right to
withhold consent.-When subject of search is not in custody and
State would justify search on basis of consent, Fourth and Fourteenth
Amendments require that it demonstrate that consent was in
fact voluntary; voluntariness is to be determined from the totality
of surrounding circumstances. While knowledge of right to refuse
consent is a factor to be taken into account, State need not prove that
onc giving permission to search knew that ho had right to withhold
<·onsent. Schneckloth v. Bustamante, p. 218.
2. Search and seizure-Station-house detention-Probable cause-
Fingernail scrapings.-In view of station-house detention upon probable
cause in murder case, the very limited intrusion, by taking scrapings
from rrspondent's fingC'rnails, undertaken to preserve highly
evanescPnt evidence was not violative of the Fourth and Fourteenth
Amendments. Cupp v. :VIurphy, p. 291.
VII. Sixth Amendment.
Denial of speedy trial- Remedy.-In light of policies underlying
the right to a sprrdy tri::tl, dismissal of the charges must remain, as
noted in Barker v. Wingo, 407 U. S. 514, 522, "the only possible
remedy" for deprivation of the constitutional right. Strunk v. United
States, p. 434.
VIII. Speech or Debate Clause,
1. Legislative report-Congressional staff .-Congressional committee
members, members of their staff, consultant, and investigator
are absolutely immune under the Speech or Debate Clause insofar
as they engaged in legislative acts of compiling report, referring it to
the House. or voting for its publication. Doe v. McMillan, p. 306.
2. Public distribution of congressional reports-Authorization from
Congress.--Clausc does not afford absolute immunity from private
suit to persons who, with authorization from Congress, perform function
of publicly distributing materials that allegedly infringe upon
the rights of individuals. Court of Appeals erred in holding that
respondents who (except for committee members and personnel)
were charged with public distribution were protected by t he Clause.
Doe v. McMillan, p. 306.
IX. Supremacy Clause.
Record piracy-California's protection of recordings.-California
statute protecting recordings from piracy does not violate the Supremacy
Clause by conflicting with federal copyright law. Goldstein
v. California, p. 546.
INDEX
CONSTITUTIONAL LAW-Continued.
X. Twenty-first Amendment.
1213
Exclusive federal jurisdiction-State tax on liquor.-The Twentyfirst
Amendment does not empower Mississippi to tax or otherwise
regulate importation of distilled spirits into a territory over which
the United States exercises exclusive jurisdiction, regardless of
whether some of the liquor may have been consumed off base.
United Stales v. Missi.'3sippi Tax Comm'n, p. 363.
CONSTITUTIONS. See National Labor Relations Act, 1; Unions.
CONSULTANTS. Srr Constitutional Law, VIII, 1- 2; Immunity,
1-3.
CONTRACTORS. See Federal Tort Claims Act, 1- 3.
CONTRIBUTIONS TO CAPITAL. Sec Internal Revenue Code, 1;
Taxes, 2.
CONTROVERSIAL QUESTIONS. See Constitutional Law, V;
Federal Communications Act.
CONTROVERSY BETWEEN STATES. See Jurisdiction, 4.
CONVEYANCES TO UNITED STATES. See Federal-State Relations,
1; Public Lands.
COPYING RECORDINGS. See Constitutional Law, I; IX; Copyrights,
1-3.
COPYRIGHTS. See also Constitutional Law, I; IX.
1. Copyright Clause-Federal-state relations-California's protection
of rccordings.-Articlc I, § 8, cl. 8, of 1hc Constitution does not
expressly or by inference vest all power to grant copyright protection
exclusively in the Federal Government. Unless Congress determines
that the national intcrc.,t requires federal protection or
frerdom from restraint as to a particular category of "Writings,"
state protection of that category is not precluded. Goldstein v.
California, p. 546.
2. Federal-state relations-Federal protection of recordings-California
action against piracy.-Although federal copyright statutes
were amended in 1971 to allow federal protection of recordings, such
proteC'tion was not intended to alter legal relationships governing recordings
"fixed" prior to February 15, 1972. Until and unless Congress
takes further action with respect to recordings "fixed" prior to
that date, California remains free to proscribe acts of record or tape
piracy such as those involved here. Goldstein v. California, p. 546.
1214 INDEX
COPYRIGHTS-Continued.
3. Supremacy Clause-California's protection of recordings-
Record piracy.-California statute protecting recordings from piracy
does not violate the Supremacy Clause by conflicting with federal
copyright law. Goldstein Y. California, p. 546.
COSTS. See Attorneys' Fees, 1; Emergency School Aid Act of
1972.
COUNSEL. See Courts-Martial; Habeas Corpus.
COUNSEL FEES. See Attorneys' Fees, 1; Emergency School Aid
Act of 1972; Labor-Management Reporting and Disclosure Act.
COUNTY JAILS. Set> Federal Tort Claims Act, 1-3.
COUNTY LINES. See Constitutional Law, III, 1-3.
COURT ENFORCEMENT OF FINES. See Administrative Procedure,
7; National Labor Relations Act, 2; Unions.
COURTS-MARTIAL. See aim Habeas Corpus.
Assistance of counsel-Release from confinement.-Motion to vacate
Court of Appeals' stay of District Court's order in habeas corpus
proceeding denied, the Solicitor Genrrnl liaving represented that
movants have been relea~ed and no uncounselcd persons summarily
court-martialcd are in military confinement in Central District of
California. Henry v. Warner (DOUGLAS, J., in chambers), p. 1201.
COURTS OF APPEALS. See Administrative Procedure, 1-6;
Evidence, 1-2; Federal Food, Drug, and Cosmetic Act, 1-6;
Judicial Review, 1; Jurisdiction, 1; Procedure, 3.
CRIMINAL LAW. SeC' Constitutional Law, I; II, 1, 5; IV, 1; VI,
1-2; VII; IX; Copyrights, 1-3; Evidence, 3-5; Indians, 2; Internal
Revenue Code, 2; Jurisdiction, 3; Procedure, 1- 2, 5-7;
Search and Seizure, 1-2; Taxes, 1.
CROSSING PICKET LINES. See Administrative Procedure, 7;
National Labor Relations Act, 2; Unions.
DECLARATORY JUDGMENTS. See Administrative Procedure,
3; Federal Food, Drug, and Cosmetic Act, 6; Procedure, 3.
DECLARATORY RULINGS. See Constitutional Law, V; Federal
Communications Act.
DEDUCTIONS FOR DEPRECIATION. See Internal Revenue
Code, 1 ; Taxes, 2.
DEEDS. See Federal-State Relations, 1; Public Lands.
DEFENSES. See Constitutional Law, II, 1; Procedure, 1.
INDEX 1215
DELAYS. See Constitutional Law, VII; Procedure, 2.
DEMOCRATIC NATIONAL COMMITTEE. See Constitutional
Law, V; Federal Communications Act.
DENIAL OF COSTS AND FEES. See Attorneys' Fees, l; Emergency
School Aid Act of 1972.
DENIAL OF SPEEDY TRIAL. See Constitutional Law, VII;
Procedure, 2.
DEPARTMENT OF THE INTERIOR. See Indians, 1.
DEPRECIATION DEDUCTIONS. See Internal Revenue Code, 1;
Taxes, 2.
DEPRIVATION OF PROPERTY. See Constitutional Law, II, 2.
DEPUTY MARSHALS. See Federal Tort Claims Act, 1-3.
DEROGATORY REPORTS. Sec Constitutional Law, VIII, 1-2;
Immunity, 1-3.
DESEGREGATION. See Attorneys' Fees, 1; Emergency School
Aid Act of 1972.
DESTRUCTIBLE EVIDENCE. See Constitutional Law, VI, 2· Search and Seizure, 2. '
DETENTION OF SUSPECT. See Constitutional Law, VI, 2· Search and Seizure, 2. '
DEVIATIONS IN POPULATION. See Constitutional Law, III,
1-3, 5-6; Jurisdiction, i.
DISCIPLINARY FINES. See Administrative Procedure, 7; National
Labor Relations Act, 2; Unions.
DISCOVERY. See Constitutional Law, II, 1; Procedure, 1.
DISCRETION. See Attorneys' Fees, 2; Constitutional Law, V;
Federal Communications Act; Labor-Management Reporting
and Disclosure Act.
DISCRIMINATION. Sec Constitutional Law, III, 4-i; Jurisdiction,
7.
DISMISSAL OF CHARGES. See Constitutional Law, VII; Procedure,
2.
DISTILLED SPIRITS. Sec Constitutional Law, X; Taxes, 4.
DISTRIBUTION OF REPORTS. See Constitutional Law, VIII,
1-2; Immunity, 1- 3.
1216 INDEX
DISTRICT COURTS. See Administrative Procedure, 1-6; Administrative
Procedure Act; Attorneys' Fees, 2; Constitutional
Law, X; Courts-Martial; Federal Food, Drug, and Cosmetic
Act, 1-6; Habeas Corpus; Injunctions, 1-2; Interstate Commerce
Commission; Judicial Review, l; Jurisdi.ction, 1; Labor-
Management Reporting and Disclosure Act; National Environmental
Policy Act; Procedure, 3; Standing to Sue; Taxes, 4.
DISTRICTING. See Constitutional Law, III, 4-7; Jurisdiction, 7.
DISTRICT OF COLUMBIA. See Constitutional Law, VIII, 1-2;
Immunity, 1-3.
DIVERSION OF WATER. Sf'e Jurisdiction, 4.
DOUBLE JEOPARDY. See Constitutional Law, II, 5; IV, 1;
Procedure, 5, 7.
DRUG PRODUCTS. See Administrative Procedure, 1-6; Evidence,
1-2; Federal Food, Drug, and Cosmetic Act, 1-6; Judicial
Review, 1; Jurisdiction, 1; Procedure, 3.
DUE PROCESS. See Constitutional Law, II, 1-7; Evidence, 3-5;
Jurisdiction, 5-6; Probation; Procedure, 1, 5-7.
ECONOMIC HARM. See Administrative Procedure Act; Injunctions,
1-2; Jurisdiction, 2; National Environmental Policy Act;
Standing to Sue.
EDITORIAL ADVERTISEMENTS. See Constitutional Law, V;
Federal Communications Act.
EFFECTIVE NEW DRUG APPLICATIONS. See Administrative
Procedure, 1-6; Evidence, 1-2; Federal Food, Drug, and Cosmetic
Act, 1-6; Judicial Review, 1; Jurisdiction, 1; Procedure,
3.
EFFICACY OF NEW DRUGS. See Administrative Procedure,
1-6; Evidence, l-2; Federal Food, Drug, and Cosmetic Act,
1-6 ; Judicial Review, 1; Jurisdiction, 1; Procedure, 3.
ELECTION DISTRICTS. See Constitutional Law, III, 1-7; Jurisdiction,
7.
EMERGENCY RATE INCREASES. See Administrative Procedure
Act; Injunctions, 1-2; Jurisdiction, 2; National Environmental
Policy Act; Standing to Sue.
EMERGENCY SCHOOL AID ACT OF 1972. See also Attorneys'
Fees, 1.
Successful, litigants-Desegregation of Memphis schools-Denial of
costs and attorneys' fees.-Since Court of Appeals' denial of costs and
INDEX 1217
EMERGENCY SCHOOL AID ACT OF 1972-Continued.
attorneys' fees under § 718 of the Act to prtitiont'rs, who were successful
in litigation aimed at desegregation of Mrmphis public schools,
was without stated reasons, this Court cannot determine whether the
proper standard was correctly applied. Northcross v. Memphis
Board of Education, p. 427.
EMPLOYEES. See Administrative Procedure, 7; National Labor
Relations Act, 2; Unions.
EMPLOYEES OF SCHOOL SYSTEM. Sec Constitutional Law,
VIII, 1-2; Immunity, 1-3.
EMPLOYEES OF THE GOVERNMENT. See Federal Tort
Claims Act, 1-3.
EMPLOYER AND EMPLOYEES. See Constitutional Law, II, 2.
ENFORCEMENT OF FINES. See Administrative Procedure, 7;
National Labor Relations Act, 2; Unions.
ENVIRONMENTAL DEFENSE FUND. Sec Administrative Procedure
Act; Injunctions, 1-2; Jurisdiction, 2; National Environmental
Policy Act; Standing to Sue.
ENVIRONMENTAL GROUPS. See Administrative Procedure
Act; Injunctions, 1-2; Jurisdiction, 2; National Environmental
Policy Act; Standing to Sue.
EQUAL PROTECTION OF THE LAWS. Sec Constitutional Law,
III, 1-7; Jurisdiction, 7.
EQUITABLE RELIEF. See Jurisdiction, 5-6.
EQUITY. Sec Attorneys' Fees, 2; Labor-Management Reporting
and Disclosure Act.
ESTATES OF INDIANS. See Federal-State Relations, 2; Indians,
3; Taxes, 3.
ESTATE TAXES. See Federal-State Relations, 2; Indians, 3;
Taxes, 3.
ETHNIC GROUPS. Ser Constitutional Law, Ill, 4, 7; Jurisdiction,
7.
EVALUATION OF NEW DRUGS. Sec Administrative Procedure,
1-6; Evidence, 1-2; Federal Food, Drug, and Cosmetic Act,
1-6; Judicial Review, 1; Jurisdiction, 1; Procedure, 3.
EVANESCENT EVIDENCE. Set' Constitutional Law, VI, 2;
Search and Seizure, 2.
1218 INDEX
EVIDENCE. See also Administrative Procedure, 1-6; Constitutional
Law, JI, 1, 6-7; VI, 1-2; Federal Food, Drug, and Cosmetic
Act, 1-6; Probation; Procedure, 1; Search and Seizure,
2.
I. Federal Food, Drug, and Cosmetic Art-Substantial evidence-
Hearings.-Although a drug can be "generally recognized" by experts
as effective for intended use within the meaning of the Act only when
that expert consensns is founded upon "substantial evidence," any
ruling on Lntrcxin's new drug status is premature, and must await
the outcome of the hearing on whether Hynson submitted "substantial
evidence." ·weinberger v. Hynson, Westcott & Dunning,
p. 609.
2. Federal Food, Drug and Cosmetic Act-Substantial evidence-
Threshold burden.-In }fo. 72-394, the Court of Appeals' holding
that Hynson was entitled to a hearing on whether its submission of
evidence satisfied its threshold burden of providing "substantial evidence"
is affirmed. Weinberger v. Hynson, Westcott & Dunning,
p. 609.
3. Massing of evidence-Privilege against 8elf-incrimination.-Although
the introduction of any evidence, direct or circumstantial,
tending to implicate dPfendant in the aUeged crime increases the
pressure on him to testify, the mne massing of evidence against him
cannot be regarded as a violation of his privilege against self-incrimination.
Barnes v. United States, p. 837.
4. Possession of stolen checks-Common-law inference-Reasonable-
doubt standard.-Here, where evidence established that petitioner
possessed recently stolen Treasury checks payable to persons
he did not know and it provided no plausible explanation for such
possession consistent with innocence, the traditional common-law inference
satisfies the reasonable-doubt standard, the most stringent
standard applied by the Court in judging permissive criminal-law inferences,
and, therefore, comports with due process. Barnes v.
United States, p. 837.
5. Statutory inference-Reasonable-doubt standard-More-likelythan-
not standard.-If statutory inference submitted to jury as sufficient
to support conviction satisfies the reasonable-doubt standard
(i. e., the evidence necessary to invoke the inference is sufficient for
rational juror to find the inferred fact beyond a. reasonable doubt)
as well as the more-likely-than-not standard, then it dearly accords
with due process. Barnes v. United States, p. 837.
INDEX 1219
EXCLUSIVE JURISDICTION. See Administrative Procedure
Act; Constitutional Law, X; Injunctions, 1-2; Jurisdiction, 2;
National Environmental Policy Act; Standing to Sue; Taxes,
4.
EXEMPTIONS. See Administrative Procedure, 1-6; Evidence, 1-
2; Federal Food, Drug, and Cosmetic Act, 1-6; Judicial Review,
1; Jurisdiction, 1; Procedure, 3.
EXHAUSTION OF REMEDIES. See Administrative Procedure,
1-6; Evidence, 1-2; Federal Food, Drug, and Cosmetic Act,
1-6; Jurisdiction, 1.
EXPERT PANELS. Sec Administrative Procedure, 1-6; Evidence,
1-2; Federal Food, Drug, and Cosmetic Act, 1-6; Judicial Review,
1; Jurisdiction, 1; Procedure, 3.
EXPULSION FROM UNION. See Attorneys' Fees, 2; Labor-
Management Reporting and Disclosure Act.
FAIRNESS. See Constitutional Law, II, 1; Procedure, 1.
FAIRNESS DOCTRINE. See Constitutional Law, V; Federal
Communications Act.
FEDERAL AGENCIES. See Federal Tort Claims Act, 1-3.
FEDERAL "COMMON LAW." Sec Federal-State Relations, 1;
Public Lands.
FEDERAL COMMUNICATIONS ACT. See also Constitutional
Law, V.
Radio broadca;i,ters-Public issues-Paid editorial advertisements.-
Neither the Act nor the First Amendment requires broadcasters to
accept paid editorial advertisements. Columbia Broadcasting v.
Democratic Comm., p. 94.
FEDERAL COMMUNICATIONS COMMISSION. See Constitutional
Law, V; Federal Communications Act.
FEDERAL COURTS. See Federal-State Relations, 1; Public
Lands.
FEDERAL FOOD, DRUG, AND COSMETIC ACT. See also Administrative
Procedure, 1-6; Evidence, 1-2; Judicial Review,
1; Jurisdiction, 1; Procedure, 3.
I. Exemptions-"Grandfather" clause-New drng applications
(N DA's) .-The congressional purpose was to exempt only tho~e drugs
that had never been subject to the new drug regulation, and therefore
any drug for which an NDA had once been effective does not fall
1220 INDEX
FEDERAL FOOD, DRUG, AND COSMETIC ACT-Continued.
within the exempt category. USV Pharmaceutical Corp. v. Weinberger,
p. 655.
2. Food and Drug Administration-New drugs-Scientific inquiry.-
The reach of scientific inquiry under both § 505 (d) and
§ 201 (p) of the Act is the same, and it is implicit in the regulatory
scheme that the FDA has jurisdiction to decide with administrative
finality, subject to judicial review, the ''new drug" status of individual
drugs or classes of drugs. '-''einberger v. Bent.ex Pharmaceuticals,
Inc., p. 645.
3. Grandfather provisiom-New drug application..1'.-Lutrexin is
not exempt under the "grandfather" provisions of the 1962 Amendments
to the Act, as held by the FDA and the Court of Appeals, and
their construction accords with the legislative history which suggests
that the exemption is afforded only for drugs that never had
been subject to new drug regulation. Weinberger v. Hynson, Westcott
& Dunning, p. 609.
4. "Me-too" drugs-Effective new drug applications.-"Any drug"
is used in § 107 ( c) ( 4) in the generic sense, which means that the "metoo's"
whether the products of the same or of different manufacturers
"covered" by an "effective" NDA are not exempt from the efficacy
requirement of § 201 (p). USV Pharmaceutical Corp. v. Weinberger,
p. 655.
5. Prescription drugs-Efficacy requiremcnts.-Prescription drugs
on the market are subject to the 1962 efficacy requirements, for if
the 1962 amendments are to be comprehensively meaningful, § 107
(c) (4) cannot be read so as to provide a loophole to permit the
marketing of drugs previously subject to new drug regulation without
demonstrating by the new statutory standards that they have
the claimed efficacy. USV Pharmaceutical Corp. v. Weinberger,
p. 655.
6. Sanctions-Not a dual administrative-judicial system.-While
the Act provides FDA with sanctions, such as civil injunction proceedings,
criminal penalties, and in rem seizure and condemnation, to
enforce the prohibition against sale in commerce of any article in
violation of § 505, the Act does not create a dual system, one administrative
and the other judicial. CIBA Corp. v. Weinberger,
p. 640.
FEDERAL INCOME TAXES, See Internal Revenue Code, 1-2;
Taxes, 1-2.
FEDERAL INSTRUMENTALITIES. See Constitutional Law, X;
Taxes, 4.
FEDERAL PRISONERS. See Federal Tort Claims Act, 1-3.
INDEX 1221
FEDERAL REGULATORY PROGRAMS. Sec Federal-State Relations,
1; Public Lands.
FEDERAL RULES OF CRIMINAL PROCEDURE. See Indians,
2; Jurisdiction, 3; Procedure, 6.
FEDERAL-STATE RELATIONS. See also Constitutional Law, I;
IX; X; Copyrights, 1-3; Indians, 1, 3; Public Lands; Taxes, 4.
I. Federal, lands-Mineral reservations-Subsequent Louisiana
statute.-Under settled principles governing the choice of law by
federal courts, Louisiana's Act 315 of 1940 does not apply to the
mineral reservations agreed to by the parties in 1937 and 1939. As
it is clear that Act 315 does not apply here, it is not necessary to
choose between "borrowing" some residual state rule of interpretation
or formulating an independent federal "common law" rule; neither
rule is the law of Louisiana, yet either rule resolves this dispute in
the Government's favor. United States v. Little Lake Misere Land
Co., p. 580.
2. Oklahoma estate tax-United States as trustee-Reliance on
Supreme Court decision.-United States did not breach its fiduciary
duty as trustee of Indian property by paying Oklahoma estate tax
asses.sed against estate of deceased, a restricted Osage Indian, in
reliance on West v. Oklahoma, 334 U. S. 717, which had upheld the
validity of tax as applied to the same kind of estate. United States
v. Mason, p. 391.
FEDERAL TORT CLAIMS ACT.
1. Federal prisoner-Confinement in county jail-Suicide.-Court
of Appeals correctly concluded that the deputy marshal had no
authority to control the activities of the sheriff's employees and that
the county jail was a "contractor," not a "Federal agency," within
t.he meaning of the Act; and the statutory authorization for housing
federal prisoners in state facilities clearly contemplated that day-today
operation of the contractor's facilities was to be in the contractor's,
not the Governmen•'s, hands. Logue v. United States,
p. 521.
2. Federal, prisoner in county jail-Sheriff's employees-Acting on
behal,f of federal agency .-Petitioners' alternative contention that
even though sheriff's employees might not be "employees" of a federal
agency, they might nonetheless be "acting on behalf of a federal
agency in an official capacity" and thus "employec[s] of the
Goverrunent.'' within the meaning of the Act, is not consistent with
the legislative purposes of the Act. Logue v. United States, p. 521.
3. Federal, prisoner in county jail-Suicide-Negligence of federal,
deputy marshal.-Court of Appeals, not having given consideration
1222 INDEX
I'EDERAL TORT CLAIMS ACT-Continued.
to the quest.ion of the deputy marshal's negligence apart from the
other issues, should address itself to that question on remand. Logue
v. United States, p. 521.
FEE TITLES. Sec I'ederal-State Relations, 1; Public Lands.
FELONIES. Sec Internal Revenue Code, 2; Taxes, I.
FIDUCIARY DUTY. Sec Federal-State Relations, 2; Indians, 3;
Taxes, 3.
FIFTH AMENDMENT. See Constitutional Law, IV, 1-2; Evidence,
3-5.
FINES. See Administrative Procedure, 7; National Labor Relations
Act, 2; Unions.
FINGERNAIL SCRAPINGS. See Constitutional Law, VI, 2;
Search and Seizure, 2.
FIRST AMENDMENT. See Attorneys' Fees, 2; Constitutional
Law, V; Federal Communications Act; Labor-Management Reporting
and Disclosure Act.
FISHING RIGHTS. See Indians, 1.
FOOD AND DRUG ADMINISTRATION. See Administrative Procedure,
1-6; Evidence, 1-2; Federal Food, Drug, and Cosmetic
Act, 1-6; Judicial Review, 1; Jurisdiction, 1; Procedure, 3.
FORFEITURE PROCEEDINGS. Sec Indians, I.
FORGING AND UTTERING. Sec Constitutional Law, IV, 2; Evidence,
3-5.
FOURTEENTH AMENDMENT. See Constitutional Law, II, 1, 5,
7; III, 1-3, 5-6; IV, l; VI, 1-2; Jurisdiction, 5-6; Probation;
Procedure, 1, 5, 7; Search and Seizure, 1.
FOURTH AMENDMENT. 8cc Constitutional Law, VI, 1-2;
Search and Seizure, 1-2.
FRAUDULENT RETURNS. Sec Internal Revenue Code, 2; Taxes,
1.
FREEDOM OF SPEECH. See Attorneys' Fees, 2; Constitutional
Law, V; Federal Communications Act; Labor-Management Reporting
and Disclosure Act.
FREIGHT RATE INCREASES. See Administrative Procedure
Act; Injunctions, 1-2; Jurisdiction, 2; National Environmental
Policy Act; Standing to Sue.
FREIGHT RATES. Sec Interstate Commerce Commission; Judicial
Review, 2; Procedure, 4
INDEX 1223
FRUIT SKIN EXTRACTS. See Federal Food, Drug, and Cosmetic
Act, 1, 4-5.
FUNDAMENTAL FAIRNESS. Sec Constitutional Law, II, 1;
Procedure, 1.
GAME WARD ENS. See Indians, 1.
GENERIC DRUGS. See Federal Food, Drug, and Cosmetic Act,
1, 4-5.
GEORGIA. See Constitutional Law, IV, 1; Procedure, 5.
GILL NETS. See Indians, 1.
GOVERNMENT AGENTS. Sec Federal Tort Claims Act, 1-3.
GOVERNMENT CONTRACTORS. See Federal Tort Claims Act,
1-3.
GOVERNMENT LAND OWNERSHIP. See Federal-State Relations,
1; Public Lands.
GOVERNMENT OFFICIALS. See Constitutional Law, VIII, 1-2;
Immunity, 1-3.
GOVERNMENT PRINTING OFFICE. See Constitutional Law,
VIII, 1-2; Immunity, 1-3.
GOVERNMENT SUBSIDIES. Sf'e Internal Revenue Code, 1;
Taxes, 2.
GRAIN INSPECTIONS. See Interstate Commerce Commission;
Judicial Review, 2; Procedure, 4.
GRANDFATHER CLAUSES. Sec Administrative Procedure, 1-6;
Evidence, 1-2; Federal Food, Drug, and Cosmetic Act, 1-6;
Judicial Review, 1; Jurisdiction, 1; Procedure, 3.
GREATER SENTENCES. See Constitutional Law, II, 5; IV, 1;
Procedure, 5, 7.
GUIDELINES. See Administrative Procedure, 1-6; Evidence, 1-
2; Federal Food, Drug, and Cosmetic Act, 1-6; Judicial Review,
1; Jurisdiction, 1; Procedure, 3.
HABEAS CORPUS. ~ec also Constitutional Law, IV, I; Courts-
Martial; Procedure, 5.
Class actions-Unnamed class members outside District-Worldwide
basis.-Question of Distriet Court's authority to grant habeas
corpus relief for unnamed dasB members outside District and/or on
worldwide basis is so novel that relief should be granted only aftrr
full arg;ument. Henry v. Warner (DOUGLAS, .l., in chambers),
p. 1201.
1224 INDEX
HARM TO ENVIRONMENT. See Administrative Procedure Act;
Injunctions, 1-2; Jurisdiction, 2; National Environmental Policy
Act; Standing to Sue.
HEARINGS. See Administrative Procedure, 1-6; Evidence, 1-2;
Federal Food, Drug, and Cosmetic Act, 1-6; Judicial Review,
1; Jurisdiction, 1; Procedure, 3.
HEMATOLOGIC DISORDERS. See Federal Food, Drug, and
Cosmetic Act, 1, 4-5.
HIGHER SENTENCES. See Constitutional Law, II, 5; IV, 1;
Procedure, 5, 7.
HIGHWAY-RAILROAD INTERSECTIONS. See Internal Revenue
Code, 1; Taxes, 2.
HOOPA VALLEY RESERVATION. See Indians, 1.
HOUSE OF REPRESENTATIVES. See Constitutional Law,
VIII, 1-2; Immunity, 1-3.
HOUSING OF FEDERAL PRISONERS. See Federal Tort Claims
Act, 1-3.
IMMUNITY. See also Constitutional Law, VIII, 1-2.
l. Public officials- Distribution of congressional report-Legislative
functions.-Public Printer and Superintendent of Documents
are protected by doctrine of official immunity enunciated in Barr v.
Matteo, 360 U. S. 564, for publi8hing and distributing the report
only to the extent that they served legitimate legislative functions in
doing so, and the Court of Appeals erred in holding that their immunity
extended beyond that limit. Doe v. McMillan, p. 306.
2. Speech or Debate Clause-Legislative report-Congressional
stafj.-Congressional committee members, members of their staff,
consultant, and investigator arc absolutely immune under the Speech
or Debate Clause insofar as they engaged in legislative acts of compiling
report, referring it to the House, or voting for its publication.
Doe v. McMillan, p. 306.
3. Speech or Debate Clause-Public d~~tribution of congressional
reports.-Clause does not afford absolute immunity from private suit
to persons who, with authorization from Congress, perform function
of publicly distributing materials that allegedly infringe upon
the rights of individuals. Court of Appeals erred in holding that
respondents who (except for committee members and personnel)
were charged with public distribution were protected by the Clause.
Doc v. McMillan, p. 306.
INDEX 1225
IMPORTATION OF LIQUOR. See Constitutional Law, X; Taxes,
4.
IMPRESCRIPTIBILITY. See Federal-State Relations, 1; Public
Lands.
IMPROVEMENTS TO HIGHWAY SYSTEM. See Internal Revenue
Code, 1 ; Taxes, 2.
INCOME TAXES. See Internal Revenue Code, 1-2; Taxes, 1-2.
INCREASED RATES. See Administrative Procedure Act; Injunctions,
1-2; Jurisdiction, 2; National Environmental Policy
Act; Standing to Sue.
INCREASED SENTENCES. See Constitutional Law, II, 5; IV, 1;
Procedure, 5, 7.
INCUMBENTS. See Constitutional Law, III, 1-3.
INDIAN COUNTRY. See Indians, 1.
INDIAN RESERVATIONS. See Indians, 1-2; Jurisdiction, 3;
Procedure, 6.
INDIANS. See also Federal-State Relations, 2; Jurisdiction, 3;
Procedure, 6; Taxes, 3.
1. Fishing rights-Termination of reservation-Klamath River
Reservation.-The Klamath River Reservation was not terminated
by the Act of June 17, 1892, and the land within the reservation
boundaries is still Indian country, within the meaning of 18 U. S. C.
§ 1151. Mattz v. Arnett, p. 481.
2. Major Crimes Act of 1885-Lesser included offenses~ury instructions.-
An Indian prosecuted in federal court under the Act is
entitled to a jury instruction on lesser included offenses, if the facts
warrant. Such an instruction would not expand the reach of the Act
or permit the Government to infringe the residual jurisdiction of the
Indian tribes by bringing in federal courts prosecutions not authorized
by statute. Keeble v. United States, p. 205.
3. Oklahoma estate tax-Payment by United States as trustee-
Reliance on Supreme Court decision.-United States did not breach
its fiduciary duty as trustee of Indian property by paying Oklahoma
estate tax assessed against estate of deceased, a restricted Osage Indian,
in reliance on West v. Oklahoma, 334 U. S. 717, which had upheld
the validity of tax as applied to the same kind of estate.
United States v. Mason, p. 391.
INFERENCES. See Constitutional Law, II, 3; Evidence, 3-5.
1226 INDEX
INJUNCTIONS. See also Administrative Procedure, 2; Administrative
Procedure Act; Constitutional Law, III, 4, 7; Federal
Food, Drug, and Cosmetic Act, 6; Interstate Commerce
Commission; Judicial Review, 2; Jurisdiction, 2, 7; National
Environmental Policy Act; Procedure, 3-4; Standing to Sue,
1. Jurisdiction-Interstate Commerce Commission-Suspension of
rates.-Arrow Transportation Co. v. Southern R. Co., 372 U. S. 658,
held that Congress in § 15 (7) of the Interstate Commerce Act had
vested exclusive jurisdiction in the ICC to suspend rates pending
its final decision on their lawfulness and had deliberately extinguished
judicial power to grant such relief; and the factual distinctions
between the instant case and Arrow Transportation are inconsequential.
United States v. SCRAP, p. 669.
2. National Environmental Policy Act-Noncompliance by ICCRepeal
by implication.-Alleged noncompliance by ICC with the Act
did not give the District Court authority to grant the injunction,
as the Act was not intended to repeal by implication any other
statute, and the policies identified in Arrow Transportation Co. v.
Southern R. Co., 372 U. S. 658, as the basis for § 15 (7) of the
Interstate Commerce Act would be substantially undermined if the
courts were found to have suspension powers simply because of noncompliance
with NEPA. United States v. SCRAP, p. 669.
INSPECTION OF GRAIN. See Interstate Commerce Commission;
Judicial Review, 2; Procedure, 4.
IN-STATE TUITION RATES. See Constitutional Law, II, 6.
INSTRUCTIONS TO JURY. See Constitutional Law, IV, 2; Evidence,
3-5; Indians, 2; Internal Revenue Code, 2; Jurisdiction,
3; Procedure, 6; Taxes, 1.
INTERESTS OF UNION MEMBERS. See Attorneys' Fees, 2;
Labor-Management Reporting and Disclosure Act,
INTERIOR DEPARTMENT. See Indians, 1.
INTERNAL REVENUE CODE. See also Taxes, 1-2.
1. Depreciation of Government's cost in wsets-Highway-railroad
improvements-Income taxes.-GovernmentaI subsidies did not constitute
contributions to respondent's capital within meaning of § 113
(a) (8) of Internal Revenue Code of 1939; the assets in question
have a zero basis; and respondent cannot claim a depreciation
deduction with respect thereto. United States v. Chicago, B. & Q.
R. Co., p. 401.
2. "Willfully"-Lesser included offenses-Income taxes.-Word
"willfully" has same meaning in 26 U. S. C. §§ 7206 (I) and 7207,
INDEX 1227
INTERNAL REVENUE CODE-Contir111Pd.
connoting voluntary, intentional violation of known legal duty, and
the distinction between the statutes is found in the additional misconduct
that is essential to the violation of the felony provision;
hence, the District Court properly refused the requested lesserincluded-
offense instruction based on respondent's erroneous contention
that word "willfully" in misdemeanor statute implied less scienter
than same word in felony statute. United States v. Bishop,
p. 346.
INTERNAL UNION AFFAIRS. Scc Administrative Procedure, 7;
National Labor Relations Act, 2; Unions.
INTERSECTIONS. Sce Internal Revenue Code, l; Taxes, 2.
INTERSTATE COMMERCE ACT. See Administrative Procedure
Act; Injunctions, 1-2; Jurisdiction, 2; National Environmental
Policy Act; Standing to Sue.
INTERSTATE COMMERCE COMMISSION. See also Administrative
Procedure Act; Injunctions, l-2; Judicial Review, 2;
Jurisdiction, 2; National Environmental Policy Act; Procedure,
4; Standing to Sue.
Approval of separate charges for inspection of grain in transit-
Judicial review.-District Court's action suspending separate intransit
charges for grain inspection approved by the ICC, and
remanding the case to the ICC, is affirmed as to the remand and
reversed as to the injunction suspending the proposed charges.
Atchison, T. & 8. F. R. Co. v. Wichita Bd. of Trade, p. 800.
INTERVENTION. See Jurisdiction, 5-6.
IN-TRANSIT CHARGES. See Interstate Commerce Commission;
Judicial Review, 2; Procedure, 4.
INVASION OF PRIVACY. See Constitutional Law, VIII, 1-2;
Immunity, 1-3.
INVESTIGATORS. See Constitutional Law, VIII, 1-2; Immunity,
1-3.
INVIDIOUS DISCRIMINATION. See Constitutional Law, III,
4-7; Jurisdiction, 7.
IRREBUTTABLE PRESUMPTIONS. See Constitutional Law, II,
6.
IRRIGATION WATER. See Jurisdiction, 4.
JOURNALISTIC DISCRETION. See Constitutional Law, V; Federal
Communications Act.
1228 INDEX
JUDGES. See Constitutional Law, II, 5, 7; Probation; Procedure,
7.
JUDGMENTS OF CONDEMNATION. See Federal-State Relations,
1; Public Lands.
JUDICIAL POWER. See Administrative Procedure Act; Injunctions,
1-2; Jurisdiction, 2; National Environmental Policy Act;
Standing to Sue.
JUDICIAL REVIEW. See also Administrative Procedure, 1-6;
Constitutional Law, III, 4, 7; Federal Food, Drug, and Cosmetic
Act, 1-6; Interstate Commerce Commission; Jurisdiction,
1, 7; Procedure, 3-4.
1. Federal Food, Drug, and Cosmetic Act-New drug applications-
Food and Drug Administration.-While an FDA order denying
a new drug application and withdrawing one is reviewable by
the Court of Appeals under § 505 (h) of the Act, an order declaring
a "new drug" status under § 201 (p) is reviewable under the Administrative
Procedure Act by the District Court. Weinberger v. Bentex
Pharmaceuticals, Inc., p. 645.
2. ICC approval of charges-Injunctions-Remand.-District
Court's action suspending separate in-transit charges for grain inspection
approved by the ICC, and remanding the case to the ICC, is
affirmed as to the remand and reversed as to the injunction suspending
the proposed charges. Atchison, T. & S. F. R. Co. v. Wichita
Bd. of Trade, p. 800.
JURIES. See Constitutional Law, IV, 1; Procedure, 5.
JURISDICTION. See also Administrative Procedure, 1-7; Administrative
Procedure Act: Attorneys' Fees, 2; Constitutional
Law, III, 4, 7; X; Courts-Martial; Evidence, 1-2; Federal
Food, Drug, and Cosmetic Act, 1-6; Habeas Corpus; Indians,
1-2; Injunctions, 1-2; Interstate Commerce Commission; Judicial
Review, 1-2; Labor-Management Reporting and Disclosure
Act: National Environmental Policy Act; National
Labor Relations Act, 2; Procedure, 3-4, 6; Standing to Sue;
Taxes, 4; Unions.
1. Food and Drug Administration-Primary jurisdiction,-Judicial
review.-The heart of the statutory procedure is the grant of primary
jurisdiction to FDA, subject to judicial review when administrative
procedures are exhausted. Weinberger v. Hynson, Westcott & Dunning,
p. 609.
2. Injunctions-Interstate Commerce Commission-Suspension of
rates.-Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658,
INDEX 1229
JURISDICTION-Continued.
held that Congress in § 15 (7) of the Interstate Commerce Act had
vested exclusive jurisdiction in the ICC to suspend rates pending
its final decision on their ]awfulness and had deliberately extinguished
judicial power to grant such relief; and the factual distinctions
between the instant case and Arrow 'l'ransportation are inconsequential.
United States v. SCRAP, p. 669.
3. Major Crimes Act of 1885-lndian tribes-Lesser included
off ense3.-An Indian prosecuted in federal court under the Act is
entitled to a jury instruction on lesser included offenses, if the facts
warrant. Such an instruction would not expand the reach of the
Act or permit the Government to infringe the residual jurisdiction
of the Indian tribes by bringing in federal courts prosecutions not
authorized by statute. Keeble v. United States, p. 205.
4. Original jurisdiction-Exclusive jurisdiction-Dispute between
United States and two States.-Motion to file bill of complaint is
denied, without prejudice to refiling it if posture of litigation should
change in manner that presents more substantial basis for exercise
of original jurisdiction. There being no dispute between California
and Nevada, the dispute is between the United States and two States,
over which the Court has original but not exclusive jurisdiction
under 28 U. S. C. § 1251 (b) (2). This Court seeks to exercise
original jurisdiction sparingly, especially where plaintiff has another
adequate forum in which to settle his claim. United States v.
Nevada, p. 534.
5. Suit against cities-Equitable relief-City rwt a "person."-A
city is not a "person" under 42 U. S. C. § 1983 where equitable
relief is sought, any more than it is where damages are sought,
and the District Court erred in concluding that it had jurisdiction
over the complaints under 28 U. S. C. § 1343 since only the two
municipalities were named as dl,fendants. City of Kenosha v. Bruno,
p. 507.
6. Suit against cities-Intervention by State Attorney General-
28 U.S. C. § 1331.-In this action seeking declaratory and injunctive
relief against two cities for refusal to renew liquor licenses, the
District Court on remand should consider the jurisdictional questions
presented by State Attorney General's intervention and the
availability of 28 U. S. C. § 1331 jurisdiction, as well as decisions
of this Court in Board of Regents v. Roth, 408 U. S. 464, and
Perry v. Sindermann, 408 U. S. 593, which are germane to the due
process issue, and California v. LaRue, 409 U. S. 109, dealing with
broad state authority over liquor distribution. City of Kenosha v.
Bruno, p. 507.
1230 INDEX
JURISDICTION-Continued.
7. Supreme Court-Appeal from injunction order-Texas legislative
apportionment.-This Court has jurisdiction under 28 U. S. C.
§ 1253 to consider the appeal from the injunction order applicable
to Bexar County and Dallas County districting, since the threejudge
court had been properly convened, and this Court can review
the declaratory part of the judgment below. White v. Regester,
p. 755.
JURY DUTY. See Constitutional Law, II, 2.
JURY INSTRUCTIONS. See Constitutional Law, IV, 2; Evidence,
3-5; Indians, 2; Internal Revenue Code, 2; Jurisdiction,
3; Procedure, 6; Taxes, 1.
KENOSHA, WISCONSIN. See Jurisdiction, 5-6.
KLAMATH RIVER RESERVATION. See Indians, 1.
KNOWLEDGE OF JURY. See Constitutional Law, IV, 1; Procedure,
5.
KNOWLEDGE OF RIGHT. Sec Constitutional Law, VI, 1;
Search and Seizure, 1.
KNOWLEDGE THAT CHECKS WERE STOLEN. See Constitutional
Law, IV, 2; Evidence, 3-5.
LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT.
See also Attorneys' Fees, 2.
Reinstatement of union member-Legal fees-Equitable powers of
trial court.-Respondcnt's suit under § 102 vindicated not only his
own rights of free speech guaranteed by the statute but furthered
the interests of the union and its members as well. As a result,
the award of attorneys' fees under these circumstances comported
with the trial court's inherent equitable power of making such an
award whenever ·'overriding considerations indicate the need for such
recovery." Hall v. Cole, p. 1.
LABOR UNIONS. Sec Administrative Procedure, 7; Attorneys'
Fees, 2; Labor-Management Reporting and Disclosure Act:
National Labor Relations Act, 2; Unions.
LAND ACQUISITIONS. See Federal-State Relations, 1; Public
Lands.
LANDRUM-GRIFFIN ACT. See Attorneys' Fees, 2; Labor-Management
Reporting and Disclosure Act.
LAWYERS' FEES. Sec Attorneys' Fees, l; Emergency School
Aid Act of 1972; Labor-Management Reporting and Disclosure
Act.
INDEX 1231
LEGAL FEES. See Attorneys' Fees; Emergency School Aid Act
of 1972; Labor-Management Reporting and Disclosure Act.
LEGISLATIVE APPORTIONMENT. See Constitutional Law, III,
1-7; Jurisdiction, 7.
LEGISLATIVE EMPLOYEES. See Constitutional Law, VIII, 1-
2; Immunity, 1-3.
LESSER INCLUDED OFFENSES. Srr Indians, 2; Internal Revenue
Code, 2; Jurisdiction, 3; Procedure, 6; Taxes, 1.
LEVEL OF WATER. See Jurisdiction, 4.
LICENSEES. See Constitutional Law, V; Federal Communications
Act.
LICENSES. See Jurisdiction, 5-6.
LINE-HAUL RATES. See Interstate Commerce Commission; Judicial
Review, 2; Procedure, 4.
LIQUOR LICENSES. See Jurisdiction, 5-6.
LIQUOR PURCHASES. See Constitutional Law, X; Taxes, 4.
LITIGATION EXPENSES. See Attorneys' Fees, 1; Emergency
School Aid Act of 1972.
LOUISIANA. See Federal-State Relations, 1; Public Lands.
LUTREXIN. See Administrative Procedure, 1-2; Evidence, 1-2;
Federal Food, Drug, and Cosmetic Act, 3; Jurisdiction, 1.
MAIL THEFT. See Constitutional Law, IV, 2; Evidence, 3-5.
MAINTENANCE-OF-MEMBERSHIP CLAUSES. See Administrative
Procedure, 7; National Labor Relations Act, 2;
Unions.
MAJOR CRIMES ACT OF 1885. See Indians, 2; Jurisdiction, 3;
Procedure, 6.
MAJOR POLITICAL PARTIES. See Constitutional Law, III,
5-6.
MALICIOUS VILIFICATION. See Attorneys' Fees, 2; Labor-
Management Reporting and Disclosure Act.
MANSLAUGHTER. See Constitutional Law, II, 7; Probation.
MARKETING OF DRUGS. See Administrative Procedure, 1-6;
Evidence, 1-2; Federal Food, Drug, and Cosmetic Act, 1-6;
Judicial Review, 1; Jurisdiction, 1; Procedure, 3.
MARKUPS ON LIQUOR. See Constitutional Law, X; Taxes, 4.
MARRIED STUDENTS. See Constitutional Law, II, 6.
1232 INDEX
MARSHALS. See Federal Tort Claims Act, 1-3.
MASSING OF EVIDENCE. See Constitutional Law, IV, 2; Evidence,
3-5.
MATHEMATICAL EQUALITY. See Constitutional Law, III,
1-7; Jurisdiction, 7.
MEMBERSHIP IN UNION. See Administrative Procedure, 7;
Attorneys' Fees, 2; Labor-Management Reporting and Disclosure
Act; National Labor Relations Act, 2; Unions.
MEMPHIS. See Attorneys' Fees, 1; Emergency School Aid Act of
1972.
METABOLIC DISORDERS. See Federal Food, Drug, and Cosmetic
Act, 1, 4-5.
"ME-TOO" DRUGS. See Administrative Procedure, 1-6; Evidence,
1-2; Federal Food, Drug, and Cosmetic Act, 1-6; Judicial
Review, 1; Jurisdiction, 1; Procedure, 3.
MEXICAN-AMERICANS. See Constitutional Law, III, 4, 7;
Jurisdiction, 7.
MICHIGAN. See Constitutional Law, II, 5; Procedure, 7.
MIGRATORY BIRD CONSERVATION ACT. See Federal-State
Relations, 1; Public Lands.
MILITARY BASES. See Constitutional Law, X; Taxes, 4.
MILITARY TRIALS. See Courts-Martial; Habeas Corpus.
MINERAL RIGHTS. See Federal-State Relations, 1; Public
Lands.
MINOR DEVIATIONS. See Constitutional Law, III, 5-6.
MISDEMEANORS. See Internal Revenue Code, 2; Taxes, 1.
MISSISSIPPI. See Constitutional Law, X; Taxes, 4
MISSOURI. See Constitutional Law, II, 7; Probation.
MORE-LIKELY-THAN-NOT STANDARD. See Constitutional
Law, IV, 2; Evidence, 3-5.
MOTION TO FILE BILL OF COMPLAINT. See Jurisdiction, 4.
MOTION TO VACATE STAY. See Courts-Martial; Habeas
Corpus.
MULTIMEMBER DISTRICTS. See Constitutional Law, III, 4, 7;
Jurisdiction, 7.
MUNICIPALITIES. See Jurisdiction, 5-6.
MURDER. See Constitutional Law, VI, 2; Search and Seizure, 2.
INDEX 1233
NATIONAL ACADEMY OF SCIENCES. See Administrative Procedure,
1-6; Evidence, 1-2; Federal Food, Drug, and Cosmetic
Act, 1-6; Judicial Review, 1; Jurisdiction, 1; Procedure, 3.
NATIONAL ENVIRONMENTAL POLICY ACT. See also Administrative
Procedure Act; Injunctions, 1-2; Jurisdiction, 2;
Standing to Sue.
Noncompliance by Interstate Commerce Commission-Injunctions-
Repeal by implication.-Alleged noncompliance by ICC with
the Act did not give the District Court authority to grant the injunction,
as the Act was not intended to repeal by implication any other
statute, and the policies identified in Arrow Transportation Co. v.
Southern R. Co., 372 U. S. 658, as the basis for § 15 (7) of the Interstate
Commerce Act would be substantially undermined if the
courts were found to have susp<'nsion powers simply because of noncompliance
with NEPA. United States v. SCRAP, p. 669.
NATIONAL LABOR RELATIONS ACT. See also Administrative
Procedure, 7; Unions.
1. Unfair labor practice-Court enforcement of fines-Resignations
from union.-Where the Union's constitution and bylaws are silent
on subject tif voluntary resignation from the Union, Union committed
an unfair labor practice when it sought court enforcement of fines
imposed for strikebreaking activities by employees who had resigned
from the Union, C\"Cll though Union constitution expressly prohibited
members from strikebreaking. Machinists & Aerospace Workers v.
NLRB, p. 84.
2. Un/ air labor practice-Disciplinary fines-Reasonableness.-
Adjudication by KLRB under § 8 (b) (1) (A) of the Act of an unfoir
labor pra('ticc allegedly ('Ommittcd by a nnion docs not indudc
authority to determine whether the amount of a disciplinary fine
levied by the union against a member is reasonable, the issue being
one of internal union affairs cl\"er which the NL.RB exercises no jurisdiction.
NLRB \·. Boeing Co., p. 67.
NATIONAL LABOR RELATIONS BOARD. Sec Administrative
Procedure, 7; National Labor Relations Act, 2; Unions.
NATIONAL RESEARCH COUNCIL. Sec Administrative Procedure,
1-6; Evidence, 1-2; Federal Food, Drug, and Cosmetic
Act, 1-6; Judicial Review, 1; Jurisdiction, 1; Procedure, 3.
NATIONAL TRANSPORTATION POLICY. Sec Interstate Commerce
Commission; Judicial Review, 2; Procedure, 4
NATURAL RESOURCES. See Administrative Procedure Act;
Injunctions, 1-2; Jurisdiction, 2; National Environmental Policy
Act; Standing to Sue.
1234 INDEX
NEGLIGENCE. Ser Federal Tort Claims Act, 1-3.
NEGROES. See Constitutional Law, III, 4, 7; Jurisdiction, 7.
NEVADA. See Jurisdiction, 4.
NEW DRUG APPLICATIONS. See Administrative Procedure,
1-6; Evidence, 1-2; Federal Food, Drug, and Cosmetic Act,
1-6; Judicial Review, 1; Jurisdiction, 1; Procedure, 3.
NEW DRUGS. See Administrative Procedure, 1-6; Evidence, 1-2;
Federal Food, Drug, and Cosmetic Act, 1-6; Judicial Review,
1; Jurisdiction, 1; Procedure, 3.
NEWSPAPER EMPLOYEES. See Constitutional Law, II, 2.
NONRESIDENTS. See Constitutional Law, II, 6.
NONSHAREHOLDERS. Sec Internal Revenue Code, 1; Taxes, 2.
NOTICE. See Administrative Procedure Act; Constitutional Law,
II, 1; Injunctions, 1-2; Jurisdiction, 2; National Environmental
Policy Act; Procedure, 1; Standing to Sue.
NOTICE AND HEARING. See Administrative Procedure, 1-6;
Evidence, 1-2; Federal Food, Drug, and Cosmetic Act, 1-6;
Judicial Review, 1 ; Jurisdiction, 1 ; Procedure, 3.
NOVEL QUESTIONS. See Courts-Martial; Habeas Corpus.
NUDE DANCING. See Jurisdiction, 5-6.
OBJECTIONABLE MATERIALS. Sf'e Constitutional Law, VIII,
1-2; Immunity, 1-3.
OBLIGATIONS OF BROADCASTERS. See Constitutional Law,
V; Federal Communications Act.
OFFENSES. See Indians, 2; Jurisdiction, 3; Procedure, 6.
OFFICERS' CLUB. See Constitutional Law, X; Taxes, 4.
OFFICIAL IMMUNITY. See Constitutional Law, VIII, 1-2; Immunity,
1-3.
OKLAHOMA. See Federal-State Relations, 2; Indians, :1; Taxes,
3.
OREGON. See Constitutional Law, II. 1; Procedure, 1.
ORIGINAL JURISDICTION. Sec Jurisdiction, 4.
OSAGE ALLOTMENT ACT. See Federal-State Relations, 2; Indians,
3; Taxes, 3.
OUT-OF-STATE TUITION RATES. See Constitutional Law, II, 6.
OVERPAYMENTS. See Internal Revenue Code, 1; Taxes, 2.
INDEX 1235
OWNERSHIP OF LAND. Sec Federal-State Relations, 1; Public
Lands.
PAID EDITORIAL ADVERTISEMENTS. See Constitutional
Law, V; Federal Communications Act.
PAIUTE INDIANS. Sec Jurisdiction, 4.
PARENTS. See Constitutional Law, VIII, 1-2; Immunity, 1-3.
PAYMENT OF ESTATE TAXES. See Federal-State Relations,
2; Indians, 3; Taxes, 3.
PENALTIES. See Administrative Procedure, 7; National Labor
Relations Act, 2; Unions.
PENTYLENETETRAZOL DRUGS. See Administrative Procedure,
4-6; Federal Food, Drug, and Cosmetic Act, 2; Judicial
Review, 1.
"PERSONS." See Jurisdiction, 5-6.
PERSONS AGGRIEVED. Sec Administrative Procedure Act; Injunctions,
1- 2; Jurisdiction, 2; National Environmental Policy
Act; Standing to Sue.
PHARMACEUTICALS. Sec Administrative Procedure, 1-6; Evidence,
1-2; Federal Food, Drug, and Cosmetic Act, 1-6; Judicial
Review, 1; Jurisdiction, 1; Procedure, 3.
PHONOGRAPH RECORDS. See Constitutional Law, I; IX;
Copyrights, 1-3.
PICKET LINES. See Administrative Procedure, 7; National Labor
Relations Act, 2; Unions.
PIRACY OF RECORDS AND TAPES. Sec Constitutional Law,
I: IX; Copyrights, 1-3.
PLANS OF REAPPORTIONMENT. Eke Constitutional Law, III,
1-7; Jurisdiction, 7.
PLEADINGS. See Administrative Procedure Act; Injunctions, 1-
2; Jurisdiction, 2; National Enviro~mental Policy Act; Standing
to Sue.
POLICE STATIONS. See Constitutional Law, VI, 2; Search and
Seizure, 2.
POLITICAL DISCRIMINATION. See Constitutional Law, III,
4, 7; Jurisdiction, 7.
POLITICAL-FAIRNESS PRINCIPLE. Sre Constitutional Law,
III, 5-6.
POLITICAL INCUMBENTS. See Constitutional Law, III, 1-3.
1236 INDEX
POLITICAL SUBDIVISIONS. Sec Constitutional Law, III, 1-3.
POPULATION DEVIATIONS. See Constitutional Law, III, 1-7;
Jurisdiction, 7.
POSSESSION OF STOLEN CHECKS. See Constitutional Law,
IV, 2; Evidence, 3-5.
POST EXCHANGES. See Constitutional Law, X; Taxes, 4.
PRE-EMPTION. See Constitutional Law, I; IX; Copyrights, 1-3.
PREMARKETING CLEARANCES. See Administrative Procedure,
1-6; Evidence, 1-2; Federal Food, Drug, and Cosmetic
Act, 1- 6; Judicial Review, l; Jurisdiction, 1; Procedure, 3.
PRESCRIPTION. See Federal-State Relations, 1; Public Lands.
PRESCRIPTION DRUGS. See Administrative Procedure, 3; Federal
Food, Drug, and Cosmetic Act, 6; Procedure, 3.
PRESUMPTIONS. See Constitutional Law, II, 6; IV, 2; Evidence,
3-5.
PRIMARY JURISDICTION. See Administrative Procedure, 1-6;
Evidence, 1-2; Federal Food, Drug, and Cosmetic Act, 1-6;
Interstate Commerce Commission; Judicial Review, 1-2; Jurisdiction,
1; Procedure, 3-4.
"PRIMARY JURISDICTION" OVER APPORTIONMENT. See
Constitutional Law, III, 1-3.
PRIOR WATER RIGHTS. See Jurisdiction, 4.
PRISONERS. See Federal Tort Claims Act, 1-3.
PRIVACY. See Constitutional Law, VIII, 1-2; Immunity, 1-3.
PRIVILEGE. See Constitutional Law, VIII, 1-2; Immunity, 1-3.
PRIVILEGE AGAINST SELF-INCRIMINATION. See Constitutional
Law, IV, 2; Evidence, 3-5.
PROBABLE CAUSE. See Constitutional Law, VI, 2; Search and
Seizure, 2.
PROBATION. See also Constitutional Law, II, 7.
Revocation of probation-Traffic citation-Due process.-Issuance
of traffic citation was not an "arrest" under either Missouri or
Arkansas law, and finding that petitioner violated his probation conditions
was so totally devoid of evidentiary support as to violate
due process. Even were it clear that respondent judge held Missouri
law to be that traffic citation is equivalent to arrest, such an unforeseeable
holding, retroactively applied, would also deprive petitioner
of due process. Douglas v. Buder, p. 430.
INDEX 1237
PROCEDURAL DUE PROCESS. See Jurisdiction, 5-6.
PROCEDURE. See also Administrative Procedure, 1-6; Administrative
Procedure Act; Constitutional Law, II, 1, 5-6; IV, 1;
VI, 1-2; VII; X; Courts-Martial; Evidence, 1-2; Federal
Food, Drug, and Cosmetic Act, 1-6; Habeas Corpus; Indians,
2; Injunctions, 1-2; Interstate Commerce Commission; Judicial
Review, 1-2; Jurisdiction, 1-3; National Environmental
Policy Act; Search and Seizure, 1 ; Standing to Sue; Taxes, 4.
1. Alibi defense-Reciprocal discovery-Due process.-Reciprocal
discovery is required by fundamental fairness and it is insufficient
that although statute does not require it, State might grant reciprocal
discovery in a giv('ll case. In absence of fair notice that
petitioner will have opportunity to discover State's rebuttal witnesses,
petitioner cannot, consistently with due process requirements, be
required to reveal his alibi defense. \Vardius v. Oregon, p. 470.
2. Denial of speedy trial-Dismissal of the charges.-In light of
policies underlying the right to a speedy trial, dismissal of the
charges must remain, as noted in Barker v. Wingo, 407 U.S. 514, 522,
"the only possible remedy" for deprivation of the constitutional
right. Strunk v. United States, p. 434.
3. Federal Food, Drug, and Cosmetic Act-Administrative hearing-
Appeal.-Where petitioner had an opportunity to litigate the
"new drug" issue before the FDA and to raise the issue on appeal
to a court of appeals, it may not relitigate the issue in another proceeding.
CIBA Corp. v. Weinberger, p. 640.
4. ICC approval of charges-Judicial review-Injunctions.-District
Court's action suspending separate in-transit charges for grain
inspection approved by the ICC, and remanding the case to the ICC,
is affirmed as to the remand and reversed as to the injunction suspending
the proposed charges. Atchison, T. & S. F. R. Co. v.
Wichita Bd. of Trade, p. 800.
5. Increased sentence on retrial-Double jeopardy-Due process-
Knowledge of jury.-Rendition of higher sentence by Jury on retrial
does not violate the Double Jeopardy Clause, and does not offend
the Due Process Clause as long as the jury is not informed of the
prior sentence and the second sentence is not otherwise shown to be
product of vindictiveness. Nor does the possibility of higher sentence
irnpermissibly "chill" exercise of criminal defendant's right to
challenge his first conviction by direct appeal or collateral attack.
Chaffin v. Stynchcombe, p. 17.
6. Lesser included offenses-Major Crimes Act of 1885-lndians.-
An Indian prosecuted in federal court under the Act is entitled to a
jury instruction on lesser includtcd offenses, if the facts warrant. Such
1238 INDEX
PROCEDURE-Continued.
an instrnl'tion would not e:-:pand tll(' rearh of the Act or permit
thr Government to infringr thr residual jurisdiction of the Indian
tribes by bringing in federal court prosecutions not authorized by
statute. Keeble v. United States, p. 205.
7. Retrnactivity-Increased sentence on retrial-Due process.-
The "prophylactic" due prore~s limitations rstablished by North
Carolina v. Pearce, 395 l'. S. 711, to guard against the pos~ibility
of vindietiY('ncs~ in cases where judge impoces more severe sentence
after a new trial. are not retroactively applicable to resentencing
prorcedings that, like the one inrnlved here, occurred prior to the
date of the Pearce decision. :\Iichigan v. Payne, p. 47.
PROOF. Sec Constitutional Law, VI, 1; Search and Seizure, 1.
PROPERTY LAW. SC'e Federal-State Relations, 1; Public Lands.
PROSPECTIVITY. See Constitutional Law, II, 5; Procedure, 7.
PROTECTION OF COPYRIGHTS. See Constitutional Law, I;
IX; Copyrights, 1-3.
PROTECTION OF RECORDINGS. ::lee Constitutional Law, I;
IX; Copyrights, 1-3.
PROXIMATE CAUSE. Src· Federal Tort Claims Act, 1-3.
PUBLICATION OF REPORTS. See' Constitutional Law, VIII,
1-2; Immunity, 1-3.
PUBLIC DISTRIBUTION OF REPORTS. See Constitutional
Law, VIII, 1-2; Immunity, 1-3.
PUBLIC ISSUES. See Constitutional Law, V; Federal Communications
Act.
PUBLIC LANDS. See also Federal-State Relations, 1.
Acquisition by deed and condemnation-Mineral reservations-
Subsequent Louisiana statute.-Under settled principles governing
the choice of law by federal courts, Louisiana's Act 315 of 1940 does
not apply to mineral reservations agreed to by the parties in 1937
and 1939. To permit state legislation to abrogate explicit terms of
prior federal land acquisition would seriously impair federal statutory
programs and the r,ertainty and finality indispensable to land acquisitions.
United States v. Lit.tie Lake l\-Iisere Land Co., p. 580.
PUBLIC PRINTER. See Constitutional Law, YIII, 1-2; Immunity,
1-3.
PUBLIC SAFETY EXPENDITURES. See Internal Revenue
Code, 1; Taxes, 2.
INDEX 1239
PUBLIC SCHOOLS. See Attorneys' I'ees, I; Constitutional Law,
VIII, 1-2; Emergency School Aid Act of 1972; Immunity, 1-3.
PUBLIC TRUSTEES. See Constitutional Law, V: Federal Communications
Act.
PUPILS. See Constitutional Law, VIII, 1-2; Immunity, 1-3.
PURCHASES OF LAND. See Federal-State Relations, 1; Public
Lands.
PURCRASES OF LIQUOR. See Constitutional Law, X; Taxes, 4,
PYRAMID LAKE. See Jurisdiction, 4.
RACIAL GROUPS. See Constitutional Law, III, 4, 7; Jurisdiction,
7.
RACINE, WISCONSIN. See Jurisdiction, 5-6.
RADIO BROADCASTING. See Constitutional Law, V; Federal
Communications Act.
RAILROAD-HIGHWAY INTERSECTIONS. See Internal Revenue
Code, 1; Taxes, 2.
RAILROADS. Sec Administrative Procedure Act; Injunctions,
1-2; Internal Revenue Code, 1; Interstate Commerce Commission;
Judicial Review, 2; Jurisdiction, 2; National Environmental
Policy Act; Procedure, 4; Standing to Sue; Taxes, 2.
RATE CHANGES. See Interstate Commerce Commission; Judicial
Review, 2; Procedure, 4.
RATE INCREASES. See Administrative Procedure Act; Injunctions,
1-2; Jurisdiction, 2; National Environmental Policy
Act; Standing to Sue.
RATIONAL CONNECTION. See Constitutional Law, IV, 2; Evidence,
3-5.
REAL PROPERTY. See Federal-State Relations, 1; Public Lands.
REAPPORTIONMENT. &>e Constitutional Law, III, 1-7; Jurisdiction,
7.
REASONABLE-DOUBT STANDARD. See Constitutional Law,
IV, 2; Evidence, 3-5.
REASONABLENESS OF I'INES. See Administrative Procedure,
7; National Labor Relations Act, 2; Unions.
REBUTTAL WITNESSES. See Constitutional Law, II, 1; Procedure,
1.
1240 INDEX
RECIPROCAL DISCOVERY. Ser Constitutional Law, II, 1; Procedure,
1.
RECLAMATION PROJECTS. See Jurisdiction, 4.
RECONVICTIONS. See Constitutional Law, II, 5; IV, 1; Procedure,
5-7.
RECORD PIRACY. See Constitutional Law, I; IX; Copyrights,
1-3.
RECREATIONAL HARM. See Administrative Procedure Act;
Injunctions, 1-2; Jurisdiction, 2; National Environmental Policy
Act; Standing to Sue.
RECYCLABLE MATERIALS. See Administrative Procedure
Act; Injunctions, 1-2; Jurisdiction, 2; National Environmental
Policy Act; Standing to Sue.
REDISTRICTING. See Constitutional Law, III, 1-7; Jurisdiction,
7.
REDUCTION OF SENTENCE. See Constitutional Law, VII;
Procedure, 2.
REFUND SUITS. See Internal Revenue Code, 1; Taxes, 2.
REFUSING PAID EDITORIAL ADVERTISEMENTS. See Constitutional
Law, V; Federal Communications Act.
REGULATION OF DRUG PRODUCTS. See Administrative Procedure,
1-6; Evidence, 1-2; Federal Food, Drug, and Cosmetic
Act, 1-6; Judicial Review, 1; Jurisdiction, 1; Procedure, 3.
REGULATIONS. See Constitutional Law, X; Federal Communications
Act; Taxes, 4.
REINSTATEMENT OF UNION MEMBER. See Attorneys' Fees,
2; Labor-Management Reporting and Disclosure Act.
RELEASE FROM CONFINEMENT. See Courts-Martial; Habeas
Corpus.
RELIANCE ON SUPREME COURT DECISIONS. See Federal-
State Relations, 2; Indians, 3; Taxes, 3.
RELIEF. See Administrative Procedure, 3; Courts-Martial; Federal
Food, Drug, and Cosmetic Act, 6; Habeas Corpus; Jurisdiction,
5-6; Procedure, 3.
REMANDS. See Interstate Commerce Commission; Judicial Review,
2; Procedure, 4.
REMEDIES. See Constitutional Law, VII; Procedure, 2.
RENEWAL OF LICENSES. See Jurisdiction, 5-6.
INDEX 1241
REPEALS BY IMPLICATION. See Administrative Procedure
Act; Injunctions, 1-2; Jurisdiction, 2; National Environmental
Policy Act; Standing to Sue.
REPORTS. See Constitutional Law, VIII, 1-2; Immunity, 1-3.
RESENTENCES. See Constitutional Law, II, 5; IV, l; Procedure,
5, 7.
RESERVATION INDIANS. See Indians, 1-2; Jurisdiction, 3;
Procedure, 6.
RESERVATIONS IN DEEDS. See Federal-State Relations, 1;
Public Lands.
RESERVATIONS OF MINERAL RIGHTS. See Federal-State
Relations, 1; Public Lands.
RESIDENCE. Sec Constitutional Law, II, 6.
RESIGNATION FROM UNION. See Administrative Procedure,
7; National Labor Relations Act, 2; 'Unions.
RETAIL LIQUOR ESTABLISHMENTS. See Jurisdiction, 5-6.
RETRIALS. See Constitutional Law, II, 5; IV, 1; Procedure, 5, 7.
RETROACTIVITY. See Constitutional Law, II, 5, 7; Federal-
State Relations, 1; Probation; Procedure, 7; Public Lands.
REVOCATION OF PROBATION. Sec Constitutional Law, II, 7;
Probation.
RIGHT OF ACCESS TO MEDIA. See Constitutional Law, V;
Federal Communications Act.
RIGHT TO COUNSEL. Sec Courts-Martial; Habea.s Corpus.
RIGHT TO WITHHOLD CONSENT. See Constitutional Law, VI,
1 ; Search and Seizure, 1.
RITONIC CAPSULES. See Administrative Procedure, 3; Federal
Food, Drug, and Cosmetic Act, 6; Procedure, 3.
RULES OF CRIMINAL PROCEDURE. Sec Indians, 2; Jurisdic•
tion, 3; Procedure, 6.
SAFETY OF DRUGS. See Administrative Procedure, 1-6; Evidence,
1-2; Federal Food, Drug, and Cosmetic Act, 1-6; Judicial
Review, 1; Jurisdiction, 1; Procedure, 3.
SALE OF LIQUOR. See Constitutional Law, X; Taxes, 4.
SALES TAXES. See Constitutional Law, X; Taxes, 4.
1242 INDEX
SAMPLES FROM FINGERNAILS. Sec Constitutional Law, VI,
2; Search and Seizure, 2.
SCHOOLCHILDREN. See Constitutional Law, VIII, 1-2; Immunity,
1-3.
SCHOOL EMPLOYEES. See Constitutional Law, VIII, 1-2; Immunity,
1-3.
SCHOOLS. Sec Attorneys' Fees, 1; Constitutional Law, VIII, 1-2;
Emergency School Aid Act of 1972; Immunity, 1-3.
SCIENTER. See Internal Revenue Code, 2; Taxes, 1.
SCIENTIFIC INVESTIGATIONS. See Administrative Procedure,
1-6; Evidence, 1-2; Federal Food, Drug, and Cosmetic
Act, 1-6; Judicial Review, 1; Jurisdiction, 1; Procedure, 3.
SCRAPINGS FROM FINGERNAILS. Sec Constitutional Law,
VI, 2; Search and Seizure, 2.
SCRAP MATERIALS. Sec Administrative Procedure Act; Injunctions,
1-2; Jurisdiction, 2; National Environmental Policy
Act; Standing to Sue.
SEARCH AND SEIZURE. Sec also Constitutional Law, VI, 1- 2.
1. Consented search-Knowledge of right to withhold consent.-
When subject of search is not in custody and State would justify
search on basis of consent, Fourth and Fourteenth Amendments
require that it demonstrate that consent was in fact voluntary;
voluntariness is to be determined from the totality of surrounding
circumstances. While knowledge of right to refuse consent is a
factor to be taken into account, State need not prove that one
giving permission to search knew that he had right to withhold
consent. Schneckloth v. Bustamonte, p. 218.
2. Station-home detention-Probable came-Fingernail scrapings.-
In view of station-house detention upon probable cause in
murder case, the very limited intrusion, by taking scrapings from
respondent's fingernails, undertaken to preserve higl!ly evanescent
evidence was not violative of the Fourth and Fourteenth Amendments.
Cupp v. Murphy, p. 291.
SEARCH OF AUTOMOBILES. Sec Constitutional Law, VI, 1;
Search and Seizure, 1.
SELECTIVE RATE INCREASES. See Administrative Procedure
Act; Injunctions, 1-2; Jurisdiction, 2; National Environmental
Policy Act; Standing to Sue.
SELF-INCRIMINATION. See Constitutional Law, IV, 2; Evidence,
3-5.
INDEX 1243
SENTENCES. See Constitutional Law, II, 5; IV, 1; VII; Procedure,
2, '5, 7.
SERVING AS JUROR. See Constitutional Law, II, 2.
SERVITUDES. Sec Federal-State Relations, 1; Public Lands.
SHERIFF'S EMPLOYEES. See Federal Tort Claims Act, 1-3.
SHIP'S STORES. See Constitutional Law, X; Taxes, 4.
SINGLE-MEMBER DISTRICTS. See Constitutional Law, III, 4,
7; Jurisdiction, 7.
SIXTH AMENDMENT. See Constitutional Law, VII; Procedure,
2.
SPEECH OR DEBATE CLAUSE. See Constitutional Law, VIII,
1-2; Immunity, 1-3.
SPEEDY TRIALS. See Constitutional Law, VII; Procedure, 2.
SPOT ANNOUNCEMENTS. See Constitutional Law, V; Federal
Communications Act.
STAFF MEMBERS. See Constitutional Law, VIII, 1-2; Immunity,
1-3.
STANDARDS. Sec Administrative Procedure, 1-6; Attorneys'
Fees, l; Constitutional Law, III, 4, 7; Emergency School Aid
Act of 1972; Evidence, 1-2; Federal Food, Drug, and Cosmetic
Act, 1-6; Judicial Review, l; Jurisdiction, 1, 7; Procedure,
3.
STANDING TO SUE. See also Administrative Procedure Act;
Injunctions, 1-2; Jurisdiction, 2; National Environmental Policy
Act.
Persons aggrieved-Administrative Procedure Act.-Appellees'
pleadings sufficiently alleged that they were "adversely affected" or
"aggrieved" within the meaning of § 10 of the Act to withstand a
motion to dismiss on the ground of lack of standing to sue. Standing
is not confined to those who show economic harm, as "[a]esthetic
and environmental well-being, like economic well-being, are important
ingredients of the quality of life in our society." United States v.
SCRAP, p. 669.
STATE ATTORNEY GENERAL. See Jurisdiction, 5-6.
STATE ESTATE TAXES. See Federal-State Relations, 2; In•
dians, 3; Taxes, 3.
STATE LEGISLATIVE APPORTIONMENT. Sef> Constitutional
Law, III, 1-7; Jurisdiction, 7.
1244 INDEX
STATE PROTECTION OF RECORDINGS. See Constitutional
Law, I; IX; Copyrights, 1-3.
STATE TAX COMMISSION. See Constitutional Law, X; Taxes,
4.
STATE UNIVERSITIES. See Constitutional Law, II, 6.
STATION-HOUSE DETENTION. See Constitutional Law, VI, 2;
Search and Seizure, 2.
STATUTORY INFERENCES. See Constitutional Law, IV, 2;
Evidence, 3-5.
STATUTORY PRESUMPTIONS. See Constitutional Law, II, 6.
STATUTORY STANDARDS. See Administrative Procedure, 1-6;
Evidence, 1-2; Federal Food, Drug, and Cosmetic Act, 1-6;
Judicial Review, 1; Jurisdiction, l ; Procedure, 3.
STAY. See Courts-Martial; Habeas Corpus.
STOLEN CHECKS. See Constitutional Law, IV, 2; Evidence, 3-5.
STRENGTH OF POLITICAL PARTIES. See Constitutional Law,
III, 5-6.
STRIKEBREAKERS. See Administrative Procedure, 7; National
Labor Relations Act, 2; Unions.
STRIKES. See Administrative Procedure, 7; National Labor Relations
Act, 2; Unions.
STUDENTS. See Constitutional Law, II, 6; VIII, 1-2; Immunity,
1-3.
SUBSIDIES. See Internal Revenue Code, l; Taxes, 2.
SUBSTANTIAL EQUALITY OF POPULATION. See Constitutional
Law, III, 5-6.
SUBSTANTIAL EVIDENCE. See Administrative Procedure, 1-6;
Evidence, 1-2; Federal Food, Drug, and Cosmetic Act, 1-6;
Judicial Review, 1; Jurisdiction, 1; Procedure, 3.
SUCCESSFUL LITIGANTS. See Attorneys' Fees, 1-2; Emergency
School Aid Act of 1972; Labor-Management Reporting
and Disclosure Act.
SUICIDES. See Federal Tort Claims Act, 1-3.
SUITS TO QUIET TITLE. See Federal-State Relations, 1; Public
Lands.
SUMMARY COURTS-MARTIAL. See Courts-Martial; Habeas
Corpus.
INDEX 1245
SUMMARY-JUDGMENT PROCEDURE. See Administrative
Procedure, 1-6; Evidence, 1-2; Federal Food, Drug, and Cosmetic
Act, 1-6; Judicial Review, 1; Jurisdiction, 1; Procedure,
3.
SUPERINTENDENT OF DOCUMENTS. See Constitutional Law,
VIII, 1-2; Immunity, 1-3.
SUPREMACY CLAUSE. See Constitutional Law, I; IX; X;
Copyrights, 1-3; Taxes, 4.
SUPREME COURT. See Constitutional Law, III, 4, 7; Jurisdiction,
4, 7.
SUPREME COURT DECISIONS. See Federal-State Rela.tions, 2;
Indians, 3; Taxes, 3.
SURCHARGES. See Administrative Procedure Act; Injunctions,
1-2; Jurisdiction, 2; National Environmental Policy Act;
Standing to Sue.
SURVEILLANCE OF PRISONERS. See Federal Tort Claims
Act, 1-3.
SUSPECTS. See Constitutional Law, VI, 2; Search and Seizure, 2.
SUSPENDED SENTENCES. See Constitutional Law, II, 7;
Probation.
SUSPENSION OF CHARGES. See Interstate Commerce Commission;
Judicial Review, 2, Procedure, 4.
SUSPENSION OF RATE INCREASES. See Administrative Procedure
Act; Injunctions, 1-2; Jurisdiction, 2; National Environmental
Policy Act; Standing to Sue.
SUSPENSIONS. See Administrative Procedure, 1-6; Evidence,
1-2; Federal Food, Drug, and Cosmetic Act, 1-6; Judicial Review,
1; Jurisdiction, 1; Procedure, 3.
TAPE PIRACY. See Constitutional Law, I; IX; Copyrights, 1-3.
TAXES. See also Constitutional Law, X; Federal-State Relations,
2; Indians, 3; Internal Revenue Code, 1-2.
1. Federal, income ta,x returns-Lesser included offense-"Willjully."-
Word "willfully" has same meaning in 26 U. S. C. §§ 7206
(1) and 7207, connoting voluntary, intentional violation of known
legal duty, and the distinction between the statutes is found in the
additional misconduct that is essential to the violation of the felony
provision; hence, the District Court properly refused the requested
lesser-included-offense instruction based on respondent's erroneous
1246 INDEX
TAXES-Continued.
contention that word "willfully" in misdemeanor statute implied less
scienter than same word in felony statute. United States v. Bishop,
p. 346.
2. Income taxes-Depreciation of Government's cost in assets-
Highway-railroad improvements.-Gowrnmcntal subsidies did not
constitute contributions to respondent's capital within meaning of
§ 113 (a) (8) of Internal Revenue Code of 1939; the assets in question
have a zero basis; and respondent cannot claim a depreciation
deduction with respect thereto. United States v. Chicago, B. & Q.
R. Co., p. 401.
3. Oklahoma estate tax-Payment by United States as trustee-
Reliance on Suprrme Court decision.-United States did not breach
its fiduciary duty as trustee of Indian property by paying Oklahoma
eftatc tax assessed against estate of deceased, a restricted Osage Indian,
in reliance on West v. Oklahoma, 334 U. S. 717, which had
upheld the validity of tax as applied to the same kind of estate.
United States v. Mason, p. 391.
4. Sales tax-State markup on liquor-Exclusive federal jurisdiction.-\
Vhether the markup can be viewed as sales tax to whose
imposition in the context of two exclusive-jurisdiction bases the
United States has consented under the Buck Act, and whether, in
any event, the markup unconstitutionally taxes federal instrumentalities,
and violates the Supremacy Clause as conflicting with federal
procurement regulations and policy, are issues that the District
Court did not reach and should consider initially on remand. United
States v. Mississippi Tax Comm'n, p. 363.
TAX RETURNS. See Internal Revenue Code, 2; Taxes, l.
TELECOMMUNICATIONS. See Constitutional Law, V; Federal
Communications Act.
TENNESSEE. See Attorneys' Fees, 1; Emergency School Aid
Act of 1972.
TERMINATION OF INDIAN RESERVATIONS. See Indians, 1.
TEXAS. See Constitutional Law, III, 1-4, 7; Jurisdiction, 7.
THREE-JUDGE COURTS. See Constitutional Law, III, 4, 7; Jurisdiction,
7.
TITLE TO LAND. Sec Federal-State Relations, 1; Public Lands.
TORT CLAIMS. See Federal Tort Claims Act, 1-3.
TOTALITY OF CIRCUMSTANCES. Sec Constitutional Law, VI,
1; Search and Seizure, 1.
INDEX 1247
TRAFFIC CITATIONS. See Constitutional Law, II, 7; Probation.
TRAFFIC VIOLATIONS. See Constitutional Law, VI, 1; Search
and Seizure, I.
TRANSPORTATION. Sec Interstate Commerce Commission; Judicial
Review, 2; Procedure, 4.
TREASURY CHECKS. See Constitutional Law, IV, 2; Evidence,
3-5.
TRIALS. See Constitutional Law, VII; Procedure, 2.
TRUCK DRIVERS. See Constitutional Law, II, 7; Probation.
TRUCKEE RIVER. Sec Jurisdiction, 4.
TRUSTEE OF INDIAN PROPERTY. See Federal-State Relations,
2; Indians, 3; Taxes, 3.
TUITION RATES. Sec Constitutional Law, II, 6.
TWENTY-FIRST AMENDMENT. See Constitutional Law, X;
Taxes, 4.
UNCOUNSELED MILITARY PERSONNEL. See Courts-Martial;
Habeas Corpus.
UNEXPLAINED POSSESSION OF STOLEN PROPERTY. See
Constitutional Law, IV, 2; Evidence, 3-5.
UNFAIR LABOR PRACTICES. See Administr.ative Procedure,
7; National Labor Relations Act, 2; Unions.
UNFORESEEABLE HOLDINGS. See Constitutional Law, II, 7;
Probation.
UNION BYLAWS. Sec National Labor Relations Act, I; Unions.
UNION CONSTITUTIONS. See National Labor Relations Act,
l; Unions.
UNIONS. See also Administrative Procedure, 7; Attorneys' Fees,
2; Labor-Management Reporting and Disclosure Act; National
Labor Relations Act, 1-2.
Strikebreaking-Court enforcement of fines-Unfair labor practice.-\
Vherc the Union's constitution and b~·laws arc silPnt on
subject of voluntary resignation from the Union, Union committed
an unfair labor practice when it sought court enforcement of fines
imposed for strikebreaking activities by employees who had resigned
from the Union, even though Union constitution expressly prohibited
members from strikebreaking. Machinists & Aerospace Workers v.
NLRB, p. 84.
1248 INDEX
UNITED STATES MARSHALS. See Federal Tort Claims Act,
1-3.
UNITED STATES TREASURY CHECKS. See Constitutional
Law, IV, 2; Evidence, 3-5.
UNIVERSITY STUDENTS. See Constitutional Law, II, 6.
UNNAMED MEMBERS OF CLASS. See Courts-Martial; Habeas
Corpus.
UPSTREAM WATER USE. See Jurisdiction, 4.
VILIFICATION OF UNION MANAGEMENT, See Attorneys'
Fees, 2; Labor-Management Reporting and Disclosure Act.
VINDICTIVENESS. See Constitutional Law, II, 5; IV, 1; Procedure,
.5, 7.
VIOLATION OF PROBATION. See Constitutional Law, II, 7;
Probation.
VOLUNTARINESS. See Constitutional Law, VI, 1; Search and
Seizure, 1.
VOLUNTARY CONSENT. See Constitutional Law, VI, 1; Search
and Seizure, 1.
VOLUNTARY VISIT TO POLICE STATION. See Constitutional
Law, VI, 2; Search and Seizure, 2.
WARRANTLESS SEARCHES. See Constitutional Law, VI, 2;
Search and Seizure, 2.
WATER RIGHTS. See Jurisdiction, 4.
WHISKEY. See Constitutional Law, X; Taxes, 4.
WHOLESALE MARKUPS. See Constitutional Law, X; Taxes, 4.
WILDLIFE REFUGES. See Federal-State Relations, 1; Public
Lands.
"WILLFULLY.'' See Internal Revenue Code, 2; Taxes, I.
WISCONSIN. See Jurisdiction, 5-6.
WITHDRAWAL OF APPROVAL. See Administrative Procedure,
1-6; Evidence, 1-2; Federal Food, Drug, and Cosmetic Act,
1-6; Judicial Review, 1; Jurisdiction, 1; Procedure, 3.
WITNESSES. See Constitutional Law, II, 1; Procedure, 1.
INDEX 1249
WORDS.
1. "Indian country." 18 U. S. C. § 1151. Mattz v. Arnett, p. 481.
2. "Person." 42 U.S. C. § 1983. City of Kenosha v. Bruno, p. 507.
3. "Willfully." 26 U.S. C. §§ 7206, 7207. United States v. Bishop,
p. 346.
WORKERS. See Administrative Procetlure, 7; National Labor
Relations Act, 2; Unions.
WORLDWIDE CLASS. See Courts-Martial; Habeas Corpus.
"WRITINGS." See Constitutional Law, I, IX; Copyrights, 1-3.
YUROK INDIANS. See Indians, 1.
L
Ill
IJ
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J
J
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